Site search

Site menu:

Subscribe

Archives

Categories

Subscribe to Email Updates

The 411 on FOIA & the White House

Don’t let confusion over FOIA and the White House leave you up in arms. National Archives Identifier 518141.

Don’t let confusion over FOIA and the White House leave you up in arms. National Archives Identifier 518141.

Quick FOIA quiz: Is the White House subject to the Freedom of Information Act (FOIA)?

Yes. And no.

It depends on the function of a particular White House office.

Offices within the Executive Office of the President that “wield … substantial authority independent of the President” are subject to FOIA, the Court of Appeals for the District of Columbia Circuit has ruled.

Five White House offices generally exercise such authority, are considered agencies under FOIA and accept FOIA requests (included are links to their FOIA contact pages):

The Office of the President, including the “President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President,” are not subject to FOIA, courts have ruled.

White House offices found not to be agencies subject to FOIA are the Office of Counsel to the President, the Executive Residence staff, the National Security Council, the National Energy Policy Development Group, the Council of Economic Advisers, the Vice President and his staff, and the former Presidential Task Force on Regulatory Relief.

(Read more in the Procedural Requirements chapter of the U.S. Department of Justice Guide to FOIA.)

So before you dash off a FOIA request to the White House, you may wish to think about which office within the White House likely has the records you seek and whether that office is considered an agency for the purposes of FOIA.

Open Government: We Need Your Ideas!

The feedback and ideas we received from the public on our last Open Government Plan resulted in a great product. We hope to hear from you this time around as well! (National Archives Identifier 522866)

The feedback and ideas we received from the public on our last Open Government Plan resulted in a great product. We hope to hear from you this time around as well! (National Archives Identifier 522866)

We’re thrilled with the attention that FOIA is receiving in Open Government efforts, such as the National Action Plan. The National Archives and Record Administration (NARA), OGIS’s parent agency, is setting its own open government priorities for 2014-2016 in its third Open Government Plan, and we want to hear what you think.

You can take a look at an overview of proposed actions for this plan and NARA’s previous plan and tell us what you’d like to see included. How do you think NARA should further transparency, participation, and collaboration?

We’re looking for your feedback on a variety of topics, including:

  • Innovation, crowdsourcing and public engagement
  • Digitization and online public access
  • Freedom of Information Act (FOIA)
  • Declassification
  • Records management

If you have an idea, we’d love to hear it—either in the comments, or with an email to opengov@nara.gov. Please send your suggestions by April 23, 2014 so they can be considered for the plan.

Sunshine Week 2014 Roundup

Treasury introduced an inspiring new internal marketing campaign for its FOIA program during Sunshine Week. We love it!

Treasury introduced an inspiring new internal marketing campaign for its FOIA program during Sunshine Week. We love it!

Though the “sunny” forecast in Washington D.C. actually ended up being rather snowy, we were still feeling the warmth during Sunshine Week. We gave you a preview of the events we planned to attend during Sunshine Week, and wrote about Director Nisbet’s Senate testimony to the Senate Judiciary Committee, but here are some other exciting things that happened in the world of Government transparency.

More Support From the Top

We’ve written about the importance of executive support for FOIA, and the National Archives and Records Administration’s  own Archivist of the United States David Ferriero blazed a trail last Sunshine Week with a message to all employees reminding them that FOIA is everyone’s responsibility. Mr. Ferriero wrote another all-staff message about NARA’s open government efforts, sent during Sunshine Week 2014. We are so grateful for the support.

We were pleased to hear that Treasury’s Chief FOIA Officer sent a similar message to all Treasury employees this year. Nani Coloretti wrote:  “As you know, the responsibility for responding to FOIA requests doesn’t rest solely on Treasury’s FOIA staff. FOIA is everyone’s responsibility. Thank you for taking this obligation seriously by helping the Department’s FOIA professionals respond quickly to FOIA requests.” This is a good reminder for everyone.

 OGIS Updates

OGIS published several items during Sunshine Week. The first, our 2014 report, provides a window into our work over the last year. And what a year it has been—we’re down a staff member, our case load is up 40 percent, and we were audited by the Government Accountability Office.

OGIS also began making final letters to our customers available on our website. These letters, which often close the requests for mediation services that OGIS receives, provide unique insight into our work. The collection of letters is a work in progress—watch the site for additional letters in the coming months.

Finally, OGIS released two recommendations for 2014.  We suggest that when procuring new technology, upgrading existing technology, or even creating a new database, agency program officers consult with their records managers and FOIA professionals to best determine how the records will be managed, how the agency might efficiently and effectively search for records in response to FOIA requests for the information contained in those records, and, ideally, how the agency might proactively disclose the information or data.

We also recommended that Executive Branch guidance be issued to agencies that focuses on ways agencies can provide exemplary customer service to FOIA requesters, with particular attention to the importance of appropriate dispute resolution through the FOIA Public Liaisons and through working with OGIS.

It seemed like wherever we went during Sunshine Week, event attendees were discussing OGIS’s activities related to the National Action Plan. We’ve written about the FOIA Modernization Committee that OGIS will be leading, and we heard a lot of support for and interest in that idea. OGIS will also have a seat at the table as agencies convene to discuss the creation of a common FOIA regulation. We look forward to these efforts and their positive impact on government openness.

Agencies Celebrate FOIA

We wrote about the Census Bureau’s Sunshine Week plans, but Census is not the only Federal agency to organize a Sunshine Week event. The Department of Homeland Security hosted a FOIA Day celebration, where OGIS Director Miriam Nisbet spoke about the important work done by FOIA professionals. Treasury also spread a little sunshine, with a Sunshine Week celebration for Department FOIA professionals. We’d love to hear about what you did to celebrate Sunshine Week 2014!

 

OGIS Director testifies, suggests improvements to FOIA

OGIS recommends marrying FOIA and IT procurement (NARA Identifier 6447371)

OGIS recommends marrying FOIA and IT procurement (NARA Identifier 6447371)

OGIS Director Miriam Nisbet joined other advocates of the Freedom of Information Act (FOIA) on March 11, testifying before the Senate Committee on the Judiciary about OGIS’s work and two new suggestions the Office has for improving FOIA.

OGIS proposes that FOIA be embedded into Federal Information Technology (IT) management across the government.

“We suggest that when procuring new technology, upgrading existing technology, or even creating a new large agency database, agency program officers consult with their records managers and FOIA professionals to best determine how the records will be managed, how the agency might efficiently and effectively search for records in response to FOIA requests for the information contained in those records and ideally, how the agency might proactively disclose information,” Director Nisbet told the Senate Committee.

OGIS plans to pursue the idea through the National Action Plan initiative led by the Department of Justice (DOJ) to identify ways to improve internal agency FOIA processes. Melanie Pustay, director of DOJ’s Office of Information Policy (OIP) also testified and discussed the Plan’s five initiatives to modernize FOIA.

In addition to DOJ, OGIS will work with the Chief Information Officers Council and the Federal Records Council, the principal interagency forums for improving IT and Federal records policies, respectively.

OGIS also has asked for Executive Branch guidance on ways to provide exemplary customer service to FOIA requesters, with particular attention to using dispute resolution through FOIA Public Liaisons and OGIS to prevent and resolve disputes that otherwise could lead to costly litigation. FOIA Public Liaisons play a crucial role in the FOIA process with their statutory mandate to help to resolve disputes between requesters and agencies. The recommendation mirrors a 2013 OGIS recommendation that agencies work with OGIS to implement dispute resolution for FOIA conflicts.

Two other 2013 OGIS recommendations, examining FOIA fees and reviewing the process for requesting immigration-related records, are complex issues that require long-term continuing attention and continue in Fiscal Year (FY) 2014, Director Nisbet told the committee.

She also noted that requests for OGIS mediation services were up 40 percent in FY 2013.

Senate Judiciary Chairman Patrick Leahy of Vermont said he is encouraged by “the good work that OGIS is doing, but I worry that the Office does not have sufficient independence, authority and resources to fully carry out its work.”

The “FOIA Oversight and Implementation Act of 2014” would, among other things, give OGIS greater independence and expanded authority and reporting requirements. The Administration has not taken a position on the bill, H.R. 1211, which was sent to the Senate Judiciary Committee after House passage on February 25, 2014.

Director Nisbet announced that the National Archives and Records Administration recently approved three new positions to carry out OGIS’s review mission.  Amy Bennett, assistant director of OpenTheGovernment.org, said that while the new positions are welcome, “OGIS needs several more bodies, as well as new resources to help promote and support the office’s work.”

That idea was echoed by Dr. David Cuillier, director of the University of Arizona School of Journalism and president of the Society of Professional Journalists. “Strengthen OGIS with more staff, more authority and more independence,” he told the Committee.

Dr. Cuillier, Ms. Bennett and Daniel Metcalfe, director of the Collaboration on Government Secrecy (CGS) at American University’s Washington College of Law, recommended several ways to strengthen FOIA including, in no particular order:

  • Requiring a public interest balancing test for agencies wishing to use FOIA’s Exemption 5 to withhold pre-decisional deliberative records (OpenTheGovernment.org)
  • Codifying the presumption of openness in FOIA memoranda issued by the President and the Attorney General on January 21, 2009 and March 19, 2009, respectively (Dr. Cuillier & OpenTheGovernment.org)
  • Investing in a single online FOIA portal for receiving and tracking requests (Dr. Cuillier)

Reining in Exemption 3 laws which specifically exempt certain information from disclosure under FOIA by requiring a public interest balancing test in applying such exemptions and including sunsets on any new Exemption 3 statutes (Dr. Cuillier & Mr. Metcalfe)

A Sunny Forecast

sunnytrees

We hope that you will join us at one of Sunshine Week’s illuminating events. (NARA Identifier 554394)

While some of us on the East Coast may feel like this is the winter that will never end, it’s nice to know that there’s sunshine on the horizon – Sunshine Week 2014! During the week of March 16 to March 22, groups across the country will promote openness in state and local governments and discuss the importance of open government and freedom of information. (Learn more about local events at Sunshine Week’s website.) If you are in the Washington, D.C., area, Sunshine Week starts a bit early! Mark your calendars for these events:

Tuesday March 11: OGIS Director Miriam Nisbet will testify before the Senate Committee on the Judiciary on “Open Government and Freedom of Information: Reinvigorating the Freedom of Information Act for the Digital Age” at 10:15 a.m. in Room 226 of the Dirksen Senate Office Building. Learn more (and watch online) at the Committee’s website.

Friday March 14: The 16th annual National Freedom of Information Day conference will take place at the Newseum. This event, hosted by the Newseum Institute’s First Amendment Center in partnership with OpenTheGovernment.org, brings together groups from all areas concerned with freedom of information and open records, including FOI advocates, government officials, lawyers, librarians, journalists and educators. (Note: The event is free, but registration is required.Consult the Freedom Forum’s website for more information.)

Monday March 17: Celebrate FOIA with the Justice Department! This annual program will describe the current state of FOIA administration and mark the fifth anniversary of the Attorney General’s FOIA Guidelines. For more information and to register, see the DOJ announcement online.

 Tuesday March 18: The Collaboration on Government Secrecy will sponsor its Seventh Annual FOI Day Celebration. Director Nisbet is on a panel discussing FOIA Exemption 5’s foreseeable harm standard. The day also includes a comprehensive view of FOIA-related matters in the 113th Congress from House, Senate, majority and minority perspectives. View a PDF of the agenda, and find more details on the CGS website.

Washington-based open-government groups are hosting a panel discussion from 6:30 p.m. to 8:30 p.m. at the National Press Club titled “Partly Cloudy: Why ‘Public Information’ Doesn’t Always = Accessible Information” that will look at tools for accessing government data. Sponsors include The National Press Club Freedom of Information Committee, the Sunlight Foundation, Citizens for Responsibility and Ethics in Washington, OpentheGovernment.org, and the Reporters Committee for Freedom of the Press. Admission is free, but registration is required. Learn more and register at the Press Club website.

Wednesday March 19: The House Advisory Committee on Transparency will discuss “The Future of FOIA” from 2 p.m. to 3:30 p.m. in Room 2203 of the Rayburn House Office Building. The committee educates policymakers on transparency-related issues, problems, and solutions and shares ideas with members of the Congressional Transparency Caucus.

Thursday March 20: Join the U.S. Census Bureau to celebrate improvements in FOIA administration at its headquarters (4600 Silver Hill Road, Suitland, MD). There will be two sessions open to the public, one at 9:00 am (a discussion with OIP Director Melanie Pustay and Joey Hutcherson, deputy director of the Department of Commerce’s Office of Privacy and Open Government) and another at 11:30 a.m. (a brown-bag discussion of FOIAonline). You can register for these sessions or request more information by emailing census.efoia@census.gov.

We hope to see you at these events!