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Improving FOIA Regulations: We Need Your Help!

Developing a common FOIA regulation is one of the commitments of the second Open Government National Action Plan to modernize FOIA.

Agency FOIA professionals and regulatory specialists interested in what a common FOIA regulation might look like are invited to a meeting that will kick off the interagency process of developing the regulation.

The meeting is from 1 p.m. to 3 pm. Thursday May 29 at the Department of Justice’s Office of Information Policy (OIP), 1425 New York Ave. NW, Suite 11050 in Washington, DC, near the McPherson Square Metro stop on the Blue/Orange lines and Metro Center on the Metro’s Red Line.

To register, email your name and phone number to doj.oip.foia@usdoj.gov. Hope to see you there!

Customer Service: it’s a Smart Practice—and it’s the Law!

Providing excellent customer service makes the FOIA process run more smoothly—and it’s the law! (NARA Identifier 196402)

Providing excellent customer service makes the FOIA process run more smoothly—and it’s the law! (NARA Identifier 196402)

Our last post offers some practical tips for FOIA professionals wishing to incorporate alternative dispute resolution into the FOIA process. We picked up more good ideas later in the American Society of Access Professionals (ASAP) 7th Annual National Training Conference during a session titled “Customer Service—It’s the Law!”

The session, which included FOIA professionals Jay Olin from the National Archives and Records Administration and Kathy Ray from the Department of Transportation, focused on the role of the FOIA Public Liaison (FPL).

First, a bit of history: although FPLs are mentioned twice in the statute, as amended by the OPEN Government Act of 2007, 5 U.S.C. § 552(a)(6)(B)(ii) and  5 U.S.C. § 552(l), Executive Order (EO) 13392 established the FPL role in 2005. The EO mandated that FPLs “seek to ensure a service-oriented response to FOIA requests and FOIA-related inquires.”

For DOT’s Ray, that meant compiling an FPL handbook which contains, among other documents, the statute with the above-noted sections highlighted; DOT’s FOIA regulation; DOT’s Annual FOIA Report and  Chief FOIA Officer report; and a log to document the statutorily mandated work the FPL does to

  • reduce delays;
  • increase transparency and understand the status of requests; and
  • resolve disputes.

The handbook is meant to be a resource not just for FPLs, but all DOT FOIA professionals, Ray said.

Ray, Olin and several panel attendees noted the importance of educating two audiences about the FOIA process: requesters and program managers who hold the records being requested.

Finally, as we’ve written about before, plain writing contributes greatly to excellent customer service. One attendee noted that after she attended an ASAP session on plain writing a year ago, she began checking readability statistics of her FOIA program’s correspondence and tweaked accordingly. (In Microsoft Office Word, go to “Spelling & Grammar” → “Word Options” → “Show readability statistics.”)

The tool measures the percentage of passive sentences, a Flesch Reading Ease score (a 0-to-100 scale with a score of 60 to 70 indicating ease of understanding for the typical 13- to 15-year-old) and a Flesch-Kincaid Grade Level score.

The bottom line, panelists and attendees agreed, is in written correspondence with requesters, do more than just cite an exemption: explain it and, if possible, the types of information withheld under the exemption.

Have other thoughts? Drop us a line.

(So how did we do with this blog post? Just 9 percent of our sentences are passive—not bad for writing about an event that occurred in the past (May 14). But a Flesch Reading Ease score of 43.9 isn’t great. And a grade level score of 11.7 is a bit high. Must be the statutory cites and the acronyms!)

FOIA and Dispute Resolution: Voices from the Field

Good communications help agencies and requesters work as a team to get the job done. (NARA identifier 651412)

Good communications help agencies and requesters work as a team to get the job done. (NARA identifier 651412)

This year’s American Society of Access Professionals (ASAP) Annual Training Conference included a panel titled “FOIA and Dispute Resolution.” The panel included Kathy Ray from the Department of Transportation and Brad Heath, a USA Today reporter and frequent FOIA requester. The session was completely full, and there were lots of questions and excellent discussion.

The panel focused on how agencies are resolving FOIA disputes (as they are instructed to do by the 2007 OPEN Government Act). The panelists and audience agreed that the most important tool for resolving FOIA disputes (and encouraging better requests) is good communications. No big surprise there, but what does that actually look like?

Here are some practical dispute resolution tips that the panelists and audience shared:

  • Part of our job as FOIA professionals is giving requesters bad news or the same news. It’s not fun, but try to get comfortable with the idea.
  • While it may not be possible at every agency, we heard that it can be helpful to have a requester speak directly to program staff.
  • When you and a requester talk, follow up with an email summarizing your discussion. This not only ensures that everyone is on the same page, but it creates accountability for everyone involved in the request (such as program staff).
  • One agency representative shared that he created a tickler file for all requests that involved 7(A) withholdings so that he can notify requesters when an investigation or proceeding ends.
  • We on the government side bemoan requests that are too broad, or imprecise, or voluminous, but remember that if we want better requests, we must be willing to educate requesters about what’s available and how to ask for it in a way that it can be found. Reach out to the requester and help him or her understand your records.
  • Think carefully before sending “still interested” letters. Remember that in many cases, the requester has been waiting for a response for months or years, so may strike the wrong tone to inform the requester that he or she must respond in a short time frame to keep that request open.

It was really wonderful to hear about all that agencies and requesters are doing to resolve—and prevent—FOIA disputes. But remember, if all else fails, OGIS is here to help.

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.