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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.

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)