Site search

Site menu:

Subscribe

Archives

Categories

Subscribe to Email Updates

Do You Copy?

While the photocopy room at your agency may not be a “clean room,” retaining a copy of requested records is no less important. (NARA identifier 6501195)

While the photocopy room at your agency may not be a “clean room,” retaining a copy of requested records is no less important. (NARA identifier 6501195)

When agencies respond to a FOIA request with released records, they retain a copy of those records along with the response letter in a file documenting the request. This is important for a couple of reasons—so that the agency can respond to any questions from the requester, or that the information can be passed along to the appeals office for review in the case of an appeal, or to document the agency’s actions in case of OGIS mediation (or litigation). But does your agency’s FOIA shop retain a copy of responsive records that are exempt from release?

In a recent OGIS case, a requester made a request for records he had requested previously. At the time of the first request, the records were exempt pursuant to Exemption 7(A), which protects records related to law enforcement proceedings but no longer applies once those proceedings are complete. (Of course, other exemptions may come into play at that point.) In response to his most recent FOIA request, the requester learned that the agency could not review the records to see if 7(A) still applies, because the records were kept in an electronic format that had become corrupted. When we spoke to the agency, we learned that at the time of the initial request, the FOIA office did not itself make a copy of the records that were withheld in full, and the agency’s original electronic copy of the records can no longer be accessed.

Technically, the agency FOIA office did nothing wrong in its initial response to the request; there is no requirement that agency FOIA offices create and retain a copy of the records they withhold in full. However, doing so is an OGIS best practice for several reasons:

  • If there is a question about the withholdings down the line, it is easier to review one’s own copy than to request the records again from the program office.
  • We’ve written before about the challenge of searching for electronic records, particularly email records. If you retain a copy of the records, it doesn’t matter who leaves the agency, or cleans out his/her inbox. You’ve got the records.
  • Who remembers Gopher? We don’t either. Make (at least) a paper copy of the records and you don’t have to worry about email clients or computer systems coming and going.

Have you been relieved to find a copy of exempt records in a FOIA request file, or have you had the opposite experience? We’d love to hear from you!

Second U.S. Open Government National Action Plan Highlights FOIA

Open Government National Action Plan cover page

The U.S. Open Government National Action Plan sets out 23 initiatives to make government more open and accountable.
View the plan at: http://go.usa.gov/ZxQA

The United States released its second Open Government National Action Plan on December 5, announcing 23 new initiatives to further transparency and encourage a more efficient and effective government. One initiative, Modernizing the Freedom of Information Act (FOIA), lists five specific commitments the government plans to undertake over the next two years.

The National Action Plan is part of the United States’ participation with the Open Government Partnership (OGP) announced in July 2011 by the U.S. and Brazil. The OGP is a global initiative that supports efforts to promote more transparent, effective and accountable institutions. In September 2011, the U.S. released its first Open Government National Action Plan, setting forth 26 goals to create a more open government.

In two years, the OGP has grown from 8 member-nations to more than 60. In that time, the U.S. has continued to implement and improve upon the open government commitments set forth in the first Plan, including consulting with external stakeholders for feedback, and to solicit suggestions for new commitments for the second Plan.

The second Plan’s commitments include new initiatives as well as expanded efforts that build from the first Plan. The commitments surrounding FOIA modernization intend to improve the FOIA process for both agencies and requesters—the same goal OGIS strives to achieve through its work.

The FOIA commitments are:

  • Improve the Customer Experience through a Consolidated Online FOIA Service. More than 100 Federal agencies are subject to FOIA. For the average requester, this can mean significant time and energy spent searching for the right agency and navigating the unique process for submitting a request to that agency. The Administration will launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single website and includes additional tools to improve the customer experience. The U.S. Government will establish a FOIA task force that will review current practices, seek public input, and determine the best way to implement this consolidated FOIA service.
  • Develop Common FOIA Regulations and Practices for Federal Agencies. Certain steps in the FOIA process are generally shared across Federal agencies. Standardizing these common aspects through a core FOIA regulation and common set of practices would make it easier for requesters to understand and navigate the FOIA process and easier for the Government to keep regulations up to date. The Administration will initiate an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.
  • Improve Internal Agency FOIA Processes. Over the past few years, several agencies have analyzed existing FOIA practices and used this information to make dramatic improvements in their backlogs and processing times, as well as to increase the proactive release of information in the public interest. The U.S. Government will scale these targeted efforts to improve the efficiency of agencies with the biggest backlogs, and to share lessons learned to further improve internal agency FOIA processes.
  • Establish a FOIA Modernization Advisory Committee. Improvements to FOIA administration must take into account the views and interests of both requesters and the Government. The United States will establish a formal FOIA Advisory Committee, comprised of government and non-governmental members of the FOIA community, to foster dialogue between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.
  • Improve FOIA Training Across Government to Increase Efficiency. In order to efficiently and effectively respond to FOIA requests, every Federal employee — not just those in an agency’s FOIA office — should fully understand the FOIA process. The Administration will make standard e-learning training resources available for FOIA professionals and other Federal employees and encourage their use.

Efforts are already underway to begin achieving these FOIA goals. The National Archives and Records Administration, OGIS’s parent agency, will house the FOIA advisory committee and has begun taking steps to establish that committee. The Department of Justice, which heads up governmentwide FOIA training, has already begun developing its new online FOIA training curriculum. Additionally, the Administration is working to set up interagency groups to look at the best options for a single online FOIA service and the feasibility of establishing a common FOIA regulation.

All of these initiatives will require a lot of effort from our FOIA colleagues in government and we look forward to working with them and alongside the requester community as we implement these important—and necessary—updates to the FOIA process.

Giving Thanks

Hope you’re hungry: gather ’round to give thanks for some FOIA improvements. (NARA identifier 6393176)

Hope you’re hungry: gather ’round to give thanks for some FOIA improvements. (NARA identifier 6393176)

In this season of reflection and good cheer, we at OGIS are giving thanks for some improvements we have seen recently in the FOIA world:

  • While backlogs remain a significant problem, agencies are making strides in reducing them—they are down 45% in five years—even as requests increase and staffing decreases.
  • OGIS constantly beats the drum for good customer service, and agencies are paying attention. Agency FOIA Public Liaisons field questions, complaints and generally offer assistance, and of course, OGIS exists as a neutral resource outside the agency to provide similar services.
  • We are also thankful for two great online resources: FOIAonline, a centralized portal to file, track and receive responses to requests; and FOIA.gov, which provides agency reports and statistics, instructional tips and videos, and contact information for agency FOIA programs.

Thanksgiving, like any family dinner, also comes with its share of topics we might prefer to avoid. Similarly, we are contemplating some areas of FOIA that need improvement:

  • Though OGIS reviews and comments on agency FOIA regulations when they’re published in the Federal Register, we note that about half of the 100 Federal agencies have not updated their regulations  since passage of the 2007 amendments that significantly changed various aspects of the law—most notably in terms of how the agency can assess fees, the addition of FOIA Public Liaisons, and requirements for status information.
  • Agencies are making headway in reducing backlogs, but they remain a problem. Some 71,000 requests—11% of all FOIA requests—are backlogged and two-thirds of agencies have a backlog.
  • Technology remains an area where agencies could significantly improve. Better use of technology could reduce FOIA delays by making the referral and consultation process more efficient, allowing better searching, and streamlining the review process.

We hope that when you tuck into that second (or third) slice of pie this Thursday, you will give thanks for FOIA and its role in increasing government transparency and accountability. Happy Thanksgiving!

Upcoming OGIS Training Session: Developing Dispute Resolution Skills

Pencils down, eyes up: join us for Dispute Resolution Skills training. (NARA identifier 554838)

Pencils down, eyes up: join us for Dispute Resolution Skills training. (NARA identifier 554838)

Do you find yourself flummoxed when faced with an angry FOIA requester? Do you regularly take “no” for an answer from your agency’s program people? We can help!

OGIS will present a training session designed to help FOIA professionals develop dispute resolution skills on Monday, December 9, 2013 at the Archives building on Constitution Ave between 7th and 9th streets NW in Washington, D.C. This free, all-day session is appropriate for anyone in your agency who works with FOIA, including FOIA Public Liaisons, program managers, FOIA processors, FOIA attorneys and others. Participants will develop a working knowledge of Alternative Dispute Resolution techniques, learn how working with OGIS can help resolve disputes, practice active listening and good communication, and develop strategies for working with difficult people.

If you have any questions or if you would like to register for this training program, please drop us a line. Space for this training program is extremely limited and the program fills up very quickly, so please do not wait to register.

Upcoming Requester Roundtable Discussion: Appeals

While we can’t provide lunchtime scenery like this, we can promise great conversation. So bring your brown bag and join us! (NARA identifier 558096)

While we can’t provide lunchtime scenery like this, we can promise great conversation. So bring your brown bag and join us! (NARA identifier 558096)

We at OGIS talk quite a bit about the importance of the FOIA administrative process, which includes the all-important appeal. But what is an appeal, exactly, and what should it include? What are some best practices for an agency’s appeal process? How can the FOIA and the appeals offices better work together?

We will discuss these appeals-related questions and more at the next FOIA Requester Roundtable, “Maximizing the Administrative Appeal Process.” Sponsored by OGIS and the Department of Justice’s Office of Information Policy (OIP), the meeting is from 12:30-1:30 p.m. on Thursday November 7 at OIP, 1425 New York Avenue, NW, Suite 11050 in Washington, D.C. Feel free to bring your lunch for this mealtime discussion.

If you are interested in attending, e-mail your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov with the subject line “November Requester Roundtable Registration.” Space for this meeting is limited, so registration is required. You will need a picture ID to enter the building.  If you have any questions regarding this event, please contact OIP’s Training Officer at (202) 514-3642.