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FOIA Fever: It’s Contagious

Open up and say “FOIA is everyone’s responsibility.” (NARA Identifier 6375745)

Open up and say “FOIA is everyone’s responsibility.” (NARA Identifier 6375745)

We’ve written about the positive difference that executive support for FOIA can make in federal agencies. We’ve made this point in our recommendations and,  whenever we can, we encourage agencies to make FOIA a priority (and communicate this across the board).

One effective way that agency heads can spread the word that FOIA matters is through a Memorandum. We were thrilled when David Ferriero, the Archivist of the United States, issued such a communiqué to all NARA employees in March. It seems that the FOIA bug is spreading: on August 27, Energy Secretary Ernest J. Moniz sent a memorandum to the heads of all of the Department of Energy’s offices stating his support for FOIA and encouraging them to do the same:

MEMORANDUM FOR HEADS OF DEPARTMENTAL ELEMENTS

 FROM: ERNEST J. MONIZ

 SUBJECT: FREEDOM OF INFORMATION ACT

 On his first day in office, President Obama issued a memorandum describing the Freedom of Information Act (FOIA) as “the most prominent expression of a profound national commitment to ensuring an open Government.” The President urged agencies to respond to FOIA requests promptly and in a spirit of cooperation, recognizing that we are servants of the public. This includes disclosing requested information when possible, implementing effective systems for responding to requests, and proactively providing documents in the internet.

 I support fully the President’s commitment to open government and transparency. I understand that over the past four years, the Department has worked diligently to support these ideals by disclosing more documents to the public and proactively releasing information on the internet. We also improved our FOIA infrastructure by establishing enhanced systems for receiving FOIA requests and monitoring responses. To demonstrate our continuing commitment to the President’s policy, we must now improve our response time to FOIA requests and promptly close longstanding requests.

 I expect the Department’s senior leaders to continue to support the President’s guidance regarding transparency and make certain that FOIA requests assigned to their organization are responded to in an expeditious manner. Senior leaders should make certain that their organizations devote the resources necessary to implement this direction.

 We thank Secretary Moniz for his commitment to FOIA. We encourage the heads of other agencies to send a similar communiqué to their employees to remind them that when we work together, FOIA works better.

Shutdown Didn’t Stop FOIA Clock

FOIA request processing came to a screeching halt during the 16-day government shutdown as the vast majority of FOIA professionals were furloughed as “non-excepted” employees. We don’t like the term “non-essential” since we consider FOIA essential, as Sen. Patrick Leahy noted October 5 on the Senate floor.

Feeling squeezed after the shutdown?
You’re not alone.
ARC Identifier 6010394.

“We … take for granted that our open and transparent government is a cornerstone of our democracy and a shining example of civic involvement,’ he said. “Even the public’s right to know is compromised because of this shutdown.” 

(Sen. Leahy also noted that OGIS, “a critical office established by the Leahy-Cornyn OPEN Government Act to mediate FOIA disputes” was shuttered.)

Now that everyone is scrambling to catch up, what does the shutdown mean for FOIA processing?

It’s important to note that the FOIA statute itself does not address days when the federal government is closed for government shutdowns, furlough days, snowstorms (remember the 2010 Snowmaggedon?), or other unusual events. Specifically, the law states that agencies have “20 days (excepting Saturdays, Sundays, and legal public holidays)” to respond to FOIA requests and appeals, 5 U.S.C. § 552(a)(6)(A)(i) & (ii).

The Department of Justice, in its Handbook for Agency Annual Freedom of Information Act Reports, says that “even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances outside of these specified in the statute, the agency must count those days for reporting purposes.”

So what’s a FOIA professional to do?

We at OGIS have found the vast majority of requesters to be reasonable and understanding when informed about delays in processing, particularly when the delay is outside of the control of the FOIA office. Don’t be shy about picking up the phone or sending quick notes to let requesters know about the delay and to provide them new estimated dates of completion.

How are FOIA offices coping post-shutdown? Let us know.

Open For Business

It's so nice to be back! (National Archives Identifier 6012390)

It’s so nice to be back! (National Archives Identifier 6012390)

The Federal government is back in business, and so are we! OGIS stands ready to assist FOIA requesters and Federal agencies with their FOIA disputes. We look forward to hearing from you.

Shutdown

The FOIA Ombudsman will be taking a break while the Federal government is closed. (National Archives Identifier 557881)

The FOIA Ombudsman will be taking a break while the Federal government is closed. (National Archives Identifier 557881)

Due to the Federal government shutdown, the Office of Government Information Services and the National Archives are closed. We are unable to post to the FOIA Ombudsman during this closure. All National Archives facilities are closed, with the exception of the Federal Records Centers and the Federal Register until the Federal government reopens.

We hope to see you soon.

Meeting Our Challenges

DF-ST-85-03481We’ve made no secret of how proud we are of all that OGIS has accomplished in its four years. We have assisted hundreds of FOIA requesters and dozens of agencies by resolving FOIA disputes that might otherwise have gone to court. We have worked with agencies to better fulfill their responsibility to provide good customer service to FOIA requesters. Above all, we have put Congress’s novel idea – to apply Alternative Dispute Resolution techniques to the highly adversarial FOIA process – into action.

While we know that OGIS is providing a valuable (and valued) service, we know that we some work to do to fully implement our mandate; we discussed this in our 2013 Report. A recent audit of OGIS by the General Accountability Office (GAO) pointed to some of these same lessons we have learned in the last four years:

  • It is challenging to define “success” in providing mediation services. Litigation results in a clear winner (and loser). But considering that the goal of our process is compromise, how can we best identify a successful mediation?
  • OGIS’s mandate is broad. Like every part of the government today, we must do more with less. This means that we have had to make difficult choices about how to best use our limited resources.
  • The demand for OGIS’s services is great. Our caseload is very large (especially considering that we have only seven staff members) and it continues to grow. This presents an additional challenge as we work to implement our mandate more fully.

In response to GAO’s findings, we are creating an action plan to respond to the challenges identified in the report. We look forward to sharing our plans with you in the coming weeks.