The FOIA Ombudsman

Back in January, we reported that several Federal agencies had partnered to develop an online system aimed at expanding public access to information requested under FOIA.

We’re pleased to report that FOIAonline is live!

Beginning October 1, requesters seeking records from five Federal agencies can use FOIAonline to submit FOIA requests, track their progress, communicate with the processing agency, search other requests, access previously released responsive documents and file appeals with participating agencies. And that’s just on the requester side.

FOIAonline is a one-stop shop for FOIA requests

For agencies, FOIAonline provides a secure website to receive and store requests, assign and process requests, post responses, generate metrics, manage records electronically and create management reports.

Oh yes, and electronically generate the annual reports required by FOIA, a feature FOIA professionals are sure to embrace.

Six Federal agencies now have partnered to develop and deploy FOIAonline: OGIS’s parent agency, the National Archives and Records Administration; the Departments of Commerce and Treasury; the Environmental Protection Agency (EPA); the Federal Labor Relations Authority; and the Merit Systems Protection Board, each of which will deploy on its own schedule. (A note to NARA requesters: requesters seeking operational records of the National Archives may use FOIAonline. Requesters seeking access to records accessioned to the National Archives by Federal agencies, must still file FOIA requests to the Special Access and FOIA Staff.)

While requesters can send requests to the participating agencies now, the data available in the system are initially minimal and vary by agency. The partner agencies will continue to enhance the system and they welcome other agencies’ participation.

EPA began looking at the feasibility of a FOIA portal in 2010 with the idea of leveraging Regulations.gov, the Federal rulemaking portal that allows people to comment on Federal regulations and other agency regulatory actions. EPA administers Regulations.gov, which launched in 2002 and now has 38 partner agencies that govern and financially support the program.  By leveraging the infrastructure of Regulations.gov, FOIAonline avoided many start-up costs, resulting in a total of $1.3 million to launch and an estimated cost avoidance of $200 million over the next five years if broadly adopted.

In a March 19, 2012, letter to Cass Sunstein, then Administrator, Office of Information and Regulatory Policy, Office of Management and Budget, a group of organizations from the requester community said the FOIA portal (now FOIAonline), “offers the best hope for improving the Administration’s compliance with the Freedom of Information Act and affording the public the broadest access to government documents.”

Have questions or an interest in joining the partnership? Contact Tim Crawford, EPA’s senior policy adviser on open government.

OGIS Director Miriam Nisbet making a friend in Australia.

Note: This year’s International Right to Know Day is September 28, 2012. OGIS Director Miriam Nisbet marks the day with the following post about a recent meeting with right-to-know advocates from around the globe.

Last month, I had the opportunity to participate in several events Down Under, where the talk was all about access to information. Nearly 100 countries were represented at the International Council on Archives (ICA) Congress in Brisbane, Australia. (The ICA Congress meets every four years in different regions of the world.) The Australian federal and state archival communities were terrific hosts.  Programs for every interest surrounding managing and preserving records of all kinds, as well as that very important topic of access, packed the agenda.

Archivist of the U.S. David Ferriero had rapt attention as he talked about the success of NARA’s Citizen Archivist.  I shared the U.S. experience with the Freedom of Information Act and the changes to FOIA that created OGIS. Read my keynote address, “Openness: Are We There Yet (and How Will We Know?),” here.

Many questions and great discussions!

ABC—the Australian Broadcasting Corporation also interviewed me. Listen here.

From Brisbane, I went to ICA-related events in Melbourne, Australia and Wellington, New Zealand, organized by the Records and Information Management Professionals of Australia (RIMPA). I spent a day at the University of Melbourne, where we had a lively lecture and Q&A about the U.S. FOIA and the Australian law, which was enacted in 1982. Watch here. In Wellington, in addition to the RIMPA event, I met with the Ombudsman of New Zealand, the former Ombudsman (and also former Governor-General of N.Z.) and the former Archivist of N.Z.

Everywhere I found great interest in what we’re doing in the U.S. and I learned about the Right to Know or the Right to Information or Freedom of Information—different terms in different places, but everywhere a critical hallmark of democracy.

And I got to hug a koala!

FOIA is for everyone. Grab the Citizen’s Guide and find out how you can use this powerful resource. (ARC Identifier 551028)

Interested in making a FOIA request for government records, but don’t know where to start? If so, we’ve got the resource for you! The House Committee on Oversight and Government Reform just released a report titled The Citizen’s Guide to Using the Freedom of Information Act and the Privacy Act of 1974 to Request Records (Citizen’s Guide). This extremely useful document details the kinds of records available through FOIA, how to make a request, and agency response requirements. The Citizen’s Guide is useful for anyone—no previous FOIA experience required.

The Committee designed the Citizen’s Guide with FOIA first-timers in mind. “The American people have a right to know about their Government,” said Committee Chairman Darrell Issa. “And FOIA is one of the most important tools for government accountability, yet many people are unaware of how to request information and of their full rights under these laws. With that in mind, it is our hope that this guide will help more people avail themselves of that right to know.”

Though the Citizen’s Guide was first published in 1977, it has not been updated since OGIS opened in 2009. This is the first guide to include information about how FOIA requesters can use OGIS’s services. We are excited to be included in this important resource.

Working together helps to lighten the load.

We at OGIS talk a lot about the importance of teamwork. Though we mostly think about teamwork improving everyday agency processes (such as FOIA) so that they run more smoothly, we recently heard about a cross-agency team recognizing a small opportunity and turning it into a big reward.

Between 1946 and 1995, the Immigration and Naturalization Service New York City Office (now the New York City Office of Citizenship and Immigration Services or CIS, which is part of the Department of Homeland Security), conducted hundreds of special investigations. The office investigated high-profile individuals, organizations, and ethnic and immigrant groups including the Jewish Cultural Society Club, the Black Panther Party, Rastafarians, the National Committee against Nazi Criminals and Nazism in America, and others. These fascinating records languished among CIS’s holdings until that office reached out to the National Archives and Records Administration’s (NARA’s) Federal Records Center and the Permanent Records Capture team for assistance in making them available to the public.

Once the Permanent Records Capture team became aware of these obscure but fascinating records, it quickly organized a team of records analysts, accessions experts, classified records experts and other experts from NARA locations in four states and from CIS. The team includes CIS’s historian.

Thanks to the dedication and hard work of this team, this fascinating group of records is on a path to be declassified, processed, and opened for public research.

We would like to commend this group for finding ways around bureaucratic barriers in order to put these records in the hands of researchers as quickly as possible. We are all looking forward to hearing more about what these fascinating records may hold. Way to make teamwork work!

Taking the time to give actions a second look can save time and trouble down the road.

The FOIA process, as with much in life, provides an opportunity to give our actions a second look. After all, most of us don’t file a major report without asking someone to proofread for errors, right? Or walk out the door without one last check in the mirror?

FOIA directs that requesters can appeal “any adverse determination” to their FOIA requests. 5 U.S.C. § 552(a)(6)(A)(i). As with all things FOIA, agencies have great latitude in interpreting this provision through their regulations. However, while it may seem open-ended to say “any adverse determination,” it’s not entirely a Pandora’s box: there is a fairly limited universe of actions agencies can take on a FOIA request that requesters could dispute. With that, agencies should err on the side of “one last check in the mirror” to give a second look at actions a requester deems adverse.

If there’s one thing OGIS has learned in the past three years — and written about widely on this blog — it’s that constant communication is key. Agencies and requesters should be talking with one another to ensure common understanding, set expectations and avoid any potential disputes before they arise. Agencies should be willing to reconsider any action they take — just as we make sure we didn’t spell “public” wrong in our FOIA reports (and ensure this blouse matches that skirt).

Typical FOIA adverse determinations include:

• withholding information under a FOIA exemption
• “no records” finding
• “Glomar” response — neither confirm nor deny the existence of records
• denial of expedited processing

• fee waiver denial

Other agency actions that may seem adverse to a requester could be:

• fee category placement
• rejection of a request as unperfected
• general dispute on the search
• refusal to produce the document in a form or format requested

Some agency regulations expressly define adverse determinations. For example, the Department of Treasury sets forth five specific instances in which requesters can appeal: denial of records, fee category placement, fee waiver denial, “no records” finding and denial of expedited processing. 31 C.F.R. § 1.5(i)(A)-(E). The Department of Justice’s largely similar regulations also add as an adverse determination instances where a record is not readily reproducible in the form or format sought by the requester — a forward-thinking inclusion. 28 C.F.R. § 16.6(c).

Most agencies do not specifically define adverse determinations in their regulations. But no matter how or whether an agency defines an adverse determination, its meaning should be interpreted broadly. If an agency’s regulation does not expressly include the adverse action a requester complains about, the agency should still give the issue another look — whether it treats the review as an appeal or just an informal, discretionary reconsideration.

The Department of Labor provides a particularly good example of this in its response letters where it makes a full release of records. The agency letter reads, “I consider this a full release under the FOIA; however, if you do not agree, you have the right to appeal this response….” Acknowledging that the requester may have a different view of the agency’s action and providing an opportunity to remedy a potential dispute is a very good practice.

That “second look” an agency gives is almost always done by a different office (and individual) than was responsible for the FOIA response. Often, appeals are sent to an agency’s office of general counsel and agency lawyers will do the fine-toothed review. Other times, separate appeals staffs within a FOIA unit may process FOIA appeals. Of course, in some of the very smallest agencies or understaffed FOIA offices, both requests and appeals may receive attention from the same person. OGIS encourages those individuals to consult with other colleagues on an appeal review to at least bring in a second set of eyes.

That second look might save both parties from a protracted battle or from missing an important detail. While FOIA professionals are some of the most detail-oriented folks out there, we all have our days. And after all, nobody wants to walk out the door wearing two different socks.

Sharpen your pencils and open your books. It’s time to go back to school! (ARC Identifier 558210)

It’s back-to-school time—you can practically hear the rumbling of school buses and smell the new No. 2 pencils. As students across the country turn their focus from the swimming pool and summer camp toward reading, writing and ‘rithmetic, what better time for us to revisit some FOIA requester basics?

FOIA requesters frequently contact OGIS for help with fee issues. In many cases, we hear from requesters whose request for a fee waiver has been denied. Many of these requesters are representatives of the news media, work for non-commercial scientific institutions, or are academicians making requests on behalf of academic institutions—all populations that seem worthy of such a waiver. So what gives?

Understanding the difference between fee waivers and requester categories is essential. All FOIA requesters are placed in one of three requester categories, and there are different fee structures—and different requirements—associated with each. We’ve created a chart to show the different requester categories and which fees each must pay: search, review, and/or duplication. A requester is placed in a requester category regardless of whether he or she has asked for a fee waiver. This is one of the first steps in the administrative process and one in which the requester should provide sufficient information to help the agency make the determination.

Fee waivers are different from requester categories and demand a much higher threshold for consideration than a requester category. According to the Department of Justice’s guidance on fee waivers, the standard for fee waivers is that disclosure of the information (1) is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and (2) is not primarily in the commercial interest of the requester. The guidance also states that six analytical factors must be considered in applying the statutory fee waiver standard. Any requester who wishes to pursue a fee waiver must inform the agency how his or her request meets each of these analytical factors.

Requesting a fee waiver may increase the time it takes for the agency to process your request. In most agencies, FOIA processers do not decide whether to grant a fee waiver; in many agencies that decision must be sent up the chain of command or even to the appeals office. This creates another step in the administrative process. If you have not met the six analytical factors discussed in the previous paragraph, tack on some more time in case the agency needs to contact you for additional information to help determine whether you qualify for a fee waiver.

Considering how challenging it can be to meet the threshold for fee waivers, you may instead wish to ensure that you are placed in the most favorable requester category allowable. Agencies determine a requester’s appropriate category by considering how he/she intends to use the information sought, and in some categories, on the identity of the requester. For instance, if your research advances a goal of your educational institution (rather than an individual goal), you may qualify for educational institution status; likewise, if your research will lead to publication by a news media entity, you may be considered a freelance journalist and qualify for news media status.

A requester who thinks that he or she falls into the representative of the news media category should be sure to provide specific information to support this position. For example, demonstrating a publication track record or providing a contract to publish a book is the type of information that will greatly help a FOIA professional determine your requester category. If you believe that an agency has placed you in an inappropriate requester category you should promptly ask the agency to reconsider its decision and provide additional information to support your position that you belong in a different requester category.

Requesting placement in the appropriate requester category at the time of your request is an OGIS best practice and, as stated above, we strongly encourage you to provide the agency with any information it may need to make its decision. But how do you know what information to provide? A great first step is to look at the agency’s FOIA regulations. This document—which should be posted on the agency’s FOIA web site—will provide guidance about what information the agency needs to decide a requester’s category. The Department of Justice’s Guide to the Freedom of Information Act also includes information about requester categories and fee waivers.

Good records management is key to ensuring government actions and decisionmaking is preserved for future FOIA requesters (among others).

By the end of the decade, Federal agencies must digitize management of electronic records—including the millions of emails sent and received each year—according to a new records directive introduced last week.

With a focus on a digital transition, the Managing Government Records Directive issued jointly by the Office of Management and Budget (OMB) and the National Archives and Records Administration (NARA), intends to improve records management policies and practices across the executive branch. Specifically, the August 24, 2012 directive establishes two broad goals coupled with specific steps for agencies to take to achieve those goals.

The first goal, to “Require Electronic Recordkeeping to Ensure Transparency, Efficiency, and Accountability,” sets a 2019 deadline for all agencies to electronically manage their permanent records , with a 2013 cutoff to come up with a plan to do so. It also requires agencies to manage all email electronically by 2016.

The second goal is to “Demonstrate Compliance with Federal Records Management Statutes and Regulations.” Agencies will designate a senior official to oversee review of the existing records management program, ensure records are properly transferred to NARA, establish agency-wide records management training and work with NARA to ensure comprehensive agency-wide records schedules.

Implementing these steps should lead to improved openness and accountability by better documenting agency actions, more effective transfer of permanently valuable records to NARA—OGIS’s parent agency—and cost savings through more efficient operations agency-wide, according to the directive.

The directive, ordered by President Barack Obama in his November 28, 2011 Memorandum on Managing Government Records, was a joint product of NARA and OMB. The Office of Personnel Management will work with NARA and OMB to carry out the stated goals, including establishing a new records management employment series requiring specialized skills and giving records managers a heightened role.

NARA will continue to play a major guiding role in carrying out all aspects of the directive. The agency will review related regulations to incorporate necessary changes to achieve the directive, issue new email guidance, explore cloud-based storage solutions and implement a government-wide analytical tool to assess agencies’ records management programs. The Archivist of the United States, David Ferriero, will convene and work with the senior officials from all 99 Federal departments and agencies to discuss progress and implementation of the directive each agency.

As the directive notes, “Records are the foundation of open government, supporting the principles of transparency, participation, and collaboration.” At OGIS, we couldn’t agree more. We look forward to working within NARA and with other Federal agencies to improve recordkeeping which we hope, in turn, will improve the FOIA process.

For more on the Directive, take a look at Records Express, the blog of our records management colleagues here at NARA.

Whether you are making melon baskets or resolving FOIA disputes, process is important. (ARC Identifier 523099)

When OGIS Director Miriam Nisbet opened the office in September 2009, three requests for OGIS assistance awaited her attention, yet she had no process in place for dealing with cases or any staff members to work on them.

Since its inception, one of the great challenges OGIS has faced is figuring out how to do its work while doing its work. We knew from the start that one key role is to help agencies and requesters better communicate, but the way that we accomplish that goal has evolved since the office first opened.

If you opened a case with OGIS in our early days and then another in recent months, you might notice that our administrative process has, in some ways, become more formal. When you request OGIS assistance, you first receive an acknowledgement letter informing you of your case number. This means that you have submitted your case online to the OGIS Access System (OAS) or we have logged your case into OAS, a case management system that allows us to keep track of your request and all correspondence that goes with it. This is a major change from the paper and database process used in our early days, and apart from some growing pains, we find the OAS to be an invaluable tool. (We began using the OAS in early October 2011 at the beginning of FY 2012.)

Your request is then assigned to an OGIS facilitator, who communicates with you and the agency to better understand the nature of your dispute. Although every case is different (as is every OGIS facilitator), most follow a fairly predictable path that we call the FOIA Dispute Resolution Process. This process is the context in which we provide our ombuds and facilitation services.

Many OGIS cases are resolved through the FOIA Dispute Resolution Process. Those that are not may move to formal mediation (where it is appropriate) or sometimes, cases may be closed without resolution. While many cases are closed with some kind of final letter from OGIS to the customer, others may not be for a number of reasons. Whatever the result of OGIS’s process, it is important to remember that if your case is closed, it can be reopened if you have additional comments or concerns.

The last step in the FOIA Dispute Resolution Process asks you to reflect on lessons learned. We practice self-reflection as we continue to evolve our services, and we encourage you to do the same as you consider the FOIA services in your agency. This type of self-evaluative exercise is worth your time investment because it can identify ways to streamline your procedures and build efficiencies into your process.  Improving your business processes can lead to improving the way in which your agency administers FOIA—truly a win-win situation.

Our process has evolved over the years in response to customer feedback, observation of what works, and direction from our agency and requester community stakeholders. However, we know that we still have room to improve. If you have suggestions for changes you would like to see to OGIS’s process, please let us know.

Immigrants under the threat of deportation, such as Na Lay, aka Annie Kum Chee, was around 1900, sometimes must rely on FOIA requests to obtain records for their defense. (ARC Identifier 298177)

An OGIS-sponsored forum on immigration records on May 23 brought together FOIA professionals from five agencies which maintain immigration records with immigration attorneys and others interested in such records. The FOIA Ombudsman is spot-lighting each agency and the types of immigration records each holds. See previous posts on U.S. Citizenship and Immigration Services (USCIS); Immigration and Customs Enforcement (ICE); Customs and Border Protection (CBP).

When one thinks of immigration records, the State Department (State) and the Executive Office of Immigration Review (EOIR) may not be the first agencies that come to mind. But both maintain specific types of immigration records subject to records requests under FOIA and, for some individuals, the FOIA process is crucial to whether they remain in this country or are deported.

EOIR—pronounced “Eeyore” like the Winnie-the-Pooh character—oversees immigration courts, which decide whether foreign-born individuals charged with violating U.S. immigration law should be removed from the U.S. or allowed to stay. EOIR is not a law enforcement agency nor is it part of the Department of Homeland Security (DHS).

EOIR, part of the Department of Justice (DOJ), maintains records pertaining to the Office of the Chief Immigration Judge, the Office of the Chief Administrative Hearing Offices and the Board of Immigration Appeals Records. Such records include statistics on immigration courts, documents about free legal services and attorney discipline records.

Because there is no discovery process in the immigration court system as there is with the Federal district court system, lawyers use FOIA to obtain records to help defend their clients in immigration court. (That’s also why DHS FOIA regulations establish a quick track for requests from people facing deportation who present proof—an Order to Show Cause and Notice of Hearing—of a scheduled hearing date in U.S. Immigration Court.)

Before filing a FOIA request with EOIR to obtain records regarding yourself or, if you are an attorney, your client, check with the field office court administrators, which offer file reviews on certain dates.  Here is a list of court administrators.

If you do make a FOIA request, include your or your client’s full name, aliases, immigration hearing location and the alien registration number, or A number. If the A number is not known or if the case occurred before 1988, EOIR asks that you provide the date of the Order to Show Cause and Notice of Hearing, the country of origin and the location of the immigration hearing. All EOIR requests should be sent to EOIR headquarters in suburban Virginia, just outside of Washington, D.C. You may email your request to EOIR.FOIARequests@usdoj.gov or visit the agency’s FOIA web site for the mailing address.

First-party requesters (and their attorneys) generally receive their entire EOIR file. Form DOJ-361, which certifies a requester’s identity, must accompany such first-party requests. Although not required, attorneys and other representatives of requesters also are encouraged to submit form EOIR-27 or form EOIR-28 with the requests.

State records regarding immigration generally pertain to visas, including non-immigrant visa classification applications, immigrant visa applications and visa denials. The State Department receives about 800 referrals a month from U.S. Citizenship and Immigration Services (USCIS) for visa-related records.

FOIA is not an efficient way to gain access to State Department visa records, particularly if you wish to learn the reason a visa is denied. Instead, State suggests writing to the office that processed the application or emailing legalnet@state.gov.  

First-party requesters will generally obtain access to visa-related documents, while third-party requesters are generally denied access to such records under Exemption 3 of FOIA, 5 U.S.C. § 552(b)(3), which incorporates other, separate statutes that requires information to be withheld from release. In these cases, State will withhold this information under 8 U.S.C. § 1202(f), which exempts from disclosure under FOIA records pertaining to the issuance or refusal of visas to enter the U.S.

Good communications makes good appeals. How you choose to communicate with FOIA appellants is up to you. (ARC identifier 6490609)

The administrative appeal process is an integral part of FOIA. Federal agencies received almost 10,000 FOIA appeals in the year ending September 30, 2010. FOIA sets forth two requirements pertaining to the appeal process:

(1) agencies must notify requesters of the right to appeal any adverse determination; and

(2) agencies must make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after receipt of the appeal. See 5 U.S.C. § 552(a)(6)(A)(i) & (ii).

Generally, the work of reviewing FOIA appeals is the responsibility of agency lawyers and most agencies have decentralized FOIA appeals offices. For these reasons, venues for sharing best practices about the FOIA appeals process have been scarce.

ASAP to the rescue! That’s the American Society of Access Professionals (ASAP), which held its summer Freedom of Information Act (FOIA) training program on August 1-3, 2012 at the Washington Convention Center. The program offered a variety of basic and advanced FOIA, Privacy Act and records management topics. One of the most interesting topics covered FOIA administrative appeals and the panel of experts included Carol Maloney, Director, FOIA-Records Management Services, Program Support Center, U.S. Department of Health and Human Services;  Sean O’Neill, Attorney-Advisor, the Office of Information Policy, U.S. Department of Justice; and Shari Suzuki, Chief, FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection. As panelists described their offices’ appeal procedures, several best practices came to light:

Good Communication:

• Discussing the appeal with the appellant and the program office can be an effective way to negotiate issues on appeal, streamline the review process and ultimately hasten an appeal decision.
• Providing appellants in the final appeal decision with details about an agency’s search, such as listing the search terms and the search location within a program office may possibly avoid litigation (and is just good customer service).
• Cross-training of FOIA offices and program offices is a good way to build rapport and share information about each office’s mission and priorities.
• Instituting a broad policy for providing appeal rights in all cases ensures that requesters have an opportunity to ask an agency to review its release determination and provides an agency with a chance to reconsider its release determination before explaining that decision in court.

Managing an Appeal Backlog:

• Categorizing issues on appeal is one way to manage an appeal backlog because the process can assist a manager in identifying routine and complex cases for quick assignment.

• Studying appeal issues to determine if trends are present may reveal a need for training.

These best practices highlight the value of regular, open communication with internal and external stakeholders. OGIS has regularly encouraged better oral and written communication with stakeholders as a cost-effective way to improve the administration of FOIA and avoid disputes. These best practices lend support to the idea that better communication is a way to improve the FOIA appeals process and better manage an appeals backlog. If you have effective practices for handling FOIA appeals in your agency, let us know!