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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)

A Sunny Forecast

sunnytrees

We hope that you will join us at one of Sunshine Week’s illuminating events. (NARA Identifier 554394)

While some of us on the East Coast may feel like this is the winter that will never end, it’s nice to know that there’s sunshine on the horizon – Sunshine Week 2014! During the week of March 16 to March 22, groups across the country will promote openness in state and local governments and discuss the importance of open government and freedom of information. (Learn more about local events at Sunshine Week’s website.) If you are in the Washington, D.C., area, Sunshine Week starts a bit early! Mark your calendars for these events:

Tuesday March 11: OGIS Director Miriam Nisbet will testify before the Senate Committee on the Judiciary on “Open Government and Freedom of Information: Reinvigorating the Freedom of Information Act for the Digital Age” at 10:15 a.m. in Room 226 of the Dirksen Senate Office Building. Learn more (and watch online) at the Committee’s website.

Friday March 14: The 16th annual National Freedom of Information Day conference will take place at the Newseum. This event, hosted by the Newseum Institute’s First Amendment Center in partnership with OpenTheGovernment.org, brings together groups from all areas concerned with freedom of information and open records, including FOI advocates, government officials, lawyers, librarians, journalists and educators. (Note: The event is free, but registration is required.Consult the Freedom Forum’s website for more information.)

Monday March 17: Celebrate FOIA with the Justice Department! This annual program will describe the current state of FOIA administration and mark the fifth anniversary of the Attorney General’s FOIA Guidelines. For more information and to register, see the DOJ announcement online.

 Tuesday March 18: The Collaboration on Government Secrecy will sponsor its Seventh Annual FOI Day Celebration. Director Nisbet is on a panel discussing FOIA Exemption 5’s foreseeable harm standard. The day also includes a comprehensive view of FOIA-related matters in the 113th Congress from House, Senate, majority and minority perspectives. View a PDF of the agenda, and find more details on the CGS website.

Washington-based open-government groups are hosting a panel discussion from 6:30 p.m. to 8:30 p.m. at the National Press Club titled “Partly Cloudy: Why ‘Public Information’ Doesn’t Always = Accessible Information” that will look at tools for accessing government data. Sponsors include The National Press Club Freedom of Information Committee, the Sunlight Foundation, Citizens for Responsibility and Ethics in Washington, OpentheGovernment.org, and the Reporters Committee for Freedom of the Press. Admission is free, but registration is required. Learn more and register at the Press Club website.

Wednesday March 19: The House Advisory Committee on Transparency will discuss “The Future of FOIA” from 2 p.m. to 3:30 p.m. in Room 2203 of the Rayburn House Office Building. The committee educates policymakers on transparency-related issues, problems, and solutions and shares ideas with members of the Congressional Transparency Caucus.

Thursday March 20: Join the U.S. Census Bureau to celebrate improvements in FOIA administration at its headquarters (4600 Silver Hill Road, Suitland, MD). There will be two sessions open to the public, one at 9:00 am (a discussion with OIP Director Melanie Pustay and Joey Hutcherson, deputy director of the Department of Commerce’s Office of Privacy and Open Government) and another at 11:30 a.m. (a brown-bag discussion of FOIAonline). You can register for these sessions or request more information by emailing census.efoia@census.gov.

We hope to see you at these events!

FOIA Modernization Committee Update

If you are interested in nominating yourself for the FOIA Modernization Committee, it is not too late to get on board! (Archives Identifier 532082)

If you are interested in nominating yourself for the FOIA Modernization Committee, it is not too late to get on board! (Archives Identifier 532082)

We’ve written about the new FOIA Modernization Committee forming out of the U.S. National Action Plan for the global Open Government Partnership, and we’ve heard from lots of folks who are interested in joining the effort.

If you are interested in serving on the committee or nominating someone to serve on the committee, it’s not too late! If you would like to be considered, please send an email to ogis@nara.gov by Friday, February 21, 2014.

Please include the following information:
1. A short paragraph or “bio” (no more than 250 words, please) summarizing your resume  or otherwise highlighting the contributions you (or your nominee) would bring to this committee;
2. A resume or curriculum vitae; and
3. Your full contact information (or that of the nominee).

We also ask that you use your full name (last name, first name) as the subject line of your email. We look forward to hearing from you!

Getting Ready for Sunshine Week

DN-ST-87-05103

There’s still time between now and Sunshine Week to get the word out about the importance of FOIA! (NARA Identifier 6422494)

Sunshine Week is less than six weeks away! Agencies, what are you doing to prepare?

Last year, Archivist of the United States, David Ferriero sent a message during Sunshine Week to National Archives’ staff reminding them that FOIA is everyone’s responsibility and responding to access requests doesn’t rest solely on the agency’s FOIA and archival staff. The message also stressed creating a team culture for responding to FOIA requests by keeping open lines of communication between program offices and FOIA offices.

We at OGIS encouraged heads of agencies throughout the Government to follow the Archivist’s example. Kudos to Energy Secretary Ernest J. Moniz, who last summer sent a memorandum to the heads of all of the Department of Energy’s offices stating his support for FOIA and encouraging Energy employees to do the same.

Last spring, ahead of Sunshine Week, the Chief FOIA Officer at the Department of Transportation (DOT), Judith S. Kaleta, sent a similar message to DOT employees. It states, in part, that “[a]ll DOT employees have an important role in the successful administration of the FOIA program.” Ms. Kaleta goes on to say:

“When a FOIA Office receives a FOIA request, it first asks the appropriate program office(s) to search for responsive records. Any DOT employee receiving such a request must search for responsive records and, to the extent records are located, provide them (even if the DOT employee believes that certain records, or portions of records, should  not be released) to the FOIA Office to undergo a review. If an employee believes that any of the records may be subject to exemption from release, the employee should indicate that to the FOIA Office when providing records.”

 As Ms. Kaleta’s message suggests, just because an employee is asked to search for records doesn’t mean that those records will be released.  Reviewing records is part of the FOIA professional’s responsibility, but FOIA is everyone’s responsibility. There’s still time between now and Sunshine Week, March 16-22, 2014, for agency heads to help spread the word!

Modernizing FOIA

FOIA could use a tune-up. Will you help?

FOIA could use a tune-up. Will you help?

The U.S. National Action Plan for the global Open Government Partnership is big news for FOIA. We’ve written about the plan’s five-part commitment for strengthening and modernizing the Freedom of Information Act.

One of the five components of the FOIA commitment calls for a new FOIA advisory committee:

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. 

The National Archives and Records Administration (NARA) will be the home for this new Federal Advisory Committee, which will be administered by OGIS. NARA is working with the General Services Administration (the lead agency for the Federal Advisory Committee Act) to get the committee up and running quickly. We expect that there will be 20 members, half of them from government agencies and half from the FOIA requester community. The committee aims to meet in Washington four times a year for at least the next two years.

We are looking for people who are passionate about FOIA and are willing to devote time and energy to this effort. If you are interested in putting forward your name (or someone else’s), please let us know as soon as you can. We hope that you will consider getting involved in this effort to improve FOIA!