The FOIA Ombudsman

Documents declassified by the government’s highest classification authority will soon be posted online in a new government declassification portal, a Federal declassification expert said at a July 25, 2012 FOIA Requester Roundtable.

William C. Carpenter of the Information Security Oversight Office (ISOO) at the National Archives provided tips on a variety of declassification issues and pointed to recent changes including posting newly declassified records via the portal, which is expected to launch later this year. The changes are a result of June 2012 updates to the bylaws of the Interagency Security Classification Appeals Panel (ISCAP), which is the government’s final appellate authority on classification issues, made up of senior intelligence agency officials. The new portal is a joint effort of ISOO, ISCAP and the National Declassification Center (NDC), which all oversee government classification matters.

Carpenter joined co-hosts OGIS and the Department of Justice’s Office of Information Policy (OIP) to discuss issues related to Mandatory Declassification Review (MDR) and FOIA with approximately 20 requesters and government employees. OGIS and OIP co-host quarterly FOIA Requester Roundtables.

As OGIS covered in its November 2011 post “Demystifying Declassification,” requesters of classified records must choose either MDR or FOIA to try to obtain those records. Each works slightly differently and the most significant difference, Carpenter said, is that requests for MDR must be much more specific than a FOIA request might be. In either case, an agency must be able to locate the specific record a requester seeks to declassify.

Under MDR, the agency determines whether information can be declassified; requesters who disagree can appeal to the agency and then can appeal to ISCAP which is the final authority­­ — requesters cannot litigate MDR denials. The FOIA process is no different from any other FOIA request: the agency determines whether information can be declassified; requesters who disagree can appeal to the agency; requesters who continue to disagree can litigate.

While OGIS exists as the FOIA Ombudsman to assist with FOIA-related issues, the office really does not have a role in the MDR process. Rather, ISOO, also part of the National Archives, is the best government resource for MDR-related issues.

Requests for review of MDR decisions to ISCAP have grown exponentially in recent years, Carpenter said. More than 100 appeals come to ISCAP annually, up from about 20 per year in 1996. The panel, which currently meets every two weeks, adjudicates about 50 to 70 appeals per year. The panelists are not bound by a “first-in, first-out” process as with FOIA, but can determine which appeals to take based on topic, date, requester or other criteria, Carpenter said. Requesters’ success rates are high with ISCAP: “Sixty percent of the time, additional information is declassified by ISCAP,” he said.

Carpenter and others addressed several questions from requesters throughout the discussion. One important procedural point involved requesters who prevail through the MDR process. When records are declassified via MDR but redacted citing FOIA exemptions, the requester may not want to complete the MDR process, appealing through the agency and then ISCAP, Carpenter said. Rather, he suggested, the likely more productive course would be to request those records using FOIA in order to obtain FOIA review of those exemptions.

Another distinction between FOIA and MDR occurs when records contain equities, or interests, involving more than one agency. With FOIA, a request can be referred to another agency which then becomes the agency of record for that portion of the request and is where a requester would return for status updates and a response. With MDR, however, the agency receiving the MDR request must see the review through from start to finish. If another agency must be consulted, the original agency must receive the records back to respond to the requester.

This can lead to great delays with the MDR process, Carpenter said. “In many cases it takes more than a year.” In such cases, he pointed to the automatic appeal option with MDR — requesters can directly appeal a request delayed for one year to ISCAP, though they must do so within 60 days of that one-year anniversary.

For requesters seeking MDR, they should address those requests to the appropriate person or office within an individual agency — those contacts are posted on the National Archives’ website.

As ISOO, ISCAP and the NDC work to implement the new declassification portal, they welcome suggestions which can be sent to isoo@nara.gov.

If we all wrote like Papa Hemingway, we wouldn’t need the Plain Writing Act (ARC Identifier 192655)

This is an excerpt from an actual FOIA appeal response letter:

Dear [name redacted],

Reference is made to your letter to the [agency]…regarding the above referenced file. Through your letter you appeal the determination made…that certain records responsive to your request (or portions thereof) are exempt from release under the Freedom of Information Act (FOIA).

The information pertinent to your appeal has been reviewed.  Based upon this review, it has been determined that no additional information may be released to you.

… say what?

It’s no secret that we at OGIS are plain writing enthusiasts. As you may already know, the Plain Writing Act of 2010 went into effect in October 2011, and agencies government-wide are busy reviewing agency websites and other written communications for plain language and training employees who deal with the public. Unfortunately, it appears that plain writing fever has been less contagious in some agency FOIA shops than we had hoped. We’ve reviewed hundreds of FOIA response letters, and unfortunately, not many of them are plainly written. So why all the complicated letters? We have a few theories:

• FOIA is complicated. This is certainly true — the FOIA process is a product of bureaucracy, and bureaucracy is anything but simple. But complicated phrases and jargon only lead to more confusion.
• Nobody likes to deliver bad news. Fees, exemptions, delays — every day, FOIA professionals must tell requesters things that they don’t want to hear. Talking around an issue by using extra words does not make that bad news any easier to take.
• The buck has been passed. When a writer writes in the passive voice (as I just did), he or she hides the subject who is performing the action. For instance, it is more likely that a FOIA response letter will say “your appeal is in process” than it is to say “your appeal has been sitting on my supervisor’s desk for three weeks.”
• Legalese is the lingua franca of the federal government. FOIA professionals often tell us that their attorneys are reluctant to make letters more readable. While we certainly understand that every word counts when it comes to legal matters, it is usually possible to simplify even the most complex legal arguments.

We’d like to help improve FOIA letters. Agencies, please send us your templates — we are happy to make suggestions to make them more readable. We are even willing to discuss changes to your templates with your agency’s attorneys. Requesters, if you have examples of FOIA letters — bad or good — that you would like us to see, please send them to us.

FOIA and Mandatory Declassification Reviews (MDRs) have some things in common — for instance, both provide access to information — but in practical terms they are very different. If you would like to learn more about both, please join OGIS, the Information Security Oversight Office and the Department of Justice’s Office of Information Policy for the next FOIA Requester Roundtable. This discussion between members of the requester community and FOIA staff from agencies across the government will take place from 10 a.m. to noon Wednesday July 25, 2012. The roundtable will be at the National Archives building in Washington, D.C. (on Constitution Avenue between 7th and 9th streets, Archives-Navy Memorial-Penn Quarter Metro station). Those who cannot attend in person are invited to join by phone. If you would like to attend, please email OGIS at ogis@nara.gov and let us know if we can expect you in person or on the telephone. We will respond with logistical/dial-in information.

An OGIS-sponsored forum on immigration records on May 23 brought FOIA professionals from agencies which maintain immigration records together 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.

Customs and Border Protection (CBP) is the Department of Homeland Security (DHS) agency responsible for securing and facilitating trade and travel into the U.S. CBP enforces hundreds of federal regulations and laws, including immigration and drug laws. Two CBP offices routinely have contact with people who are not citizens or nationals (Legal Permanent Residents) of the U.S.—Border Patrol and the Office of Field Operations—and are the most likely CBP offices to have immigration records.

U.S. Air Force F-16C Fighting Falcon aircraft assigned to the 119th Fighter Wing, North Dakota Air National Guard, flying over the International Peace Gardens on the border of North Dakota and Canada (ARC Identifier 6686179)

Border Patrol has records pertaining to detention and expedited removal of people who are not citizens or nationals of the U.S. and who are apprehended while trying to get into the U.S. illegally.

The Office of Field Operations has records of arrivals into and departures from the U.S. by air, land or sea, dating back to 1982. Such records are useful for people who have lost their passports or I-94 forms, which document a traveler’s arrivals and departures. Requesters should know that records earlier than 1982 no longer exist.

Check out CBP’s FOIA website. There’s a terrific chart summarizing the types of records that are most often requested of CBP under FOIA. So if you’re looking for documents pertaining to your expedited removal by Border Patrol or at a port of entry, submit a FOIA request to CBP. But if you’re seeking medical records for treatment while in detention, your request should go to Immigration and Customs Enforcement (ICE). CBP’s FOIA website also provides tips on how to describe and submit a FOIA request to speed the search process.

When CBP receives a request for an Alien File, or A-File—which documents a person’s contact with the Federal government as he or she lives as an immigrant and/or strives to become a naturalized citizen—the agency will forward the request to U.S. Citizenship and Immigration Services (USCIS). OGIS suggests saving time and submitting A-File requests directly to USCIS.

In the coming weeks, the FOIA Ombudsman will discuss immigration records at the Department of Justice’s Executive Office for Immigration Review (EOIR), the State Department and our parent agency, the National Archives. Stay tuned! In the meantime, let us know what you think.

Here’s hoping that in FOIA’s 47th year, this important legislation finds perfect harmony. (ARC Identifier 547022)

FOIA has the most patriotic of birthdays — July 4, 1966. Last year we commemorated FOIA’s birthday by looking back at the unusual circumstances of President Lyndon B. Johnson’s signing of the law and noted that despite a shaky start, FOIA has become part of the foundation of our democracy.

We toast FOIA’s 46^th birthday by focusing on the many exciting things that have happened this year such as the development of the FOIA IT Working Group, the Office of Personnel Management’s new job series for FOIA professionals, and the significant progress in making the FOIA Module a reality. We are also celebrating FOIA by looking ahead to what we can expect over the next year, such as more clarification on how best to search for immigration records and further multi-stakeholder discussions on the administration of FOIA. However, I don’t think we could acknowledge the importance of FOIA’s birthday as well as Senator Patrick Leahy did in the statement his office released last week.  We are so glad that Senator Leahy mentioned the FOIA Module, which we agree has the potential to greatly simplify the process for requesters and agencies. Senator Leahy also discusses some interesting issues facing FOIA’s future, such as the Faster FOIA Act and Congress’s consideration of FOIA exemptions in the context of cybersecurity legislation.

There is no doubt that the administration of FOIA can improve — in fact, we have an entire web page dedicated to that concept, and we invite you to submit your suggestions — and that there will continue to be challenges to address in implementing FOIA. However, in its 47^th year, we fully expect that FOIA will continue to grow and evolve along with our nation and will greet whatever the year has in store with openness!

We at OGIS are grateful for Senator Leahy’s thoughtful statement on FOIA’s future. Thank you, Senator, and happy birthday, FOIA!

Use the right tool for the job – when you have a question about a FOIA request, check out the agency’s FOIA regulations! (ARC number 515314)

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, establishes how an agency must administer its FOIA program. While the law contains a lot of useful information—from time limits to fee categories to redactions and more—it doesn’t provide the whole picture. If a FOIA requester needs practical, detailed information about how an agency’s FOIA program works, where should he or she turn?

The answer is simple: the agency’s FOIA regulations. FOIA requires agencies to publish FOIA regulations that:

• Provide specific guidance on fee issues, in line with the Office of Management and Budget’s guidelines;
• Indicate what component of the agency can properly receive a FOIA request;
• Specify how the agency will aggregate requests from the same requester or a group of requesters;
• Provide information on how an agency processes records on multiple tracks (for instance, a simple queue and a complex queue); and
• Detail how the agency will handle requests for expedited processing.

While these are the statutory standards for an agency’s FOIA regulations, most regulations contain lots of other helpful information as well such as addresses, telephone numbers, deadlines, and more. We at OGIS recommend that a requester consult an agency’s FOIA regulations when he or she has a question about a specific agency FOIA process. In fact, OGIS regularly consults agency FOIA regulations as part of fact finding when offering mediation services.

So if agency FOIA regulations are such a valuable source of information for FOIA requesters, where can you find them? Some agencies make their FOIA regulations easily available on their FOIA web sites (Interior, Commerce, EPA, nice job!). Other agencies might require a bit of searching or a visit to the Federal Register’s page. We encourage any agency to display a clear link to its FOIA regulations on its website; if your agency would like advice on how to do so, please contact OGIS and we’d be glad to brainstorm with you.

An OGIS-sponsored forum on immigration records on May 23 brought FOIA professionals from agencies which maintain immigration records together 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.

Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) enforces civil and criminal immigration laws and, as such, maintains deportation records. ICE receives 16,000 FOIA/Privacy Act requests a year, many of them from requesters (or their attorneys) seeking their own records.

President Lyndon Johnson, Lady Bird Johnson & Bill Moyers at the Statue of Liberty for the signing of the Immigration Act of 1965. ARC Identifier 2803427

The agency’s records include two databases; ENFORCE contains apprehension, detention and removal information, each piece of which is tied directly to a person who is not a citizen or national of the United States; the information duplicates what’s in the Alien File, or A-File. (U.S. Citizenship and Immigration Services (USCIS) is the custodian of A-Files.) Because it’s a database, ENFORCE is a “living” record while the records in the A-File reflect a moment in time. In some cases, it’s best to request information from both. Requesters who already have some data from the ENFORCE database may wish to make a supplemental request seeking access to more recent documents added after a specific date.

ICE also maintains a database for investigation of work site enforcement, child labor and intellectual property. Other ICE records include information from the Student and Exchange Visitor Program, which manages schools with non-immigrant students as well as F visas for non-immigrant academic students, M visas for non-immigrant vocational students and J visas for exchange visitors. If you wish to learn more about the types of records ICE (and other DHS components) maintain, check out DHS’s Systems of Records Notices, or SORNs.

ICE accepts requests on USCIS Form G-639. Or you can request records using an online form. Regardless of which method you use, mentioning how you or your client came into contact with ICE—through the workplace or through an enforcement and removal operation, for example—will help the agency pinpoint which office within ICE might have records responsive to your request.

A few other tips: Requesters seeking access to their medical records are moved to the top of the queue. And ICE is not required to respond to FOIA requests from a person who is a fugitive from justice if the records would help that person to remain a fugitive.

The updated plan includes a focus on FOIA and a commitment to working with OGIS on challenging FOIA issues.

For the past two years, the National Archives and Records Administration’s (NARA’s) Open Government Plan has provided our parent agency with a roadmap to increased transparency, participation and collaboration. Since that time, NARA’s leadership and staff have completed almost 70 tasks spelled out in that document. Never an agency to rest on its laurels, NARA just released an updated Open Government Plan with a whole new set of challenges.

One of the most exciting themes running through the updated Open Government Plan is the importance of people, rather than process, in providing excellent open government service. NARA is creating a culture of open government by investing in its employees, such as through an agency-wide mentoring program and increased opportunities for engagement. NARA will also continue its transformation with a new organizational structure that streamlines the agency and simplifies communication. Further, NARA will strengthen its own internal records management by developing a new Records and Information Management Network among agency staff members.

Open Government at NARA is defined not only by how its employees interact with each other, but also how NARA interacts with members of the public. In the next two years, NARA plans to further develop its Citizen Archivist Initiative, which encourages substantive contributions from the public, including tags, transcripts, and images to improve access and searchability of the agency’s vast archival holdings.  NARA will also expand its digitization effort to help meet the demands of the public for records online.

Of course, no Open Government plan would be complete without a focus on FOIA. NARA plans to improve its FOIA program in several ways. It will address the issue of timeliness by expanding its ability to act on FOIA requests in a timely manner and actively working to decrease its backlog of pending requests. It will also facilitate the prompt review of classified records by agencies that have interests in the records and proactively disclose information that is of interest to FOIA requesters and the research community at large. Finally, NARA pledges to work with the Office of Government Information Services to mediate or resolve issues that prevent NARA’s ability to fully process a pending request. Sounds like a good plan to us!

If you have ideas for how NARA can increase openness, you can contact the agency at opengov@nara.gov.

With an average of 600 requests per day, the FOIA department of U.S. Citizenship and Immigration Services shoulders a heavy burden. Photograph of Immigrants Walking With Luggage on Ellis Island.

Note: An OGIS-sponsored forum on immigration records on May 23 brought together FOIA professionals from agencies which maintain immigration records with immigration attorneys and others interested in such records. The FOIA Ombudsman: Information & Advice is spot-lighting each agency, the types of immigration records each holds and tips for obtaining those records under FOIA.

U.S. Citizenship and Immigration Services (USCIS) is the government agency within the Department of Homeland Security (DHS) that oversees lawful immigration to the United States. An average of 600 FOIA/Privacy Act requests each day come into its centralized records office in Lee’s Summit, MO. Ninety-nine percent of those requests are from people who are not citizens or nationals of the United States seeking their own records or their attorneys. USCIS is the custodian of Alien Files, or A-Files, which document a person’s contacts with the Federal government as she or he lives as an immigrant and/or strives to become a naturalized citizen. A-Files are an average of 200 pages long.

Several agencies add documents to the A-File, including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), and the Departments of Defense (DoD) and State. USCIS will process CBP documents in an A-File in its response to a FOIA request for an A-File (by agreement between those two agencies), but will refer documents from the other agencies to those other agencies, which respond directly to the requester. And while CBP documents in an A-File will be processed by USCIS, CBP may have other records that are not in the A-File.

USCIS has an estimated 50 million paper records—25 million at the USCIS facility in Lee’s Summit and another 25 million in the nearby Federal Records Center. (A-Files of persons born 100 years ago are in the legal custody of the National Archives. Stay tuned to the FOIA Ombudsman for a post about the immigration records in the Archives holdings later this summer.)  The average processing time for USCIS to process an A-File request was five to six months as of May 2012.

USCIS Form G-639 is a convenient way to request records from the agency, but it’s not mandatory. If the form is not used, requesters are asked to provide the A-File holder’s name, address, date of birth and country of birth. “We have a lot of individuals with the same name. We have a lot of individuals with the same name and the same birth date,” said Jill Eggleston, Assistant Center Director, FOIA/PA Division, USCIS.  Keep in mind that A-Files are released only to the individual named in the A-File or his or her attorney.

The identity of the requester must be verified either by signing it in the presence of a notary or under penalty of perjury.

USCIS divides its requests into three tracks: Track 1 is for a simple request, such as request for a copy of a Green Card, an ID card attesting to permanent resident status in the US. Track 2 is for a complex request, such as an entire A-File. Track 3 is a quick track for requests from people facing deportation who have a scheduled hearing date in U.S. Immigration Court. Proof of a hearing date must be presented to be placed in Track 3.

A few other things to keep in mind: USCIS also keeps records of employers who are petitioning for work visas on behalf of an alien or aliens. Citizens or lawful permanent residents who see an error in their files may petition to have the records corrected under the Privacy Act of 1974. Unlawful residents and individuals who are not U.S. citizens have no such right.

At least five different Federal agencies maintain immigration records, so figuring out which agency holds what records can be challenging—even for frequent FOIA requesters like immigration attorneys. On the flip side, agencies are challenged by a constant stream of immigration records requests.

Following a few best practices will help build a better FOIA request for immigration records. (Immigration Building, Ellis Island, 1900; ARC 597954)

An OGIS-sponsored forum on immigration records May 23 brought immigration attorneys and others interested in the topic together with FOIA professionals from five agencies which hold immigration records: U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Department of Justice’s Executive Office of Immigration Review (EOIR) and the Department of State. The National Archives and Records Administration (NARA) also holds historical immigration records of interest to genealogists, historians and other researchers.

Jill Eggleston, USCIS’s Assistant Center Director of the FOIA/PA Division, proposed the forum as a way to spark discussion about how agencies can more efficiently process immigration records requests. USCIS’s centralized records office, built into a cave in Lee’s Summit, MO, receives an eye-popping average of 600 FOIA/Privacy Act requests each day, 99 percent of them from people who are not citizens or nationals of the United States. The forum offered a chance for FOIA professionals to present an overview of the types of immigration records maintained in each agency and how each agency processes requests. We’re pleased that forum participants will continue the discussion with an eye toward streamlining access to immigration records—and improving the FOIA process.

Now a few best practices and tips for requesters (or their attorneys) that came out of the forum:

• Learn which agencies have what records. USCIS, for example, is the custodian of Alien Files, or A-Files, which document an alien’s contacts with the Federal government as she or he lives as an immigrant and/or strives to become a naturalized citizen. (Stay tuned: in the coming weeks, the FOIA Ombudsman will spotlight each of the agencies and the types of immigration records each holds.)
• If you need just one document, ask for just that document. Asking for specific records will save both you and the agency time, making the FOIA process more efficient for all.  Vague requests can mean lots of wasted search time.
• Requesters and their attorneys frequently don’t request specific documents because they’re afraid if they do, an agency will hide something. Use this as an opportunity to have a conversation with agency FOIA professionals. CBP is proactively contacting requesters who ask for “all records” to see if they can tailor their records requests.