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Requester Roundtable Canceled

We looked forward to meeting with the requester community today, but it seems that Mother Nature has other ideas. The FOIA Requester Roundtable scheduled for Wednesday, January 22, 2014, “Providing Estimated Dates of Completion,” is canceled because of the government’s delayed opening status.

Please keep an eye out for announcements of future Roundtables, and stay warm!

 

Upcoming FOIA Requester Roundtable: Estimated Completion Dates

Providing estimated completion dates – and following up with customers if the estimate changes – helps reduce FOIA bottlenecks. (NARA number 545884)

Providing estimated completion dates – and following up with customers if the estimate changes – helps reduce FOIA bottlenecks. (NARA number 545884)

We’ve written before about the importance of providing estimated completion dates to requesters — not only is it good customer service, but since 2007, it’s the law. Unfortunately, OGIS still hears from many requesters with delayed requests who have not heard when they might expect a response. In those cases, OGIS contacts the agency, talks with the FOIA staff about this particular requirement, and in most cases, provides the requester with an estimated completion date. (Sometimes, an agency declines to provide an estimated date of completion, despite the statutory responsibility to do so.)

The fact that OGIS plays this role — helping requesters obtain the estimated completion date to which they are entitled — may be frustrating at times, but it is not surprising. After all, the requirement is a relatively new part of the law, and we hear regularly from agencies about how challenging it can be to come up with such an estimate. We understand that challenge.

Unfortunately, we also hear back sometimes from requesters for whom the estimated completion date that OGIS provided from the agency has passed without a response.  When this happens OGIS re-opens the case, contacts the agency, asks for a new estimated completion date, and shares that with the requester. This results in a lot of wasted time and in many instances, broken trust between the requester and the agency. While estimated completion dates are in no way legally binding, it is important to remember that they naturally create an expectation in the requester’s mind.

So how can agencies both provide estimated completion dates (which, after all, are only estimates), and preserve a relationship with the requester? In our dispute resolution skills training program, we spend time talking about the process manager role played by FOIA professionals. One important part of being a process manager is keeping track of deadlines and making sure that key stakeholders remain informed — the requester being the most important stakeholder of all.

We’ve heard from FOIA professionals about the tools they use to help them track estimated completion dates. Some put a meeting on their calendar to remind them to update the requester. We’re told that others are able to keep track of estimated completion dates through their FOIA processing software, and that the software can automatically create letters updating the requester on the status of his/her request. Whether you use a high-tech tool — or simply put a sticky note on your computer screen — we hope that you will remember to keep the requester in the loop as deadlines shift.

If you are interested in learning more about estimated completion dates, we encourage you to attend the next FOIA Requester Roundtable, “Providing Estimated Dates of Completion.” Sponsored by OGIS and the Department of Justice’s Office of Information Policy (OIP), the meeting is from 10:00 to noon on Wednesday, January 22 at OIP, 1425 New York Avenue, NW, Suite 11050 in Washington, D.C.

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 “January 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.

Providing Consent

 

While we accept requesters’ consent in several forms, on the side of an airplane is not one of them.  ARC Identifier 6627298

While we accept requesters’ consent in several forms, on the side of an airplane is not one of them. (NARA Identifier 6627298)

Repeat OGIS customers may wonder why we sometimes ask them to provide consent to discuss their requests with agencies and other times we don’t. We recently contacted a requester whose consent we had asked for a few weeks earlier and told her, in essence: just kidding, we really don’t need your consent.

So why does OGIS sometimes toss this small bureaucratic hurdle at its customers? The short answer is the Privacy Act of 1974.

The Privacy Act covers Freedom of Information Act (FOIA) and Privacy Act request files at every agency, which means that FOIA request files, which are retrieved by an individual’s name or personal identifier, cannot be disclosed to another person (outside of the agency) or to another agency, with certain exceptions.

One exception is when an individual consents to disclosure of his or her records request file. That’s where OGIS’s consent requirement comes in. In many instances, such consent is required before we can contact the agency to try to begin facilitating a resolution to a dispute.

Another exception to the non-disclosure provision of the Privacy Act is when an agency “routinely” needs to disclose those records for certain purposes: think the Department of Justice (DOJ) and the Department of Homeland Security. In those instances, the agency publishes what’s called a Systems of Records Notice (SORN) in the Federal Register describing the records, how the records are maintained, and when and how they disclose them without first getting the consent of the individual.

Most agencies have a pretty long list of “routine uses,” many of which are common across agencies (for example, sharing records with the DOJ when there is litigation involving the individual’s FOIA request.)

As of early January 2014, six Cabinet-level departments and four agencies have revised their SORNs to include an OGIS routine use. The Department of the Treasury published on its revised SORN in the January 2, 2014 Federal Register, sparking OGIS to contact the customer referenced above to let her know that we don’t need her consent after all. (Thank you, Treasury!)

Other departments and agencies with SORNs that include an OGIS routine use are:  

  • Department of Defense
  • Department of Health and Human Services
  • Department of Justice
  • Department of State
  • Department of Transportation
  • Office of Special Counsel
  • Privacy and Civil Liberties Oversight Board
  • Securities and Exchange Commission
  • U.S. Postal Service

We’ve asked the nine Cabinet-level departments that do not have an OGIS routine use to revise their SORNs to include an OGIS routine use. 

We’ve found that requiring consent can be an obstacle when an agency, rather than an individual requester, seeks OGIS assistance. The situation places agencies in the position of obtaining a requester’s consent. Indeed, one requester quipped that he felt like he’d been sent to the principal’s office when an agency came to him and said it was interested in OGIS’s mediation services and needed his consent.  

So if your request for OGIS assistance involves one of the above-listed agencies, we won’t ask for your consent. But if it’s not on the list, expect us to ask for your consent.

Finally, as a reminder, before we can begin work on a case—no matter the agency—we need copies of

  • your FOIA request letter;
  • the agency’s response to your request;
  • your appeal letter; and
  • the agency’s response to your appeal.

We hope this provides a little insight as to how we work and hope that someday, seeking customer consent will be a thing of the past.

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.