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Managing Emails & Government Records: Are your ducks in a row?

Though managing email records can feel like an impossible task, new guidance from NARA offers practical solutions for agencies. (National Archives Identifier 521897)

Though managing email records can feel like an impossible task, new guidance from NARA offers practical solutions for agencies. (National Archives Identifier 521897)

In his November 28, 2011 Presidential Memorandum -Managing Government Records, President Obama noted “proper records management is the backbone of open Government.” Sound records management helps agencies carry out their missions, promotes accountability by documenting agency activities, and fosters open Government. As we’ve written before, good records management is essential for good FOIA programs. That’s a message that Archivist of the United States David Ferriero brought to Capitol Hill on September 10, 2013.

To address the challenges of managing electronic records and rapid changes in technology, OGIS’s parent agency, the National Archives and Records Administration (NARA), recently issued guidance for Federal agencies on managing email electronically, managing email accounts, and protecting Federal Records from unauthorized removal.

NARA Bulletin 2013-02: Guidance on a New Approach to Managing Email Records presents “Capstone,” a simplified and automated approach for electronically managing Federal email records. The bulletin offers considerations that agencies should review if they choose to implement the Capstone approach to manage their email records. The Capstone approach, one of several available to agencies, supports the Presidential Memorandum on Managing Government Records and allows agencies to comply with the requirement in OMB/NARA M-12-18 Managing Government Records Directive to “manage both permanent and temporary email records in an accessible electronic format” by December 31, 2016.

NARA Bulletin 2013-03: Guidance for Agency Employees on the Management of Federal Records, Including Email Accounts, and the Protection of Federal Records from Unauthorized Removal reaffirms that agencies and agency employees must manage Federal records appropriately and protect them from unauthorized removal from agency custody. In addition, the bulletin clarifies records management responsibilities regarding the use of personal email accounts for official business and the use of more than one Federal email account. (NARA Bulletin 2013-03 replaces and updates NARA Bulletin 2008-02.)

Ferriero testified before the House Oversight and Government Reform Committee on the topic of Preventing Violations of Federal Transparency Laws. Ferriero clarified NARA’s policy on the use of private or unofficial email accounts to conduct Federal business. “The National Archives discourages the use of private email accounts to conduct Federal business, but understands that there are situations where such use does occur,” he said. “Accordingly, where a private email account must be used to conduct government business – because, for example, the government-provided email service is not available for technical reasons – the Federal records generated through these private accounts must be moved to the official recordkeeping system of the agency as soon as practicable, and then managed according to the Federal Records Act, the Freedom of Information Act, and other legal requirements and their implementing regulations.”

Making “Publicly Available” Records Available

While the hardware we use to print documents may have shrunk, demand certainly hasn’t. (ARC Identifier 536611)

While the hardware we use to print documents may have shrunk, demand certainly hasn’t. (ARC Identifier 536611)

As the government strives to find ways to improve FOIA, proactive disclosure seems to be one strategy that everyone agrees on; if agencies make more information publicly available, people will not need to make FOIA requests for those records.

In many cases, this strategy has worked. Thanks to efforts like data.gov and agencies’ FOIA libraries, you can now easily download reams of information that were previously available only through a FOIA request. But what about those for whom the Internet itself is out of reach?

We have heard from a handful of FOIA requesters who have made FOIA requests for records only to be told by the agency that because the records are available on the web, the agency is not required to provide them through FOIA. Unfortunately, even in our connected age, there are individuals who do not have access to the Internet (or access to a public library’s Internet terminals). So how should agencies handle requests from those who are housebound, or incarcerated, or in some other situation that presents them from accessing records that are “freely available” to others?

It is worth noting that agencies have very good reasons for refusing to supply customers with copies of publicly available records, particularly to those who can access the records online. It is costly in terms of time, money and effort. It can also feel like a slippery slope; no agency wants to earn a reputation as a printing press.

We have heard from agencies whose regulations stipulate that they will not fulfill requests for publicly available records. We know that other agencies send copies of records available on the Internet without a second thought when requested by an individual who explains his or her situation. It is interesting to consider the issue in light of the Administration’s emphasis on good customer service.

Agencies, have you received requests like these? How do you handle them? We’d love to hear from you.

A Model FOIA Reg

Like this 19th-century California claim map, good FOIA regulations help lead the way.  (ARC Identifier 595794)

Like this 19th-century California claim map, good FOIA regulations help lead the way. (ARC Identifier 595794)

As we’ve written before, the Freedom of Information Act (FOIA) requires agencies to have regulations that specify a fee schedule, designate agency components to receive requests and provide for expedited processing. Beyond those requirements, regulations should be a GPS, of sorts, to help both agency FOIA professionals and requesters navigate the FOIA process.

Our parent agency, the National Archives and Records Administration, recently updated its FOIA regulation and the Federal Register published the proposed rule on August 5. We’re pleased that the NARA team that worked on the revisions asked OGIS for our input.

NARA is not a typical Federal agency. Like other agencies, it has operational records created in day-to-day operations; but it also has archival holdings.  The different types of records are managed and retrieved differently and also have different fee schedules. The regulation reflects that uniqueness. However, there’s a lot in the proposed regulation that can serve as a guide for agencies pondering updating their FOIA regulations. In fact, we think the NARA regulation could be a model for other agency FOIA regulations.

Items we particularly like about NARA’s FOIA regulation:

  • It’s written in requester-friendly, plain language.
  • It specifically lays out how the agency processes a FOIA request.
  • It addresses estimated dates of completion, which are required by the FOIA itself, including how NARA determines such estimates.
  • It provides requesters with avenues for requesting assistance during the FOIA process from the agency FOIA Public Liaison to OGIS.
  • It details how to file an appeal.

Interested in commenting on NARA’s FOIA regulation? You’ve got until October 4, 2013 to submit comments through the Federal erulemaking portal, by email, fax, mail—even hand delivery or courier. Follow the instructions at the beginning at the Federal Register notice rule to submit a comment.

Throwback Thursday: Thinking about Exemption 4

FOIA Exemption 4 is open for business.

FOIA Exemption 4 is open for business.

We get many requests for assistance related to FOIA Exemption 4, which protects from disclosure commercial and financial information provided to the government. For example, over the last few months we have heard from requesters frustrated about delays related to submitter notice and an agency interested in brainstorming how best to communicate with the entities that provide them with information.

Nearly two years ago, we shared some tips on Exemption 4 gathered at a discussion we hosted with the Department of Justice’s Office of Information Policy. We thought it would be worth revisiting that information.

Tips for agencies:

  • The Defense Logistics Agency (DLA) proactively states, as part of contracts that it awards, that the information in the contract is releasable under FOIA unless the contractor opts out, which happens very rarely. That could serve as a model for other agencies.
  • Another idea: require submitters to give to the agency a redacted copy of a contract, so that the submitter has considered the issues up front. Of course, to release it under FOIA, the agency still must review the redactions, but this gives a head start in a draft that the agency can take back to the submitter as a starting point.
  • DOJ advises not making the submitter file a FOIA request for the name of the requester. Though it’s rare, it does happen that a FOIA request sparks independent conversation between the requester and the submitter, and everything’s worked out outside of FOIA land.
  • A FOIA attorney at the Department of the Air Force compiled a list of questions to ask submitters to consider and answer when justifying why the information should be withheld. That helps the submitter articulate how release would likely cause competitive harm and helps the agency better determine whether that standard is met.
  • One agency FOIA professional suggests searching online for the information the requester seeks and the submitter wishes to keep shrouded. Sometimes, you’ll find it’s already public, for example, in the submitter’s annual report.
  • In final agency release determination letters, if the agency determines that the submitter has met the competitive harm standard, then explain that the submitter has objected and why.

Tips for requesters:

  • It’s difficult enough for many agencies to meet the 20-day statutory response time. Add submitter notice to the mix, and it’s all but impossible, so a little patience might be in order.
  • Reach out to the FOIA professional. Explaining exactly what information you seek might help narrow the request – and potentially shorten the response time.

Tips for submitters:

  • Focus the competitive harm argument on each record or subject at issue. Keep the argument direct and concise, and explain precisely how you could be harmed by potential competition.
  • Understand that you become a party to any potential FOIA lawsuit over withholding of these records and you will need to declare, under penalty of perjury, the competitive harm that would likely result.

If you have any tips for working with Exemption 4, we’d love to hear them. Please drop us a line!

Surging ahead into the electronic world

It's not rocket surgery ... but digitizing records management and access is a challenge. (ARC Identifier 6481984)

It’s not rocket surgery … but digitizing records management and access is a challenge. (ARC Identifier 6481984)

As we move toward a more digitized society, we’re continually looking to build upon electronic access and management of government records. FOIA requesters and agency FOIA professionals came together this week to discuss issues they face working with electronic records.

Records management was a key point of discussion — electronic records can be incredibly time-saving, but agencies need to be able to easily index and locate them, said Melanie Pustay, the Director of the Office of Information Policy (OIP) at the Department of Justice. “If records are managed and controlled electronically,” she added,” then everything FOIA-related will benefit from that.”

The Requester Roundtables are a quarterly public event co-hosted by OIP and OGIS. The July 24, 2013 event focused on “Providing Records in Electronic Formats” and included about 50 individuals from the FOIA requester community and from federal agencies.

The group spent a lot of time discussing government email practices; specifically, how federal agencies search for and manage emails. “The vast majority of agencies do not have electronic recordkeeping for email,” said OGIS Director Miriam Nisbet. “NARA is committed to getting agencies there.” Nisbet referred to an upgrade directed by the Managing Government Records Directive, issued jointly by the Office of Management and Budget and the National Archives and Records Administration. (We blogged about it here.)

The Directive sets a 2016 deadline for agencies to implement updated email systems that will serve as the recordkeeping system for non-temporary messages. As with anything created by a federal employee, not all email is necessarily a federal record, subject to recordkeeping policies and FOIA.

Presently, for most agencies, the official record of an email is the printed version that is filed in a location that corresponds to the subject. For example, emails related to FOIA requests would be printed and placed in the file for that FOIA request. Most email systems only keep emails for a transitory period of time, 90 or 180 days for example, before they are purged from the system because the email system is not the official management system. The new systems should be able to function as the management system for these records so agency folks no longer have to print and file every single business email they send.

Requesters at the roundtable also raised an oft-cited complaint: that email systems are not centrally searchable and when a requester seeks email messages, he or she has to identify specific offices or employees who must then search their own email for responsive records. The goal is for the newer systems to alleviate this frustration that is shared by both agency professionals and requesters. Newer systems have central search capabilities so, for example, the FOIA office could conduct an agency-wide search for emails on a particular subject for a particular time frame and the requester would be able to potentially receive agency-wide results for that subject. The goal is for these such systems to be in place by the end of 2014.

In the meantime, the group at the roundtable discussed ways to work with the systems that are in place, including finding ways to target email requests to specific individuals or offices when possible. And to be prepared that it will take some time with these older systems since there is no central search function.

The group also discussed electronic format issues, including a reminder that the FOIA “requires agencies to honor the requester’s choice of format if it is available and reasonably reproducible,” said Pustay. “Agencies have an even stronger incentive to move that way if they are not already there because of the President’s Open Data directive,” Nisbet added.

The May 2013 Executive Order, “Making Open and Machine Readable the New Default for Government Information,” directs agencies to implement an Open Data Policy that provides for managing records digitally throughout their life cycle. The goal is for government data to be easier to find, access and use, and more open as a result.

The next Requester Roundtable will be held in the fall. Keep an eye on the FOIA Ombudsman blog for date, topic and RSVP information.