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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!

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 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!