The scenery has changed, but the National Archives’ commitment to public service and access remains the same. (ARC Identifier 4477186)

On May 13, 2013 the American Society of Access Professionals (ASAP) presented OGIS Director Miriam Nisbet with the President’s Award for Distinguished Public Service, ASAP’s highest honor. ASAP also gave the Director’s Award for Superior Public Service to the National Archives’ own Public Interest Declassification Board. Congratulations, Miriam and PIDB — we are so proud of you!

In presenting Miriam with the award, ASAP President Scott Hodes noted her work in FOIA at the Justice Department, in NARA’s General Counsel’s office during the 1990’s, as legislative counsel for the American Library Association, at the United Nations Educational, Cultural and Scientific Organization in Paris and then back at NARA in 2009 to set up and direct OGIS. In her acceptance speech Miriam remarked that she and FOIA “grew up” together, and how proud she is to be a part of FOIA’s maturing as the law now emphasizes mediation rather than litigation.

The awards session also included a keynote address from U.S. District Court Judge Royce Lamberth. Judge Lamberth is particularly notable in the FOIA world because he hears more FOIA cases than any other judge in Federal court. FOIA lawsuits by any requester maybe filed in the U.S. District Court for the District of Columbia. Judge Lamberth shared several observations accumulated from years of working with FOIA.

• “I think judges are too likely to give total deference to Exemption 1 claims,” said Judge Lamberth of the exemption which protects classified information from release. FOIA’s 20-working-day time limit for agencies to respond to request “is pretty unworkable,” he said.
• Requesters should have a little understanding when it comes to agency FOIA operations. “The government doesn’t have infinite resources—many requesters don’t get that,” he said. “Requesters need to be more realistic about what they can expect.”
• Government employees are “promoting democracy by providing the public with a right to know.”

There were lots of nodding heads in the room as Judge Lamberth spoke. We at OGIS look forward to continuing to work on the potential improvements to FOIA he highlighted.

If you have something but you can’t find it, you don’t have it. (ARC Identifier 4492629)

Composing a successful FOIA request can be tricky. Agencies are responsible for a mind-boggling amount of information, and finding a record amid years and years of accumulated documents can feel like searching for the proverbial needle in the haystack (though some requesters and agency professionals would probably argue that the haystack searcher’s task is the easier of the two).

We have worked on a few requests for assistance recently that deal with the challenges of search. Federal courts have long settled that in regard to a search for documents, the crucial issue is whether an agency conducted an adequate search for a document, not whether a document might exist. So, if you are a FOIA requester, how can you help an agency look for the records you seek?

1.  Be as specific as possible, especially with regard to older records. Remember that historical records may predate an agency’s electronic search tools, meaning that those tasked with searching may have to search for records by hand — help them out by providing information like a date range, a title, and any other relevant information.
2. Get to know how the agency keeps its records (or doesn’t). The FBI makes its file classification list available on its website. Consider how the records you seek might fit in to such a schema, and direct the agency to search specific files when you can. You may also wish to consult the agency’s records control schedule – you may find that it has disposed of the older records you seek or has sent them to the National Archives and Records Administration if they are permanently valuable.
3. Remember that not all agencies take a centralized approach to processing FOIA requests. If you are interested in records related to a specific branch or location, look at the agency’s website to see if you should direct your request there rather than to the agency’s headquarters. Often this information is in an agency’s FOIA regulation.

Above all, if you are not sure how to compose your FOIA request to help the agency better find what you are looking for, ask! FOIA Public Liaisons are available to help with this type of question (you can access a list of FPLs and their contact information on FOIA.gov). Of course, OGIS is also available to help.

Don’t let FOIA fees tie you in knots –let communication and the team approach work for you! (ARC No. 6431739)

FOIA fees can quickly snarl into knots for agency FOIA professionals and requesters alike. Untangling those knots takes work, but one of the best tools for the task is communication. That’s the central theme that emerged from a recent FOIA Requester Roundtable, sponsored by OGIS and the Office of Information Policy (OIP), Department of Justice (DOJ).

OIP Director Melanie Pustay reminded the participants that figuring out fees requires reading:

• the statute
• agency FOIA regulations
• the Fees and Fee Wavers chapter in the DOJ Guide to FOIA
• the FOIA Fee Guidelines issued in 1987 by the Office of Management and Budget
• OIP Fee Waiver Guidance.

And a little forbearance to work through what one requester called “this black box that is totally nonsensical.”

The biggest confusion may center around fee categories and fee waivers. All FOIA requests are considered in one of three requester categories, and there are different fee structures – and different requirements – associated with each. Fee waivers are different from fee categories and demand a much higher threshold for consideration than a fee category.

Fee estimates should be the start of a conversation between FOIA professionals and requesters, several participants agreed, and it doesn’t have to be a one-on-one conversation. Think about bringing in records managers and IT professionals who know the records and what a search might entail.

“We are beginning to see a real strong effort across the government to have a team approach combined with having a conversation,” said OGIS Director Miriam Nisbet.

Earlier in April, Director Nisbet joined James Hogan, Chief, Defense Freedom of Information Policy Office, in a lively discussion sponsored by the American Society of Access Professionals. And in March, we released our 2013 recommendations, which include facilitating an ongoing discussion about FOIA fees.

Several requesters at the Roundtable noted that some agencies are using outdated definitions of media requesters that don’t reflect changes in the 2007 amendments to FOIA; charging fees if an agency is past the 20-working-day response time and hasn’t articulated “unusual or exceptional circumstances” as required by the statute; and using OMB Guidelines which do not reflect changes to FOIA since the 1996 amendments.

One idea for tackling fees is having a senior FOIA professional review all of the fees estimates to ensure requests are being processed in the most cost-efficient way as required by OMB Guidelines. Another idea is to create a database of how requesters have been treated in the past for the purposes of FOIA fees.

We’d love to hear any ideas you have regarding FOIA fees. Let us hear from you!

Class is in session for FOIA professionals interested in learning about dispute resolution.

Are you a FOIA professional who is interested in learning more about how to resolve disputes that may arise in the FOIA process? If so, please join OGIS for Dispute Resolution Training for FOIA Professionals on Wednesday, May 1. This free all-day session (9:00 a.m. – 4 p.m.) will be held at the main Archives building.

The amended Freedom of Information Act (5 U.S.C. § 552) directs FOIA Public Liaisons to help resolve FOIA disputes. We offer a free dispute resolution skills training program for all FOIA professionals to help them fulfill this mandate. We present this training program in collaboration with the Department of Justice’s Office of Information Policy.

Participants will develop a working knowledge of Alternative Dispute Resolution techniques, learn how working with OGIS can help resolve disputes, practice active listening and good communication, and develop strategies for working with difficult people. This training is appropriate for anyone involved in the FOIA process, from program managers to FOIA attorneys to FOIA Public Liaisons.

If you are interested in joining us for this free training opportunity or if you would like more information, please email OGIS at: ogis@nara.gov.

The National Action Plan puts open government (and FOIA) in the spotlight.
(ARC Identifier 6011512)

In its March 29 self-assessment of the National Action Plan, the White House evaluated its progress on the two FOIA-related components of that plan: professionalizing FOIA administration and harnessing the power of technology.

During Sunshine Week 2012, the Office of Personnel Management announced the creation of the Government Information Series. This specialized field within the Executive Branch includes FOIA and Privacy Act professionals and provides for tailored job descriptions to recognize their unique roles. Agencies are currently re-working the descriptions for these positions to reflect the specialized skills needed to carry out FOIA’s requirements. The enhanced job series recognizes the essential and important role that FOIA professionals fulfill.

The assessment discussed several ways that agencies have harnessed technology to improve the FOIA process. The administration mentioned the new FOIAonline portal as an example of a  centralized FOIA administration system and library. The report also mentioned that more than 100 Federal offices currently use online portals to receive FOIA requests from the public.

The National Action Plan is a set of 26 commitments intended to increase public integrity, promote public participation, manage public resources more effectively and improve public service. It was created as part of the administration’s participation with the global Open Government Partnership, an international effort to improve government through transparent, effective and accountable governing.

Come talk fees with us! (ARC No. 6011228)

The issue of fees can trip up even the most experienced requester and FOIA professional. We all know that it is a tricky issue, but might there be a better way?

In our 2013 recommendations, we laid out our plan to discuss the issue of fees and fee waivers with the requester and agency communities; we will discuss this issue at the next FOIA Requester Roundtable Meeting. Hosted jointly with the Department of Justice Office of Information Policy (OIP), this meeting is open to members of the public as well as to all interested agency personnel. The roundtable will take place on April 24, 2013, 10:00 a.m. – noon at OIP (1425 New York Avenue NW, Suite 11050). 

If you are interested in attending, you can register by e-mailing your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov with the subject line “April Requester Roundtable Registration.”  As space for this meeting is limited, registration is required to attend, and please remember that 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.

We look forward to hearing your good ideas!

FOIA is making news these days. (ARC Identifier 552929)

FOIA is everyone’s responsibility. This is a common refrain for FOIA processors and records managers, but we have observed that it can be a challenge to impress upon those outside the FOIA department that FOIA is their job, too. For those who don’t live and breathe FOIA, having a cumbersome, time-sensitive project like a FOIA request foisted upon you when you are already busy can really ruin your day.

We’ve heard over and over that when agency heads make FOIA a priority, others do, too. We’ve made this point in our recommendations and we are sure to discuss it when we meet with agencies.

Considering the importance of top-down support for FOIA, we were very happy that the head of our own agency, the National Archives and Records Administration (NARA), publicly showed his continued support for FOIA during Sunshine Week. Archivist of the United States David Ferriero sent this message to all employees of NARA:

To: All Employees

FOIA Is Everyone’s Responsibility

FOIA matters. Each year, nearly 650,000 Freedom of Information Act (FOIA) requests are made to Federal agencies, including more than 13,000 to NARA in Fiscal Year 2012. NARA’s core mission, of course, is to make our archival records available to the public, including through FOIA.

Responding to access requests doesn’t rest solely on NARA’s FOIA and archival staff. FOIA is everyone’s responsibility. This year, as we celebrate Sunshine Week by displaying the original FOIA statute in the East Gallery of the National Archives’ Rotunda in Washington, D.C., I thank you for taking seriously your responsibility to meet FOIA’s important legal obligations and remind you that FOIA applies equally to our internal operational records.

 Every document you create and email you send in the course of doing your job may potentially be a Federal record subject to FOIA. As you may know, FOIA provides the public with the right to access Federal records with limited exceptions. After all, in a democracy, the government is conducting business on behalf of the public. When a member of NARA’s FOIA staff contacts you about records your office may have, please respond and keep open a line of communication with the agency’s FOIA professionals. FOIA gives Federal agencies just 20 working days under the law to respond to requests, and that can happen only through teamwork and a commitment to FOIA from everyone.

 FOIA nurtures our democracy through transparency and accountability, helping countless people each year learn about some aspect of their government. This is especially important here at NARA, where records matter. I thank each one of you for your commitment to FOIA and the public’s access to government records.

DAVID S. FERRIERO

Archivist of the United States

We thank the Archivist for his commitment to FOIA and his willingness to remind all employees of NARA that when you get right down to it, we are all FOIA professionals. We encourage the heads of other agencies to send a similar communiqué to their employees to remind them that when we work together, FOIA works better.

Sunshine lights the path ahead. (ARC Identifier 554394)

Sunshine Week 2013 was so bright, it just keeps on shining. Last week’s post brought you up to speed on many of OGIS’s Sunshine Week 2013 activities, but one event was absent – the Sixth Annual Freedom of Information Day Celebration, hosted by American University Washington College of Law’s Collaboration on Government Secrecy. This event took place on Monday, March 18 – though not technically during Sunshine Week (which happened to coincide with AU’s spring break this year), it was no less luminous.

While it is always good to spend this day with our friends in the open government community, we found the program this year to be particularly informative. Expert panels discussed topics ranging from the impact of the Milner v. Department of the Navy decision to current FOIA legislation to the latest in litigation. We are also glad to see Leonard Schaitman of the Department of Justice’s Civil Division receive the 2013 Robert Vaughn FOIA Legend Award. Leonard has served as the federal government’s principal appellate litigation supervisor for FOIA cases since 1973, and this award acknowledges his profound impact on FOIA.

Thanks to the Collaboration on Government Secrecy for such a great event. We look forward to next year!

However you celebrated Sunshine Week 2013, we hope it was a good one! (ARC Identifier 553239)

Whew! We at OGIS have caught our breath after a hectic Sunshine Week during which we joined folks from both the agency and requester communities in promoting the importance of open government and freedom of information. (Of course, these values are just as important during the other 51 weeks of the year.) If you weren’t able to attend any of the events in Washington, D.C., or join the conversation, OGIS is here to help with a Sunshine Week wrap-up of some of the events held March 11-15.

The Department of Justice kicked off the week on Monday March 11 with its fourth annual Sunshine Week Celebration. Melanie Ann Pustay, director of the Office of Information Policy, announced the release of the first chapter of the 2013 Guide to the Freedom of Information Act. The chapter focuses on FOIA Exemption 2, which changed after the U.S. Supreme Court’s 2011 decision in Milner v. Dep’t of the Navy. The DOJ event also featured FOIA success stories brought by speakers from five agencies — Bianca Oden of the General Services Administration, Lisa Babcock of the Small Business Administration, Kathleen Styles of the Department of Education, Denise Weber of the National Oceanic and Atmospheric Administration, and Trina Porter of the Office of Personnel Management.

Archivist of the United States David Ferriero and OGIS Director Miriam Nisbet welcomed agencies and requesters to the National Archives and Records Administration (NARA) where the original Freedom of Information Act was on display. Archivist Ferriero noted that he had sent a message to NARA’s 2,500 employees reminding them that FOIA is everyone’s responsibility and asked other agency heads to follow his example. A demonstration followed of FOIAonline, the multiagency FOIA portal that launched October 1, 2012, and is designed to streamline the FOIA process for both agencies and requesters. Six agencies, including our parent agency, NARA, are partners.

Tuesday brought a discussion of “Open Government in the Second Term” with the Center for Effective Government and the Electronic Privacy Information Center. Director Nisbet addressed some areas of FOIA to focus on in the coming years, including revisiting fees, enhancing customer service and further harnessing technology. Lisa Ellman, who leads the Open Government Partnership in the White House, and Krista Boyd, minority counsel to the House Committee on Oversight and Government Reform, joined Director Nisbet. Ellman shared examples in which open data has been used by non-government entities to enhance access to government information. Boyd talked about the FOIA Oversight and Implementation Act of 2013 (“FOIA Act”), a draft of which was released for comment early in the week. The bill, H.R. 1211, introduced on Friday March 15, features provisions that would establish the presumption of openness, strengthen the use of dispute resolution in the FOIA process, establish a Chief FOIA Officer Council, establish a single portal for FOIA requests, mandate FOIA regulations updates, and enhance the role of OGIS in the FOIA process. See a bill summary here.

OGIS Director Nisbet joined other open government advocates later Tuesday for a discussion about FOIA sponsored by the Congressional Transparency Caucus. The panel, moderated by Daniel Schuman, policy counsel at the Sunlight Foundation, opened with remarks from Caucus Co-Chairman Rep. Mike Quigley of Illinois, who encouraged Federal agencies to join FOIAonline.  “Every agency needs to participate, not just a handful,” Rep. Quigley said. Gavin Baker, open government policy analyst at the Center for Effective Government, likened FOIAonline to an important tool with adaptable functions for every agency. “FOIAonline is like a Swiss Army Knife,” he said. “It’s got a corkscrew. It’s got a nail file. It’s got everything.”

Other nongovernmental organizations (NGOs) that used Sunshine Week to call for more agency participation in FOIAonline include the American Society of News Editors, the National Security Archive, the Project on Government Oversight and the Sunshine in Government Initiative (SGI).  FOIA Oversight and Implementation Act of 2013 would establish a pilot program to review FOIAonline. SGI marked Sunshine Week with an award to two members of the FOIAonline team: Tim Crawford, senior policy adviser on open government at the Environmental Protection Agency (EPA), and Larry Gottesman, EPA’s National FOIA Officer.

On Wednesday, Director Nisbet testified before the Senate Committee on the Judiciary at a hearing marking five years since Congress passed the OPEN Government Act, which amended FOIA and created OGIS. Director Nisbet stressed one of the most important changes to the law—the introduction of dispute resolution into the FOIA process. “OGIS seeks to more strongly connect FOIA professionals, legal counsel and dispute resolution professionals to embed dispute resolution firmly into the FOIA process with the goal of preventing and resolving disputes,” she told the panel. Director Nisbet discussed OGIS’s 2013 recommendations for improving FOIA, including implementing dispute resolution for conflicts into the FOIA process and top-down agency support for reminding all Federal employees that the responsibility for responding to FOIA requests rests with everyone. Director Nisbet also announced that in the coming year, OGIS plans to work with stakeholders both inside and outside government to study the issues of immigration records and FOIA fees. Watch the hearing here.

The House Committee on Oversight and Government Reform also held a hearing Wednesday addressing open government generally and discussing the draft of the FOIA Act that was posted the day before. “Together, we need to do better” on open government, Chairman Darrell Issa said.  “We have an obligation and an opportunity to create more transparency.” Four witnesses representing NGOs shared their observations on the draft FOIA bill, the landscape of FOIA and of access to government information generally, and on other proposed open government measures including an amendment to the Federal Advisory Committee Act.

On Friday, Director Nisbet joined other open government advocates to celebrate the 15^th annual National Freedom of Information Day at the Newseum. Director Nisbet spoke about the government efforts to post accountability information without waiting for a FOIA request to be made.  Noted First Amendment lawyer Floyd Abrams, whose decades of legal work is the subject of a new book, Nuanced Absolutism by law professor Ronald K.L. Collins, recalled the early days of FOIA when he was not a fan. It seemed “unseemly,” Abrams said, for journalists to have to ask the government for information. Now, however, Abrams has come around. “The Freedom of Information Act is an American treasure … it’s an American original.”

Finally, several NGOs used Sunshine Week to recommend Freedom of Information Act (FOIA) policy changes, including tweaking OGIS’s role in the FOIA process. OGIS is pleased to have NGO support (along with support from agencies!) and we hope to continue working with all FOIA stakeholders in the weeks and months (and years) ahead.

A few NGO recommendations, in no particular order:

• Strengthen and expand OGIS by giving it more staff and power in offering mediation services and reviewing agency FOIA policies, procedures and compliance (Center for Effective Government (formerly OMB Watch))
• Provide OGIS with more funding and expand OGIS’s enforcement mechanisms (Sunshine in Government Initiative, American Society of News Editors)
• Promote the availability and importance of mediating FOIA disputes with OGIS to avoid the animosity and costs of litigation (National Security Archive)
• Strengthen OGIS, including by giving it the ability to directly request its budget from Congress via a dedicated budget line item (The Sunlight Foundation).
• Provide OGIS with more involvement in FOIA rulemaking and compliance; give OGIS more authority and more resources to carry out its mission (Project on Government Oversight)

Check out OGIS’s 2012 report, hot off the virtual presses! (ARC identifier 278195)

We are pleased to share OGIS’s 2012 report, Office of Government Information Services: Building a Bridge Between FOIA Requesters & Federal Agencies. We hope that you will read about our accomplishments over the past year and our thoughts for the coming year. Please email us with your thoughts and feedback.