XII. Report on FOIA Executive Order Implementation
1This compilation includes such items as were discussed at the Chief FOIA Officers Conference conducted by the Justice Department and OMB on March 8, 2006. Follow-up sessions are scheduled for April 27, May 17, and June 5, at which agencies can further exchange such ideas and best practices among themselves as they continue their reviews and near their plan-development deadlines.
2This is very much in accord with the approach taken for agencies' annual FOIA reports under the 1996 FOIA Amendments, where by statute all agencies' reports are made available by the Department of Justice "at a single electronic access point" for such comparison purposes. 5 U.S.C.
§ 552(e)(3)(2000 & Supp. III 2003). Just as it does with annual FOIA reports, the Justice Department plans to make all agency improvement plans available for convenient public access at a single location on its FOIA Web site.
3As a sound general rule, agencies should consider all possible improvements that can be made to their FOIA operations -- improvements both large and small, both short-term and long-term, and both agencywide and more localized in nature. In other words, there is no reason for any agency to rule out any FOIA-related improvement that it thinks it might meaningfully be able to make.
4See OMB Circular No. A-130, "Management of Federal Information Resources" (Nov. 28, 2000) (addressing agency dissemination of government information to the public); see also OMB Memorandum No. 06-02, "Improving Public Access to and Dissemination of Government Information and Using the Federal Enterprise Architecture Data Reference Model" (Dec. 16, 2005) (addressing electronic dissemination in particular).
5As was mentioned at the March 8 gathering of Chief FOIA Officers and accompanying agency FOIA personnel, the Department of Justice is updating its own FOIA Reference Guide in accordance with the executive order to serve as a model for other agencies.
6This improvement area is a good example of a circumstance in which an agency should consider not merely whether to establish a system or not, but also any need to undertake an upgrade of a system that might already exist. The executive order's basic policy goal of "increase[d] efficiency," Exec. Order No. 13,392, Sec. 1(c), can be pursued in more than one way.
7The Department of Justice, by way of example, is taking further steps in this area with respect to the more than 1000 requests annually that are received for records of its leadership offices by the Office of Information and Privacy.
8This area, too, serves to illustrate the depth of agency analysis that is possible in considering improvements that can be made: Even an agency that already employs multi-track processing and upon review verifies that it is employing the optimal number of tracks still should go beyond that to carefully consider whether the contours of those tracks should be recalibrated. If so, even in a relatively minor respect, that is still an improvement worth making.
9For example, in-house training on the requester-oriented policies of the executive order for all agency FOIA personnel can go a long way toward meeting goals in this improvement area. See also footnote 26 below.
10See, e.g., FOIA Update, Vol. XV, No. 3, at 6 (advising that where multiple agencies are involved, consultations "should be accomplished most efficiently through a simultaneous (not sequential) consultation process"). Notably, this is an area in which an agency could establish an improvement goal based upon a series of escalating actions if cooperation is not obtained over the course of set time intervals.
11This template element stems from section 3(c)(i) of Executive Order 13,392, which requires that an agency "summarize[ ] the results of the review [that it undertook] under section 3(a) of this order" in "a report" accompanying its plan. That requirement can most effectively be met with a narrative statement that elaborates upon the items listed in Parts II.B. and II.D. by describing what the agency found and concluded as a result of its review. See Exec. Order No. 13,392, Sec. 2(b)(iv). Essentially, an agency's report and its plan efficiently combine together through use of this template form.
12In line with the President's Management Agenda, as spearheaded by OMB, agencies should "focus on results,
. . .[on] a clear definition of success for every program and activity, . . .on the desired outcomes [the agency] hope[s] to achieve and on understanding what we are really trying to accomplish." For additional information, see http://www.whitehouse.gov/results/agenda/2005_results_report.pdf and www.results.gov. See also Exec. Order No. 13,392, Sec. 3(b)(iv)(specifying OMB's role in the process by which an agency "shall measure and evaluate [its] success in the implementation of [its] plan").
13In any case in which an improvement area is not agencywide in its scope, this should be indicated here, together with a clear specification of the particular scope of agency activity that is to be covered. For ease of reference, all information contained in agency improvement plans will be considered to be agencywide in its scope unless clearly indicated otherwise. See also Part IV, Q&A # 5, below (addressing the inclusion within agency plans of improvement goals that apply to just one agency component, program, or field installation).
14In discussing each such improvement area of their plans, agencies should be sure to include descriptions of where they presently stand in that regard and where they hope to be once their implementation efforts have been completed. See also Part IV, Q&A # 2, below (advising agencies to "set reasonably aggressive goals").
15In determining such appropriate measurements, agencies should be able to carefully determine which ones best fit their individual circumstances, which can vary greatly from one agency to another. See, e.g., Exec. Order No. 13,392, Sec. 3(a)(i) (calling for use of "numerical and statistical benchmarks where appropriate"). At the same time, all agencies should be mindful that their plans may be evaluated by others in this regard as well. See, e.g., id. at Sec. 4(a) (establishing procedure by which all aspects of final agency plans may be reviewed by Attorney General between June 14 and October 14, 2006).
16For purposes of this temporal breakdown of all plan areas -- i.e., simply to afford a picture of each agency's plans over time
--the term "completed" should be understood to mean "completed in its entirety." It is recognized that significant parts or stages of an improvement area's objectives might reach completion at earlier times, and this certainly can be reported in an agency's annual FOIA report as discussed in Part III, so agencies should not be unduly influenced by this temporal breakdown in the establishment of their plan milestones. And there is no barrier to an agency including in its plan goals that necessarily extend beyond the year 2007. See Part IV, Q&A # 3, below. Generally speaking, agencies should strive for a sound balance of improvement goals across the time periods specified here, with strong priority placed on the first two, see Exec. Order No. 13,392, Sec. 3(b)(i), but without exclusion of the third, and they should aim for milestones that are reached no less frequently than quarterly.
17See FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03); FOIA Post, "Annual Report Guidance for DHS-Related Agencies" (posted 8/8/03); FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01); FOIA Update, Vol. XIX, No. 3, at 2; see also Exec. Order No. 13,392, Sec. 3(c)(ii) (speaking of supplemental annual report guidelines to be issued by Attorney General for purposes of executive order implementation); id. at Sec. 2(b)(iv) (same).
18Agencies might with the passage of time identify a need to supplement or otherwise modify their plans subsequent to their initial preparation in June 2006, and they should consider making such refinements wherever appropriate. One basis for doing so could be the report that is to be issued by the Department of Justice in October 2006. As noted above, Executive Order 13,392 authorizes the Attorney General to consider all agency plans and to provide the President with "appropriate recommendations on administrative or other agency actions" for purposes of future governmentwide FOIA administration. Exec. Order No. 13,392, Sec. 4(a); see also Part IV, Q&A # 1, below (discussing the process by which agency plans may be refined). Beyond the year 2006, the executive order provides for two further Attorney General reports to the President, on June 1, 2007 and June 1, 2008, based upon the subsequent agency activity and plan implementation that is reflected in all agencies' subsequent annual FOIA reports in those years. See Exec. Order No. 13,392, Sec. 4(a).
19The executive order specifically requires that any such deficiency be identified and explained, together with an outline of remedial action, in this new section of an agency's annual FOIA report. See Exec. Order No. 13,392, Sec. 3(c)(iii)(A)-(C); see also Part IV, Q&A # 2, below.
20This new guideline subsection is akin to existing Section VIII.E. of the Justice Department's annual report guidelines in that it provides an optional, open-ended opportunity for an agency to state any related information that it believes to be relevant to the subject matter.
21See Exec. Order No. 13,392, Sec. 2(b)(v) (explicitly requiring that such descriptions be included both in annual FOIA reports and in FOIA Reference Guides).
22Agencies currently are required under existing Section XI to attach a copy of their regulations to their annual reports; agency improvement plans will be a second attachment, at least for the reports filed in 2007 and 2008.
23It bears reiteration that all agencies should make certain that they meet this statutory deadline of February 1, 2007, without fail. See 5 U.S.C.
§ 552(e)(1)(establishing firm February 1 deadline for completion of annual FOIA reports); see also Exec. Order No. 13,392, Sec. 3(c)(ii) (building upon the existing statutory reporting timetable, as a firm deadline, for executive order reporting purposes).
24Agencies should of course specify the exact time periods for which they are reporting, in both their FY 2006 and their FY 2007 annual reports.
25See Exec. Order No. 13,392, Sec. 3(c)(i) (requiring submission "to the Attorney General and the OMB Director" by this date). These submissions can be made to the Attorney General by electronic transmission to OIP at the following e-mail address: Pamela.A.Maida@usdoj.gov. They can be made to the Director of OMB at FOIAreporting@omb.eop.gov.
26As was mentioned at the governmentwide meeting held on March 8, OIP has established an executive order implementation team of Pamela Maida, Kenneth Hendricks, and Thomas Hitter for this purpose. See also footnote 1 above. Any questions for OMB can be posed to Daniel Costello, in the Information Policy and Technology Branch of OMB's Office of Information and Regulatory Affairs, at (202) 395-7857. Additionally, the Justice Department is planning to hold a special training program for all FOIA Public Liaisons, which has been scheduled for July 11. At this program, it will be urging any agency that has not already done so to conduct an in-house training session on the policies of the executive order for all of its FOIA personnel. (posted 4/27/06)
Go to: Main FOIA Post Page