On April 27, 2006, the Department of Justice provided guidance to agencies on Section XII of their Annual FOIA Reports. See FOIA Post, “Executive Order 13,392 Implementation Guidance.” Set out below is the text of the memorandum distributed by the Office of Information and Privacy to all Chief FOIA Officers which provides supplemental guidance to be used by agencies in preparing Section XII of their Fiscal Year 2007 Annual FOIA Reports.
To: Agency Chief FOIA Officers
From: Melanie Ann Pustay
Director, Policy and Litigation
Office of Information and Privacy
Department of Justice
Date: October 16, 2007
Subject: Supplemental Guidance for Preparation and Submission of Section XII of Agency Fiscal Year 2007 Annual FOIA Reports
This memorandum provides supplemental guidance to agencies on preparing Section XII of their Fiscal Year 2007 Annual FOIA Reports. All agencies are required to complete Section XII of their Annual FOIA Reports pursuant to this guidance.
Under the 1996 FOIA amendments, all federal agencies are required to prepare annual reports of their FOIA activities at the end of the fiscal year and to submit them to the Attorney General by no later than February 1, in accordance with guidelines issued by the Department of Justice. See 5 U.S.C. § 552(e)(1) (2000 & Supp. IV 2004). Pursuant to Executive Order 13,392, a new section, Section XII, was added to the annual FOIA report last year to account for agency Executive Order implementation activity.
In Section XII, each agency is required to report on its progress made in meeting the milestones and goals of its FOIA Improvement Plan. Although the rest of the annual FOIA report is based on the fiscal year, the reporting period for all but element F of Section XII runs through December 31, 2007. Thus, for the first time, in the up-coming 2007 annual FOIA reports, most agencies will be reporting on a full twelve months of Executive Order implementation activity.
The format and basic requirements for Section XII were established by the Department of Justice last year, see FOIA Post, "Executive Order 13,392 Implementation Guidance" (posted 4/27/06); and agencies included this new section in their annual FOIA reports for Fiscal Year 2006. There are seven elements in Section XII, each designated by the letters A through G. This supplemental guidance provides further detail on those required elements and, significantly, also adds additional reporting requirements and a new template to complete for element F.
All agencies should follow the standard format set forth below for Section XII. Beneath each lettered heading we have provided additional clarifying guidance for completing that element.
SECTION XII GUIDANCE/TEMPLATE
A. Description of supplementation/modification of agency improvement plan
If your agency modified its plan, please provide the date and a description of the modification.
B. Report on agency implementation of its plan, including its performance in meeting milestones, with respect to each improvement area
Report on the successes your agency has achieved in implementing your FOIA Improvement Plan since last year's annual FOIA report. Additionally, if your agency submitted an Updated Status Report for August 1, 2007, you should, where appropriate, report on your agency's progress in meeting the remedial step deadlines set forth in that report.
Begin with a brief summary paragraph on your agency's overall implementation progress for this reporting period. Then provide a narrative description highlighting your agency's most noteworthy accomplishments.
C. Identification and discussion of any deficiency in meeting plan milestones (if applicable)
Identify and account for any failure to meet a milestone or goal established in your FOIA Improvement Plan (i.e., a "deficiency"), that was not fully addressed by the time of your Fiscal Year 2006 annual FOIA report. Deficiencies include those milestones and goals that have fallen due, but remain incomplete, as well as those that were completed after the original due date. This element should also include any deficiencies that might have occurred subsequent to completion of your Updated Status Report that was submitted to the President's Management Council on August 1, 2007. It also should include any deficiency arising out of that Updated Status Report itself, such as proposed remedial steps that remain incomplete, or that were completed after the remedial step deadline.
In addition to identifying each deficiency and giving the original target date for completion, you must describe the steps that have been taken to date, and/or the steps that will be taken in the future, to remedy the deficiency.
Use the four items listed below to address these required elements for each deficiency. For any deficiency that has been remedied, report that fact in response to item number 4. To report on multiple deficiencies, simply repeat and answer these elements for each deficiency.
1. FOIA Improvement Plan area to which the deficient milestone relates.
2. Deficient milestone and the original target date from the FOIA Improvement Plan.
3. Steps taken to correct the deficiency and the dates by which the steps were completed.
4. Future remedial steps and the dates by which the steps will be completed.
D. Additional narrative statement regarding other executive order-related activities (optional)
Optional section where you may provide any additional narrative statement regarding executive order-related activities.
E. Concise descriptions of FOIA exemptions
Provide a brief description of the FOIA exemptions.
F. Additional Statistics
For the Fiscal Year 2007 annual FOIA report, this element has been significantly changed and expanded to make it more informative. This element now has two parts. The first part requires a listing of your agency's ten oldest pending FOIA requests, using the template provided. The second part requires information regarding consultations that your agency receives from other agencies. Many agencies receive significant numbers of in-coming consultations which necessarily consume agency time and resources. Agencies will now report on that FOIA activity in part two of element F, using the template provided.
1. Ten Oldest Pending FOIA Requests
Using the template provided below, please list in the appropriate column labeled by year, each of your ten oldest pending requests as of January 1, 2008. Please list the requests by the date it was received by your agency. (An illustrative example is provided in the template.)
|Requests||July 25||Oct 7||May 1
|Apr 10||Jan 1
Note: If your agency’s tracking system is unable at this time to compute any of these numbers regarding consultations, please indicate that in response to this part of element F. For any statistic that you cannot provide for Fiscal Year 2007, start preparing now to collect this consultation data so that you can report it for Fiscal Year 2008.
a.) Number of Consultations Received, Processed, and Pending
Please provide the number of consultations received, processed, and currently pending, in the appropriate column below. (An illustrative example is provided in the template.)
From Other Agencies
|Consultations Received From Other Agencies That Were Processed by Your Agency
(includes those received prior to FY07)
|Consultations Received From Other Agencies That Were Pending at Your Agency as of October 1, 2007
(includes those received prior to FY07)
b.) Ten Oldest Pending Consultations Received From Other Agencies
Using the template provided below, please list in the appropriate column labeled by year, each of your ten oldest pending consultations received from other agencies as of January 1, 2008. Please list the consultations by the date it was received by your agency. (An example is provided in the template.)
|Consults Received||Dec 5||Feb 19||Sept 12||Oct 7
G. Attachment: Agency Improvement Plan (in current form)
Attach a copy of the current version of your agency's FOIA Improvement Plan.
SUBMITTING THE ANNUAL REPORT
The Office of Information and Privacy (OIP) reviews all agency annual FOIA reports as they are sent to OIP for centralized access on the Department of Justice's FOIA Web site. OIP then contacts individual agencies to discuss and resolve any identified question or discrepancy in its report. Once your agency completes its annual FOIA report for Fiscal Year 2007, it should be submitted for review to OIP through Bertina Adams [Bertina.Adams@usdoj.gov]. All agencies should submit their reports on or before February 1, 2008, the deadline established in the FOIA. For questions about Sections I through XI of the Annual Report, contact Bertina Adams at 202-514-3642. For questions about Section XII, contact Ken Hendricks or Tom Hitter at the same telephone number. (posted 10/17/2007)
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