President Obama’s FOIA Memorandum
On his first full day in office, President Obama demonstrated his commitment to the ideals of transparency and openness by issuing a Memorandum to the heads of all Executive Branch Departments and agencies calling on them to “renew their commitment to the principles embodied in FOIA.” The President directed all agencies to administer the FOIA with a clear presumption in favor of disclosure, to ensure that requests are responded to in “a spirit of cooperation,” that disclosures are made timely, and that modern technology is used to make information available to the public even before a request is made.
Attorney General Holder’s FOIA Guidelines
In accordance with the President’s directive, on March 19, 2009, Attorney General Holder issued new FOIA guidelines which called on all agencies to reaffirm the government’s “commitment to accountability and transparency.” The Attorney General strongly encouraged agencies to make discretionary disclosures of information and to consider making partial disclosures when full disclosures are not possible.
In his FOIA Guidelines, the Attorney General also comprehensively addressed the need for each agency to ensure that it has in place an effective system for responding to requests. The Attorney General stressed the importance of proactive disclosures of information and use of technology, as well as the need to respond to requests promptly. Significantly, in his FOIA Guidelines the Attorney General emphasized that "[e]ach agency must be fully accountable for its administration of the FOIA."
The Attorney General has highlighted the key role played by each agency’s Chief FOIA Officer and emphasized that “[i]mproving FOIA performance requires the[ir] active participation.” Accordingly, the Attorney General directed agency Chief FOIA Officers to review "all aspects of their agencies' FOIA administration" and to report each year to the Department of Justice on the steps taken "to improve FOIA operations and facilitate information disclosure."
Agencies submitted their first Chief FOIA Officer Reports in March 2010 and reported on a wide variety of initiatives, big and small, that had been undertaken across the government to improve transparency in keeping with the Attorney General’s FOIA Guidelines. OIP prepared an extensive summary of the information contained in those reports, and issued guidance to agencies on steps they could take to achieve even greater transparency in the years ahead.
In March 2011, agencies submitted their second Chief FOIA Officer Reports. Building on the initiatives from the preceding years, agencies across the government once again reported that they had taken numerous concrete steps to achieve greater transparency. In 2011, agencies were asked for the first time to highlight particular initiatives that were emblematic of their efforts. OIP compiled and posted a summary of those success stories.
In July 2011, OIP prepared an assessment of the fifteen key agencies' compliance with the Attorney General’s FOIA Guidelines, combining pertinent details described in their Chief FOIA Officer Reports with data from their agency Annual FOIA Reports. The assessment was designed to provide an overall picture of the progress made by the key agencies under the FOIA Guidelines.
In March 2012, agencies submitted their third Chief FOIA Officer Reports. Once again, those reports contained a wealth of initiatives undertaken by agencies to improve their administration of the FOIA. For 2012, OIP prepared another assessment, coupled with a summary of the Chief FOIA Officer Reports, this time expanding the assessment to include all ninety-nine agencies subject to the FOIA in Fiscal Year 2011. In the summary OIP highlighted examples of agency achievements and discussed the results of its review of agencies' Chief FOIA Officer Reports. OIP also provided guidance to agencies for further improvement. Specifically, the guidance advised agencies of the importance of utilizing advanced technology to process requests, the need to employ multiple processing tracks, and the significance of closing their ten oldest pending requests and appeals each year.
OIP intends to do an assessment yet again after submission of the 2013 Chief FOIA Officer Reports.
Topics to Be Addressed in 2013 Chief FOIA Officer Reports
In accordance with the Attorney General’s FOIA Guidelines, OIP is charged with the responsibility for providing guidance to agencies on the timing and content of agency Chief FOIA Officer Reports to the Attorney General. The guidelines for the 2013 Reports are set out below. As was done the last three years, agencies should address the five key areas discussed below in their 2013 Chief FOIA Officer Reports, specifically: 1) the steps taken to apply the presumption of openness; 2) the steps taken to ensure that the agency has an efficient and effective system in place for responding to requests; 3) the steps taken to increase proactive disclosures; 4) the steps taken to improve use of technology; and 5) the steps taken to reduce any backlogs of pending FOIA requests and to improve timeliness in responding to requests.
While the overall topics to be addressed in the reports remain the same, OIP is continuing to modify and update the questions that are asked. For 2013, the five key areas contain a few more targeted elements that should be addressed.
Agencies are also asked to report whether they used any of the FOIA’s statutory exclusions, see 5 U.S.C. § 552(c) (2006 & Supp. IV 2010), during Fiscal Year 2012. To provide greater transparency on the utilization of these special law enforcement provisions, the Department recently issued guidance requiring all agencies to report each year on any exclusion use in their Chief FOIA Officer Reports.
Lastly, for the 2013 Chief FOIA Officer Reports each agency is asked to include a transparency success story since the filing of their last Chief FOIA Officer Report that they would like to highlight. These success stories are compiled by OIP and posted for Sunshine Week each year.
Format of 2013 Chief FOIA Officer Reports
As has been done the last two years, the 2013 Chief FOIA Officer Reports should provide an overall picture of each agency’s activities undertaken pursuant to Attorney General Holder’s FOIA Guidelines. Thus, even for those agencies that process requests on a decentralized basis, by component, the Chief FOIA Officer Report should not be broken down by component. Instead, it should be organized by the five key topical areas. Then, within the discussion of each key area, data and examples from the agency’s various components can be provided. That approach makes it easier to get a picture of how the agency as a whole is addressing all the aspects of the Attorney General’s FOIA Guidelines.
The Guidelines are set up so that they can serve as a template for agencies to follow in preparing their 2013 Chief FOIA Officer Reports. Agencies should answer all the questions and include any additional narrative information to explain all the various steps taken to improve transparency.
Deadlines for Submitting 2013 Chief FOIA Officer Reports
Agencies must submit their Chief FOIA Officer Reports to OIP for review no later than February 4, 2013. The drafts should be submitted by email to DOJ.OIP.FOIA@usdoj.gov. Please use the following text for the subject line of the email: Draft [insert agency name] Chief FOIA Officer Report.
After the reports are reviewed and cleared by OIP, they should be posted on each agency’s website. OIP, in turn, will make all the Chief FOIA Officer Reports available to the public on the Department of Justice’s website. For 2013, agency Chief FOIA Officer Reports should be posted in final form by March 11, 2013, the first day of Sunshine Week 2013.
If you have any questions regarding your 2013 Chief FOIA Officer Report, you can contact Vanessa Brinkmann or Christina Troiani of OIP at 202-514-3642, or by using the e-mail noted above.
Content of 2013 Chief FOIA Officer Reports
Time frame for Report
Unless otherwise noted, your 2013 Chief FOIA Officer Report should address agency activities that have occurred since the filing of last year’s Report, which was March 12, 2012, up until the filing of the 2013 Report, which will be March 11, 2013. Thus, the general reporting period for the Chief FOIA Officer Reports is March 2012 to March 2013.
Section I: Steps Taken to Apply the Presumption of Openness
The guiding principle underlying the President's FOIA Memorandum and the Attorney General's FOIA Guidelines is the presumption of openness.
Describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. To do so, you should answer the questions listed below and then include any additional information you would like to describe how your agency is working to apply the presumption of openness.
- Did your agency hold an agency FOIA conference, or otherwise conduct training during this reporting period? Did your FOIA professionals attend any FOIA training, such as that provided by the Department of Justice?
In his 2009 FOIA Guidelines, the Attorney General strongly encouraged agencies to make discretionary releases of information even when the information might be technically exempt from disclosure under the FOIA. OIP encourages agencies to make such discretionary releases whenever there is no foreseeable harm from release.
- Did your agency make any discretionary releases of otherwise exempt information?
- What exemptions would have covered the information that was released as a matter of discretion?
- Provide a narrative description, or some examples of, the types of information that your agency released as a matter of discretion.
- Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.
Section II: Steps Taken to Ensure that Your Agency
Has an Effective System in Place for Responding to Requests
As the Attorney General emphasized in his FOIA Guidelines, "[a]pplication of the proper disclosure standard is only one part of ensuring transparency. Open government requires not just a presumption of disclosure, but also an effective system for responding to FOIA requests."
This section should include a discussion of how your agency has addressed the key roles played by the broad spectrum of agency personnel who work with FOIA professionals in responding to requests, including, in particular, steps taken to ensure that FOIA professionals have sufficient IT support.
Describe here the steps your agency has taken to ensure that its system for responding to requests is effective and efficient. To do so, answer the questions below and then include any additional information that you would like to describe how your agency ensures that your FOIA system is efficient and effective.
- Do FOIA professionals within your agency have sufficient IT support?
- Do your FOIA professionals work with your agency’s Open Government Team?
- Has your agency assessed whether adequate staffing is being devoted to FOIA administration?
- Describe any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively, such as conducting self-assessments to find greater efficiencies, improving search processes, streamlining consultations, eliminating redundancy, etc.
Section III: Steps Taken to Increase Proactive Disclosures
Both the President and Attorney General focused on the need for agencies to work proactively to post information online without waiting for individual requests to be received.
Describe here the steps your agency has taken both to increase the amount of material that is available on your agency website, and the usability of such information, including providing examples of proactive disclosures that have been made during this past reporting period (i.e., from March 2012 to March 2013). In doing so, answer the questions listed below and describe any additional steps taken by your agency to make and improve proactive disclosures of information.
- Provide examples of material that your agency has posted this past year.
- Beyond posting new material, is your agency taking steps to make the posted information more useful to the public, especially to the community of individuals who regularly access your agency’s website, such as soliciting feedback on the content and presentation of the posted material, improving search capabilities on the site, creating mobile applications, providing explanatory material, etc.?
- If so, provide examples of such improvements.
- Describe any other steps taken to increase proactive disclosures at your agency.
Section IV: Steps Taken to Greater Utilize Technology
A key component of the President's FOIA Memorandum was the direction to "use modern technology to inform citizens about what is known and done by their Government." In addition to using the internet to make proactive disclosures, agencies should also be exploring ways to utilize technology in responding to requests. In 2010 and 2011, agencies reported widespread use of technology in receiving and tracking FOIA requests and preparing agency Annual FOIA Reports. For 2013, as we did in 2012, the questions have been further refined and now also address different, more innovative aspects of technology use.
Electronic receipt of FOIA requests :
- Can FOIA requests be made electronically to your agency?
- If your agency is decentralized, can FOIA requests be made electronically to all components of your agency?
Online tracking of FOIA requests:
- Can a FOIA requester track the status of his/her request electronically?
- If so, describe the information that is provided to the requester through the tracking system. For example, some tracking systems might tell the requester whether the request is "open" or "closed," while others will provide further details to the requester throughout the course of the processing, such as "search commenced" or "documents currently in review. "List the specific types of information that are available through your agency's tracking system.
- In particular, does your agency tracking system provide the requester with an estimated date of completion for his or her request?
- If your agency does not provide online tracking of requests, is your agency taking steps to establish this capability?
Use of technology to facilitate processing of requests:
- Beyond using technology to redact documents, is your agency taking steps to utilize more advanced technology to facilitate overall FOIA efficiency, such as improving record search capabilities, utilizing document sharing platforms for consultations and referrals, or employing software that can sort and de-duplicate documents?
- If so, describe the technological improvements being made.
Section V: Steps Taken to Improve Timeliness in
Responding to Requests and Reduce Backlogs
The President and the Attorney General have emphasized the importance of improving timeliness in responding to requests. This section addresses both time limits and backlog reduction. Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests and appeals. For the figures required in this Section, please use those contained in the specified sections of your agency’s 2012 Annual FOIA Report.
- Section VII.A of your agency’s Annual FOIA Report, entitled “FOIA Requests – Response Time for All Processed Requests,” includes figures that show your agency's average response times for processed requests. For agencies utilizing a multi-track system to process requests, there is a category for “simple” requests, which are those requests that are placed in the agency’s fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested. If your agency does not utilize a separate track for processing simple requests, answer the question below using the figure provided in your report for your non-expedited requests.
a. Does your agency utilize a separate track for simple requests?
b. If so, for your agency overall, for Fiscal Year 2012, was the average number of days to process simple requests twenty working days or fewer?
c. If your agency does not track simple requests separately, was the average number of days to process non- expedited requests twenty working days or fewer?
- Sections XII.D.(2) and XII.E.(2) of your agency’s Annual FOIA Report, entitled “Comparison of Numbers of Requests/Appeals from Previous and Current Annual Report – Backlogged Requests/Appeals,” show the numbers of any backlog of pending requests or pending appeals from Fiscal Year 2012 as compared to Fiscal Year 2011. You should refer to those numbers when completing this section of your Chief FOIA Officer Report. In addition, Section VII.E, entitled “Pending Requests – Ten Oldest Pending Requests,” and Section VI.C.(5), entitled “Ten Oldest Pending Administrative Appeals,” from both Fiscal Year 2011 and Fiscal Year 2012 should be used for this section.
a. If your agency had a backlog of requests at the close of Fiscal Year 2012, did that backlog decrease as compared with Fiscal Year 2011?
b. If your agency had a backlog of administrative appeals in Fiscal Year 2012, did that backlog decrease as compared to Fiscal Year 2011?
c. In Fiscal Year 2012, did your agency close the ten oldest requests that were pending as of the end of Fiscal Year 2011?
d. In Fiscal Year 2012, did your agency close the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2011?
- If you answered “no” to any of the above questions, describe why that has occurred. In doing so, answer the following questions then include any additional explanation:
a. Was the lack of a reduction in the request backlog a result of an increase in the number of incoming requests?
b. Was the lack of a reduction in the request backlog caused by a loss of staff?
c. Was the lack of a reduction in the request backlog caused by an increase in the complexity of the requests received?
d. What other causes, if any, contributed to the lack of a decrease in the request backlog?
Administrative Appeal Backlog:
a. Was the lack of a reduction in the backlog of administrative appeals a result of an increase in the number of incoming appeals?
b. Was the lack of a reduction in the appeal backlog caused by a loss of staff?
c. Was the lack of a reduction in the appeal backlog caused by an increase in the complexity of the appeals received?
d. What other causes, if any, contributed to the lack of a decrease in the appeal backlog?
- OIP has issued guidance encouraging agencies to make interim releases whenever they are working on requests that involve a voluminous amount of material or require searches in multiple locations. By providing rolling releases to requesters agencies facilitate access to the requested information. If your agency had a backlog in Fiscal Year 2012, please provide an estimate of the number of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.
Use of FOIA’s Law Enforcement “Exclusions”
In order to increase transparency regarding the use of the FOIA’s statutory law enforcement exclusions, which authorize agencies under certain exceptional circumstances to “treat the records as not subject to the requirements of [the FOIA],” 5 U.S.C. § 552(c)(1), (2), (3), please answer the following questions:
- Did your agency invoke a statutory exclusion during Fiscal Year 2012?
- If so, what was the total number of times exclusions were invoked?
Spotlight on Success
Out of all the activities undertaken by your agency since March 2012 to increase transparency and improve FOIA administration, describe here one success story that you would like to highlight as emblematic of your agency’s efforts. The success story can come from any one of the five key areas.