Guidelines for 2011 Chief FOIA Officer Reports to the Department of Justice
Pursuant to Attorney General Holder's FOIA Guidelines
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 resolve doubts in favor of openness, and to not withhold information based on "speculative or abstract fears."
In addition, the President called on agencies 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. To carry out these responsibilities, the President directed the Attorney General to issue new guidelines governing the FOIA.
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 "fundamental commitment to open government." The Guidelines stress that the FOIA is to be administered with the presumption of openness called for by the President. The Attorney General strongly encouraged agencies to make discretionary disclosures of information. He also directed agencies not to withhold information simply because they may do so legally 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, use of technology, and 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 [their] 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 at their agencies."
The White House, through a memorandum to agency heads sent March 16, 2010, from both the White House Chief of Staff and Counsel to the President, requested that agencies take certain actions "to ensure full implementation of the President's Memorandum on FOIA." Specifically, the March 16, 2010 White House Memorandum asked agencies to ensure that their FOIA guidance and training materials were updated "to include the principles articulated in the President's Memorandum." Second, agencies were asked to assess whether they were "devoting adequate resources to responding to FOIA requests promptly and cooperatively, consistent with the requirements for addressing this Presidential priority."
Chief FOIA Officer Reports
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 President's and Attorney General's FOIA Memoranda. 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 year ahead.
Content and Timing of 2011 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. The guidelines for the 2011 Reports are set out below. While the overall topics to be addressed in the reports remain the same as last year, for 2011 the five key areas contain additional, more targeted elements that should be addressed. All agencies should follow these guidelines in preparing and submitting their 2011 Chief FOIA Officer Reports.
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. The timing for posting the finalized reports has been moved up one week as compared with 2010. For 2011, agency Chief FOIA Officer Reports should be posted in final form by March 8, 2011.
Format of 2011 Chief FOIA Officer Reports
As was done in 2010, agencies should address the five key areas discussed below in their Chief FOIA Officer Reports, specifically: 1) the steps taken to apply the presumption of openness; 2) the steps taken to ensure that there is 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.
For those agencies that process requests on a decentralized basis, rather than organizing the report by component and then reporting on the five key areas for each component, the report should be organized by the five key areas. Then, within the discussion of each key area the data for the various components should be included. That will make it easier to get a picture of how the agency as a whole is addressing each of the five key areas.
A new element has been added for the 2011 Chief FOIA Officer Reports to allow each agency to spotlight a particular success story from the previous year. At the end of each report there is now a section for agencies to include a transparency success story that they would like to highlight.
Content of 2011 Chief FOIA Officer Reports
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.
1. 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.
a. Describe how the President's FOIA Memorandum and the Attorney General's FOIA Guidelines have been publicized throughout your agency.
b. What training has been attended and/or conducted on the new FOIA Guidelines?
c. How has your agency created or modified your internal guidance to reflect the presumption of openness?
d. To what extent has your agency made discretionary releases of otherwise exempt information?
e. What exemptions would have covered the information that was released as a matter of discretion?
f. How does your agency review records to determine whether discretionary releases are possible?
g. Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.
2. Report the extent to which the numbers of requests where records have been released in full and the numbers of requests where records have been released in part has changed from those numbers as reported in your previous year's Annual FOIA Report.
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."
Describe here the steps your agency has taken to ensure that your system for responding to requests is effective and efficient. 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. 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?
- Describe how your agency's FOIA professionals interact with your Open Government Team.
- Describe the steps your agency has taken to assess whether adequate staffing is being devoted to responding to FOIA requests.
- Describe any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively.
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 to increase the amount of material that is available on your agency website, including providing examples of proactive disclosures that have been made since issuance of the new FOIA Guidelines. In doing so, answer the questions listed below and describe any additional steps taken by your agency to make proactive disclosures of information.
a. Has your agency added new material to your agency website since last year?
b. What types of records have been posted?
c. Give examples of the types of records your agency now posts that used to be available only by making a FOIA request for them.
d. What system do you have in place to routinely identify records that are appropriate for posting?
e. How do you utilize social media in disseminating information?
f. Describe any other steps taken to increase proactive disclosures at your agency.
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 agencies reported widespread use of technology in handling FOIA requests. For this section of your Chief FOIA Officer Report for 2011, please answer the following more targeted questions:
- Electronic receipt of FOIA requests:
- What proportion of the components within your agency which receive FOIA requests have the capability to receive such requests electronically?
- To what extent have you increased the number of components doing so since the filing of your last Chief FOIA Officer Report?
- What methods does your agency use to receive requests electronically?
- Electronic tracking of FOIA requests:
- What proportion of components within your agency which receive FOIA requests have the capability to track such requests electronically?
- To what extent have you increased the number of components doing so since the filing of your last Chief FOIA Officer Report?
- What methods does your agency use to track requests electronically?
- Electronic processing of FOIA requests:
- What proportion of components within your agency which receive FOIA requests have the capability to process such requests electronically?
- What methods does your agency use to process requests electronically?
- Electronic preparation of your Annual FOIA Report:
- What type of technology does your agency use to prepare your agency Annual FOIA Report, i.e., specify whether the technology is FOIA-specific or a generic data-processing system.
- If you are not satisfied with your existing system to prepare your Annual FOIA Report, describe the steps you have taken to increase your use of technology for next year.
Steps Taken to Reduce Backlogs and Improve Timeliness in Responding to Requests
Improvements to timeliness in responding to pending FOIA requests and reductions in backlogs are both ongoing agency efforts. The President and the Attorney General have emphasized the importance of improving timeliness in responding to requests. Section XII of your Annual FOIA Report includes figures that show your agency's backlog of pending requests and administrative appeals for the past two fiscal years. You should refer to those numbers when completing this section of your Chief FOIA Officer Report. In this section you should address the following elements.
1. If your agency has a backlog, report here whether that backlog is decreasing. That reduction should be measured in two ways. First, report whether the number of backlogged requests and backlogged administrative appeals that remain pending at the end of the fiscal year decreased or increased, and by how many, when compared with last fiscal year. Second, report whether your agency closed in Fiscal Year 2010 the ten oldest of those pending requests and appeals from Fiscal Year 2009, and if not, report how many of them your agency did close.
2. If there has not been a reduction in the backlog as measured by either of these metrics, describe why that has occurred. In doing so, answer the following questions and then include any other additional explanation:
- Is the backlog increase a result of an increase in the number of incoming requests or appeals?
- Is the backlog increase caused by a loss of staff?
- Is the backlog increase caused by an increase in the complexity of the requests received?
- What other causes, if any, contributed to the increase in backlog?
3. Describe the steps your agency is taking to reduce any backlogs and to improve timeliness in responding to requests and administrative appeals. In doing so answer the following questions and then also include any other steps being taken to improve timeliness.
- Does your agency routinely set goals and monitor the progress of your FOIA caseload?
- Has your agency increased its FOIA staffing?
- Has your agency made IT improvements to increase timeliness?
- Has your agency Chief FOIA Officer been involved in overseeing your agency's capacity to process requests?
Spotlight on Success
Out of all the activities undertaken by your agency in this last year to increase transparency, describe here one success story that you would like to highlight as emblematic of your efforts.
Timing for Submission of 2011 Chief FOIA Officer Reports
In order to appropriately ensure that agency Chief FOIA Officer Reports address all the elements detailed above, each agency must submit a draft of their Chief FOIA Officer Report to OIP for review no later than February 1, 2011. The drafts should be submitted by e-mail to DOJ.OIP.FOIA@usdoj.gov.
Each agency Chief FOIA Officer must then submit a finalized Chief FOIA Officer Report to the Department of Justice by March 8, 2011, to the e-mail address noted above.
Each agency must also post its Chief FOIA Officer Report on its website by March 8, 2011.
Agencies with questions regarding their 2011 Chief FOIA Officer Reports should contact Vanessa Brinkmann at the Department of Justice's Office of Information Policy at (202) 514-3642.