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 year 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 agency compliance with the Attorney General’s FOIA Guidelines, combining pertinent details described in agency Chief FOIA Officer Reports with key data from agency Annual FOIA Reports. The assessment was designed to provide an overall picture of agency progress under the new FOIA Guidelines. OIP intends to do an assessment again after submission of the 2012 Chief FOIA Officer Reports.
Topics to Be Addressed in 2012 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 2012 Reports are set out below. As was done the last two years, agencies should address the five key areas discussed below in their 2012 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 2012, the five key areas contain new, more targeted elements that should be addressed.
For 2012 there is a new stand-alone reporting requirement that concerns application of the FOIA’s statutory exclusions contained in 5 U.S.C. § 552(c) (2006 & Supp. III 2009). To provide greater transparency on the utilization of these special law enforcement provisions, for the first time ever, OIP is asking agencies to report whether they used an exclusion during Fiscal Year 2011, and if so, to provide the total number of times they did so during that fiscal year.
Lastly, as was done last year, for the 2012 Chief FOIA Officer Reports each agency is asked to include a transparency success story since the filing of the last Report that they would like to highlight.
Format of 2012 Chief FOIA Officer Reports
As was done last year, the 2012 Chief FOIA Officer Reports should provide an overall agency 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 2012 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 2012 Chief FOIA Officer Reports
Agencies must submit their Chief FOIA Officer Reports to OIP for review no later than February 1, 2012. 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 2012, agency Chief FOIA Officer Reports should be posted in final form by March 12, 2012.
If you have any questions regarding your 2012 Chief FOIA Officer Report, you can contact Vanessa Brinkmann, Counsel, Initial Request Staff, Office of Information Policy, Department of Justice, at 202-514-3642, or by using the e-mail noted above.
Content of 2012 Chief FOIA Officer Reports
Time frame for Report
Unless otherwise noted, your 2012 Chief FOIA Officer Report should address agency activities that have occurred since the filing of last year’s Report, which was March 8, 2011, up until the filing of the 2012 Report, which will be March 12, 2012. Thus, the general reporting period for the Chief FOIA Officer Reports is March 2011 to March 2012.
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.
1. Did your agency hold an agency FOIA conference, or otherwise conduct training during this reporting period?
2. 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.
3. Did your agency make any discretionary releases of otherwise exempt information?
4. What exemptions would have covered the information that was released as a matter of discretion?
5. Describe your agency’s process to review records to determine whether discretionary releases are possible.
6. Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.
In Section V.B.(1) of your agency’s Annual FOIA Report, entitled “Disposition of FOIA Requests – All Processed Requests” the first two columns list the “Number of Full Grants” and the “Number of Partial Grants/Partial Denials.” Compare your agency’s 2011 Annual FOIA Report with last year’s Annual FOIA Report, and answer the following questions:
7. Did your agency have an increase in the number of responses where records were released in full?
8. Did your agency have an increase in the number of responses where records were released in part?
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?
- Is there regular interaction between agency FOIA professionals and the Chief FOIA Officer?
- Do your FOIA professionals work with your agency’s Open Government Team?
- Describe the steps your agency has taken to assess 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.
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 2011 to March 2012). 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.
- Has your agency added new material to your website since last year?
- Provide examples of the records, datasets, videos, etc., that have been posted this past year.
- Describe the system your agency uses to routinely identify records that are appropriate for posting.
- Beyond posting new material, is your agency taking steps to make the 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, providing explanatory material, etc.?
- 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 handling FOIA requests. For 2012, the questions have been further refined and now also address different, more innovative aspects of technology use.
Electronic receipt of FOIA requests:
1. Can FOIA requests be made electronically to your agency?
2. If your agency processes requests on a decentralized basis, do all components of your agency receive requests electronically?
Online tracking of FOIA requests:
3. Can a FOIA requester track the status of his/her request electronically?
4. If not, is your agency taking steps to establish this capability?
Use of technology to facilitate processing of requests:
5. 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?
6. 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 2011 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.
- Does your agency utilize a separate track for simple requests?
- If so, for your agency overall, for Fiscal Year 2011, was the average number of days to process simple requests twenty working days or fewer?
- 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 2011 as compared to Fiscal Year 2010. 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 2010 and Fiscal Year 2011 should be used for this section.
- If your agency had a backlog of requests at the close of Fiscal Year 2011, did that backlog decrease as compared with Fiscal Year 2010?
- If your agency had a backlog of administrative appeals in Fiscal Year 2011, did that backlog decrease as compared to Fiscal Year 2010?
- In Fiscal Year 2011, did your agency close the ten oldest requests that were pending as of the end of Fiscal Year 2010?
- In Fiscal Year 2011, did your agency close the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2010?
- 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:
- Was the lack of a reduction in the request backlog a result of an increase in the number of incoming requests?
- Was the lack of a reduction in the request backlog caused by a loss of staff?
- Was the lack of a reduction in the request backlog caused by an increase in the complexity of the requests received?
- What other causes, if any, contributed to the lack of a decrease in the request backlog?
Administrative Appeal Backlog:
- Was the lack of a reduction in the backlog of administrative appeals a result of an increase in the number of incoming appeals?
- Was the lack of a reduction in the appeal backlog caused by a loss of staff?
- Was the lack of a reduction in the appeal backlog caused by in increase in the complexity of the appeals received?
- What other causes, if any, contributed to the lack of a decrease in the appeal backlog?
All agencies should strive to both reduce any existing backlogs or requests and appeals and to improve their timeliness in responding to requests and appeals. Describe the steps your agency is taking to make improvements in those areas. In doing so, answer the following questions and then also include any other steps being taken to reduce backlogs and 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?
- If your agency receives consultations from other agencies, has your agency taken steps to improve the efficiency of the handling of such consultations, such as utilizing IT to share the documents, or establishing guidelines or agreements with other agencies on the handling of particular information to speed up or eliminate the need for consultations?
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 2011?
- If so, what is the total number of times exclusions were invoked?
Spotlight on Success
Out of all the activities undertaken by your agency since March 2011 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.