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FOIA Update: Justice Department EFOIA Testimony

FOIA Update
Vol. XIX, No. 3

Justice Department EFOIA Testimony

The following is the testimony of Office of Information and Privacy Co-Director Richard L. Huff, on behalf of the Department of Justice, before the House Subcommittee on Government Management, Information, and Technology, at its hearing regarding the implementation of the Electronic Freedom of Information Act Amendments of 1996 held on June 9, 1998:

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here this morning to address the subject of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1994), as amended by the Electronic Freedom of Information Act Amendments of 1996, which is the principal statute governing public access to Federal Government records and information. This statute, which now has been in effect for more than thirty years, has become an essential part of our democratic system of government--a vital tool used by our citizens to learn about their government's operations and activities.

Attorney General Janet Reno has been strongly committed to the Freedom of Information Act, to its proper implementation, and to the principles of openness in government that it embodies. She has fostered this commitment throughout the Department of Justice and its many component organizations. Under her leadership, we have placed a sustained priority on our responsibility under the FOIA to improve our service to the American public by making available as much government information as possible.

The Freedom of Information Act was strengthened two years ago when Congress passed and President Clinton signed into law the Electronic Freedom of Information Act Amendments of 1996. These amendments -- referred to as "EFOIA" -- brought the FOIA into the electronic information age by treating information maintained by agencies in electronic form in generally the same way as paper records. EFOIA promotes the use of advanced information technology in order to achieve efficient disclosure of information to the public by electronic means.

Briefly, EFOIA addresses electronic record issues, the timeliness of agency responses to FOIA requests, and other procedural matters under the Act. EFOIA requires agencies to search for information in electronic form in response to a FOIA request according to a "reasonable efforts" standard, and it requires agencies to produce information in the particular form or format that a FOIA requester prefers according to that same standard. It requires that records processed for disclosure under the Act that may be the subject of additional FOIA requests be placed in agency reading rooms, and it requires that newly created reading room records be available to the public electronically as well.

EFOIA also addresses the timing of agency responses to FOIA requests and agency backlogs of FOIA requests with provisions that increase the initial time for responding to FOIA requests from 10 to 20 working days; authorize agencies to process FOIA requests in multiple tracks; encourage agencies to negotiate the scope of FOIA requests and response times with requesters; and establish higher standards governing court-ordered extensions of time for FOIA cases in litigation. Another important provision establishes a mechanism for the "expedited processing" of FOIA requests filed by members of the news media. Additionally, EFOIA requires agencies to maintain a FOIA reference guide for use by potential FOIA requesters, and institutes a new reporting scheme for the annual FOIA reports that are filed by all agencies.

Under the Attorney General's leadership, we have worked diligently to implement EFOIA and reduce FOIA backlogs within the Department of Justice. We have revised our FOIA and Privacy Act regulations. We have prepared a FOIA Reference Guide, a user-friendly manual that provides helpful information to the public regarding available resources and specific procedures for making FOIA requests to the Department. It also identifies each component of the Department, its principal missions, and descriptions of the multi-track FOIA processing queues that are used by components. This reference document, which has already been updated once, is available electronically on the Department's FOIA home page. Our FOIA home page -- which can be accessed directly from the Department's home page by hitting the FOIA button -- contains research tools, a listing of the FOIA contacts for all Federal agencies, a direct link to the electronic FOIA sites of other Federal agencies, a listing of the principal FOIA contacts of the Department's components, and a direct link to the components' electronic reading rooms.

In these electronic reading rooms, for example, one can electronically browse traditional reading room materials such as the United States Attorneys' Manual and Bulletins, decisions of the Board of Immigration Appeals, policy statements of the United States Marshals Service, and the Attorney General's Procedures for Lawful, Warrantless Monitoring of Verbal Communications. Additionally, we have available on our web site frequently requested records such as Americans with Disabilities Act settlement agreements, the Office of Intelligence Policy and Review's Annual Foreign Intelligence Surveillance Report, and the Inspector General's executive summary of his report on the FBI's investigation of Aldrich Ames.

In pursuit of EFOIA's goal of reducing backlogs of pending FOIA requests, the Department has made significant progress. Most significant is the progress made by the Federal Bureau of Investigation in reducing its large backlog of FOIA requests, which is being discussed by a representative of the FBI here this morning. I want to emphasize that other components of the Department have also significantly reduced their backlogs. For example, the Drug Enforcement Administration has reduced its backlog from 467 requests to 30; the Bureau of Prisons has reduced its backlog from 705 to 153; the Executive Office for United States Attorneys has reduced its backlog from 614 to 24; and the United States Marshals Service has reduced its backlog from 479 to 5. This demonstrates the Attorney General's strong commitment to FOIA requesters.

Make no mistake, some components of the Department have only moderately reduced their backlogs. The Immigration and Naturalization Service -- which received over 100,000 requests last year -- has reduced its backlog by 16%. Although this is not an inconsiderable reduction, the Attorney General remains greatly concerned about the size of the INS backlog. In an effort to further reduce its backlog, INS recently launched its FOIA Information Processing System, which should streamline its FOIA operations through automation.

Because the administration of the Freedom of Information Act is decentralized throughout the Executive Branch, each individual Federal agency, including the Department of Justice, is responsible for implementing the FOIA and the provisions of EFOIA within it. As you know, the Department of Justice also works to encourage governmentwide compliance with the FOIA, in accordance with subsection (e) of the Act, and it has taken a number of steps to share its expertise to aid other agencies in the implementation of EFOIA. They include the following:

First, upon enactment of EFOIA, the Department disseminated to all agencies, through our FOIA Update publication, detailed discussions of the new statutory provisions and a chart outlining the different effective dates of those provisions. In discussing both the substantive and procedural aspects of EFOIA's implementation, we strongly encouraged all agencies to develop web sites in order to most efficiently meet EFOIA's new electronic availability requirements. We drew particular attention to distinctions between an agency's conventional "paper" reading room and its new "electronic" reading room under EFOIA.

Second, we have addressed a variety of questions about the provisions of EFOIA and its implementation as they have been raised by agency FOIA personnel. We have done so through the Department's FOIA Counselor service, through which we respond to agency questions by telephone. We also have disseminated written guidance on more than two dozen amendment implementation questions through our FOIA Update publication, which is publicly available through our web site. We have published a compilation of implementation guidance points for the ready reference of all agency FOIA personnel, and have conducted several governmentwide and public training sessions on the amendments, including a conference for principal agency FOIA officers to review EFOIA implementation questions. We revised our "Justice Department Guide to the Freedom of Information Act" to address all EFOIA provisions. We added a new section to this "FOIA Guide" dealing with FOIA reading rooms, including electronic reading rooms. On the subject of electronic reading rooms, we have also discussed the development of agency web sites in FOIA Update, pointing to good examples of agency web sites for FOIA purposes.

Third, we issued guidance to all Federal agencies on the preparation and submission of annual FOIA reports under new procedures established by EFOIA. These guidelines, which were developed in consultation with the Office of Management and Budget and disseminated to all Federal agencies prior to the beginning of this fiscal year, provide a uniform approach for all agencies to follow in the compilation and organization of statistics and other information in their annual FOIA reports. They also address the process by which agencies will submit their annual reports to the Department of Justice for public availability through a single web site as of February of next year.

On a governmentwide basis, there appear to have been little or no significant disputes arising between agencies and FOIA requesters regarding the new choice-of-format obligations that the amendments place on agencies. This is likewise so with respect to the new obligations on agencies to conduct electronic searches according to FOIA requesters' specifications. These are the major electronic record provisions of the amendments pertaining to the handling of FOIA requests. Nor do there appear to have been significant difficulties or disagreements regarding use of the new "expedited processing" provision of EFOIA by members of the news media. We continue to encourage agencies to work as cooperatively as possible with all FOIA requesters in matters pertaining to the timing of agency responses to FOIA requests.

To be sure, though, it has been observed that many agencies have had a more difficult time in their development of web sites implementing the electronic availability provisions of EFOIA. This is an area of FOIA administration that is relatively unfamiliar for Federal agencies, and the process of individual agency web site development for the most efficient implementation of EFOIA's electronic availability provisions is a continuing one. To further facilitate this process, the Department is planning to hold a FOIA Officers Conference -- a gathering of the principal FOIA administrative officers of Federal agencies -- next month. At this conference, we plan to review particular points of effective web site development for FOIA purposes and to address any questions that agencies may have on this important subject. The Department will urge all Federal agencies to focus on the importance of their continued efforts in this and other areas of EFOIA's implementation.

In conclusion, the Department of Justice looks forward to continuing to work together with the Subcommittee on matters pertaining to the implementation of the Freedom of Information Act, and I would be pleased to try to answer any question that you or any other Member of the Subcommittee may have on this subject.

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Updated August 13, 2014