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 and 2013, agencies submitted their third and fourth Chief FOIA Officer Reports, which continued to provide a wealth of detail about initiatives undertaken by agencies to improve their administration of the FOIA. In each of those years, OIP prepared a comprehensive assessment expanded to include all ninety-nine agencies subject to the FOIA in Fiscal Years 2011 and 2012, coupled with a summary of all the agency Chief FOIA Officer Reports. In these summaries OIP highlighted examples of agency achievements and discussed the results of its review of agencies' Chief FOIA Officer Reports. Along with the summary and assessment issued in 2012 and 2013, OIP also provided guidance to agencies for further improvement. Specifically, in 2012 OIP's 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. In 2013, OIP's guidance advised agencies to focus on providing quality FOIA training to staff, improving processing times for simple track requests and once again addressed the need for agencies to continue to make it a priority to close their ten oldest pending requests, appeals and consultations every year.
OIP intends to do an assessment yet again after submission of the 2014 Chief FOIA Officer Reports.
Topics to Be Addressed in 2014 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 2014 Reports are set out below. As was done the last four years, agencies should address the five key areas discussed below in their 2014 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, for 2014 OIP has once again modified and updated the questions that are asked. In the course of planning for these guidelines OIP met with representatives of civil society and has taken their input into account.
As agencies continue to make improvements in their FOIA operations it is important that the Chief FOIA Officer Reports reflect the more advanced steps agencies are taking to apply the Attorney General's FOIA Guidelines. At the same time, it is also important that the Chief FOIA Officer Reports address those areas where agencies need to improve. As a result, the 2014 Guidelines for Chief FOIA Officer Reports include several new requirements that agencies provide plans for addressing certain goals, such as ensuring that training is provided to all FOIA professionals, that quarterly reporting is timely posted, that FOIA professionals are being converted to the new Government Information Specialist job series, that expedited processing requests are adjudicated within ten calendar days, that the “ten oldest” requests, appeals, and consultations are closed each fiscal year, and that significant request backlogs are reduced.
As is now customary, agencies are being 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 2013. To provide greater transparency on the utilization of these special law enforcement provisions, the Department issued guidance in 2012 requiring all agencies to report each year in their Chief FOIA Officer Reports whether they used an exclusion and, if so, how many times, during the preceding fiscal year.
Lastly, for the 2014 Chief FOIA Officer Reports each agency is asked to include at least one transparency success story from the past reporting period that they would like to highlight. These success stories are compiled by OIP and highlighted each year in connection with Sunshine Week.
Format of 2014 Chief FOIA Officer Reports
As has been done the last three years, the 2014 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 2014 Chief FOIA Officer Reports. Agencies must answer all the questions and include any additional narrative information to explain the various steps they have taken to improve transparency. As mentioned above, for some areas, depending on the agency’s answer, there might be a need to provide a plan for future action to address an area in need of improvement.
Assessing Agency Progress in 2014
For the 2014 assessment of agency progress OIP intends to expand its scoring system from the three stoplight colors (green, yellow, and red) used in previous assessments to five scores. For each agency OIP will also assess a score for each topical area as well as an overall score for the agency. These changes will allow more differentiation to be made and should enhance the value of the assessment. Because the answers provided in the Chief FOIA Officer Reports form the basis for much of the assessment, agencies are encouraged to provide any additional information that explains the reason for a given answer, when appropriate.
Deadlines for Submitting 2014 Chief FOIA Officer Reports
The fifteen Federal Departments must submit their Chief FOIA Officer Reports to OIP for review no later than January 17, 2014.
All other agencies must submit their Chief FOIA Officer Reports to OIP for review no later than February 3, 2014.
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 2014, agency Chief FOIA Officer Reports should be posted in final form by no later than March 17, 2014.
If you have any questions regarding your 2014 Chief FOIA Officer Report, you can contact Bobak Talebian, Jacob Bishop-Green, or Bertina Adams of OIP at 202-514-3642, or by using the e-mail noted above.
Time frame for Report
Unless otherwise noted, your 2014 Chief FOIA Officer Report should address agency activities that have occurred since the filing of last year’s Report, which was March 11, 2013, up until the filing of the 2014 Report, which will be March 10, 2014. Thus, the general reporting period for the Chief FOIA Officer Reports is March 2013 to March 2014.
Content of 2014 Chief FOIA Officer Reports
Name and Title of your Agency's Chief FOIA Officer:
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?
- If so, please provide the number of conferences or trainings held, a brief description of the topics covered, and an estimate of the number of participants from your agency who were in attendance.
- Did your FOIA professionals attend any FOIA training during the reporting period such as that provided by the Department of Justice?
- Provide an estimate of the percentage of your FOIA professionals who attended substantive FOIA training during this reporting period.
- OIP has issued guidance that every agency should make core, substantive FOIA training available to all their FOIA professionals at least once each year. Provide your agency’s plan for ensuring that such training is offered to all agency FOIA professionals by March 2015. Your plan should anticipate an upcoming reporting requirement for your 2015 Chief FOIA Officer Reports that will ask whether all agency FOIA professionals attended substantive FOIA training in the past year.
- Did your FOIA professionals engage in any outreach and dialogue with the requester community or open government groups regarding your administration of the FOIA? If so, please briefly discuss that engagement.
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.
- Does your agency have a formal process in place to review records for discretionary release? If so, please briefly describe this process. If your agency is decentralized, please specify whether all components at your agency have a process in place for making discretionary releases.
- During the reporting period 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.
- If your agency was not able to make any discretionary releases of information, please explain why.
- Did your agency post all of the required quarterly FOIA reports for Fiscal Year 2013? If not, please explain why not and what your plan is for ensuring that such reporting is successfully accomplished for Fiscal Year 2014.
- Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied. If any of these initiatives are online, please provide links in your description.
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." It is essential that agencies effectively manage their FOIA program.
Describe here the steps your agency has taken to ensure that your management of your FOIA program 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.
During Sunshine Week 2012 OPM announced the creation of a new job series entitled the Government Information Series, to address the work performed by FOIA and Privacy Act professionals. Creation of this distinct job series was a key element in recognizing the professional nature of their work.
- Has your agency converted all of its FOIA professionals to the new Government Information Specialist job series?
- If not, what proportion of personnel has been converted to the new job series?
- If not, what is your plan to ensure that all FOIA professionals’ position descriptions are converted?
- For Fiscal Year 2013 did your agency maintain an average of ten or less calendar days to adjudicate requests for expedited processing? If not, describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.
- Has your agency taken any steps to make the handling of consultations and referrals more efficient and effective, such as entering into agreements with other agencies or components on how to handle certain categories or types of records involving shared equities so as to avoid the need for a consultation or referral altogether, or otherwise implementing procedures that speed up or eliminate the need for consultations. If so, please describe those steps.
- Do you use e-mail or other electronic means to communicate with requesters when feasible?
- Does your agency notify requesters of the mediation services offered by the Office of Government Information Services (OGIS) at NARA?
- 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, 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 2013 to March 2014). 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.
- Do your FOIA professionals have a system in place to identify records for proactive disclosures?
- If so, describe the system that is in place.
- Provide examples of material that your agency has posted this past reporting period, including links to where this material can be found online.
Making Posted Material More Useful:
- 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 posted material, improving search capabilities on the site, posting material in open formats, making information available through mobile applications, providing explanatory material, etc.?
- If so, provide examples of such improvements.
- Did your agency use any means to publicize or highlight important proactive disclosures for public awareness? If so, was social media utilized?
- Has your agency encountered challenges that make it difficult to post records you otherwise would like to post? If so, please briefly explain what those challenges are.
- 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. Over the past several years agencies have reported widespread use of technology in receiving and tracking FOIA requests and preparing agency Annual FOIA Reports. For 2014, as we have done over the past years, the questions have been further refined and now also address different, more innovative aspects of technology use.
Online tracking of FOIA requests:
- Can a FOIA requester track the status of his/her request electronically?
- If yes, how is this tracking function provided to the public? For example, is it being done through regularly updated FOIA logs, online portals, or other mediums?
- 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/her request?
- If your agency does not provide online tracking of requests, is your agency taking steps to establish this capability? If not, please explain why.
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.
- Are there additional technological tools that would be helpful to achieving further efficiencies in your agency’s FOIA program?
Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reducing 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, appeals, and consultations. For the figures required in this Section, please use those contained in the specified sections of your agency’s 2013 Annual FOIA Report and, when applicable, your agency’s 2012 Annual FOIA Report.
Simple Track Requests:
- 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.
- Does your agency utilize a separate track for simple requests?
- If so, for your agency overall, for Fiscal Year 2013, 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?
Backlogs and “Ten Oldest” Requests, Appeals and Consultations:
- Section XII.A of your agency’s Annual FOIA Report, entitled “Backlogs of FOIA Requests and Administrative Appeals” shows the numbers of any backlogged requests or appeals from the fiscal year. Section VII.E, entitled “Pending Requests – Ten Oldest Pending Requests,” Section VI.C.(5), entitled “Ten Oldest Pending Administrative Appeals,” and Section XII.C., entitled "Consultations on FOIA Requests – Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2012 and Fiscal Year 2013 when completing this section of your Chief FOIA Officer Report.
- If your agency had a backlog of requests at the close of Fiscal Year 2013, did that backlog decrease as compared with Fiscal Year 2012?
- If your agency had a backlog of administrative appeals in Fiscal Year 2013, did that backlog decrease as compared to Fiscal Year 2012?
Ten Oldest Requests
- In Fiscal Year 2013, did your agency close the ten oldest requests that were pending as of the end of Fiscal Year 2012?
- If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2012 Annual FOIA Report. If you had less than ten total oldest requests to close, please indicate that. For example, if you only had seven requests listed as part of your "ten oldest" in Section VII.E. and you closed two of them, you should note that you closed two out of seven “oldest” requests.
Ten Oldest Appeals
- In Fiscal Year 2013, did your agency close the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2012?
- If no, please provide the number of these appeals your agency was able to close, as well as the number of appeals your agency had in Section VI.C.(5) of your Fiscal Year 2012 Annual FOIA Report.
Ten Oldest Consultations
- In Fiscal Year 2013, did your agency close the ten oldest consultations received by your agency and pending as of the end of Fiscal Year 2012?
- If no, please provide the number of these consultations your agency did close, as well as the number of pending consultations your agency listed in Section XII.C. of your Fiscal Year 2012 Annual FOIA Report.
Reasons for Any Backlogs:
- If you answered “no” to any of the questions in item 2 above, describe why your agency was not able to reduce backlogs and/or close the ten oldest pending requests, appeals, and consultations. In doing so, answer the following questions then include any additional explanation:
Request and/or Appeal Backlog
- Was the lack of a reduction in the request and/or appeal backlog a result of an increase in the number of incoming requests or appeals?
- Was the lack of a reduction in the request and/or appeal backlog caused by a loss of staff?
- Was the lack of a reduction in the request and/or appeal 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 and/or appeal backlog?
“Ten oldest” Not Closed
- Briefly explain the obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2012.
- If your agency was unable to close any of its ten oldest requests or appeals because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending.
Plans for Closing of Ten Oldest Pending Requests, Appeals, and Consultations and Reducing Backlogs:
Given the importance of these milestones, it is critical that Chief FOIA Officers assess the causes for not achieving success and create plans to address them.
- If your agency did not close its ten oldest pending requests, appeals, and consultations, please provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2014.
- If your agency had a backlog of more than 1000 pending requests and did not reduce that backlog in Fiscal Year 2013, provide your agency’s plan for achieving backlog reduction in the year ahead.
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.
- Does your agency have a system in place to provide interim responses to requesters when appropriate?
- If your agency had a backlog in Fiscal Year 2013, please provide an estimate of the number or percentage 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 2013?
- 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 2013 to increase transparency and improve FOIA administration, please briefly describe here at least 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. As noted above, these agency success stories will be highlighted during Sunshine Week by OIP. To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page. The success story is designed to be a quick summary of a key achievement. A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.