New Requirements for Agency Annual FOIA Reports
On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, which contains several substantive and procedural amendments to the FOIA, as well as new requirements concerning agency Annual FOIA Reports. The Office of Information Policy (OIP) has prepared a summary of the amendments as well as a redlined version of the statute which shows the changes made by the amendments. As announced on FOIA Post, OIP will be issuing guidance on various aspects of the amendments on a rolling basis. Agencies are encouraged to contact OIP with any questions they might have on the implementation of the new provisions.
The FOIA Improvement Act of 2016 added three new requirements concerning agencies' Annual FOIA Reports. Agencies must:
- Proactively make available the raw data elements used in the creation of their final Annual FOIA Report,
- Include in their Annual FOIA Report the number of times an exclusion was used, and
- Include in their Annual FOIA Report the number of records that were made available for public inspection under subsection (a)(2) of the FOIA (proactive disclosures).
The FOIA Improvement Act of 2016 took effect on the date it was signed, June 30, 2016, and applies to any request made after that date. While that date falls within the middle of the current fiscal year, given the nature of the new requirements connected with Annual FOIA Reports, we anticipate that agencies will be able to both include the two new data elements in their Fiscal Year 2016 Annual FOIA Reports, as well as post their raw data for those reports. The guidance below details how agencies can meet these new reporting obligations, including new instructions on how agencies should provide the additional reporting metrics to OIP during the Fiscal Year 2016 review process. Additionally, to assist agencies in posting their raw data, OIP is providing agencies with a Raw Data Template.
This guidance will also be incorporated into the Department of Justice’s Annual FOIA Report Handbook, which is the primary resource for completing the requirements of the Annual FOIA Report.
Posting the Raw Statistical Data from the Annual FOIA Report
Agency Annual FOIA Reports are made up of the aggregated FOIA metrics for each “principal component of the agency and the agency overall.” In order to put together these aggregate metrics agency FOIA Offices must, either through their case management systems or manually, track certain details about the processing of each request. This is what is referred to as the raw statistical data. Section 8 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, added to the FOIA the requirement that each agency “make the raw statistical data used in its reports available electronically to the public upon request.” The FOIA Improvement Act of 2016 amended this provision to now require agencies to proactively make the raw data from their final, published Annual FOIA Reports available without the need for a request. See 5 U.S.C. § 552(e)(3)(A)-(C) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538.
Specifically, the FOIA states,
[E]ach agency shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be available –
(A) without charge, license, or registration requirement;
(B) in an aggregated, searchable format; and
(C) in a format that may be downloaded in bulk.
To meet this requirement, agencies will need to provide the underlying data elements behind each request, administrative appeal, and consultation received and processed that is used to create the Annual FOIA Report at the conclusion of each fiscal year. This data is used to create the aggregated data tables for Sections IV-VIII, X, and XII.A-XII.C of the Annual FOIA Report, and contains such fields as the date the request or appeal was received, the request or appeal disposition, and the date closed. The Raw Data Template created by OIP contains all of the raw data fields used in creating an agency Annual FOIA Report and is available for agencies to use as a resource in order to meet their obligation to post their raw data.
In order to meet the requirement that this data be provided in an aggregated, searchable format, agencies should post this information in the Comma Separated Value (CSV) file type, which is an open, machine-readable format, and allows the data to be downloadable in bulk.
Agencies should be aware of the following considerations when putting together their raw data and when using this template:
- Data aggregated for consultations in the Annual FOIA Report includes the tracking number, date received, and date closed. While additional data elements may be included in agency case management systems for consultations, because this data is not included in the aggregated Annual FOIA Report it does not appear in the Raw Data Template.
- Data for administrative appeals can be associated with a specific request number or it can be listed in a separate row, depending on the agency's case management system and method of tracking.
- Data for Section IX of the Annual Report, related to personnel and costs, is not included at the raw data level because these data points are not captured at the request-by-request level and often must include calculations that go beyond what can be captured at that level. For example, processing cost information includes overhead costs that are not broken down by request. As noted in the Department of Justice's Annual FOIA Report Handbook, an agency's budget is often the most useful resource for estimating this figure. As such, metrics for this section will be included in the agency’s overall report but are not included in the Raw Data Template.
New Annual FOIA Report Metric: Use of Subsection (c) – Exclusions
The FOIA provides special protection for a narrow category of particularly sensitive law enforcement records. For these three specifically defined categories of records, Congress provided that federal law enforcement agencies "may treat the records as not subject to the requirements of [the FOIA]." 5 U.S.C. § 552(c). These provisions, which are referred to as "exclusions" provide protection in three limited sets of circumstances where publicly acknowledging even the existence of the records could cause harm to law enforcement or national security interests.
Since 2012, the Department of Justice has required agencies to report the number of times they have invoked an exclusion in their Chief FOIA Officer Reports. The FOIA Improvement Act of 2016 amended the FOIA to require that agencies now report this data in their Annual FOIA Report. See 5 U.S.C. § 552(e)(1)(P) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. For Fiscal Year 2016, agencies will need to separately include this data using the Supplemental Annual FOIA Report Template below when submitting their report to OIP for review. OIP will assist agencies in incorporating this information into their final human-readable report. Based on past experience in collecting this data, most agencies do not use exclusions. For those agencies, simply including the number zero by the agency acronym in the supplemental template will be sufficient. For any agency that has invoked an exclusion during the past fiscal year, if the agency is decentralized, it should break the number down by component, and then provide an agency overall total.
- Example 1: An agency processes requests on a decentralized basis with fifteen components. No components invoked an exclusion during the fiscal year. This agency will list its agency name and “0” in the supplemental template.
- Example 2: An agency processes requests on a decentralized basis with fifteen components. Two components invoked exclusions during the fiscal year. This agency will list the two components individually with the number of exclusions invoked to by each component, and then provide an agency overall total in the supplemental template.
New Annual FOIA Report Metric: Number of (a)(2) Records Posted
Subsection (a)(2) of the FOIA requires agencies to proactively make available to the public non-exempt information from certain categories of records without waiting for a specific request to be received. These categories are:
- Final agency opinions and orders rendered in the adjudication of cases,
- Specific policy statements that are not published in the Federal Register,
- Administrative staff manuals and instructions to staff that affect a member of the public, and
- Records that have become or are likely to become the subject of subsequent requests or those records that have been requested three or more times – commonly referred to as frequently requested records.
Since the Electronic FOIA Amendments of 1996, agencies have been routinely posting these documents to their websites, including in their FOIA Libraries. The first three categories are sometimes referred to as the "operational" documents of the agency and are most often posted on the agency's website by program offices without any involvement by the FOIA office. The posting of records in the fourth category – frequently requested records – are primarily handled by the agency's FOIA personnel who typically post such records in the agency’s FOIA Library on the agency’s FOIA web page.
As a result of the FOIA Improvement Act of 2016, agencies are now required to report on the “number of records that were made available for public inspection in an electronic format under subsection (a)(2).” See 5 U.S.C. § 552(e)(1)(Q) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. For Fiscal Year 2016, agencies will need to separately include this data using the Supplemental Annual FOIA Report Template below when submitting their report to OIP for review. OIP will assist agencies in incorporating this information into their final human-readable report.
As indicated above, the posting of records for the first three categories of subsection (a)(2) records (i.e., operational documents) are often done outside the agency's FOIA office, with program offices posting a wide variety of records in various locations throughout an agency’s website. In light of this reality, FOIA offices will necessarily be better equipped to provide more precise numbers for the records that are posted on their agency’s FOIA webpage, which are most often “frequently requested records,” but can include operational records as well. Taking all this into account, agencies will be asked to provide two data points to meet this new reporting requirement. Agencies will be asked to report the number of (a)(2) records posted to the agency’s FOIA webpage and an estimate of the number of (a)(2) records posted by program offices throughout the agency. Specifically, agencies will be asked to provide the following:
- Number of (a)(2) Records Posted by the FOIA Office: Provide the sum of all (a)(2) records posted to your agency's FOIA webpage. This includes (a)(2) records posted in your FOIA Library or anywhere else on your FOIA web page.
- Number of (a)(2) Records Posted by the Program Offices: Provide an estimate of all (a)(2) records posted to the agency’s webpage outside the FOIA office by your agency's program offices. This figure should be formulated by coordinating with the appropriate program offices or resources within your agency that can best help calculate this data point.
This new provision is designed to capture the number of “records” posted by agencies under (a)(2), so both figures should be reported in terms of records posted by the agency.
Procedures for Incorporating New Requirements into Report Clearance Process
Agencies will follow the same process as in previous years to submit their Fiscal Year 2016 Annual FOIA Report to OIP. Using the “DOJ Annual FOIA Report Tool,” agencies will submit their aggregated data to OIP in the XML file format. In addition to the XML data submission, and as noted above, agencies will also submit a completed version of the Supplemental Annual FOIA Report Template or a similarly formatted document that contains the two new data elements outlined above – number of times subsection (c) was invoked and the number of (a)(2) records posted.
Moving forward, OIP will be working to incorporate these two new elements into the Annual FOIA Report Tool so that agencies are interacting with one tool to compile all Annual FOIA Report metrics. In the meantime, as a part of the final human- readable report provided by OIP at the conclusion of this year’s process, OIP will add in formatted tables as a new Section XI that will incorporate the two new metrics, i.e., number of times subsection (c) was invoked and number of (a)(2) records posted, using the information provided by the agency.
OIP’s FOIA Compliance Team will work with agencies to review all data elements and validate their Fiscal Year 2016 Annual FOIA Report. As agencies are working through this process with OIP, any updates to the aggregated data will need to be made in the raw data format to ensure consistency. Accordingly, agencies should work to validate their data at the raw data level prior to submission to OIP. Once the aggregated report is cleared, OIP will provide agencies with their final human- and machine-readable reports. The two versions of this report, along with the raw data file, will need to be posted to the agency’s website.