File 025849

Images

Text

Office of Government Information Services
Building a Bridge Between FOIA
Requesters & Federal Agencies
2014 Report for FY 2013
2013
Office of Government
Information Services
Building a Bridge Between
FOIA Requesters &
Federal Agencies
2014 Report for FY 2013
Cover image: Orhan Cam/Shutterstock.com
Memorial Bridge, Washington, DC
Table of Contents
1
Message from
the Director
I
am pleased to present the fourth annual report from the Office of
Government Information Services (OGIS) detailing our fiscal year (FY)
2013 activities. We are extremely proud of all that OGIS has accomplished
in our four years of operation. We have put Congress’s novel idea—
applying Alternative Dispute Resolution techniques to an often highly
adversarial process—into action. We have assisted thousands of Freedom
of Information Act (FOIA) requesters from across the country and around
the globe, along with dozens of agencies, in resolving disputes, some of
which would have otherwise led to costly litigation. We have worked with
agencies to better fulfill their responsibility to provide good customer
service, resolve disputes with FOIA requesters, and promote compliance
with FOIA.
Demand for OGIS’s services is high. Requests for assistance in resolving
FOIA disputes greeted me the morning the office opened four years ago. In
FY 2013, the number of incoming cases jumped 40 percent from the previous
year to more than 500 cases; at the same time, we closed nearly 500 cases—
also a 40-percent increase from the previous year—and handled hundreds of
inquiries by telephone and email.
Much work remains for our innovative program. While we have carried out
Congress’s mandate to review Federal agency FOIA policies, procedures, and
compliance in several ways, we would like to implement a more robust review
program. OGIS’s mission is broad, and like many government programs, we
2
must make difficult choices about how we carry out our mandate as demand
for our services increases.
We look forward to building on our first four years and continuing our
service of helping anyone—requester or agency—with any part of the FOIA
process and improving the administration of FOIA.
You may notice that this report is slimmer than our first three reports. Please
visit our blog, The FOIA Ombudsman: Information and Advice, where you’ll
find many of the items we included in past reports.
Sincerely,
Miriam Nisbet
3
Resolving
Disputes
OGIS’s mediation services to resolve Freedom of Information Act
(FOIA) disputes, as mandated by Congress, comprised the bulk
of OGIS’s work in FY 2013, as in the previous three years. Requests for
assistance awaited Director Nisbet when she opened the Office, and early
on, OGIS decided that demand for mediation services dictated that the
Office commit to assisting
anyone asking for help with
FOIA.
From the start, OGIS has
served as a confidential and
informal information resource,
communications
channel,
complaint handler, and dispute
resolver. OGIS strives to be an
advocate not for the requester or
the agency, but for an effective
FOIA process that works as
intended.
In its first three years, OGIS
handled an average of roughly
350 cases a year. The number
of requesters seeking OGIS
OGIS’s caseload soared above 500 for the
first time in FY 2013. (NARA Identifier
6443896)
4
assistance swelled in FY 2013, the Office’s fourth year. OGIS opened 508 cases, a
40-percent increase from FY 2012 when OGIS opened 361 cases. OGIS also handled
more than 230 inquiries—telephone calls and emails yielding quick responses that
did not require cases be opened—in FY 2013. OGIS closed 497 cases in FY 2013, a
40-percent increase from FY 2012 when the Office closed 354 cases.
OGIS cases involve issues that arise at various points in the FOIA process.
OGIS encourages requesters and agencies to communicate
through whatever means work best for them. (NARA Identifier
6479577)
In some cases, requesters attempt to learn
a request’s estimated date of completion as
required by FOIA, 5 U.S.C. § 552(a)(7)(B)
(ii), but are not able to obtain it from an
agency. In other cases, requesters disagree
with an agency’s application of FOIA
exemptions or an agency’s decision with
regard to FOIA fees. In all cases, there
is some issue that benefits from OGISfacilitated
communication between the
requester and the agency.
OGIS’s mediation services also include
providing Dispute Resolution Skills
training to agency FOIA professionals.
The goal of training is not to turn agency
2007
December 14
U.S. Senate passes by unanimous consent
the Openness Promotes Effectiveness in
our National (OPEN) Government Act of
2007, which includes a provision creating
the Office of Government Information
Services (OGIS) at the National Archives
and Records Administration (NARA)
December 18
U.S. House passes the OPEN Government
Act of 2007 by a voice vote
December 31
President George
W. Bush signs the
OPEN Government
Act of 2007; it
becomes Public
Law 110 -175
Patent drawing for watch
case (NARA Identifier
7451700)
5
FOIA professionals into mediators, but to give them Alternative Dispute
Resolution tools to incorporate into their FOIA work and help them
comply with the statutory requirement that FOIA Public Liaisons assist
in resolving disputes, 5 U.S.C. §§ 552(a)(6)(B)(ii) and 552(l). In FY 2013,
OGIS offered three sessions of Dispute Resolution Skills training—two
sessions in December 2012 and May 2013 that included participants from
several agencies and a Department of Labor–specific session in June 2013.
600
OGIS’s Caseload
500
400
300
200
Cases opened
Cases closed
100
0
FY 2009–10 FY 2011 FY 2012 FY 2013
2009
September 8
NARA opens OGIS, with Miriam Nisbet as its
first director
September 9
OGIS opens its first case, which involves a delay
September 30
Director Nisbet testifies before the Senate
Judiciary Committee hearing on “Advancing
Freedom of Information in the New Era of
Responsibility”
October 13
The first staff member joins OGIS
October 20
The OGIS website goes live
October 26
OGIS’s staff increases to three
November 10
OGIS adds a case-tracking log to its website
allowing customers to check the status of their
requests for OGIS assistance
6
Top 10 departments & agencies
involved in FY 2013 OGIS cases
160
140
120
100
80
60
40
20
0
139
These agencies
inform requesters
104
about OGIS
services.
32 29 27 19 19 14 14 11
28% 21% 6% 6% 5% 4% 4% 3% 3% 2%
DOJ
DHS
Treasury
VA
USPS
DoD
HHS
State
NARA
CIA
2009 2010
November 22
OGIS’s staff increases to four
December 6
OGIS’s staff increases to five
December 7
OGIS and the Department of Justice’s
Office of Information Policy (OIP) co-host a
meeting for FOIA Public Liaisons to discuss
recent changes to FOIA
January 21
OGIS opens its 50th case
February
OGIS joins other agency representatives to
discuss the feasibility of a multiagency FOIA portal
February 7–10
OGIS staff present at the American Society of Access
Professionals (ASAP) National Training Conference
March 1
OGIS’s staff increases to six
7
OGIS FY 2013 cases by exemption
Exemption 1
Exemption 2
Exemption 3
Exemption 4
Exemption 5
Exemption 6
Exemption 7(A)
Exemption 7(B)
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7(F)
Exemption 8
Exemption 9
0 10 20 30 40 50 60 70 80
2010
March 9
OGIS opens its 100th case
March 15–19
OGIS celebrates Sunshine Week
March 18
Director Nisbet testifies before the House
Oversight and Government Reform’s Information
Policy, Census, and National Archives
Subcommittee hearing on “Administration of the
Freedom of Information Act: Current Trends”
March 23
OGIS holds its first training session for FOIA Public
Liaisons in collaboration with the Federal Energy
Regulatory Commission (FERC) and the Department
of Justice’s Office of Information Policy (OIP)
April 18–23
Director Nisbet represents OGIS at the Chilean
Council for Transparency
April 29
OGIS opens its 200th case
8
OGIS 2013 cases by category
117 (23%)
15 (3%)
227 (46%)
138 (28%)
Denial
Delay
General Assistance
Fees
2010
May 10
OGIS’s staff
increases to its
current size of
seven
July 14
OGIS opens its
300th case
August 24
Director Nisbet
represents OGIS at
the 7th National Transparency Week
Conference in Mexico City, Mexico
December 6
Director Nisbet participates in the
Council of Governmental Ethics Laws
annual conference
OGIS opens its 500th case
December 10
OGIS submits its first comments on
agency FOIA regulations
Sailor adjusts clock. (NARA Identifier 6422494)
9
When in administrative process requesters
came to OGIS (FY 2013 cases)
Pre-FOIA 5
These cases
typically involve
delays.
Request filed
140
Release determination 49
Appeal filed 44
These cases
typically involve
denials.
Final agency decision 222
0 50 100 150 200 250
2011
March 11
OGIS launches its blog “The FOIA
Ombudsman: Information and Advice”
March 14–18
OGIS celebrates Sunshine Week
March 15
Director Nisbet testifies before the Senate
Judiciary Committee hearing on “The Freedom
of Information Act: Ensuring Transparency and
Accountability in the Digital Age”
March 17
Director Nisbet testifies before the House Oversight
and Government Reform Committee hearing on
“The Freedom of Information Act: Crowd-Sourcing
Government Oversight”
July 7–8
Director Nisbet presents at the United Nations
Educational, Scientific and Cultural Organization
(UNESCO) Seminar on Transparency in Brasilia,
Brazil
10
Measuring
Success
From OGIS’s start, the Office has faced enormous challenges in measuring
its success. While litigation typically results in judgment for one party
or the other, the success of mediation services depends on compromise by
the parties, whose participation is voluntary. Experience has taught us that
OGIS’s success may not rest in the outcome of mediation services, but in the
process of providing mediation services.
Mediation is a voluntary alternative dispute resolution process in which a
neutral third party, a mediator, assists disputing parties in reaching a mutually
agreeable resolution. Mediators do not direct outcomes or resolutions to
a dispute; the outcome of mediation depends on the extent to which the
parties choose to engage in the process and themselves agree to an outcome.
There may not necessarily be a “correct” answer; rather, the disputing parties
may choose to agree to a compromise that both parties can accept, or they
may choose to not compromise at all. As such, the outcome of mediation is
not an effective way to determine the success of OGIS’s mediation services
because OGIS does not determine the outcome. However, OGIS does control
2011
August
OGIS facilitators become certified in Federal
workplace mediation by Northern Virginia
Mediation Service
September
Construction of multiagency FOIA portal begins
October 2–6
Director Nisbet presents at the International
Conference of Information Commissioners in
Ottawa, Canada
November 28
OGIS launches its online case management
system, the OGIS Access System
December 7–8
OGIS staff presents at the American Society of
Access Professionals Annual Symposium
11
the steps required to administer
mediation itself, and the Office’s
success in mediation services
can be more uniformly evaluated
in that regard. The challenge of
evaluating success of mediation
services is not unique to OGIS
or to the government—other
ombudsmen struggle with the
same issue.
The Government Accountability
Office (GAO), which conducted
an audit of OGIS in FY 2013,
recommended that OGIS establish
performance measures and
goals for its mediation services
that define the Office’s success
in handling mediation cases.
One challenge OGIS faces is measuring its success.
(NARA Identifier 6600378)
The GAO recommendation, coupled with OGIS’s experience providing
mediation services, will inform OGIS’s FY 2014 creation of performance
measures and goals for the work OGIS does. That multifaceted work
2012
March 12
Archivist of the United States David Ferriero
joins Director Nisbet in welcoming guests to the
National Archives to view the original Freedom of
Information Act in observation of Sunshine Week
March 13
Director Nisbet testifies before the Senate
Judiciary Committee on “The Freedom
of Information Act: Safeguarding Critical
Infrastructure and the Public’s Right to Know”
March 21
Director Nisbet testifies before the House
Oversight and Government Reform’s Technology,
Information Policy, Intergovernmental Relations
and Procurement Reform Subcommittee
hearing on “The Freedom of Information Act and
Information Technology”
March 21–23
OGIS staff presents at the American Society of
Access Professionals National Training Conference
12
includes interacting with requester and agency customers, and providing
assistance, from answering basic questions about FOIA to facilitating
communication between disputing parties to convening multiple agencies
working on the same or similar requests.
2012
May 24
OGIS opens its 1,000th case
August 2–3
OGIS staff presents at the American Society of
Access Professionals Summer School training
September 11
The Inspector General at the National Archives and
Records Administration releases a report on OGIS
as part of its routine examination of NARA offices
October 1
Online FOIA request portal, FOIAonline, goes live
at six agencies, including NARA
December 4–5
OGIS staff presents at the American Society of
Access Professionals Annual Symposium
13
Agency Review
OGIS also is tasked with reviewing agencies’ FOIA operations and
compliance.
OGIS reviews agencies’ FOIA policies, procedures, and compliance in
various ways. Our review work includes
• Providing Dispute Resolution Skills training to agency FOIA professionals to help
them comply with the statutory requirement that FOIA Public Liaisons assist in
resolving disputes, 5 U.S.C. §§ 552(a)(6)(B)(ii) & 552(l)
• Highlighting Best Practices for agencies and requesters
• Reviewing and commenting on proposed agency FOIA regulations
• Reviewing FOIA websites and template letters
• Working with agencies when the Office observes policies or procedures that are
not consistent with FOIA law or policy, or that may differ from the practices
occurring at other agencies
• Review of government and non-government reports on FOIA activity and
compliance
2013
March 1
Director Nisbet discusses “Mediating FOIA
Cases” with the mediators of the U.S. Courts
of the District of Columbia Circuit
March 8
Archivist of the United States David Ferriero
sends a notice to the 2,500 employees of the
National Archives reminding them that FOIA is
everyone’s responsibility.
March 12
Archivist of the United States David Ferriero
joins Director Nisbet in welcoming guests to
view the original Freedom of Information Act,
in observation of Sunshine Week
Director Nisbet presents to the U.S. House
Transparency Caucus on “The Future of FOIA
Reform”
14
OGIS has identified FOIA fees as an issue that warrants study. (NARA Identifier 6011228)
2013
March 13
Director Nisbet testifies before the
Senate Judiciary Committee hearing
titled “We the People: Fulfilling the
Promise of Open Government Five Years
After the OPEN Government Act”
May 3
Director Nisbet represents the United
States at the Canadian Association of
Journalists’ observation of World Press
Freedom Day in Ottawa, Canada
May 13–15
OGIS Staff participates in the American
Society of Access Professionals National
Training Conference
July 18
OGIS opens its 1,500th case
September 10
Government Accountability Office (GAO)
15
In FY 2013, OGIS began looking at several specific issues regarding agency
policies, procedures, and compliance, including FOIA fees and fee waivers, and the
ways agencies process records related to immigration matters. OGIS also began
a “Preventing Litigation” project, working with agencies on ways to reduce their
chances of a request resulting in litigation.
GAO recommended that OGIS establish a time frame for completing and
implementing a methodology that defines, among other things, the scope,
schedule, criteria, and evaluation questions for reviewing Federal agencies’
FOIA policies, procedures, and compliance. OGIS had already begun creating
a draft assessment framework, which will form one piece of OGIS’s expanded
review methodology.
GAO’s recommendation mirrored that of the National Archives and
Records Administration’s Inspector General (IG), which conducted
a routine review of OGIS in FY 2012 to determine whether OGIS was
adequately established and meets Congress’s intent. The IG report,
completed in September 2012, found that OGIS meets the requirements set
forth in FOIA with regard to both review and dispute resolution. The IG
found that “additional resources could significantly improve OGIS’s ability
to address and meet its mission.”
In response to the GAO recommendations, NARA concurred with both
recommendations and will work to address them in FY 2014.
2013
releases report on OGIS along with two
recommendations
September 18–20
Director Nisbet represents the National
Archives and Records Administration at the
biennial International Conference of Information
Commissioners in Berlin
Patent drawing for R.H. Strong clock
(NARA Identifier 7451701)
16
OGIS RECOMMENDATIONS
FOR IMPROVING FOIA
FOIA also directs OGIS to make recommendations to Congress and the
President to improve FOIA. In April 2012, OGIS released five recommendations
that the Office compiled in its first years. For example, OGIS encouraged agency
participation in FOIAonline, the Federal Government’s first multiagency FOIA
portal. As a founding partner in FOIAonline, OGIS continues to support the
portal’s improvement of services and expansion of partners.
In March 2013, OGIS issued four additional recommendations for
improving FOIA.
1. IMPLEMENTING DISPUTE
RESOLUTION FOR FOIA CONFLICTS
OGIS expanded its dispute resolution program to connect FOIA professionals,
legal counsel, and dispute resolution professionals to embed dispute resolution
firmly into an agency’s FOIA process. The goal is to identify issues that are
ripe for partnership and explore ways to work together to prevent and resolve
disputes as well as avoid litigation.
In 2013, OGIS identified several agencies, including OGIS’s parent agency,
NARA, to help to pilot a project designed to prevent and resolve disputes as
well as avoid litigation. OGIS has begun meeting with each of these agencies
to determine the types of FOIA disputes that result in litigation and to explore
ways to incorporate dispute resolution into their FOIA processes. (OGIS
also has worked with the Administrative Conference of the United States
to promote research into FOIA litigation to inform this process.) OGIS will
continue to pilot this project in FY 2014.
17
2. REITERATING THE IMPORTANCE OF FOIA
OGIS routinely encourages all Federal agencies to remind their staff
members of the importance of FOIA and that FOIA is everyone’s
responsibility. During Sunshine Week 2013, Archivist of the United
States, David Ferriero, sent such a message to NARA staff. Other agencies,
including the Departments of Energy and Transportation, sent similar
messages throughout the year. OGIS continues to encourage all agencies
to remind their staffs of the importance of FOIA and offers the Archivist’s
message as a model.
3. EXAMINATION OF FOIA FEES
OGIS continues to observe that fees and fee waivers remain a persistent point
of contention administratively and in litigation. OGIS began examining FOIA
fee issues by reviewing its own fee-related cases over the past four years and
identifying common themes. OGIS intends to continue this project in FY 2014
by working with stakeholders from both inside and outside government to
discuss fee issues.
4. IMMIGRATION RECORDS AND FOIA
Over the past four years, OGIS has observed a large increase in our cases related
to requests for immigration-related records from individuals who are not U.S.
citizens or lawful permanent residents. OGIS began communicating with agency
officials who receive these types of requests, as well as with some of the requester
organizations and representatives who file them. OGIS continues to work with
agencies to streamline the process and to identify issues related to first-party
immigration-related records requests that will inform OGIS stakeholders as well
as Congress and the President.
18
LOOKING AHEAD
In its fifth year, OGIS will continue to offer mediation services to
requesters and agencies; review agencies’ FOIA policies, procedures,
and compliance; and identify additional areas for improvement in the
FOIA process through recommendations to Congress and the President.
OGIS will also work to implement GAO’s recommendations of creating
performance measures and goals for its mediation services, as well as to
build on its review program.
SPECIAL THANKS
OGIS thanks the 113th Congress for its support of the FOIA Ombudsman’s
office: Senate Judiciary Committee Chairman Senator Patrick Leahy and
Ranking Member Senator Chuck Grassley, and their personal and committee
staffs, particularly Lydia Griggsby; Representative Darrell Issa, chairman
of the House Committee on Oversight and Government Reform, Ranking
Member Representative Elijah Cummings, and Representative John Mica,
chairman of that committee’s Subcommittee on Government Operations,
and their personal and committee staffs, particularly Krista Boyd and Tegan
Millspaw; and Wendy Ginsberg of the Congressional Research Service.
We extend a special thanks to our colleagues at the National Archives,
including David S. Ferriero, Archivist of the United States; Jay Trainer,
Executive Head for Agency Services; and National Archives General Counsel
Gary M. Stern and Assistant General Counsel Jean Whyte for their support of
OGIS’s work.
We also thank Susan Ashtianie, Susan Cummings, and Mary Drak for their
guidance and help with the GAO report.
19
OGIS sends “bouquets” of thanks to people inside and outside of Government.
(NARA Identifier 6728212)
We thank John Albanes, who was a student at the American University
Washington College of Law, who spent a semester volunteering his time at
OGIS.
Finally, we would like to thank the legions of FOIA professionals at
agencies who work with us on a daily basis and the hundreds of FOIA
requesters who seek our assistance.