When passing the Freedom of Information Act (FOIA) Congress recognized that there were other federal laws that provided protection for specific types of documents, either currently enacted or that could be passed in the future.  As a result, Congress created Exemption 3 of the FOIA which incorporates the protection afforded by other laws into the FOIA.  This category of information is the only one of the FOIA’s nine exemptions which expressly references other federal laws.

Because the use of Exemption 3 relies on knowledge of various other federal laws, OIP has compiled two key resources to assist agencies in their administration of the FOIA and to increase public understanding of the use of Exemption 3.  These materials, located on the FOIA Resources page of our site, are:

• Statutes Found to Qualify Under Exemption 3 of the FOIA – Recently updated, this is a list of statutes that federal courts have found to qualify under Exemption 3.  Complied to assist agencies in properly processing FOIA requests and aid the public in understanding the scope of this exemption, the list provides the statute citation and name (if applicable), the type of information protected by the statute and the case citation for the case in which a court found that the statute qualified for use with Exemption 3.
• Statutes used in Annual FOIA Reports in conjunction with Exemption 3 of the FOIA – As the statutes used in connection with Exemption 3 and the frequency of use varies by agency, OIP compiles these charts which list the statutes used by all agencies as reported in their Annual FOIA Reports.  Collected from the reports for fiscal years 2010 and 2011, the charts provide the citation of the statute used, the type of information which is protected by the statute, and the agencies which cited the statute when using Exemption 3, as well as the number of times the statue was cited.

Information on the use of Exemption 3 by agencies prior to fiscal year 2010 and a more complete breakdown of the use of this exemption by any agency components is available in agency Annual FOIA Reports on the Reports page of our site (fiscal years 1998-2011) and on FOIA.gov (fiscal years 2008-2011).

In order to ensure proper implementation of the FOIA and its exemptions, OIP has also issued guidance on the use of Exemption 3 as changes to the statute have occurred, most recently when Congress passed the OPEN FOIA Act of 2009.  This, and all guidance issued by OIP, is available on the OIP Guidance page of our site.

Finally, if any agency has questions about the application of a federal statute in connection with Exemption 3, they can contact OIP’s FOIA Counselor Service at (202) 514-FOIA (3642) and one of OIP’s FOIA Counselors will be available to provide individualized guidance.

Next week, the Office of Information Policy (OIP) hosts its first ever training seminar through video conferencing.  The training will focus on an overview of the FOIA, and address President Obama’s FOIA Memorandum, Attorney General Holder’s FOIA Guidelines, procedural considerations, and the FOIA’s exemptions.

OIP continually looks for ways to expand its training program, and this new training format will reach a wider audience of federal employees — especially those who work outside the Washington, D.C. metro area.  Virtual meeting tools provide an ideal way to train people across the government, while reducing or eliminating travel costs and arrangements.

The details for the training are:

An Overview of the FOIA – Video Conference
December 12, 2012
10:00 am – noon

 Training is open to all federal employees, with priority for employees outside the Washington, DC area

If you are interested in participating in the video conference, you may register by e-mailing your name, phone number and duty station to OIP’s Training Officer, Bertina Adams Cleveland, at DOJ.OIP.FOIA@usdoj.gov.  If you have any questions regarding this event, please contact Ms. Adams at (202) 514-1010.

In the upcoming weeks, the Office of Information Policy will be sending detailed guidance to agencies directing them to report on four key FOIA statistics that will be posted to FOIA.gov on a quarterly basis. 

Each year agencies are required to submit to the Department of Justice an Annual FOIA Report which contains detailed statistics on the agency’s FOIA activities over the past fiscal year.  Among other things, the Annual FOIA Report shows how many requests the agency received during the past fiscal year, how many it processed, the disposition of those requests, and the number of requests that remain in the agency’s backlog (requests that are pending beyond the statutory deadlines). 

Since 2011, the Department has presented this data on FOIA.gov in a way so that both the public and agency FOIA professionals can compare trends between agencies and over time.   As more and more people have come to rely on FOIA.gov to track agencies’ FOIA progress, the benefits of providing certain FOIA data more frequently have become clear.

As a result, and as part of the Department of Justice’s Open Government Plan, OIP will be issuing guidance later this month directing all agencies to begin quarterly reporting of four key FOIA statistics.   Beginning with January 2013, agencies will report, for each quarter:

• the number of requests received,
• the number of requests processed,
• the number of requests in their backlog, and
• the status of the agency’s ten overall oldest pending FOIA requests from the previous fiscal year.

Agencies that are decentralized in their FOIA processing will need to provide the data for the first three statistics for each of their individual components as well as for their agency overall.  In keeping with the Department’s longstanding focus on reducing the age of the oldest pending requests, for the fourth statistic agencies will be required to report on how many of their agency’s ten overall oldest pending FOIA requests from the previous fiscal year were closed during each quarter. 

To assist agencies in submitting the data OIP will be providing a uniform template for all agencies to use and, for the first time, collecting this data through the use of an Applied Programming Interface (or API).

With the quarterly reporting of these key FOIA statistics, the public will be able to more regularly track government FOIA administration throughout the year.  Emerging trends and patterns for the entire government, both in terms of the numbers of incoming requests received and the numbers of requests agencies processed and closed, will be available systematically during the course of the year, thereby shining further light on FOIA across the government.

Continuing in our series of quarterly FOIA Requester Roundtable meetings, OIP will again be sponsoring meetings between the FOIA requester and agency communities throughout the coming year.  Hosted in connection with the Office of Government Information Services, these discussions will focus on various issues that surround the administration of the FOIA throughout the government, and provide an opportunity for the FOIA requester community to participate in the exchange of ideas, with the goal of increasing the understanding of the issues that all parties are faced with when working with the FOIA.

These meetings will take place on:

Fiscal Year 2013 Requester Roundtables
January 22, 2013, Topic – FOIA Libraries: Maximizing Usefulness from the Requester Standpoint
April 24, 2013
July 24, 2013

Additional information, including location, times, and topics for the April and July meetings will be announced here on FOIA Post prior to each meeting.

If you are interested in attending, please e-mail your name and phone number to OIP’s Training Officer, Bertina Adams at DOJ.OIP.FOIA@usdoj.gov.  As space for these meetings is limited, registration is required to attend, and remember that you will need a picture ID to enter the buildings for these meetings.  If you have any questions regarding these events, please contact Ms. Adams at (202) 514-1010.

Last week we held another meeting of our continuing Requester Roundtable series.  These meetings allow a regular opportunity for members of the requester community to meet with agency personnel to discuss various topics surrounding the administration of the FOIA.

The topic for this past meeting was the “FOIA and Privacy Act Interface,” where OIP Director Melanie Ann Pustay led a discussion on the two principal ways in which the Privacy Act of 1974 impacts agency processing of FOIA requests.  Passed nearly a decade after the FOIA, the Privacy Act establishes a code of fair information practices that governs the handling of certain information about individuals that is maintained in agency files. 

The Privacy Act provides requesters with a right to seek access to their own records.  It also prohibits agencies from disclosing information about an individual to someone else, without their consent, unless the disclosure falls within one of twelve exceptions.  These provisions and the way agency personnel take them into account when processing FOIA requests were discussed at the roundtable. 

Among the topics of interest to the group were:

• Certification of Identification – When individuals make requests for records on themselves, agencies typically require them to verify their identity.  At the roundtable we discussed the importance of this requirement in protecting privacy by ensuring that one person’s records are not inappropriately released to someone else.  We also discussed how individuals can authorize release of their records to someone that they designate.  Typically, to verify a person’s identify the agency will ask the individual to provide his or her full name, current address, and date and place of birth.  The individual must then certify to their identity by having their signature either notarized or submitted under penalty of perjury.   At the Department of Justice, Form DOJ-361 can be used both to verify an individual’s identity and to authorize release of an individual’s records to someone else.
• Privacy Act System of Records – The Privacy Act only applies to records that are located in a “system of records.”  As defined in the Privacy Act,  a system of records is “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.”  5 U.S. C. § 552a(a)(5) (2006 & Supp. IV 2010).  This is a significant contrast from the FOIA, which broadly covers any agency record.  

As a matter of longstanding practice, agencies afford requesters the benefit of access under both the Privacy Act and the FOIA whenever someone makes a request for records on themselves.  The scope of access under the two laws was yet another focus of discussion at the roundtable.

The Justice Department’s Office of Privacy and Civil Liberties publishes the Overview of the Privacy Act of 1974, which describes in detail all the various provisions of the Privacy Act and the cases interpreting them. 

OIP will again be partnering with the Office of Government Information Services for another slate of Requester Roundtable meetings over the upcoming fiscal year.  These meetings are open to the public and interested agency personnel, with topics generally announced a few weeks before each scheduled meeting.  The next meeting is scheduled for the beginning of 2013, and details will be announced here on FOIA Post as they are finalized.

As the government’s lead office for encouraging agency compliance with the Freedom of Information Act (FOIA), OIP offers a number of regularly scheduled training seminars to educate agency personnel on how to implement the various provisions of the statute.  For the 2013 fiscal year, OIP is once again offering many training opportunities.  The newly-scheduled training sessions are:

The Freedom of Information Act for Attorneys and Access Professionals
December 17-18, 2012
February 26-27, 2013
May 7-8, 2013
July 16-17, 2013

Advanced Freedom of Information Act Seminar
April 10, 2013

Freedom of Information Act Administrative Forum
June 5, 2013

Introduction to the Freedom of Information Act
March 20, 2013

FOIA Litigation Seminar
November 28, 2012

All seminars will be held in Washington, DC, and are open to all federal government employees.  Descriptions of these seminars are available on our Training page.  To register for any of these seminars, please e-mail your name to OIP’s Training Officer, Bertina Adams Cleveland, at DOJ.OIP.FOIA@usdoj.gov.  In the subject line, please specify the name of the course and the date you wish to attend the training.  Questions regarding these seminars may also be directed to Ms. Adams at (202) 514-1010.