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Navigating a Sea of Records

Treasures like this photograph of an oiled Kemp’s Ridley Turtle are awaiting discovery among the records that NOAA has made available online. This turtle was cleaned and treated by a team of sea turtle experts before he was returned to less treacherous waters. (Credit: Carolyn Cole, L.A. Times)

 

Editor’s note: This guest post is from Wendy Schumacher, Ph.D., PMP. Wendy, thank you for sharing your story.

I started my job as the FOIA Officer at the National Oceanic and Atmospheric Administration (NOAA) about a year after the April 2010 Deepwater Horizon Oil Spill. My new colleagues had collected, organized, reviewed, redacted and released tens of thousands of pages of records in response to a large number of FOIA requests prior to my arrival. They also identified the importance of making the records they released in response to those FOIA requests available to the widest possible audience. It was a great idea, but the project needed a champion.   So, I took off my FOIA Officer hat and put on the librarian one. After brainstorming with my organization’s webmaster, it didn’t seem feasible to host these large files on our server. We needed to figure out another way to give people access to the great information NOAA could provide.

In addition to potential FOIA requesters already identified, “people” in my mind include my school-teacher sister’s elementary school class. She has always been interested in how her students can see the scientific data that I organize at work. The others who help fuel my passion for information sharing are the science teachers that I met teaching library cataloging and website development in the Peace Corps. I was committed to finding a way to make our resources easy to search.

The thought of these audiences kept me driven to find funding for the project. We did, and a few months later the NOAA FOIA Office collaborated with the NOAA Library to make the Deepwater Horizon Oil Spill records available through the Library’s online catalog. Not only does this mean that potential requesters do not need to file a FOIA request to see what already has been released, but researchers around the world can access the records by using common library catalog systems. This reveals a group of documents that they may not otherwise know exist. The connection is made by using Library of Congress Subject Headings (LCSH) so that a potential requester can click on the LCSH hyperlink on the NOAA website to see what other information may be available through multiple international cataloging services. A link to the NOAA Library Catalog can be found on the NOAA FOIA homepage.

Here is what the LCSH or Subject term links look like after searching for “NOAA FOIA documents”:


By clicking on Sea Turtles–Effects of oils spills on–Mexico, Gulf of. you’ll see that a total of 40 FOIA requests asked for records about Sea Turtles:

In Fiscal Year 2012, over 670,000 individual pdf files were viewed. Although it’s hard to say how many potential requesters got their information immediately instead of having to wait for a response through the FOIA process, I can confirm that NOAA did not receive any requests asking for clarification about what was posted. That meets any FOIA professional’s definition of “satisfied people.”

 

Requesting Records Across Agencies

With a little help from the whole Executive Branch team, we can efficiently process multi-agency requests. (ARC Identifier 5585742)

With 100 departments and agencies, the Executive Branch can feel downright massive sometimes. Although each of the 100 has a separate and distinct mission, and no doubt creates very different kinds of records, there is also some overlap in the way agencies operate and with the records they keep.

Since its start, OGIS has been a resource for the same or similar requests that span more than one agency. While we aren’t here to direct agencies on how to respond to a request — we are, after all, a neutral third party to the FOIA process — we have found benefits for both agencies and requesters by facilitating the exchange of information on these multi-agency requests.

  1. The information exchange lets agencies know that others are processing the same request and gives the FOIA professionals the opportunity to discuss any sticky issues they have identified and to share strategies for responding to the request.
  2. Agencies may be processing these requests with differing results, so a discussion lets them share that up front so there are no surprises if they aren’t acting in concert.
  3. It gives requesters one point of contact — OGIS — rather than dozens of different FOIA professionals at multiple agencies.

As the FOIA Ombudsman, OGIS has worked through a handful of these cases, brought by both agencies and requesters. Here are a couple examples:

  • Contractor performance data: a FOIA requester asked for performance scores and narratives for government contractors from more than 40 agencies. Responses varied from full releases to partial withholding to full withholding — to no response at all. The exemptions cited varied as well. OGIS invited any interested agency representatives to join in a discussion in which they shared how they arrived at their results and discussed the potential harm in release. In the end, some additional agencies decided to release some or all of the information while other agencies determined that a different exemption may have been more appropriate. Still others did not change their position at all. In the end, all the agencies were aware of their differing responses.
  • Agency travel data: this requester asked for various agency travel records dating back 10 years for more than 60 agencies. OGIS gathered agency contacts who explained that they weren’t sure exactly what the requester was seeking, and they weren’t sure how to retrieve the data since most agencies work through contractors to maintain their massive travel databases. OGIS worked with the requester to come up with a targeted list of fields he was seeking and provided it to interested agencies. OGIS also worked with agencies on strategies to collect the data from their vendors. Agencies shared their methods with one another and dozens of agencies were able to provide the records.

OGIS has begun hearing from requesters before they file multi-agency requests to give us a heads up that they’re coming. In other cases, it’s an agency getting in touch to say it has heard that other agencies have the same request. Sometimes it makes sense to get agencies together to discuss; other times, there are no real issues to work through — yet. But it’s good to get everyone looped in nonetheless.

One of OGIS’s April 2012 Recommendations to Improve FOIA was to increase awareness about OGIS’s role for these types of requests. The recommendation addresses the value in coordinating efforts for these requests. The office stands ready to continue assisting in these cases, so please be in touch if you think this situation might apply to you.

Radio Free FOIA

Radio host Kojo Nnamdi is known for his easy, conversational style and incisive questions. Recently he invited OGIS Director Miriam Nisbet by for a chat (photo by Stephen Voss).

OGIS Director Miriam Nisbet appeared on WAMU radio’s award-winning Kojo Nnamdi show on January 29, 2013, for a discussion titled “Following Through on FOIA: Progress and Pitfalls.” Daniel Metcalfe, Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law and Thomas Blanton, Director of the National Security Archive at George Washington University also appeared on the show, along with reporter Michael Pope. The group discussed the challenges faced by federal FOIA processors and offered practical advice for requesters and agencies.

If you missed the show, you can listen to the entertaining and informative discussion online.

Thinking about FOIA Libraries

While you won’t find any card catalogs in agency FOIA libraries, the same principles of good librarianship — creating a resource that is helpful, useful and organized — apply. (ARC Identifier 558218)

On January 21, 2013, representatives of 12 agencies and several requester groups gathered to discuss online FOIA “libraries.” The Attorney General’s 2009 FOIA Memorandum encouraged agencies to post information online in advance of a formal request. Many agencies’ FOIA regulations also require them to post records for which they receive multiple requests, and other agencies such as the FBI wisely post records related to hot topics for which they expect multiple requests. Additionally, the Freedom of Information Act itself, 5 USC § 552(a)(2), lists categories of records that agencies should make available on their websites.

While creating a FOIA library seems straightforward, Tuesday’s lively, wide-ranging discussion revealed both challenges and opportunities for agencies.

  1. Agencies are feeling the squeeze. We’ve talked before about the difficult budget environment affecting FOIA offices dealing with backlogs. This is also true as agencies try to expand their FOIA libraries. Given the choice of dedicating already-limited FOIA staff to processing requests or uploading and organizing documents, roundtable attendees agreed that most agencies would choose the former. Compounding the issue is that FOIA professionals may not be technology experts and may face hurdles within their agencies to access the tools and know-how they need. While there may be no easy answer to this challenge, it’s important to continue discussing it so all members of the FOIA community — agencies and requesters — understand agencies’ limitations. 
  2. Save the time of the reader. We heard again and again that agencies face a major challenge as they attempt to implement S. R. Ranganathan’s Fourth Law of Library Science. Several roundtable attendees reported that they found some agency FOIA libraries to be inconsistent and disorganized. While making web resources accessible is a challenge faced by all content providers, the roundtable attendees expressed a desire for Federal FOIA leadership to develop best practices for FOIA libraries.  
  3. Beyond records. So what, exactly, should FOIA libraries contain? While FOIA libraries are an ideal place to make records available, those in attendance encouraged agencies to also include information about how they process FOIA requests. Ideally, this information would be in the form of FOIA regulations and policies as well as a plain language guide to making a FOIA request. Other attendees encouraged agencies to post information about what their agencies don’t have — for instance, the Department of Education does not have access to local schools’ records.
  4. Great FOIA libraries require a culture shift. While the attendees agreed that agency FOIA professionals tend to be strongly pro-disclosure, this is not always true for the agencies in which they work. Creating a useful FOIA library requires an agency to think like a requester in terms of what to include and how to organize it. Roundtable attendees reminded one another that although agencies generally agree that after three requests for a record, that record should be posted in the FOIA library, agencies don’t need to wait for even one request to post a record. Attendees also agreed that the FOIA library works best as a team effort, involving an agency’s Public Affairs, IT, records management and FOIA staffs as well as its leadership.

 Do you have thoughts on FOIA libraries? We’d love to hear from you!  

Check out the next FOIA Requester Roundtable on FOIA Libraries

Making FOIA libraries as useful as possible for requesters is the topic of the January 22 FOIA Requester Roundtable (ARC Identifier 541514)

Did you know that agencies are required under the Freedom of Information Act (FOIA), 5 USC § 552(a)(2), to make available to the public five categories of records:

  • final opinions, including concurring and dissenting opinions and orders, made in adjudicated cases;
  • policy statements not published in the Federal Register;
  • administrative staff manuals and instructions that affect the public;
  • previously released records that are likely to become the subject of future requests and an index of such records; and
  • a record of the final votes of each member in every agency proceeding?

Agencies generally make these documents available in their web-based FOIA reading rooms or libraries, which are the subject of the Tuesday January 22 FOIA Requester Roundtable, a quarterly meeting with requesters sponsored by OGIS and the Office of Information Policy (OIP), the government’s FOIA policy office.

“FOIA Libraries: Maximizing Usefulness from the Requester Standpoint,” will be from 10 a.m. to 12:30 p.m. on January 22 at OIP, 1425 New York Ave. NW, near the McPherson Square Metro stop on the Blue & Orange lines and Metro Center on the Red line.

Interested? E-mail your name and phone number to OIP Training Officer Bertina Adams (doj.oip.foia@usdoj.gov). Registration is required and a picture ID is required to enter the building. If you can’t make it in person, call-in information will be provided upon registration. Questions? Call Ms. Adams at 202-514-1010. We hope to see you there!

Dealing with Surplus in a Time of Scarcity: Reducing FOIA Backlogs

 

Some agencies have found ways to get more bang for their buck when dealing with FOIA backlogs. (ARC Identifier 195893)

There’s a great deal of pressure on agencies to reduce the number of FOIA requests in their backlogs. The FOIA community talks a lot about backlogs, but mostly in numbers, not in terms of how some agencies have succeeded in reducing the number of cases awaiting response. Considering the budget environment in which all agencies are operating, it’s worth exploring how some agencies have been able to tackle their backlogs.

I moderated a panel at December’s American Society of Access Professionals (ASAP) Training Conference titled “Growing Backlogs, Shrinking Budgets: New Ideas about FOIA Backlogs.” Don McIlwain of the National Archives and Records Administration’s National Declassification Center, William Holzerland of the Department of Health and Human Services’ Food and Drug Administration, and FOIA Attorney Scott Hodes joined me to share their experiences. Here are some of the broad themes that emerged from that discussion. 

  1. Communicate with requesters. The panelists agreed that this is the key to successfully closing requests in an agency’s backlog. More than one panelist shared a story of working with requesters to narrow the scope of requests, making them easier to process. However, not all communication is the same; rather than waiting months (or even years) and then sending a “still interested” letter, the panelists reported that their most successful communications with requesters were substantive, ongoing, and led to improved rapport. This investment of time can lead to enormous dividends in the form of a dwindling backlog.
  2. Executive interest in FOIA sets the right tone. When senior agency leaders focus on FOIA, things tend to get done. The panelists reported that in their experience at multiple agencies, they experienced the greatest success in backlog reduction where senior leaders saw it as a priority and made sure that FOIA staff had the training they needed to get the job done.
  3. Technology can help you rethink what is possible. Technology can help, but not in the way you might expect. None of the panelists described an experience in which his agency implemented an expensive new system that was a silver bullet for its backlog. But more than one of the panelists described using existing technology in new ways to process requests more efficiently. One notable example is an agency that used to refer documents by copying and mailing paper records that now scans the records and refers digital copies which are processed electronically once the originating agency responds. No need to reinvent the wheel!
  4. We are all on Team FOIA. We at OGIS love the team approach, and our panelists do, too. One panelist described his role as that of a “FOIA evangelist,” helping those in non-FOIA program offices think like FOIA folks. FOIA is the responsibility of every government employee, and agencies that have been able to communicate this message have succeeded in reducing their backlogs.

Do you have a best practice for reducing backlogs that we didn’t capture? We’d love to hear from you!  

Changes

We are sorry to lose one of our own, but we know she is off to fight the good fight. (ARC Identifier 542171)

This post is from OGIS Deputy Director Karen Finnegan.

“The only thing that stays the same is change.”  Melissa Etheridge

At OGIS, we specialize in change. The very existence of OGIS represents an innovative change to the FOIA administrative process. Our daily work involves changing the way people approach conflict and how they communicate with others. However, the time has come for OGIS itself to change: I’m leaving OGIS to work at the U.S. Department of State.

The last three years have been life changing for me! I’ve have the honor of being part of an extraordinary team of professionals who collaborated to lay the foundation for a novel way of making FOIA work better for all parties. Although I’ve learned much about good government, good communication and myself during my tenure in OGIS, two experiences really stand out in my mind.

First, my OGIS experience has shown me how collaboration is truly an efficient and cost-effective way to make good decisions. It allows everyone to have a voice and provides a safe environment for thinking outside the box. And sometimes merely inviting a party to the table helps to avoid and/or resolve a dispute because it shows an interest in hearing that person’s point of view.

Second, I’ve also seen how having that difficult conversation works wonders in building rapport and gaining understanding. Our professional and personal lives thrive when we are skilled at building and maintaining relationships. One of the best ways to do this is by communicating in a way that is open and curious. When we approach a conversation in an open and curious way, we are laying the groundwork for an even exchange of ideas and concerns.

I’m grateful for the personal and professional growth I’ve experienced as part of the OGIS team. I also appreciate having worked for the National Archives, which, as the government’s record keeper, is essential to our democracy. The Archives is a great example of good government because the entire organization is focused on providing excellent customer service and ensuring that our history is not only preserved, but also accessible. The Archives’ slogan—Records Matter!—reflects the notion that access to government records is the backbone of open government.

I leave OGIS with a tool kit brimming over with innovative ideas and approaches, which I know will serve me well in my new position. As I move on, I’ll keep in mind that good government is about sharing information and working together for a common goal; that good communication is essential to avoiding conflicts and building rapport; and that collaboration is the best way to give people a voice and results in better decisions. In other words, I’m not leaving the OGIS methods behind, just carrying them with me to a new venue.

I’ll miss my OGIS and Archives colleagues, and will always cherish my time among some of the most impressive and dedicated people in government service.

Don’t shut your eyes to the importance of FOIA regulations

U.S. Public Health Service poster, circa 1941-45

Well-crafted FOIA regulations are a must and will leave agency FOIA professionals resting easy. (ARC Identifier 514682)

Freedom of Information Act regulations sound like a sure cure for insomnia, but if FOIA were a movie, their role would be a real sleeper. We at OGIS recognize that well-crafted FOIA regulations are key to an effective agency FOIA process so we regularly comment on proposed changes to regulations as part of our statutory mission to review agency FOIA policies, procedures and compliance. Regulations set the stage for an agency’s FOIA program and exist for both requesters and agency FOIA professionals.   

The FOIA statute itself says that agencies shall have regulations that

  • Specify a fee schedule and limit those fees to reasonable standard charges;
  • Designate agency components to receive requests; and  
  • Provide for expedited processing.

FOIA also says that agencies may have regulations regarding multi-tracking processing and the aggregation of certain requests by the same requester or group of requesters acting together.

A recent audit of agency FOIA regulations found that more than half of 99 agencies have not updated their FOIA regulations since the OPEN Government Act of 2007, which amended FOIA and created OGIS. The audit, conducted by the nongovernmental National Security Archive, which maintains a clearinghouse of declassified documents, also found that 17 agencies have not posted their regulations on their FOIA websites as required by the E-FOIA of 1996.

The day of the audit’s release, a representative of the National Security Archive joined representatives from OpenThe Government.org, the Federal Register and OGIS to discuss best practices for FOIA regulations at the American Society of Access Professionals’ annual symposium and training conference at the National Archives Dec. 4-5.

OGIS recognizes that revising FOIA regulations can be a mammoth task. We’re here to help.

In addition to regularly consulting FOIA regulations as part of our mission of providing mediation services, OGIS monitors the Federal Register for notice of proposed FOIA regulations and revisions, and comments via the public comment process through our parent agency, the National Archives. In the last two years, we’ve commented on 15 proposed department and agency FOIA regulations, as well as proposed FOIA/Privacy Act request forms at two agencies.

We’ve also conducted three collaborative reviews in which we worked with three departments and agencies reviewing their FOIA regulations before the Federal Register comment period.

A set of best practices, based on the comments we’ve submitted, is designed to help agencies that are considering revising their regulations. OGIS suggests, among other things, that agencies include language that establishes

  • A process in which the referring agencies notify requesters of the name of the agency to which the request has been referred, the part of the request that has been referred and a point of contact at the receiving agency;
  • A process for providing requesters with fee estimates, including a breakdown of fees for search, review and duplication, as well as the administrative discretion to waive fees; and
  • A commitment to work with OGIS, including alerting requesters in final agency determinations that OGIS exists to provide mediation services so requesters have an alternative to filing a lawsuit if they are dissatisfied.

If you’re at an impasse on updating your FOIA regulations, contact us and let’s see if we can help you.

Records Management Directive Shifts Into Gear

Government agencies have billions of records. Making those records findable and preserving them for future generations requires careful calibration. (ARC Identifier 3493247)

It’s common wisdom in the library and information science community that if you have something and you can’t find it, you don’t have it. This principle is as true for agencies’ records as it is in university libraries, and it directly affects the efficiency and effectiveness of agency FOIA programs.

We’ve written before about President Obama’s Memorandum on Managing Government Records and the Managing Government Records Directive, issued jointly by the Office of Management and Budget (OMB) and our parent agency, the National Archives and Records Administration (NARA). These directives represent a new focus at the very highest levels on the importance of government records management.

In the five months since it released the Directive, NARA’s Records Management staff has been working hard to lay the groundwork for the major changes in store, and agencies also have taken first steps. The Directive requires agencies to select a Senior Agency Official (SAO) who is ultimately responsible for leading the records management effort.

The SAO has an essential role in the records management directive:

  • Ensuring that permanent records are identified for transfer and reported to NARA;
  • Establishing agencywide records management training; and
  • Ensuring that all agency records are scheduled for retention and disposition

Archivist of the United States David Ferriero hosted the SAOs for a kickoff meeting on November 25, 2012. Much of the discussion focused on SAOs’ responsibilities under the Directive, including establishing a records management training program. There was also a great deal of discussion on OPM’s goal to establish a records management job series by the end of 2013.

As the Archivist pointed out in his remarks, the hard work on the records management effort is still to come. While the goals and timelines of the Directive are daunting, the meeting attendees made it clear that agencies are ready to move forward and modernize their records management programs.

OGIS has continually beaten the drum for improved records management practices. We’ve observed how agencies that link their records management and FOIA programs tend to see improvements in both. We cannot wait to see how improving records management across the government yields benefits for FOIA programs. We will continue to report on the Directive’s progress, but if you are hungry for more information, check out the Records Express blog.

A Peek Inside the Sausage Factory

We’re busy making best practices. Hope you’re hungry! (ARC Identifier 522689)

While many (correctly) associate OGIS with mediation services to resolve FOIA disputes, those services are not the full extent of our mandate. Congress created OGIS to also review agencies’ FOIA policies, procedures and compliance. Sounds great, but how does OGIS learn what agencies are doing, and what do we do with that information?

Obviously, our work providing mediation services gives us some perspective on how agencies do their FOIA work. But another way that we review what’s happening in FOIA shops across the government is by reading annual Chief FOIA Officer (CFO) Reports. FOIA requires each agency’s CFO to report to the Attorney General on the agency’s performance in implementing FOIA. The annual reports, to the Department of Justice’s Office of Information Policy, provide a broad overview of the leadership and direction of each agency. These reports are a great source of details about what is working in agency FOIA shops. For instance:

  • The United States Postal Service appointed a representative from each of its departments who works with the records management division to identify records that should be proactively disclosed online.
  • The Federal Communications Commission created a new website that makes government data available in formats that can help entrepreneurs build innovative applications, including making APIs available for developers.
  • A FOIA program manager at the U.S. Department of State provides weekly training for new information management officers sent to overseas posts and responsible for FOIA duties.

You may have heard Congress’s process of making laws described as “making sausage” (in that you don’t want to see how it’s done). Once we’ve  sifted through the CFO reports, the details we glean become our favorite ingredient in our version of “sausage” – OGIS’s recommended best practices. We share best practices in a number of ways, including in our reports, special publications, and this blog.

We’ll be publishing a new round of best practices (serving up more sausage!) in the coming months in conjunction with our report on Fiscal Year 2012.