Month: September 2024

Source: United States Department of Justice 2

Today OIP released an updated version of its Guidance for Agency FOIA Regulations, along with an updated FOIA Regulation Template.  These resources were first issued in March 2016.  OIP has updated them to take into account changes made to the FOIA by the FOIA Improvement Act of 2016 and by recent court decisions.    

As described in OIP’s guidance, while many of the FOIA’s requirements are contained directly in the statute and do not need implementing regulations, there are areas where the FOIA specifically requires each agency to publish regulations and still other areas where regulations are permitted.  Moreover, there are aspects of FOIA administration that can be addressed in FOIA regulations as a matter of good practice.  

The updates to the guidance and accompanying template for agency FOIA regulations include: 

• Notifications to requesters of assistance from FOIA Public Liaisons and the Office of Government Information Services,
• Ninety-day minimum time period to file an administrative appeal,
• Procedures for dispute resolution, and
• Limitations on assessing certain fees and the exceptions to those limitations.

The updates also reflect recent judicial decisions of the Court of Appeals for the District of Columbia Circuit pertaining to two fee categories, representative of the news media and educational institution. 

OIP encourages all agencies to consult the guidance and sample language from the template to the extent feasible as they update their FOIA regulations.  OIP will continue to update these resources as needed to reflect changes in law and policy.       

Source: United States Department of Justice 2

The Department of Justice’s 2009 FOIA Guidelines directed agency Chief FOIA Officers to “review all aspects of their agencies’ FOIA administration” and to report annually to the Department of Justice on the efforts undertaken “to improve FOIA operations and facilitate information disclosure at their agencies.”  In accordance with DOJ’s FOIA Guidelines, OIP provides specific guidance each year to agencies on the content and timing of agency Chief FOIA Officer Reports and today we have issued the guidelines for agency 2017 Chief FOIA Officer Reports.

Since 2010, OIP has required agency Chief FOIA Officers to include in their reports steps taken to implement the five key areas addressed in DOJ’s FOIA Guidelines:

1. Applying the Presumption of Openness,
2. Ensuring that there are Effective Systems for Responding to Requests,
3. Increasing Proactive Disclosures,
4. Increasing the Utilization of Technology, and
5. Improving Timeliness and Reducing any Backlogs.

Each year OIP develops reporting guidelines that build off the efforts and initiatives reported in previous years.  Our goal is to capture more advanced steps taken by agencies as their implementation of DOJ’s FOIA Guidelines has matured.  This year’s reporting requirements also continue to focus on certain areas where further improvements can be made.

The 2017 Chief FOIA Officer Guidelines once again include separate reporting requirements for agencies depending on the number of FOIA requests received in the prior fiscal year.  For the 2017 reports there are now three sets of reporting requirements.  For small-volume agencies that received less than 50 requests in Fiscal Year 2015, OIP has created streamlined reporting requirements.  For medium-volume agencies that received 50-1,000 requests last fiscal year we have more extensive requirements.  Our most comprehensive reporting requirements are established for high-volume agencies that received more than 1,000 requests last fiscal year. 

As in previous years, OIP has included new questions in the 2017 Chief FOIA Officer Report Guidelines, covering topics such as:

• FOIA program self-assessments
• Requester services
• Methods for improving proactive disclosures

OIP has identified twenty-six high-volume agencies that received more than 1,000 requests during Fiscal Year 2015.  These agencies must submit their draft 2017 Chief FOIA Officer Reports to OIP for review by no later than January 13, 2017. 

All small-volume and medium-volume agencies must submit their draft reports by no later than February 3, 2017.  Agencies are identified as “small,” “medium,” or “high” volume on the chart included in the Guidelines.      

Additional details on the review and submission process are included in the Guidelines. OIP will once again host a refresher training seminar on the preparation of both the 2017 Chief FOIA Officer Reports and the Fiscal Year 2016 Annual FOIA Reports. The details for this training will be announced here on FOIA Post.

You can view the 2017 Chief FOIA Officer Report Guidelines, as well as all other guidance issued by OIP, on the Guidance page of our site.

Source: United States Department of Justice 2

Last month, OIP posted the Department’s 2015 Litigation and Compliance Report. Each year by April 1, the Attorney General submits to Congress a report detailing the Department’s efforts to encourage agency compliance with the FOIA, as well as a listing of all FOIA litigation cases received and decided in the prior calendar year. The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to promote agency accountability with the FOIA.      

This year’s report once again summarizes new policy guidance issued by OIP, which for 2015 includes:

The report also discusses a range of efforts by OIP to promote agency accountability with the FOIA, including through the review and assessment of agencies’ 2015 Chief FOIA Officer Reports and Annual FOIA Reports, and the creation of new reporting guidelines for agency 2016 Chief FOIA Officer Reports. As detailed in the 2015 report, in addition to direct one-on-one counseling, OIP hosted and facilitated numerous training programs and briefings on the FOIA, providing instruction to nearly 2,000 FOIA professionals across the government. The report also summarizes the many resources that OIP makes available online, such as the DOJ Guide to the FOIA, searchable summaries of court decisions, and information about FOIA news and events published in the FOIA Post blog.           

The newly published 2015 report also details OIP’s work on several open government initiatives. Notably, pursuant to the United States’ Second Open Government National Action Plan, OIP created four distinct FOIA training resources and made them available to all agencies during 2015. These resources included an infographic covering FOIA basics for new employees, a brief video for senior government executives, and two e-Learning training modules – one for FOIA professionals and another for all government employees. As detailed in the report, OIP has also already begun making progress on commitments in the Third Open Government National Action Plan, which include expanding services available on FOIA.gov, conducting a proactive disclosure pilot, and improving agency FOIA websites.     

Along with the narrative portion of the report, every year OIP compiles charts listing the FOIA litigation cases received and decided during 2015. As in previous years, OIP again provides these charts in both PDF and open (CSV) formats.

OIP invites both agencies and the public to review its 2015 Litigation and Compliance Report to learn more about all of our efforts to encourage agency compliance with the FOIA.  OIP looks forward to building on these efforts as we continue to work with agencies and the public to improve the overall administration of the FOIA in the years ahead.     

Source: United States Department of Justice 2

The 2009 FOIA Guidelines were the first Department of Justice FOIA Guidelines to specifically highlight the importance of utilizing modern technology in FOIA administration. To support this directive, in 2010 OIP formed the FOIA IT Working Group, which continues to serve as a forum for agencies to discuss the application of technology to the administration of the FOIA. OIP reconvened the working group to commemorate Sunshine Week 2016 with a discussion from a panel of experts focused on the importance of leadership support and collaboration between technology and FOIA professionals.

Over the last six years, the IT Working Group has discussed a range of topics, including providing records in electronic formats, improvements in agency FOIA websites, and the use of advanced document processing tools. Moderated by Director Melanie Ann Pustay, the Sunshine Week meeting facilitated a vibrant discussion with a panel of experts who included: Ron Bewtra, Chief Technology Officer at the Department of Justice; Doug Hibbard, Senior Advisor to the Initial Request Staff with the Office of Information Policy; Jennifer Matis, Assistant Counsel for the Office of Government Ethics (OGE); and Timothy Mallon, Systems Engineer and Software Developer at OGE.

The key theme that emerged throughout the nearly two-hour meeting was the need for collaboration between technology and FOIA professionals and the importance of leadership and a clear vision for how technology can support the agency’s mission. Each panelist brought unique insights to the conversation, beginning with Mr. Bewtra who discussed his role as the chief technologist for the Justice Department. In his remarks, Mr. Bewtra focused on how his team works with program experts to ensure component missions are fully supported through the utilization of the right technology. Mr. Bewtra emphasized the importance of communication and a clear understanding of the mission between program and technology experts. As the Department as a whole seeks to maximize the value of agency-wide technology investments, collaboration with program offices continues to be an important practice for Mr. Bewtra in order to determine where available technology could be used and what new projects to take on.

Mr. Hibbard then discussed the various efforts undertaken to incorporate advanced technology tools into the FOIA process at OIP – specifically the application of e-Discovery applications for document review. Mr. Hibbard’s remarks focused on the collaboration between OIP and program offices within the Department to develop pilot programs and business cases for the use of such tools to process FOIA requests. He explained how the implementation of these tools required coordination with technology professionals, testing by OIP staff, the development of unique workflows, and training. As emphasized by Mr. Hibbard, all of these efforts at OIP were possible because of the Office’s ability to articulate the business case for use of these tools and the support for its mission by the Department’s technology staff.

The team from OGE discussed a similar, collaborative experience, but focused on different applications and scales of technology that they identified for OGE’s needs. Whereas the panelists from the Department of Justice discussed the benefits of agency-wide applications and how OIP made the case for using available technology, the OGE team discussed how a one-on-one interaction at a small agency led to the development of a home-grown case management system. Ms. Matis discussed how the clear needs of the FOIA office and personal interaction with Mr. Mallon allowed the team to collaborate on the development of their new case management tool, creating efficiencies that were not previously available.

In addition to discussing the need for collaboration, all four panelists discussed the importance of finding the right tool or set of tools for the task required. For Mr. Bewtra, this meant having a clearly articulated set of requirements when looking to acquire a new tool or leverage an existing one. Mr. Hibbard discussed that while efficiencies have been gained in document review through the use of e-Discovery tools, these tools are not always the answer for all requests, and for some requests it may be more efficient to use other methods or tools for processing. Finally, the OGE team discussed how building their new case management tool on an expandable technology platform meant that new features could be added as needs arose, allowing them to iterate within their current tool instead of searching for a new one.

The panel had a very engaging discussion with attendees regarding various topics throughout the event. Given the strong interest in these discussions, OIP will be looking for ways to continue the dialogue at events in the future. Additionally, as agencies continue to explore new ways to harness technology in their administration of the FOIA we invite them to let us know so that future meetings of the FOIA IT Working Group will be convened in order to share the latest developments across the government.

Source: United States Department of Justice 2

As part of the Second United States Open Government National Action Plan the Administration committed to initiating “an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.”  Throughout 2014 and 2015, OIP convened an interagency working group and met with members of civil society to fulfill this commitment.  The goal of this initiative was to create as much uniformity as is practical and feasible in the content of agency FOIA regulations.  Today, OIP culminates work on this initiative by releasing guidance and a template containing both guidelines and sample language for agency FOIA regulations.

FOIA regulations are a key aspect of an agency’s FOIA administration.  Each agency is responsible for publishing its own regulations.  The FOIA statute requires that certain topics be included in agency FOIA regulations, such as providing for expedited processing.  There are many other areas, however, where agencies have flexibility, such as setting a time limit for submitting an administrative appeal.         

OIP’s new guidance identifies the topics that the FOIA requires agencies to address in their regulations.  The guidance also notes the provisions that the FOIA permits agencies to include.  In addition to the required and optional provisions, the guidance describes the other types of provisions that agencies, as a matter of good practice, should include in their regulations. 

The guidance is supplemented by a FOIA regulation template that provides guidelines and sample language for agencies to use as they publish and update their regulations.  These resources will be updated as needed to reflect changes in law and policy.

To the extent it is feasible, standardizing common aspects of FOIA administration across agencies will simplify the FOIA process for requesters who may submit requests to different agencies.  For example, the template guidelines specify a minimum number of days that agencies should afford requesters to file an administrative appeal.  The guidance and template also stress the importance of including customer service provisions.  OIP encourages all agencies to consult the guidance and template as they review their own regulations.  By doing so, agencies can help further standardize FOIA practices across the government and improve overall administration of the FOIA.