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Final report of 2018-20 FOIA advisory committee now available

I had the honor of serving on the National Archives and Records Administration’s (NARA) FOIA advisory Committee for the 2018-2020 term. Administered by the Office of Government Information Services (OGIS), which serves as the chair of the Committee, the FOIA advisory committee brings together 9 members from within the Federal government and 11 non-governmental members with FOIA expertise to “foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” I was pleased to make real and lasting connections with the dedicated OGIS staff, agency FOIA officers and public advocates committed to making the Freedom of Information Act (FOIA) work for everyone and to “ensure informed citizens, vital to the functioning of a democratic society.”

Our Final Report and Recommendations of the 2018-2020 Term of the FOIA Advisory Committee (PDF) was just released by OGIS. As can be seen by the 22 recommendations, the committee was concerned with a wide range of topics and had recommendations for NARA, DOJ’s Office of Information Policy (the executive branch lead on FOIA), executive branch agencies and Congress. There’s still a long way to go to improve FOIA – I wish we’d been stronger on issues like “release to one release to all,” ways to make FOIA searches faster, easier and more thorough for the public AND executive agencies, and collecting and making FOIA’d information more easily findable and usable. But we got started in those directions and also moved the ball forward on improving agency training, raising the profile of FOIA within agencies, expanding the use of new technologies, and strengthening the management of FOIA across the government.

Recommendations for the National Archives and Records Administration, the Office of Government Information Services, U.S. Department of Justice’s Office of Information Policy, and federal agencies.

Enhancing Online Access

1. We recommend that the Office of Government Information Services undertake an assessment of the information agencies make publicly available on their FOIA websites to facilitate the FOIA filing process, and for the purpose of informing further guidance by the Office of Information Policy on how agencies may improve online descriptions of the process.

2. We recommend that the Office of Information Policy issue guidance to require agencies to include records management-related materials as part of agency websites and FOIA handbooks maintained pursuant to FOIA.

3. We recommend that agencies work toward the goal of collecting, describing, and giving access to FOIA-released records in one or more central repositories in standardized ways, in addition to providing access on agency websites.

Improving Training

4. We recommend that the National Archives and Records Administration and the Office of Information Policy offer targeted training in selected topics in federal records management to FOIA officers and FOIA Public Liaisons in federal agencies, and otherwise include a FOIA module in selected records management training courses open to all federal employees.

5. We recommend that the Office of Information Policy issue guidance requesting agencies to provide annual mandatory FOIA training to all agency employees, as well as provide FOIA training to all new agency employees and contractors onboarding with an agency, including program-specific training if applicable. We further recommend that the Office of Government Information Services and the Office of Information Policy undertake a study of agencies’ current FOIA training requirements and content.

6. We recommend that the Office of Government Information Services and the Office of Information Policy assist agencies in establishing briefings for senior leaders during transition to a new administration or any change in senior leadership, for the purpose of providing a thorough understanding of their agency’s FOIA resources, obligations, and expectations during the FOIA process, as well as on matters of records management.

Raising the Profile of FOIA within Agencies

7. We recommend that the Office of Government Information Services and the Office of Information Policy examine the FOIA performance measures used in Agency Performance Plans and Reports to encourage agencies to include FOIA in their performance plans. We further recommend that the Office of Government Information Services submit the results of its assessment and any recommendations to Congress and the President in accordance with 5 U.S.C. § 552(h)(5).

8. We recommend that the Office of Information Policy collect information as part of each agency’s Chief FOIA Officer Report regarding standard operating procedures for the processing of FOIA requests to increase public transparency and to encourage agencies to improve their internal processes.

9. We recommend that the National Archives and Records Administration incorporate and further develop the idea of public access to federal records, including through FOIA, as part of its Federal Electronic Records Modernization Initiative.

10. We recommend that the National Archives and Records Administration and the Office of Information Policy each establish a liaison with the newly created Chief Data Officers Council for the purpose of ensuring that Council officials understand the importance of federal recordkeeping and FOIA requirements and how such laws apply to the maintenance of data within agencies.

Embracing New Technologies

11. We recommend that the Office of Information Policy provide further guidance on the use of e-discovery tools to assist agencies in meeting their obligations to conduct an adequate search of electronic records, including but not limited to email in Capstone repositories.

12. We recommend that agencies release FOIA documents to the public on their FOIA websites and in FOIA portals in open, legible, machine-readable and machine-actionable formats, to the extent feasible.

13. We recommend that agencies conduct a comprehensive review of their technological and staffing capabilities within two years to identify the resources needed to respond to current and anticipated future FOIA demands.

Providing Alternatives to FOIA Access

14. We recommend that the Office of Government Information Services and the Office of Information Policy have agencies identify common categories of records requested frequently under the FOIA and/or Privacy Act by or on behalf of individuals seeking records about themselves, for the purpose of establishing alternative processes for providing access to these records to requesters in a more efficient manner than the FOIA.

15. We recommend that agencies provide for the dissemination of information outside of FOIA, including in online databases where members of the public may access commonly requested types of documents.

Recommendations for the Chief FOIA Officers Council

16. We recommend that the Chief FOIA Officers Council create a committee for cross-agency collaboration and innovation to:

  • Research and propose a cross-agency grant program and other revenue resources for FOIA programs;
  • Review and promote initiatives for clear career trajectories for FOIA professionals, building on the Government Information Specialist job series and in coordination with existing agency efforts; and
  • Explore and recommend models to align agency resources with a commitment to agency transparency.

17. We propose that the Chief FOIA Officers Council recommend that agency leadership annually issue a memorandum reminding the workforce of its responsibilities and obligations under FOIA and encouraging the workforce to contact the agency’s FOIA Officer for assistance with the FOIA process.

Recommendation for the Council of the Inspectors General on Integrity and Efficiency

18. We recommend that the Chair of the Council of the Inspectors General on Integrity and Efficiency consider designating as a cross-cutting project or priority area the issue of how successful agencies are in providing FOIA access to agency records in electronic or digital form.

Recommendations for Congress

19. We recommend that Congress engage in more regular and robust oversight of FOIA and the long-standing problems with its implementation; that Congress hold more hearings, establish a more regular and coordinated stream of communication and inquiries to agencies around FOIA issues; and that Congress strengthen the Office of Government Information Services with clearer authority and expanded resources.

20. We recommend that Congress directly address the issue of funding for FOIA offices and ensure that agencies receive and commit sufficient dedicated resources to meet their legal obligations to respond to FOIA requests in a timely manner both today and in the future.

Additional Recommendations: Looking to the Future

21. The Archivist should continue to take a leadership role in ensuring that ongoing and future federal data strategies incorporate existing FOIA access and federal recordkeeping policies.

22. The Archivist should work with other governmental components and industry in promoting research into using artificial intelligence, including machine learning technologies, to (i) improve the ability to search through government electronic record repositories for responsive records to FOIA requests and (ii) identify sensitive material for potential segregation in government records, including but not limited to material otherwise within the scope of existing FOIA exemptions and exclusions.

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