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The most recent quarterly meeting of NARA’s FOIA Advisory Committee (of which I’m a member) occurred last friday (12/6/19). You can watch the entire meeting as it was live-streamed on NARA’s YouTube channel (below).
I consider myself fortunate to be able to work with this committee — 1/2 of its members are FOIA officers at federal agencies, and 1/2 are from various parts of the requester community: academics, lawyers, FOIA activists and myself the lone librarian. The committee works to identify challenges that exist with the FOIA and then issues official recommendations to improve FOIA at the end of each term. For the 2018-2020 term, the committee has broken out into three subcommittees — Records Management (of which I’m a member), Time/Volume, and Vision — and we’ve been working diligently on recommendations for our final report. You can see in the links below what each of the subcommittees has chosen to focus in on to make FOIA better.
The committee is currently working on quite a few sticky issues, not least of which are “release to one release to all” — which was developed by the Obama administration in 2016 but is still “under consideration” by the Office of Information Policy (OIP) at the Department of Justice — as well as the 2 issues closest to my librarian heart, a central FOIA repository and FOIA documents in both human-readable and machine-actionable formats (draft recommendations 8 and 9 of the records management subcommittee).
- Time/Volume Subcommittee Proposed Recommendations to the 2018-2020 FOIA Advisory Committee
- Records Management Subcommittee Proposed Recommendations # 8 and 9 to the 2018-2020 FOIA Advisory Committee
- Vision Subcommittee Proposed Recommendations to the 2018-2020 FOIA Advisory Committee
- FOIA Officer Survey Results DRAFT – December 4, 2019
- FOIA Requester Survey Results DRAFT – December 4, 2019
I’d like to give a shout-out to tireless public open government advocate Alex Howard (formerly from Sunlight Foundation) who has shown up at each of our meetings and has given substantive input, comments and critiques during the public comment portion of each meeting and via live-blog and twitter during each meeting. We should have more advocates like Alex who not only keeps the government’s feet to the open-government fire but also gives positive, actionable policy and technical advice to achieve real advances in FOIA and government transparency generally.
In December 2016, President Obama also ordered the White House Office of Management and Budget (OMB) to make FOIA a “cross agency priority” goal. Unfortunately, the Trump administration removed the Cross Agency Priority Goal for FOIA on Performance.gov without notice.
An administration that’s serious about improving public access to our records and being good stewards of taxpayer dollars and public information would restore said goal, perhaps as a commitment in some sort of comprehensive “national action plan on open government.”
While the FOIA Advisory Committee is full of people working in good faith to improve how sunshine in government works for the public, this administration has reversed or neglected many of the open government policies or programs of the past decade and weaponized transparency through selective disclosures.
As has been the case for years, it falls to Congress to perform oversight of the FOIA and ensure that public access to public information continues to improve through implementation of the FOIA reforms President Obama signed into law in December 2016 and the open government bill President Trump signed into law in January 2019.
The Archivist of the US (AOTUS) released NARA’s plan for a Digital Preservation Framework consisting of a “Risk and Prioritization Matrix” and 15 File Format Preservation Action Plans. NARA is asking that the public submit comments on NARA’s GitHub site through November 1, 2019.
In particular, we are hoping to get feedback on the following topics:
- What revisions can you suggest to the proposed processing and preservation actions for the formats?
- Are the Essential Characteristics for each record type comprehensive enough for digital preservation?
- Are the proposed preservation actions for the formats technically appropriate?
- Are there appropriate tools for processing and preservation of specific formats that we do not have listed?
- What can you suggest in terms of appropriate public access versions of the formats?
- Are there other formats we haven’t identified that need plans?
You can use the issues feature in Github to leave a comment or question or start a discussion. Read more about how to contribute here. So, go ahead, start digging in to your favorite file format and tell NARA your thoughts.
Today NARA is releasing the entirety of our digital preservation framework for public comment. This digital preservation framework consists of our approach to determining risks faced by electronic files, and our plans for preserving different types of file formats. The public is encouraged to join the discussion, September 16 through November 1, 2019, on GitHub.
This just in from our friends at MuckRock: Senate introduces legislation to clarify presumption of disclosure in FOIA. This new bill will will protect public access to information from private entities that do business with the government following the *terrible* Supreme Court decision in Food Marketing Institute v. Argus Leader, which overturned more than 40 years of FOIA precedent by letting corporations decide whether the public was entitled to access government spending information. Also, according to OpenTheGovernment’s analysis, the bill addresses “…the EPA’s move to undermine FOIA by issuing regulations, without the legally required public notice and comment period, that appear to allow officials to withhold portions of documents as “not responsive” to a FOIA request, despite a federal court ruling forbidding the practice.”
The “Open and Responsive Government Act of 2019” would address limits to FOIA being imposed by regulatory agencies, in addition to those recently created by the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media. That decision allowed for a broad interpretation of confidentiality under the FOIA’s b(4) trade secret exemption, and transparency advocates are confident the ruling, if allowed to stand, would severely limit access to government dealings with private companies.
“Last month’s Supreme Court overturned more than 40 years of FOIA precedent, and will force government agencies to withhold large swaths of information about private contractors and other companies who do business with government,” said Emily Manna, policy analyst at Open The Government. This bill would return us to the status quo, and restore the public’s right to access this critical information.”
The proposed amendments would expand the language of the “trade secrets” exemption to explicitly require a standard of substantial harm for the nondisclosure of commercial information. That standard seemed to have been set by the case National Parks & Conservation Ass’n v. Morton, but the Supreme Court’s recent ruling did not acknowledge it.
Our pals over at MuckRock have been working not only on FOIA at the federal level (MuckRock co-founder Michael Morisy is a colleague of mine on NARA’s FOIA Advisory Committee and was highlighted last month on the FOIA Ombudsman’s blog!). They’ve also been working on FOIA/open records at the state and local levels. Check out their new 4-part series “What’s the state of state public records law?” written by Jessie Gomez.
Over the last nine months, our FOIA Fellow Jessie Gomez has been looking at public records law across the nation through our State of State Public Records Law project. Today, we’ll be exploring the major takeaways from her reporting.
Primarily, our coverage has dealt with ambiguities within records law, barriers to access, legislative efforts to reform state records law, and the notable players that have made transparency a reality. Our series will take a look at all of these components and their contributions to your state’s law…
…Public records law has become an integral part of keeping our government accountable. Although it can oftentimes be difficult to navigate, its effect on democracy has been worth the battle.
A new administration has led the public to begin asking questions about their government and know more about its role in their daily lives. With a growing interest to keep those in power under close watch, FOIA and the public records system will remain a powerful tool.
As for the actual system, it’s no surprise that records law continues to face challenges in unlocking information for the pubic. However, ongoing conversations to reform both FOIA and state public records law have led to changes at the local level and reforms in states like California, Massachusetts, and New York.
Although it can seem like the state of public records law isn’t getting any better, so long as that conversation is ongoing, requesters can rest assured that it is headed in the right direction and will continue to evolve.
Happy Sunshine week (well, technically it’s next week, March 10-16, 2019)! The National Security Archive did a massive FOIA audit which showed that FOIA delays and backlogs continue across federal agencies. the most interesting/disturbing to me were the requests that fell into a FOIA “referral black hole” where agencies refer to or consult with other agencies on “any FOIA request in which it feels another agency or agencies may possibly claim ownership of, or “equity” in, the information within the records.” These referrals often result in massive delays.
One of the easiest ways to better deal with these referral delays is to allow FOIA.gov‘s request form to be submitted to multiple agencies (or multiple units within agencies) if the requester feels that the question overlaps agencies. but If anyone has other good ideas for how agencies can more quickly deal with the “referral black hole” please send me an email at freegovinfo AT gmail DOT com.
Washington, D.C. March 8, 2019 – Five federal agencies have FOIA requests more than a decade old and one, the National Archives and Records Administration, has a FOIA request more than 25 years old, this according to a National Security Archive Audit released today to mark the beginning of Sunshine Week. The survey also found there is a correlation between agencies with the oldest FOIA requests and those with the largest FOIA backlogs.
The Archive Audit team parsed through the annual FOIA reports federal agencies are required to submit to the Department of Justice’s Office of Information Policy and found that while many agencies appear to have used new reporting requirements as a tool to address the oldest agency FOIA requests, others have let decades-old requests linger. The Archive used the Fiscal Year 2017 reports because they were the most comprehensive collection available at the time of publication due to the delay caused by the government shutdown, and will update this posting once the complete set of FY 2018 reports are available.
The key driver for FOIA requests that could be renting cars by now and growing backlogs is the “referral black hole.” Agencies currently refer or consult on any FOIA request in which it feels another agency or agencies may possibly claim ownership of, or “equity” in, the information within the records. This daisy chain of referrals can often result in decades-long delay, and the re-review of the same document by multiple agencies is redundant, costly, and inefficient.