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Our friends at CREW (Citizens for Responsibility and Ethics in Washington) broke this story on August 7, 2020 about the Environmental Protection Agency (EPA) illegally destroying records and lying about it. Oddly enough, EPA didn’t destroy records because they were damaging to the agency’s reputation or were evidence of agency misdeeds. The records were originally damaged by a water sprinkler accident. But instead of acting quickly to dry the records, they let them fester for several months and get moldy. And then they didn’t follow protocol set under federal law requiring that the National Archives and Records Administration (NARA) evaluate and approve requests to destroy contaminated records. No, EPA just went ahead and destroyed the records and then the EPA lied to NARA to cover up their incompetence. This is a case that clearly points to the need for improving training and raising the profile and importance of record-keeping within agencies (2 recommendations put forth by the 2018-2020 FOIA Advisory Committee).
Americans must be able to trust that executive agencies are taking care of OUR records. Sadly, in this instance, EPA failed our trust.
The Environmental Protection Agency illegally destroyed records, deceived the National Archives and Records Administration (NARA) about that destruction, and falsely blamed the coronavirus pandemic to escape accountability, according to internal documents uncovered by CREW.
Here’s a very interesting interview with Leslie Johnston, the director of digital preservation at NARA, in which she describes “cloud-to-cloud” data transfers as a key process to MARA’s digital preservation efforts. This is another form of “digital deposit” that we’ve been discussing in our GPO digital deposit working group and I hope that we in the FDLP community can explore further. It would be so amazing to have a system in place – and legislation to support said system! – to transfer records from agencies to NARA and publications from agencies to GPO.
Leslie Johnston, Director of Digital Preservation at the U.S. National Archives, explains how NARA’s new Digital Preservation Framework is helping agencies transfer their records to the National Archives cloud as part of a digitization effort driven by law
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.
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.
Unredacted, the National Security Archive’s blog, analyzed the latest annual agency FOIA report from the Department of Justice’s Office of Information Policy (OIP), and found that the report over calculated and misrepresented the government’s release rate of FOIA requests. The FY2019 summary report said that agencies had achieved a government-wide release rate of 94.4% (up from 93.8% last year), but the Natl Security Archive’s analysis and math — when taking into account things like counting nearly entirely redacted documents as successful partial releases, and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons” — showed that a more accurate release rate calculated by the Archive and others “hovers between 50 and 60 percent.”
That’s not good. OIP and agencies across the federal government MUST do better, must conduct more efficient searches, must find more ways to proactively post documents online etc. The 2018-2020 FOIA Advisory Committee to the National Archives (of which I’m a member) has some very good recommendations in their draft report for making FOIA better. This is the peoples’ information. While there are legitimate reasons for limiting access to *some* information (see the 9 FOIA exemptions), agencies have to stop using bureaucratic impediments to block, deter, and obfuscate the public’s right to know what their government is doing in their name.
The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent.
Other highlights from the report include:
- The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
- Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
- Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
- As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
- Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
- The appeals backlog continues to grow – up to 5,087.
- Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
- Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.
- Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.
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.