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 Treasury Inspector General recently released an audit that the IRS isn’t doing an adequate job of making sure that the highest earners are paying their fair share.
Surveys consistently report that most citizens believe that everyone should pay their fair share of taxes. Party affiliation doesn’t affect their opinion.
“Only 6% of Americans think it is morally acceptable for people not to report all their income on their taxes, according to a January 2013 Pew Research survey. The vast majority of the public (71%) says this practice is morally wrong, while 19% think failure to report income isn’t a moral issue. Few of any partisan persuasion think that not reporting their full income is morally acceptable: Republicans (5%), Democrats (7%) and independents (5%) are about as likely to say this. However, Republicans are more likely than Democrats to call this morally wrong (78% vs. 68%), while Democrats are more likely to frame it as “not a moral issue” (21% vs. 15%).”
IMPACT ON TAXPAYERS
The gross Tax Gap is the estimated difference between the amount of tax that taxpayers should pay and the amount paid voluntarily and on time. The average annual gross Tax Gap is estimated to be $441 billion for Tax Years 2011 through 2013, and approximately $39 billion (9 percent) is due to nonfilers, taxpayers who do not timely file a required tax return and timely pay the tax due for such delinquent returns. According to the IRS, high-income nonfilers, although fewer in number, contribute to the majority of the nonfiler Tax Gap.
WHY TIGTA DID THE AUDIT
In past audits, TIGTA identified serious lapses with the IRS’s nonfiler strategy. This audit was initiated to determine whether the IRS is effectively addressing high-income nonfilers and if the new nonfiler strategy and related plans sufficiently include this segment of nonfilers.
WHAT TIGTA FOUND
The IRS is still in the process of conducting testing; however, the new nonfiler strategy appears to approach nonfiling in a more strategic manner. However, the strategy has not yet been implemented, and TIGTA identified that the new nonfiler program is spread across multiple functions with no one area being primarily responsible for oversight. In addition, more needs to be done to address high-income nonfilers. TIGTA analyzed the Individual Master File Case Creation Nonfiler Identification Process inventory for Tax Years 2014 through 2016 and identified 879,415 high-income nonfilers that did not have a satisfied filing requirement, with an estimated tax due of $45.7 billion. Of the 879,415 high-income nonfilers, TIGTA identified:
. The IRS did not work 369,180 high-income nonfilers, with estimated tax due of $20.8 billion. Of the 369,180 high-income nonfilers, 326,579 were not placed in inventory to be selected for work and 42,601 were closed out of the inventory without ever being worked. In addition, the remaining 510,235 high-income nonfilers, totaling estimated tax due of $24.9 billion, are sitting in one of the Collection function’s inventory streams and will likely not be pursued as resources decline.
. The IRS removed high-income nonfiler cases from inventory, resulting in 37,217 cases totaling $3.2 billion in estimated tax dollars that will not likely be worked by the IRS.
In addition, due to the policy on working single tax year cases without regard to how many returns have not been filed by a taxpayer, the IRS is missing out on opportunities to bring repeat high-income nonfilers back into compliance. TIGTA also identified the top 100 high-income nonfilers for Tax Years 2014 through 2016 that the IRS did not address or resolve, who had estimated tax due totaling $9.9 billion.
There’s an interesting thread on the govdoc-l listserv regarding “threshold concepts” for government information — core concepts which, once understood, “transform perception of a given subject, phenomenon, or experience” or as someone on govdoc-l stated “concepts that are so foundational that people immersed in a discipline take them for granted.” We think some of the issues being discussed there can benefit from making explicit some of those foundational ideas of govinfo that we probably all hold in common but that we rarely articulate or discuss. Here are seven of them:
1. Public Information.
The U.S.Code and the Office of Management and Budget define different categories of government information. Perhaps most familiar to government information specialists are the categories of "records" and "publications." But these are just two of six categories — each one narrower than the one above it. The six categories are defined in OMB Circular A-130 (pp. 26‑37).
…… Federal Information
……………… Public Information
…………………… Information dissemination product
………………………… Government Publication
In discussing threshold concepts, we believe it is essential to have a clear understanding of this hierarchy of information and the difference between levels.
As we have suggested before we believe that the most appropriate of those levels when discussing library policies is that of "Public Information," as defined in Chapter 35 of Title 44:
The term "public information" means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.
2. Information vs. Information Services.
While it is certainly true in the digital age that the federal government provides access online to much of its public information and "organizes" it for access and use, we should understand that there is a difference between such services and the actual content provided by those services. These days, it is common to speak of the services as "e-government."
E-government is a service. It is like the gate at a national park. The park is a resource and the gate is a service that protects the resource and provides access to it — but is not the resource itself. Agencies keep their resources in silos and decide how to organize and present that information through their websites.
Public information is a resource, like a national park, and government websites are like the gates at national parks. When the government controls the resource by keeping it in its own information silos and allowing access only through its gates, the government controls what we can use. We lose access to the information during a government shutdown or when an agency takes information offline. Agencies can alter and move information or impose fees or restrictions on access when they control the only copy of the information resource. And no agency can guarantee that its siloing or its organization and presentation of its content will meet the needs of every community of users, or of user communities in the future.
We have analyzed this issue in more detail here: Information is not a Service, Service is not Information and here: FDLP: Services and Collections.
3. Public Information is essential to democracy.
In order for a democracy to function, it is essential for citizens to have an accurate record of its government including authentic government records of its actions and the data it collects, creates, and uses.
Familiar examples include Congressional debates and hearings, laws and regulations (e.g., USC, CFR), official statistics (e.g. GDP, CPI, censuses, surveys), judicial hearings and decisions, administrative records (e.g. aggregations of state records of births, deaths, marriages, crime, health, etc.), position statements, policies, press releases, and transcripts of press conferences.
Such records need to be accessible to the public in order for citizens to be able to hold government accountable. Citizens also need these records to be preserved over time so that they can have an accurate record of the history of government actions, changes in policy, and the data government use to determine those policies and actions.
Such records need to be preserved and accessible in context. For example, a record of a single speech in Congress needs to be preserved in the context of all speeches in Congress; a single law must be preserved in the context of all laws and regulations; the census of the population of a city needs to be preserved in the context of its populations in previous censuses and in the context of the censuses of other cities.
"Context" also includes the methodologies used to measure, collect, aggregate and present raw information. For example, it is important that The Congressional Record makes clear that it is only a "substantially verbatim" record and that Members may revise and extend their remarks after the fact, before they are published.
And it is essential for methodologies used to create economic indicators such as GDP an CPI be part of the record of those indicators.
The records of government must be accurately preserved without alteration and must be accessible in such a way as to assure users that those records are authentic and complete.
Note that government records may contain inaccuracies and both those inaccuracies as well as any corrections to those inaccuracies must be accurately preserved. The official record of a government is the record of "what the government knew" and what officials said at any given point in time. It is only by preserving this record that citizens can hold agencies and officials accountable.
There are many controversies over the methodologies used to create government statistics. Such controversies (and all methodologies) reflect political assumptions and political goals. Preserving the methodologies, raw data, and published statistical indicators, provides the potential for creating better policies with better data and better indicators.
5. Gray areas of information distribution.
In the digital age, "government information" is available from many sources including non-official sources. While the Congressional Record is the official record of Congress, it is easy to find video recordings of what actually happened on the floor of Congress (without revisions or "extensions of remarks") on C-Span and Twitter.
The most notable example of this gray area in current administration is, of course, tweets by the President under his personal twitter account.
The digital age thus often presents citizens with confusing and contradictory information and presents libraries with complex and difficult policy and collection choices.
6. Misinformation, Disinformation, and Propaganda.
It is essential to have accurate and authentic preservation of Public Information in order to counter misinformation, disinformation, and propaganda whether distributed by government or non-government sources.
We do not have to agree on the accuracy or mendacity of official (and un-official) statements, speeches, comments, tweets, etc. to agree that it is essential that "Public Information" produced and created by government agencies and individual officials be accurately preserved. It is only by doing so that citizens will have an accurate record of policy debates and decisions and can contextualize that record within the wider historical record.
It is only by having an accurate and authentic record of Public Information that the truthfulness and accuracy of the content of those records can be determined. It is only by having such a record of Public Information that agencies and officials can be held accountable for their claims, policies, and actions.
7. Role of libraries.
Libraries should accept, continue and maintain their traditional role of ensuring long-term access to Public Information for their own user-communities because government agencies cannot and are not doing so.
Preservation. Although the federal government makes Public Information available through e-government information services, very few government agencies have legal mandates, or budgets, or policies for preserving that information or for providing long-term, free public access to it. Most Public Information is not being adequately preserved or curated. Libraries need to continue their critical societal role in curating government information. They can do this by building their own digital collections of government Public Information.
Access. As noted above, no agency can guarantee that its e-government information service will meet the needs of every community of users. Libraries can address the access and use-needs of specific communities-of-interest, while government agencies attempt to address only a broad, monolithic public.
Service. When libraries build services for their user communities based on digital collections that they acquire and control, they will be able to combine non-government information with Public Information from different agency silos to create unique user-experiences that no government agency can. By addressing the needs of their specific user-communities, libraries can provide more services and better services than any government agency can provide. These services can include both traditional reference services provided by subjects specialists as well as online digital services. We have written more about this idea here: Building a Collaborative FDLP.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America U p Again
Journalists reported in May that CDC had created a 60 page + document on reopening for public distribution but that some administration appointees had blocked its release and issued instead a 17 page document of information they already published. A librarian searched CDC’s website and couldn’t find and therefore initiated a FOIA request.
The 17 page version the administration released is available at Stanford’s Institutional Repository.
Recently, the CDC/ATSDR FOIA Officer notified the librarian making a FOIA request that CDC had indeed made the document available at their website and therefore their request was unnecessary.
GPO will make available through the Federal Library Depository Program.
co-published on govdoc-l and freegovinfo.info.