NAP Consultation: FOIA Commitments in the Preview Plan

OpenTheGovernment.org posts summaries of meetings on the Open Government Partnership National Action Plan between civil society members and the administration. Summaries from the first National Action Plan can be found at OpenGovPartners.org/US

Participants:

David Sandler, White House Counsel's Office; Sarah Fenn, White House Counsel's Office; Cori Zarek, National Archives and Records Administration; Kirsten Mitchell, National Archives and Records Administration; Joey Hutcherson, Commerce; Larry Gottesman, Environmental Protection Agency; Tim Crawford, Environmental Protection Agency; John Moses, Environmental Protection Agency; John Haggard, State Department; James Holzer, Department of Homeland Security; Corky Conyers, Office of Personnel Management; Trina Porter, Office of Personnel Management; Jim Hogan, Department of Defense; Melanie Pustay, Office of Information Policy; Bobby Talabian, Office of Information Policy; Julia Horwitz, EPIC; Amy Bennett, OpenTheGovernment.org; Patrice McDermott, OpenTheGovernment.org; Ginger McCall, Sunlight Foundation; Brad Moss, James Madison Project; James Valvo, Cause of Action; Kel McClanahan, National Security Counselors; Gavin Baker, Center for Effective Government; Gretchen Goldman, Union of Concerned Scientists; Emily Grannis, Reporters Committee from Freedom of the Press; Anne Weismann, CREW; Sean Moulton, Center for Effective Government; Jehan Patterson, Public Citizen

Participants discussed commitments related to the Freedom of Information Act (FOIA) that are included in the in the preview of the US' new National Action Plan and civil society's initial recommendations for implementation (below).

In response to the recommendations, there was some discussion about the limitation of FOIA offices to direct proactive dissemination and the importance of continued communication between civil society representatives and agency officials working towards meeting the plan's commitments.

Initial Civil Society Recommendations for New FOIA Commitments

As the open government community has widely noted, the success and sustainability of the Administration’s new round of commitments to make the Freedom of Information Act (FOIA) work better for the public depends on thorough implementation and clear signals from the Administration and agency officials that transparency is a priority. We are optimistic about many of these initiatives, and appreciate having the opportunity to provide input on how to translate these commitments into real and noticeable improvements in the public’s experience using FOIA. We also strongly believe that setting interim deadlines and deliverables for each commitment will improve the process, and are happy to work with you to develop appropriate timelines.

  1. Improve the Customer Experience through a Consolidated Online FOIA Service

The government has committed to:

establish a task force to review current practices, seek public input, and determine the best way to implement this consolidated FOIA service.

Civil society recommendations include:

  • The task force should be established and begin meeting within (90 days);
  • Notice of the task force’s meetings should be posted online (via FOIA.gov, the OGIS website, or other appropriate location) and include stakeholder groups when appropriate;
  • The task force should invite and respond to public input; and
  • The task force should focus on lessons learned by the developers of FOIAonline and the State Department’s new FOIA website to ensure the functionality of the new service is not less than what is currently available and on increasing proactive disclosure.

Additionally, civil society organizations would like to see the following components included in the consolidated service:

  • Ability to submit and track requests and appeals;
  • Access to the contact information of the FOIA officer processing the request;
  • Interoperability between the systems that agencies use to process requests; and
  • Public posting of released records.

2. Develop Common FOIA Regulations and Practices for Federal Agencies

The government has committed to:

initiate 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.

Civil society recommendations include:

  • The Administration should brief leaders of the Senate Judiciary and House Oversight and Government Reform on the initiative and any legal impediments to creating a common regulation;
  • Feedback from requesters and litigators should be solicited and given strong consideration during the development of the proposed rule;
  • The Office of Government Information Services, which regularly comments on proposed agency regulations and has developed a set of best practices for regulations, should lead the effort; and
  • The proposed rule should adopt best practices from existing FOIA regulations and set requester-friendly fee schedules and qualifications for favored fee status. The proposed rule should also set out clear timelines for requesters and for agencies, including timelines for appeals and requests for expedited processing.
  1. Improve Internal Agency FOIA Processes

The government has committed to:

Scale targeted efforts to improve the efficiency of agencies with the biggest backlogs, and to share broadly the lessons learned and strategies to further improve internal agency FOIA processes.

Civil society recommendations include:

  • The government should require agencies look through their FOIA logs to identify requests that frequently come from a common set of documents (or database) and proactively disclose that sets of documents or database.
  • The government should not use any strategies to reduce backlogs that put requesters at a large disadvantage by, for example, letting requesters know that their request will be closed unless they respond in a short time frame or setting up technical barriers for requesters.
  • The government should also look at innovative proactive release strategies as a way to reduce the number of requests made, possibly drawing from and expanding on best practices of agencies identified by civil society groups.
  • The government should examine complaints of unnecessary withholding under FOIA’s exemptions and develop procedures to help agencies better implement President Obama’s call for a presumption of openness.
  • The government should consider procedural hurdles and communications difficulties that can frustrate FOIA requesters and develop strategies to encourage agencies to streamline and improve customer service.

4. Establish a FOIA Modernization Advisory Committee

The government has committed to:

establish a formal FOIA Advisory Committee, comprised of government and non-governmental members of the FOIA community, to foster dialog between the Administration and requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.

Civil society recommendations include:

  • In addition to representatives of agencies with government-wide FOIA responsibilities , the Advisory Committee should include representatives of agencies that face a variety of challenges implementing the FOIA, including the number of requests received, number of employees with FOIA responsibility, size of backlog, and amount of technology used. The committee should also include the perspectives of different types of FOIA requesters, including representatives of the media, frequent public interest FOIA requesters, frequent commercial FOIA requesters, and public interest representatives with expertise in FOIA, government transparency, and information technology.
  • In order to best receive advice from FOIA requesters, the advisory committee should be composed of at least fifty percent members from outside of government, i.e. advocates, practitioners, industry representatives, academics, and other experts.
  • The Advisory Committee should uphold a high standard of transparency in its activities by implementing the Best Practices for Federal Advisory Committees developed by the Project On Government Oversight – POGO and the Union of Concerned Scientists.

5. Improve FOIA Training Across Government to Increase Efficiency

The government has committed to:

make standard e-learning training resources available for FOIA professionals and other Federal employees and encourage their use.

Civil society recommendations include:

  • Consult with stakeholders in the open government community in developing the training resources, including soliciting feedback on drafts as appropriate.
  • Upon issuance, make the training resources publicly available.
  • Include strategies for increasing proactive disclosure and discretionary releases in the training resources.
  • Include FOIA compliance and assistance as a factor in overall job performance review for all employees with information management responsibilities, regardless of whether they specialize in administering FOIA and other information programs.

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