New OGIS Report Highlights Need for FOIA Reform; Observes “lack of knowledge” about FOIA Guidelines

In its second National Action Plan (NAP) for the Open Government Partnership (OGP), the White House committed to standardizing FOIA practices across federal agencies, improving agency FOIA processes by reducing backlogs and promoting proactive disclosure, and increasing FOIA trainings across the government. A new report from the Office of Government Information Services (OGIS), made public on Friday, shows that the Administration’s commitments thus far have not led to significant FOIA improvements in poor-performing agencies, and illustrates the need for the government to adopt more ambitious commitments on FOIA in its forthcoming third Plan.

The OGIS report assesses the Federal Emergency Management Agency (FEMA) FOIA program, and concludes that significant improvements still need to be made. The evaluation is one of six that OGIS is conducting on the FOIA programs at the different components of the Department of Homeland Security, which receives the most FOIA requests of any agency and also has the largest backlog. The persistent problems in FEMA’s FOIA process indicate that the Administration’s FOIA improvement efforts are not extending to the poorest-performing agencies.

In its assessment, OGIS reported on the lack of FOIA knowledge and training among FEMA staff, resulting in an inefficient process and significant backlog of requests. OGIS found that “lack of a response was a factor in all 16 FOIA lawsuits filed against FEMA since 2009, costing the agency more than $364,000 in litigation expenses.”  The report stated that this backlog was largely due to inefficient use of software, meaning that even simple requests were not being answered, including requests for documents that had already been made public by FEMA.

Although FEMA employees reportedly attended the Department of Justice’s Office of Information Policy FOIA trainings, OGIS noted a broad “lack of knowledge” on the Attorney General’s FOIA Guidelines, specifically on conducting an analysis of the harm that would be caused if information is released that might otherwise be withheld under an exemption.

The report’s recommendations include: further training and a standard operating procedure for FOIA processing, particularly concerning records management; improving management and oversight; improving tracking, processing, and proactive disclosure through better use of technology; and improving responsiveness to requesters.

As the Administration enters its final stage of drafting its 3rd OGP National Action Plan, scheduled for release in October, the OGIS report illustrates the need for the White House to adopt initiatives that strengthen the openness policies laid out on the first day of this Administration, when the President promised to usher in a “new era of openness.” Specifically, civil society is advocating for a commitment from the White House to promote legislative reforms that enshrine the “presumption of openness” in FOIA, and other measures to ensure that the openness initiatives undertaken by this Administration continue on to the next. 

U.S. open government groups have developed these recommendations and more in the civil society model Plan, which you can read here

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