During the quarterly meeting of the Federal Freedom of Information Act (FOIA) Advisory Committee—which is part of the Office of Government Information Services (OGIS)—on Jan. 16, the participants weighed in on recommendations from subcommittees in preparation for drafting a final report to the Archivist of the United States, David S. Ferriero. The recommendations are the result of research conducted throughout the committee’s 2-year term of office (2016–2018) as its members sought practical ways to improve federal agency FOIA operations. The approved recommendations—concerning decisions agencies make to proactively disclose records, efficiencies agencies can achieve in processing FOIA requests, and measures agencies can take to improve the search for requested records—will now be combined into a final report to be voted on during the committee’s April 17 meeting.
Copies of the original subcommittee recommendations, as well as the amended versions as a result of the Jan. 16 deliberations, can be found on the FOIA Advisory Committee meeting page, which also contains a link to the YouTube channel where you can view a recording of the deliberations.
Some agencies routinely proactively disclose information on their websites, including the Census Bureau, the Bureau of Labor Statistics (e.g., reports on unemployment and consumer spending), the National Weather Service (e.g., forecasts, past weather data, and weather fatalities), and the Centers for Disease Control (e.g., information about vaccinations/immunizations and health risks associated with travel to particular destinations). Many agencies publish inspection and enforcement data, such as the Department of Labor.
The subcommittee proposal asks that agencies consider whether their routine activities produce records of their actions, such as inspection reports, warning letters, citations, fines, and penalties. Proactive release of these materials would benefit the public interest by helping people 1) understand agency enforcement activities, choices, and policies and 2) make informed decisions when purchasing a company’s products. Other categories of records that could be considered for proactive release might be regulatory forms or records that are frequently requested.
Careful review of an agency’s FOIA request backlog could indicate which categories of records should be considered for proactive release in order to reduce the backlog. Agencies should also weigh the burden of records’ proactive disclosure, including necessary review and redactions, against the benefits of their release to the public.
The committee will recommend that the archivist address several aspects of agency compliance with Section 508 of the Rehabilitation Act (requiring that “members of the public with disabilities have comparable access to publicly available information”), including the following:
- Launch an interagency effort that would develop standard requirements for FOIA processing tools to ensure that the tools and their outputs are Section 508-compliant.
- Encourage agencies to keep documents that do not currently comply with Section 508 available on their websites, but work to make them compliant.
- Request that OGIS conduct an assessment of the methods undertaken by agencies to prepare documents for posting on agency FOIA reading rooms.
Records that were digitized years ago may not be Section 508-compliant and should be re-scanned, but agencies should not claim that records cannot be released simply because they are not Section 508-compliant. (Lack of resources to remediate the situation is often used as an excuse not to post records.) They are allowed to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.
The committee encourages OGIS to “highlight the issues with proactive disclosure and 508 compliance in its report to Congress by recommending that legislation be enacted to clarify agency requirements under the Rehabilitation Act, especially as they relate to proactive posting of large numbers of records.” A copy of the subcommittee memo of recommendations related to accessibility can be found here.
Recommendations to the archivist also highlight the need to collect data to better understand precisely how agencies conduct FOIA searches of electronic records. The specific methods and technologies agencies use to comb through electronic records, including emails, should be part of each agency’s annual Chief FOIA Officer Report.
The committee recommends that the Chief FOIA Officers Council partner with the federal CIO Council “to study the utilization and deployment of FOIA technology across agencies and identify best practices and recommendations that can be implemented across agencies.” The committee encourages “FOIA offices to procure technology to aid federal agencies to more efficiently conduct records searches” and ensure “that agency emails can be efficiently and accurately searched electronically by FOIA offices.” This requires a modification to the Federal Acquisition Regulation (FAR). Advanced technology, including e-discovery tools, will allow agencies to conduct more accurate FOIA searches, saving time and legal costs associated with lawsuits related to delays in processing FOIA requests.
FOIA Advisory Committee Past and Future
The FOIA Advisory Committee was established “in 2014 to foster [dialogue] between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” The 2014–2016 committee developed a set of recommendations for the archivist to submit to the Office of Management and Budget (OMB) that included revising fee guidance for FOIA requests to reflect technological changes in information dissemination and clarifying fee issues for requesters and agencies (to provide a less subjective and more transparent fee-assessment process). The 2014–2016 committee’s final report is available here.
Even if the final report for this term does not contain a recommendation to the archivist to establish a third term for this committee, the public would benefit from an official body charged with continued exploration of ways to support the work of those responsible for releasing federal agency documents.
Prior to the term’s final public meeting, Sunshine Week, another event celebrating access to public information, will be held March 11–17. Details will be posted on sunshineweek.org.