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Attorney General’s Report to the President on Executive Order 13,392, "Improving Agency Disclosure of Information"

On May 30, 2008, the Attorney General submitted his third Report to the President on Executive Order 13,392, “Improving Agency Disclosure of Information.”  In accordance with the Executive Order, this Report is based on agency Annual FOIA Reports for Fiscal Year 2007 and it provides "an update on the agencies' implementation of the FOIA and of their plans" for improving their FOIA operations.

The 2008 Report is the last of the Attorney General reports required by the Executive Order.  It contains a detailed discussion of agency activities under the Executive Order, including the challenges agencies have faced.  Section I of the Report provides an overall assessment of agency progress and finds that “[t]hrough a wide variety of initiatives, agencies addressed multiple aspects of FOIA administration within their agency and made remarkable improvements.”  Moreover, all agencies reported achieving some success in meeting their milestones and goals under their FOIA Improvement Plans and more than half the agencies successfully met all their goals and milestones for this reporting period and had no deficiencies.

The 2008 Attorney General’s Report takes note of the fact that several key provisions of the Executive Order, such as the designation of agency Chief FOIA Officers and FOIA Public Liaisons, as well as the requirement for tracking requests, have now been made part of the FOIA statute itself as a result of passage of the OPEN Government Act.  As the Report notes, “this will be a lasting legacy of the Executive Order.”

Section II of the 2008 Attorney General’s Report contains a detailed discussion of agency activities under the Executive Order, focusing on six key areas – specifically, backlog reduction, proactive disclosure of information, improved FOIA Websites, use of technology, enhanced request tracking, and improved customer service.  In the critical area of backlog reduction, the 2008 Attorney General’s Report recognizes that although there have been real improvements in backlog reduction, agencies still face many challenges in this area, including some that are outside the agencies’ control, such as the number and complexity of the requests they receive.

Section III of the Report provides a discussion of the areas where agencies have encountered difficulties in meeting their milestones or goals under their FOIA Improvement Plans.  Many agencies have already taken steps to remedy their deficiencies.  As occurred last year, agencies experiencing any deficiencies were required by the Executive Order to report them to the President’s Management Council.

Lastly, Section IV of the Report provides a series of recommendations.  As noted in the Report:  “These recommendations look forward beyond the end of the Executive Order's implementation period to ensure its policies continue to improve FOIA practice in the years to come.”

Specifically, the first recommendation directs any agency with a deficiency that was not fully cured by the time of the filing of its Annual FOIA Report, to submit an Updated Status Report to the President’s Management Council by August 1, 2008.  This report must describe the steps the agency has taken, or will take, to correct the deficiency.

The second recommendation builds on the new requirements issued by the Department of Justice for agencies to report on their backlogs of pending requests in their Annual FOIA Reports.  As noted in the 2008 Attorney General’s Report:  “One point that emerges from the last two years of implementation of the Executive Order is the necessity to continue to focus attention on backlog reduction.” The second recommendation in the Attorney General’s Report is directed to any agency that has a backlog of requests and has not made progress in reducing that backlog over the last two years.  Such agencies are required to develop a backlog reduction plan and submit it to their agency’s Chief FOIA Officer for his/her approval by September 8, 2008.  In developing the backlog reduction plan, the Report directs agencies to “consider whether appropriate staffing and agency support is being given to FOIA activities.”  The Chief FOIA Officer, in turn, must notify the Department of Justice and OMB by October 6, 2008, that he/she has approved the backlog reduction plan.

The third recommendation addresses the important topic of FOIA Reading Rooms.  As the Report notes, although “the Executive Order has prompted improvements to agency FOIA Reading Rooms, some agencies still need to devote more attention to ensuring that, at a minimum, their Reading Rooms contain all the material that is required by the FOIA to be included there.”  The Department of Justice has initiated a series of activities designed to assist agencies in improving their FOIA Reading Rooms.  The third recommendation builds on that initiative and directs agencies to conduct an internal review of their FOIA Reading Rooms and if necessary, to address any deficiencies in their content.  Each agency’s Chief FOIA Officer is then required to certify to OMB and the Department of Justice by October 31, 2008, that their agency FOIA Reading Room is in compliance with the FOIA.

The 2008 Attorney General’s Report concludes by finding that “the agencies of the Executive Branch have worked hard to implement Executive Order 13,392 in a vigorous manner.”  Moreover, the Report finds that overall, agencies “have made steady and meaningful progress in meeting the milestones and goals they set.”  Significantly, “[a]ll agencies have made progress under their FOIA Improvement Plans, and many have truly excelled.”  Going forward, the Department of Justice will continue to provide guidance and encouragement to agencies to assist them in their on-going efforts to improve the administration of the FOIA.

The 2008 Attorney General’s Report to the President is now available electronically on the Department of Justice's FOIA Web site at 6/10/2008)