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Agencies Continue E-FOIA Implementation

Across the federal government, executive branch agencies continue to implement the provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 5 U.S.C. § 552 (as amended), commonly referred to as "E-FOIA."

While the E-FOIA amendments contained a number of procedural provisions (such as multi-track processing, expedited access, and database searching) that affect the processes by which agencies respond to traditional requests for records under the Act, a growing amount of attention is being paid to the obligations of all agencies under the E-FOIA provisions that require agencies to automatically make certain information available to the public, in what may be called "electronic reading rooms," through their FOIA sites on the World Wide Web.

Under this important part of the Freedom of Information Act as amended, see 5 U.S.C. § 552(a)(2), agencies are obligated to affirmatively make available for public inspection in their FOIA reading rooms such categories of records as final opinions and orders issued in the adjudication of their administrative cases; specific agency policy statements; administrative staff manuals that affect members of the public; and FOIA-processed records that are "frequently requested" by FOIA requesters in the traditional fashion through the more basic part of the Act. See 5 U.S.C. § 552(a)(2)(A)-(D).

All such records created by an agency since November 1, 1996 must be made available to the public in electronic form, which is most efficiently accomplished through FOIA Web sites, and agencies are obligated to maintain indexes of such records as well. See 5 U.S.C. § 552(a)(2)(E). A detailed discussion of these important statutory requirements can be found in the "FOIA Reading Rooms" Section of the "Justice Department Guide to the Freedom of Information Act" (which is directly accessible through this electronic link).

Last June, the Government Management, Information, and Technology Subcommittee of the House Committee on Government Reform, which holds jurisdiction over Freedom of Information Act matters in the House of Representatives, held an oversight hearing on agencies' E-FOIA implementation entitled, "Agency Response to the Electronic Freedom of Information Act." It looked at the comprehensiveness and effectiveness with which federal agencies have been implementing the provisions of E-FOIA -- particularly new agency obligations to make categories of information available to the public electronically, on an automatic basis under subsection (a)(2) of the Act, through their individual agency FOIA Web sites.

Prior to the hearing, the public interest organization OMB Watch conducted a study of agency E-FOIA implementation activities, through its examination of individual agency FOIA Web sites. This study, which was published in late 1999 under the title "A People Armed: An OMB Watch Update Report on the Implementation of the 1996 'E-FOIA' Amendments to the Freedom of Information Act," is a useful reference for all federal agencies as they examine the types of information that they make available electronically on their FOIA Web sites in relation to the specific requirements of the statute. The Office of Information and Privacy advises FOIA officers at all agencies to make use of this reference resource (which is directly accessible through this electronic link) in increasing the electronic availability of information on their FOIA Web sites wherever there is an identified need for improvement.

OMB Watch testified at the Government Information Subcommittee hearing, describing the results of its study, and testimony also was presented by representatives of the Society of Professional Journalists and the Reporters Committee for Freedom of the Press. Government testimony was presented by the Department of Justice, the Office of Management and Budget, and the Department of Defense.

The Subcommittee, chaired by Rep. Stephen Horn (R. Cal.), showed keen interest in continued E-FOIA implementation efforts, especially through FOIA Web sites, at all federal agencies. Congressman Horn will continue to chair this House subcommittee with FOIA jurisdiction in the current Congress, but it has been renamed the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations in the 107th Congress.

In the wake of this E-FOIA hearing, last summer the Government Accounting Office (GAO) began conducting a study of E-FOIA implementation efforts across the federal government. The Office of Information and Privacy has provided coordination assistance to GAO during the progress of its study, and a range of different federal agencies were identified for representative participation in GAO's review. The detailed results of this important government study, when issued in a public report as is expected in the near future, should provide an excellent basis upon which all agencies can review their E-FOIA implementation compliance.   (posted 3/14/01)

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