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U.S. Department of Justice
Office of Information and Privacy
Washington, D.C. 20530
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March 23, 2001
MEMORANDUM
TO: Principal FOIA Administrative and Legal Contacts at All Federal Agencies
FROM: Richard L. Huff
Daniel J. Metcalfe
Co-Directors
Office of Information and Privacy
SUBJECT: Further Efforts to Implement E-FOIA Provisions
Within the past
week, the General Accounting Office (GAO)
completed its final report of its examination of federal agency
implementation of 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." This GAO
study follows up on the E-FOIA implementation oversight hearing that
was held by the House Government Reform
Committee's Government Management, Information, and
Technology Subcommittee in June 2000. Last summer, GAO
selected twenty-five federal agencies for review of their FOIA
Web sites and annual FOIA reports, and eight agencies for more
extensive interviewing and document exchange, with coordination
assistance provided by the Office of Information and Privacy. The
Department of Justice has fully supported this
important FOIA study.
Now that GAO's report (entitled
"Progress in Implementing
the 1996 Electronic Freedom of Information Act Amendments")
has been issued in final form, we are pleased to be able to
attach a printed copy of it for immediate use by every federal
agency. This report provides an excellent basis for all agencies -- whether they were among the agencies examined by GAO as
part of its study or not -- to review their current state of
compliance with E-FOIA's requirements and to make any and
all improvements that are needed.
This GAO report finds incomplete E-FOIA compliance in
multiple respects, and it provides much useful detail to facilitate
further agency attention to several E-FOIA requirements in
particular. While it discusses such procedural matters as the
mechanics of FOIA processing, the operation of the Act's time
limits, and the value of negotiating the scope of a FOIA request
with the requester, you should note that it places primary focus
on: (1) the E-FOIA requirement to make certain categories of
information available to the public electronically, and (2) the
quality of the annual FOIA reports that are required to be prepared after the end of each fiscal year by all agencies. These
requirements warrant particular attention.
First, the most basic categories of information that all
agencies must make available electronically (through their FOIA
Web sites, in what may be called "electronic reading rooms") are
the following:
• final opinions and orders issued in the adjudication of
administrative cases;
• specific agency policy statements;
• administrative staff manuals that affect members of the
public;
• records that are "frequently requested" by FOIA
requesters, which must be made available in their FOIA-processed form; and
• an index facilitating public access to all such information.
See GAO Report at 21. These statutory requirements are all
contained in subsection (a)(2) of the FOIA, as amended by E-FOIA, and they apply to any such record that was created by an
agency since November 1, 1996. See 5 U.S.C. § 552(a)(2)(A)-(E).
Detailed discussions of these requirements are contained in the
"FOIA Reading Rooms"
Section of the "Justice Department Guide
to the Freedom of Information Act," which also includes
citations to all underlying E-FOIA implementation guidance that
has been issued by the Department of Justice on this subject.
Another category of information that agencies are required
to make available electronically through their FOIA Web sites
consists of:
• an index of the agency's "major information systems";
• a description of the agency's "major information
systems";
• a description of the agency's "record locator systems";
and
• a handbook for obtaining agency information.
See GAO Report at 22. These statutory requirements are all
contained in subsection (g) of the FOIA, 5 U.S.C. § 552(g), and
they may be met by an agency in a consolidated fashion under
the single heading of a "FOIA Reference Guide," or some similar
title. Governmentwide guidance regarding these particular E-FOIA requirements has been issued by the Office of Management
and Budget -- see Memorandum From Franklin D. Raines For The
Heads Of Executive Agencies (Apr. 23, 1998) -- which should be
consulted on any technical question regarding agency
compliance with them. See also
H.R. Rep. No. 104-795, at 29-30
(1996) (legislative report specifying OMB's guidance role
regarding FOIA's subsection (g) requirements). In addition to
that, though, the Department of Justice's
"FOIA Reference
Guide" is available to be used as a model by any agency that
needs to improve its compliance in this E-FOIA category.(1)
A third set of information items addressed in GAO's report
consists of:
• the agency's FOIA regulations;
• information describing the agency's multi-track
processing system (if one is used);
• information regarding expedited processing;
• the agency's fee schedule; and
• the agency's annual FOIA reports.
See GAO Report at 20-21. All of these items are closely related.
First, the FOIA explicitly requires that each agency publish
regulations that govern its individual rules and practices for
administering the Act, see 5 U.S.C. § 552(a)(3)(A), and such
regulations are a logical component of any agency's FOIA Web
site, see
FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance:
Recommendations for FOIA Web Sites"). Further, by the FOIA's
terms, as amended by E-FOIA, these regulations must include
specific information on expedited processing, see 5 U.S.C.
§ 552(a)(6)(E)(i), must include information on multi-track
processing unless an agency simply makes no use of it, see
5 U.S.C. § 552(a)(6)(D)(i), and must include a "schedule of fees,"
5 U.S.C. § 552(a)(4)(A)(i).
Regarding the electronic availability of annual FOIA reports,
the provisions of the amended FOIA are likewise very clear: In
addition to the centralized electronic access to all agencies'
reports that is required to be afforded through the Department of
Justice's FOIA Web site, each federal agency is individually
required to make its annual FOIA reports available electronically
through its own FOIA Web site as well. See
5 U.S.C. § 552(e)(2). This can be a highly effective vehicle through
which all agencies
can ensure that they meet this entire set of electronic availability
requirements, if they simply follow the Department of Justice's
recommendation that a copy of the agency's current FOIA
regulations be included at the end of each annual FOIA report. See FOIA Update, Vol. XVIII, No. 3, at 7 (guidance issued
specifically pursuant to 5 U.S.C. § 552(e)(4)). In short, there is
no good reason why any agency might be found not to be in E-FOIA compliance for any of these regulation-related items of
information.(2)
As an immediate step with respect to each of the information categories discussed above, we strongly encourage all
agencies to conduct a thorough review of their current compliance with E-FOIA's clear electronic availability
requirements. Certainly, if your agency is one of the several
agencies that were found by GAO to be deficient in one or more
of these respects, then your agency has an unquestionable need
for improvement right now. Beyond that, however, the GAO
report should be used by all agencies as a roadmap to ensuring
full and proper E-FOIA compliance across the board -- which is
something that requires careful vigilance in both the
establishment and the augmentation of agency FOIA Web sites
with the passage of time. In aid of this process, you may
contact members of the Office of Information and Privacy who
have particular expertise in the substance of E-FOIA's
requirements and in the processes of FOIA Web site
maintenance -- Pamela Maida, Laurie A. Day, and Tricia S.
Wellman -- if further assistance regarding these electronic
availability requirements is needed.
Secondly, GAO's study also focused on the annual FOIA
reports that are prepared by all agencies in the relatively new
format that was established by E-FOIA as of fiscal year 1998. In
doing so, and focusing on fiscal year 1999, GAO found "reporting
inconsistencies and data quality problems" with some of the
annual reports that it examined. GAO Report at 32. It identified
a number of particular concerns with these annual reports. See
id. at 33-34.
The Department of Justice has been addressing such
concerns. As of last year, for the annual reporting period that
ended on September 30, 2000, the Office of Information and
Privacy initiated a process of reviewing all agency annual
reports as they are sent to OIP for centralized access on the
Department's FOIA Web site, and then contacting individual
agencies to discuss and resolve any identified question or
discrepancy. OIP plans to continue to do so in future years,
within an even broader framework of scrutiny, in accordance
with the GAO report.
As part of this increased focus on the quality of all agencies' annual FOIA reports, OIP also is developing additional
annual report guidance that will be based upon the specific
findings of GAO's annual report examination.(3) This supplemental
guidance should be used by all agencies in the preparation of
their next annual FOIA reports at the end of 2001, after the close
of the current fiscal year. OIP is planning to disseminate this
supplemental guidance in the near future, and it will do so
through FOIA Post, a new Web-based means of FOIA information
dissemination that has now been established on the Department
of Justice's FOIA Web site.(4)
In conclusion, we urge you to take the findings of this GAO
report very seriously and to make effective use of it throughout
your agency in order to ensure that your agency both attains and
maintains proper compliance with all of E-FOIA's electronic
availability requirements. This will warrant continued careful
attention during the coming months, and it is a subject that can
be expected to be discussed in such forums as Department of
Justice training programs. It also can be expected to be the
subject of continuing congressional interest. See, e.g., FOIA
Post, "Agencies Continue E-FOIA Implementation" (posted
3/14/01) (describing continued basis for E-FOIA interest in 107th
Congress). Accordingly, the goal should be nothing less than full
E-FOIA compliance. Each agency must ensure that it does
whatever is necessary to meet this goal.
Please do not hesitate to contact the Office of Information
and Privacy, at (202) 514-3642, regarding any aspect of this
important Freedom of Information Act subject at any time.
Attachment
Footnotes:
1. The Department of Justice was found by GAO to be in full
compliance with E-FOIA's electronic availability requirements in
this respect, see GAO Report at 22, as well as with regard to all
other categories of information, see id. at 20-21. The report also
includes a complementary statement about the quality of the E-FOIA implementation guidance that agencies have received from
the Justice Department. See id. at 31.
2. It should be noted that GAO found proper compliance in
the categories of regulations, fee schedules, and annual FOIA
reports for all twenty-five of the agencies that it examined. See
GAO Report at 20-21. However, it found far less than universal
compliance in the multi-track and expedited processing
categories. See id.
3. This guidance will supplement the "Guidelines for Agency
Preparation and Submission of Annual FOIA Reports" that were
issued by the Department of Justice in 1997. See FOIA Update,
Vol. XVIII, No. 3, at 3-7; see also FOIA Update, Vol. XIX, No. 3, at
2 (clarifying that annual FOIA reports should uniformly use
"working days" for statistical measurement wherever
practicable).
4. As of 2001, FOIA Post has replaced the Department of Justice's FOIA Update newsletter publication, which was published
from 1979-2000 and which is now entirely archived in electronic
form for reference purposes on the Department's FOIA Web site.
See FOIA Post, "Introducing FOIA Post" (posted 3/14/01). By this
memorandum, we ask that you please pass this information
along to all FOIA personnel and any other interested persons
within your agency, with the suggestion that this new part of the
Department's FOIA Web site be electronically "bookmarked" for
ready reference purposes. (We are enclosing an information
page on FOIA Post, which includes its electronic address, to
facilitate this.)
Go to: OIP's FOIA Page// DOJ FOIA Page
// DOJ Home Page