Improving the FOIA Process

OGIS has found that simple communication between a FOIA requester and an agency FOIA professional can go a long way in avoiding frustration and disputes. OGIS also has observed that agencies whose FOIA professionals provide good customer service have a greater chance of resolving disputes than agencies with FOIA offices that need improvement. OGIS invites any agency that has a good practice to contact the Office. Observed agency customer service best practices, detailed in an OGIS chart (see Appendix), include the following:

• Several component offices within the Department of Agriculture immediately acknowledge FOIA requests with the name and telephone number of the FOIA professional assigned to the case.
• Several agencies created model letters for acknowledging, handling, and responding to requests.
• The Department of Labor's Employment Training Administration wrote response templates for requests resulting in no records, partial releases, and third-party notifications.
• The FBI's FOIA web site explains how to understand and obtain records from the agency and includes information about what happens after a request is made. Requesters also can learn how long it takes to receive information and what requesters can expect to receive after FBI processing.
• A Forest Service FOIA analyst informed a requester who was willing to pay thousands of dollars to obtain records that he could easily download the data free from the Federal Procurement Data System web site.
• The State Department makes rolling releases of information to requesters rather than waiting until processing ends.
• In cases requiring referral to or consultation with another agency, an Air Force FOIA officer created for the Department of Defense (DoD) a document-sharing platform to streamline FOIA referrals and consultations.
• The Surface Transportation Board adopted an informal policy of accepting administrative appeals in cases where the only reason to refuse the appeal is technical, such as the appeal was received after the deadline for filing an appeal.
• The Environmental Protection Agency operates a national FOIA hotline where callers can talk to a FOIA specialist about their requests or general FOIA questions.
• The DoD's Office of Secretary of Defense/Joint Staff FOIA Office established a new position to coordinate directly with OGIS.
• The Departments of Education and the Interior and 11 non Cabinet-level agencies, including the Council on Environmental Quality, updated their FOIA regulations since the 2007 FOIA amendments. Such regulations outline agency-specific procedures governing the FOIA request process.

OGIS also has observed—and FOIA requesters have reported to the Office—that customer service could be greatly improved at some agency FOIA offices. Among OGIS's observations: Some FOIA Public Liaisons do not publicize their telephone numbers, do not have voice mail that accepts messages, and return calls only sporadically, if ever. Some liaisons did not seem interested in resolving disputes, and refused OGIS's offers of assistance. Other liaisons did not appear familiar with FOIA.

Several requesters reported an unprofessional tone used by FOIA staff, including, in response to one requester's follow-up question, an admonition to "Read your letter." One FOIA appeals attorney repeatedly insisted that an appeal letter was "self-explanatory" and discussed its contents only in response to specific questions from OGIS. One requester reported being hung up on three times when she called an agency's FOIA Public Liaison office. OGIS also has encountered hurdles in getting responses from several agencies.

To improve the administration of FOIA, OGIS recommends that agencies establish standards for customer service, everything from returning telephone calls to explaining clearly the distinction between fee categories and fee waivers. OGIS recommends the following best practices:

• Ensure that each agency and department employee recognizes that she or he represents the Federal Government
• Ensure that all FOIA professionals—from the paralegal to the FOIA Public Liaison to the agency Chief FOIA Officer—are courteous and patient with requesters and respond quickly to their communications
• Require FOIA Public Liaisons to be FOIA professionals with good communication skills
• Publicize widely the FOIA Public Liaison's name, telephone number, and e-mail address on the agency's FOIA web page, within the agency, across the Government, and throughout the FOIA requester community
• Set up FOIA professionals' voice mail to accept messages and return all messages
• Create a general FOIA e-mail account that all FOIA Public Liaisons can access for requesters to write with concerns or questions
• Include information about OGIS in final appeal letters advising requesters that the Office can assist in resolving FOIA disputes as an alternative to litigation
• Attend dispute resolution skills training offered by OGIS
• Provide in writing to the requester the tracking number and contact information for the FOIA Public Liaison and the FOIA professional assigned to the case as quickly as possible, along with an estimate of how long the request is going to take to process, even if the agency is unable to make the 20-day response time, as required under the law
• Create an online system to allow FOIA requesters to easily check the status of their requests
• Develop intra- and interagency agreements (memoranda of understanding) regarding the processing of routine agency-specific documents, releases, and withholdings to avoid or minimize the need for referral or consultation between agencies
• Inform requesters, when practicable, about records referrals and consultations, including which agencies are involved and how to contact those agencies
• Post in plain language information about and examples of agency determinations on fees charged, fee categories, and fee waivers
• Cite OGIS and the services it offers when updating agency FOIA regulations.

An agency is to deny disclosure only if, after review, the agency can reasonably foresee that disclosure would harm an interest protected by one of FOIA's nine exemptions. OGIS recommends that agencies develop guidance on how to conduct foreseeable harm analysis, which clearly identifies the harm that would occur with disclosure. If the agency cannot identify harm, it should consider disclosing the information as a matter of discretion. Such discretionary disclosures should include making partial disclosures when full disclosure is not possible. Observed agency foreseeable harm best practices include the following:

• Senior officials responsible for processing FOIA requests at the Department of Commerce must certify that a foreseeable harm analysis is applied to all responsive documents.
• Forest Service employees wishing to withhold records under Exemptions 2 (purely internal matters that courts have ruled are of no interest to the public) or 5 (interagency or intra-agency documents) must provide the Washington, DC, office with written justification outlining the harm that would result from release of the requested information. Requesters can now obtain accident investigation report recommendations from Forest Service headquarters, documents that were previously withheld in their entirety under Exemption 5.
• Re-review of materials previously found to be protected under Exemption 5 resulted in the Department of Energy releasing an agreement between the Savannah River Ecology Laboratory and the University of Georgia. The re-review determined that release would cause no foreseeable harm. The stepped-up foreseeable harm reviews resulted in a 17-percent drop in the Department's use of Exemption 5 between FY2009 and FY2010.
• The Nuclear Regulatory Commission updated its FOIA training class and its written guidance to include instruction on foreseeable harm review. OGIS also recommends that agencies establish procedures for identifying information appropriate 23 for disclosure and establish categories of records that can be disclosed regularly without waiting for a FOIA request, such as calendars and travel records of senior agency leaders. OGIS foresees a day when agencies can, with ease, release all FOIA requests and responsive documents online. Until then, OGIS recommends that agencies post online significant documents that have been released under FOIA without waiting for a second FOIA request. A number of agencies reported significant reductions in FOIA requests for the same information posted proactively.

Observed agency proactive disclosure best practices include posting on agency web sites:

• Downloadable state-by-state and nationwide lists of all Federal firearms and Federal explosives licenses issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives¹³
• Previously restricted classified records of the Department of Justice's Civil Rights Division's historic investigation into the 1964 murders of civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner, also known as the "Mississippi Burning" incident¹⁴
• Statistics on wild horses and burros on land managed by the Bureau of Land Management¹⁵
• The 333-page FBI file on pop singer Michael Jackson, whose June 25, 2009, death sparked a high volume of FOIA requests¹⁶
• A subscription offer for people wishing to receive automated e-mails every time the Department of Agriculture's Food Safety and Inspection Service updates its log of FOIA requests¹⁷
• Lists of Government credit card holders in Federal agencies, including the Departments of Agriculture and Labor headquarters, the Bureau of Labor Statistics, the Department of Justice's National Drug Intelligence Center, the National Science Foundation, and the United States Postal Service¹⁸
• Environmental Protection Agency's "MyPropertyInfo" database allowing users to determine if there re environmental records on a specific property¹⁹.

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