On October 15, 2012, the Office of Information Policy (OIP) will host a refresher training session to go over the reporting requirements for Fiscal Year 2012 Annual FOIA Reports and 2013 Chief FOIA Officer Reports.  Both reports must be submitted to OIP for clearance prior to final posting.  At the training session the requirements for both reports will be reviewed and there will be time for questions.  The Annual FOIA Report covers Fiscal Year 2012, while the 2013 Chief FOIA Officer Report will cover agency activities from March 2012 to March 2013.  

Fiscal Year 2012 Annual FOIA Reports

The Justice Department has created a tool that will generate the Annual FOIA Report in an open format, which is required by the Open Government Directive and will allow uploading of the data into FOIA.gov.  As was done in Fiscal Year 2011, agencies must also publish their 2012 Annual FOIA Report in the PDF or similar human-readable format traditionally used for publishing Annual FOIA Reports. 

Agency Annual FOIA Reports in both their open and human-readable formats should be submitted to OIP electronically at DOJ.OIP.FOIA@usdoj.gov no later than December 7, 2012, in order to allow sufficient time for OIP to review them prior to posting.

After the reports are reviewed and cleared by OIP, they should be posted on each agency’s website in both open format and in the PDF or similar human-readable format. 

2013 Chief FOIA Officer Reports

On March 19, 2009, the Attorney General directed agency Chief FOIA Officers to review “all aspects of their agencies’ FOIA administration” and to report each year to the Department of Justice on the steps taken “to improve FOIA operations and facilitate information disclosure at their agencies.” 

On September 26, 2012, OIP issued new reporting requirements for the 2013 Chief FOIA Officer Reports.  The Chief FOIA Officer Reports should be submitted to OIP electronically at DOJ.OIP.FOIA@usdoj.gov in either PDF or similar human-readable format no later than February 4, 2013, to enable OIP to review and clear the drafts for final posting.  

After the reports are reviewed and cleared by OIP, they should be posted on each agency’s website no later than March 11, 2013.

Training Details

The details for the refresher training seminar for the preparation and completion of these reports are:

Refresher Training for FY 2012 Annual FOIA Reports and 2013 Chief FOIA Officer Reports
Department of Justice, Robert F. Kennedy Building
10^th and Constitution Ave., NW – Great Hall
October 15, 2012, 10:00am – noon

 Training is open to agency Chief FOIA Officers, Principal FOIA Contacts, and any other agency personnel who prepare Annual FOIA Reports and/or Chief FOIA Officer Reports (including appropriate IT staff)

If you are interested in attending this training, as registration is required to attend this event, please e-mail your name to OIP’s Training Officer, Bertina Adams Cleveland, at DOJ.OIP.FOIA@usdoj.gov.  Please remember that a picture ID is required to enter the building for this seminar.  If you have any questions regarding this event, please contact Ms. Adams at (202) 514-1010.

The 2013 fiscal year has officially begun and the Office of Information Policy (OIP) has released guidelines for the completion and submission of agency 2013 Chief FOIA Officer (CFO) Reports.  Covering the period between Sunshine Week 2012 and Sunshine Week 2013, these reports are required to be submitted to the Department of Justice each year and ask agencies to describe the steps they have taken to improve FOIA administration over the past year.

The guidelines for agency 2013 CFO Reports follow the guidelines issued in 2011 and 2012 closely, and look at five key areas of FOIA administration addressed in Attorney General Holder’s FOIA Guidelines.  These areas include: applying the presumption of openness, ensuring there is an effective system for responding to requests, increasing proactive disclosures, increasing use of technology, and improving timeliness and reducing backlogs.  OIP will use the information in these reports to once again prepare an assessment of agency progress in implementing the Attorney General’s Guidelines.  This assessment will be similar to the assessments compiled by OIP of agency 2011 and 2012 CFO Reports.

While many of the reporting elements in the 2013 guidelines are consistent with previous years, there are some changes in this year’s guidelines.  Specifically, the 2013 guidelines ask agencies to provide information on:

• Discretionary Releases – In addition to asking whether agencies have made discretionary releases during the processing of FOIA requests, the 2013 Guidelines ask agencies to provide examples of the type of information released as a matter of agency discretion.
• Capabilities of Online Tracking Systems – In previous reporting periods, OIP has surveyed agencies to see if requesters are able to track the status of their request online.  In addition to asking whether agencies offer this option, the 2013 Guidelines survey agencies to examine the level of detail provided to the requester with this capability.
• Interim Release of Documents – OIP has issued guidance encouraging agencies to release documents on a rolling basis.  In addition to reporting on overall agency backlogs, the 2013 Guidelines ask agencies to provide an estimate on the number of cases in their backlog where a substantive, interim response was provided during the fiscal year.

The 2013 Guidelines also ask agencies once again to report on their use of the FOIA’s statutory exclusions during Fiscal Year 2012, in line with OIP’s recently issued guidance on this topic.  Additionally, agencies are also asked to highlight a success story that is emblematic of their efforts to improve FOIA administration over the past year.

Agencies must submit their 2013 CFO Report to OIP for review no later than February 4, 2013 and once they are cleared by OIP, post the final version by March 11, 2013, the first day of Sunshine Week 2013.  Additional details regarding the review and submission process for agency reports are available in the Guidelines.

There will be a refresher training seminar on the preparation of both the 2013 CFO Report and the Fiscal Year 2012 Annual FOIA Report on October 15, 2012.  Details regarding this training will be announced soon here on FOIA Post.

You can access the 2013 CFO Report Guidelines and additional CFO Report materials on our Reports page.

Today, the Office of Information Policy (OIP) issued guidance to all agencies concerning proper implementation of the exclusion provisions contained in the Freedom of Information Act (FOIA).  The guidance requires agencies to take multiple steps to bring greater awareness to the public about the existence and effect of these statutory provisions.

Congress added exclusions to the FOIA in 1986 to protect three narrow categories of particularly sensitive law enforcement records where even revealing the existence of the records could itself cause harm to law enforcement or national security interests.   

To take one example, the first exclusion protects against disclosure of a pending criminal law enforcement investigation when there is reason to believe that the target is unaware of the investigation and disclosure of its existence could reasonably be expected to interfere with enforcement proceedings.  During this time, the records are not subject to the requirements of the FOIA.  

The Department of Justice has examined past practices governing use of exclusions to determine whether there are ways to bring greater accountability and transparency to the existence and use of exclusions in the FOIA without compromising the important national security and law enforcement interests that are at stake.  As a result of that review, the department has determined that there are a series of steps that agencies should take going forward that will achieve these goals. 

Specifically:

• Agencies will consult with OIP prior to using an exclusion to ensure that the exclusion is warranted and that they are consistently applied.
• Agencies will publicly report each year on the number of times, if any, that an exclusion was used, bringing greater transparency to the use of exclusions.
• Agencies will include on their websites a brief description of the three exclusions to enhance public awareness of their existence.
• Agency components that maintain criminal law enforcement records will include in all their response letters a notification that Congress excluded certain records from the requirements of the FOIA and that the agency’s response addresses those records that are subject to the requirements of the FOIA. 

Agencies have already begun reporting on their use of exclusions.  For the first time ever, the Department of Justice asked agencies to include any use of exclusions in their March 2012 Chief FOIA Officer Reports.   Three agencies out of the 99 subject to the FOIA reported using an exclusion during Fiscal Year 2011. 

This reporting showed that out of the over 630,000 FOIA requests that the government processed last fiscal year, exclusions were used in only 0.03 precent of the requests.  Because of the new reporting requirement, the public can readily see the very limited number of times exclusions were used.

Significantly, the individual notification requirement represents a fresh approach to the handling of exclusions.  This approach both informs requesters of the existence of the statutory exclusions in general, but does not acknowledge the existence of any excluded records in response to any specific request. 

This new approach will preserve the important law enforcement and national security interests that formed the basis for Congress’ inclusion of exclusions in the FOIA over 25 years ago, while at the same time be in keeping with Attorney General Holder’s commitment to open government.

For more information, read the full guidance document, Implementing FOIA’s Statutory Exclusions Provisions.  You can also access this document and other guidance on the OIP Guidance page of our site.

Each year, federal departments and agencies are required by law to submit a report to the Attorney General detailing many statistics regarding their agency’s FOIA activities, such as the numbers of requests processed and received, and the time taken to process them.  These Annual FOIA Reports, ninety-nine reports total in Fiscal Year 2011, are compiled by OIP and posted on the Reports page of our site.  For the past two fiscal years, the data from agency Annual FOIA Reports has also been uploaded onto FOIA.gov, the Justice Department’s government-wide FOIA resource.

In order to provide a snapshot of government-wide FOIA activity, OIP routinely creates a summary of the information contained within agency Annual FOIA Reports.  Yesterday, we posted our summary of these reports for Fiscal Year 2011.  This summary looks at data for many key statistics in FOIA administration from the most recent fiscal year, and breaks down the numbers to see how individual agencies contributed and affected these totals, while also looking at data from past fiscal years to identify trends in FOIA processing.  In Fiscal Year 2011, the government as a whole:

• Received and Processed more FOIA requests: 644,165 total requests received and 631,424 total requests processed, an 8% and 5% increase (respectively) over the total numbers in Fiscal Year 2010
• Decreased the use of Exemptions 2 and 5: Use of Exemption 2 fell 62% in Fiscal Year 2011 from Fiscal Year 2010 which can largely be attributed to the Supreme Court’s decision in Milner v. Department of the Navy, and use of Exemption 5 fell 13% in Fiscal Year 2011 from Fiscal Year 2010
• Processed more FOIA consultations: Agencies processed 25,878 consultations in Fiscal Year 2011, a nearly 35% increase over the total in Fiscal Year 2010, which also helped decrease the number of pending consultations at the end of the fiscal year by nearly 80%

Our summary of agency Annual FOIA Reports focuses on key FOIA processing metrics from the data contained within these reports.  You can compare this summary to previous Annual FOIA Report summaries compiled by OIP which are all available on the Reports page of our site.  To view, compare, and analyze data collected by agencies each year for their Annual FOIA Report, please visit FOIA.gov.

The Office of Information Policy (OIP) engages in a wide range of activities and events throughout the year to meet the Justice Department’s responsibility to encourage FOIA compliance throughout the Executive Branch.  As one of the core parts of that mission, OIP works to ensure that agencies receive the best and most up to date training on all aspects of the FOIA. 

In conjunction with the Office of Legal Education, OIP provides regular training courses throughout the year, ranging from introductory sessions for non-FOIA personnel to advanced programs for highly experienced FOIA personnel. Additionally, our office also continually offers specialized training on particular topics, such as our training on Exemption 2 in the wake of the Supreme Court’s decision in Milner v. Department of the Navy, or our FOIA Fee Summit which addressed a particularly technical aspect of the FOIA.  This summer we also launched the Director’s Lecture Series which provided an opportunity for FOIA professionals to interact directly with the Director of OIP on a range of FOIA topics. 

In addition to all of the training opportunities offered by OIP, our staff is also available to participate in FOIA training offered by individual agencies.  OIP subject matter experts, including the Director and Chief of Staff, are frequent speakers at FOIA training events and conferences held by numerous agencies across the federal government, speaking on such topics as:

• Procedural and Legal Requirements of the FOIA
• FOIA Exemptions
• Litigation Considerations
• President Obama’s FOIA Memorandum and Attorney General Holder’s FOIA Guidelines
• Milestones for Improving FOIA Administration

OIP can provide speakers on specific topics for a full range of events, from an informal session, such as an agency FOIA brown-bag meeting to discuss FOIA fees, to a formal two-day training conference that addresses all aspects of the FOIA.  We can also provide an executive briefing to senior officials who would like a general overview of the FOIA as well as hands-on working sessions for FOIA professionals who work directly with the FOIA every day.  OIP can design a customized training session, focusing on those areas that are of greatest importance to any particular agency.  Whatever the training needs are, OIP can tailor a training session to meet those needs and goals, to help ensure that all agency personnel have access to the best FOIA training possible.    

If you have a question on or would like to register for any upcoming training offered by OIP, or would like to get information on having our staff conduct a training or participate in a scheduled training for your agency,  please contact OIP’s training officer, Bertina Adams Cleveland, at Bertina.Adams@usdoj.gov, or call (202) 514-1010.

This week, Office of Information Policy (OIP) Director Melanie Ann Pustay wraps up a trip to Beijing, China, where she participated in two forums as a guest of, and sponsored by, The Carter Center.  Beginning this past weekend, Director Pustay took part in a forum entitled “Transparency and State-Owned Enterprises” at China’s Central Compilation and Translation Bureau, for an audience of Chinese government officials and members of the academic community.  Then, earlier this week, Director Pustay was a panelist for a discussion regarding  the deliberative process privilege and related issues surrounding the disclosure of internal working documents, which took place at Tsinghua University.  This forum was attended by students from Tsinghua University, as well as Chinese government officials.

As head of the U.S. government’s lead FOIA policy and guidance office, Director Pustay works extensively with government officials in other countries to assist those officials in implementing their own openness-in-government initiatives.    In addition to participating in international events, Director Pustay frequently hosts foreign representatives at OIP in DC.  You can view all of the events that Director Pustay and other staff participate in on the Key Dates page of our site.