2010 03 15 Chief FOIA Officer Report

2010 03 15 Chief FOIA Officer Report

1. 1. Council on Environmental Quality Chief FOIA Officer Report for 2009 March 15, 2010 I. Steps Taken to Apply the Presumption of Openness 1. Since January 21, 2009, the Council on Environmental Quality (CEQ) has substantively revised its FOIA practices to comply with the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines. First, CEQ undertook to revise its FOIA regulations to reflect the policy of disclosure promulgated in the two memoranda. The revised FOIA regulations address the issue of transparency from the start by notifying the public that, although communications between CEQ, the White House, and other Federal agencies may be confidential and thus may be withheld should they fall within a FOIA exemption, CEQ is implementing a presumption of disclosure except in those particular cases where disclosure may impair Executive Branch policymaking processes or CEQ’s participation in interagency deliberations. The revised regulations were published for public comment in the Federal Register on November 15, 2009, and will be finalized in coordination with the Department of Justice and the Office of Management and Budget. CEQ’s revision of its FOIA regulations was informed by a thorough review of its existing FOIA practices, which resulted in the General Counsel’s issuance of written FOIA procedures on October 21, 2009 (attached). The procedures formalize CEQ’s framework for processing FOIA requests from initial receipt of a request through the final response. They specify entry points for staff by office and call for a predetermined schedule, so that statutory obligations can be met in a timely manner. Central to these FOIA procedures is the concept of layered or successive levels of document review, beginning with the FOIA Coordinator, who culls the responsive records from those that have been identified as potentially responsive and continuing through the Deputy General Counsel, who makes the decisions on individuals and/or entities required to participate in the next level of review. If another EOP component has received a similar FOIA request, CEQ will coordinate with that component when developing CEQ’s response. The goal is to ensure adequate and efficient review of CEQ records prior to release. Finally, we provided guidance to the CEQ staff on proper identification of deliberative and predecisional communications to ensure that we are not misusing the designation. This direction is designed to facilitate the greater transparency the President’s FOIA Memorandum and the Attorney General’s Guidelines describe. In addition to these major undertakings, CEQ has incorporated several additional measures to promote a culture of transparency with the agency. As part of CEQ’s regular orientation process, incoming staff is briefed on the importance of implementing the President’s FOIA Memorandum and the Attorney General’s Guidelines on transparency. The text of the materials is also provided in CEQ’s employee handbook for ready reference. CEQ’s general records management training has been broadened to incorporate discussion of the memoranda with particular attention to each individual’s augmented responsibilities under FOIA. Special training on how to search for and identify records potentially responsive to a FOIA request is offered as needed. 1
2. 2. In the course of implementing the President’s Memorandum and the Attorney General’s Guidelines, CEQ has reviewed responsive documents withheld in the U.S. v. CREW litigation regarding climate change science documents. As a result, CEQ has determined to make the discretionary release of 4,879 additional pages and will continue to review the documents to determine if additional discretionary releases are appropriate. 2. In Fiscal Year 2008, in response to 11 FOIA requests, CEQ released records in full; it released records in part in response to 14 FOIA requests. In Fiscal Year 2009, in response to 14 FOIA requests, CEQ released records in full; it released records in part in response to 12 FOIA requests. II. Steps Taken to Ensure that CEQ has an Effective System for Responding to Requests CEQ’s written FOIA procedures document the steps CEQ has taken to establish an effective system for responding to requests. All FOIA requests are received by CEQ’s FOIA Coordinator, assigned a tracking number, and logged into a spreadsheet identifying the requester, the subject matter, the date of receipt, and the date a response is due. The FOIA Coordinator uses the spreadsheet, which is kept on a shared drive on CEQ’s internal network, to track the status of the request from receipt to the final response. FOIA requests are acknowledged within two days of their receipt; the acknowledgement includes the tracking number for the request and a direct phone number the requester can use to contact CEQ for further information. Upon receipt of a request, the FOIA Coordinator notifies the Office of General Counsel and the Chief of Staff who will, if appropriate and necessary, alert their counterparts in other EOP agencies to determine whether a coordinated EOP response is appropriate. The FOIA Coordinator develops an internal schedule for processing the request to meet the deadline, taking into account both the complexity of the request and the review(s) required before a response can be made. The FOIA Coordinator then circulates the request to all staff via an email that includes search instructions, suggested search terms, and deadlines for meeting search responsibilities. The substance of new FOIAs and the processing schedule are discussed at management-level meetings and weekly general staff meetings. Managers follow up with their individual teams and emphasize the importance of responding in full to the request. The FOIA Coordinator reviews the universe of responsive documents and makes recommendations on the applicability of exemptions and the potential for discretionary release. After conferring with the records creators and the General Counsel, the FOIA Coordinator provides as complete a response as possible to the requester, only withholding those documents or portions of documents when the harm of release can be adequately articulated. CEQ continues to work with the Office of Administration, Executive Office of the President (EOP), to ensure adequate IT support for FOIA personnel. CEQ has no IT staff in house and has historically depended on the Office of Administration to provide the necessary technical support and expertise; however, this is no longer the case. The need for technical support is a very real constraint and, for example, affects CEQ’s ability to fully develop its Proactive Disclosure Reading Room. 2
3. 3. III. Steps Taken To Increase Proactive Disclosures In January 2010, CEQ launched its new FOIA Requester Service Center at www.whitehouse.gov/administration/eop/ceq/foia, revamping its existing site to reflect the President’s Memorandum and the Attorney General’s Guidelines. The FOIA Center opens with a direct quotation from the President’s January 21, 2009, memorandum. It features additional material, such as a Frequently Asked Questions page to educate the public about the Freedom of Information Act and clarify how the FOIA process works at CEQ. The centerpiece of the new FOIA Center is the Proactive Disclosure Reading Room, where CEQ makes available a variety of information, including reports, publications, environmental laws and regulations, documents frequently requested under FOIA, and the legislative history of the National Environmental Policy Act. CEQ is committed to updating the online reading room per the Attorney General’s Guidelines, although the need for technical support (see Section IV below), is an impediment. In addition to revamping the FOIA Requester Service Center, CEQ has devoted significant resources to re-reviewing documents in response to a FOIA request that is currently in litigation: CREW v. CEQ, No.0 7-365(D.D.C.) (RMU). Using the President’s FOIA Memorandum and the Attorney General’s Guidelines as a basis to reexamine materials previously withheld in part or in full on the draft Vaughn Index, CEQ has subsequently disclosed 4,879 additional pages of documents. This number represents approximately half of the documents scheduled for reevaluation. This reevaluation of documents with an eye toward discretionary release continues. IV. Steps taken to Utilize Technology 1) Does CEQ currently receive requests electronically? Yes. CEQ receives electronic requests via efoia@ceq.eop.gov 2) Are there impediments to CEQ’s receipt of requests electronically? No. 3) Does CEQ track its FOIA requests electronically? Yes. CEQ uses an Excel spreadsheet to track its requests 4) Are there impediments to CEQ’s tracking of FOIA requests electronically? No. 5) Does CEQ use technology to process requests? Yes.CEQ uses the Microsoft Office Suite to process requests 6) Are there impediments to CEQ’s use of technology to process requests? No 7) Does CEQ use technology to prepare its Annual FOIA Report? Yes. 8) Are there impediments to CEQ’s use of technology in preparing its Annual FOIA Report? Yes. CEQ shares the White House website where its Annual FOIA Report is posted with all other components of the EOP and must work within the established technical limitations. CEQ has not been able to comply with the OIP directive that requires all agencies to post their 2009 FOIA Annual Reports in machine-readable format, specifically CSV or XML. The report is currently posted as a Word Document and is only accessible through the SlideShare program available through White House web team (see http://www.slideshare.net/whitehouse/ceq-annual-foia-2009-report). 3
4. 4. V. Steps Taken to Reduce Backlogs and Improve Timeliness in Responding to Requests 1. As noted in Figure VII. A. of CEQ’s 2009 Annual FOIA Report, CEQ’s backlog of cases for Fiscal Year 2008 totaled five; in Fiscal Year 2009, it also totaled five. CEQ’s oldest pending request dates from July 1, 2005. Two of the five pending cases date from 2005, and one dates from 2006. These four share the same topic, and involve the same set of responsive records. In addition, one of the cases, CREW v. CEQ, No.0 7-365(D.D.C) (RMU), has been in litigation since February 2007, which prior to 2009, has made it impossible to close out the other three. The remaining case pending at the close of Fiscal Year 2009 came in at the end of the reporting period on September 25, 2009. It is currently being processed. 2. At the beginning of Fiscal Year 2010, CEQ renewed contact with each of the requesters whose requests were backlogged and, as a result, has determined that three of the backlogged cases could be retired because the requesters were no longer interested in pursuing the request. With the resolution of the CREW litigation, we anticipate that the two remaining cases will also come off the books, and eliminate CEQ’s backlog altogether. 3. CEQ has issued written FOIA procedures to all staff and provided special training emphasizing the role of each employee in assuring CEQ makes its 20-day deadline. We continue to refine our procedures and provide targeted training in such areas as search techniques in an attempt to collect responsive records in a timely manner. 4