Department of Justice Launches FOIA.gov

In celebration of Sunshine Week, the Department of Justice (DOJ) Office of Information Policy launched FOIA.gov, the flagship initiative of DOJ’s Open Government Plan. The site is a one-stop-shop for information about the Freedom of Information Act (FOIA) and access to data from agency annual reports. Users can search for data from a single agency or compare data from multiple agencies, as well as analyze data over time (back to 2008). Data can also be downloaded in XML.

In addition, FOIA.gov includes an excellent glossary of terms that will help the public better understand the FOIA process, with links to videos that answer common questions like, “What are FOIA exemptions?” and “What is a backlog?”.

As we noted in our audit of the Department of Justice’s Open Government Plan, DOJ’s flagship initiative was based on an idea submitted by the open government community for the creation of a FOIA Dashboard.

Congratulations to the Department of Justice for the successful launch of FOIA.gov.

CREW Finds FOIA Implementation Problems Continue

A new report by Citizens for Responsibility and Ethics in Washington (CREW), FOIA at the Mid-term: Obstacles to Transparency Remain, reveals that though there has been some progress since President Obama released his Memorandum on the Freedom of Information Act and Attorney General Holder followed up with guidance for agencies, there has not been a major shift in the FOIA culture across the Federal government. CREW surveyed hundreds of FOIA professionals and found that a lack of staffing and funding are the biggest impediments to successfully implementing the FOIA.

We were very pleased when Anne Weismann, Chief Counsel for CREW, joined us in Denver for a panel discussion on “The Future of FOIA” (J1). She expressed at the time her sense that while many pieces to improve FOIA had been put in place under the Obama Administration, there’s still a long way to go to shift toward a culture of government transparency. This report confirms her statements and emphasizes the need for the Administration to continue to take steps to support government agencies in order to improve FOIA processes.

[Posted by Emily Feldman]

A Closer Look at the “Future of FOIA”

On Tuesday, July 13, during the Annual Meeting in Denver, AALL Government Relations Committee member Susan Nevelow Mart moderated a panel discussion on “The Future of FOIA” (J1). The program featured Miriam Nisbet, Director of the new Office of Government Information Services (OGIS) at the National Archives and Records Administration (NARA), and Anne Weismann, Chief Counsel for Citizens for Responsibility and Ethics in Washington (CREW).

Employing an engaging, conversational style format, the speakers highlighted recent changes in FOIA and the important work of OGIS in mediating FOIA disputes and offering training to agencies. Ms. Nisbet thanked AALL for supporting the creation of OGIS as part of the OPEN Government Act of 2007 (P.L. 110-175) and ensuring that it was housed at NARA.

Ms. Nisbet gave an overview of the work that her office, which was established in September 2009, has been doing to help requestors and educate agencies, and her hopes to continue to expand outreach to members of the public and agencies. She explained that in this era of “information inflation,” it’s especially important to train agency personnel so that they can be more responsive to FOIA requests.

Ms. Weismann, a FOIA litigator, discussed some of the positive changes to FOIA under the Obama Administration. She noted that, “When Obama took office, it was like coming out of a very long, very dark tunnel.” OGIS, she said, “represents a bright spot on the FOIA horizon” and “fundamentally changes the relationship between the requestor and agency.”

Ms. Weismann discussed the excitement that open government advocates felt when President Obama released his Memorandum on the Freedom of Information Act and Attorney General Holder followed up with guidance for agencies. However, she expressed her continued frustration  that while a lot of the pieces to improve FOIA have been put in place, there’s still a long way to go to change the culture of secrecy in government, even under the Obama Administration. For example, the Administration has continued to use some of the same arguments of the Bush Administration in several court cases with CREW, and initially refusing to disclose White House visitor logs. (The White House later changed its position and began posting online the records of visitors in September 2009.)

Susan Nevelow Mart has compiled a very valuable guide to FOI Resources on the Internet to help law librarians, academics and members of the public find more information about FOIA. It  includes links to the Web sites of agencies, universities and nonprofit organizations that host FOIA documents, as well as FOIA blogs and wikis. Thank you, Susan, for putting together this helpful resource and moderating this excellent program!

[Posted by Emily Feldman]

Sunshine Week Shines Light on FOIA

It’s been just over a year since Attorney General Eric Holder issued new guidelines to executive branch departments and agencies on the implementation of the Freedom of Information Act (FOIA). The guidelines, which direct agencies to adopt a presumption in favor of disclosure when responding to FOIA requests, reflected President Obama’s memorandum on FOIA that he released on his first full day in office.

While Attorney General Holder’s guidelines and President Obama’s memorandum sent a clear message to agencies that they must take steps to improve their FOIA practices, many agencies have not followed through. A new audit by the National Security Archive, released last week during Sunshine Week, found that only 13 agencies that responded to the Archive have made concrete changes in their FOIA practices. In addition, several agencies continue to have severe backlogs in processing requests, with some requests lingering for as many as 18 years.

On March 15, Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX), long-time FOIA advocates and the authors of the OPEN Government Act (P.L. 110-175), introduced the Faster FOIA Act (S. 3111). AALL joined 33 other open government groups on a letter to Senators Leahy and Cornyn in support of the bill, which would establish the Commission on Freedom of Information Act Processing Delays. The Commission would be charged with producing a report to Congress and the President within one year, after which the Commission would terminate, that recommends steps that should be taken to reduce delays in the administration of FOIA. This important bill would help address the serious long-standing problem with FOIA backlogs that the National Security Archive has repeatedly found in their excellent series of annual audits.

[Posted by Emily Feldman]

Senate Judiciary Committee to Hold Business Meeting on State Secrets and FOIA Legislation

On Thursday, April 23, the Senate Judiciary Committee will hold an Executive Business Meeting, during which it will consider two bills of importance to AALL:

• S. 417, States Secret Protection Act to enact a safe, fair, and responsible state secrets privilege Act; and
• H.R. 985/S. 448, Free Flow of Information Act of 2009 to make Freedom of Information Act (FOIA) exemptions more transparent.
  

We will keep you updated on the Committee’s progress on these bills.

For a full list of all of the bills AALL is tracking, please see Section 3.2 of the Advocacy Toolkit. For the monthly round up of legislation we’re watching and other updates from the Government Relations Office, plus news from AALL chapters, please sign up to receive the Washington E-Bulletin through the Advocacy Listserv or Blawg, or visit our Web site to read it online.

[Posted by Emily Feldman]

Memorandum on the Freedom of Information Act

As I stated in the previous Blawg post, yesterday’s White House Memoranda on the Freedom of Information Act (FOIA) and Transparency and Open Government have not yet been posted on the White House Web site. The Memorandum on FOIA is posted below.

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release       January 21, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT:      Freedom of Information Act

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.

This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

President Obama Takes Strong Stand on Openness

On his first full day in office, President Obama issued an Executive Order on Presidential Records to revoke Executive Order 13233, the controversial Executive Order by former President Bush which gave current and former presidents and vice presidents the expanded authority to withhold presidential records indefinitely. AALL strongly opposed E.O. 13233 and we are extremely pleased with President Obama’s new Executive Order.

President Obama also issued  two important Memoranda yesterday that outlined his intentions for a more open government. The first memo on the Freedom of Information Act (FOIA) re-establishes a presumption of openness under FOIA and orders the Office of Management and Budget to “update guidance to the agencies to increase and improve information dissemination to the public.”

The second memo on Transparency and Open Government sets out several ways in which the new Administration will work toward transparency. In this memo, Obama states:

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration.  Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

The memo also outlines Obama’s plans for an Open Government Directive, to be issued by the Director of OMB, that will include specific actions for agencies to take in implementing the principles in this memo.

The issues addressed in President Obama’s Executive Order and Memoranda were discussed in the 21st Century Right to Know Project’s report,  Moving Toward a 21st Century Right-to-Know Agenda: Recommendations to President-elect Obama and Congress. AALL endorsed this report along with  nine AALL chapters, seventy-five individual law librarians,  and AALL’s Government Relations Committee and AALL’s Technical Services Special Interest Section.

Unfortunately, the Memoranda have not yet been posted on the White House Web site. I will post them in separate entries on the Blawg for your reference.

[Posted by Emily Feldman]

House Holds Hearing on New FOIA Ombudsman

On Wednesday, September 17, the House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives held a hearing on the implementation of the Office of Government Information Services (OGIS). The OPEN Government Act (P.L. 110-175) created OGIS within the National Archives and Records Administration (NARA) to review agency compliance with the Freedom of Information Act (FOIA) and offer mediation services to requestors.

I attended the hearing on Wednesday, much of which focused on the White House’s repeated attempts to shift the responsibility of OGIS to the Department of Justice (DOJ). As AALL stated in letters to the House and Senate Appropriations Committees in February 2008, allowing DOJ to oversee the office in charge of FOIA mediation services creates a major conflict of interest and contradicts both the spirit and the letter of the law. Congress agreed and indicated that it will appropriate $1 million for OGIS, specifying that the office will remain at NARA. However, the budget with this new appropriation is not likely to be enacted until March 2009.

In his testimony, Archivist of the United States Allen Weinstein encouraged Congress and the White House to meet to resolve their differences on whether OGIS should be located at NARA or DOJ. Mr. Weinstein stated, however, that if asked, NARA will create OGIS:

Should it be resolved that the responsibility of this office falls to the National Archives and Records Administration, we will do everything we can to follow the letter of the law and the intent of Congress to create an office that would assist in seeking to resolve disputes between agencies and individuals requesting information from their government.

The other witnesses offered recommendations for creating a successful Office within NARA. Thomas Blanton, Director of the National Security Archive at George Washington University, emphasized the importance of strong leadership, transparency, and priority setting for OGIS. Patrice McDermott, Director of OpenTheGovernment.org, focused on OGIS’s duties to ensure agency compliance with FOIA. Rick Blum, Coordinator of the Sunshine in Government Initiative, recommended that OGIS should be led by a senior executive reporting directly to the Archivist and that OGIS must maintain its independence. Lastly, Terry Mutchler, Executive Director of Pennsylvania’s Office of Open Records, described her experience as a FOIA mediator in Illinois and Pennsylvania and offered recommendations for the structure of OGIS.

In his testimony, Mr. Blanton nicely summed up the importance of creating a strong OGIS and the need for Congressional oversight:

None of this will be easy, as you know, Mr. Chairman. Every bureaucracy in world history has utilized secrecy as a core tool of its power. The iron laws of turf protection, embarrassment avoidance, and controlling the spin all mean that freedom of information is a constant struggle. But Congressional attention like this hearing today really works, providing decision-forcing deadlines, encouraging wider public dialogue, clarifying both official and stakeholder positions.

[Posted by Emily Feldman]

House Subcommittee Hearing on Information Sharing

Today, Wednesday, June 11, the House Committee on Homeland Security’s Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment held a hearing on H.R. 6193, “The Improving Public Access to Documents Act of 2008.” The bill would require the Secretary of Homeland Security to develop and administer policies, procedures, and programs to promote the implementation of a Controlled Unclassified Information Framework at the Department of Homeland Security.

The witnesses at today’s hearing included:

Ms. Meredith Fuchs
General Counsel
National Security Archive

Ms. Caroline Fredrickson
Director
Washington Legislative Office
American Civil Liberties Union

Ms. Patrice McDermott
Director
OpenTheGovernment.org

For more information on new government-wide rules governing the designation and sharing of CUI and how AALL has been involved in this process, see our previous blog posts:
AALL and Others Urge Public Comment on Guidance for Sensitive But Unclassified Information and
White House Issues Memo on New Controlled Unclassified Information Policy.

[Posted by Emily Feldman]

White House Issues Memo on New Controlled Unclassified Information Policy

Last Friday, the White House issued a memorandum on new rules governing the designation and sharing of Controlled Unclassified Information (CUI). The memo creates a uniform standard for information that previously fell under the broad category of Sensitive But Unclassified information (SBU).

The CUI framework is intended to ease information sharing in the government and rein in the various control markings used by agencies, such as “For Official Use Only” (FOUO), “Official Use Only” (OUO), and “Limited Official Use” (LOU). Under the CUI framework, all CUI information is categorized into one of three combinations of safeguarding procedures and dissemination controls. The National Archives and Records Administration (NARA) is named as the “Executive Agent,” responsible for overseeing and managing implementation of this CUI Framework and prescribing any additional CUI markings.

The memo addresses the important problem of the alphabet soup of Sensitive But Unclassified designations, but many questions remain. Steven Aftergood, author of Secrecy News and Director of the Federation of American Scientists’ Project on Government Secrecy, expresses his concerns in his blog. He writes, “Which, if any, of the more than 100 existing control categories will be canceled, rather than absorbed into the new CUI category? The new policy does not say. At what point, if any, does the CUI designation expire? There’s no way to tell. What enforcement mechanisms are established to ensure compliance with the new policy? To be determined.”

On April 11, AALL signed onto a letter to the White House asking for a public review of proposed new rules governing the designation of Sensitive But Unclassified (SBU) information. Unfortunately, no public review occurred before the White House issued this memo. For background on our letter, see our previous blog post, “AALL and Others Urge Public Comment on Guidance for Sensitive But Unclassified Information.”

[Posted by Emily Feldman]