DoJ prompts agencies to get the ball rolling on new FOIA law

Agencies should begin updating their standard Freedom of Information Act response letters and notices to comply with new provisions in the FOIA Improvement Act of 2016, according to new guidance from the Justice Department.

DoJ released the first in a series of new guidelines for implementing the new law, which President Barack Obama signed last month to mark FOIA’s 50th anniversary.

Agencies are now required to include new details in their response letters to requesters, including information on how the FOIA Public Liaison can offer help, the guidance said.

And if an agency makes an adverse determination, it must tell requesters that they can find dispute resolution services from the FOIA Public Liaison Office or Office of Government Information Services (OGIS) at the National Archives and Records Administration.

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The same guidance applies to agencies when they notify individuals that a request will take longer than the usual ten working day time limit. Agencies must tell requesters that they have options to receive dispute resolution services, as well as the opportunity to limit the scope of their question so that it can be processed more quickly.

Requesters also have 90 days to file an administrative appeal if they receive an adverse decision from an agency. This is a change from the past, when FOIA offered no specific timeline for filing an appeal.

In addition, DOJ released a new checklist with sample language that agencies can use to ensure their FOIA response letters and notices comply with the Improvement Act.

Reminding the public about these options will elevate the role of OGIS and bring more attention to the services it provides, said Jason R. Baron, attorney at the Drinker Biddle law firm and former director of litigation at NARA.

“OGIS is there as an office to help essentially untie knots and to resolve whatever can be resolved,” Baron said. “It’s a good, neutral forum. The fact that agency letters will now highlight the existence of OGIS will help, as I don’t think OGIS is well known at this point to many people.  I suspect that OGIS will have many more incoming requests.”

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Notifying the public about OGIS’ dispute resolution services is also good customer service, Miriam Nisbet, founding OGIS director, told the Senate Judiciary Committee during a July 12 hearing on FOIA.

“These will increase the opportunities for dispute resolution, conserve agency administrative resources and head off costly and time consuming lawsuits,” she said.

The guidance should also shed more light on OGIS to other agencies within government, who might not realize the full scope of its services, Baron added.

Culture change?

The FOIA Improvement Act clarifies that agencies should operate under the presumption of openness, codifying a mindset that Obama spoke of in the early days of his administration.

Specifically, the law give agencies a 25-year time limit to keep internal deliberations confidential. It requires agencies to be more proactive about disclosing records to a person who who has sent multiple requests for the same information.

It also establishes a Chief FOIA Officers Council to write recommendations for developing a more efficient FOIA process. The OGIS director will co-chair the council, which will meet for the first time July 22.

Baron said he sees these amendments as a positive development — and a way for members of the public to learn more about the FOIA process and use it.

“I hope agencies are able to meet their current workloads and whatever increases in requests happen in the future,” he said.  “We also all hope that the new law will result in more government records being put online.”

But some media and legal experts question whether the new law will truly force agencies to become more actively open and transparent.

“Sure, we’re processing FOIA requests, more of them and faster, but we’re not making transparency better,”  Dr. David Cuillier, director and associate professor at the University of Arizona School of Journalism and former president for the Society of Professional Journalists, told the committee.

On average, 77 percent of FOIA requests are denied, he said.

“We have yet to really see or hear results, to live up to the promises of transparency that we were told eight years ago,” Cuillier said. “Congress can turn the tide. They can set us back on track, create a culture of openness and accountability.”

Rick Blum, director of the Sunshine in Government Initiative, said agencies have yet to proactively build information disclosure into their operations. Instead, agencies release information when they’re asked.

The culture — and the FOIA process itself — will likely change for the better as agencies make more strides to store and manage all permanent and temporary email in an accessible, electronic format, he said. Agencies have until Dec. 31, 2016  to meet those requirements in the Managing Government Records directive.

But agencies’ reticence toward active information disclosure may not improve as the FOIA process improves, Blum said. Their issues with transparency and openness are more entrenched and deep-seated.

“For the last 50 years, we’ve talked about how do we improve the process, how do we improve FOIA?” Blum said. “Maybe the next 50 should be, how do we improve the federal government so that transparency is improved?”