Strengthening Implementation of FOIA (US0139)

FOIA (Public Law 89-487) is a fundamental tool of our democracy that helps citizens understand the Federal Gov- ernment’s work. On average, agencies receive and process over 800,000 requests a year from journalists, civil society advocates, students, and other individuals interested in their own records or other information about government operations. Recognizing the importance of this law, on March 15, 2022, the Attorney General of the United States issued new FOIA Guidelines that direct agencies to apply the FOIA with a presumption of openness and focus on proactive disclosures, remove barriers to access and reduce backlogs, and ensure fair and effective FOIA administration.

The Administration has already taken several steps to implement the Attorney General’s Guidelines. The U.S. Department of Justice has incorporated the principles detailed in the Guidelines into its live FOIA trainings that serve over 5,000 government professionals from around the country every year. Additionally, recognizing that FOIA is “everyone’s responsibility,” the Department recently developed and publicly released three separate e-Learning FOIA training modules for the Federal workforce. Going forward, the Department will issue addi- tional implementation guidance and keep agencies accountable through their publicly filed Chief FOIA Officers Reports.

Furthermore, the U.S. Department of Justice commits to the following additional steps to bolster openness and transparency through the FOIA:

1. Issuance of an updated FOIA Self-Assessment Toolkit, originally issued in 2017, to reflect, among other things, additional milestones for proactive disclosures, use of technology, and requirements of the Attorney 16 General’s new FOIA Guidelines.

2. Leading a Chief FOIA Officer Council working group that will collaborate with the Office of Government Information Services at the National Archives and Records Administration, the Office of Shared Services & Performance Improvement at the Government Services Administration, and the Business Standards Council to develop shared FOIA business standards. The shared business standards will make it easier for agencies to acquire FOIA technology and, in turn, improve efficiency and consistency in processing requests across the Federal Government. Having established standards will also help industry create new solutions to meet agencies’ needs.

3. Enhancement of the user experience on FOIA.gov, the Federal Government’s central website for FOIA, by developing an interactive tool to help members of the public more easily locate records that are already available online or find the right agency to submit their FOIA requests when information is not already posted online.

Action Plan Review

Commitment 27: Access to government information through FOIA
Implementing agency: U.S. Department of Justice.

For a complete description of the commitment, see pages 15–16 in the U.S. 2022–2024 action plan: https://www.opengovpartnership.org/wp-content/uploads/2023/01/United-States_Action-Plan_2022–2024_December.pdf.

Context and objectives
The commitment responds to a longstanding civil society demand as stated in the Blueprint for Accountability document, which was developed by a civil society coalition and reiterated by civil society groups throughout the co-creation process.

Published in 2021, Blueprint for Accountability included two recommendations regarding the Freedom of Information Act (FOIA). The first one consisted in directing the attorney general to issue a memorandum to all agencies updating the guidance on implementing FOIA to, for example, limit discretionary redactions and withholdings. Such guidance was defined as “critical to addressing obstacles to public records requests, including hindrances that agencies impose on FOIA requesters that have contributed to an increasing volume of FOIA litigation.” The second—more radical—focused on reforming FOIA; stating that “the president should publicly voice his support for amending FOIA to increase access to information by establishing a public interest balancing test, limiting exemption abuses, and mandating proactive disclosure, among other improvements.” [17] In November 2022, with the co-creation process seemingly stalled, a civil society stakeholder insisted that NAP5 should at least include “a flagship commitment to modernize and improve compliance with the Freedom of Information Act” to adequately reflect civil society priorities. [18]

The first recommendation was in fact addressed in March 2022—before NAP5 was drafted—when the Attorney General issued new FOIA guidelines directing agencies to apply the FOIA with a presumption of openness and focus on proactive disclosures, remove barriers to access and reduce backlogs, and ensure fair and effective FOIA administration.

The new guidelines are the point of departure for the commitment. By the time it was written into the plan, implementation was already underway. The principles it laid out translated into FOIA trainings for government professionals and the production of three separate FOIA training modules for the federal workforce.

The commitment states that as next steps, the U.S. Department of Justice will issue additional implementation guidance and work to keep agencies accountable through their publicly filed Chief FOIA Officer Reports, but it is not clear whether this is offered as part of the package.

As written, the commitment has three components. The first one is to update the 2017 FOIA Self-Assessment Toolkit to reflect additional milestones for proactive disclosures, use of technology, and other requirements included in the new guidelines.

The second consists in leading a Chief FOIA Officer Council Working Group to develop shared FOIA business standards through collaboration between the Office of Government Information Services at the National Archives and Records Administration, the GSA Office of Shared Services and Performance Improvement, and the Business Standards Council. These standards “will make it easier for agencies to acquire FOIA technology and, in turn, improve efficiency and consistency in processing requests across the federal government. Having established standards will also help industry create new solutions to meet agencies’ needs.” [19]

Finally, the third element concerns the user experience with the federal government’s FOIA.gov central website. In fulfilling this commitment, an interactive tool will be developed to make it easier to locate records that are already available online or find the right agency to submit FOIA requests for information not publicly available.

The commitment has a clear open government lens, is relevant in the national context, and reflects civil society priorities.

Potential for results: Modest
As with other NAP5 commitments, some significant work related to this commitment had already been completed, as part of the administration’s priorities, before the beginning of the NAP implementation period.

The commitment is also less ambitious than civil society had pushed for because it focuses on effectively implementing FOIA as is, rather than working to strengthen the legislation itself. As written, it boils down to the publication of an updated self-assessment toolkit for federal agencies—already updated and launched by March 2023, [20] the development of a set of Shared Agency FOIA Business Standards seemingly focused on the incorporation of technology for the processing of requests, and a revamp of the FOIA.gov website to make it more user friendly.

Notwithstanding, this commitment is still relevant and could bring positive results, not least because its technology focus could help solve a real problem of effective access, reflected in a huge and growing backlog [21] of FOIA requests. In mid-2022, the Department Justice’s Office of Information Policy reported that federal agencies received 838,164 FOIA requests in 2021, during which the backlog increased by over 8% to a total of 153,227. Delayed requests in the department made up 33% of the backlog, followed by the Department of Homeland Security (16%) who typically receives the highest number of requests, and the Department of Defense (11%). The backlog grew again in 2022, which saw record numbers of both requests received (928,353) and processed (878,420). [22]

Opportunities, challenges, and recommendations during implementation

From a civil society perspective, the U.S. FOIA needs strengthening because it “ranks in the middle of the world’s freedom of information laws. There are no sanctions, penalties, or fines for agencies and officials who violate the FOIA.” [23] The commitment will not be able to do anything in this regard. There are, however, other things that it could do, particularly in terms of addressing the other major issue that the same civil society source listed as a FOIA deficit; the fact that “agency FOIA offices need more people and resources to keep up with demand. Neither NARA nor the Office of Government Information Services are funded at levels that enable them to act as a federal FOIA ombudsman for the U.S. Government as Congress intended. Legacy technology continues to be a challenge, even as the number of records being generated by agencies continues to increase.” [24]

In other words, there is room to strengthen FOIA implementation to ensure greater access to public information. For the commitment to make a contribution in this regard, it should focus on two things. First, translating the new guidelines’ emphasis on the presumption of openness and proactive disclosure into actionable protocols and actual practice. Second, properly equipping the responsible offices—including, but not exclusively, with the appropriate technology—to respond in a timely manner and significantly reduce the backlog.

Additionally, to ensure that input from key stakeholders is considered moving forward, measures can be taken to broaden participation. This could be done through an open innovation challenge, which would not require new legislation to be passed.