New OGIS leadership off to a good start with agency FOIA reviews

Recently, the Office of Government Information Services (OGIS) began conducting compliance reviews of agency FOIA operations and posting its findings online, to share with the public and with other agencies. These no-nonsense analyses involve examining agency annual FOIA reports, interviewing FOIA personnel, and surveying agency staff; the idea is to accumulate institutional knowledge and refract it back through agencies to make FOIA work better.

Notably, OGIS sharpened its reviewing skills at home, starting at the National Archives and Records Administration (NARA), which underwent the inaugural reviews (here, and here). Now, the Department of Homeland Security, as the agency with the highest volume of FOIA requests, and some of the starkest fluctuations, is opening its books and doors to OGIS. Other agencies are scheduled to follow suit in FY16.

While OGIS has only reviewed two branches of DHS so far[1], there are some clear trends.

  • Technology creates opportunities, but it can’t make agencies seize them. Agencies invest resources in technology for processing FOIA requests, but that does not guarantee that agencies take full advantage of it. The Coast Guard, which has a decentralized system, conducted a draft study – and found, as OGIS put it, “agency-wide implementation of a new FOIA processing system by the Coast Guard could help improve data quality and make FOIA processing more efficient.” However, OGIS also noted that the study found “such improvements would be possible only if the same software is used consistently and accurately by all [USCG] units…” OGIS reports the agency “originally intended to have all of the districts and units use the software” — but then “decided against implementing it agency-wide.” As a result: “The agency continues to use a variety of tracking systems to help process FOIA requests.”
  • Staff continuity, or lack thereof, can affect consistent FOIA processing. FEMA’s FOIA staff at the time of the survey was eight, plus three leadership positions, but with an additional eight positions vacant. The Coast Guard’s FOIA coordinators within its 1,200-plus units “are usually military personnel who rotate every three to four years”; the Coast Guard also chose not to implement its new FOIA-processing system “because the Coast Guard’s workforce is so dispersed and personnel change frequently due to redeployments, the agency said it is not able to effectively train FOIA processors on how to use the [new] software and decided against implementing it agency-wide.”
  • Without resources, agencies make small adjustments. The Coast Guard FOIA office “plans to provide mandatory training through the web-based DHS Learning Management System (LMS) to which all DHS Federal employees have access”; FEMA adjusted its timetable for responses to “‘Still interested?’ letters” to give FOIA requesters thirty days in which to respond, as recommended by the recent Department of Justice guidance.
  • Following FOIA can be difficult. OGIS also observed that the Coast Guard had administratively closed some appeals for failure to include certain information in their appeals letters… which nothing required the requesters to include. FOIA also requires[2] that an agency provide an estimated date of completion for each request, yet “the head of FEMA’s intake team said providing requesters with an estimated date of completion” “is a challenge.” Apparently giving no estimate to requesters, despite the statutory obligation, has been more palatable to FEMA, as an OGIS survey found 72% of requesters said FEMA rarely/never provided an estimated date of completion when asked.
  • Keeping data clean can be problematic. The OGIS survey found that at FEMA, “it was clear that records are not kept consistently in either system and processors rely on both places to store records, resulting [in] an incomplete administrative record in one place.” The Coast Guard has a related problem: “the same edits would be made to a template letter a number of times before the template was updated…” The problems may not look big, but they indicate a lack of efficiency and management.

These OGIS compliance studies echo several well-known lessons. Agencies should invest in technology, but new tools will only be effective if they fit the needs of the agency and are used. Significant improvements to FOIA will require investments. We’re not necessarily talking new dollars. Program budgets and IT investments should include requirements for considering public disclosure and FOIA’s requirements. Staff turnover and a decentralized structure, either through geography or bureaucracy, require stronger leadership and management to make FOIA successful.

Which agencies are most resilient at handling these challenges, and what can other agencies learn from them?

We applaud those agencies volunteering to be transparent in the service of improving FOIA. These reviews will give Congress clear evidence to make OGIS stronger and find ways to make the FOIA process work better.

[1] OGIS reports that its next reviews, after those of FEMA and the Coast Guard, are TSA, CBP, USSS, and ICE; together, these offices, six of the largest eight within DHS, received 47% of all DHS requests last year.

[2] 5 U.S.C. 552(a)(7). It’s rather clear: “Each agency shall… establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including… an estimated date on which the agency will complete action on the request.”

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