FOIA Advisory Committee’s Third Meeting Tackles 508 Compliance

The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” held its third meeting on January 27^th (video streaming is available here and here). The Committee consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Project Director Nate Jones – and previously identified proactive disclosure, fee issues, and oversight and accountability as their primary focus areas.  Their latest meeting – which was not live streamed unlike previous meetings despite the Committee’s charge to help “modernize” the FOIA – was dedicated to subcommittee reports on these issues, with highlights including the proactive disclosure subcommittee challenging agencies to identify instances where documents could not be made 508 compliant, and another rousing conversation regarding fee categories.

It’s worth noting before delving into the details of the meeting that it was chaired by acting Office of Government Information Services (OGIS) director, Nikki Gramian, who is temporarily replacing Miriam Nisbet, who retired at the end of November. Since Nisbet’s retirement OGIS has been unable to hire, or even post a call for applicants to apply for the director position. Nate Jones voiced the Archive’s “extreme concern” that the FOIA watchdog remains directorless, and called for action so that OGIS can continue not only facilitating the FOIA Advisory Committee, but providing its crucial role providing mediation and compliance services at full capacity. Hopefully OGIS will soon be able to begin the hiring process and continue carrying out its pivotal duties, which benefit FOIA requesters and processors everywhere and help symbolize the White House’s commitment to its NAP and open government.

The Federal Communication Commission’s David Reed, speaking on behalf of the proactive disclosure subcommittee, dedicated much of his report to the challenges of identifying high-value types of records for proactive disclosure. Reed noted the most widely available tool for determining what records were most requested to help identify high-value records are agency FOIA logs, however there is currently a wide variety in both quality and depth of information available in these logs, with some agencies still not making them available. Reed solicited agency help in finding a robust data set to work with to identify key categories of documents, requests, and requestors, in order to make concrete recommendations about where to begin with proactive disclosure in order to have the largest impact with the least effort.

The State Department’s 508 Compliant Electronic Reading Room.

Reed also dedicated time addressing proactive disclosure with accessibility under Section 508. Reed noted that Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998.  Therefore, most records the government produces should already be 508 compliant. Agencies, however, routinely argue that making documents 508 compliant is too burdensome – even though agencies including the Department of State and all the agencies that participate in FOIAonline routinely demonstrate otherwise, regularly posting their records online and in full compliance with Section 508.

To help address this problem, Reed put forth a Straw Man proposal, challenging agencies to cite specific instances where documents could not be made 508 compliant, in order to help troubleshoot such instances going forward and eliminate 508 compliance concerns as a barrier to access.  Any agency FOIA shop with legitimate 508 compliance concerns not yet addressed that the committee is missing should send them here.

The subcommittee addressing fee issues underscored the need to address often ill-defined fee categories, which are confusing for both FOIA officers and requesters. Many inside the requester community believe charging fees based on ill-defined requester categories can be a ploy by agencies to discourage FOIA requests, while FOIA officers often argue fees are a necessary tool to encourage requesters to narrow the scope of their requests and to discourage “extreme” requesters.  The subcommittee again noted the existence of much fee-related acrimony that seemed to underscore the need for uniform fee standards, if little else.  Again, agencies recoup less than 1% of the total costs related to the government’s FOIA activities through FOIA fees. As Nate Jones points out, Congress may be moving faster than the Committee on one fee issue.  The Senate’s FOIA reform bill, S 337, closes a fee loophole that some agencies have created; clearly reaffirming that agencies may not charge non-commercial “search and review” fees if they miss either their 20-day deadline for processing a FOIA request, or the 10 day extension granted for “unusual” requests.

A brief discussion also took place concerning the applicability or necessity of having a provision in the FOIA that would categorize certain requesters or requests as “extreme,” though it was ultimately decided the time spent identifying such requests would be too time-consuming, and the potential for agency mischief to be too high, for such an endeavor to be useful. The fees conversation stirred up quite a thread on the FOI-L listserv.

Inspector General and other reports available here: http://www2.gwu.edu/~nsarchiv/news/20150205/

The oversight and accountability subcommittee announced it has begun compiling a list of previously released reports on agencies’ compliance with the FOIA in an attempt to identify what current authorities for oversight exist, and areas where there are opportunities for additional oversight. The list is available on the National Security Archive’s website, and the subcommittee encourages members of the public to submit reports that the subcommittee might have missed, and help studying the content of the reports. The subcommittee also reiterated its suggestion of evaluating past litigation review efforts to determine if another review is necessary to cut down on litigation and increase administrative solutions to FOIA disputes.

This is a crucial step as the Department of Justice’s (DOJ) current stance on FOIA disputes appears to be a “defend everything” one. While the 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from DOJ Office of Information Policy (OIP) director Melanie Pustay to provide the Senate Judiciary Committee a list of all FOIA cases that the DOJ has refused to defend, no such list has been presented to the public. Conducting a full litigation review would go a long way to strengthen the government’s and the Department of Justice’s commitment to FOIA.

All documents discussed during the meeting are available here. The Committee’s next meeting will be held April 21, 2015.