2016-2018 FOIA Advisory Committee Issues Final Report

The 2016-2018 iteration of the federal Freedom of Information Act (FOIA) Advisory Committee, of which I was a member, has just issued its final report and recommendations.  The report takes the form of recommendations to the Archivist of the United States about how to improve the administration of the FOIA.  The Committee is composed of government FOIA staff and representatives from the requester community, and the report represents areas where those professionals’ ideas for improvement overlap.  The Committee also sought to foster dialogue between these two groups who otherwise do not have an opportunity to discuss these issues.

The Committee’s Recommendations

Improving proactive disclosure. The Committee recommends that the Archivist direct OGIS to publish as a best practice that agencies proactively post specific categories of records, including calendars of top agency officials, unclassified reports provided to Congress, FOIA logs, and other categories identified below. The best practice also offers methods to ensure FOIA logs are most useful, and provides considerations for agencies when identifying additional areas for proactive disclosure.

Balancing proactive disclosure and accessibility obligations. The Committee recommends that the Archivist direct OGIS to publish a best practice encouraging agencies to avoid the removal of documents already posted on agency websites that are not currently compliant with Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d. Instead, the best practice would be to remediate such documents. When agencies are concerned about the practicality of remediation, the best practice would be to conduct an “undue burden” analysis by balancing Section 508 with their FOIA statutory obligations; the Rehabilitation Act allows agencies to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.

Improving FOIA Searches. The Committee recommends that the Archivist address the lack of public information about current methods and technologies agencies use to search for responsive records by: (1) requesting that the U.S. Department of Justice’s (DOJ) Office of Information Policy (OIP) affirmatively collect this type of information in next year’s Chief FOIA Officer (CFO) Reports, and (2) recommending that the CFO Council work with the Chief Information Officers (CIO) Council to explore the technological issues related to searches and to promote best practices. The Committee further recommends that the Archivist suggest a modification to the Federal Acquisition Regulation (FAR) to ensure that all agencies consider FOIA obligations when acquiring electronic records management software and that the Archivist also direct OGIS to examine and report on the use of appropriate FOIA performance standards for federal employees.

Making efficient use of agency resources. The Committee recommends that the Archivist direct OGIS to publish as best practices a number of identified strategies to ensure agencies maximize the use of available resources. These best practices address several issues, including staffing, career incentives, workflow, accountability, and technology.

The full report is available here.

James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute.  He was a member of the 2016-2018 FOIA Advisory Committee.  You can follow him on Twitter @JamesValvo.