Office of Government Information Services (OGIS)

Appendix B (The Freedom of Information Act Ombudsman 2023 Report for Fiscal Year 2022)

FOIA Advisory Committee Recommendations to the Archivist — 2020–2022 Term
Recommendation	Status as of May 2023
No. 2021-01 The Archivist of the United States will ask Congress to expand public access to federal records in congressional support offices by creating disclosure procedures modeled after FOIA.	COMPLETED The Office of Government Information Services (OGIS) delivered the recommendation to the Archivist of the United States after the Committee’s vote at its June 10, 2021, meeting. OGIS transmitted the recommendation in letters to the chairpersons and ranking members of the Senate Committee on the Judiciary and the House Committee on Oversight and Reform on May 15, 2022.
No. 2022-01 The Department of Justice Office of Information Policy (OIP) should issue guidance to agencies that they use the internationally recognized “Neither Confirm Nor Deny” (NCND) instead of Glomar.	PENDING
No. 2022-02 Agencies should report annually on agency use of “Neither Confirm Nor Deny”/Glomar responses.	IN PROGRESS Agencies reported in their 2023 Chief FOIA Officer Reports whether they track whether a request involved a Glomar response and if so, the number of times such a response was issued fully or partially, and the number of times a Glomar response was issued by exemption. Agencies that do not track the use of Glomar responses were asked to describe what resources and time would be needed to track such responses in the future.
No. 2022-03 Agencies should post on their FOIA websites information for requesters about “Neither Confirm Nor Deny”/Glomar responses.	PENDING
No. 2022-04 A relevant organization should study the use of “Neither Confirm Nor Deny”/Glomar responses.	PENDING
No. 2022-05 Executive order (EO) 13526 should be amended to require that in cases where information withheld from public release does not contain the markings specified in the governing Executive Order, agencies must add these markings.	PENDING
No. 2022-06 The Archivist of the United States will request that the Inspector General for the Intelligence Community review agencies’ compliance with EO 13526 particularly as it related to marking of classified information.	PENDING
No. 2022-07 The Department of Justice Office of Information Policy (OIP) will encourage agencies to post on their FOIA websites certain information beyond what is required by law.	IN PROGRESS OIP will take this recommendation into account when it updates guidance on FOIA webpages. OIP’s existing guidance on proactive disclosures encourages agencies to go beyond FOIA’s requirements in posting records to their websites. The Attorney General’s FOIA Guidelines also emphasize the importance of maximizing efforts to post more records online.
No. 2022-08 The Chief FOIA Officers Council will establish a working group within two years to determine best practices for release of records in native format, including metadata.	PENDING
No. 2022-09 The Chief FOIA Officers Council should establish a working group to study and recommend resolutions to challenges between FOIA and 508 compliance.	COMPLETED A working group of the Technology Committee of the Chief FOIA Officers Council examined the intersection of 508 compliance and FOIA (See Recommendation 2018-04). The 508 Compliance and Collaborative Tools Working Group continues to work on the challenges in fiscal year 2023.
No. 2022-10 Agencies should endeavor to provide regular and proactive online publication of searchable PDF logs containing certain information in Excel/CSV (comma-separated values) format.	IN PROGRESS In a March 15, 2022, Memorandum for Heads of Departments and Agencies, the Attorney General issued FOIA guidelines emphasizing the importance of proactive disclosures.
No. 2022-11 The Department of Justice (DOJ) Office of Information Policy (OIP) will urge agencies to remove from first-person FOIA practice any records that agencies use to determine the individual’s eligibility for benefits or affect an individual in proceedings.	COMPLETED In a March 15, 2022, Memorandum for Heads of Departments and Agencies, the Attorney General issued FOIA Guidelines encouraging agencies to examine whether they have records they would make more readily accessible without requiring individuals to file FOIA requests. Additionally, agencies reported in their 2021, 2022 and 2023 Chief FOIA Officer Reports on whether they have explored alternative means of access to first-person information.
No. 2022-12 Agencies should amend any regulations, directives, policies, and guidance to provide individuals, regardless of whether they have legal representation in agency proceedings, access to records about themselves.	IN PROGRESS Agencies reported in their 2021, 2022 and 2023 Chief FOIA Officer Reports on whether they have explored alternative means of access to first-person information. The Attorney General’s FOIA Guidelines also encourage agencies to examine whether they have records they could make more readily accessible without requiring individuals to file FOIA requests.
No. 2022-13 Agencies that receive first-person requests should identify the most commonly requested record and develop a plan for processing such records that leverages technology, and promotes efficiency and good customer service.	IN PROGRESS The Attorney General’s FOIA Guidelines note that DOJ’s Executive Office for Immigration Review changed its handling of requests for records of immigration court proceedings. Additionally, agencies reported in their 2021, 2022 and 2023 Chief FOIA Officer Reports on whether they have explored alternative means of access to first-person information.
No. 2022-14 A comprehensive assessment of the Department of Homeland Security (DHS) processes, workforce and technology should be initiated as it relates to A-Files responsive to FOIA requests.	PENDING A subcommittee of the Homeland Security Advisory Council, formed to independently advise the DHS Secretary, recommended in March 2023 that DHS engage an internal component or a contractor to assess the agency’s first-person requests and make recommendations for the design and implementation of an alternative system. The recommendation goes on to say that any assessment should be completed within 12 months of initiation, and that DHS should seek funding from Congress for such a study.
No. 2022-15 Congress should give OGIS the authority to make binding decisions.	DEFERRED The Acting Archivist of the United States paused action on this recommendation pending review of the outcome of Recommendation 2022-19.
No. 2022-16 Congress should give OGIS the authority to review records in camera.	DEFERRED The Acting Archivist of the United States paused action on this recommendation pending review of the outcome of Recommendation 2022-19.
No. 2022-17 Congress should create a direct line-item appropriation for OGIS.	DEFERRED The Acting Archivist of the United States paused action on this recommendation pending review of the outcome of Recommendation 2022-19.
No. 2022-18 Congress should increase OGIS’s budget.	DEFERRED The Acting Archivist of the United States paused action on this recommendation pending review of the outcome of Recommendation 2022-19.
No. 2022-19 The Archivist of the United States should commission a feasibility study, incorporating input from requesters and agencies, to more deeply explore the costs and benefits of recommendations 2022-15 through 2022-18, and refine the proposals to aid Congress in drafting legislation.	PENDING
No. 2022-20 The Archivist of the United States (AOTUS) should restore OGIS as a direct report to AOTUS.	REJECTED The Acting Archivist of the United States rejected this recommendation.

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