Chief Freedom of Information Act Officers Council Meeting Meeting Minutes – July 27, 2017

The Chief FOIA Officers (CFO) Council Meeting convened at 10:00 a.m. on July 27, 2017, in the National Archives and Records Administration (NARA) McGowan Theater –700 Pennsylvania Ave. NW, Washington DC 20408.

A livestream video of the meeting was also made available, and in accordance with 5 U.S.C. § 552(k)(6)(B), the meeting was open to the public “permit[ting] interested persons to appear and present oral and written statements to the Council.”

All meeting materials are available on the Office of Information Policy’s (OIP) and Office of Government Information Services’ (OGIS) websites at: https://www.justice.gov/oip and https://www.archives.gov/ogis/about-ogis/chief-foia-officers-council.

Speakers:

• Gary M. Stern, General Counsel and Chief FOIA Officer, NARA
• Melanie Ann Pustay, Director, OIP, Department of Justice (DOJ), Council Co-Chair Alina M. Semo, Director, OGIS, NARA, Council Co-Chair

Panelists:

• Michael Bell, Department of Health and Human Services (HHS)
• Michael Morisy, MuckRock.com
• Linda Frye, Social Security Administration (SSA)
• Michael Ravnitzky, Frequent FOIA Requester
• Carrie McGuire, OGIS

Introduction

• The meeting opened at 10:00 a.m. with remarks from Gary Stern.
• Mr. Stern welcomed everyone to the third Council meeting, provided a brief overview of the history of the use of dispute resolution services in FOIA, and noted that the meeting will focus on requester services provided by FOIA Public Liaisons and OGIS.

Overview of FOIA Notice Requirements and Duties of FOIA Public Requester Service Centers and FOIA Public Liaisons

• Ms. Pustay summarized the FOIA’s requirements and OIP Guidance regarding the provision of notice to requesters about the availability of services from FOIA Public Liaisons and OGIS at various points throughout the FOIA process.
• Ms. Pustay reviewed proposed updates to the sample language provided in OIP’s 2016 guidance and asked for any comments from the audience.
• ​Ms. Pustay then reviewed the duties and responsibilities of FOIA Requester Service Centers and FOIA Public Liaisons. She noted that, among other things, these resources educate requesters about how the FOIA process works, provide status information on requests, and assist in increasing transparency and resolving any disputes.

Overview of Dispute Resolution in the FOIA Process and OGIS

• Ms. Semo provided an overview of the role of dispute resolution in FOIA and compared the types of assistance that FOIA Public Liaisons and OGIS can best provide.
• Ms. Semo also provided some statistics on how frequently agencies reported providing dispute resolution services, noting that OGIS anticipates quadrupling its mediation caseload in Fiscal Year 2017.
• Ms. Semo explained that OGIS does not compel agencies to release documents, process requests or review appeals, or dictate resolutions to disputes. She added that while a goal of OGIS’s mediation service is to prevent litigation, the statute does not preclude a requester from filing suit after using OGIS’s services.
• Ms. Semo explained that as the FOIA Ombudsman OGIS answers general questions about the FOIA process and exemptions, while also handling more complex cases, such as mediating discussions between agencies and requesters and facilitating communication between multiple agencies dealing with similar requests.
• Ms. Semo noted that OGIS also provides dispute resolution skills training sessions for FOIA professionals throughout the year or upon request at individualized training sessions for agencies.

Panel Discussion: Maximizing Effectiveness of Services Provided by FOIA Requester Service Centers, FOIA Public Liaisons, & OGIS

• Ms. Pustay moderated the panel consisting of two requesters and three agency representatives.
• Michael Bell (HHS) discussed the importance of communication throughout the request process and explained that HHS has emphasized the importance of communication across its FOIA offices and operations divisions. He noted that practices such as providing additional detail in brief responses to requests can help preemptively address a requester’s questions. As an example, he suggested a “no records” response could include a brief explanation of the search process) He also explained that HHS’s work to improve records management practices has helped improve FOIA efficiency.
• Michael Morisy (MuckRock.com) acknowledged the challenges agencies face resulting from the complexity of requests and records types, coupled with additional FOIA responsibilities and no new funding. He opined that the increased public awareness of FOIA presents challenges and opportunities for agencies to educate and engage new communities of requesters. He suggested that agencies should continue to look for ways to make information proactively available and to consider how to “bake in” transparency from the beginning of projects and programs. Mr. Morisy emphasized the importance of properly setting requester expectations and providing context in communications with requesters.
• Linda Frye (SSA) discussed SSA’s improvements in communication with requesters, explaining that staff are now much more likely to reach out to requesters for clarification. She explained that her agency is working to improve its search procedures, such as requiring employees to provide responsive records to the FOIA staff electronically and educating non-FOIA employees on the FOIA’s time limits. She explained that to address staffing shortages, SSA began a “Skills Connect” program that allows SSA employees in other components to be trained to assist on other projects, including FOIA, which has started successfully.
• Michael Ravnitzky (Requester) highlighted recent successes in FOIA, such as reduced backlogs and improved communication, and suggested areas for improvement. He emphasized the importance of clarity in response letters and fee estimates, in addition to working with requesters to explain how records are kept and how to submit a properly worded request. He also provided suggestions for ensuring a user-friendly FOIA Library included creating a “what’s new” section, posting user-friendly files, and ensuring effective organization of material, noting that librarians or information specialists could assist with this.
• Carrie McGuire (OGIS) summarized lessons learned from OGIS’s recent mediation cases and explained how OGIS can assist agencies and requesters throughout the process. OGIS has observed that notices of unusual circumstances offer a good opportunity to work with the requester to narrow the scope of a request. With adverse determinations, OGIS can help the requester better understand the response by providing details about the FOIA process and potential next steps.
• Ms. Pustay concluded the panel and opened the floor to receive comments from the audience.

Public Comments

• Ms. Pustay opened the floor to discussion and the panelists responded to various questions and comments.

Conclusion

• Ms. Semo thanked everyone for attending and closed the meeting.