Assessing Freedom of Information Act Compliance through the 2019 National Archives and Records Administration’s Records Management Self-Assessment

Published March 4, 2021

Executive Summary

Since 2016, the Office of Government Information Services (OGIS) has collaborated with the Chief Records Officer (CRO) for the U.S. Government to gather government-wide information about Freedom of Information Act (FOIA) administration. Data collected through FOIA questions included in the 2019 Records Management Self-Assessment (RMSA) complement the observations we make as the FOIA Ombudsman, working to improve the FOIA process for all.

The 2019 RMSA survey—administered to agency records officers from January 13, 2020 to May 15, 2020—included five questions regarding FOIA administration. Key results highlighted in this report include:

• A majority of respondents (59 percent) reported that their agencies manually de-duplicate records responsive to FOIA requests.
• A majority of respondents (77 percent) reported that their agency records officers or records management staff have received formal or informal FOIA training. (Relates to FOIA Advisory Committee Recommendations Nos. 2020-04 and 2020-05)
• A significant majority of respondents (83 percent) reported that their agency FOIA Officers are responsible for reviewing responses to FOIA requests and a majority (59 percent) reported that their General Counsel offices are responsible.
• A majority of respondents (55 percent) reported that agency IT Offices/Web managers are responsible for ensuring that records posted to FOIA reading rooms comply with Section 508 of the Rehabilitation Act, as amended. About half (49 percent) of the respondents indicated that the responsibility rests with the FOIA office. (Relates to FOIA Advisory Committee Recommendation Nos. 2018-05 and 2018-06)

One result requires further follow-up which OGIS is undertaking in a separate assessment:

• Eighty-four percent of respondents reported that their agencies make information access guides available on their FOIA websites to help requesters better understand the FOIA process and the records they maintain. Forty-nine percent reported their agency makes descriptions of major information available on their FOIA websites. A majority of the respondents reported not having  indices to all major agency information systems or record locator information on their FOIA websites. (Relates to FOIA Advisory Committee Recommendation No. 2020-01)

Discussion of RMSA Results

De-Duplication of Records Responsive to FOIA Requests

De-duplication, the process of identifying and removing duplicates from a group of FOIA-responsive records to prevent multiple review, is a major challenge for agencies. Emails and attachments sent to multiple recipients can easily result in thousands, or even tens of thousands, of pages of duplicates. The use of de-duplication software can reduce the volume of material agencies must review and decrease the amount of time it takes agencies to respond to requests.

The majority of respondents—59 percent—said that their agencies manually de-duplicate records responsive to FOIA requests. Twenty-nine percent of respondents indicated that their agencies use software to de-duplicate records when processing FOIA requests. Seven percent of respondents did not know how their agencies handle duplicate records when processing FOIA requests, while a significant minority —5 percent —said that their agencies do not separate duplicate records. The duplicate processing of records is inefficient, and increases the amount of time needed to process requests and the likelihood of processing errors.

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Figure 1: 2019 RMSA Responses to Question 26, “How does your agency handle duplicate records when processing FOIA requests?”

Note: The total number of respondents to this question was 245.

In 2013, OIP conducted a pilot program demonstrating the advantages of leveraging digital tools for FOIA processing, including improved search times and decreased time spent on de-duplication. Technology and digital tools allow agencies to conduct searches and locate, de-duplicate, review and redact records more effectively and efficiently than comparable manual methods.

In September 2018, the Chief FOIA Officers (CFO) Council established a Technology Committee to study the use and deployment of technology in FOIA programs across agencies, and identify best practices and recommendations that can be implemented across agencies. In February 2020, the Technology Committee published a reportof best practices and recommendations which noted that “[t]echnology that supports the capture, storage, search, deduplication, and appropriate and timely destruction of electronic records furthers the FOIA program’s ability to succeed.”

Observations:

• Digital FOIA processing tools can help agencies search for, de-duplicate, review, and redact records responsive to FOIA requests. Such tools decrease processing times and increase efficiency. While digital FOIA processing tools may require a significant investment of resources, agencies and requesters can greatly benefit from their use.
• In its work as the FOIA Ombudsman, OGIS has observed that a lack of resources to pay for electronic tools is often a barrier to FOIA processors having de-duplication software.
• We anticipate the CFO Council’s Technology Committee to continue its work on analyzing the methods agencies use to process FOIA requests, including the de-duplication of records.

FOIA Training for Agency Records Officers and Records Management Staff

The majority of survey respondents said that their agency records officer (ARO) or records management (RM) staff have received formal or informal FOIA training. Forty percent of respondents said that their ARO or RM staff received formal FOIA training such as online training or in-person instructor-led training. Thirty-seven percent of respondents said that they received informal FOIA training such as a briefing or as part of their agency’s employee orientation process. Twenty-four percent of respondents said that their ARO or RM staff did not receive any FOIA training. (Percentages are rounded up and may not equal 100 percent.)

The FOIA Improvement Act of 2016 requires agencies’ Chief FOIA Officers, subject to the authority of the head of the agency, to offer training to agency staff regarding their responsibilities under FOIA (5 U.S.C. § 552(j)(2)(F)).

Similarly, in its Final Report and Recommendations, the 2018-2020 term of the FOIA Advisory Committee recommended that NARA and OIP include a FOIA module in records management training courses open to all federal employees and offer records management training to FOIA officers and FOIA Public Liaisons. The Committee further recommended that OIP issue guidance requesting agencies to provide annual mandatory FOIA training to all new and current employees and contractors and that OGIS and OIP review agencies’ current FOIA training requirements and content.

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Figure 2: 2019 RMSA Responses to Question 24, “As the Agency Records Officer (or records management staff), have you received FOIA training?”

Note: The total number of respondents to this question was 246. Graph percentages do not equal 100% due to rounding.

Observations:

• Opportunities exist for more ARO and RM staff to receive FOIA training.
• OGIS, the Office of the CRO and OIP began working in January 2021 to develop online training in federal records management for FOIA officers and all federal employees to fulfill FOIA Advisory Committee Recommendation No. 2020-04.
• As a first step to implementing FOIA Advisory Committee Recommendation No. 2020-05, OIP asked agencies in their 2021 Chief FOIA Officer Reports to describe efforts to ensure proper FOIA training is made available and used by agency personnel, and to inform non-FOIA professionals of their obligations under FOIA. The results are forthcoming.
• Opportunities exist for NARA to update its Agency Records Management Training Requirements bulletin to elevate the importance of FOIA.

Review of Responses to FOIA Requests

The majority of respondents—83 percent—said that their FOIA Officers are responsible for reviewing responses to FOIA requests. Fifty-nine percent said that their agency’s Office of General Counsel reviews FOIA responses. Forty-three percent of respondents said that the staff in the program office where the records originated are responsible for the review; 42 percent said that their Chief FOIA and/or Privacy Officer is responsible; and 40 percent said that their agency’s Supervisory Government Information Specialist/Team Lead is responsible for such review. Thirteen percent of respondents said that their Office of Public Affairs reviews FOIA responses and 7 percent of respondents said that their Office of the Secretary/Head of Agency reviews the responses. (The survey asked respondents to check all applicable responses.)

Twenty-two percent of respondents selected the “Other, please be specific” option to explain how their agencies review FOIA responses. Some respondents reported that agency procedures for reviewing FOIA responses, including responsibilities for the review and the levels of review, may depend on factors including the request topic and whether:

• the responsive records are classified;
• the request relates to a FOIA appeal or litigation; and/or
• the request is a “news media or high visibility” request.

The titles and positions of staff cited in the “Other, please be specific” responses included: FOIA analysts, senior FOIA specialists, staff within the Office of General Counsel, office directors, the Office of Public Affairs and the Office of the Secretary/Head of Agency, the Chief of Staff, the Division Chief, the Directorate Chief, agency records officers, supervisory records management specialist, FOIA/Privacy Act staff attorney advisors, subject matter experts, program office FOIA liaisons and FOIA coordinators, contractors with FOIA duties, and the FOIA Public Liaison.

One type of review is known as “awareness review,” those in which FOIA professionals provide to agency leadership a heads-up about FOIA responses that are deemed “significant”—they may involve agency leaders or an action the agency has taken or is considering taking, and may result in news coverage. Political influence—or the appearance of such influence—occurs when a FOIA response is held beyond the awareness timeframe or a non-FOIA professional asks or orders that information that does not fall into one of the statute’s nine exemptions be withheld under FOIA.

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Figure 3: 2019 RMSA Responses to Question 25, “Who reviews responses to FOIA requests? (Choose all that apply)”

Note: The total number of survey responses to this question was 247.

Observations:

• Reviewing responses to FOIA requests is an important part of an agency’s quality and internal control processes. OGIS has also observed that there is no standard process as internal processes for reviewing FOIA requests vary by agency.
• Since opening in 2009, OGIS has listened to concerns about awareness review practices and political influence in the FOIA process. OGIS believes that agencies should be transparent about their awareness review practices, and notes that political influence should have no place in the FOIA review process.

Agency FOIA Websites

Eighty-four percent of respondents said that their agencies make information access guides available on their FOIA websites and 49 percent of respondents said that their FOIA websites have descriptions of major information systems to help requesters better understand the FOIA process and the records that agencies create, collect and maintain. More than a quarter of respondents reported that they had indices of all major agency information systems—28 percent—and record locator information—27 percent—available on their FOIA websites. Seven percent of respondents answered “none of the above” and 2 percent of respondents did not know what information their agencies make available on their FOIA websites.

The 2018-2020 term of the FOIA Advisory Committee recommended that OGIS assess information about the FOIA filing process available on agency websites, with the goal of informing updated OIP guidance on how agencies may improve online descriptions of the process. (Relates to FOIA Advisory Committee Recommendation 2020-01.) The Committee further recommended that OIP issue guidance related to the inclusion of records management-related materials and FOIA handbooks on agency websites. As a precursor to a forthcoming OGIS assessment, OGIS used the RMSA to ask about the types of information that agencies make available on their FOIA website to help requesters with the FOIA process.

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Figure 4: 2019 RMSA Responses to Question 27, “Which of the following does your agency/component have available on its FOIA website for requesting records? (Choose all that apply)”

Note: The total number of respondents to this question was 247.

Observations:

• Opportunities exist for agencies to help requesters understand the FOIA process and the records they create, collect and maintain by ensuring that their FOIA websites include FOIA Reference Guides (sometimes referred to as FOIA Handbooks), descriptions of major information systems, and record locator information.
• To fulfill FOIA Advisory Committee Recommendation No. 2020-01, OGIS is currently assessing the information agencies publish on their websites to facilitate the FOIA filing process and to inform future OIP guidance on how agencies can improve online descriptions of the FOIA process. The information OGIS collected in response to this question concerning agency FOIA websites forms the baseline for our forthcoming assessment.

Posting Section 508-Compliant Documents to FOIA Reading Rooms

Fifty-five percent of the agencies surveyed reported that their IT Office/Web manager is responsible for ensuring that posted documents are 508-compliant—accessible to people with disabilities unless doing so would cause an “undue burden.” Forty-nine percent said that the FOIA Office is responsible, 17 percent said that their Public Information Office is responsible. Sixteen percent said “Other,” 9 percent said their Office of General Counsel is responsible, 4 percent said that their agency does not check to ensure that their document are 508 compliant unless requested, and 3 percent said they did not know who ensures that the records posted to the FOIA Reading Room are 508-compliant.

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Figure 5: 2019 RMSA Responses to Question 28 “At your agency/component, who ensures that records posted to the FOIA Reading Room are accessible to people with disabilities (Per 508 compliance)? (Choose all that apply)”

Note: The total number of respondents to this question was 247.

Observations:

• FOIA programs that are responsible for ensuring that records are 508-compliant are often burdened by the accessibility requirement as they struggle to balance competing priorities of processing requests and posting documents online. As part of an OGIS assessment, Methods Agencies Use to Prepare Documents for Posting on Agency Freedom of Information Act (FOIA) Websites, agencies frequently cited challenges to posting records online as a barrier to proactive release.
• We expect the CFO Council’s Technology Committee and its 508 Compliance and Collaborative Tools working group to provide recommendations and best practices to promote compliance with the FOIA and Section 508, and the efficient operation of FOIA programs.

Conclusion

OGIS’s participation in the CRO’s annual RMSA helps us fulfill our statutory mission to “identify procedures and methods for improving compliance” under FOIA. We are encouraged that 77 percent of records professionals have received some FOIA training whether formal or informal. We encourage records professionals to take NARA’s online training, Manage FOIA Requests, which was updated in December 2020. We are pleased that the 2019 RMSA built on the previous year’s survey in providing information pertaining to 508 compliance for the OGIS assessment Methods Agencies Use to Prepare Documents for Posting on Agency Freedom of Information Act (FOIA) Websites, which fulfilled FOIA Advisory Committee Recommendation No. 2018-05. RMSA responses regarding information agencies post on their websites to help requesters better understand FOIA and agency records will help us fulfill FOIA Advisory Committee Recommendation No. 2020-01. Finally, answers to questions regarding review of responses to FOIA requests and manual de-duplication of records will assist OGIS, the Chief FOIA Officers Council, and the FOIA Advisory Committee in working toward a FOIA process that works for all.

Methodology

The CRO’s office opened the 2019 RMSA on January 13, 2020, with a response deadline of March 13, 2020, which it extended to May 15, 2020, due to the COVID-19 pandemic. The CRO’s office conducts the RMSA via an online survey tool that creates a unique link used to submit survey responses. Ninety-two percent of agencies which received the 2019 RMSA link completed the assessment in accordance with NARA’s responsibility to report on the state of federal records management.

Survey respondents included records officers at all Cabinet-level departments, departmental components, and independent agencies. A few non-Executive Branch agencies that are not subject to FOIA voluntarily took part in the assessment which brings the total number of responses to FOIA questions to 247. CRO instructed agency Records Managers to consult with their agency FOIA Officers to answer the FOIA-related questions. Percentages are rounded up and may not equal 100 percent.)

The full RMSA report, Federal Agency Records Management Annual Report 2019, contains full results and analysis.

The full survey results are available on the CRO’s RMSA web page.

References

Chief Freedom of Information Act Officers Council, Technology Committee, February 14, 2020. “Report of the Technology Committee of the Chief FOIA Officers (CFO) Council – Best Practices and Recommendations” https://www.archives.gov/files/ogis/assets/cfoc-tech-comm-final.report-02-14-2020.pdf.

Freedom of Information Act Federal Advisory Committee, 2018-202 term, July 9, 2020, “Final Report and Recommendations.” https://www.archives.gov/files/ogis/assets/foiaac-final-report-and-recs-2020-07-09.pdf.

National Archives and Records Administration, November 16, 2016, “NARA Bulletin 2017-01: Agency Records Management Training Requirements,” https://www.archives.gov/records-mgmt/bulletins/2017/2017-01-html.

National Archives and Records Administration, September 2020, "Federal Agency Records Management Annual Report 2019," https://www.archives.gov/files/records-mgmt/resources/2019-federal-agency-records-management-annual-report.pdf.

National Archives and Records Administration, December 2020, “Manage FOIA Requests,” https://www.archives.gov/files/records-mgmt/training/material/L1-031/story.html.

National Archives and Records Administration, “Federal Records Management - Office of the Chief Records Officer for the U.S. Government.” https://www.archives.gov/records-mgmt.

National Archives and Records Administration. “Records Management Self-Assessment (RMSA).” https://www.archives.gov/records-mgmt/resources/self-assessment.html.

Office of Government Information Services (OGIS), December 16, 2020, “OGIS Issue Assessment: Methods Agencies Use to Prepare Documents for Posting on Agency Freedom of Information Act (FOIA) Websites.” https://www.archives.gov/ogis/foia-compliance-program/targeted-assessments/posting-docs-assessment-2020-dec-16.

Office of Government Information Services (OGIS). “Chief FOIA Officers Council.” https://www.archives.gov/ogis/about-ogis/chief-foia-officers-council.

Office of Government Information Services (OGIS). “FOIA Advisory Committee Recommendations Dashboard.” https://www.archives.gov/ogis/foia-advisory-committee/dashboard.

Office of Government Information Services (OGIS). “Freedom of Information Act (FOIA) Advisory Committee.” https://www.archives.gov/ogis/foia-advisory-committee.

U.S. Department of Justice, Office of Information Policy, August 6, 2014. "Identifying Efficiencies When Leveraging Digital Tools for FOIA Processing." https://www.justice.gov/oip/blog/identifying-efficiencies-when-leveraging-digital-tools-foia-processing.

U.S. Department of Justice, Office of Information Policy, August 15, 2014. “OIP Guidance: Guidance for Further Improvement Based on 2013 Chief FOIA Officer Report Review and Assessment.” https://www.justice.gov/oip/blog/foia-guidance-2.