Public Comments Submitted by Robert Hammond on May 3, 2021 - Recommended System Change Requests to FOIAonline. Including Simple Solution for "Release to One, Release to All"
From: Robert Hammond
Sent: Monday, May 3, 2021 1:12 PM
To: ogisopenmeeting@nara.gov.; Alina Semo (OGIS); Kirsten Mitchell (OGIS), Brian K. Thompson (EPA), Tim Crawford (EPA), Jeff Edwards (EPA)
Subject: PUBLIC COMMENT, OGIS ANNUAL OPEN MEETING MAY 12, 2021. RECOMMENDED SYSTEM CHANGE REQUESTS to FOIAonline. Including Simple Solution for “Release to One, Release to All”
Importance: High
(Best Viewed as HTML. Pls post attached Public Comment and address during the meeting. Pls advise by return email when posted and indicate that it has been added to the Agenda)
PUBLIC COMMENT, OGIS ANNUAL OPEN MEETING MAY 12, 2021
(Also submitted to FOIA ADVISORY COMMITTEE
& CHIEF FOIA OFFICERS COUNCIL)
RECOMMENDED SYSTEM CHANGE REQUESTS to FOIAonline
Including Simple Solution for “Release to One, Release to All”
I. BCKGROIUND RECOMMENDED SYSTEMS CHANGES TO FOIAonline.
Please post this Public Comment, add it to the May 12, 2021 OGIS Annual Open Meeting Agenda and address it as a topic during the meeting the following comments, which are related to “REPORT TO THE ARCHIVIST OF THE UNITED STATES, Freedom of Information Act Federal Advisory Committee 2018-2020 Committee Term Final Report and Recommendations July 9, 2020.” Perhaps EPA’s Brian K. Thompson, in coordination with the FOIAonline Change Control Board, can provide a briefing/briefer. I have provided these recommendations to Mt. Thompson and the FOIAonline Change Control Board. I believe that 20 minutes should be devoted to this topic.
FOIAonline is the “gold standard” for federal FOIA portals/case management systems, in my view.
I recommend that Agencies consider this application, in lieu of pursuing costly development of independent platforms at government expense as DOJ has recently done. DOJ is developing FOIA Star, which has rudimentary, primitive capability compared to FOIAonline and, and DOJ did not notify Requesters of its transition from FOIAonline to FOIA Star, nor properly transition existing cases from FOIAonline. At a minimum, any Functional Requirements Document should address the capability of FOIAonline and costs, which should be included in any approvals, including Milestone Decisions for any new applications.
“Release to One, Release to All” Solved.
Recommended systems change to allow “release to one, release to all” by allowing the FOIA requester to embargo from public review and then un-embargo FOIA requests, released documents and case processing records while precluding Agencies from shielding records from public view. MUCKROCK.com, which is a non-profit FOIA portal used widely by members of the media and private requesters already has this simple functionality. MuckRock also has the capability for automatic follow-ups on aged FOIA requests and appeal and preserves that data.
This post relates to Recommendation #12: “We recommend that agencies release FOIA documents to the public on their FOIA websites and in FOIA portals in open, legible, machine-readable and machine actionable formats, to the extent feasible.”
- Recommendation to Congress. I suggest that this recommendation also be made to Congress to mandate that Agencies provide open, searchable access to their FOIA portals without blocking public view of requester names, request details, correspondence, and release of records. The requester should be able to control, “release to one, release to all” as is the case for the non-profit MUCKROCK.com FOIA portal (which allows the Requester to “embargo” a request from public view for a period at the Requester’s discretion (to protect a journalist’s scoop for example) but does not permit the Agency to block public view)). See amplification regarding needed systems changes to FOIAonline.gov herein, which have been sent to the Environmental Protection Agency (EPA) Program Management Office for FOIAonline.
II. RECOMMENDED SYSTEMS CHANGES TO FOIAonline
The following recommended system change requests for FOIAonline.gov have been submitted to EPA through the FOIAonline.gov helpdesk and to the FOIAonline Change Control Board.
Subject: EPA Priority System Change Requests Needed – FOIAonline.gov,
Background.
The goal of FOIA is the PUBLIC RELEASE OF RECORDS. The names of the FOIA requesters as courts have held that under the FOIA requesters do not have an expectation of privacy, as sited by DOD: Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981). FOIAonline must serve as a platform for public release of records. Other platforms, such as MUCKROCK.com allow a requester to embargo a request from public view for a certain period as a means for media to protect their information prior to publishing stories. However, in FOIAonline the “Description Available to the Public flag is set to “No” on default. Set this flag to “Yes” in order to make the description publicly searchable and viewable.” Agencies do not change the flag even for years old completed requests, defeating the purpose of FOIA. The Agency should not have any ability to control the “Description Available to the Public” or the Requester Identity or to alter the “Request Description” for requests submitted though the FOIAonline.gov portal. These decisions should be entirely up to the Requester. All records associated with the Agency’s receipt of, action taken, exemptions claimed, and records released should be publicly available. Failure to do so also impedes accountability wherein anyone should be able to match the dates received and completed along with the Agency’s Raw Data supporting its annual FOIA report to document those cases of clear inaccurate Annual FOIA reporting to the Attorney General of the United States. (False FOIA reporting withing the DOD is massive, widely known, and ongoing.)
Refer to attachment:
Delivery Order # GS00Q09BGD0022
Task Order # EP-G11H-00154
Project # TDD 11.10
Version 0.10
June 3, 2016
FOIAonline Agency User Guide
Enumerated FOIAonline Changes
1. “Description Available to the Public” Must be the Requester’s Choice, not the Agency’s Choice. “Release to one, Release to All” Solution.
Deficiency. FOIAonline must serve as a platform for public disclosure of requests and records. In FOIAonline the “Description Available to the Public flag is set to “No” on default. Set this flag to “Yes” in order to make the description publicly searchable and viewable.” Agencies do not change the flag from “No” to “Yes,” even for completed requests, defeating the purpose of FOIA. The Agency should not have any ability to control the “Description Available to the Public” or the Requester Identity. These decisions should be entirely up to the Requester. Ostensibly, the Agencies have claimed that they need this ability to protect personably identifiable information, but that is false. All information entered a FOIA request originated in the public domain. Agencies are using this procedure to redact the identities and contact information of government officials who in nearly all cases have placed the information into the public domain themselves or it is posted on public web sites. This includes FOIA officials and points of contact identified in Agency determination letters and appellate determinations (as required by statute) and emails sent to the requester himself, which agencies want to improperly redact. If a request number is entered into the FOIAonline.gov search and the “Description Available to the Public flag is set to “No,” FOIAOnline.gov will display “Under Agency Review.”
Required Systems Change.
- Remove the Agency’s ability to set the Description Available to the Public” flag.
- In the online request submission process allow the requester to select whether he/she wants his/her request to be publicly available or embargoed from public view.
- Allow the requester to later un-embargo a request to make it publicly available.
- In the alternative, remove the ability to set the flag to “no and allow all FOIA requests and appeals to be publicly searchable and viewable.
2. “Requester Name” Must be the Requester’s Choice, not the Agency’s Choice.
Deficiency. The decision as to whether a requester’s name is publicly available must be made by the requester and not the Agency. This allows other requesters to follow the work of a requester and potentially collaborate on certain topics, such as public malfeasance in FOIA processing. Other platforms such as MUCKROCK offer this capability. For example, requester Robert Hammond submitted 173 requests via FOIAonline.gov to Department of Navy. A public search for “Hammond and Department of Navy” returns two results (DON-NAVY-2018-012025 and DON-NAVY-2018-012024), but even there the request details are shown as “under review” and no records are accessible from FOIAonline.gov public view. This also impedes accountability wherein anyone should be able to match the dates received and completed along with the Agency’s Raw Data supporting its annual FOIA report to document those cases of clear inaccurate Annual FOIA reporting to the Attorney General of the United States. (False FOIA reporting withing the DOD is massive, widely known, and ongoing, based on my comparisons of my records FOIAonline data and data within other FOIA portals to Annual FOIA Report “raw statistical data.” Moreover, in apparent violation of law, DOD has not posted its FY 2016 raw data and data for FY 2017 lacks individualized FOIA case/tracking numbers for certain agencies (such as Defense Health Agency) mandated by statute and needed for FOIA tracking.)
Required Systems Change.
- Remove the ability for the Agency to block the identity of the requester.
- In the online request submission process allow the requester to select whether he/she wants his/her name to be publicly available or embargoed from public view.
- Allow the requester to enter a “screen name’ for public view in lieu of requester name.
- Allow the requester to later un-embargo his/her name on a request to make it publicly available.
Background There are serious deficiencies within the FOIAonline.gov web application that allow agencies to cheat the process and impede transparency. All my FOIA requests contain an email address and nearly all are submitted via the FOIAonline application. While I refer to the Request Details tab and the Correspondence tab, these are simply the visible displays in FOIAonline.gov. My System Change Requests below would apply to the underlying program code and database.
3. Requester Inability to Reply in “Correspondence” Tab
Deficiency. Where there is only a “system” response to a request (such as initial acknowledgement of request or appeal receipt) and no agency correspondence in the “correspondence tab” the requester is unable to initiate follow-ups for requests or appeals that may be several years old. Even offline follow-ups via email directly to the agency are not then recorded by the Agencies in the correspondence tab. This applies to requests submitted both through the application and those entered by the Agency. This is an extremely serious void that ultimately impacts public disclosure and FOIA litigation. All case file data should be preserved within the application. See examples:
DON-NAVY-2018-001229 Request Simple 11/09/2017 N/A Assignment
DON-NAVY-2019-000954 Appeal N/A 11/01/2018 12/03/2018 Assignment
Required Systems Change. Allow the Requester to reply to system generated notices without having to wait for the Agency to initiate correspondence which may never come. While the Requester can “Modify this Request,” follow-ups are not modifications and placing any correspondence in the “Request Details” tab would allow the Agency to treat a follow-up as a modification and restart the processing time clock for FOIA reporting.
4. Agency Improperly Placing Correspondence in the Request Details tab.
Deficiency. While the Agency can enter data and documents in the Request Details tab for requests that are not submitted through the FOIAonline.gov application, I have examples where the Agency has entered final determination letters in the Request Details tab rather than the Correspondence tab and never sent the final determination letter. This appears to be an intentional act, which impacts FOIA appeal rights and litigation.
Required Systems Change. In instances where the Requester has submitted a FOIA request via FOIAonline.gov, the Agency should not have any ability to enter any correspondence whatsoever in the Request Details tab. Similarly, once a request is created for an offline submission, the Agency should not have any ability to enter further data or correspondence in the Request Details tab.
5. Agency not Placing all Correspondence in FOIAonline.gov and not making Correspondence viewable to the Public.
Deficiency. All correspondence between the Requester and the Agency must be placed into the correspondence tab and it must be Publicly viewable by anyone. All case file data should be preserved within the application, which also impacts ongoing work to implement automated record retention in FOIA portals/case management systems. Additionally, DOD has improperly combined multiple FOIA requests into a single determination letter and failed to post the determination letter in all FOIA Requests/Appeals within the application. This also defeats any efforts to apply records management to FOIA records within the application.
Required Systems Change. Require that all correspondence between the Requester and the Agency be placed into the correspondence tab and make all correspondence Publicly viewable by anyone.
6. Agencies Improperly “Modifying” Requests and Appeals.
Deficiency. FOIAonline.gov allows the Agency to modify the description of a FOIA request or appeal and to only display in the Public view the Agency’s modified “Request Description.” Ostensibly, the Agencies have claimed that they need this ability to protect personably identifiable information, but that is false. All information entered in a FOIA request originated in the public domain. Agencies are using this procedure to redact the identities and contact information of government officials who in nearly all cases have placed the information into the public domain themselves or it is posted on public web sites. This includes FOIA officials and points of contact identified in Agency determination letters and appellate determinations (as required by statute) and emails sent to the requester himself. There is no statutory authority for an agency to modify a FOIA request or appeal and doing so is a violation of the FOIA.
Required Systems Change. Remove the ability for an agency to modify a FOIA request. It is a violation of the FOIA for the Agency to do so.
7. DOJ Discontinued Using FOIAonline Without any Notice to Requesters or Transition of Records to “FOIA Star.”
Deficiency. After submitting an Administrative appeal for a DOJ FOIA request, I learned that DOJ had implemented its own FOIA portal/case management system, FOIA Star without any notice to FOIA requesters nor any transition of all case management data to the new application. It is unclear what the justification for developing a new application is, but FOIA Star is a very primitive application that lacks the functionality of FOIAonline. As a taxpayer and frequent FOIA requester, this concerns me greatly.
Required Systems Change. Suspend any action to remove or make unavailable to the Requester/Public all DOJ FOIA requests and appeals until DOJ advisors all requesters of its transition to FOIA Star, implements a process to seamlessly transition all requests and appeals currently in FOIAonline and to preserve such data in a manner accessible to the re quester that is similar to FOIAonline and implements a robust correspondence processing capability. I believe that no changes should be made until DOJ publicly briefs its FOIA Star Application and seeks user comments from the current DOJ Request users of FOIAonline. Any costs of transitioning records should be born solely by DOJ as a part of its system development/sustainment costs.
III. CHIEF FOIA OFFICERS COUNCIL (CFOC) TECHNOLOGY COMMITTEE FOIAONLINE WORKING GROUP. OPEN AGENCY FOIA PORTAL REQUEST/APPEAL RECORDS TO THE PUBLIC
This relates to the Chief FOIA Officers Council (CFOC) Technology Committee FOIAonline Working Group (“Working Group”) as discussed below. Please contact me.
- I am seeking an opportunity to participate in the Working Group meetings to provide much needed FOIA Requester perspective and recommendations to improve FOIAonline. I am a frequent user of FOIAonline and have much to offer.
- I am seeking a presentation from the FOIAonline Working Group at the next Advisory Committee meeting that addresses my recommended FOIAonline Systems Change Requests. I would like an opportunity to participate in the discussion and am prepared to provide PowerPoint slides.
A. CHIEF FOIA OFFICERS COUNCIL (CFOC) TECHNOLOGY COMMITTEE FOIAONLINE WORKING GROUP CHARTER
Lasted Updated: January 24, 2021
Co-Chairs: Mark Muro
Ryan McQuighan
Ryan Landrum
Matthew Pollack
Cindy Cafaro
Objective: The FOIAonline working group will analyze and review the capabilities of FOIAonline which provides services to over 20 government agencies. This group will work to create a community of interest to leverage diverse user experiences to highlight best practices, compile frequently asked questions and answers, user guides, and make recommendations to improve FOIAonline capabilities supporting FOIA processing throughout federal agencies using this tool.
Proposed Deliverables and Target Deadlines:
- Compile and make available Frequently Asked Questions (FAQs) beyond those already published on the FOIAonline site and make recommendations to the government solution FOIAonline to expand the FAQs already in existence to reflect working group input. Develop a brief “Top 10” FOIAonline paper related to the implementation and utilization of FOIAonline. - Target Deadline: February 28, 2021
This is a research deliverable. Actions to be taken include the following: review existing FOIAonline documents and reports, discussion with FOIA professionals who are open to sharing their experiences with FOIAonline and other research approaches.
- Building off the work product above, host an event for FOIA professionals who have used or are currently using FOIAonline to discuss best practices and challenges on any of the topics covered in #1 above. - Target Deadline: March 2021 (specific date TBD)
- Participate in the Vendor Day held by the Technology Committee/Office of Information Policy (OIP)/Office of Government Information Services (OGIS).
Respectfully submitted,
Robert Hammond
Attachment: FOIAonline Agency User Guide