OGIS Recommendations, 2021

Published May 2021 in the Office of Government Information Services (OGIS) 2021 Annual Report for Fiscal Year 2020

OGIS recommends that Congress pass legislation to provide agencies with sufficient resources to comply with the requirements of both FOIA and Section 508 of the Rehabilitation Act of 1973, as amended, especially as they relate to proactive posting of large numbers of records.

Explanation: In our 2019 OGIS Annual Report on FY 2018, we made this specific recommendation to Congress and included three possible legislative options. We continue to observe agencies struggling with balancing the requirements of both statutes — and we renew our recommendation in this report.

As we noted in our 2019 Annual Report, the FOIA Improvement Act of 2016 amended FOIA to require that agencies proactively release certain records, including any record that has been requested three or more times. 5 U.S.C. § 552 (a)(2)(D)(ii)(II). Section 508 of the Rehabilitation Act requires, among other things, that all records posted to agency websites be accessible to people with disabilities, unless doing so would pose an “undue burden” on the agency. 29 U.S.C. § 794d(a)(1)(A). In order for a document to be accessible, it must meet specific requirements. These requirements include that the text be machine-readable and that any charts, graphs, pictures, or tables in the document are tagged and described in a way that enables the screen reader to accurately describe a document to a visually impaired individual.

The procedures and tools often used by agencies to process records for public release under FOIA strip away metadata and other features that make those records accessible and Section 508 compliant. Agencies often lack the resources to remediate these records to meet Section 508 requirements. This conflict between current FOIA processing technology and Section 508 compliance prevents a number of agencies from proactively disclosing records.

Some agencies rely on their IT staff to ensure 508 compliance; other agencies leave that task to FOIA professionals who are already fully occupied reviewing and releasing records responsive to other requests; and some agencies contract out these services. Currently, we know of no software solutions that can fully automate the process of making records 508 compliant.

Both the first term (2014–2016) and the second term (2016–2018) of the FOIA Advisory Committee identified the potential conflict between proactive disclosure requirements and Section 508 compliance as a major technological, logistical, and resource challenge that needs to be addressed. During the Committee’s first term, a subcommittee studied the issue. The second term produced a specific recommendation to the Archivist of the United States — that legislation is needed to clarify agencies’ Section 508 requirements, especially as they relate to proactive posting of large numbers of records, by ensuring “that agencies have sufficient resources to meet both accessibility and proactive disclosure requirements.”

In connection with that recommendation, we provided three possible, non-mutually exclusive, legislative options in our report two years ago. We renew our recommendation that Congress look into the feasibility of the options below — or consider other viable solutions to this problem.

1. Pass authorizing legislation and appropriations that specifically tasks and funds the U.S. Digital Service within the Executive Office of the President and/or the General Services Administration, to assemble and lead a team of individuals with requisite disciplines and knowledge to develop tools that will assist agencies to make their records Section 508 compliant and accessible. This could include, but not be limited to, writing a new source code that may be made available to agencies through www.code.gov.

2. Pass authorizing legislation and appropriations that tasks and funds a suitable federal entity or organization — such as the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR) within the U.S. Department of Health and Human Services (HHS) — with administering a grant program aimed at developing technologies or tools for public use that would automate the process of making agency documents 508 compliant.

3. Pass legislation providing that, in lieu of proactively posting 508-compliant FOIA documents, agencies may instead post a 508-compliant index of documents. Individuals could then request 508-compliant copies of documents listed in the index.

Congressional FOIA Oversight

OGIS recommends that Congress ask the Government Accountability Office (GAO) to pinpoint systemic and/or specific compliance issues at agencies that Congress could then address in a targeted, surgical fashion, either through hearings or additional inquiries.

OGIS recommends that Congress ask GAO to conduct a study of the funding for agency FOIA programs to determine whether agencies have adequate funding to comply with FOIA and respond to requests in a timely manner, and what additional resources agencies need in order to improve the FOIA process overall.

 The 2018-2020 term of the FOIA Advisory Committee recommends that  Congress engage in regular and robust oversight of FOIA, hold more hearings, establish regular and coordinated communication with agencies, and strengthen OGIS with clearer authority and expanded resources (FOIA Advisory Committee Recommendation No. 2020-19); and

The 2018-2020 term of the FOIA Advisory Committee recommends that Congress address funding for agency FOIA programs and ensure that agencies have sufficient resources to comply with FOIA (FOIA Advisory Committee Recommendation No. 2020-20).

Explanation: The 2018–2020 term of the FOIA Advisory Committee recommended that the Archivist task OGIS with asking Congress to (1) engage in regular and robust oversight of FOIA, hold more hearings, establish regular and coordinated communication with agencies, and strengthen OGIS with clearer authority and expanded resources (Recommendation No. 2020-19); and (2) address funding for agency FOIA programs and ensure that agencies have sufficient resources to comply with FOIA (Recommendation No. 2020-20).

With regard to Recommendation No. 2020-19, as the Committee explained in its final report, “in the absence of oversight from Congress, FOIA otherwise lacks a sustaining enforcement mechanism. It is incumbent upon Congress to ensure that our country has a robust, well-funded, and carefully considered overall FOIA program to deliver the transparency and accountability that the American people deserve and expect.” The final report provides specific recommendations for ways that oversight could be achieved, including increased hearings and inquiries as to agency performance.

While we support regular and coordinated communication between Congress and federal agencies, having more hearings and formal inquiries may not necessarily achieve the intended result of robust, well-funded, and carefully considered FOIA programs. Oversight in the form of additional hearings and inquiries risks imposing additional burdens on agency FOIA programs that are already straining to respond to FOIA requests. We do believe that increased oversight should start with the U.S. Government Accountability Office (GAO), just as the FOIA statute specifically contemplates. 5 U.S.C. § 552(h). Congress should consider asking GAO to pinpoint either systemic or specific compliance issues that Congress could then address in a more targeted, surgical fashion, either through hearings or additional inquiries. Finally, with regard to strengthening OGIS with clearer authority and expanded resources, the Committee was unable to come up with a specific set of recommendations or a vision as to what a “new and improved” OGIS might look like. We heartily agree that “the office is understaffed, underfunded, and under-authorized to effectively oversee FOIA across the entire federal government.” And we appreciate the Committee’s urging “to significantly expand the funding and staffing for this important office.” How to precisely “strengthen the office’s authority on FOIA matters,” however, requires further delicate and careful contemplation.

With regard to Recommendation No. 2020-20, we fully support any efforts in Congress to increase funding for agency FOIA programs that demonstrate the need and can document how they will use increased funding to improve the FOIA process, including decreasing backlogs and increasing efficiency and effectiveness. We note, in particular, that the 2018–2020 term of the Committee recommended that agencies “conduct a comprehensive review of their technological and staffing capabilities within two years to identify the resources needed to respond to current and anticipated future FOIA demands.” (Recommendation No. 2020-13). Such a review, we believe, would put agency FOIA programs on a firm footing for asking their agency leadership and Congress for more resources.

On a parallel track, Congress should consider asking GAO to conduct a study of the funding for agency FOIA programs to determine whether agencies have adequate funding to comply with FOIA and respond to requests in a timely manner, and what additional resources agencies in fact need in order to improve the FOIA process overall. OGIS has gained a significant amount of experience in assessing agency FOIA programs and stands ready and available to assist GAO with these efforts.

We  note that the 2020–2022 term of the FOIA Advisory Committee established a Legislation Subcommittee to focus on aspects of FOIA and government transparency that are most appropriate for action by Congress, whether through statutory changes, appropriations, or oversight, including the design and authority of OGIS. We expect the Subcommittee to make additional legislative recommendations to the full Committee that may then be presented to the Archivist in the Committee’s final report in 2022.