OGIS Recommendation to Congress, 2019
Published March 2019 in the Office of Government Information Services (OGIS) 2019 Annual Report for Fiscal Year 2018
OGIS’s enabling statute authorizes it to submit “[l]egislative and regulatory recommendations, if any, to improve the administration of FOIA.” 5 U.S.C. 552(h)(4)(A)(iii). This FY 2018 report makes one specific recommendation to Congress:
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.
Background. 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 many agencies from proactively disclosing large numbers of records.
Some agencies are able to rely on their IT staff to ensure 508 compliance; other agencies leave that function in the hands of FOIA professionals, who are already busy trying to review and release records responsive to other requests; and some agencies contract out these services. Currently, we know of no software solutions which can fully automate the process of making records 508-compliant.
FOIA Advisory Committee Recommendation. Both the first and second terms of the FOIA Advisory Committee identified the potential conflict between proactive disclosure and Section 508 compliance as a major technological challenge for agencies that needs to be addressed. During the Committee’s first term (2014–2016), a subcommittee studied the issue. The second term (2016–2018) produced this specific recommendation to the Archivist—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.”*
Possible Legislative Options. Below are three possible legislative options, not mutually exclusive, that may be pursued:
- Pass legislation that specifically tasks and funds the U.S. Digital Service within the Executive Office of the President and/or 18F, the digital services office within 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.
- Pass legislation funding and tasking 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.
- Pass legislation providing that, in lieu of proactively posting 508- compliant FOIA documents, agencies may instead post a 508-compliant index of these documents. Individuals could then request 508-compliant copies of documents listed in the index.