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AINS Blog - FOIA and Case Management

Entries in FOI programs (3)

Wednesday
Oct112017

Q&A Series with Fred Sadler



Frederick Sadler retired after serving 40 years with the Food and Drug Administration (FDA). As the Director of its Freedom of Information Act (FOIA) office, he was responsible for administration and implementation of FOIA and Privacy Act (PA) programs.

 

Question #5: How do today’s non-technical FOI Program Officers fulfill growing technology-specific demands such as e-searching, e-redaction, e-posting and 508 remediation? 

Answer: For any FOI program to be successful and meet today’s demands from a tech standpoint, there’s no question that officers need to seek and obtain management support.

A year ago, I had the pleasure of speaking at the AINS FOIAXpress Annual User Conference. In one of my presentations, I raised some concepts which I felt had the potential to become “challenges” and potential issues within an agency's FOIA program implementation, in the near future.  One point that I raised was that for a FOIA program to be successful, i.e. manage its workloads, decrease backlogs, and avoid litigation, there needs to be management support and commitment to provide the necessary human and IT resources.  

The challenge is that in most FOI offices, agency IT components aren't part of the FOIA process. FOIA offices, in many instances, function with only minimal IT support for areas such as Capstone, 508 remediation, internet posting, or just scanning for e-redaction. I think there's a tendency to provide basic level services, after which the IT or CIO component diverts resources to address other program areas, for example cyber-security, which is outside FOIA.  

How does a program obtain that support, especially with scarce resources? 
You’ve heard it before – numbers don’t lie. So, make your case with them! The FOIA offices need to present workload statistics, and not just the type of numbers that are collected for the Annual Report. Some ways to get your case going are to start counting:

 

  1. The volume of responsive records, and numbers of redactions needed
  2. The time for consultation with subject matter experts to document what needs to be redacted (which you may need later, to support an Exemption 5 claim)
  3. The average number of requests that an experienced FOI officer can fulfill over time (short term counts aren’t of much help, because the volume and complexity of requests varies so much)
Once you’ve done this, compare your findings to your staff size, taking into account both attrition and any increase in your FOIA workloads. The data should illustrate an accurate picture and validate your request for additional IT support, because without it the agency will not be able to maintain sufficient output, therefore fewer responses to issues and growing backlogs. 

 

The same situation occurs as you act to pro-actively post records; remediate records to meet the requirements of Section 508; post records that were requested 3 or more times; and for ensuring that FOI officers have full access to any and all records retained under Capstone.

E-searching the new Capstone databases alone has already begun to change the way that FOIA officers conduct reasonable, comprehensive searches.  And, since most of the responsibility for Capstone data storage falls within the CIO’s office, it is incumbent on the FOI officer to establish and maintain close working relationships with that office.

TIP: If an initial attempt to connect the IT/CIO staff aren’t immediately successful, talk with your Privacy Act (PA) office. 

After all, FOIA and PA occasionally intersect, and in my experience, responses can issue under either/both programs in response to a single request, so connecting isn’t outside the bounds of normal program management. Notice that the PA requires that databases have a privacy impact assessment (PIA) completed, and that always requires IT input, for data security, access, life-cycle management, etc. You should expect that the PA offices already have an established line of contact with IT, so it makes sense to tap into their suggestions on compliance, facilitate a meeting with IT regarding your specific program needs, or just to share their knowledge.

Meet those FOIA Improvement Act of 2016 Requirements
By now, agencies should also have made significant strides to meet the requirements of the FOIA Improvement Act of 2016. Those statutory changes require every agency to:
  • Review and update its FOI regulations
  • Enhance your pro-active posting program
  • Make frequently requested records available in an e-format (i.e., on line)
  • Update form letters to include optional mediation services through OGIS
  • Expand your Annual Report
  • Implement the "foreseeable harm" test, when an agency applies Exemption 5.  

A significant part of this data gathering and documentation clearly requires IT support. To accomplish this:

  1. Prioritize your specific needs.
  2. Talk with your IT contacts and get their input on what can be done quickly and easily.
  3. Ask what authorization or funding would be needed, in order to meet the 2016 FOIA program requirements, or to support any additional documentation you need to justify a request for additional resources.  

The key is to ask for more than you expect to get - even if you just obtain assistance in document scanning and conversion. It can save a FOI officer a significant amount of time, and that time can be spent responding to FOIA requests. You’ll still have to review every record line-by-line before it’s released, but at least the document preparation will have been done for you, and that will also simplify compliance with the posting requirements.

Are you being asked to do more with the FOI program, but don’t know enough about technology to know what needs to be done, or how to do it? 

Share your experience here and Fred will address your challenge with a possible solution.

Wednesday
Sep272017

Join our Expert Speakers at the FOIAXpress User Conference and Tech Summit

Join these top government experts at the 12th Annual FOIAXpress User Conference & Tech Summit as they cover the latest FOIA topics and how they will impact your job and your agency. Head into 2018 armed with the proper education to be effective and prepared for any opportunity and challenge with presentations from: 

Fred Sadler, FOIA Consultant

Fred Sadler served as the Director of the FDA's Freedom of Information Act (FOIA) office, responsible for administration and implementation of FOIA and Privacy Act (PA) programs.

Gain his seasoned insight and perspective on the most important FOIA issues, including backlogs, Capstone and 18F.  
 

 

Dick Huff, FOIA Instructor

Dick Huff served as served as one of two co-directors of the U.S. Department of Justice’s Office of Information and Privacy from 1982 until his retirement in 2005.

Learn significant FOIA decisions from law cases in the past year to avoid similar pitfalls and protect your agency. 

 

 

Nikki Gramian, Deputy Director, OGIS

Nikki Gramian is Deputy Director of the Office of Government Information Services (OGIS), the federal FOIA ombudsman’s office. Ms. Gramian joined OGIS after 7 years at DHS’ Office of Inspector General where she oversaw the administrative function of the FOIA process and prepared the Office for litigation. 

Understand best practices and lessons learned in mediation.  

 

Register now to join these experts - we look forward to seeing you there!

Tuesday
Aug152017

Q&A Series with Fred Sadler

The new Trump Administration and its impact on FOIA professionals 

Join us for a question and answer series with Fred Sadler as he reveals his insight into our inquiries about the new Trump Administration and its impact on FOIA professionals, as well as challenges and trends as they relate to present-day FOIA. 


Frederick Sadler retired, after serving 40 years with the Food and Drug Administration (FDA). As the Director of its Freedom of Information Act (FOIA) office, he was responsible for administration and implementation of FOIA and Privacy Act (PA) programs.

 

Question #1: How do you think the current hiring freeze has impacted FOI programs (or will in 2018), and the FOI officers responsible for handling requests?  

Answer: First, it’s interesting that the current administration has broken with tradition, and hasn’t issued a government-wide memo on the implementation and interpretation of the FOIA. Nearly all of the previous administrations, from Lyndon Johnson to Barak Obama, have provided their vision of FOIA and disclosure, by such means. (To view past FOI memos, go to the Justice Dept.’s archival website, https://www.justice.gov/oip/available-documents-oip and search under “Operation documents, Atty. General Memos on the FOIA”.)  

My observation is that FOIA doesn’t seem to be high on the current administration’s radar at this time, but there is no way of knowing whether a guidance memo will issue at a later date. In light of the freeze and pending budget reductions, it would certainly be helpful.

Resource Strain Impacts Output
Unfortunately, I agree that the hiring freeze has already begun to impact output (and therefore compliance) with the FOIA, both because of the restrictions on replacing departing staff, and because the signals are in place for budget reductions, which may already be limiting purchase of new technology or hiring contractors.  

And, as anyone working in the FOIA arena well knows, compliance with the FOIA is all about resources. If you lose a percentage of your staff, it logically follows that if we operate in the same manner as we have previously, then output will also decrease by that percentage. So the challenge may be to consider alternatives to the ways in which FOI offices have operated, and to maximize the use of technology.

If an agency has no other option than to include FOI positions in the freeze (or staffing reductions), even the requester community should expect that output will decrease. Clearly, that means that there is an increased potential for litigation, based on non-response or responding outside the statutory timeframes. This potential burn of FOI and general counsel resources could be used to support hiring contractors to work with the FOIA programs, but that is also in question if the 2018 budget results in substantial cuts.  

If Agency management is considering whether to provide needed funds for FOIA, the FOI officer should reference the 2006 FOIA Amendments change, which permits a plaintiff who “substantially prevails” in litigation to obtain attorney fees from an agency’s “allocated funds” (i.e., the agency’s already reduced budget).   

Not All Agencies Impacted by Freeze
The Executive Order (EO) issued Jan. 23, 2017 addressed the freeze (https://www.whitehouse.gov/the-press-office/2017/01/23/presidential-memorandum-regarding-hiring-freeze), and exempts some positions if an agency head deems the positions necessary to meet “national security and public safety responsibilities” (although the EO doesn’t define those functions).  

It seems logical that Defense and Homeland Security are impacted to a lesser extent than other federal programs, but the public safety reference isn’t comprehensively defined. That shortcoming has been partially addressed by OMB’s issuance of two additional memos, which provide additional information on exempted functions, but do not specifically reference FOI.  

  1. Who is, and is not, subject to the freeze (M-17-17, Jan. 25, 2017 at https://admin.govexec.com/media/gbc/docs/pdfs_edit/012517guidance.pdf
  2. Functions which are exempted from the freeze (M-17-18, Jan. 31, 2017, at https://cdn.govexec.com/media/gbc/docs/pdfs_edit/013117e3.pdf)  

Such exemptions to the hiring freeze in certain agencies might ensure that at least the current level of FOIA staffing would be maintained.

How Agencies are Preparing
Some agencies prepared internal instructions for HR and managers on implementing the freeze. DOD’s memo, for example, identified a range of exempted functions to include cybersecurity, deployments, weapons safety, security, etc., but again, doesn’t address FOIA. (See https://admin.govexec.com/media/gbc/docs/pdfs_edit/020217defensefreeze.pdf).

OMB issued additional memo #M-17-22, on April 12, 2017, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce,” (see https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-22.pdf) instructing agencies to prepare Reform Plans for the next fiscal year.  

Again, the memo doesn’t reference FOIA specifically, but does provide for public input, and directs agencies to take into consideration “efficiency and effectiveness” and “customer service.” If the requester community were to utilize this opening to make a case for continued FOI support, it could potentially benefit the agency’s program, in my opinion. No matter where the government lands, there will be a huge competition for scarce resources. And, as those working in the FOIA arena well know, compliance with the FOIA is all about resources.

Stay tuned to this blog as more information unfolds in Fred’s commentary on how the freeze may impact you.