Department of Justice Executive Briefing on the Freedom of Information Act (FOIA)

Hello. My name is Melanie Pustay and I’m
the Director of the Office of Information Policy at the Department of Justice. I’m here today to talk to you about your
important role in helping your agency implement the Freedom of Information Act. As President Obama has declared “[a] democracy
requires accountability and accountability requires transparency.” Attorney General Holder has explained that
the Freedom of Information Act “reflects our nation’s fundamental commitment to open
government.” He also stressed that implementation of that
law is everyone’s responsibility. As an agency leader your support in this effort
is vital. This video will explain what the Freedom of
Information Act is, how it works, and your critical role in helping the agency implement
this important law. Let’s start at the beginning — What is
the Freedom of Information Act? The Freedom of Information Act, which is commonly
known as the FOIA, is a law that gives any person the right to request access to federal
agency records. Agencies in turn must apply a presumption
of disclosure and release requested records except to the extent that they are protected
from disclosure by law. The FOIA also requires agencies to proactively
disclose certain categories of records on their websites, such as statements of policy,
as well as records that are frequently requested. Beyond these legal requirements, the Attorney
General has encouraged agencies to “readily and systematically post information online
in advance of any public request.” A key way in which your agency can help keep
the public informed is through such ongoing, proactive disclosures of records. Now, while agencies have FOIA professionals
who are responsible for the day-to-day implementation of the Act, these FOIA professionals will
need the support of agency leaders like you to assist them throughout the process. The Department of Justice is responsible for
encouraging agency compliance with the FOIA and we too are available to assist your agency
in any way we can to make sure you have a successful FOIA program. As we’ll talk about later, agencies are
required to provide reports to the Department of Justice each year detailing their work
in implementing the FOIA. Through these reports agencies are held accountable
for their efforts in implementing the law. So, you are now likely asking yourself – who
does the FOIA apply to? Any person can make a request, for any reason,
and can seek any agency record, both new and old. Now this means that the records you or anyone
in your agency creates or obtains can all be subject to a FOIA request or to the law’s
automatic disclosure requirements. The FOIA applies to Executive Branch agencies,
including independent regulatory agencies and some components within the Executive Office
of the President. The law generally requires that an agency
respond to a request within twenty working days. Now once a FOIA request is received, the agency
is obligated to conduct a reasonable search for responsive records. That search for records will include paper
as well as electronic records such as e-mail. Now you or your office may be asked to search
your records for material that is responsive to a FOIA request or to make your records
available for someone else to search. By promptly assisting your FOIA professionals
in conducting these record searches you will be helping them to promptly respond to the
FOIA request itself. Now once the records responsive to a request
are located, your agency’s FOIA professionals will review them to determine their disclosabilty. Your agency FOIA professionals may need your
input in this process as well. While agencies should administer the FOIA
with a presumption of openness, the disclosure obligation under the law is not absolute. The FOIA does provide protection for example,
for national security, personal privacy, privileged communications, and law enforcement interests.
In conducting your review of records your agency should be guided by the Attorney General’s
FOIA Guidelines which encourage agencies to make discretionary releases of information
and to “not withhold information simply because [they] may do so legally.” Agencies should process records with an eye
toward disclosure, making discretionary releases of information whenever there is no foreseeable
harm in release. When full disclosure of a requested record
is not possible, agencies should consider whether they can make a partial disclosure. Now as I mentioned earlier, responding to
requests is only one of your obligations under the FOIA. The FOIA also requires agencies to proactively
disclose four different categories of records. These records include final agency orders
and opinions rendered in the adjudication of administrative cases, certain policy statements,
staff manuals and instructions, and records that have themselves become frequently requested
under the FOIA. In accordance with the President’s and the
Attorney General’s FOIA directives, agencies should also proactively post any other information
of public interest online on their website whenever possible. This is an area where your active engagement
and support is particularly important. When agencies set up procedures to systematically
and promptly disclose records of public interest online they will be actively helping the public
become better informed. Such proactive disclosures can also satisfy
public demand for information without the need to process individual requests. Agency leaders like you are uniquely situated
to identify records of interest to the public and to ensure that they are proactively posted
on your agency’s website. Now many agencies are even going beyond traditional
website postings to disseminate information by utilizing social media such as YouTube,
Facebook, and Twitter. Embracing the presumption of openness, agencies
are also taking steps to make information posted online more useful to the public. For example, agencies are increasingly posting
records in open formats and implementing advanced search tools that help the public locate records
on their websites. All these efforts help further transparency. Given the significant responsibilities agencies
have under the FOIA, it is important that they are held accountable for their administration
of the law. And it’s also important for agencies to
be able to publicly report on all the good work they have been doing to implement the
FOIA and improve transparency. There are three different reports that agencies
must compile, each of which serve both of these purposes. The first report is the agency Annual FOIA
Report. This report provides a detailed accounting
of the agency’s handling of FOIA requests during the preceding fiscal year. To provide more real-time reporting, the Department
of Justice now requires agencies to report four key FOIA statistics on a quarterly basis
throughout the course of the year. One of those key statistics is the status
of the agency’s ten oldest pending requests from the year before. The Department of Justice has asked agencies
to focus on closing their older requests each year and this quarterly reporting is a way
for agencies to show their progress in doing so as the year progresses. Now lastly, each year agencies issue a Chief
FOIA Officer Report, which is a narrative description of the steps the agency took throughout
the year to improve their FOIA administration and to increase information disclosure. Executive level support for the FOIA is built
into the law by the requirement that each agency designate a senior official, at the
Assistant Secretary level, to serve as the agency’s Chief FOIA Officer. Chief FOIA Officers are directly responsible
for ensuring that their agency efficiently and appropriately complies with the FOIA. Now, once these reports are all publicly filed,
the Department of Justice conducts a thorough review of them and compiles a detailed assessment
of agency progress. This public assessment is a way to both highlight
agency accomplishments and to note any areas where agencies can focus on improving. Although each agency across the government
has a unique mission, we all share a core responsibility to successfully administer
the FOIA and to do what we can to foster an open and transparent government. FOIA is everyone’s responsibility and your
leadership in supporting this mission is critical. Through this briefing today I hope you have
a better understanding of what the FOIA is and how it works. As you can see, agency leaders have a key
role in assisting in responding to requests and in providing support to their agency FOIA
professionals. Agency leaders also are instrumental in identifying
records of interest to the public that can be disclosed proactively. The Department of Justice is available to
assist your agency in its administration of the FOIA. We issue policy guidance, provide extensive
training and we counsel agencies as they work to implement the law and the President’s
and Attorney General’s FOIA directives. You are welcome to contact us if we can be
of more assistance to you in any way. I want to thank you for your time today and
for the continued support of your agency’s FOIA operations. Thank you. Looking ahead the Department is fully committed
to achieving the new era of open government that the President and Attorney General envision. We’ve accomplished a great deal these past
four years but OIP will continue to work diligently to help agencies achieve even greater transparency
in the years ahead.

2 thoughts on “Department of Justice Executive Briefing on the Freedom of Information Act (FOIA)

  • Unless you are the EOUSA/FOIA Division.  They have lost requests, not answered emails, avoided phone calls.  I submitted a Request in January.  Stall, Stall, Stall.  It has been over 4 months.  A notary confirmed identification form.  A confirmation of how much information you want, how much you are willing to spend, a form asking where you think they might store the information.  Delay.  Stall.  Delay.  They move Offices, change addresses, change phone numbers frequently to prevent FOIA Requests.  I faxed them some forms over a dozen times to make sure they could not claim they lost them.  They still act clueless.  I hear it is also SOP to hide files in I, S, External, and "Blackball" Files.  As simple as moving files out to a Van in a parking lot to say, "What files?  We could not find them!"  They are EXTERNAL if they are moved.  Yeah!  Transparent as East Germany circa 1967.

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