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REPORT CONTENTS

Executive Summary

E-Stars and E-Delinquents

Introduction

Electronic Reading Rooms: File Not Found

FOIA Guidance for the Public: File Not Found

FOIA Web Sites: Missing Links

Conclusion

Methodology

Bibliography

Appendix One: Glossary of Agency Acronyms (PDF-57 KB)

Appendix Two: Glossary of Internet Terminology (PDF-57 KB)

Appendix Three: Web Site Review Data (PDF-81 KB)

Appendix Four: Web Site Review Template (PDF-128 KB)

Archive's Letters to E-Delinquents

Sunshine Week Homepage

Since its inception, FOIA has required agencies to make "available for public inspection and copying" certain defined categories of records. For the first thirty years agencies satisfied this portion of the FOIA with "conventional reading rooms," physical locations where members of the public could review paper copies of the records.

The E-FOIA Amendments revolutionized this approach by requiring virtual reading rooms, accessible to anyone with a computer and an Internet connection. (Note 8) In addition to the long-required reading room records-"final opinions [and] orders, made in the adjudication of cases," "statements of policy and interpretations adopted by the agency," and "administrative staff manuals and instructions to staff that affect a member of the public"-E-FOIA established a new fourth category of reading room records-"frequently requested records." (Note 9) The electronic posting of these four categories of records is typically called "affirmative disclosure."

Implementation of these requirements has been far from complete across the government. In some cases agencies began to comply just last year-nearly ten years after E-FOIA was enacted-only after President Bush issued an executive order calling on agencies to review their policies for public disclosure of information. (Note 10) At least one agency, the Department of Veterans Affairs (VA), admitted in its 2006 FOIA improvement plan that it had not yet promulgated new regulations to implement the 1996 amendments. (Note 11)

Agencies with all four categories of required records available BLM(DOI) DOC(main) DOE(main) DOI(main) DOJ(main) DOS EOIR(DOJ) EPA(main) EPA-2 EPA-4 ESA(DOL) FDIC FRB FS (USDA) FSIS (USDA) FTC FWS (DOI) IRS (TRE) MSHA (DOL) NLRB NOAA NRC ORO (DOE) OSHA (DOL) OSHRC SEC TRE (main) TVA USDA (main) USCG (DHS) VA

PROBLEM: ELECTRONIC READNIG ROOMS ARE NONEXISTENT OR INCOMPLETE

FEW AGENCIES MAKE AVAILABLE ALL FOUR CATEGORIES OF RECORDS REQUIRED BY E-FOIA

Only 21% of the agencies and components reviewed had on their FOIA Web sites all four required categories of records, including: opinions and orders, policy statements, staff manuals, and frequently requested records. Noncompliance may be even greater than suggested by this statistic because many agencies put only a portion of required records from each of the four categories on their FOIA sites.

 

The three traditional categories of reading room records-opinions and orders, policy statements, and staff manuals-are absent from approximately half of all agencies' FOIA Web sites. Congress intended to prevent agencies from developing "secret law" by requiring agencies to make available policies or precedent that bind the public without their knowledge. Our reviews found that only 47% of agencies have opinions and orders accessible from their FOIA sites, only 52% have policy statements, and only 48% have staff manuals.

It is difficult, if not impossible, to determine whether an agency actually possesses records that fit in each of the categories. In some cases, agencies that appear not to be in compliance may in fact have satisfied the statute because their agency does not produce records from a given category. In other cases, the required records may be available somewhere on the agency Web site but are not clearly identified and are not accessible from the agency's FOIA page. Because a member of the public confronted with a disorganized electronic reading room containing documents that are not clearly identified would be unable to locate the agency's definitive policy statement on a particular issue, our reviewers concluded in such cases that the agency was not in compliance. (Note 12)

FREQUENTLY REQUESTED RECORDS AND RECORD GROUPS OF INTEREST TO THE PUBLIC ARE OFTEN MISSING FROM AGENCY FOIA WEB SITES

Only 59% of agencies have posted documents that are identified as "frequently requested records" or previously released records. The posting of these materials or of categories of records that are of current interest to the public is intended to alleviate FOIA processing burdens by requiring agencies to post popular records online where they are directly accessible to the public. Our reviews suggest that agencies have failed to implement this provision in a comprehensive way.

At certain large or decentralized agencies, there is very poor compliance with affirmative posting obligations. Even though it is difficult for members of the public to assess whether agencies are posting frequently requested records, it seems unlikely that large departments receiving tens of thousands of FOIA requests each year do not receive multiple requests for at least some documents, particularly those that relate to current events or major policies or actions of the agency. In some cases, it was apparent that only one or two components contributed frequently requested records to agency electronic reading rooms or only a few components maintained their own electronic reading rooms. (Note 13) Such lack of consistency and oversight across a large agency suggests that some E-FOIA required documents fall through the cracks and are never made available to the public.

SOLUTION: AGENCIES SHOULD INSTITUTE POLICIES AND PROCEDURES FOR POPULATING AND MAINTAINING READING ROOMS

AGENCIES SHOULD PROMULGATE POLICIES FOR IDENTIFYING AND POSTING RECORDS OF INTEREST TO THE PUBLIC

The agencies' disregard for the electronic reading room requirements is illustrated by the remarkable absence of policies and procedures for developing and maintaining FOIA sites at federal agencies. (Note 14) A review of all FOIA Improvement Plans filed under E.O. 13,392 showed that, while several agencies addressed the need to add required records to electronic reading rooms, only a handful indicated that they had any specific policy or guidelines in place for identifying required materials or maintaining FOIA Web sites. (Note 15) Many agencies included as one of their improvement plan goals a regular review of their documents and sites to make sure they were affirmatively and proactively disclosing information but did not outline what criteria would be used. Only a handful of agencies included the establishment of such criteria as part of their improvement plan goals. (Note 16)

AGENCIES SHOULD AFFIRMATIVELY POST RECORDS OF INTEREST TO THE PUBLIC

When Congress enacted E-FOIA, it sought to reduce the burden of FOIA requests by encouraging more affirmative and proactive disclosure by agencies. Our survey showed that there are only a few agencies that have taken this direction to heart. (Note 17) Compliance with the law requires systematic identification of frequently requested records and regular updating of the electronic reading room.

Reducing the influx of FOIA requests is not the only potential benefit from wider government Web use. When news breaks that is of urgent public interest, agencies can serve the public by proactively posting relevant records without waiting for FOIA requests. The National Aeronautics and Space Administration's (NASA) FOIA site includes a large collection of materials related to the loss of the Columbia Space Shuttle in 2003. According to NASA's Annual FOIA Report, "[t]he influx of requests caused this agency to create a separate electronic reading room for documents that were responsive to those specific requests about mission STS-107 and the Space Shuttle Program." NASA also used its discretion to waive exemption (b)(5) and disclose pre-accident records and other documents that might otherwise have been privileged. (Note 18) Similarly, the National Archives and Records Administration (NARA) recently used proactive disclosure to make certain high-profile records-government documents relevant to the confirmation hearings of now Supreme Court Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr.-available to the public in anticipation of an influx of requests for these materials.

AGENCIES SHOULD ORGANIZE ELECTRONIC READING ROOMS TO MAXIMIZE PUBLIC ACCESS TO REQUIRED MATERIALS ON THE WEB

Agencies should arrange electronic reading rooms in an intuitive manner and index content throughout their Web sites. Agencies should divide their reading rooms into separate sections for each of the required record categories. Uploaded records should be labeled plainly to reflect the contents of the record. If, instead, there is a link to another area of the Web site where required record(s) are located, that link should be unambiguous and lead directly to a record or a browsable or searchable database of required records. If the agency does not maintain any records that fit within a given category, the reading room page should indicate this fact. For example, Amtrak specifically states in its handbook that it does not create any opinions or orders because it does not conduct adjudications. Other agencies, including the Tennessee Valley Authority (TVA), list or reference each of the categories of required records in their reading rooms but do not have any records posted under one or more of the headings. A user can assume by this format that the agency does not have any such records to post.

THERE SHOULD BE A PRO-ACCESS, GOVERNMENT-WIDE DEFINITION OF WHAT CONSTITUTES FREQUENTLY REQUESTED RECORDS

This universal definition should directly serve the purposes of E-FOIA, including affirmatively opening government to the public and reducing FOIA backlogs. DOJ recommends that agencies employ a "rule of three" to decide what records should be posted online: "when records are disclosed in response to a FOIA request, an agency is required to determine whether they have been the subject of multiple FOIA requests (i.e., two or more additional ones) or, in the agency's best judgment based upon the nature of the records and the types of requests regularly received, are likely to be the subject of multiple requests in the future." (Note 19) Most agencies have interpreted this guidance to mean that there must be three or more requests for the same record in order for it to qualify for affirmative posting. However, requesters do not always specify a particular record in their requests, so an agency like the Federal Emergency Management Agency (FEMA) might get scores of requests for records related to Hurricane Katrina records, yet still not conclude that those requests concerned the same records. (Note 20) DOJ has also interpreted the provision to exclude all documents not created by the agency receiving the request, (Note 21) when Congress clearly did not intend such a limitation.

AGENCIES SHOULD NOT USE CONCERNS ABOUT WEB SITE ACCESSIBILITY FOR PEOPLE WITH DISABILITIES AS AN EXCUSE FOR NOT COMPLYING WITH E-FOIA

Some agencies have expressed a reluctance to post more information in their electronic reading rooms out of fear that the files will not be compliant with federal disability access law. Section 508 of the Rehabilitation Act, as amended in 1998, requires government Web sites to be accessible to individuals with disabilities. This generally is not a problem with HTML Web pages, which are already in an accessible format, but can be relevant when agencies upload records in PDF or another format. In many cases this means a file must be modified before it is posted on the Web site. Typically, additional information is added to the file to ensure screen readers will able to understand what pictures, charts, and graphs indicate.

The necessary modification adds an extra step to the proactive posting of files in electronic reading rooms. It is generally not an onerous step, yet it can lead to agencies simply refraining from or delaying posting information that they are required to make available under E-FOIA. This attitude defeats the spirit of both FOIA and Section 508 of the Rehabilitation Act. One law does not trump the other. Both strive to provide the public with access to government information as a key component of self-governance and a strong democracy. Yet, if one law-Section 508-is being used to stifle the availability of information under another law-FOIA-then not only are people with disabilities being deprived of information, the public at large also is suffering.

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Notes

8. As of November 1, 1997, federal agencies were required to make available "by computer telecommunications" all required reading room records created after November 1, 1996. 5 U.S.C. § 552(a)(2).

9. These are records that "have become or are likely to become the subject of subsequent requests for substantially the same records." 5 U.S.C. § 552(a)(2)(D).

10. See Executive Order no. 13,392, sec. 3(a)(iv). The Executive Order and related DOJ guidance also call for "proactive disclosure," whereby agencies make information available at their own discretion, often with the goal of reducing the number of FOIA requests received for that type of information. Department of Justice, Office of Information and Privacy, Executive Order 13,392 Implementation Guidance, FOIA Post, 2006.

11. Department of Veterans Affairs EO 13392 Improvement Plan, June 13, 2006.

12. For example, the National Park Service (NPS) maintains a "Hot Docs" page, presumably serving as the electronic reading room. It includes frequently requested documents, reports, memoranda, and procedures, but the documents are listed in no particular order and without any categorical identification. Similarly, the Office of the Comptroller of the Currency (OCC) has named its reading room "Popular FOIA Requests." On this page, the OCC stores several types of documents required by FOIA-orders and policies-but the documents are included within a long list of additional materials such as news releases, letters, agreements, and notices.

13. For example, the main Department of Labor (DOL) Web site does not have an electronic reading room and does not provide any required documents (except FOIA annual reports). The only acknowledgement of the E-FOIA reading room requirements is a link to public information that may be available on several other sections of the Web site ("About DOL," "Newsroom," or "Statistics, Research & Publications"), but no links to actual records. The main site links to the FOIA pages for each of the components; but only some of these sites have required records posted, and two major DOL components (Employment and Training Administration and Employee Benefits Security Administration) do not have their own FOIA sites at all.

14. As an initial step in our study, we filed FOIA requests with 46 major agencies and components (those covered in previous Archive audits) regarding their policies for posting information in electronic reading rooms. We received an alarming number (approximately 20) of responses to our initial requests in which agencies claimed they had "no documents" or specifically stated that they lacked any such policies; more than 10 other agencies failed to respond to our request at all. We subsequently filed a second, narrower FOIA request for specific policies on the length of time the agencies maintain records in their reading rooms; the responses were similarly unhelpful. In the end, we concluded that few agencies have standard procedures for establishing, organizing, and maintaining the FOIA portions of their Web sites.

15. Only the National Archives and Records Administration (NARA) specifically noted that it uses the "rule of three" for identifying frequently requested documents, although this is the approach that DOJ has recommended. NARA, FOIA Improvement Plan under E.O. 13,392, October 2006.

16. For example, the U.S. Department of Agriculture (USDA) indicated in its improvement plan that by the end of 2006, it would establish guidelines that could be used by all of its components for affirmative disclosure. USDA, USDA FOIA Review and Plan: FOIA Improvement Plan in Compliance with E.O. 13,392, October 26, 2006. The Department of Education (ED) plans to develop protocols by March 2007 to identify in advance certain records or information that are likely to be of interest to the public or the news media. ED will identify grant and contract awards in advance that are likely to be the subject of FOIA requests and proactively post these in its electronic reading room. It plans to use the "rule of three" to identify frequently requested documents and will start using the FOIAExpress tracking software to assist in identifying multiple requests for similar information. U.S. Department of Education FOIA Plan, August 18, 2006.

The Department of Housing and Urban Development (HUD) will begin requiring program offices to submit quarterly reports on progress in posting documents in the electronic reading room as well as lists of new documents being posted. HUD's plan indicated it would establish protocols for immediate release of information on successful grants and grant proposals. It would require FOIA division offices to identify documents repeatedly requested from various program areas. Program offices would be required to submit reports to the Chief FOIA Officer with lists of specific types of program documents that can be made available to the public as well as a weekly report on "hot button issues" that may result in an increase in FOIA requests, to allow HUD to proactively review and post information on its Web site. U.S. Department of Housing and Urban Development: Review, Plan and Report on HUD's Freedom of Information Act Operations, June 14, 2006.

Other agencies that planned to establish guidelines and policies include: the Corporation for National and Community Service (CNS), the Federal Election Commission (FEC), the Federal Trade Commission (FTC), the Department of Interior (DOI), the DOL, and the NCUA. Corporation for National and Community Service: Freedom of Information Act Review Report and Improvement Implementation Plan Pursuant to Executive Order 13,392, June 14, 2006; Federal Election Commission, Executive Order 13,392: Summary Report & Plan of the Federal Election Commission; Federal Trade Commission, Plan for Improvement of the Administration of the Freedom of Information Act Program at the Federal Trade Commission, June 6, 2006; U.S. Department of Interior Freedom of Information Act (FOIA) Report and Improvement Plan, June 12, 2006; DOL, Executive Order 13392 Plan and Report, June 14, 2006; and NCUA FOIA Program Review under Executive Order 13392, June 13, 2006.

17. For example, the Central Intelligence Agency (CIA) maintains a searchable database of reading room records, posts the top twenty-five documents requested each month and also categorizes the available frequently requested records by subject, such as "Bay of Pigs" and "Human Rights in Latin America." See http://www.foia.cia.gov/. In 2004, the U.S. Coast Guard (USCG) began making available two categories of records on its Web site-"Merchant Vessels of the U.S. Data File" and "Marine Casualty and Pollution Data Report"-because those types of records were frequently requested (even if no one particular data report was ever requested three or more times). Department of Homeland Security, Freedom of Information Act Annual Report for Fiscal Year 2004, http://www.dhs.gov/xlibrary/assets/foia/privacy_rpt_foia_2004.pdf.

Similarly, the Department of State (DOS) has made available in its extensive online database of records a number of special collections and document sets, including more than 3000 transcripts of telephone calls of former Secretary of State Henry Kissinger, even though individual records in those collections may not have been subject to multiple requests. See http://foia.state.gov/SearchColls/colhelp.asp. The Food and Drug Administration (FDA) also maintains a comprehensive electronic reading room linking to documentation of drug approvals, enforcement actions, and other broad categories of information that is of potential interest to the public. See http://www.fda.gov/foi/electrr.htm. A few other examples of good proactive disclosure include: USDA has placed an "electronic Purchase Cardholder system" on their FOIA page to reduce FOIA requests. USDA, Freedom of Information Act Annual Report FY 2000, February 2001, http://www.usda.gov/da/foia/foia2000.htm. The Civil Rights Division of DOJ posted reports regarding Disability Rights activity in response to a steady increase in FOIA requests for the material. DOJ, FOIA Annual Report Fiscal Year 1998, http://www.usdoj.gov/oip/annual_report/1998/contents.html.

18. NASA, FY 2003 Annual Freedom of Information Act Report, http://www.hq.nasa.gov/pao/FOIA/FY_2003_report.pdf.

19. Department of Justice, Freedom of Information Act Guide: FOIA Reading Rooms, May 2004; see also Department of Justice, Office of Information and Privacy, FOIA Counsel Q&A: Frequently Requested Records, FOIA Post, 2003.

20. Another problem with the interpretation of the law is that agencies have excluded records from the disclosure requirement that might otherwise be considered "frequently requested" under the definition. For example, "if an agency receives a second request, but then not a third one until many months or even years later," reading room treatment may not be required if it does not satisfy the statutory purpose of diverting potential future FOIA requests. Department of Justice, Office of Information and Privacy, FOIA Counsel Q&A: Frequently Requested Records, FOIA Post, 2003.

21. Department of Justice, Office of Information and Privacy, Congress Enacts FOIA Amendments, FOIA Update, Vol. XVII, No. 4, 1996; see also Tankersley, "Introducing Old Duties to New Technologies," at 27.

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