Chief FOIA Officer Report for the 

Federal Election Commission 

Fiscal Year 2009 

I. Steps Taken to Apply the Presumption of Openness

 1. Description 

 

As a preliminary matter, we note that per the instructions for this report the phrase 

“presumption of openness” refers specifically to President Obama’s direction to agencies 

to administer the FOIA with a clear presumption of disclosure, resolve doubts in favor of 

openness, and not withhold information based on “speculative or abstract fears.” We 

note that FOIA itself is based on a presumption of openness. FOIA’s basic rule at 5 

U.S.C. § 552(a)(3)(A) is that each agency, upon any request for records that reasonably 

describes the records and is made in accordance with published rules, shall make the 

records promptly available to any person. Only if the records are described in one of the 

exemptions in 5 U.S.C. § 552(b) may they be withheld. This structure is, in essence, a 

presumption of openness – all documents are to be released unless exempt. The Federal 

Election Commission (“FEC” or “Commission”) has always complied with this statutory 

structure. The question asked here is what the agency has done to ensure that the 

President’s direction has been applied to FOIA decisions. 

All of the Commission’s FOIA staff have been informed of the President’s 

directive and of the Attorney General’s guidance stipulating that the Department of 

Justice will not defend an agency in FOIA litigation even where an exemption is 

applicable unless release will cause some demonstrable harm to the interests the 

exemptions are meant to protect. All FOIA staff have been instructed to keep these 

principles in mind when assembling proposed responses. Each proposed response is 

reviewed by the Assistant General Counsel for Administrative Law (who also serves as 

the Commission’s FOIA public liaison), and, in the case of legally complicated or 

otherwise sensitive requests, by the Chief FOIA Officer. These managers apply the 

principles articulated in the guidelines to proposed responses. Where changes to the 

proposed responses are necessary in order to conform to the guidelines, FOIA managers 

discuss the appropriate changes with the staff, thereby reinforcing application of the 

guidelines. Since the issuance of the guidelines and the first discussions with staff, it has 

been apparent that the staff is incorporating the presumption of openness referred to in 

the guidelines to draft responses provided to the Liaison and the Chief FOIA Officer for 

final review. 

Our general impression has been that the President’s directive and the Attorney 

General’s guidelines have had their largest impact not in cases where material was 

obviously exempt from disclosure, but in cases where it was a closer call whether the 

material was exempt. Where material has been obviously exempt the potential harm 

from disclosure has also been obvious (except for the so-called “low 2” exemption, 

involving material so trivial as to be of little or no public interest, such as routing slips, 

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etc.). However, where the applicability of the exemption has been a closer call, but there 

would be little or no harm from release, then consistent with the guidelines we have 

released the material rather than advancing aggressive interpretations of the exemptions. 

2. Disclosure Comparisons 

During Fiscal Year (“FY”) 2009, the Commission did not show an increase in the 

number of FOIA requests where records had been released in full or where records had 

been released in part. However, the percentage of requests where records were released 

in part increased. The following table shows the relevant statistics: 

Fiscal Year 2008 Fiscal Year 2009 

Total Requests Processed 82 (100%) 67 (100%) 

Granted In Full 16 (19.5%) 10 (14.9%) 

Granted In Part 29 (35.4%) 28 (41.8%) 

Denied In Full As Exempt 1 (1.2%) 2 (3.0%) 

Denied: No Responsive 

Records 

27 (32.9%) 17 (25.3%) 

Request Withdrawn 8 (9.75%) 7 (11.3%) 

Denied: All Records 

Referred to Another 

Agency 

1 (1.2%) 3 (4.4%) 

Both the number of requests granted in full and the number granted in part 

decreased in FY 2009, as did the overall number of requests processed. The percentage 

of all processed requests granted in full decreased, but the percentage of all processed 

requests granted in part increased. The total percentage of all processed requests granted 

either in full or in part increased slightly, from 54.9% of all processed requests in FY 

2008 to 56.7% in FY 2009. In both years the number of requests denied in full as exempt 

was minuscule. 

II. Steps Taken to Ensure that the Agency has an Effective System for Responding 

to Requests 

Even before the President’s FOIA memorandum, the FEC took steps to leverage 

information technology to improve the efficiency and effectiveness of its FOIA program. 

Manual redaction has been replaced by the use of high-quality, user-friendly redaction 

software that complies with recent FOIA amendments requiring that specific claims of 

exemption be marked on redacted documents. Moreover, all FOIA personnel received 

widescreen computer monitors that improved the efficiency of FOIA document review by 

allowing easy readability of multiple pages at once. The FEC also has an IT Help Desk, 

which is run by full-time support staff and provides technical support for hardware and 

software utilized by all agency personnel, including those involved in the FOIA process. 

However, not all of our technology initiatives have been fruitful. In particular, 

request tracking is still handled by manual entry into an Excel spreadsheet, and statistical 

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compilations for the FOIA annual report and other reports such as this one are conducted 

by hand. In the wake of the OPEN Government Act of 2007, many commercial 

providers offered new software products designed to assist with case tracking and the 

additional reporting requirements provided by that statute. Unfortunately, our 

examination of these products indicated that the ones containing the software features we 

desired were designed for the needs of very large agencies that handle hundreds and even 

thousands of requests a year. These came with hardware requirements and prices that 

were prohibitive for small agencies such as the Commission. 

The FEC has no full-time dedicated FOIA staff; all FOIA responsibilities are 

handled by the Administrative Law Team of the General Law and Advice Division of the 

Commission’s Office of General Counsel. Competing priorities have been the principal 

obstacle to a more effective FOIA program. FOIA processing will be a matter of 

increased management emphasis in the remainder of Fiscal Year 2010. We plan to 

encourage focused FOIA processing days for the FOIA staff that process FOIAs as a 

collateral duty, establish firm deadlines and timetables for dealing in a realistic manner 

with backlogged requests, and continue to leverage the use of technology, such as 

encouraging document owners to provide documents in electronic, and especially PDF 

format where they exist. 

III. Steps Taken To Increase Proactive Disclosures 

Disclosure of campaign finance information relating to Federal elections is one of 

the Commission’s core missions under the Federal Election Campaign Act (“FECA”). 

Accordingly, the Commission has always proactively disclosed a large volume of 

information on its website, including reports disclosing the financial activity of the 

campaigns of candidates for federal office, political party committees, and other political 

committees. The Commission also routinely posts on its website Commission advisory 

opinions and files in closed enforcement matters. 

In FY 2009, the FEC took a number of steps to increase the material available on 

its website, all of which came to fruition during the fiscal year or early in FY 2010. First, 

the Commission’s Press Office began in FY 2009 to post on the web site a “Weekly 

Digest” of important activity at the Commission with links to relevant documents. 

Second, as part of a more general website improvement initiative, the FEC developed a 

blog, launched just after the end of the fiscal year, targeted to experienced users of 

campaign finance disclosure information. The goals of the blog include: helping users 

with the mechanics of using FEC campaign finance disclosure data; giving updates on 

progress and plans for new disclosure data sets; soliciting customer ideas for new 

disclosure tools; and providing a forum for the sharing of ideas and techniques for 

working with campaign finance disclosure data. 

The FEC also took steps in FY 2009 to develop two important enhancements to 

the data available on its website about closed enforcement matters. First, the FEC 

scanned and placed on its website files of enforcement matters that closed between the 

Commission’s establishment in 1975 and 1999. Prior to 2009, this data was available 

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only on microfilm located in the agency’s Office of Public Records. Second, the FEC 

added to its Enforcement Query System – which is the searchable retrieval system on the 

website for more recent enforcement matters – the ability to search files of 

Administrative Fines (“AF”) matters. AF matters are the enforcement matters that deal 

with failure to file or late filing of campaign finance disclosure reports; they are handled 

under a special set of streamlined procedures. In the coming year, the FEC hopes to 

make audit reports dating back to 1975 available on the website. 

Lastly, in FY 2009 the Commission considered reversing its prior practice of 

withholding First General Counsel’s Reports from public disclosure in closed 

enforcement matters; it determined early in FY 2010 to take this step. Pursuant to this 

policy change, the FEC is now placing all First General Counsel’s Reports on the public 

record in closed enforcement matters, prospectively and retroactively, while reserving the 

right to redact portions of such documents consistent with the FECA, the principles 

articulated by the Court of Appeals in AFL–CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), 

and subject to the Commission’s authority to withhold material under an exemption set 

forth in the FOIA. 

IV. Steps Taken To Greater Utilize Technology 

1.) Does the agency currently receive requests electronically? 

Yes, via email. 

2.) If not, what are the current impediments to the agency establishing a 

mechanism to receive requests electronically? 

We are currently exploring ways to accept requests via the FEC website. When 

we previously explored implementing this function on the website, we were 

advised that the receipt of requests via electronically fillable forms could cause 

technical problems that would compromise the Commission’s IT security. We 

have continued to work with IT professionals to determine whether these security 

concerns can be overcome to allow receipt of requests via our website. 

3.) Does the agency track requests electronically? 

As noted above, the FEC currently tracks requests using Excel spreadsheets, 

which must be populated manually. 

4.) If not, what are the current impediments to the agency utilizing a system to 

track requests electronically? 

See response to Part II above. 

5.) Does the agency use technology to process requests? 

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Yes, the agency uses the redaction tools available through the Adobe 8 software 

program to excise information from documents that have been scanned into .pdf 

files. The agency also uses enlarged monitors to facilitate the redaction process. 

6.) If not, what are the current impediments to the agency utilizing technology to 

process requests? 

See the answer to question IV.2, above. 

7.) Does the agency utilize technology to prepare the agency’s Annual FOIA 

Report? 

The agency does not use any FOIA-specific software to prepare its Annual FOIA 

Report. 

8.) If not, what are the current impediments to the agency utilizing technology in 

preparing your Annual FOIA Report? 

See response to Part II above. 

V. Steps Taken to Reduce Backlogs and Improve Timeliness in Responding to 

Requests

 1. Backlog Status 

While it is our goal to reduce our backlog every year, the FEC had a FOIA 

request backlog of 11 requests for FY 2009, an increase of 5 requests as compared to the 

2008 backlog total of 6. The date of the oldest pending request as of the end of FY 2008 

and FY 2009 is March 29, 2007. The number of backlogged administrative appeals 

remained constant at 1. The date of the oldest pending appeal as of the end of both FY 

2008 and FY 2009 is July 22, 2008. For more information, see the statistics in the 

Commission’s FOIA Annual Report for FY 2009 at 

http://www.fec.gov/press/foiareport2009.pdf. 

 2. Backlog Reduction Steps 

 As we stated in the FY 2009 annual report, due to the press of other business, 

limitations on resources, and a handful of particularly voluminous requests, the agency 

was not able to process as many FOIA requests as expected in FY 2009. A number of 

FOIA requests in FY 2009 were for First General Counsel’s Reports in closed FEC 

enforcement matters. Because the FEC has determined to return to its prior practice of 

including these reports in its proactive release of closed matters, we anticipate a reduction 

in the number of requests received in the coming year, which should permit more time to 

devote to backlogged requests. The agency is also placing more emphasis on the FOIA 

program by encouraging focused FOIA processing days for the FOIA staff that process 

FOIAs as a collateral duty, and by encouraging the use of technology, such as receiving 

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PDFs of responsive documents from document owners, to improve the efficiency of the 

FOIA process. 

3. Steps to Improve Timeliness 

 The agency intends to take the same steps it plans to take to reduce its backlogged 

FOIAs to improve timeliness in responding to requests and administrative appeals. 

Namely, the agency is placing more emphasis on the FOIA program by encouraging 

focused FOIA processing days for the FOIA staff that process FOIAs as a collateral duty, 

and by encouraging the use of technology, such as receiving PDFs of responsive 

documents from document owners, to improve the efficiency of the FOIA process. 

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