REPORT TO THE ARCHIVIST OF THE UNITED STATES

Freedom of Information Act Federal Advisory Committee

Final Report and Recommendations

Committee Term 2014-2016

_________________________

Dr. James V.M.L Holzer

Chair

April 19, 2016
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Table of Contents

COMMITTEE MEMBERS ....................................................................................................................... 3

Current Members ................................................................................................................................... 3

Past Members.......................................................................................................................................... 4

INTRODUCTION....................................................................................................................................... 5

BACKGROUND ..................................................................................................................................... 5

Authority.............................................................................................................................................. 5

Objectives and Scope of Activities..................................................................................................... 5

FISCAL YEAR 2014 SUMMARY ........................................................................................................ 5

June 24, 2014 ....................................................................................................................................... 5

FISCAL YEAR 2015 SUMMARY ........................................................................................................ 6

October 21, 2014.................................................................................................................................. 6

January 27, 2015 ................................................................................................................................. 6

April 21, 2015 ...................................................................................................................................... 6

July 21, 2015 ........................................................................................................................................ 6

FISCAL YEAR 2016 SUMMARY ........................................................................................................ 7

October 20, 2015.................................................................................................................................. 7

January 19, 2016 ................................................................................................................................. 7

April 19, 2016 ...................................................................................................................................... 8

SUBCOMMITTEE ON FEES................................................................................................................... 9

SUBCOMMITTEE ON OVERSIGHT AND ACCOUNTABILITY ...................................................11

SUBCOMMITTEE ON PROACTIVE DISCLOSURE........................................................................25

ACKNOWLEDGEMENTS .....................................................................................................................34

CHARTER.................................................................................................................................................35
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COMMITTEE MEMBERS

Current Members

Dr. James V.M.L. Holzer, Committee Chair, Office of Government Information Services 

 (OGIS), National Archives and Records Administration (NARA)

Dave Bahr, Bahr Law Offices, P.C.

Andrew Becker, The Center for Investigative Reporting

Brentin V. Evitt, Co-Chair, Subcommittee on Proactive Disclosure Defense Intelligence 

Agency (DIA)

Karen Finnegan Meyers, Department of Defense (DOD) 

Eric Gillespie, Co-Chair, Subcommittee on Proactive Disclosure, Govini 

Larry Gottesman, Environmental Protection Agency (EPA)

James Hogan, Co-Chair, Subcommittee on Fees, U.S. Department of Defense (DOD)

Clay Johnson, The Department of Better Technology

Nate Jones, Co-Chair, Subcommittee on Fees, National Security Archive

Martin Michalosky, Co-Chair, Subcommittee on Oversight and Accountability, Consumer 

 Financial Protection Bureau (CFPB)

Sean Moulton, Project On Government Oversight (POGO)

Maggie Mulvihill, Boston University 

David Pritzker, Administrative Conference of the United States (ACUS)

Melanie Pustay, Office of Information Policy, Department of Justice (DOJ)

Ramona Branch Oliver, U.S. Department of Labor (DOL) 

Anne Weismann, Campaign for Accountability 

Lee White, National Coalition for History (NCH)

Mark S. Zaid, Co-Chair, Subcommittee on Oversight and Accountability, Law Office of 

Mark S. Zaid, P.C.,
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Past Members

 Delores Barber, formerly Department of Homeland Security

 Nikki Gramian, Former Acting Chair, Office of Government Information Services, National 

 Archives and Records Administration (NARA) 

 Michele Meeks, Central Intelligence Agency (CIA)

 Ginger McCall, Co-Chair, Subcommittee on Fees, formerly Electronic Privacy Information 

Center

 Miriam Nisbet, Former Chair, formerly Office of Government Information Services (OGIS), 

National Archives and Records Administration (NARA) 

 David S. Reed, Federal Communications Commission (FCC)
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INTRODUCTION 

BACKGROUND 

Authority: The FOIA Advisory Committee was established in accordance with the second 

United States Open Government National Action Plan1

 released on December 5, 2013, and the 

directive in the Freedom of Information Act, 5 U.S.C. § 552(h)(2)(C), that the Office of 

Government Information Services within the National Archives and Records Administration 

(NARA) “recommend policy changes ... to improve” the Freedom of Information Act (FOIA) 

administration. This Committee is governed by the provisions of the Federal Advisory 

Committee Act, as amended, P.L. 92-463, 86 Stat. 770 (1972); 5 U.S.C. App. 

Objectives and Scope of Activities: As part of the Open Government Partnership, the United 

States issued its second Open Government National Action Plan on December 5, 2013, that sets 

forth several specific initiatives the Administration would undertake for the following (or Next) 

two years. One flagship initiative includes various efforts to modernize FOIA, including creation 

of a FOIA Federal Advisory Committee to be “comprised of government and non-governmental 

members of the FOIA community, to foster dialog between the Administration and the requester 

community, solicit public comments, and develop consensus recommendations for improving 

FOIA administration and proactive disclosures.” The Advisory Committee serves as a 

deliberative body to advise the Archivist on improvements to the administration of FOIA. The 

Committee studies the current FOIA landscape across the Executive Branch and may 

recommend legislative action, policy changes or executive action, among other matters. 

FISCAL YEAR 2014 SUMMARY

June 24, 2014 

The FOIA Advisory Committee met once during FY 2014. The first meeting of the Advisory 

Committee was held on June 24, 2014. During the meeting members held a brainstorming 

session to explore each members’ top legislative, policy, and process suggestions for improving 

the FOIA process. The top three priorities of the study the committee were expanding oversight 

of the FOIA process, increasing proactive disclosure, and reforming or perhaps eliminating fees. 

These topics formed the basis for the three subcommittees of the larger committee. 

 

1 “The Open Government Partnership: Second Open Government National Action Plan for the United States of 

America (December 5, 2013), https://www.whitehouse.gov/sites/default/files/docs/us_national_action_plan_6p.pdf 
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FISCAL YEAR 2015 SUMMARY

October 21, 2014 

The FOIA Advisory Committee met four times during FY 2015. The first meeting of the fiscal 

year was on October 21, 2014. During this meeting the Committee discussed the bylaws to give 

clear operating procedures and specify the relationship among the Advisory Committee 

members, the Designated Federal Officer (DFO) and agency staff. The Subcommittees reported 

on the status of their work. 

January 27, 2015 

The Committee held its second meeting on January 27, 2015. During this meeting the Proactive 

Disclosure Subcommittee reported two specific issues the Subcommittee was exploring: (1) 

analyzing FOIA requests to determine what information is of high value to the public; and (2) 

looking into the relationship between proactive disclosure and the accessibility requirements of 

Section 508 of the Rehabilitation Act, which requires Federal agencies to make website content 

accessible to people with disabilities. The Subcommittee developed a methodology for 

analyzing what information is of high value to the public. The Fees Subcommittee reported its 

research and its decision to develop a survey for FOIA professionals to examine how great of an 

issue the current fee structure is and how burdensome requests are handled. The Oversight and 

Accountability Subcommittee reported that the Subcommittee had begun compiling oversight 

reports from the last several decades. The Subcommittee planned to review the reports to 

identify themes, including successes and failures, use this analysis to identify gaps and areas for 

additional oversight, and assess the role of agency FOIA Public Liaisons to help determine what 

works at certain agencies and how the role differs between agencies.

April 21, 2015 

On April 21, 2014, the Committee held its third meeting. During the meeting the Oversight and 

Accountability Subcommittee reported it crafted a poll that it intended to send to agency FOIA 

Public Liaisons. The Committee discussed how to disseminate the poll. The Fees Subcommittee 

reported that the Subcommittee’s discussions had largely centered on the contentiousness of 

fees in the FOIA community. The Subcommittee wanted to gather more information regarding 

the issues surrounding FOIA fees. One option the Subcommittee suggested for gathering 

information was to add questions to the Oversight and Accountability Subcommittee’s survey of 

FOIA Public Liaisons. The Proactive Disclosure Subcommittee selected a new co-chair.

July 21, 2015 

The Committee held its fourth meeting on July 21, 2015. During the meeting the Oversight and 

Accountability Subcommittee reported reviewing existing reports from Inspectors General and 

the Government Accountability Office on FOIA to identify themes and trends; the 
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Subcommittee welcomed public input on this project. The Subcommittee also reported working 

with OGIS and NARA to disseminate a survey for agency FOIA Public Liaisons; the survey 

consisted of 15 questions, all of which were posted on the Committee’s website. The Fees 

Subcommittee reported that the Subcommittee was considering various objectives, including a 

possible legislative proposal, or a suggestion that the Office of Management and Budget update 

its fees guidance. The Subcommittee also reported it had an open survey of agency FOIA 

professionals that closed on July 22, 2015. At the time of the meeting, the survey had 400 

respondents. The Proactive Disclosure Subcommittee reported on its review of factors, 

including: the role of the statute, regulations and policy; how agencies use technology; and how 

FOIA programs should prioritize their responsibilities to process FOIA requests and appeals, 

reduce their backlogs, and to proactively disclose records. The Subcommittee planned to review 

the process at different agencies, beginning with the Defense Intelligence Agency (DIA), to test 

assumptions. 

FISCAL YEAR 2016 SUMMARY

October 20, 2015 

The Committee held its first meeting of the fiscal year on October 20, 2015. During the meeting

the Oversight and Accountability Subcommittee presented an overview of the FOIA Public 

Liaison (FPL) poll that the Committee sent to Federal FPLs. The poll’s intent was to assess the 

FPL role and determine opportunities for improvement. Poll questions addressed aspects of the 

FPL role including the titles of individuals holding the FPL position, their position series, how 

frequently they communicate with requesters, topics of discussion between FPLs and 

requesters, and the methods FPLs use to communicate with requesters. The Fees Subcommittee 

gave an overview of the Fees Poll sent to Federal FOIA processors. The poll had 407 

respondents. The Fees Subcommittees would like the OMB to update its 1987 FOIA Fees 

guidance to reflect changes—especially with regard to technology—that have occurred since 

OMB issued its guidance. The Proactive Disclosure Subcommittee reported examining the role 

of FOIA, regulations and procedures encouraging proactive releases, and analyzing how 

technology affects proactive disclosures.

January 19, 2016 

The Committee held its second meeting on January 19, 2016. During the meeting the Oversight 

and Accountability Subcommittee provided an update on two tasks on which the Subcommittee 

focused its efforts during the last 18 months: (1) the assessment of the role of FOIA Public 

Liaisons (FPL); and (2) the Subcommittee’s work to identify opportunities for improvement. The 

Subcommittee announced its plan to draft a white paper, similar to the white paper the 

Subcommittee drafted after reviewing and analyzing the data from its FPL poll. 
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The Fees Subcommittee stated that fee assessments, fee waivers, and fee requester categories 

create confusion for requesters and agencies, particularly since these fee determinations are often 

subjective. The Subcommittee explained that if the OMB revised its 1987 FOIA fees guidance, it 

could clarify fee issues. The Subcommittee proposed a memo from the Committee Chair to the 

Archivist of the United States recommending that the Director of OMB review and revise the 

fees guidance. The Subcommittee presented the draft memo to the Committee for comment and a 

decision as to whether and how the Committee wished to move forward. The draft memo 

presented three options for the Archivist, (1): The Archivists asks OMB to revise its 1987 

guidance; (2): The Archivist makes a legislative proposal to Congress to amend the fee 

provisions of the FOIA by revising the various fee standards, thereby enabling agencies 

standardize fee determinations; (3): Keep the status quo and not make any changes to the fee 

provisions. After discussion, the Committee unanimously voted to adopt Option 1 as the 

recommendation going forward, and the Fees Subcommittee would update its draft memo to 

provide more specific recommendations as to what aspects of OMB’s fee guidance require 

revision. The Proactive Disclosure Subcommittee discussed the Office of Information Policy’s 

“release to one, release to all” program.

April 19, 2016 

The Committee held its third meeting on April 19, 2016, the date of the issuance of this report. 

This meeting marked the closure of the Committee’s 2014-2016 term. At the meeting the 

subcommittees will present their findings and recommendations. The Committee will vote on the 

recommendations and thereafter present them to the Archivist of the United States. 
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SUBCOMMITTEE ON FEES

The FOIA Federal Advisory Committee established the FOIA Fees Subcommittee on June 24, 

2014, to examine the administration of FOIA fees, its impact on requesters and agencies, and 

current fees guidance. 

BACKGROUND: The FOIA (5 U.S.C. § 552) established the basic statutory requirements for 

agencies to assess fees when processing FOIA requests. The Freedom of Information Reform 

Act of 1986 (Pub. L. 99-570, 100 Stat. 3207 (1986)), required the Office of Management and 

Budget (OMB) to promulgate guidelines containing a uniform schedule of FOIA fees applicable 

to all agencies that are subject to the FOIA, and OMB published these guidelines on March 27, 

1987. Congress subsequently amended the statute’s fee provisions in the OPEN Government Act 

of 2007, Pub. L. No. 110-81, 121 Stat. 735 (2007). 

The Fees Subcommittee believes fees are a major source of contention between FOIA requesters 

and agencies and that fee categories and waivers are so subjective that there is little consistency 

in agency fee determinations. Additionally, the Fees Subcommittee believes that this subjectivity 

adds to the time it takes agencies to process FOIA requests. 

The Subcommittee polled 407 government FOIA professionals, and asked 10 questions 

concerning agency application of the statutory requirements and OMB FOIA fee guidelines. An 

analysis of the responses concludes that, in “general, it appears that most employees surveyed 

think that the current fee structure is unfair and time consuming, and prefer a flat fee structure, 

graduated based on volume of the records responsive to a request and category of the requester.” 

In light of the survey findings, and the Subcommittee’s strong belief that FOIA fee guidelines as 

currently written contribute to confusion and animosity between FOIA professionals and FOIA 

requesters, the Subcommittee presented several options for consideration of the full Committee. 

At the January 19, 2016, meeting the full Advisory Committee proposed that the Archivist 

recommend that OMB revise its 1987 guidance. 

Because much of the confusion surrounding fee issues is a result of the technological changes in 

the public’s ability to disseminate information, the Subcommittee believes that OMB should 

revise its guidance to reflect these changes. Updated guidance would incorporate congressional 

intent, nearly 30 years of case law on the issue, and advances in technology to eliminate some of 

the subjectivity that agencies must exercise to make fee issue determinations. Additionally, the 

Subcommittee believes that a revision would clarify fee issues for requesters and agencies, 

provide a less subjective and more transparent fee assessment process and reduce the amount of 

time it takes agencies to assess fees. Set out below are some of the recommendations the 

Subcommittee believes should be considered for inclusion in the new guidance. These items 

were discussed by the full Committee at its April 19, 2016 meeting. 
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The FOIA Advisory Committee’s Fees Subcommittee recommends that the updated Office of 

Management and Budget fee guidance should: 

• Provide clarity by clearly differentiating between two separate yet related issues: fee 

waivers and requester fee category status. Agencies need unambiguous, uniform 

guidelines on the criteria that must be met for each fee category. These guidelines should 

reflect the President’s and Attorney General’s guidance on FOIA and relevant case law, 

including embracing members of the media who publish primarily through electronic 

means.

• Provide agencies with additional guidance on what constitutes a “representative of the 

news media” that takes into account the changes in the journalism profession over the 

past 30 years due to technological advancements. These guidelines should be fair, 

balanced, and better enable agencies to make accurate fee category determinations. They 

should also clarify that fee categories are determined by the identity of the requester, not 

the particular request. 

• Incorporate statutory changes to the FOIA relating to when FOIA fees can be charged. 

This includes 5 U.S.C. § 552(4)(A)(viii), which states that certain fees cannot be charged 

when an agency fails to comply with any time limit, if no unusual or exceptional 

circumstances apply to the request. Clarification is also needed as to which fees may be 

charged if the 20 working-day statutory time limit is not met, because “unusual or 

exceptional circumstances” exist. 

• Provide guidance on fees associated with reproduction costs, including providing 

electronic copies via email, CD or DVD. The guidance should also clarify the costs that 

may be charged for reproducing documents that are transferred from classified to 

unclassified systems so that they may be released electronically.

• Explain that agencies may use their administrative discretion (rather than a formal fee 

waiver) to decide not to charge FOIA fees when the interest of the United States 

Government would be served. 

• Recognize that FOIA fees cover a very small percentage of FOIA costs (in FY 2014 

agencies processed 647,142 FOIA requests at a cost of $462 million dollars and recouped 

just $4.2 million dollars from FOIA fees, less than 1 percent of the reported cost). 

Moreover, these fees are paid to the General Fund of the Treasury, not to the agencies’ 

FOIA offices. The current OMB guidelines appear to be missing a word in Section 8 

which adds ambiguity to this expectation. 
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SUBCOMMITTEE ON OVERSIGHT AND ACCOUNTABILITY

The FOIA Federal Advisory Committee established the Oversight and Accountability 

Subcommittee on June 24, 2014. The subcommittee agreed to focus its efforts on identifying 

current authorities for oversight and past actions (program reviews, audits, reports, inspections, 

etc.) that have been completed by open government groups and others over the past 10 years; 

determining opportunities for additional oversight; assessing the implementation of the FOIA 

Public Liaison role and determining opportunities for improvement; evaluating past litigation 

review efforts; and determining opportunities for further oversight. During this term, the 

Subcommittee compiled oversight reports from the last several decades to identify gaps and 

areas for additional oversight. The Subcommittee also polled departments and agencies 

regarding the role of the FOIA Public Liaison. 

Oversight Reports 

BACKGROUND: As part of the Federal Freedom of Information Act Advisory Committee’s 

charter “to foster dialog between the Administration and the requester community, solicit public 

comments, and develop consensus recommendations for improving FOIA administration and 

proactive disclosures,”2 the FOIA Oversight and Accountability Subcommittee3 collected 

previously released reports on agencies’ compliance with the FOIA. The focus of this review 

was to learn from past successes and challenges to forge a more effective collaboration between 

Federal agencies and the FOIA requester community. 

The FOIA Oversight and Accountability Subcommittee compiled more than 80 previously 

released Inspector General, Government Accountability Office, and other reports on agencies’ 

compliance with the FOIA. Collectively, there were positive findings in the reports, but the 

reports show there are persistent challenges in implementing FOIA across the Federal 

government. Additionally, the reports indicate that these challenges have not been effectively 

addressed in a systematic fashion, but rather with a “one agency at a time” approach. While 

challenges of resources, jurisdiction, and management make it difficult to propose specific 

solutions to address the issues documented in these reports, the Subcommittee believes it is clear 

that improvements are necessary regarding the oversight and accountability of FOIA 

administration. 

 

2 ”Freedom of Information Act (FOIA) Advisory Committee,” last modified December 11, 2015, 

https://ogis.archives.gov/foia-advisory-committee.htm 3 ”FOIA Advisory Committee, Oversight and Accountability Subcommittee,” last modified April 12, 2016, 

https://ogis.archives.gov/foia-advisory-committee/Subcommittees-and-Working-Groups/oversight-andaccountability.htm 
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Set out below are the contents of a white paper prepared by the Subcommittee on Oversight and 

Accountability based on its review of the reports. The white paper was discussed by the full 

Committee at its April 19, 2016 meeting. 

After introductory language, the white paper begins with the following:

“The positives gleaned from the reports including the following: 

Good Communication with Requesters

In its review of the National Archives and Record Administration’s (NARA) FOIA 

program, the Office of Government Information Services (OGIS)4 found that NARA 

provided good customer service regarding FOIA matters. Namely, “Special Access 

and FOIA employees generally provide great customer service. Each day a Special 

Access and FOIA employee is on-call at the Archives facility in College Park, MD, to 

assist researchers who visit the facility. The on-call employee is available to provide 

on-demand screening allowing in many, but not all, cases records that were flagged as 

possibly restricted when they were accessioned by NARA to be released without a 

FOIA request. The on-call employee also is available to help requesters with filling 

out standard FOIA request forms and to answer other FOIA-related questions.” In 

addition to this finding, NARA consistently provides contact information to FOIA 

requesters in all of its written communications that include both a phone number and 

an email. 

Using Technology to Improve the FOIA Process

A March 9, 2016, Office of Government Information Services (OGIS) compliance 

report5 found that Customs and Border Protection (CBP) adopted FOIAonline to help 

manage its FOIA requests. OGIS recommends, however, that CBP must “regularly 

post released records into FOIAonline’s records repository,” going on to note that 

“CBP’s website does not help requesters understand the FOIA process or how to use 

FOIAonline.” 

 

4 “Agency Compliance Reports: National Archives and Records Administration’s FOIA Program Phase II: Archival 

Records,” https://ogis.archives.gov/foia-advisory-committee/Subcommittees-and-Working-Groups/oversight-andaccountability.htm 5 “Agency Compliance Reports: Customs and Border Protection’s FOIA Program, Department of Homeland 

Security, ‘Good Management Practices in Place; Clear Communication and Increased Technology Use Needed’,”

https://ogis.archives.gov/Assets/CBP+FOIA+Compliance+Report.pdf?method=1 
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Improved Management Practices

The March 9, 2016, OGIS report found that CBP corrected errors in its FOIA 

program and improved management practices. The improvement steps taken by CBP 

included hiring additional FOIA staff and shifting resources to address critical issues 

when needed for “triage.” Additionally, the majority of CBP’s FOIA-related litigation 

between FY 2009 and 2015 cited “CBP’s lack of response and/or delay as a reason 

for suing,” costing the agency $1.2 million. To help address this issue, CBP FOIA 

managers requested 20 new positions for the FOIA branch; a good step. However, 

FOIA managers learned in January 2016 that funding was not approved for those 

positions. This decision will likely hamper CBP’s efforts to improve processing times 

and reduce costly litigation. 

Taking Advice from OGIS

In September 2015, OGIS posted its FOIA compliance assessment of the Coast 

Guard’s FOIA program6

. OGIS found that, among other things, the Coast Guard 

needed to improve its communication with requesters and harness the power of 

technology. The Coast Guard responded to the OGIS assessment7 by updating its 

FOIA Manual to improve processing, researching FOIA software systems “that could 

help [the Coast Guard] become more efficient and streamline [its] FOIA process,” 

and overhauled its FOIA webpage to improve the user experience. 

While there were positives found in the reports that were reviewed by the Subcommittee, there 

were challenges identified too. A sampling of the challenges that were identified in the reports 

includes the following: 

Not Posting Enough Documents Online in Accordance with the 1996 E-FOIA 

Amendments

A March 23, 2015 Office of Personnel Management (OPM) Inspector General (IG) 

report8 identified that OPM needs to improve its compliance with the E-FOIA 

 

6 “Agency Compliance Reports: United States Coast Guard’s FOIA Program, Department of Homeland Security, 

‘Effective Management of Decentralized Program, Better Use of Technology, and Improved Communication with 

Requester Needed,”

https://ogis.archives.gov/Assets/Coast+Guard+FOIA+Compliance+Report+FINAL+September+2015.pdf?method=

1 

7 “Agency Compliance Reports Coast Guard Response to 120-day Follow-Up,” 

https://ogis.archives.gov/Assets/Coast+Guard+Response+to+120-day+Follow-up.pdf?method=1 8 “National Security Archive News: Final Report on the Review of the U.S. Office of Personnel Management’s 

Compliance with the FOIA (2015),” http://nsarchive.gwu.edu/news/20150205/docs/2015-Mar-23-InspectorGeneral-Memorandum-Final-Report-on-the-Review-of-the-U.S.-Office-of-Personnel-Management's-Compliancewith-the-Freedom-of-Information-Act.pdf
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amendments of 1996. This amendment mandates that agencies post key sets of 

records online, provide citizens with detailed guidance on making FOIA requests, and 

utilize new information technology to proactively post records online that would 

become of significant public interest, including those already processed in response to 

FOIA requests and “likely to become the subject of subsequent requests.” According 

to OPM’s IG report, as of 2015, OPM does not have a formal policy addressing “the 

requirement to post FOIA information online that has been requested multiple times 

(three or more requests). Additionally, OPM’s request tracking system does not 

identify the type of information requested. Consequently, OPM’s FOIA Office 

cannot identify multiple requests that should be posted.” 

OPM fails to populate its FOIA reading room, which the E-FOIA requires agencies to 

maintain with, among other things, frequently requested records or records likely to 

be the subject of FOIA requests. 

In 2015, the Department of Justice Office of Information Policy (OIP) issued 

guidance9 encouraging Federal agencies to proactively post information. 

Additionally, OIP distributed a checklist10 to help agencies determine when records 

should be proactively posted. While the guidance is beneficial, there is no evidence 

that agencies are following it and the small increase in proactive posting governmentwide indicates that more oversight may be necessary. 

Not Making Discretionary Releases in Accordance with 2009 Presidential 

Memorandum 

A March 30, 2011, Department of Homeland Security (DHS) Inspector General 

(IG) report11 identified multiple instances in which the DHS’s Office of the Secretary 

staff did not have sufficient knowledge of the FOIA, to the extent that it compromised 

the agency’s ability to make discretionary releases.

The report indicates that in one instance, the staff “implied that the potential 

embarrassment of DHS should be considered when making proactive disclosure 

decisions” despite clear guidance to the contrary. Furthermore, the report documents 

instances of other senior DHS officials cautioning against making discretionary 

 

9

 “Proactive Disclosure of Non-Exempt Agency Information: Making Information Available Without the Need to 

File a FOIA Request,” last modified October 5, 2015, https://www.justice.gov/oip/oip-guidance-5 10 “Implementation Checklist for OIP Guidance on Proactive Disclosures of Non-Exempt Agency Information,” last 

modified March 19, 2015, https://www.justice.gov/oip/oip-guidance-6 11 “National Security Archive News: The DHS Privacy Office Implementation of the Freedom of Information Act 

(2011)”, http://nsarchive.gwu.edu/news/20150205/docs/2011-Mar-Inspector-General-Report-The-DHS-PrivacyOffice-Implementation-of-the-Freedom-of-Information-Act.pdf
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releases and instructing staff to send only public information in response to a records 

requests. 

Backlogs and Inadequate Searches

A Treasury Inspector General (IG) for Tax Administration report12 dated September 

17, 2014, determined that the Internal Revenue Service (IRS) needed to continue to 

reduce its backlog of FOIA requests. The report also found that the IRS failed to 

adequately search for and provide information in 15 percent of its FOIA responses. 

A previous IG report13 dated September 20, 2013, identifies a challenge of not 

adequately searching for information in response to records requests to be one that is 

declining. This report determined that the IRS failed to adequately search for and 

provide information in 5.6 percent of its responses. 

Not Reporting FOIA Abuses

The State Department Inspector General (IG) recently published highlights14 showing 

that systemic FOIA issues are compounded when people don’t speak out when they 

know FOIA procedures are not being properly followed. The IG noted that State’s 

FOIA office gave an “inaccurate and incomplete” no documents response to a FOIA 

request concerning Hillary Clinton’s email usage even though employees within the 

Department of State knew both of Clinton’s personal email account and the FOIA 

request. Additionally, the report determined that the secretary’s office lacked written 

procedures for handling FOIA requests and that some requests lingered in a queue for 

more than 500 days without a reply. These findings speak to the importance of an 

oversight mechanism to address these FOIA failures before they compound into the 

current crisis facing State’s FOIA Office.

 

12 “National Security Archive News: Fiscal Year 2014 Statutory Review of Compliance With the Freedom of 

Information Act (2014),” http://nsarchive.gwu.edu/news/20150205/docs/2014-Sep-17-TIGTA-Report-Fiscal-Year2014-Statutory-Review-of-Compliance-With-the-Freedom-of-Information-Act.pdf 13 “National Security Archive News: Fiscal Year 2013 Statutory Review of Compliance With the Freedom of 

Information Act (2013),” http://nsarchive.gwu.edu/news/20150205/docs/2012-Sep-20-TIGTA-Report-Fiscal-Year2013-Statutory-Review-of-Compliance-With-the-Freedom-of-Information-Act.pdf 14 “Evaluation of the Department of State’s FOIA Processes for Requests Involving the Office of the Secretary 

(2016),” Department of State, Office of Inspector General, https://oig.state.gov/system/files/esp-16-01.pdf
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Unclear Fee Waiver Requirements

An Environmental Protection Agency (EPA) Inspector General (IG) report15

determined that the agency should clarify fee waiver requirements and standardize 

processing time to reduce concerns of differential treatment among requesters. The IG 

report urges the agency to “clarify what requesters must demonstrate under the six 

review factors and when to obtain additional justification from requesters to lessen 

any perception of potential differential treatment when evaluating fee waiver 

requests.” 

Not Using Technology to Improve FOIA Training Process 

A Nuclear Regulatory Commission (NRC) Inspector General (IG) report16 dated June 

14, 2014, determined that NRC management has not utilized effective internal 

controls to take advantage of FOIA training and available technology. “As a result, 

the NRC’s FOIA processing costs are high and the timeliness requirements are not 

consistently met.” 

Not Properly Reviewing FOIA Releases for Segregability 

A Securities and Exchange Commission (SEC) Inspector General (IG) report17 dated 

September 25, 2009, found that the manner that the Commission’s Chief FOIA 

Officer functioned was not in compliance with the requirements of Executive Order 

13392 or the OPEN Government Act of 2007. 

This report identifies a number of areas where the SEC’s FOIA process needed 

improvement, not least of which is when the agency conducts review for 

segregability. The IG specifies: “There is not a well-documented process for 

reviewing documents to segregate potentially responsive documents that can be 

disclosed and, thus, the search may not be sufficient” despite the FOIA’s instruction 

that “[a]ny reasonably segregable portion of a record shall be provided to any person 

 

15 National Security Archive News: No Indications of Bias Found in a Sample of Freedom of Information Act Fee 

Waiver Decisions (2014),” http://nsarchive.gwu.edu/news/20150205/docs/2014-Jul-16-Inspector-General-ReportNo-Indications-of-Bias-Found-in-a-Sample-of-Freedom-of-Information-Act-Fee-Waiver-Decisions-But-the-EPACould-Improve-Its-Process.pdf 16 “National Security Archive News: Audit of NRC’s Freedom of Information Act Processes (2014),” 

http://nsarchive.gwu.edu/news/20150205/docs/2014-Jun-16-Inspector-General-Report-Audit-of-NRC's-Freedom-ofInformation-Act-Process.pdf 17 National Security Archive News: Review of the SEC’s Compliance with the Freedom of Information Act (2009),” 

http://nsarchive.gwu.edu/news/20150205/docs/2009%20Sep%2025%20-%20Inspector%20General%20Report%20-

%20Review%20of%20the%20Security%20and%20Exchange%20Commissions%20Compliance%20with%20the%2

0Freedom%20of%20Information%20Act.pdf
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requesting such record after deletion of the portions which are exempt under this 

subsection.” Indeed, the IG indicates that in many instances no effort was made to 

segregate records. 

The House Oversight and Government Reform Committee released a report on January 11, 2016, 

that re-identified many of these challenges. The Committee identified a myriad of FOIA failures 

across the government including: 

• The improper application of FOIA exemptions at the Federal Communications 

Commission, which redacted the Chairman’s name and initials in official, workrelated emails; 

• Roadblocks and poor communication with requesters at Customs and Border 

Protection, which only responded to a requester in one instance after Congress 

inquired about the status of the request; 

• Refusal to provide all responsive records at the General Services Administration, 

which failed to provide a requester with responsive records, despite the requester’s 

conveyed desire for the documents, by erroneously stating it did not want to charge 

the requester for non-responsive records; and

• Excessive fees “that appear to be designed to deter requesters from pursuing requests 

and create barriers to accessing records” including at the Drug Enforcement Agency 

(DEA). The DEA charged a FOIA requester nearly $1.5 million for one request for 

records on “El Chapo” Guzman. 

While the congressional committee proposes legislative resolutions to these ongoing challenges, 

this Subcommittee believes that without more effective oversight or compliance mechanisms, the 

FOIA challenges may continue to occur, even if forbidden by statute. 

The Office of Government Information Services (OGIS) has begun issuing assessments of 

Federal agency FOIA programs. To date, OGIS has published assessments of Customs and 

Border Protection, the Transportation Security Administration, the U.S. Coast Guard, the Federal 

Emergency Management Agency, and the National Archives and Records Administration. These 

assessments are a positive step, but agency participation is voluntary and it may take decades for 

OGIS to review each agency subject to FOIA. 

The previously released Inspector General and Government Accountability Office reports and 

the dozens of others compiled by the Subcommittee demonstrate that the current oversight 
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approaches are insufficient and not improving the FOIA programs throughout the Federal 

government. The first step to improving FOIA oversight and compliance is acknowledging that 

the current oversight methods are not sufficient. After this acknowledgement, we can begin to 

endeavor to create a regime that efficiently and comprehensively ensures oversight of the 

Freedom of Information Act is being correctly administered with a “presumption of disclosure” 

as instructed by President Obama and Attorney General Holder and holds accountable those who 

fail to do this.” 

[End of Subcommittee’s white paper] 

The Subcommittee also put together a report based on surveys it conducted on the FOIA Public 

Liaison role. The Subcommittee’s report on FOIA Public Liaisons is set out below: 

FOIA Public Liaison Role 

BACKGROUND: On December 14, 2005, the Bush administration issued Executive Order 

13392,18 titled “Improving Agency Disclosure of Information,” which ordered all departments 

and agencies subject to the Freedom of Information Act (FOIA) to make a number of 

institutional improvements to strengthen the implementation and administration of the FOIA, 

particularly as it relates to customer service. In fact, Section 2, Part C, of Executive Order 13392 

establishes the roles of Assistant Secretary-level Chief FOIA Officers for all departments and 

agencies, FOIA Requester Service Centers (FRSCs), and supervisory FOIA Public Liaisons to 

serve in the FRSCs. The role of the FOIA Public Liaison was codified in the FOIA by the OPEN 

Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007). 

FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can 

raise concerns about the service the FOIA requester has received from the Center, 

following an initial response from the Center staff. FOIA Public Liaisons shall seek to 

ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For 

example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, 

increasing transparency and understanding of the status of requests, and resolving 

disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their 

activities and shall perform their duties consistent with applicable law and agency 

regulations;19

 

18 “Executive Order 13392 of December 14, 2005: Improving Agency Disclosure of Information.” Federal Register 

70, No. 242 (December 19, 2005): 75373. https://www.gpo.gov/fdsys/pkg/FR-2005-12-19/pdf/05-24255.pdf 19 Ibid. 
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The FOIA Advisory Committee’s Subcommittee on Oversight and Accountability sought to find 

out how departments and agencies have operationalized the role of the FOIA Public Liaison 

since its inception. We wanted to learn if the role fulfilled the requirements set forth in Executive 

Order 13392. We polled all 100 departments and agencies subject to FOIA to determine if the 

role of the FOIA Public Liaison was working for them. Ninety people responded to our poll.20

Complete poll results can be found here: https://ogis.archives.gov/foiaadvisorycommittee/subcommittees-and-working-groups/oversight-and-accountability.htm. 

Please select “FOIA Public Liaisons Survey Results (Excel Spreadsheet) - July 21, 2015” (found 

under Subcommittee Documents). 

Summary of Poll Questions and Responses 

1. Please enter your current position, title, series, grade, organization, or department.

The prevalent General Schedule (GS) series for those serving in the role of FOIA Public 

Liaison are GS-301 and GS-306 as reported by the respondents in the poll. According to the 

Office of Personnel Management’s website, the GS-301 series “...is, to cover two-grade 

interval work which is not elsewhere classifiable. The essential criteria for classifying 

positions in this series are: 1. that the primary work of the position is of an administrative, 

two-grade interval nature; and 2. that the primary work of the position is not classifiable in 

any other series. Positions classified in the Miscellaneous Administration and Program 

Series, GS-0301,21 involve specialized work for which no appropriate occupational series has 

been established. Typically, positions in this series are too few of a kind to have been 

recognized as separate lines of work. Some positions involve new or emerging work or, 

more rarely, mixtures of work that cannot be identified with an established series. The work 

requires analytical ability, judgment, discretion, and knowledge of a substantial body of 

administrative or program principles, concepts, policies, and objectives.” Conversely, the 

GS-30622 series established the specific position description of Government Information 

 

20 “Oversight and Accountability Subcommittee: Draft FOIA Public Liaison Survey sent to NARA Chief Operating 

Officer for Approval,“ last modified April 12, 2016, https://ogis.archives.gov/Assets/FPL-Survey-COO-2015-05-

15.pdf?method=1

21 “Position Classification Flysheet for Miscellaneous Administration and Program Series GS-0301,” January 1979, 

https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedulepositions/standards/0300/gs0301.pdf

22 “Position Classification Flysheet for Government Information Series, 0306,” March 2012, 

https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedulepositions/standards/0300/gs0306.pdf
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Specialist to professionalize information management occupations throughout the Federal 

government. Specifically the GS-306, Government Information Specialist classification “... 

includes positions responsible for administering, analyzing, supervising, or performing work 

involved in establishing, disseminating or managing government information. Government 

Information Specialists formulate policy, advise agency management, and ensure compliance 

with Federal laws governing the flow of information. The work also involves the 

safeguarding of government information while supporting accountability and transparency.” 

Most of the reported grade levels are GS-13-15. The lowest grade level reported is GS-7. 

2. How long have you been a FOIA Public Liaison? 

Most people serving in the role of FOIA Public Liaison have five or more years of 

experience at 40 percent. Twenty percent have one year to less than three years of

experience, and the rest have less than one year or three to five years.

3. What is the position title of the person to whom you directly report? 

The position titles varied and appeared to be high level supervisory and management roles. 

The titles included terms such as Director, Supervisory, Deputy, and Chief. 

4. Since assuming a FOIA Public Liaison role, have you attended the following FOIA, 

customer service, or Alternate Dispute Resolution (ADR) training: Agency FOIA 

Training; Department of Justice (DOJ); Office of Government Information Services 

(OGIS); American Society of Access Professionals (ASAP); Other; or I have not had 

any training since assuming a FOIA Public Liaison role.

Agency FOIA Training 57.8%

Department of Justice (DOJ) 57.8%

Office of Government Information Services 

(OGIS) 28.9% 

American Society of Access Professionals 

(ASAP) 36.7% 

Other (please explain) 20.0%

I have not had any training since assuming a 

FOIA Public Liaison role. 16.7% 

Other training respondents reported taking included FOIAXpress, FOIAonline, International 

Association of Privacy Professionals, and records management training. 
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5. Are you planning to attend FOIA, customer service, or Alternate Dispute Resolution 

(ADR) training in the next 12 months? 

Answer Options Response 

Percent

Yes 66.7%

No 33.3%

6. How would you rate the sufficiency of the following resources to fulfill your duties in 

your FOIA Public Liaison role?

7. Does your organization inform requesters about the role of FOIA Public Liaisons in the 

FOIA process?

Answer Options Response 

Percent

Yes 72.2%

No 17.8%

I don’t know 10.0%
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8. How does your organization inform requesters about the role of FOIA Public Liaisons 

in the FOIA process?

Answer Options Response 

Percent

Agency website provides the name, phone 

number, and email address for the FOIA Public 

Liaison

85.6% 

Agency FOIA regulations 35.6%

Agency FOIA handbook, internal policies and 

procedures 31.1% 

Agency FOIA Service Center or Hotline 32.2%

Agency acknowledgement letters 27.8%

Agency response letters 37.8%

Agency appeal acknowledgement letters 13.3%

Agency appeal response letters 16.7%

Agency social media 2.2%

9. On average, how often do FOIA requesters contact you?

Answer Options Response 

Percent

Less than once a month 38.9%

Monthly 16.7%

Weekly 10.0%

Once a week 2.2%

Twice a week 5.6%

Three times a week 6.7%

Four times a week 1.1%

More than four times a week 18.9%
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10. On average, how often do FOIA requesters contact you by the methods listed below?

Answer Options Frequently Sometimes Rarely Never

Email 48 21 15 6

Mail 20 23 26 15

Phone 23 31 19 13

Fax 4 11 35 32

In person 1 1 18 62

11. On average, how often do you contact FOIA requesters by the methods listed below? 

Answer Options Frequently Sometimes Rarely Never

Email 60 17 7 5

Mail 33 19 17 14

Phone 33 35 11 8

Fax 1 6 22 54

In person 1 2 13 65

12. In the last 12 months, how often have FOIA requesters contacted you about the

following FOIA issues?

Answer Options Often Sometimes Never

Agency FOIA regulations 3 28 48

Appeals 9 45 28

Category 2 22 51

Customer Service 15 32 33

Delays 27 30 26

Dispute Resolution 4 19 55

Expedited 7 33 39

Fee assessment 5 44 32

Fee waiver 3 41 33

Fees requester 3 31 39

Litigation 3 29 46

Other 4 22 38

Processing 22 38 21

Request status 27 39 16

Responses 15 54 14
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13. Do you know the attorney/attorneys responsible for handling FOIA matters at your

organization? 

Most respondents reported interacting with FOIA attorneys on a daily basis. 

14. What suggestions do you have for how FOIA administration can be improved

throughout the executive branch?

Suggestions on improving FOIA administration throughout the executive branch ranged from 

developing standard FOIA regulations for the entire Federal government, developing a 

standard FOIA training program for all Federal agencies, developing a standard FOIA 

database for all Federal agencies to use, properly staffing FOIA offices across the Federal 

government, and developing and procuring FOIA standard FOIA redaction software for the 

Federal government. 

15. Are there any other FOIA issues or topics that you would like us to address in future

surveys?

Future surveys could focus on a broad variety of issues as it relates to FOIA improvement. 

Poll respondents suggested the debate over the use and alleged overuse of FOIA Exemption 

5, copyright laws and the release of copyright information, FOIA training, FOIA office 

staffing, and FOIA program budgets. 
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SUBCOMMITTEE ON PROACTIVE DISCLOSURE

The FOIA Federal Advisory Committee established the Proactive Disclosure Subcommittee on 

June 24, 2014, to examine how agencies could increase proactive disclosure. Specifically, the 

Subcommittee explored ways to analyze FOIA requests to determine what information is of high 

value to the public, and looking into the relationship between accessibility requirements of 

Section 508 of the Rehabilitation Act and proactive disclosures. 

Set out below are the status reports the Proactive Disclosure Subcommittee presented at the 

October 20, 2014 and January 27, 2015 full Committee meeting.

BACKGROUND: On January 21, 2009, President Obama issued two important memoranda to 

the heads of Executive Departments and Agencies concerning government transparency. In one 

memorandum, the President committed his administration to an “unprecedented level of 

openness in government,” and in the other he stressed the importance of the Freedom of 

Information Act (FOIA), stating that it is “the most prominent expression of a profound national 

commitment to ensuring an open government.” 

Critical to ensuring agencies successfully meet the President’s standards is compliance with the 

transparency requirements outlined by 5 U.S.C. § 552(a)(2) of the FOIA. Under subsection 

(a)(2), Federal agencies must make four distinct categories of records affirmatively available for 

“public inspection and copying.” Agencies must satisfy this provision of the FOIA by promptly 

making the records available, either by proactively publishing records electronically to the 

Department’s website or in a combination of electronic and conventional “paper” reading rooms. 

FOIA requires agencies to proactively disclose certain information. 

1. Publication in Federal Register per sec. (a)(1) 

– Description of agency’s organization 

– Requirements to which public is subject (e.g., regulations, forms) 

– Agencies meet requirement through U.S. Gov’t Manual, publication in the 

Federal Register (FR), incorporation by reference in FR notices, etc. 

2. (Electronic) Reading Room or publish and sell, sec. (a)(2)

– Opinions and orders adjudicating cases 

– Statements of policy adopted but not published in FR

– Administrative staff manuals and instructions to staff that affect a member of the 

public 
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– Records already released under FOIA which are likely to be subject of subsequent 

requests

– Index to all of the above 

Guidance encourages more proactive disclosure.

• “...agencies should take affirmative steps to make information public. They should not 

wait for specific requests from the public.” 23

 – President’s memorandum of January 21, 2009 

• “...agencies should readily and systematically post information online in advance of any 

public request.” 24 – Attorney General’s memorandum of March 19, 2009 

DATA Act 

• Builds on USASpending.gov disclosures about grants, contract awards and loans 

• Adds data about budget, commitments & expenditures, reprogramming, and fund 

balances 

• Requires: 

o Bulk download, machine readability 

o Development and use of common terms, formats & definitions for key financial 

data elements 

o GAO and IG audits of info posted 

Benefits of Standardizing Proactive Disclosures 

• Better governance 

• Savings to agency from reduction in “reactive” FOIAs 

• Business use of information: Increased productivity and employment 

• Focused government employee time on nonstandard, non-repeatable requests

 

23 Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of 

Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009), https://www.gpo.gov/fdsys/pkg/FR-2009-01-26/pdf/E9-

1777.pdf. 24 Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act 

(March 19, 2009), https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf
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Reactive “whack-a-mole” FOIA burdens agencies.

Proactive Disclosure Subcommittee Theory

• Within each agency there are types of records that comprise a large share of FOIAs

• Across agencies there are types of requesters (i.e., personas) that generate a large share of 

FOIAs

• If the records can be clustered into primary categories for each agency, proactively 

disclosing that type of record has high potential for cost savings and benefits 

• If the key personas can be identified across agencies, the needs of those requesters can be 

defined and met proactively

Proactive Disclosure Subcommittee Challenges

• Despite significant effort, we have not found a breakdown of any Federal agency’s 

FOIAs by type of record, type of request, or type of requester 

• Can we obtain FOIA logs with sufficient description to identify type of record for each 

request?
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• Can we obtain actual requests to analyze? (We can from NRC, but it’s not 

representative.)

• Would we need analysts to determine type of record for each request, or can we automate 

that?

• Are there pilot agencies represented on the FOIA Committee who would be willing to 

pilot this with us?

Reinvent Albany Study 

• Analysis of FOIL logs from NY State Dept. of Environmental Conservation 

• Fifty-five percent of requests were for a few types of reports about particular addresses: 

o Spill incident reports 

o Petroleum storage reports 

o Soil and water remediation and inspection records 

o Air quality reports 

o Landfill reports 

• Frequent requesters said they would be very happy to get the data from web instead of 

requesting.

Example: Single Audit Act 

• Entity that receives $500,000 in Federal grants must send financial statement, 

management discussion, auditor’s opinion, and details of grants. 

• At least one company wants to use this information for rating municipal bonds. 

• In a test, all four reports FOIA’d were released unredacted, but required multiple followups and 2 1⁄2 months delay. 

• New OMB rules call for reports after 2014 to be posted on single Federal website. 

• Submitters responsible for keeping PII out of reports. 

• Exemption for information restricted by Federal statute or regulation, but FOIA 

exemptions are not applied. 

Follow-up on Reinvent Albany Study 

• We interviewed Reinvent Albany by phone to ask about their methodology. 

• They used FOIA logs to identify most frequent requesters, then contacted requesters to 

ask what type of records they usually requested. 

Similar Study by General Services Administration

• To gather information for OMB data call about external use of government data 

• GSA FOIA office identified “regular requesters or repetitive requesters” 

• GSA surveyed the identified requesters.

• Citation: Myehsha Boone, “Who’s Using Your Agency’s Data?” Dec. 19, 2014 on 

DigitalGov.gov
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Finding Information on Content of FOIA Requests 

• FOIA logs:

o Several agencies on FOIAonline.gov 

o Some other agencies on agency websites

o Some agencies do not post logs, but might be obtainable through FOIA 

o Agencies vary in whether most log entries have meaningful description of 

information requested 

• At least one agency has copies of FOIA requests available on its website.

EPA Pilot Study

EPA: Source Material

• Source: https://foiaonline.regulations.gov

• Example of the Good: 

https://foiaonline.regulations.gov/foia/action/public/view/request?objectId=090004d2801

654eb

• Example of the Bad: 

https://foiaonline.regulations.gov/foia/action/public/view/request?objectId=090004d2800

14d04 

“The description of this request is under Agency review.” 

• (Request closed in 2012.) 

• There were 4,654 available requests submitted between January 1, 2008 and December 1, 

2014 

• Of those 4,654 submitted requests, 3,864 had a publicly available body text (an average 

of 1.5 requests per day) 
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EPA: Word Cloud 

EPA: Primary Categories: Substance Inventories, CFAs, Citations, Claims, Determinations, HED 

Documents, Impact Statements.
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EPA: Primary Categories: Anaconda Smelter, Archer Daniels Midland, Diamond Alkali, 

Burgess Niple, Delta Thermo, Dupont Nemours, Kaiser Gypsum, Shine Bros 

EPA: Primary Entities: Polychlorinated biphenyls, Mercury Polycyclic, Ionizing Radiation, 

Radon, Manganese Mercury, Emamectin Benzoate
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EPA: Word Density and Proximity 

• Environmental property storage hazardous tanks information permits violations block 

spills underground lot regarding avenue releases pertaining requesting waste new files 

• Site superfund id located river county cerclis assessment groundwater remediation 

corporation texas san investigation phase Illinois creek contamination jacinto nj 

• Water quality management air supply waste solid community records program manifests 

ust tank cleanup health pa owner clean underground storage 

• Documents including reports related correspondence records relating limited asbestos 

present concerning notes investigation requesting agency inspection orders new January 

remediation

Requested Support from Committee Member(s) 

• The Proactive Disclosure Subcommittee would like to take this base case and extend it 

with a much larger dataset.

• We believe we can identify key categories of documents, requests and requesters in order 

to make concrete recommendations about where to optimally begin with Proactive 

Disclosure in order to have the largest impact with the least effort. 

• Will a member(s) step up and volunteer to shepherd us through within their agency, to 

explore a more robust dataset? 

Reconciling proactive disclosure with accessibility under Section 508. 

BACKGROUND: In 1998, Congress amended the Rehabilitation Act to require Federal 

agencies to make their electronic and information technology accessible to people with 

disabilities. Inaccessible technology interferes with an individual’s ability to obtain and use 

information quickly and easily. Section 508 was enacted to eliminate barriers in information 

technology, to make available new opportunities for people with disabilities, and to encourage 

development of technologies that will help achieve these goals. The law applies to all Federal 

agencies when they develop, procure, maintain, or use electronic and information technology. 

Under Section 508, as amended (29 U.S.C. § 794d), agencies must give disabled employees and 

members of the public access to information that is comparable to the access available to others. 

Many agencies’ FOIA processes render document content inaccessible to 508-required assistive 

technology because the document is converted into a print image when documents are redacted. 

In order to be considered 508 accessible, a document must contain actual text content layer, be 

properly tagged and have a logical reading order; images must be accompanied with alternative 

text; and the document must have a specified language. 
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Some Requirement of Section 508

• Federal information technology must ensure “individuals with disabilities...have access to 

and use of information and data that is comparable to... [persons without disabilities].”

• If making technology accessible would be undue burden on agency, then agency must 

provide “alternative means of access that allows the individual to use the information and 

data.”

• United States Access Board standards define technical and functional performance 

criteria for satisfying Section 508.

Most records should already be in accessible formats.

• Section 508 also requires comparable access for Federal employees who have disabilities.

• So records should already be in accessible format, even if agency hasn’t been making the 

records public. (For example, word processing documents that software can read out 

loud.)

But some records present problems:

• Records from paper-based workflows.

• Graphics that have not been tagged with alternative text.

• Usual methods of redacting accessible documents make them inaccessible.

• Records can be remediated to make them accessible, but takes some work.

o e.g., Dept. of Homeland Security memo on “Creating 508-Compliant PDF 

Documents,” June 14, 2010. 

Straw Man Proposal: What are real cases where this doesn’t work?

• Apply the same standards to proactively disclosed records as to any other publiclyavailable information:

o Post records in accessible form, unless agency determines “undue burden.”

o If “undue burden,” then provide “alternative means of access,” for example, 

selected records converted to accessible form on request.

• Do not delay proactive disclosure while records are made accessible. Disclose while 

proceeding to remediate accessibility.

[End of report of the Proactive Disclosures Subcommittee]
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ACKNOWLEDGEMENTS

The Freedom of Information Act (FOIA) Advisory Committee would like to acknowledge and 

thank many individuals for their invaluable contributions to the completion of this report. We are 

grateful to our colleagues, stakeholders, and the public who provided written and oral comments; 

they were helpful in informing the topics the Committee researched. We also appreciate the 

following individuals for helping with the Committee’s creation, organization, guidance, and 

administrative management and support:

David S. Ferriero, Archivist of the United States, National Archives and Records Administration

William J. Bosanko, Chief Operating Officer, National Archives and Records Administration

Miriam Nisbet, Former Director, Office of Government Information Services, National Archives 

and Records Administration

Patrice Murray, Committee Management Officer, National Archives and Records Administration

Christa Lemelin, Designated Federal Officer, National Archives and Records Administration

Gary Stern, General Counsel, National Archives and Records Administration

Alina Semo, Director of Litigation, National Archives and Records Administration 

Jean Whyte, Assistance General Counsel, National Archives and Records Administration

Corinna Zarek, Senior Advisor to the Chief Technology Officer, Office of Science and 

Technology Policy, Executive Office of the President

The staff from the following National Archives and Records Administration offices:

Information Security Oversight Office (ISOO)

Office of Government Information Services (OGIS)

Special Events and Scheduling Office
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

FREEDOM OF INFORMATION ACT (FOIA) ADVISORY COMMITTEE

FINAL REPORT AND RECOMMENDATIONS 

35 

CHARTER
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

FREEDOM OF INFORMATION ACT (FOIA) ADVISORY COMMITTEE

FINAL REPORT AND RECOMMENDATIONS 

36 
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

FREEDOM OF INFORMATION ACT (FOIA) ADVISORY COMMITTEE

FINAL REPORT AND RECOMMENDATIONS 

37