Freedom of Information Act: Office of Government Information Services Has Begun Implementing Its Responsibilities, but Further Actions Are Needed
Published: 2013-09-10T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The OPEN Government Act of 2007 amended FOIA and established OGIS within the National Archives and Records Administration to provide oversight and assistance to federal agencies in implementing FOIA. To evaluate how effectively the office is meeting its responsibilities, GAO assessed the actions that the office has taken to (1) implement its responsibilities for reviewing agencies' policies, procedures, and compliance with FOIA; (2) mediate disputes between FOIA requesters and federal agencies; and (3) recommend policy changes to Congress and the President and develop and issue guidance and best practices to improve the administration of FOIA. To do so, GAO analyzed documents describing the office's plans and activities for conducting reviews, mediation case files, and documents describing its policy recommendations made to Congress and the President and its guidance and best practices. GAO also interviewed officials at relevant agencies.
section_title: What GAO Found
paragraphs: Since its establishment in 2009, the Office of Government Information Services (OGIS) has provided comments on proposed Freedom of Information Act (FOIA) regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices. While OGIS has suggested improvements to a number of those regulations and notices, it has not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies' compliance with the law. In addition, since it was established 4 years ago, the office has not developed a methodology for conducting reviews of agencies' FOIA policies and procedures, or for compliance with FOIA requirements. OGIS is in the early stages of developing a methodology for conducting such reviews, but has not established a time frame for completion. Until OGIS establishes a methodology and time frame for proactively reviewing agencies' FOIA policies, procedures, and compliance, the office will not be positioned to effectively execute its responsibilities as required by the act.
OGIS is providing mediation services and is resolving disputes that might otherwise go unresolved or lead to litigation, although not all of its efforts have been successful. OGIS has achieved positive results for about two-thirds of the cases reviewed by GAO where mediation services were provided. For example, in several cases, one or both parties took action or modified their position after OGIS's intervention. Nevertheless, the office lacks quantifiable goals and measures for its mediation activities, as required by law. For example, it does not have goals to measure timeliness or success. Without these important management tools, OGIS cannot determine how effectively its mediation services are in improving the implementation of FOIA.
Since April 2012, OGIS has issued nine recommendations to Congress and the President aimed at improving the administration of FOIA. These recommendations focus on areas where OGIS could help agencies improve their FOIA processes as well as areas where its role could be made more effective. These recommendations were based on its ongoing work with federal agencies and with members of the public. In addition, while not required to issue guidance or best practices, the office collects best practices for improving FOIA processing from several sources, including its reviews of agencies' annual FOIA reports and mediation case files, as well as anecdotally from persons involved in mediation cases facilitated by the office. OGIS shares these best practices in its annual reports and on its website and blog.
section_title: What GAO Recommends
paragraphs: GAO is recommending that OGIS fulfill its statutory responsibilities by establishing (1) a time frame for completing and implementing a methodology for proactively reviewing agencies' policies, procedures, and compliance with FOIA requirements and (2) measures and goals for its mediation services. In written comments on a draft of the report, the National Archives and Records Administration concurred with the recommendations.

section_title: Letter
paragraphs: The Freedom of Information Act (FOIA) requires federal agencies to  provide the public with access to government records and information on  the basis of the principles of openness and accountability in government.  In this regard, each year hundreds of thousands of FOIA requests are  made to federal agencies––with the information released in response to  these requests contributing to the disclosure of government waste, fraud,  and abuse, as well as other conditions, such as unsafe consumer  products and harmful drugs. However, keeping up with this demand for  information and responding in a timely manner has been challenging for  federal agencies. Congress, in turn, has amended the act to guide  agencies in the administration of their FOIA operations. One such  enactment––the OPEN Government Act of 2007 of Government Information Services (OGIS) within the National Archives  and Records Administration (NARA) to oversee and assist agencies in  implementing FOIA. Toward this end, the office was charged with  reviewing federal agencies’ FOIA policies and procedures and their  compliance with FOIA, and recommending policy changes to Congress  and the President to improve the administration of FOIA. Additionally,  OGIS was required to offer mediation services to resolve disputes  between FOIA requesters and agencies.
Given the important role that OGIS has been assigned, we were  requested to evaluate how effectively the office is meeting its  responsibilities. In particular, our objectives were to assess the actions  that the office has taken to (1) review agencies’ FOIA policies,  procedures, and compliance; (2) mediate disputes between FOIA  requesters and federal agencies; and (3) recommend policy changes to  Congress and the President, and develop and issue guidance and best  practices to agencies aimed at improving the administration of FOIA.
To assess the actions that OGIS has taken to review federal agencies’  FOIA policies, procedures, and compliance, we analyzed available  documentation describing the office’s plans and activities for conducting  agency reviews. This included OGIS’s annual reports and quarterly  progress reports that summarized its plans and activities. We also  analyzed the office’s comments on proposed agency regulations, Privacy  Act of 1974 system of records notices, and correspondence. In  analyzing OGIS’s plans for conducting agency reviews, we applied  program evaluation guidanceeffectiveness of program operations and results.   that focuses on assessing the  To assess OGIS’s actions in mediating disputes between FOIA  requesters and federal agencies, we reviewed, among other things, laws  addressing federal mediation activities, published literature on mediation,  and the office’s documented procedures for mediating disputes. Using  OGIS’s case tracking system, we selected and reviewed the 44 cases that were initiated in fiscal year 2012 and were characterized by the office  as involving facilitation, a type of mediation. We also reviewed the  corresponding paper files documenting the actions taken and the results  of mediation activities for these cases. To determine the reliability of the  data in the system, we performed steps to ensure the data provided were  valid and reviewed how data are entered and validated. We tested  duplicate records, missing values, and out-of-range values. We found the  data sources to be sufficiently reliable for our purposes.
To assess the office’s actions to recommend policy changes to Congress  and the President, we analyzed its documents describing policy  recommendations that were made to Congress and the President. In  addition, we reviewed the Office of Management and Budget’s (OMB)  written responses describing its reviews of OGIS’s policy  recommendations and any applicable OMB guidance, such as the  Circular A-19 and we interviewed officials from OMB’s Office of General  Counsel. In addition, to assess OGIS’s actions to develop and issue  guidance and best practices to federal agencies, we analyzed  documentation on OGIS’s agency best practices, case studies, and the  office’s suggestions regarding FOIA implementation. We supplemented  our analyses with interviews of NARA and OGIS officials.
We conducted this performance audit from October 2012 through  September 2013 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives. Appendix I  contains a more detailed discussion of our objectives, scope, and  methodology.
subsections: section_title: Background
paragraphs: FOIA established a legal right of access to government information on the  basis of the principles of openness and accountability in government.  Prior to passage of the act in 1966, the government required an individual  or entity to demonstrate a “need to know” before being granted the right  to examine a federal record. FOIA established a “right to know” standard,  under which an individual or entity could receive access to information  held by a federal agency without demonstrating a need or reason. The  “right to know” standard shifted the burden of proof from the individual or  entity to the government agency holding the information and required the  agency to provide proper justification when denying a request for access.
Any person, with a few exceptions, can file a FOIA request, including  foreign nationals, corporations, and organizations. For example, a foreign  national can request his or her alien file, and a commercial requester,  which can include data brokers that file a request on behalf of others, may  request, among other things, a copy of a government contract or grant  proposal. In response, the agency holding the desired record is required  to provide it to the requester (unless the record falls within a permitted  exemption). Generally, FOIA allows agencies to collect a fee for  searching and duplicating records in connection with responding to a  request. Apart from providing access to records in response to a request,  FOIA also requires agencies to disclose certain information by publication  in the Federal Register or electronically (e.g., on the Internet), or by  making it available in a physical or electronic reading room.
While FOIA has helped improve public access to government information  and has been a positive step toward providing more openness in  government, a March 12, 2007, House committee report accompanying  the OPEN Government Act pointed out that agencies receive hundreds  of thousands of FOIA requests a year, which has led to slow response  times, increased backlogs, and costly and time-consuming litigation  between requesters and the government. As such, according to the  report, FOIA requesters have argued that they would benefit from having  access to an ombudsman to provide guidance before, or as an alternative  to, litigation.
subsections: section_title: OGIS Was Established to Help Oversee the Administration of FOIA
paragraphs: To help address the concerns surrounding FOIA implementation, the  OPEN Government Act,NARA to:   among other things, established OGIS within  review policies and procedures that agencies have developed to  administer FOIA;  review agency compliance with FOIA requirements;  recommend policy changes to Congress and the President to improve  the administration of FOIA; and offer mediation services to resolve disputes between individuals or  entities making FOIA requests and agencies as an non-exclusive  alternative to litigation.
OGIS was established within NARA, on September 8, 2009. The office  operated directly under the Archivist of the United States until March 7,  2011, when it was moved to Agency Services, which operates under the  authority of the agency’s Chief Operating Officer. According to its charter,  the mission of Agency Services is to lead NARA’s efforts in servicing the  ongoing records management needs of federal agencies and to represent  the public’s interest in the accountability and transparency of these  records. OGIS is one of five supporting offices under Agency Services, as  shown on the organization chart in figure 1.
Headquartered in Washington, D.C., OGIS is led by a director who  reports to the Executive of Agency Services. As of August 2013, the  Director was aided by a deputy director, an attorney advisor, two  management and program analysts, and a staff assistant—for a total of  six full-time employees.
section_title: Other Federal Agencies Also Have FOIA-Related Responsibilities
paragraphs: In addition to OGIS, other federal agencies also have responsibility for the  oversight and administration of FOIA. Specifically, since it was  established 30 years ago, the Office of Information Policy within the  Department of Justice (Justice) has been responsible for overseeing the  administration of FOIA by encouraging compliance, overseeing agencies’  implementation of the OPEN Government Act, and issuing policy  guidance. As such, the office prepares a comprehensive guide that  addresses various aspects of the act; conducts a variety of FOIA-related  training programs for personnel across the government; and uses  attorneys to serve as counselors that provide FOIA information, advice,  and guidance to government staff and the public regarding  implementation of the act. In addition, Justice represents federal agencies  in lawsuits brought by FOIA requesters.
According to Justice, as of fiscal year 2012, a total of 99 federal agencies  had responsibility for implementing FOIA. These agencies process  requests, publish related regulations, and submit annual reports through  the heads of their agencies to the Attorney General that include statistics  on their FOIA processing. Further, the OPEN Government Act gave  agency chief FOIA officers responsibility for ensuring agencywide  compliance by monitoring implementation throughout the agency;  recommending changes in policies, practices, staffing, and funding; and  reviewing and reporting to agency heads and to Justice on the agency’s  performance in implementing FOIA. (These reports are referred to as  chief FOIA officer reports and are in addition to the annual reports that  agencies also submit to Justice.)
section_title: GAO Has Previously Reported on Agencies’ Efforts to Implement FOIA
paragraphs: Over the past 6 years, we have issued several reports on federal  agencies’ implementation of FOIA, including their progress in improving  FOIA processing and backlog reduction.
GAO, Freedom of Information Act: Additional Actions Can Strengthen Agency Efforts to  Improve Management, GAO-12-828 (Washington, D.C.: July 2012). example, using a single tracking system and providing requesters with  the ability to track the status of their requests online. We  recommended that the agencies improve the management of their  FOIA programs by ensuring that actions were taken to reduce  backlogs and the use of exemptions, improve FOIA libraries, and  implement technology. Officials from the four agencies agreed or  generally agreed with the recommendations.
section_title: OGIS Has Assisted Agencies, but Has Not Proactively Reviewed Agencies’ FOIA Policies, Procedures, and Compliance
paragraphs: OGIS has engaged in several activities that, according to its officials,  were intended to respond to the OPEN Government Act requirement that  it review federal agencies’ FOIA policies, procedures, and compliance.  Specifically, OGIS has engaged in tasks such as making suggestions for  improving the clarity and readability of agencies’ proposed FOIA  regulations and notices and offering general observations regarding  agencies’ correspondence. For example, in 2010 and 2011, the office  reviewed the Federal Register to identify when agencies had submitted  FOIA regulations for public comment and then offered responses to the  requests for comments on the proposed regulations. In this regard, OGIS  offered comments on improving the contents of regulations that had been  proposed by 18 agencies. Among the suggestions that it offered to one or  more of these agencies were that they: provide requesters with an estimated amount of fees, including a  breakdown of the fees for the time staff devote to searching,  reviewing, and/or duplicating records for a FOIA request; add a statement to clarify the difference between a third-party request  made under FOIA and a first-party request made under the Privacy  Act; notify requesters in writing when their requests have been referred to  another agency, and include the part of the request that has been  referred and the name of the FOIA contact in that agency; and  recognize the important statutory role of the FOIA Public Liaison in  reducing delays, increasing transparency, and understanding the  status of requests.
In addition, as part of its actions taken to review policies and procedures,  in 2011 and 2012 the office responded to agencies’ requests in the  Federal Register for public comments on Privacy Act system of records  notices. The office commented on six such requests during these 2 years.  For example, the office suggested that agencies include model language  in their system of records notices that would allow OGIS to share  information with the affected agency as a permitted disclosure under the  Privacy Act. According to the officials, without the model language, OGIS  would be required to obtain written consent from each requester prior to  being able to access their records when mediating a dispute.
Further, through various means (for example, FOIA roundtable meetings,  website, and blog) in 2012 and 2013, OGIS invited agencies to submit  FOIA correspondence, such as acknowledgment and close-out letters, for  its review. According to OGIS, one agency responded to these invitations  and the office, in turn, made suggestions aimed at improving the clarity  and readability of the agency’s correspondence. Specifically, OGIS  provided comments to the National Geospatial Intelligence Agency on a  template for its close-out letter that clarified the legal requirements to  protect from disclosure, information on the location of classified military  systems personnel, and information on contractor proposals. Beyond this  activity, the office offered Dispute Resolution Skills training to agencies,  including the Departments of State, Homeland Security, and Health and  Human Services, and, as part of the training, provided instruction on  improving agency correspondence to requesters.
Nevertheless, while OGIS has engaged in these specific activities, none  was a proactive, comprehensive evaluation of federal agencies’ FOIA  policies and procedures. Moreover, the office has not conducted any  reviews of agencies’ compliance with FOIA. Rather, the office has  generally worked in an ad hoc, reactive manner to respond to Federal  Register proposals put forth by agencies or to seek opportunities to  comment or provide training on correspondence and documentation other  than FOIA policies and procedures. Furthermore, the activities that it has  undertaken have been limited to engaging with only a small fraction of the  99 federal agencies that, according to Justice, have responsibility for  implementing FOIA. Similarly, while the office reported that it has  reviewed agencies’ annual FOIA reports and Chief FOIA Officer reports  from Justice’s Office of Information Policy website to identify best  practices on improving FOIA processing, and has made general  observations about agencies’ policies, procedures, and compliance with  FOIA through the office’s mediation case work, these actions were not  undertaken as part of a specific review of agencies’ compliance with  FOIA, as required by the OPEN Government Act.
A key factor contributing to the absence of proactive and comprehensive  reviews of federal agencies’ FOIA policies, procedures, and compliance  by OGIS is that the office has not established a structured methodology  for conducting such reviews. Our work has determined that developing a  methodology is critical to conducting quality, credible, and useful reviews.  Our evaluation guidance states that a structured methodology should  define, among other things, the scope, schedule, criteria, and evaluation  questions for conducting the reviews. OGIS had not defined the scope  of work for its reviews, to include information on which specific agencies it  will review, (such as the agencies that receive the largest number of FOIA  requests) and when it will do so. In addition, the office had not established  the criteria against which the agencies’ policies, procedures, and  compliance with FOIA requirements would be assessed; and it had not  developed evaluation questions to be used in conducting the reviews.
The Director of OGIS acknowledged the limitations of the reviews that  had been conducted, stating that the office had prioritized its resources to  favor mediation activities. In this regard, the Director stated that the staff  tasked with providing mediation services should function as neutral third  parties and be independent from staff tasked with reviewing agencies’  FOIA policies, procedures, and compliance. However, the Director said  that, given the small number of staff assigned to OGIS, the office has not  been able to establish a separate team of reviewers. OGIS officials added  that the office is in the early stages of drafting a methodology for  conducting the reviews, but that a time frame for when the methodology  will be completed has not been established. Further, while Agency  Services has identified a need for additional staff to support OGIS in  implementing its mission, it has not established a plan that addresses  how the office intends to staff the FOIA reviews. Industry practices stress  the importance of analyzing workforce needs and developing a plan of  action for addressing those needs. Moreover, in September 2012, a  report issued by the Office of Inspector General at NARA concluded that  while OGIS was currently able to meet its mission, additional resources  would allow the office to have a more robust program for conducting the  reviews.of OGIS, through the budget process, define resources necessary to  better accomplish the office’s statutory requirement. As of early August  2013, however, OGIS had not yet implemented this recommendation.
The Office of Inspector General recommended that the Director  Until OGIS completes a methodology, and defines the resources needed  to accomplish the requirements of the office as the NARA Inspector  General has recommended, the office will not be positioned to effectively  execute the responsibilities envisioned for it in assisting with this  important aspect of FOIA implementation.
section_title: OGIS Is Mediating Disputes, but Lacks Goals and Metrics for Measuring Timeliness and Success
paragraphs: In response to the OPEN Government Act requirement that it offer  mediation services to resolve disputes between FOIA requesters and  agencies as a non-exclusive alternative to litigation, OGIS defines two  types of mediation services that it provides to address requests for  assistance:
Facilitation: A type of mediation in which an OGIS staff member  facilitates communication between the requester and the agency,  helping the parties to reach a mutually agreeable solution without the  perceived formality or cost of mediation.
Ombuds services: Advice and services (other than mediation)  offered in response to complaints that the office receives. Ombuds  services do not address the substance of a dispute (such as the  exemptions taken), but rather, the mechanics of a dispute (such as  the status of a delayed request).
OGIS has a documented process for handling the requests that it  receives. Specifically, when a request is received—by phone, e-mail, fax,  or electronically through its website—a case file is opened and assigned  a tracking number in an automated case management system. Once a  case has been opened, the office goes through a fact-finding process to  determine what services are called for, such as, helping the parties  exchange information or suggesting options for resolution. For each case,  further actions taken by OGIS and the other parties involved, as well as  any agreements reached, are recorded in the case management system.
During fiscal year 2012, OGIS accepted 855 requests for assistance: 46  involved facilitation or both facilitation/ombuds services, and 239 involved  only ombuds services. Of the remaining requests, 498 were classified by  OGIS as a “quick hit” and 72 were classified as miscellaneous (for  example, “administrative closure,” “no direct action requested,” or  “request withdrawn.”)
Of the 44 facilitation and facilitation/ombuds services cases that OGIS  initiated in 2012, remaining 14 were cases that OGIS did not mediate because it agreed  with the agency’s decision on the FOIA request.) Further, among the  cases that were mediated, we determined that 22 had a positive result, as  defined by one or more of the following three actions:   the office provided mediation for 30. (Most of the
One or both parties took action or modified their position after  OGIS’s intervention. For example, a requester conducting family  genealogy research requested from the Social Security  Administration, a copy of a Social Security form pertaining to a family  member. In response, the agency sent the form to the requester, but  the subject’s parents’ names had been redacted—blacked out— because the Social Security Administration does not reveal  information about a living person and, given their dates of birth, had  concluded that the parents might still be alive. The requester filed an  appeal and provided death certificates for the parents, but the appeal  was denied. An OGIS mediator subsequently contacted a Social  Security Administration official on the requester’s behalf to discuss the  denial. After reexamining the case, the agency agreed to send an  unredacted document to the requester.
While 46 cases were initiated in 2012, we included 44 cases in our review. One case  was omitted because it involved only OGIS and agency officials, and a second was  omitted because the case was not included in the data OGIS provided from which we  made our selection.
One or both parties indicated increased satisfaction with the  outcome of the FOIA process as a result of OGIS’s mediation. For  example, a representative of a trade organization, who had requested  contract data from the Department of Homeland Security, had  received only part of the information requested. The agency withheld  substantial information under a FOIA exemption protecting trade  secrets. The requester subsequently contacted OGIS, and a mediator  contacted the agency’s appeals officer and discussed the relevant  case law. In response to this action, the agency reconsidered its  decision and provided the information with only minimal redactions.  The customer noted that she was “extremely happy with the results of  the mediation.”
The issue in dispute was clarified, addressed, or resolved after  OGIS intervened. For example, a requester asked the Securities and  Exchange Commission for all its files of a certain type and later asked  OGIS for help because of a perceived delay in the agency’s response.  A mediator then contacted an official at the agency, who explained  that the requested files were difficult to retrieve because some were  paper files that were not indexed and were geographically dispersed.  The mediator explained this to the requester, who was initially  unwilling to compromise but was open to an OGIS-facilitated  discussion with the agency. The agency agreed, and OGIS  subsequently facilitated a teleconference between the requester and  the agency, during which the two parties agreed that the requester  would file a narrower request that the agency could fill promptly.
Overall, among these 22 cases, 9 involved a denial, in which an agency  declined to release the requested records; 7 involved a delay, in which a  requester believed the agency was taking too much time to fill a request;  and 3 involved fees, where a requester believed the amount being  charged was excessive or that a fee waiver was applicable. The other 3  cases involved: a dispute over whether an appeal had been submitted in  a timely manner, a customer disputing that an agency had not found  responsive records, and a requester wanting results in a different format.
Also, among the cases that OGIS mediated, we determined that 8 did not  have a positive result, as explained by the following examples:  In four cases, OGIS provided mediation services, but the agency did  not change its position on refusing to provide the requested  information. In one case, for example, the agency did not change its  position that the requester needed to provide a waiver or proof of  death for the subject of the request in order for the agency to process  the request. In another example, the agency stood by its decision to  refer the requester to a publicly available document.  In one case, the agency, after its initial meeting with OGIS and the  requester, was unwilling to continue to meet on matters related to the  FOIA request.  In one case, OGIS held discussions regarding the agency not granting  the requester free search time as required by FOIA and OMB’s  guidance. The agency did not change its position and the requester  pursued litigation regarding the matter.  In the remaining two cases, OGIS confirmed that the information the  requesters were seeking was either exempt from disclosure, or the  record did not exist. For example, in one of these cases, the requester  had sought a list of active Internal Revenue Service tax-exempt cases  in litigation, but had received a “no records” response from the  agency. As part of its mediation efforts, OGIS confirmed that the  agency did not keep the requested information in any of its records.
Of the 14 cases where mediation was not provided, 11 were cases where  OGIS agreed with the agency’s decision to deny a request. For example,  in one of the cases, a prison inmate requested a copy of the Bureau of  Prisons Correctional Services Manual, which addresses the operations of  federal prisons. The bureau withheld the manual under a law enforcement  exemption, stating that, while there may have been a public interest in the  material, that interest did not outweigh the need to keep order in the  prison system and avoid inmates using the information to their advantage.  The requester then contacted OGIS, and the office responded that the  agency’s actions had been consistent with FOIA law and policy and  declined to mediate. In another instance, a case was not mediated  because the agency declined to cooperate with OGIS. Further, for the  remaining 2 cases, OGIS ultimately determined that they were ones in  which mediation was not needed. For example, to resolve one of the  cases, OGIS only needed to explain an agency letter to a requester.
Although it has taken actions to resolve disputes—in many cases having  positive results through mediation—the office lacks performance  measures and goals needed to gauge the overall success of its mediation  services. The Government Performance and Results Act Modernization  Act of 2010  requires NARA, like all agencies, to develop an annual  performance plan that includes performance goals for its program  activities and accompanying performance measures, including timeliness  and results-based measures. According to the act, the performance goals  should be in a quantifiable and measurable form to define the level of  performance to be achieved for program activities each year. Measuring  performance allows an agency to track the progress it is making toward  goals and gives managers crucial information on which to base their  organizational and management decisions. Leading organizations  recognize that performance measures can create powerful incentives to  influence organizational and individual behavior.
However, consistent with its fiscal year 2013 annual report, in which the  office states that it has no formal metrics for measuring success, OGIS  has not developed measures and goals for its mediation services. While  its case management system can track the length of time required to  handle a particular case, the office currently has no specific goals related  to timeliness in handling requests for assistance. In this regard, in fiscal  year 2012, the office had a timeliness goal, derived from NARA’s overall  performance plan, of closing cases within 34 working days. However,  according to the officials, this goal was dropped because it was not based  on the office’s actual experience in handling the cases.
OGIS also has no measures or goals pertaining to the results of its  mediation cases. For example, it has not established criteria for  determining what constitutes success in a case or a goal for what  percentage of its cases should have a successful result. OGIS’s Director  said that the office is aware of the need for such measures and is making  efforts to meet the need. The Director told us that OGIS has engaged a  consultant to help review its case management system, identify reasons  for differing case closure times, and help develop more measurable  milestones. However, OGIS had not implemented measures as of mid- August 2013. Further, the office has begun using an online questionnaire  where its customers can provide anonymous feedback on their  experiences with OGIS and its staff. While this questionnaire may be  useful if enough responses are received, its value as a voluntary,     Web-based survey is limited: its respondents are self-selected, responses  are anonymous, and comments cannot be linked to specific cases or  contexts, thus limiting their usefulness. Until OGIS establishes  quantifiable goals and measures of success for its mediation services, the  office will not be positioned to determine how effectively it is performing  mediation and contributing to the resolution of cases that might otherwise  have resulted in potentially costly litigation or gone unresolved.
section_title: OGIS Has Made Recommendations and Issued Best Practices for Improving the Administration of FOIA
paragraphs: As required by the OPEN Government Act, OGIS has made  recommendations to Congress and the President aimed at improving the  administration of FOIA. These recommendations have largely focused on  improving the internal coordination of government FOIA operations and  areas where OGIS’s role could be made more effective. In addition, while  it has not issued specific guidance on FOIA implementation, OGIS has  collected best practices for improving FOIA processing for federal  agencies.
Altogether, OGIS has made nine recommendations aimed at improving  the FOIA process––five in 2012 and four in 2013. Seven of the  recommendations were specific to actions that the office believed it  should take (in certain cases in conjunction with agency partners and  other stakeholders), while two of the recommendations focused on  actions to be taken by other federal agencies.
Specifically, OGIS recommended to Congress and the President actions  that it had either taken or was planning to take to enhance its own role in  administering FOIA, as follows:
Work to encourage other departments and agencies to partner with it  to expand dispute resolution training for their FOIA professionals so  that they can assist their FOIA colleagues in preventing and resolving  disputes.
Work with other agencies to consider how the FOIA web portal  (https://FOIAonline.regulations.gov/),portal, might be useful to them in carrying out their statutory  responsibilities and use it to accept FOIA requests and allow  responsive documents to be uploaded and posted for the public.
Facilitate the coordination of interagency communication for  governmentwide FOIA requests among agencies by serving as the  central point-of-contact for agencies in sharing information, and also  for relaying information to requesters as appropriate.
Work with stakeholders from both inside and outside government to  review the issues surrounding FOIA fees and fee waivers, which  remains a persistent point of contention administratively and in  litigation.
Develop, with the Chief Information Officers Council, methods for  agencies to better handle requesters seeking their own records under  the Privacy Act to improve how requesters navigate agency  processes to obtain needed assistance.  In conjunction with OMB, create a governmentwide Privacy Act  routine-use procedure to streamline the way in which agencies share  with OGIS information covered by the act.
Work with agencies to streamline the process of requesting  immigration-related records because of the increased number of  requests related to these records.
In addition, OGIS recommended that federal agencies take specific  actions, as follows:
Encourage and support the use of dispute resolution in the agency  FOIA processes to prevent and resolve disputes administratively and  avoid litigation.
Remind their staff of the importance of FOIA and recognize FOIA as a  priority (based on the position that many agency employees may be  unfamiliar with their own responsibilities under the law).
OGIS officials stated that the recommendations were based on the  office’s ongoing work with federal agencies and members of the public.  They acknowledged that the office had not compiled other information  that would be necessary to recommend substantive revisions to  underlying FOIA policies or otherwise suggest legislative actions to  Congress and the President. However, such information potentially could  have been derived if OGIS had taken steps to conduct more  comprehensive reviews of agencies’ FOIA policies, procedures, and  compliance and had established and implemented results-based  measures for its mediation services.
According to its documentation, OGIS submitted the nine  recommendations over a 2-year period from February 2011 through  March 2013. The officials explained that their submission of these  recommendations followed periods of interagency review as required  under the process overseen by OMB. Specifically, they explained that  OGIS had submitted its first two draft recommendations for review in  accordance with the OMB Circular A-19 on February 16, 2011. These  initial recommendations focused on developing, with the Chief Information  Officers Council, methods for agencies to better handle requesters  seeking their own records under the Privacy Act and in conjunction with  OMB, creating a governmentwide Privacy Act routine-use procedure.  Then, over the next 14 months, OMB and NARA had periodic discussions  regarding the significant number of interagency comments that OMB had  received on the recommendations.
Following discussion on the status of the two recommendations at a  congressional hearing in March 2012, recommendations to OMB for review. OMB officials said they then worked  with OGIS to address interagency comments on the three  recommendations, as well as the initial two recommendations.
The hearing, entitled “The Freedom of Information Act: Safeguarding Critical  Infrastructure Information and the Public’s Right to Know,” was held on March13, 2012, by  the Senate Judiciary Committee.
After OMB completed its review in mid-April 2012, OGIS informed  Congress that its recommendations did not include any substantive  revisions to the disclosure requirements of FOIA. OGIS officials  subsequently stated that, as a result of the interagency consultation  process, OGIS and OMB had agreed that the five recommendations  could be addressed administratively and did not require any legislative  action.
In mid-January 2013, OGIS and OMB officials met to discuss a second  set of potential recommendations that the office intended to submit. The  office subsequently submitted four recommendations to OMB for Circular  A-19 review on March 4, 2013. According to OGIS officials, the review of  these recommendations was completed on March 12, 2013, and the  recommendations were provided to Congress on March 13, 2013, to  support a congressional hearing during Sunshine Week.
subsections: section_title: OGIS Does Not Issue Guidance, but Disseminates Best Practices for Improving FOIA Processing
paragraphs: Although OGIS does not issue specific guidance on FOIA  implementation, it collects and shares best practices for improving  federal agencies’ processing of FOIA requests. According to OMB, best  practices are the processes, practices, and systems identified in public  and private organizations that work exceptionally well and are widely  recognized as being helpful in improving an organization’s performance  and efficiency in specific areas. Best practices can be based on lessons  learned from positive experiences or on negative experiences that result  in an undesirable outcome. In addition, guidance states that the use of  best practices is a principal component of an organizational culture  committed to continuous improvement.
Toward this end, OGIS collects best practices for improving FOIA  processing from several sources, including its reviews of agencies’  annual FOIA reports and mediation case files, as well as anecdotally from  persons involved in mediation cases facilitated by the office. OGIS  publishes best practices related to key FOIA requirements and guidance  in its annual reports, and on its website (https://ogis.archives.gov/) and  blog (http://blogs.archives.gov/foiablog/). The website includes a number  of links describing various best practices specifically for FOIA requestors  and federal agencies. Table 1 describes examples of the best practices  OGIS has disseminated.
OGIS officials stated that the office updates its blog at least weekly with  posts addressing best practices, case studies, and where the public and  federal agencies can engage in discussions about FOIA issues. In  addition, OGIS uses other mechanisms to improve the administration of  FOIA, to include presenting training for FOIA professionals; holding  conferences with the American Society for Access Professionals to share  best practices; and, at the start of fiscal year 2013, helping to launch the  FOIA web portal (https://FOIAonline.regulations.gov/).
section_title: Conclusions
paragraphs: Since it was established 4 years ago, OGIS has taken actions to  implement selected legislative responsibilities, although it has fallen short  in certain areas. Specifically, while the office has suggested  improvements to a number of agencies’ FOIA regulations and system of  records notices, it has not completed a methodology for proactively  reviewing agencies’ policies, procedures, and compliance with FOIA  requirements and a time frame for doing so. As a mediator between  requesters and federal agencies, OGIS has resolved cases that might  have otherwise resulted in litigation. However, while we were able to  identify instances in which its mediation efforts have had positive results,  the office’s overall success in mediating cases is difficult to gauge without  goals and performance measures. On the basis of its reviews of agency  policy and procedures, and mediation experience, OGIS has made a  number of recommendations to Congress and the President and shared  best practices to help agencies improve the administration of FOIA.  However, addressing the shortfalls that we noted is critical to OGIS  effectively complying with its role as required by law.
section_title: Recommendations
paragraphs: To ensure that OGIS effectively performs its responsibilities under FOIA,  as amended by the OPEN Government Act, we recommend that the  Archivist of the United States direct the Executive for Agency Services  and the Director of OGIS to take the following two actions:
Establish a time frame for completing and implementing a  methodology that defines, among other things, the scope, schedule,  criteria, and evaluation questions for conducting reviews of federal  agencies’ FOIA policies, procedures, and compliance.
Establish performance measures and goals for OGIS’s mediation  services that define success in handling a case and include relevant  goals for the number of cases handled successfully, as well as goals  for timely management of cases based on past experience.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided drafts of this report to NARA and OMB for comment. In its  written comments, which are reprinted in appendix II, NARA expressed  appreciation for our attention to issues facing OGIS and concurred with  the two recommendations in the report. NARA also specifically discussed  actions that it was taking or planned to take related to our second  recommendation. In particular, the agency stated that OGIS has  consulted with other mediation and ombudsman offices on how to  evaluate its services and will continue to do so. NARA added that it has  been difficult to measure success and that the office’s resolution of a  dispute is dependent on outside factors that are beyond OGIS’s control,  such as the willingness of the parties to participate in voluntary mediation  services. Further, NARA stated that it appreciated our suggestions  regarding measures for success and would consider these suggestions  as the office assesses measures for the upcoming fiscal year.
In addition to the aforementioned written comments, we received  technical comments, via e-mail, from NARA’s Audit Liaison and OMB’s  Audit Liaison, which we have incorporated, as appropriate.
We are sending copies of this report to the appropriate congressional  committees; the Archivist of the United States; Executive for Agency  Services, Director of OGIS, and other interested parties. Copies of this  report will also be available at no charge on the GAO Web site, at  http://www.gao.gov.
Should you or your staffs have any questions on the information  discussed in this report, please contact me at (202) 512-6304 or  melvinv@gao.gov. Contact points for our Offices of Congressional  Relations and Public Affairs may be found on the last page of this report.  GAO staff who made major contributions to this report are listed in  appendix III.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our objectives were to assess the actions that the Office of Government  Information Services (OGIS) has taken to (1) review agencies’ Freedom  of Information Act (FOIA) policies, procedures, and compliance, (2)  mediate disputes between FOIA requesters and federal agencies, and (3)  recommend policy changes to Congress and the President, and develop  and issue guidance and best practices to agencies aimed at improving  the administration of FOIA.
To assess the actions OGIS has taken to review agencies’ FOIA policies,  procedures, and compliance, we analyzed documentation describing the  office’s plans and activities for conducting agency FOIA reviews. These  included the office’s annual reports for fiscal years 2011 through 2013,  quarterly reports, NARA’s annual performance plan for fiscal years 2011  through 2013, and the office’s comments on 18 proposed agency  regulations and six Privacy Act system of records notices. We analyzed  OGIS’s comments on agency FOIA correspondence, such as closeout  letters, and training materials on improving agency correspondence to  requesters. We compared the plans and activities to our program  evaluation guidance that focuses on assessing the effectiveness of  program operations and results. We also analyzed OGIS’s comments on  the proposed agency regulations and compared them to the latest version  of the agency’s regulations to determine whether they were incorporated.
While 46 cases were initiated in 2012, we included 44 cases in our review. We omitted  two cases: one because it involved only OGIS and the agency’s FOIA staff, and one  because it was not included in the data that OGIS provided, and from which we made our  selection. examined the corresponding paper case files as well as data from the  office’s automated case tracking system.
We developed criteria, after discussions with OGIS, for verifying whether  a case involved mediation and for determining the result of the office’s  mediation efforts. Specifically, we verified that a case was an example of  mediation if one of the following occurred:
Other than the initial contact, OGIS had two or more substantive  contacts with either party.
The office suggested options for changing a position or decision to  either party.
Either party changed a decision or position (e.g. the agency waived  fees or provided additional documents, or the requester narrowed the  scope of a request).
We considered the office’s mediation efforts to have had a positive result  if at least one of the following events occurred:
One or both parties took some action or modified their position after  OGIS’s intervention (for example, the agency reduced fees or  provided further documents).
One or both parties indicated increased satisfaction with the outcome  of the FOIA process as the result of the office’s mediation.
The issue in dispute was clarified, addressed, or resolved.
To determine the reliability of data from OGIS’s case tracking system, we  performed basic steps to ensure the data provided were valid and  reviewed relevant information describing the database. Specifically, we  tested for duplicate records, missing values, and out-of-range values in  the data received from OGIS. We assessed the reliability of the system  used to maintain these data. To determine the reliability of the case data,  we independently replicated a report generated by the software and  compared it to documents provided by OGIS to determine whether the  data matched. Also, we conducted interviews with agency officials to gain  an understanding of the process by which data are entered and validated.  Based on the results of these efforts, we found the data sources to be  sufficiently reliable for our purposes.
To assess the office’s actions to recommend policy changes to Congress  and the President, we reviewed documentation describing policy  recommendations that were made to Congress and the President. We  analyzed annual reports on the status of the implementation of these  recommendations. In addition, we reviewed the Office of Management  and Budget’s (OMB) written responses describing its reviews of OGIS’s  policy recommendations, as well as any applicable OMB guidance, such  as the Circular A-19. We supplemented our analyses with interviews of  the Director of OGIS, the Acting Executive for Agency Services (the  NARA organization in which OGIS is located), officials from OMB’s Office  of General Counsel, and other cognizant NARA and OGIS officials. To  assess OGIS’s actions to provide best practices to federal agencies, we  reviewed documentation of OGIS’s agency best practices, case studies,  and suggestions regarding FOIA included in the annual reports, and on  the website and blog. We also observed OGIS meetings with other  agencies, FOIA requesters, and the general public to discuss FOIA  topics, such as the administration of fees and access to records through  FOIA libraries. We supplemented our analyses with interviews of relevant  OGIS officials to discuss the process used to identify best practices and  measures established to evaluate their use by federal agencies.
We conducted this performance audit from October 2012 through  September 2013 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.
section_title: Appendix II: Comments from the National Archives and Records Administration
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, key contributors to this report  were Cynthia J. Scott (assistant director), Nancy Glover, Cynthia Grant,  Ashfaq Huda, Alina J. Johnson, Ruben Montes de Oca, Freda Paintsil,  David Plocher, Glenn Spiegel, and Walter Vance.