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FOIA Facts: Department of Justice Issues Guidance for FOIA Executive Order

By Scott A. Hodes, Published on May 20, 2006

On April 27, 2006, the Department of Justice belatedly issued guidance to federal agencies concerning compliance with implementing Executive Order 13392 ("EO"). The EO was issued on December 14, 2005, and is entitled Improving Agency Disclosure of Information. The EO came out after amendments to the Freedom of Information Act were offered in both branches of Congress in the Summer of 2005 and incorporates many aspects of the pending legislation, albeit without the penalties Congress would impose on poor agency FOIA performance.

The EO asks that each agency improve its FOIA performance. The first task the EO imposed on agencies was to name a Chief FOIA Officer. Agencies have completed this task, even though, as I have previously pointed out, many of the Chief FOIA Officers do not rise to the employment level dictated in the EO (at the Assistant Secretary or equivalent level). For instance, the SEC has named a FOIA branch chief it's Chief FOIA Officer, well below the level dictated in the EO.

The Chief FOIA Officers next task is to evaluate their agency's FOIA performance and submit these plans to the Department of Justice and the Office of Management and Budget by June 14, 2006. Once these reports are submitted they are to be published on agency web sites and specifically reported on when the agencies submit their annual FOIA reports to Congress.

The Department of Justice guidance is basically nothing more than a brainstorming session - offering a number of ideas in ways agencies can improve their FOIA performance. Rather than offering to sit down with each agency and discuss their FOIA performance individually, the Department offers 27 different areas in which agencies may state that they plan to improve performance. Many of these ideas have nothing to do with FOIA itself, but with what agencies call "Customer Service." Those outside of the government call this common sense, such as improvement number 13, "Politeness/Courtesy." The fact that this is even an area that should be fodder for improvement is ridiculous. If FOIA Offices can't be polite, and needs to add improving politeness on a plan is a mockery of government itself.

The most important areas for requesters, such as backlog reduction, is buried as improvement area number 12 and need not be addressed at all if the agency doesn't see it as a problem. The guidance also includes a template for agencies to follow in turning in their reports.

The guidance came out over four months after the EO was issued and only about six weeks before the reports are to be completed. One of the reasons it came about so late was that, during this period, the FOIA policy function at the Department of Justice was transferred to the Civil Division's Office of Federal Programs from the Office of Information and Privacy. Now that Federal Programs, which is a litigating office responsible for litigating various matters, including FOIA, for numerous agencies, has FOIA policy duties, one hopes that they get tough with agencies at the administrative level so that lawsuits to get access to information become rare and unnecessary. However, from this lackluster guidance does not bode well that Federal Programs will use its power to improve agency FOIA performance.