"A People Armed?" Agency E-FOIA Implementation

by Guest Blogger, 7/15/2002

On October 2, 1996, President Clinton signed the Electronic Freedom of Information Act (E-FOIA) Amendments into law. These new provisions of the thirty-year-old Freedom of Information Act (FOIA) are the first to guarantee public access to federal government information electronically. The intent was that by agencies making records, record indexes, and a FOIA guide available online to fulfill these amendments members of the public could easily find and obtain access to records regarding federal government projects and policies. Can they?A popular Government without popular information or the means
of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.
Knowledge will forever govern ignorance, and a people who mean to be their
own Governors, must arm themselves with the power knowledge gives." James
Madison. Letter to W.T. Barry, Aug. 4, 1822, in G.P. Hunt, ed., IX The
Writings of James Madison 103 (1910).]

CONTENTS
Executive Summary
Background
Requirements of
the Electronic Freedom of Information Amendments
OMB Watch Study
Methodology
OMB Watch Study Results
Policy Recommendations
Tabular Study Results
Appendix A Federal Departments Examined & FOIA URLs
Appendix B Federal Agencies Examined & FOIA URLs
Appendix C Federal Government Agencies Directory

This report has also
been published as a Special Issue of The Government Information INSIDER, Patrice
McDermott, editor.

The Government Information
INSIDER has been published by OMB Watch, 1742 Connecticut Ave., NW, Washington,
DC 20009; 202-234-8494. OMB Watch is a nonprofit public interest group
that monitors the Executive Branch and advocates for broad public participation
in government decision-making and a more open and accountable federal government.

An Update Report on the Implementation of
The Electronic Freedom of Information Act Amendments of 1996
Executive Summary

On October 2, 1996, President Clinton signed the Electronic Freedom
of Information Act (E-FOIA) Amendments into law. These new provisions of
the thirty-year-old Freedom of Information Act (FOIA) are the first to
guarantee public access to federal government information electronically.
The intent was that by agencies making records, record indexes, and a FOIA
guide available online to fulfill these amendments members of the public
could easily find and obtain access to records regarding federal government
projects and policies. Can they?
All but one of the deadlines outlined in the E-FOIA amendments have
come and gone. Still, a majority of agencies have not fully met their obligations
to provide electronically all information outlined in the amendments.
This, second, report is based on the examination of 144 federal E-FOIA
web sites to determine the level of compliance with the 1996 amendments.
Overall, this study found that:


  • A stunningly high number of federal government entities are
    not "registered" on the Department of Justice's "Other Agencies" FOIA web site, as can be seen by comparison of Appendices A and B. There is no legal requirement for agencies to identify themselves to DOJ, nor an official FOIA registry. Some of these entities may be in compliance with the requirements of the E-FOIA amendments, but the lack of representation on the Justice site raises serious questions about that probability. And, as Justice is intended (as indicated in the legislative history) to ensure compliance, it seemed the logical place to look for evidence of that compliance.
  • In a majority of the agency sites examined, FOIA information
    is easier to find online than in early 1998. It is often visible
    on the agency's main home page. However, more than one-third of
    the web sites do not have links from the agency's home page. The
    amendments did not require that the information be easily found,
    but we consider such a link key to public access.
  • More specifically, of the 64 agencies examined (Appendix
    A), 7 (11%) have no useful E-FOIA presence, 57 (89%) have varying degrees
    of compliance with the requirements, and, as of November 24 1999, no agency
    had complied fully with the amendments.
  • It is still the case that agencies that have decentralized
    the responsibility for E-FOIA to satellite offices in different units within the agency often have an uneven dissemination of information due to a "hands-off" approach. While some departments or bureaus of an agency have excellent E-FOIA guides, indexes and reading rooms, others have little or no information disseminated online.
  • It is still the case that agencies are moving at a great speed
    to provide information online. Unfortunately, this information in particular, information about agency records and decision-making still is often unorganized, unrelated, and difficult to find. In many cases, agencies may have complied with E-FOIA requirements, but we were unable to verify this compliance because no clear markers for this information existed on these web sites.
  • It is still the case that the Office of Management and Budget
    (OMB), assigned the responsibility of providing guidance on the implementation of E-FOIA, has done nothing since 1998 (when it issued "Updated Guidance" in 1998, that did very little to remedy the serious problems with their earlier guidance) to aid agencies in fulfilling their requirements. Agencies, therefore, have looked to the Department of Justice (DOJ) for detailed explanations of the amendments as well as guidance and examples of implementation and reporting. While the DOJ information can be useful, its availability does not relieve OMB of its responsibility to ensure that agencies have adequate information to implement the law.
  • The guidance that OMB has provided has led some agencies to be out of compliance with the law. April 7, 1997 guidance from OMB on the index requirements
    of the amendments recommended "establishing a Government Information Locator
    Service (GILS) presence." Twelve agencies or components (8% of 144 examined)
    have continued (or, worse, started) to take this advice, regardless of
    whether their GILS "presence" met the requirements of the amendments or
    not. %The updated, April 23, 1998, guidance reiterates this recommendation.
  • The Department of Justice has done little other than issuing
    guides and examples to meet its obligation to encourage agency compliance with the law. It has provided training and information on how to meet the requirements of the amendments, but this is clearly not sufficient given the overall inadequacy of compliance government-wide.

This study indicates that overall, agency compliance with the E-FOIA
amendments has been predominantly inadequate. The four overriding
reasons for this conclusion are:
1. Congress still has not provided the necessary funding to carry out
the implementation of the amendments.
2. OMB still has not provided adequate guidance or assistance to agencies
during the implementation process.
3. The encouragement to compliance, which the legislators intended to
be vested in the Department of Justice, has been insufficient.
4. Agencies have yet to make public access to government information,
especially for accountability, a priority.
Findings from this study reveal the following conclusions:

OMB must provide better guidance and support to agencies by:


  • articulating exactly what information (as indicated in the amendments
    and the legislative history) must be included on agency web sites to be
    in compliance, and creating templates for consistent language and format
    government-wide;
  • establishing a clear definition of what constitutes a repeatedly requested
    record; and most importantly,
  • explaining how E-FOIA fits into the larger framework of federal information
    policy. OMB should follow what it has done in the area of privacy on agency
    web sites and provide leadership in the area of access.

Agencies' information must be better organized to make locating
records online a user-friendly experience. Special emphasis should
be placed on providing consistent, easily-identified headings for E-FOIA
requirements, such as the Index of Major Information Systems, E-FOIA Handbook,
and FOIA-Released Repeatedly Requested Records.

Enforcement mechanisms for agency non-compliance must be established
immediately. Currently, agencies that do not meet the requirements
outlined in the E-FOIA amendments are neither identified nor penalized
for non-compliance.

Congress must provide regular oversight. Since the passage, there
has been only one hearing on the implementation. Congressional oversight
must also include attention to reporting by the Department of Justice on their efforts
to encourage full agency compliance.
Unlike our first report on the implementation of the E-FOIA amendments,
this study did not note (for reporting purposes) notable practices — good or bad — on individual agency or component web sites. We hope to do a follow-up report on those aspects next year.

I. BACKGROUND
Evolution of the Freedom of Information Act
and Electronic Freedom of Information Act Amendments

The Freedom of Information Act (FOIA) was first signed into law in 1966.
Through this Act, every citizen of the United States gained the right to
access and obtain reproductions of records created and maintained by federal
government agencies. The Act was originally created to "ensure an informed
citizenry, vital to the functioning of a democratic society, needed to
check against corruption and to hold the governors accountable to the governed."
Since 1966, the Freedom of Information Act has been amended six times:
in 1974, (with minor amendments in 1976, 1978, and 1984), in 1986, and
in 1996. In each instance, the original Act has been broadened to include
more information deemed necessary to the public as well as to the oversight
of the federal government.
The Freedom of Information Act covers records created within federal
departments, agencies, and offices, federal regulatory agencies, and federal
corporations. As defined by the Act, records include paper documents, films,
tapes, and other materials created or obtained by an agency as part of
its official duties. The 1996 amendments make clear that records also include
electronically-created information such as databases, word processing,
and e-mail.
Under the FOIA, the federal entities listed above are required to disclose
records after receipt of a written citizen request, unless the records
fall within one of the nine exemptions to the Act. Records may be withheld
from the public if they are:(1)


  • Specifically authorized under criteria established by an Executive
    Order to be kept secret in the interest of national defense or foreign
    policy, and are classified as such.
  • Related solely to the internal personnel rules and practices
    of any agency.
  • Specifically exempted from disclosure by statute.
  • Trade secrets and commercial or financial information obtained
    from a person and privileged or confidential.
  • Inter-agency or intra-agency memorandums or letters which would
    not be available by law to a party other than an agency in litigation with the agency.
  • Personnel or medical files.
  • Records or information compiled for law enforcement purposes.
  • Contained in or related to examination, operating or condition
    reports prepared by, on behalf of, or for the use of any agency responsible
    for the regulation or supervision of financial institutions.
  • Geological and geophysical information and data.

The original Freedom of Information Act has been viewed by journalists,
public interest organizations, and citizens as an important tool in opening
federal agency policies and practices to public scrutiny. The congressional
finding accompanying the 1996 amendments to the Act state that the FOIA
has "led to the disclosure of waste, fraud, abuse and wrongdoing in the
Federal Government," and has "led to the identification of unsafe consumer
products, harmful drugs, and serious health hazards."(2)
In general, the intent of the new amendments is to provide more timely
and less complicated access to federal government records through the use
of electronic communication. As noted in the Congressional floor debate,
members of the public, using the Freedom of Information Act, regularly
request more than 600,000 records a year from federal agencies, a volume
that threatens to overwhelm some agencies. The Federal Bureau of Investigation,
for example, had a "4-year lag" in fulfilling FOIA requests.(3)
Both Representatives and Senators in their debate on these amendments noted
that citizens should not have to wait this long to access information about
the workings of their own government. Representative Stephen Horn said
bluntly that this lag was "simply unacceptable in a free society."(4)
Because the Act benefits information seekers regardless of their political
affiliation, the 1996 amendments received widespread bipartisan support,
passing on a vote of 402-0 in the House, and by voice vote in the Senate.
President Clinton affirmed the important function of this legislation,
signing the E-FOIA into law on October 2, 1996.

Requirements of the
Electronic Freedom of Information Act Amendments
Electronic Reading Rooms

Opinions and Orders, Statements of Policy and Staff Manuals
Under FOIA, official agency pronouncements that are not published in
the Federal Register must either be separately published for sale by the
agency, or made available by the agency for public inspection and copying
in agency document depositories or Reading Rooms. Agencies must compile,
index, and publish or make available for copying:
(a) any final opinions and orders in adjudicated cases;
(b) statements of policy and interpretations that are not published
in the Federal Register; and
(c) administrative staff manuals and instructions to staff that affect a member of the public.
Since November 1997, agencies have also been required to make final
opinions, policy statements and staff manuals — created on or after November
1, 1996 — available in Electronic Reading Rooms (unless they are published
and offered for sale). These documents may not simply be placed in the
agency's physical document depository, but must be made available on the
Internet, another on-line service, or through some other electronic means.
Broad categories of records must be made available electronically under
this mandate. Initially, under the Administrative Procedures Act, Congress
required agencies to publish or make materials available for copying to
prevent agencies from maintaining a "secret law" of undisclosed precedents
or legal interpretations. As the government has grown, the number of orders,
opinions, manuals, and interpretive statements and instructions that it
generates has grown with it, and so have the authoritative statements that
reflect an agency's position on legal or policy questions that must be
readily available to the public. 
Court Decisions
Court cases concerning agencies' obligations to place materials in Reading
Rooms illustrate the breadth of this mandate. The courts have held that
agencies cannot limit the opinions made available under this provision
to decisions in formal adjudicatory hearings; decisions based on examination
of an informal, paper record must also be indexed and made available to
the public.(5) Moreover, an agency cannot limit its indices of
opinions and orders that the agency considers to be precedential: it does
not matter if the agency maintains that it will never cite or rely on the
decision in the future.(6)
Additionally, this requirement is also not limited to orders, policies
or interpretations issued by the head of the agency — it reaches
statements issued by any officer of the agency, at any level, if the official
has been delegated authority to decide the issue. The requirement also
applies where the official's decision has legal effect, but may be subject
to further review or appeal.(7)
Moreover, the courts have held that records that reflect "negative"
agency decisions (decisions not to take action) must also be indexed and
made available. For example, the Supreme Court held that memoranda explaining
why National Labor Relations Board officials choose to not bring a complaint
when a private party files a labor relations charge with the Board are
"final" dispositions that must be indexed and made available under this
mandate.(8)
The obligation to index administrative manuals, instructions to staff
and statements of policy or interpretation has also been held to apply
to a wide range of material such as other agency directives in memoranda
that supplement training manuals, formal policy directives, or informal
correspondence.(9)
Limitations on the requirement to index records have also been
made by past judicial interpretations. Decisions that do not have legal
effect by themselves, but are recommendations to other officials or bodies,
need not be indexed under this
provision. Portions of records that are covered by one of the FOIA's nine
exemptions need not be released, including those portions of manuals that
could be used to be used to evade law enforcement if disclosed because
they reveal investigative tactics. On the other hand, the portions of the
manuals or statements that do not contain such material must be indexed
and made available.(10)
Agencies may not be fully aware of their responsibilities under the
new E-FOIA mandates. To ensure full compliance with this obligation, agencies
need to review their procedures for issuing manuals, instructions, policy
statements and decisions to ensure that new directives and opinions, and
amendments to old ones, are incorporated into the agency's indices and
made available in electronic form. And the Department of Justice needs
to issue — and follow up on — guidance in these matters, making sure that
agencies are fully aware of and working actively to comply with their responsibilities.
Repeatedly Requested Records
The 1996 amendments also mandated that a new category of records be
made available to the public online. "Repeatedly Requested" records (created
on or after November 1, 1996) that have been processed and released in
response to a FOIA request that "the agency determines have become or are
likely to become the subject of subsequent requests for substantially the
same records" must be made available online.
If these records could not be accessed online by November 1, 1997, they
were required to be made available through other electronic means, such
as disk or CD-ROM by the November 1, 1997 deadline.
As with reading room materials, this requirement represents a significant
expansion of the responsibilities of federal agencies to make information
available online. The "repeatedly requested" records need not be formal
or authoritative agency pronouncements.(11) Nor is it up to the
agency
to decide if it is interested in disseminating the information; it depends
solely on whether outsiders submit multiple requests for this information.
Any memoranda, reports, studies, lists, tables, correspondence and other
information that is of sufficient interest to the public to spark two or
more request must be placed in the agency's reading room and, if created
since November 1, 1996, must be made available electronically and in such
a way that anyone with online access will enjoy the same informational
access.
Index of Previously Released Records
Agencies are required to make an index of all previously released records
— both those recently created that are available electronically and those
that may be only in paper format — that have been or are likely to be the
subject of additional requests. This index is to be available online by
December 31, 1999.
Reference Guides
The 1996 amendments created a new set of agency requirements to aid
the public in accessing federal government information. By March 31, 1997,
each agency was to provide, in its reading room and through an electronic
site,(12) reference material or a guide on how to request records
from the agency. This reference guide must include:


  • an index of all major information systems of the agency;
  • a description of major information and record locator systems
    maintained by the agency; and
  • a handbook for obtaining various types and categories of public
    information from the agency, both through FOIA requests and through non-FOIA
    means.

Electronic Records
In addition, the 1996 amendments explicitly state that records maintained
by the agency in electronic form are subject to the FOIA. For example,
if an agency maintains an electronic database of information, a citizen
may request the agency to search that database for requested information
and produce an electronic copy of the entries that are responsive to the
citizen's request. An agency is required, moreover, to "make reasonable
efforts to maintain its records in forms or formats that are reproducible
for the purposes of the [FOIA]."

OMB Guidance on E-FOIA
GILS
The legislative history shows that Congress expected OMB to give guidance
on the reference guides, and OMB is responsible, because of its duties
under the Paperwork Reduction Act, for providing formal guidance to agencies
regarding the implementation of the new FOIA provisions. On April 7, 1997,
OMB distributed a memorandum to agencies on how to fulfill the March 31,
1997 requirements for a paper and online Freedom of Information index and
guide.(13) Not only was the memo distributed a full week after
the deadline for completion of this task, guidance from OMB on these significant
new amendments was minimal. To fulfill the index requirements, OMB recommended
"establishing a Government Information Locator Service (GILS) presence,"
in accordance with a 1994 OMB Bulletin. While we agree with OMB that all
agencies should have a well maintained GILS, this alone does not fulfill
the more substantial E-FOIA amendment requirements. The 1994 OMB Bulletin
on GILS instructed agencies to "compile an inventory" of their "automated
information systems," "Privacy Act systems of records," and "locators that
together cover all...information dissemination products," and describe
each of these three by "GILS Core locator records...made available online."(14)
The E-FOIA, however, does not limit agency reference guides to "automated
information systems" but, rather, requires an index of "all major information
systems," a much broader category of information.(15)
Secondly, OMB has instructed agencies that GILS must include locators
for "information dissemination products" which, in their guidelines, include
only locators for catalogs of information disseminated to the public. E-FOIA,
on the other hand, does not use this strict definition, including locators
for records that are not currently disseminated to the public.
Finally, entire classes of information — automated electronic mail and
word processing systems — are exempted from GILS, but were specifically
included in the E-FOIA legislation. Therefore, agencies who follow OMB's
advice of using the GILS to fulfill their obligations fall far short of
meeting the E-FOIA amendments.(16) Moreover, as noted in our report,(17)
there is uneven and inadequate agency compliance with GILS — and no OMB
enforcement of the GILS mandate.
Guides

OMB also suggested that agencies create a guide for obtaining FOIA information.
OMB explained that this guide should include:


  • the location of reading rooms within the agency and its major field
    offices;
  • a brief description of the types and categories of information available
    in these reading rooms;
  • the location of the agency's World Wide Web home page;
  • a reference to the agency's FOIA regulations and how to get a copy;
    and
  • a reference to the agency's Freedom of Information Act annual report
    and how to get a copy.(18)

Department of Justice Guidance on E-FOIA
It is noteworthy that Congress apparently gave little thought in the
passage of the E-FOIA amendments to the breadth of their requirements,
or to the resources — technological and human — needed to meet them. As
Michael Tankersley of Public Citizen puts it, "Not surprisingly, many agencies
are understandably hesitant to divert resources to acquiring better computer
telecommunications facilities to provide electronic access to records that
the agency itself does not want to disseminate, but is now required to
make available because the records are repeatedly requested under the FOIA."(19)
He notes that,
In response to agency concerns, the Department of Justice has urged
agencies to construe the new law to limit the agency records that must
be made available on-line to those records that have be created by the
agency itself. Although the statute states that this requirement applies
to "records created on or after November 1, 1996," the Justice Department
maintains that "created" should be read to mean "created by the agency"
and, therefore, records that "were generated elsewhere and were merely
obtained by" the agency "should not be regarded as subject to the new electronic
availability requirement.(20)
Finally, Tankersley comments that this effort to read a major limitation
into the statute is certain to give rise to disputes, and that neither
the statutory language nor the legislative history support the Department's
position: "After all, if Congress had intended to limit this provision
to records created `by the agency,' it could have done so, but it did not."(21)

Efforts to Encourage Compliance

The Department of Justice has an obligation under E-FOIA to report to
Congress on its efforts to ensure agencies' compliance with this law. The Department includes information on its efforts in its Annual Report to Congress.(22) The categories of effort were:


    (a) Counseling and Consultations;
    (b) FOIA Update (a quarterly FOIA policy publication);
    (c) Policy Memoranda;
    (d) Research and Reference Publications;
    (e) Training;
    (f) Briefings; and
    (g) Congressional and Public Inquiries.

On December 4, 1997, Public Citizen, a nonprofit public interest organization,
filed a federal lawsuit to enforce the E-FOIA. Seven federal agencies —
the Office of Management and Budget, the Office of Administration in the
Executive Office of the President, the Office of the U.S. Trade Representative,
the Department of Education, the Department of Energy, the Department of
Justice, and the Department of State — were sued for failure to comply
with the E-FOIA requirements. The outcome of this litigation has yet to
be decided in federal court.(23)

II. OMB Watch Study Methodology

Over a three month period between September and November 1999, we examined
144 unique federal government E-FOIA web sites. Some E-FOIA web sites represented
entire agencies, while others reflected an agency division or department.
The agencies, departments, bureaus and commissions for this study were
selected from the Department of Justice "other agencies" site.(24)
In each case, we searched for the ability to find and use, and for the
completeness of, four major categories of information required under the
1996 E-FOIA amendments:


  • Records including Federal Register notices, any final
    opinions and orders in adjudicated cases; statements of policy and interpretations
    that are not published in the Federal Register; and administrative staff
    manuals and instructions to staff that affect a member of the public. We
    looked for the online availability of these documents if created after
    November 1, 1996 and indexes and access information for those created previous
    to that date.
  • An index of all major information systems and
    description of records locators;
  • A FOIA guide detailing how to request records from the agency;
  • An electronic reading room that contains the information listed
    above as well as repeatedly requested records created after November 1,
    1996.

In all cases, we approached the web sites from the perspective of an
average member of the public searching for information. Our presumption
was that an average person should not have to guess at what terms mean
or how an agency might classify its information, and should not have to
search an agency's entire web site to find FOIA-related information — that
everything required by the amendments should be accessible through one
spot on the agency's web site. Thus, for instance, if there was not a FOIA
button on the agency home page, we considered this a "No."
We did not consider pointing to a GILS browser compliant with the requirement
for indexing information systems or describing records locators. Nor did
we consider them in compliance if, for instance, their FOIA guide points
to the Code of Federal Regulations (CFR) or to the agency rules in the
Federal Register. The intent of the Act is clearly to make access to this
information easy on the public; requiring them to read the CFR is not responsive
to that intent. Although OMB has indicated that these practices are acceptable,
we did not consider agencies that adopted them to be in compliance with
the intent of the law.
Our research focused exclusively on whether agencies have made the materials
required by E-FOIA available on the Internet; it did not examine if agencies
have made these materials available in other formats or media. It also
did not examine compliance in response time, nor compliance with provision
of the records in the format requested by the FOIA requestor.
It is important to note that we looked at agencies and agency components
that are listed on the DOJ site — those that have made at least a mininal
gesture toward compliance. There are many more government entities that
are not listed there. While it was beyond the scope of this study
to investigate these entities, they should be scrutinized by the DOJ and
by Congress.
Unlike our first report on the implementation of the E-FOIA amendments,
this study did not note (for reporting purposes) notable practices — good
or bad — on individual agency or component web sites. We hope to do a follow-up
report on those aspects next year.

III. OMB Watch Study Results

Complying with E-FOIA Requirements _ Letter and Spirit
Of the 144 agency, department and bureau web sites examined, as of November
24, 1999, no agency fulfilled all of the 1996 amendment requirements and
7 have no useful electronic FOIA presence.(25) The break-out of
the agencies is available in Table 1.
Finding E-FOIA Information Online
A first concern for a member of the public looking for agency information
that might be of use in her research is how to identify what information
an agency has and how it goes about making that information available.
In terms of E-FOIA, this means that the citizen must first know or be able
to learn that FOIA exists.
Ninety (of 144) web sites have a hot button on the agency/component
home page that leads directly to the FOIA/E-FOIA page.
No E-FOIA Information Available
All of the sites we examined had some reference to FOIA (which
is to be expected as they derived from the DOJ site). What is startling
to realize is the number of departmental components and agencies that are not listed on the Department of Justice site. (For a partial list of executive branch components, see Appendix B.) A cursory examination of some department and agency sites indicated that there is minimal E-FOIA information at some non-listed web sites (such as the International Trade Administration
and the Patent and Trademark Office in the Department of Commerce) but
examining all sites not listed at DOJ was beyond the scope of this study.
OMB Guidance
OMB's suggestions in its April 7, 1997 Memorandum -- and in its
April 23, 1998 "Updated Guidance" continue to fall far short of what is needed
to fulfill E-FOIA. OMB seems to have overlooked the intent of the E-FOIA
legislation — to provide easier access to government information electronically.
Providing an address or phone number for more information, as OMB suggests, only
lengthens the search process for citizens. Requiring the public to look up the
agency's regulations — even if an electronic link is provided — is also not
responsive to the intent of the legislation. Nothing less than providing the
actual "how to" guide online at one agency site fulfills the intent of the amendments.
OMB continues to disappoint in matters of access. From its continued
lack of enforcement of — or apparent interest in — the Government Information
Locator Service to its inadequate and, for some agencies misleading, E-FOIA
advice to agencies, OMB's actions reflect a pattern of apathy toward public
access to government information.
Decentralized Responsibility
Four large agencies examined for this study — the Departments of Justice,
Treasury, Interior, and the Environmental Protection Agency — have decentralized
E-FOIA obligations to smaller departments, bureaus or regions within their
larger organizations. Because meeting the E-FOIA requirements is a difficult
and time consuming task, decentralization of this responsibility seems
a useful solution. When some departments or bureaus ignore their decentralized
responsibility, however, this plan leads to uneven compliance across these
agencies. While some departments within agencies have taken the responsibility
quite seriously and complied fully, others have met only some requirements,
and still others have entirely ignored their obligations. Because of this
uneven information dissemination, in most cases of decentralization, it
seems as if the parent agency has taken a hands-off approach, leaving each
department or bureau to fend for itself.
In the case of the Department of Justice (DOJ), each department or bureau
has an individual electronic reading room established, but did not necessarily
meet all E-FOIA amendment requirements.(26) The Department of
Transportation (DOT), like the DOJ, has decentralized its E-FOIA responsibility;
in the process, uneven access to information resources online has been
permitted. Like DOJ, DOT has centralized some of its E-FOIA information,
like the guide and index, but has left other requirements to individual
departments that have, in many cases, not fulfilled their obligations.

What E-FOIA Information Is Available?
FOIA Guides to Requesting Information
The E-FOIA amendments require each agency to create a guide for the
public detailing how to request information. While many agencies have provided
an online guide, the best agency E-FOIA web sites also explain the rights
guaranteed to the public through the FOIA and its amendments. They clearly
articulate not only how to go about requesting information, but also what
information can and cannot be accessed under the FOIA and E-FOIA (as required
in the amendments). This kind of clear language is necessary in providing
meaningful public access to federal government information. Many FOIA web
sites, however, contain legal or bureaucratic language to describe their
guides, index and information holdings online. Seven of the sites examined
appear to have followed OMB guidance in this area, to ill effect for the
public.
Indexes
The 1996 E-FOIA amendments require that agencies provide an index of
all major information systems. Thirteen of the sites have failed to meet
this requirement because they followed OMB's guidance and used their GILS
as their E-FOIA index or description of their records locators. As discussed
earlier, the GILS describes "automated information systems" but does not
provide "an index of all major information systems of the agency" nor "a
description of major information and record locator systems maintained
by the agency" as required by E-FOIA. As a result many agencies have fallen
short in this area.
It is also often difficult to determine what online indexes are describing.
No agency defines what is meant by "major information system," so the public
has no way of knowing what is not indexed — and why.
Electronic Reading Rooms and "Repeatedly Requested" Records
Under E-FOIA, online Electronic Reading Rooms should include final opinions
from agency adjudications, agency policy statements and interpretations
adopted by the agency that are not published in the Federal Register,
a guide on how to request information, and an index of all major information
systems and a description of these and of the agency's records locators.
While many electronic reading rooms exist, none contain all of this information.
Most contain a guide but very few contain an index of information systems
and even fewer a description of the agency's records locators systems.
Fewer than 30% of the sites examined contained FOIA-released repeatedly
requested documents in addition to these other items.
Many agency web sites with an electronic reading room, moreover, have
guides or indexes outside the reading room, and other "documents"
within it. It is, therefore, often difficult to understand the connection
between the reading room and the E-FOIA requirements explained in the guide.
Quite often, the process by which information is selected for posting remains
a mystery and this information's relationship to the E-FOIA cannot be identified.
Are these documents repeatedly requested by members of the public? Are
they documents frequently requested by the public — but not through FOIA?
The latter appears to be the case frequently. This information is useful,
but it does not belong in the FOIA repeatedly-requested records site.

IV. Policy Recommendations
1. OMB must provide clear guidance to agencies that fulfills both
the letter and intent of the E-FOIA amendments. To make this guidance
effective, OMB must also develop a plan for how E-FOIA fits into the overall
framework of federal information policy and, in particular, public access.
2. Congress must allocate appropriate levels of funding for ongoing
implementation of the E-FOIA amendments. It is difficult for agencies
to make E-FOIA a priority when monies must be diverted from other important
projects.
3. Congress must search for new ways to ensure implementation of
these amendments through an enforcement mechanism. Currently, agencies
who are not in compliance are not penalized.
4. Agencies with decentralized responsibility for E-FOIA implementation
must provide a procedure for the implementation of E-FOIA . While we
are mindful of the organizational need to decentralize responsibility for
E-FOIA, this approach adds additional risk to comprehensive implementation.
If "parent" agencies continue to take a "hands off" approach to E-FOIA
obligations, the public will continue to receive uneven access to information
across the agencies.
5. Agencies must make categories of E-FOIA compliance — handbooks,
indexes, repeatedly requested records — easily identifiable online and
linked from one spot. While the findings of this study are critical
of E-FOIA compliance overall, information to fulfill E-FOIA requirements
may very well be available online, but could not be located because it
was not clearly identified.
6. All agencies should follow the lead of those that provide forms
for submitting FOIA requests online.
7. All agencies should provide access to their information in text-only
as well as graphics versions for users without access to high-tech equipment.
Although
flashy web sites often get the most attention, they are not always the
most user-friendly.
8. The goal of E-FOIA should be to make so much information publicly
available online that Freedom of Information Act requests become an avenue
of last resort.

V. Tabular Study Results

Agency
FOIA Handbook/
Guide
Index of Major Information Systems/ Records Locators
Compliant Electronic Reading Room 
Agency Handbooks, Adjudications
Opinions, etc.
Identifiable FOIA-Released Repeatedly Requested Documents
FOIA link
on agency 
home page1

Department of Agriculture
Yes
No/No
No2
No
No
No

Department of Commerce
No20
No/No
No
No
No
No

National Oceanic & Atmospheric Administration
Yes
No11/No
Partially4
Yes6
Yes3
No

Department of Defense (DefenseLink)
Yes6
No11/No
No6
Centralized6
Yes + GILS
Yes

United States Air Force
No
No/No
Decentralized
No12
No
No

United States Army
No8
No/No
No
No12
No3
No

United States Marine Corp
Yes
No/No
No
Partial
No
No

United States Navy
Yes
No/No
Yes6
No12
No
No

National Imagery & Mapping Agency
Yes6
No/No
No
No12
No4
Yes

National Reconnaissance Office
Yes6
No/No
Partially4
Links to Central
Yes13
Yes

National Security Agency
Yes
No/No
Partially4
Links to Central
Yes13
No

Department of Education
Yes
Yes/Yes
Yes
Yes
No
No

Department of Energy
Yes
No/No
No
Yes
No3
No

Department of Health & Human Services
Yes
No/No
No
No
No
Yes

Agency for Toxic Substances & Disease Registry
Yes
Yes/Yes
Yes
No
No
No

Centers for Disease Control
Yes
No/Yes
No
No
No3
Yes

Food and Drug Administration
Yes
No/No
Yes
Yes
Yes
No

Health Care Finance Adminstration
Yes
No/No
No
No
No
Yes

Department of Housing and Urban Development
Yes
No/No
No
No
No
No

Agency
FOIA Handbook/
Guide
Index of Major Information Systems/ Records Locators
Compliant Electronic Reading Room 
Agency Handbooks, Adjudications
Opinions, etc.
Identifiable FOIA-Released Repeatedly Requested Documents
FOIA link
on agency 
home page1

Department of the Interior
Yes
No/No
Yes
Partial4
Yes
Yes

Bureau of Indian Affairs
Yes
No/No
No
Partial4
Yes
Yes

Bureau of Land Management
Yes
No/No
Yes
Partial4
Yes
No

Bureau of Reclamation
No
No/No
Yes
Partial4
Yes
Yes

Minerals Management Service
Yes
No/No
No
Partial4
Yes
Yes

National Park Service
No
No/No
Yes14
Partial4
Yes
No

Office of Surface Mining
Yes
No/No
Partially
Partial4,6
No3
No

U.S. Fish and Wildlife Service
Yes
No/No
No
No
No
No

U.S. Geological Survey
Yes
No11/No
Yes
Partial4
No
No

Department of Justice
Yes
Yes/No
Decentralized
Decentralized
No3
Yes

Antitrust Division
Centralized
Yes/No
Yes
Yes
Yes
Yes

Bureau of Prisons
Yes
No/No
No
No5
No3
Yes

Civil Division
Centralized
Yes/No
Partially
No5
Yes
Yes

Civil Rights Division
Centralized
Yes/No
Partially
No5
Yes
Yes

Community Oriented Policing
Centralized
Yes/No
Yes
No5
Yes5
Yes

Community Relations Service
Centralized
No/No
Partially
No5
Yes5
Yes

Criminal Division
Centralized
Yes/No
Partially
Partial5,6
Yes5
Yes

Drug Enforcement Admin.
Centralized
Yes/No
Yes
Partial4
Yes5
Yes

Environment and Natural Resource Division
Centralized
Yes/No
Partially
No5
Yes5
Yes

Executive Office for Immigration Review
Centralized
Yes/No
Yes
Partial4
Yes7
Yes

Executive Office for United States Trustees
Centralized
Yes/No
Yes
Yes6
Yes3
Yes

Executive Office of U.S. Attorneys
Centralized
Yes/No
Yes
Partial4,6
Yes5
Yes

Federal Bureau of Investigation
Centralized
Yes/No
No
No
No3
Yes

Foreign Claims Settlement Commission
Centralized
Yes/No
Partially
No5
Yes

Immigration & Naturalization Service
Yes
Yes/No
Yes
Yes
No
Yes

Interpol - U.S. National Central Bureau
Centralized
No/No
No2
No
No
Yes

Justice Management Division
Centralized
Yes/No
Partially
No5
Yes
Yes

Office of the Attorney General
Centralized
Yes/No
No2
No
Yes
Yes

Office of the Deputy Attorney General
Centralized
Yes/No
No2
9
Yes5
Yes

Agency
FOIA Handbook/
Guide
Index of Major Information Systems/ Records Locators
Compliant Electronic Reading Room 
Agency Handbooks, Adjudications
Opinions, etc.
Identifiable FOIA-Released Repeatedly Requested Documents
FOIA link
on agency 
home page1

Office of the Associate Attorney General
Centralized
Yes/No
No2
No5
Yes5
Yes

Office of Community Oriented Policing
Centralized
No/No
No4
Yes
Yes
Yes

Office Information and Privacy
Centralized
Yes/No
No4
No9
Yes5
Yes

Office of Intergovernmental Affairs
Centralized
Yes/No
No2
No
Yes5
Yes

Office of Inspector General
Centralized
Yes/No
No2
No
No
Yes

Office of Intelligence Policy and Review
Centralized
Yes/No
No2
No5
Yes
Yes

Office of Justice Programs
No
Yes/No
No4
No5
No3
Yes

Office of Legal Counsel
Centralized
Yes/No
No2
No5
Yes
Yes

Office of Legislative Affairs
Centralized
Yes/No
No2
No5
Yes5
Yes

Office of the Pardon Attorney
Centralized
Yes/No
No2
No5
Yes5
Yes

Office of Professional Responsibility
Centralized
Yes/No
No2
No5
Yes5
Yes

Office of Public Affairs
Centralized
Yes/No
No2
No9
Yes5
Yes

Office of Policy Development
Centralized
Yes/No
No
No
Yes5
Yes

Office of Solicitor General
Centralized
Yes/No
No2
No
Yes5
Yes

Tax Division
Centralized
Yes/No
No2
No5
Yes5
Yes

United States Marshals Service
Centralized
Yes/No10
No2
Partial4,6
Yes6
Yes

United States Parole Commission
Yes
Yes/No
No2
Yes6
Yes5
Yes

Department of Labor
Yes
No/No
No2
No
Yes
Yes

Department of State
Yes
No/Yes
Yes
No
No
Yes

Department of Transportation
Yes
Yes/No
Decentralized
No
No
Yes

Federal Aviation Administration
Yes
No/No
No
No
No
Yes

Federal Highway Administration
Centralized
No/No
No2
No
No
Yes

Surface Transportation Board
No
No/No
No
Yes
No
Yes

U.S. Coast Guard
No
No/No
No
No
No
Yes

Agency
FOIA Handbook/
Guide
Index of Major Information Systems/ Records Locators
Compliant Electronic Reading Room 
Agency Handbooks, Adjudications
Opinions, etc.
Identifiable FOIA-Released Repeatedly Requested Documents
FOIA link
on agency 
home page1

Department of Treasury
Yes
No/No
Yes
Partial4
Yes
No

Bureau of Alcohol, Tobacco and Firearms
Yes
No11/No
No2
No
No
No

Bureau of Public Debt
Yes
No/No
No
No
NoTD>
No

Federal Law Enforcement Training Center
Yes6
Yes6/No
Yes6
No2
No
Yes

Financial Management Service
No19
Yes/No
Yes
No
Yes
Yes

Internal Revenue Service
No
No/No
No
No
No
No

Office of Comptroller of the Currency
Yes
No/No
No
No
No
No8

Office of Thrift Supervision
Yes
No/No
No
No
Yes
Yes

U.S. Customs Service
Yes
No/No
No
No
No
Yes

U.S. Secret Service
No19
No/No
No
No
No
No

Department of Veteran's Affairs
Yes
Yes11/No
Yes
Partial4
Yes
Yes

Agency for International Development
Yes
No/No
No
Partial4
No8
Yes

AMTRAK
Yes
No/No
No
No
No
Yes

Central Intelligence Agency
Yes
No/No
No
No
No3
Yes

Commodity Futures Trading Commission
Yes
No/No
Yes
Yes
No3
Yes

Agency
FOIA Handbook/
Guide
Index of Major Information Systems/ Records Locators
Compliant Electronic Reading Room 
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