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