FOIA Reform Featured in New U.S. OGP Action Plan

whitehouse6 December, 2013

By Toby McIntosh

The Obama administration Dec. 6 proposed five steps to “modernize” the freedom of information act.

The ideas appear in the second U.S. national action plan prepared as a member of the Open Government Partnership. In an unexpected development, the plan includes a series of commitments related to foreign surveillance efforts.

Regarding freedom of information, the plan contains a number of points:

A consolidated FOI portal: “The Administration will launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single website and includes additional tools to improve the customer experience. The U.S. Government will establish a FOIA task force that will review current practices, seek public input, and determine the best way to implement this consolidated FOIA service.”

Common FOIA Regulations and Practices for Federal Agencies: “The Administration will initiate an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.

Improving Internal Agency FOIA Processes: “The U.S. Government will scale these targeted efforts to improve the efficiency of agencies with the biggest backlogs, and to share lessons learned to further improve internal agency FOIA processes.”

Establish a FOIA Modernization Advisory Committee: “The United States will establish a formal FOIA Advisory Committee, comprised of government and non-governmental members of the FOIA community, to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.”

Improve FOIA Training: The Administration will make standard e-learning training resources available for FOIA professionals and other Federal employees and encourage their use.

The U.S. FOIA-related commitments were reported by FreedomInfo.org (Oct. 23).

Research Under Way on FOIA Litigation Alternatives

In an unrelated U.S. development, the idea of reducing FOIA litigation through targeted alternative dispute resolution strategies is being researched by an official advisory group, the Administrative Conference of the United States (ACUS).

A background note on the project, it is pointed out that the year 2012 saw the highest number of FOI requests in the history of the law: 650,000. “Annual agency FOIA litigation costs are estimated to hover around $23 million—a conservative estimate by some accounts,” the ACUS information says.

Research on FOI litigation and alternatives will be conducted by Professor Mark H. Grunewald of the Washington and Lee School of Law.

Records Management Addressed

The new action plan says “the backbone of a transparent and accountable government is strong records management that documents the decisions and actions of the Federal Government.” Some of the proposals have been revealed earlier.

The plan says that the National Archives and Records Administration (NARA) “will work with Federal agencies to implement new guidance that addresses the automated electronic management of email records, as well as the Presidential Directive to manage both permanent and temporary email records in an accessible electronic format by the end of 2016. NARA will also collaborate with industry to establish voluntary data and metadata standards to make it easier for individuals to search publicly-available government records.”

Security Classification Reform

The plan also includes a pledge to “transform the security classification system.”

Stating that “classification must therefore be kept to the minimum,” the plan says the administration will:

Create a Security Classification Reform Committee. “The Public Interest Declassification Board, an advisory committee made up of experts outside government as well as former government classification experts, has made several recommendations for reducing overclassification and simplifying the classification system in its report, Transforming the Security Classification System. The interagency Classification Review Committee, which will report to the Assistant to the President for Homeland Security and Counterterrorism, will review these recommendations, coordinate efforts to implement those that are accepted, and meet periodically with external stakeholders to obtain their input as appropriate.”

Systematically Review and Declassify Historical Data on Nuclear Activities. “The Classification Review Committee will work with the Department of Defense, Department of Energy, Office of the Director of National Intelligence, and Department of State to determine, consistent with applicable statutes, how to implement a systematic review process for the declassification of no-longer sensitive historical information on nuclear programs (Formerly Restricted Data or FRD), focusing on specific events and topics of historical nuclear policy interest and ways for the public to help identify priorities for declassification review.”

Pilot Technological Tools to Analyze Classified Presidential Records. “The Central Intelligence Agency and NARA will pilot the use of new tools to provide classification reviewers with search capability for unstructured data and automate initial document analysis, beginning with Presidential Records from the Reagan Administration’s classified e-mail system.”

Implement Monitoring and Tracking of Declassification Reviews. “The National Declassification Center at NARA will implement a referral and tracking system that will automatically notify appropriate agency representatives when classified records are ready for declassification review and enable monitoring to ensure that agencies meet review deadlines. This system will include records of Presidential Libraries.”

Implement the Controlled Unclassified Information Program. “The Government currently uses ad hoc, agency-specific policies, procedures, and markings to safeguard and protect certain controlled unclassified information (CUI), such as information that involves privacy, security, proprietary business interests, and law enforcement investigations. This patchwork of policies has resulted in inconsistent marking and safeguarding of documents, unclear or unnecessarily restrictive dissemination policies, and impediments to authorized information sharing. The President therefore directed NARA to establish a program to standardize processes and procedures for managing CUI. Over the next year, NARA will issue implementation guidance, with phased implementation schedules, and an enhanced CUI Registry that designates what information falls under the program.”

Surveillance-Related Pledges

Promising to “increase transparency of foreign intelligence surveillance activities, the plans says:

“In June 2013, the President directed the U.S. Intelligence Community to declassify and make public as much information as possible about certain sensitive intelligence collection programs undertaken under the authority of the Foreign Intelligence Surveillance Act (FISA), while being mindful of the need to protect national security. Nearly two thousand pages of documents have since been released, including materials that were provided to Congress in conjunction with its oversight and reauthorization of these authorities. As information is declassified, the U.S. Intelligence Community is posting online materials and other information relevant to FISA, the FISA Court, and oversight and compliance efforts. The Administration has further committed to:

Share Data on the Use of National Security Legal Authorities. The Administration will release annual public reports on the U.S. Government’s use of certain national security authorities. These reports will include the total number of orders issued during the prior twelve-month period and the number of targets affected by them.

Review and Declassify Information Regarding Foreign Intelligence Surveillance Programs. The Director of National Intelligence will continue to review and, where appropriate, declassify information related to foreign intelligence surveillance programs.

Consult with Stakeholders. The Administration will continue to engage with a broad group of stakeholders and seek input from the Privacy and Civil Liberties Oversight Board to ensure the Government appropriately protects privacy and civil liberties while simultaneously safeguarding national security.

Many Other Topics Covered

  • The action plan includes many other pledges. By headline, they are:
  • Make Privacy Compliance Information More Accessible
  • Support and Improve Agency Implementation of Open Government Plans
  • Strengthen and Expand Whistleblower Protections for Government Personnel
  • Increase Transparency of Legal Entities Formed in the United States
  • Implement the Extractive Industries Transparency Initiative
  • Make Fossil Fuel Subsidies More Transparent
  • Increase Transparency in Spending
  • Join the Global Initiative on Fiscal Transparency
  • Regularly Engage with External Stakeholders
  • Publish Additional Federal Contracting Data
  • Provide Strategic Direction for Enhancing Fiscal Transparency
  • Continue to Improve Performance
  • Consolidate Import and Export Systems to Curb Corruption
  • Promote Public Participation in Community Spending Decisions
  • Expand Visa Sanctions to Combat Corruption
  • Further Expand Public Participation in the Development of Regulations
  • Make Commenting on Proposed Rulemakings Easier
  • Continue Proactive Outreach with Stakeholders
  • Open Data to the public
  • Manage Government Data as a Strategic Asset
  • Open Agriculture and Nutrition Data
  • Open Natural Disaster-Related Data to Support Response and Recovery Efforts.
  • Continue to Pilot Expert Networking Platforms
  • Reform Government Websites
  • Promote Innovation Through Collaboration and Harness the Ingenuity of the American Public
  • Create an Open Innovation Toolkit
  • New Incentive Prizes and Challenges on Challenge.gov
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