Revise OPM Report to Direct Changes in Personnel Policies for FOIA Professionals 

The Office of Personnel Management (OPM) should reconsider and revise its December 2008 report issued pursuant to Section 11 of the OPEN Government Act of 2007, regarding improving personnel practices for employees who administer the FOIA in the federal government. The report fails to recommend any meaningful action by OPM, but rather suggests a continuation of the status quo, with individual agencies having responsibility for FOIA personnel policies. But OPM CAN take action to raise the caliber of the FOIA workforce, attract and maintain trained individuals in FOIA positions, and compel other federal employees to consider information disclosure as part of their job description. OPM should also gather input from key stakeholders, including a range of agency FOIA officials, the American Society of Access Professionals (ASAP), an independent organization for FOIA and privacy professionals, and members of the FOIA requester and advocacy community. The administration should then direct OPM to issue a revised report that seriously examines “how FOIA can be better implemented at the agency level” by improving the standing and consideration of agency FOIA professionals in the personnel system.

Use the Federal Record Act (and the Budget Process) to Implement Effective Record Retention Policies 

To ensure meaningful advances in information disclosure under the new directive, the Obama administration must address the ongoing problem of electronic recordkeeping. Across the federal government, agencies do not have adequate systems to store and retrieve electronic records, including e-mail communications, to ensure that these records are properly archived, preserved, searchable, and accessible for public disclosure. Without a standardized approach that mandates electronic preservation, rather than relying on individual agencies and even employees to preserve government records, the transparency that President Obama envisioned in his directive cannot be implemented fully. The White House should support legislation that would mandate appropriate electronic records management.

The tens of billions of dollars of federal funds spent on information technology each year should include a portion dedicated to records lifecycle management, so we are not simply pushing costs down the road. The federal IT budget process should require new spending to include electronic records lifecycle considerations.

Moreover, the administration should work to standardize the records retention process across the government. The National Research Council in its 2005 report on the National Archives and Records Administration’s Electronic Records Archives’ (ERA) long-term strategy recommended requiring “all newly acquired agency systems that produce permanent records to do the following: create those records in formats acceptable to NARA, include explicit metadata in their output, and use standardized mechanisms for transferring records to NARA.” The Council’s report even suggested that NARA should plan for the ERA to become the “off-site backup of agency records” in order to build in archival ingestion of records as close as possible to their creation.

Require Agencies to Affirmatively Disclose Information to the Public, as Mandated by E-FOIA 

The Electronic Freedom of Information Act (E-FOIA) offers a starting point for affirmative and proactive government transparency efforts. The law requires agencies to make available online basic information about agency practices and policies and, most significantly, information requested or likely to be requested frequently under FOIA.

Unfortunately, many agencies have not complied fully with E-FOIA, have interpreted the law too narrowly, or have been unwilling to go further than the minimum that the law requires. Effecting full compliance with both the letter and the spirit of E-FOIA across the federal government would go a long way towards achieving President Obama’s vision of government transparency. Indeed, a true presumption of openness would presume that all non-Privacy Act FOIA requests are of interest to the public and would result in the posting online of virtually all records provided to the public in response to a FOIA request.

The framework established in the E-FOIA Amendments is familiar to agencies and provides a useful starting point for the Obama administration to broaden existing policy and practice with regard to affirmative and proactive disclosure of government information. The Department of Justice Office of Information Policy should be tasked with initiating a program to educate agencies on their obligations and advise agencies on best practices and developing a schedule for agencies to meet milestones related to affirmative and proactive online posting of records. The General Services Administration or another appropriate agency should be directed to support agency efforts to make their electronic reading rooms more usable, including development of standardized metadata for use in this process. Agencies should be required to report publicly on a regular basis on their progress in meeting their milestones.

Identify Disclosure Priorities Using FOIA Trends 

The Open Government Directive should establish a mechanism for setting information disclosure priorities. This process should be overseen by a responsible official within each agency, someone in a position to understand the broad scope of the agency’s information holdings. Several complementary approaches to identifying disclosure priorities make sense:
• Agencies should first look at which records the public is already making an effort to obtain under the FOIA. Each agency maintains a log of the FOIA requests that it receives and some agencies already are using their logs to determine frequently requested categories of records.
• In addition, each agency should systematically identify groups of records that would be of significant current interest to the public by reviewing media and public affairs requests and key decisions or events involving the agency. Some agencies, such as the CIA and the State Department, have historical advisory boards that could assist with prioritization efforts and agencies could initiate a process to solicit public input.
• An interagency process overseen by the office tasked with transparency leadership should be convened to coordinate and exchange best practices and consideration should be given to employing a public advisory board or boards to assist with prioritization efforts.
• On a government-wide scale, the Office of Management and Budget should use interactive technologies, such as an online survey, to seek input from the public and federal employees on identifying priority information needs.

Implement E-FOIA’s Public Index Requirement to Start Making Sense of the Government’s Information Holdings 

Transparency has been hindered by the inability of agencies to explain to the public what type of records they hold, such as by providing an index and description of major information systems, which is required by the Freedom of Information Act (FOIA), or through the Government Information Locator Systems (GILS) program. As a result, members of the public often do not know which agency has the information they need or how to obtain it. An approach that allows citizens to better identify and describe the type of records they are seeking and, in most cases, access them through an online or publicly available database without filing a FOIA request, would be a major step forward for transparency.

Agencies should be required to develop descriptive indexes of their information holdings that are easy to understand and accessible to the public. To facilitate this process and provide leadership, the Administration should designate a responsible official in each agency to oversee an inventory of information holdings; set a schedule for completion of an inventory process; and direct the Office of Management and Budget (OMB) and the General Services Administration (GSA) to develop a means for presenting indexes to the public. A coordinating and leadership role should be assigned to the office charged with government-wide transparency authority.

Government-wide Leadership, Implementation, and Enforcement on Transparency 

For too long, access to information about government activities has risen and fallen with the whims of elected and appointed leaders. Agencies’ commitments to transparency vary widely. There is little sharing of best practices and virtually no Executive Branch oversight of the implementation of transparency policies. In order for the situation to improve, there must be one office designated to oversee these issues on a government-wide basis. Whether called the Office of the Chief Transparency Officer or given another title, that office should be granted the authority to issue implementing guidelines to make the Open Government Directive a reality and should have a leadership and coordinating role with respect to the other components of the government that are charged with transparency responsibilities, including the General Services Administration, the Office of Management and Budget, the Department of Justice (and its Office of Information Policy), the National Archives and Records Administration (and its Office of Government Information Services), and the agencies’ Chief FOIA Officers. Ultimately, however, for this office to have an impact, it must be granted authority to direct improvements for agencies that fail to meet the President’s goals.