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Wednesday, December 14, 2005

Is Bush Signing an FOIA Executive Order Tomorrow?

UPDATE V: It's a start but only a start

A good friend in the mainstream media just reminded me that nobody has time on deadline to read this entire post, so here's my summary assessment:

"It's a good first step because it puts Bush on record recognizing there are problems with the current FOIA, but it does nothing toward fixing the root problems, which include overly-broad exemptions from disclosure, lack of penalities for individual bureaucrats and agencies for violating the law and the radical imbalance in the government's favor against requestors who appeal denials to the federal courts."

The full text is at the end of this post.

MT, 5:30 p.m.

Word circulating around the FOIA community today is that something is coming tomorrow from the White House and that it will focus primarily on improving the administration of the law. Most likely along the lines of designating Chief FOIA Officers, creating FOIA Requestor Service Centers and identifying FOIA Public Liaisons for each agency.

In other words, the rumored executive order won't address the fundamental problems with the current FOIA system - no penalties for bureaucrats and agencies that use it to conceal corruption, waste, incompetence - while providing some semblance of administration concern and action on behalf of the public's right to know.

Sounds like more of Washington's famous Blue Smoke and Mirrors but we will see what we will see. What is more interesting is whatever it is that sparked movement on this issue by the Bush administration, which has been anything but concerned about the public's right to know on too many occasions.

UPDATE: Scott McClellan Confirms FOIA Executive Order to be signed

Several folks have pointed out this exchange earlier today during the daily boxing match - uh, press briefing, by White House Press Secretary Scott McClellan:

"Q Scott, can you tell us more about this executive order that the President is going to be signing this afternoon on FOIA?
"MR. McCLELLAN: Well, there's actually going to be a - oh, on FOIA, okay. I thought you meant on the other one. I'll talk a little bit about it. I've got some information on it. First of all, Senators Cornyn and Leahy are expected to be here, as well as Congressmen Smith, Platts and
Sherman. These are individuals that have been supportive of improving the Freedom of Information Act.

"And what this executive order will do is improve the disclosure of information to the general public. The Freedom of Information Act has been an important way for people to obtain
information about their government. And there are many employees at the federal level that are involved at the disclosing of this information.
"And what the executive order will do is it will require the designation of a chief Freedom of Information Act officer at each agency within 30 days. And they will put in place plans to make sure that they're doing as best they can to expedite the disclosure of information.
"We want to make sure that the agencies - and this, really what it does is direct agencies to ensure that their process is citizen-centered and results-oriented. And the goal of it is to help expedite the process and make sure that information is being disclosed in a timely and quick

"Q Is this going to change the policy that was instituted under Attorney General Ashcroft where there was a presumption that the information should not be released.
"MR. McCLELLAN: What it would do - I'll tell you what it will do. The order requires agencies to designate a senior official as the chief officer for Freedom of Information Act requests. They'll be responsible for agency-wide implementation of the response, or of this disclosure of

"Under the order, each agency will also be required to take a close look at their programs, identify areas in which it can do better, and then map out a plan for the agency to implement those improvements in the coming fiscal years of '06 and '07.
"And agencies will also designate public liaisons to serve as a second level to respond to inquiries from those who are requesting information, to assist in resolving issues after staff in those centers have done their best.
"So that's really what it is. It's really just improving the disclosure of information. And we've had good discussions with these members who will be coming to participate in this executive order signing later this afternoon.
"Q: Will there be a presumption that information should be disclosed?
"MR. McCLELLAN: Well, what we want to do is make sure that we're expediting that process, and we'll get you a copy of all this information.

Well, at least it puts the Bush White House on record as recognizing a need to speed up agency responses to FOIA requests and taking measures designed to expedite the FOIA process. Will these measures actually improve things? Not much in the day-to-day administration of the law, but perhaps as an ice-breaker towards genuine reform this is a necessity.


AP's Mark Sherman has more details.


Sen. John Cornyn, R-TX, and the main force in Congress behind efforts to reform the FOIA, has issued a statement here.

Here's his basic take, with a description of the order's main points:

"The President's directive moves us forward toward strengthening our open government laws and reinforcing our national commitment to freedom of information. This Executive Order affirms that FOIA has provided citizens with important information about the functioning of our government.
"It directs FOIA officials to reduce agency backlogs, create a process for everyday citizens to track the status of their request, and establishes a protocol for requestors to resolve FOIA disputes short of filing litigation.
"The President's Executive Order:
* Affirms the principle that FOIA is important to our system of open government and a healthy democracy.

* Creates a FOIA Service Center from which requestors can obtain information on their requests and track request status.
* Creates a FOIA public liaison who acts as a supervisor of FOIA personnel and is available to resolve disputes between the requestor and the government.
* Requires each Chief FOIA officer to review its agency's practices, including the use of technology, to set concrete milestones and specific timetables to reduce backlogs and efficiently administer its FOIA responsibilities."

More to come, including a full text. I'm getting lots of media calls now, so the word is getting around.


Here's the text:

Office of the Press Secretary

For Immediate Release December 14, 2005

- - - - - - -


By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of section 552 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy.

(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) has provided an important means through which the public can obtain information regarding the activities of Federal agencies. Under the FOIA, the public can obtain records from any Federal agency, subject to the exemptions enacted by the Congress to protect information that must be held in confidence for the Government to function effectively or for other purposes.

(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency's website), and about the status of a person's FOIA request and appropriate information about the agency's response.

(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner
and achieve tangible, measurable improvements in FOIA processing. When an agency's FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.

(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.

Sec. 2. Agency Chief FOIA Officers.

(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.

(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:

(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;

(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency's Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing the FOIA, including the
extent to which the agency meets the milestones in the agency's plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;

(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;

(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing the FOIA; and

(v) facilitate public understanding of the purposes of the FOIA's statutory exemptions by including concise descriptions of the exemptions in both the agency's FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency's annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.

(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:

(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;

(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons
shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;

(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;

(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;

(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its
Center or Centers on the agency's website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a
website nor the capability to post on the Firstgov.gov website, in the Federal Register; and

(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency's implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.

Sec. 3. Review, Plan, and Report.

(a) Review. Each agency's Chief FOIA Officer shall conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:

(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency's administration of the FOIA, including the agency's expenditure of resources on FOIA compliance and the
extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);

(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;

(iii) examine the agency's:

(A) use of information technology in responding
to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;

(B) practices with respect to requests for expedited processing; and

(C) implementation of multi-track processing if used by such agency;

(iv) review the agency's policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in section 552(a)(2) of title 5, United States Code; and

(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.

(b) Plan.

(i) Each agency's Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the
Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency's administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency's implementation of the FOIA during fiscal years 2006 and 2007.

(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable)
changes that will make the processing of FOIA requests more streamlined and effective, as well as increased
reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.

(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency's Center and its FOIA Public Liaisons.

(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency's success in the implementation of the plan.

(c) Agency Reports to the Attorney General and OMB Director.

(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency's plan under section 3(b) of this order. The agency shall publish a copy of the agency's report on the agency's website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.

(ii) The head of each agency shall include in the agency's annual FOIA reports for fiscal years 2006 and 2007 a report on the agency's development and
implementation of its plan under section 3(b) of this order and on the agency's performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under section 552(e) of title 5, United States Code.

(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:

(A) identify this deficiency in the annual FOIA report to the Attorney General;

(B) explain in the annual report the reasons for the agency's failure to meet the milestone;

(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and

(D) report this deficiency to the President's Management Council.

Sec. 4. Attorney General.

(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President,
no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies' implementation of the FOIA and of their plans under section 3(b) of this order.

(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.

Sec. 5. OMB Director. The OMB Director may issue such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b) and 3(c) of this order.

Sec. 6. Definitions. As used in this order:

(a) the term "agency" has the same meaning as the term "agency" under section 552(f)(1) of title 5, United States Code; and

(b) the term "record" has the same meaning as the term "record" under section 552(f)(2) of title 5, United States Code.

Sec. 7. General Provisions.

(a) The agency reviews under section 3(a) of this order and
agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.

(b) This order:

(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;

(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and

(iii) is intended only to improve the internal management of the executive branch and is not
intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.


December 14, 2005.