Ammendments to FOIA (US0066)

As the Freedom of Information Act (FOIA) approaches its 50th anniversary in 2016, the Administration will continue to build on its commitment to improve the implementation of FOIA to increase efficiency and effectiveness for Federal government employees charged with carrying out the law and for customers who use the law to access information about government activities.

For details of these commitments, see the report: https://www.opengovpartnership.org/documents/united-states-mid-term-report-2015-2017/

✪  Commitment 14. Modernize Implementation of FOIA

Commitment Text:

Modernize Implementation of the Freedom of Information Act

As the Freedom of Information Act (FOIA) approaches its 50th anniversary in 2016, the Administration will continue to build on its commitment to improve the implementation of FOIA to increase efficiency and effectiveness for Federal government employees charged with carrying out the law and for customers who use the law to access information about government activities. To further this work, the Administration will:

• Expand the Services Offered on FOIA.gov. The Administration will harness technology to improve the services offered on FOIA.gov. Building upon the commitment from the second NAP to launch a consolidated online FOIA service, the Department of Justice will collaborate with agencies, seek public input, review existing technologies such as FOIAonline, and leverage technological tools to expand on the existing FOIA.gov. Additional new features will also be explored, including a guided request tool, online tracking of request status, simplified reporting methods for agencies, improved FOIA contact information, and tools that will enhance the public’s ability to locate already posted information.
• Improve Agency Proactive Disclosures by Posting FOIA-Released Records Online. The Department of Justice will lead a pilot program with seven agencies to test the feasibility of posting FOIA-released records online so that they are available to the public. The pilot will seek to answer important questions including costs associated with such a policy, effect on staff time required to process requests, effect on interactions with government stakeholders, and the justification for exceptions to such a policy, such as for personal privacy. As part of the pilot, the Department of Justice will get input from civil society stakeholders, including requesters and journalists. Upon completion of the pilot, the Justice Department will make the results available to the public.

• Improve Agency FOIA Websites. The Administration will issue guidance and create best practices for agency FOIA web pages, including developing a template for key elements to encourage all agencies to update their FOIA websites to be consistent, informative, and user-friendly.
• Increase Understanding of FOIA. The National Archives will develop tools to teach students about FOIA, drawing upon real-world examples to foster democracy and explain how the public can use FOIA to learn more about the government's actions. The National Archives will seek partnerships with outside educational and library organizations to create and promote standards-compatible curriculum resources.

• Proactively Release Nonprofit Tax Filings. Tax filings for nonprofit organizations contain data that is legally required to be publicly released. Accessing the filings generally requires a request from the public, which can include a FOIA request, and results in more than 40 million pages provided in a non- machine-readable format. The Internal Revenue Service will launch a new process that will remove personally identifiable information before releasing the public information within electronically filed nonprofit tax filings. The electronically filed tax filings will be released as open, machine-readable data, allowing the public to review the finances and other information of more than 340,000 American nonprofit and charitable organizations.

Responsible institutions: Department of Justice, Internal Revenue Service, and National Archives and Records Administration

Supporting institutions: All Federal agencies, civil society organizations

Start Date: Not Specified ....... End Date: Not Specified

Editorial Note: This commitment is a starred commitment because it is measurable, is clearly relevant to OGP values, has a transformative potential impact, and is substantially or completely implemented.

Commitment Aim

In response to concerns about delays, heavy redactions, and overly restrictive criteria in the release of government information, this commitment aimed to modernize the implementation of the Freedom of Information Act (FOIA). More specifically, the government committed to:

• Using technology to expand and improve FOIA.gov services, with the goal of building a consolidated interagency FOIA request system;
• Piloting a program to proactively disclose FOIA-released records;
• Issuing guidance, best practices, and a web template to improve agencies’ FOIA webpages;
• Developing and promote teaching tools related to FOIA; and
• Proactively releasing nonprofit tax filings in an open and machine-readable format.

Status

Midterm: Substantial

The government had made substantial progress on the overall commitment by the midterm, with variation across milestones:

• The Department of Justice (DOJ) was in the process of developing a proposal to build a consolidated Freedom of Information Act (FOIA) request system. [161] However, no concrete progress on an actual consolidated FOIA request system had materialized by the midterm, resulting in limited completion for Milestone 14.1.
• The DOJ’s Office of Information Policy (OIP) piloted a proactive disclosure program for FOIA-requested materials, spanning seven agencies over a six-month period. The OIP published a findings report in June 2016, [162] resulting in the completion of Milestone 14.2.
• In June 2016, the DOJ’s OIP held a roundtable [163] that was open to members of the public to solicit feedback on potential improvements to agencies’ FOIA websites. However, no concrete progress (e.g., issuing of guidance or best practices) took place by the midterm, resulting in limited completion for Milestone 14.3.
• The government made no progress on developing and promoting FOIA-related teaching resources. Milestone 14.4, therefore, had not started at the midterm.
• In June 2016, the Internal Revenue Service disclosed online nonprofit electronic tax filings dating back to 2011. [164] This disclosure included forms 990, 990-EZ, and 990-PF on an Amazon web server. [165] Thus, Milestone 14.5 is complete.

End of term: Substantial

At the end of term, the government’s progress on this commitment remained substantial.

Regarding the expansion of services on FOIA.gov (Milestone 14.1), on 19 April 2017, the OIP announced it was collaborating with the General Services Administration’s 18F team to develop a consolidated portal. The initial work would focus on user research and “discovery of issues necessary to inform future development.” [166] As part of the announcement, OIP invited FOIA requesters and agency personnel to signal their interest in providing feedback on the development process. Those interested were to respond by email no later than 28 April 2017. During a meeting of the National Archives and Records Administration’s (NARA) advisory committee on 20 April 2017, Melanie Pustay, OIP director, confirmed the OIP’s receipt of $1.3 million in funding to support the establishment of the proposed FOIA portal. [167]

On 31 August 2017, several months after the close of the end-of-term reporting period, 18F released a final version of the research plan on its GitHub page. This plan was used to inform the development of the proposed consolidated FOIA platform. [168] The plan notes that 18F “conducted a thorough review of materials already in place on the web and interviews with dozens of people who have filed FOIA requests and those who handle incoming requests.” [169] However, using publicly available information, the IRM researcher was unable to ascertain the scope or content of the feedback received. In September 2017, 18F also released an extensive FOIA Recommendations report describing the findings from its research and discovery process. [170]

On 8 March 2018, the Department of Justice (DOJ) launched the first iteration of the National FOIA Portal on FOIA.gov. [171] The website includes customized forms for each agency, as well as information on what to do before submitting a request, how to submit a request, and what to expect after submitting a request. The website also provides agency-specific resources and maintains previous features, such as agency FOIA data and contact information. While the launch of the new platform fulfills the first milestone of this commitment, the website was not live by the end of the action plan period. [172] Completion for Milestone 4.1, therefore, remained limited by the end of term.

As for the next two milestones, the proactive disclosure of information by agencies (Milestone 14.2) was complete at the midterm. The improvement of agency FOIA webpages (Milestone 14.3), on the other hand, remained pending at the end of term. The Department of Justice issued guidance after the close of the action plan on 30 November 2017 to promote uniformity and ease of access among agency FOIA websites. [173] Among other things, the guidance recommends providing easy access to an agency’s FOIA library, which contains information that has already been released. The guidance also stresses that “agencies should provide instructions for making a request.” [174] In addition, users should be able to easily access key resources such as the FOIA Reference Guide, an agency’s FOIA regulations, and annual reports on the administration of FOIA. This guidance fulfills Milestone 14.3. However, given that the guidance was issued several months after the close of the action plan period, completion for Milestone 14.3 remained limited by the end of term.

As for increasing understanding of FOIA (Milestone 14.4), on 19 August 2016, the NARA Office of Government Information Services (OGIS) issued an online call. The office solicited suggestions of records in the National Archives Catalog that are relevant for understanding FOIA. [175] To do this, the office used HistoryHub, a crowdsourcing platform sponsored by NARA for people to share information and work together. [176] In a blog post from 2 November 2016, the OGIS released an infographic describing the public’s rights under FOIA and the information request process. [177] Per this same source, OGIS intended to integrate the infographic into lesson plans created by the National Archives’ Educator and Public Programs divisions and conducted through the DocsTeach platform, which “offers teachers student activities using materials from the National Archives Catalog.” [178]

The first FOIA-related teaching materials released through DocsTeach describe how FOIA requests can be used to obtain information on the public’s response to the 1965 civil rights marches in Selma, Alabama. [179] At the end of term, these materials (titled “The Impact of Bloody Sunday in Selma”) were available via DocsTeach. [180] They include photographs, letters, and other archived documents, along with a worksheet for students to fill out. The IRM researcher did not locate other teaching materials developed by NARA that have incorporated the FOIA infographic. The IRM researcher was similarly unable to locate a compiled list of suggested FOIA-relevant records from the National Archives.

NARA views this milestone as complete given the launch of the teaching materials and the soliciting of content from the public. [181] However, several aspects of the milestone were not completed. For example, the milestone called for NARA to “develop tools to teach students about FOIA.” While the teaching materials about the civil rights marches in Selma, Alabama include the infographic about FOIA, it is difficult to interpret this single infographic as the new tools envisioned by the milestone. Moreover, NARA refers to the DocsTeach platform as providing a “powerful set of tools” to create interactive online learning activities, noting that its pages have been viewed millions of times since its launch. [182] Nonetheless, DocsTeach was created in 2010, well before the start of the action plan. It therefore cannot be considered to be the new tools envisioned by the milestone either.

In addition, there was no progress evident on “seek[ing] partnerships with outside educational and library organizations to create and promote standards-compatible curriculum resources” as specified in the text of the milestone. While NARA did ask the public for suggestions of records that could be useful for teaching materials, [183] the IRM does not consider this type of crowdsourcing to constitute developing partnerships with outside organizations. In light of these pending areas of work, completion for Milestone 14.4 was limited at the end of term.

Lastly, the disclosure of nonprofit tax filings (Milestone 14.5) was complete at the midterm. Building upon earlier work, by the end of term, the Internal Revenue Service updated its disclosure of electronic nonprofit tax filings to include data through 2017. [184] The milestone remains complete at the end of term.

Did It Open Government?

Access to Information: Outstanding

Civic Participation: Did Not Change

This commitment opened government in outstanding fashion regarding access to information, and it opened government more marginally with respect to civic participation.

Regarding access to information, most of the milestones had either limited progress by the end of term or lacked follow-up (e.g., the pilot program for proactive disclosure). The disclosure of nonprofit tax filings (Milestone 14.5), on the other hand, played a major role in opening government. It resulted in the public release of vast amounts of nonprofit tax data.

Previously, tax filings were only available via image files on DVDs provided upon request and for a fee. Now, the data is available online in machine-readable format. According to the founder and director of Public.Resource.org, “This is a huge release: 1.4 million e-file returns dating back to 2011 available for free . . . The result of this release is going to be transformative.” [185] The Sunlight Foundation added that the release brought the “nonprofit sector into the age of transparency,” noting that “journalists, auditors and congressional investigators will now be able to analyze the data to look for trends and patterns, finding and flagging issues. It’s also going to empower officials and watchdogs to track and reveal influence in the nonprofit world.” [186] The disclosure received strong support from the private sector, other nongovernmental organizations, and the media. [187] In addition, as described above, the Internal Revenue Service (IRS) has continued to release updated data post-midterm, signaling an enduring change in government practice in this area.

There is also evidence of data usage. In August 2017, ProPublica announced that it had updated its Nonprofit Explorer [188] to include tax information for more than 132,000 nonprofit organizations for which data was previously unavailable. This addition directly resulted from the IRS release. [189] The explorer allows users to search nonprofit data by name, type, category, and state of the organization.

Still, there are some limitations. For example, the data covers only nonprofits that file electronically. About one-third of nonprofit organizations use paper forms for tax filings. [190] Data for these organizations remains available only via image files provided upon request and with payment. Secondly, the Amazon site that holds the data does not allow users to easily search within the data for specific information. This stands in contrast to other IRS web tools that enable searching through forms by form type, organization name, employer identification number, or posting date. [191] The IRM researcher has nevertheless assessed that the vast amount of data made available represents an outstanding movement toward more open government.

Regarding civic participation, this commitment did not change government openness. Conducting a proactive disclosure pilot (Milestone 14.2) and improving understanding of the Freedom of Information Act (Milestone 14.4) were relevant to civic participation as written. However, their implementation focused primarily on disclosing more information to the public, rather than on involving members of the public in decision-making processes.

Carried Forward?

At the time of writing, the US government had not yet published its fourth national action plan, so it is unclear if this commitment is carried forward. The government should nevertheless continue to make progress on improving the Freedom of Information Act (FOIA) process. For example, 14,213 FOIA requests were pending at the beginning of FY2016 (the most recent time period for which data is available). In addition, 73,103 requests were submitted over the course of the fiscal year, with 15,462 requests left pending at the end of that year. More requests remained pending at the end of the fiscal year than at the start. [192] The new consolidated FOIA portal should make it easier and more efficient for the public to request information from government, but more work needs to be done.

Regarding this commitment and Milestone 14.5 in particular, Cinthia Schuman Ottinger and Janet Camarena suggested forward-looking actions to build upon the work already undertaken by the government in this area. Ottinger is a deputy director for philanthropy programs at the Aspen Institute's Program on Philanthropy and Social Innovation. Camarena is director of transparency initiatives at the Foundation Center. They suggest that “the IRS [Internal Revenue Service] should encourage the Department of Treasury to eliminate the minimum $10 million asset threshold on mandatory electronic filing, thus increasing the number of nonprofits subject to the mandatory e-filing requirement.” They also suggested Congress pass a bill requiring mandatory electronic filing of form 990. In addition, they advised the government to appoint a 990/AWS technical liaison within the IRS to “handle technical questions” regarding the 990 data. According to Ottinger and Camarena, the government should openly provide related metadata for the 990 forms (including the IRS form 990 XML schema). Lastly, they suggest that the government “create a Regular 990/AWS release schedule and web page” to facilitate stronger communication surrounding the “regularity and timing of the release of electronically-filed 990s to AWS.” [193] These suggestions represent concrete options that the government could explore if this commitment is to be carried forward.

[161] United States of America, Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015-2017, September 2016, 15, https://www.opengovpartnership.org/sites/default/files/USA_NAP3_self-assessment-report_20160916.pdf, consulted 2 October 2017.

[162] Department of Justice, Office of Information Policy, Proactive Disclosure Pilot Assessment, June 2016, https://www.justice.gov/oip/reports/proactive_disclosure_pilot_assessment/download, consulted 3 October 2017. For a list of participating agencies, see page 1.

[163] “Summer Requester Roundtable on Agency FOIA Websites,” Department of Justice, Office of Information Policy, 27 May 2016, https://www.justice.gov/oip/blog/summer-requester-roundtable-agency-foia-websites, consulted 3 October 2017.

[164] “IRS Makes Electronically Filed Form 990 Data Available in New Format,” Internal Revenue Service, 16 June 2016, https://www.irs.gov/newsroom/irs-makes-electronically-filed-form-990-data-available-in-new-format, consulted 3 October 2017.

[165] “IRS 990 Filings on AWS,” Amazon Web Services, https://aws.amazon.com/public-datasets/irs-990/, consulted 3 October 2017.

[166] “OIP Seeks Your Participation in the Development of the National FOIA Portal,” US Department of Justice, Office of Information Policy, 19 April 2017, https://www.justice.gov/oip/blog/oip-seeks-your-participation-development-national-foia-portal, consulted 14 September 2017.

[167] Meredith Somers, “National FOIA Portal Will Reduce Work on Both Sides of Federal Information Requests,” Federal News Radio, 24 April 2017, https://federalnewsradio.com/technology/2017/04/national-foia-portal-will-reduce-work-on-both-sides-of-a-federal-information-request/, consulted 14 September 2017.

[168] “FOIA Platform Research Plan,” 18F, GitHub, https://github.com/18F/foia-recommendations/blob/master/research-plan.md, consulted 14 September 2017.

[169] Ibid.

[170] “FOIA Recommendations,” 18F, GitHub, https://github.com/18F/foia-recommendations/blob/master/recommendations.md, consulted 14 September 2017.

[171] “Department of Justice Announces Launch of National FOIA Portal,” US Department of Justice, Office of Public Affairs, 8 March 2018, https://www.justice.gov/opa/pr/department-justice-announces-launch-national-foia-portal, consulted 2 May 2018.

[172] The action plan period ended on 30 June 2017.

[173] “OIP Guidance: Agency FOIA Websites 2.0,” US Department of Justice, Office of Information Policy, 30 November 2017, https://www.justice.gov/oip/oip-guidance/OIP%20Guidance%3A%20%20Agency%20FOIA%20Websites%202.0, consulted 3 May 2018. 

[174] Ibid.

[175] “Help Us Show the Power of FOIA,” History Hub, 19 August 2016, https://historyhub.history.gov/thread/1347, consulted 13 September 2017.

[176] Kelly Osborn, “What is the History Hub?” History Hub, 3 December 2015, https://historyhub.history.gov/docs/DOC-1012, consulted 9 May 2018.

[177] “Teaching the Next Generation about the Power of FOIA,” National Archives, 2 November 2016, http://bit.ly/2edJRCa, consulted 13 September 2017.

[178] Ibid.

[179] Ibid.

[180] “The Impact of Bloody Sunday in Selma,” DocsTeach, https://www.docsteach.org/activities/printactivity/the-impact-of-bloody-sunday-in-selma, consulted 13 September 2017.

[181] NARA expressed this view in comments submitted to the IRM during the pre-publication review of this report. The IRM received the comments via e-mail on 30 April 2018.

[182] Ibid.

[183] “Teach the Children Well,” The National Archives, The FOIA Ombudsman, 23 August 2017, https://foia.blogs.archives.gov/2017/08/23/teach-the-children-well/, consulted 9 May 2018.

[184] A listing of taxpayers and corresponding information is available at https://s3.amazonaws.com/irs-form-990/index_2017.csv, consulted 13 September 2017.

[185] Carl Malamud, “OpenGov Voices: Opening Nonprofit Tax-Return Data Online Will Be Transformative,” Sunlight Foundation, 16 June 2016, http://bit.ly/2qBzKRj.

[186] Alex Howard, “IRS Opens up Form 990 Data, Ushering Nonprofit Sector into the Age of Transparency,” Sunlight Foundation, 16 June 2016, http://bit.ly/2roeq2w.

[187] Chuck McLean, “IRS Releases Electronically Filed Form 990 Data,” GuideStar blog, 16 June 2016, http://bit.ly/2rCk4LN; Lindsey Parnell and Wendy Campos, “IRS Releases 990 Data in Machine-Readable Format, MossAdams, December 2016, http://bit.ly/2qHSywu; Anna Massoglia, “IRS Releasing Electronically-Filed Nonprofit Tax Data,” OpenSecrets blog, 20 June 2016, http://bit.ly/2pVYPaC; Peter Olsen-Phillips, “IRS Unleashes Flood of Searchable Charity Data,” The Chronicle of Philanthropy, 15 June 2016, http://bit.ly/2rBTVg4; Mark Hrywna, “Nonprofit Info Available in IRS Data Dump,” The Nonprofit Times, 16 June 2016, http://bit.ly/1PwFf6u; and Jason Shueh, “This Week in Civic Tech: IRS Publishes Nonprofit Tax Returns, Sunlight Foundation Releases Open Data Policy Playbook,” Government Technology, 7 July 2016, http://bit.ly/29DMUFc. 

[188] “Nonprofit Explorer,” ProPublica, last updated 15 September 2017, https://projects.propublica.org/nonprofits/.

[189] Alec Glassford, “Nonprofit Explorer Update: Full Text of 1.9 Million Records,” ProPublica, 10 August 2017, http://bit.ly/2HjQQJq.

[190] “IRS Makes Electronically Filed Form 990 Data Available in New Format,” Internal Revenue Service, 16 June 2016, http://bit.ly/2Eua8Kp.

[191] “Search Political Organization Disclosures,” Internal Revenue Service, https://forms.irs.gov/app/pod/basicSearch/search?execution=e1s1&format=.

[192] “Annual FOIA Requests: FY 2016,” FOIA.gov, https://www.foia.gov/glance.html?DOJ, consulted 14 September 2017.

[193] Written comments provided to the IRM researcher, 27 October 2017.