Shining a Light on FOIA: Partnerships and Transparency

Did you know your personal notes—maybe ones you take during a meeting with partner—are not agency records?  I’ve heard really experienced people swear otherwise, wrongly, so they end up taking poor notes out of fear that anything written could become a public document. 

At the same time, however, there is a legal requirement—the presumption of openness—that requires release of federal agency records even if a technically strict reading of the law might not require it.  How can these both be true?  Let’s find out.

But, first, some context.  Partnerships and community collaboration depend on trust—the currency of the realm—and trust, more often than not, depends on a blend of transparency and confidentiality, openness and discretion.  Thus, there are two federal laws of particular interest:  The Freedom of Information Act (FOIA), protecting transparency and openness; and the Privacy Act (PA), protecting confidentiality and discretion.  We’re going to focus largely on the first, FOIA.

A Little FOIA Sunshine

FOIA is considered among the most important of the federal Sunshine Laws, perhaps the most important, even vital.  In fact, the U.S. Supreme Court described the basic purpose of FOIA this way:

…to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 

NLRB v. Robbins Tire and Rubber Co., 437 US 214, 242 (1978)

To work effectively with partners or collaboratively with groups, individuals, and organizations, you need to know some basics about FOIA. We aren’t going to cover all the details of FOIA because there are entire training programs for that. Instead, I’m going to cover some basics, dispel a myth, offer some tips, and point you to some of the better resources if you want to know more.

The Basics

FOIA was enacted on July 4, 1966, when President Johnson signed the bill into law.  It went into effect one year later and has been amended seven times since then, the latest in 2016 (5 USC 552, with the PA becoming law in 1974 and found at 5 USC 552a).   Here are several basic points about FOIA:

  • FOIA gives any person, regardless of citizenship, the right to request federal agency records. 
  • FOIA requires federal agencies make certain information publicly available without a request
  • Not all federal records have to be made public because there are 9 Exemptions and 3 Exceptions to FOIA, described HERE.   
  • FOIA has a presumption of openness (disclosure), meaning federal agencies should err on the side of releasing information even if an exemption might apply technically
  • Each federal agency is responsible for its own FOIA compliance, meaning there are skilled, experienced professionals in your agency and others who can answer your questions
  • The Department of Justice’s Office of Information Policy (DOJ-OIP) oversees and supports FOIA compliance by all federal agencies, providing government-wide policy and guidance on FOIA

Myth-Busting:  What makes something an agency record?  What makes something “Foiable”?

If anyone can request an agency record, you would expect FOIA to define what is meant by “agency record,” but it doesn’t.  Instead, FOIA defines “record” as “any information that would be an agency record … maintained by an agency in any format … or maintained for an agency by an entity under government contract” (5 USC 552(f)(2)). 

This is basically what might be called a self-referential definition or circular logic, which rarely helps.  As a result, courts have had to clarify the meaning.  Based on what courts have said, there are several ways to test whether material is an agency record, which generally come down to (1) why the material was created, (2) how it was used, and (3) who controls it. 

The Big Take-Away:  Personal notes are NOT an agency record under FOIA if taken during a meeting for personal reference or convenience, made and kept voluntarily, and generally not circulated to others (see FOIA Deeper Dive for more). 

The Reporters Committee for the Freedom of the Press (RCFP) has a very useful, detailed explanation HERE, and more material is available from DOJ-OIP.  So, there you have it.  Your personal notes do not have to be released, even though federal agencies are directed to err on the side of transparency. 

Best FOIA-related Practices for Participation and Community Collaboration

Lists of best practices related to FOIA can be extensive.  These five have served me well in my career:

  1. Proactive Disclosure: Make as much available publicly as possible
  2. Transparency and Presumption of Openness: Post meeting notes to a publicly available webpage dedicated to your project AND tell participants your plans
  3. Be Professional: Write emails knowing that everything you write is part of an agency system-of-record and, therefore, subject to disclosure unless an exemption or exception applies
  4. Look to Learn:  Work with your FOIA Desk Officer early and often
  5. Stay Organized:  Maintain good administrative records

If you want to know more about specific rules and regulations about FOIA and responding to a FOIA request, take a class specifically on FOIA and learn what’s involved in a FOIA Response.

April 27, 2018

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