Executive Order 13,392 Implementation Guidance
Introduction

On December 14, 2005, the President issued Executive Order 13,392, entitled "Improving Agency Disclosure of Information," which contains several statements of FOIA policy and specific new planning and reporting requirements that affect all federal agencies in their administration of the Act. Among other things, Executive Order 13,392 calls upon all agencies to improve their FOIA operations with both efficiency and customer service in mind. Pursuant to this first-of-its-kind FOIA executive order, the head of each federal agency now has designated a Chief FOIA Officer to oversee all ongoing agency implementation activities under it, as well as the agency's administration of the FOIA overall.

Among the responsibilities of each Chief FOIA Officer is to "conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies" that are set forth in this new executive order. Exec. Order No. 13,392, Sec. 3(a) (Dec. 14, 2005); see also id. at Sec. 3(a)(i)-(v) (specifying certain matters to be reviewed). Under the executive order's timetable, these agency reviews are to provide the basis for the development of "agency-specific plan(s)" for improvement of the administration of the Act, id. at Sec. 3(b)(i) -- plans that must include "concrete milestones, with specific timetables and outcomes to be achieved," by which agency improvements can be measured, id. at Sec. 3(b)(iv) -- and these plans are to be submitted in reports to the Department of Justice and the Office of Management and Budget (and then published on agency Web sites, including through posting on each agency's FOIA Web site) by June 14, 2006. Further, agencies are required to specifically report on the implementation of their plans and the meeting of their goals as part of the annual FOIA reports that they prepare for Fiscal Year 2006 and Fiscal Year 2007, which by statute are due to be completed on February 1, 2007, and February 1, 2008, respectively. See id. at Sec. 3(c)(ii).

To assist federal agencies in this important Presidential initiative, this guidance addresses a wide range of points and considerations that all agencies should keep in mind as they implement Executive Order 13,392. See Exec. Order No. 13,392, Sec. 4(b) (providing for implementation guidance to be issued by Attorney General); see also id. at Sec. 3(b)(i). Part I of this guidance is a compilation of particular areas of FOIA administration that agencies may find appropriate for consideration (in the context of their individual circumstances) as part of their reviews under the executive order and in the development of their improvement plans. (1) Part II consists of a template for all agencies to use in preparing their plans and accompanying reports. This template's use will promote uniformity, clarity, and proper consistency in these plans, thereby allowing ready comparison from one agency's plan to the next by all interested persons. (2) Part III is a supplemental guideline for all agencies to follow in preparing their FY 2006 and FY 2007 annual reports, where they will report their progress in implementing their plans and improving their FOIA activities in compliance with Executive Order 13,392. Lastly, Part IV of this guidance covers a broad range of questions and guidance points, in convenient Q&A form, that pertain to the executive order's implementation.

Part I -- Potential Improvement Areas

The following are potential improvement areas that agencies may consider in the development of their improvement plans. It is not intended to be an all-inclusive list, as each agency should also consider its own individual circumstances in identifying particular areas in which it can improve its administration of the FOIA in accordance with Executive Order 13,392. (3) The areas marked with an asterisk specifically derive from the executive order itself.

*1. Affirmative disclosure under subsection (a)(2). The FOIA as amended in 1996 requires that agencies post on their Web sites frequently requested records, policy statements, staff manuals and instructions to staff, and final agency opinions. See, e.g., FOIA Update, Vol. XIX, No. 1, at 3-4 ("OIP Guidance: Electronic FOIA Amendment Implementation Guidance Outline"). This obligation is unique in that it is a continuing one, which requires constant attention to make sure that an agency does not fall out of statutory compliance. See, e.g., FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01). Agencies should double-check that all is being done that should be done in this regard. See Exec. Order No. 13,392, Sec. 3(a)(iv) (calling for attention to this statutory requirement in particular).

*2. Proactive disclosure of information. When an agency has public information that does not fall into any subsection (a)(2) category but nevertheless could be made readily available to the public, including through posting on the Web, such availability can reduce the need for the making of FOIA requests. See Exec. Order No. 13,392, Sec. 3(b)(ii) (calling for "increased reliance on the dissemination of records that can be made available to the public" without the necessity of a FOIA request). And in some instances, FOIA requests that are made to an agency can most efficiently be handled through effective use of information that an agency already has made publicly available without the requester being aware of it. See, e.g., FOIA Update, Vol. XVI, No. 1, at 1-2. Agencies should take a fresh look at this area in accordance with applicable governmentwide guidance on the subject. (4) See also Exec. Order No. 13,392, Sec. 3(a)(iv).

3. Overall FOIA Web site improvement. Under the 1996 FOIA Amendments, agencies have specific obligations that they have to meet through their FOIA Web sites and also have the opportunity to use those sites for broader FOIA administration purposes as well, which requires user-friendly formats and navigation. See, e.g., FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02); FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"). Especially in that items on Web sites can quickly become out of date, this is a particularly worthwhile area for agency attention. See also OMB Memorandum No. 05-04, "Policies for Federal Agency Public Websites" (Dec. 17, 2004) (addressing federal policies and requirements for effectively managing federal agency public Web sites).

*4. Improvement of agency's FOIA Reference Guide. All agencies are required to maintain a FOIA Reference Guide (or FOIA requester handbook) as an aid to potential FOIA requesters in accordance with the requirements of subsection (g) of the Act as added in the 1996 FOIA Amendments. Agencies should double-check to ensure that these guides remain comprehensive and up to date. Furthermore, Executive Order 13,392 specifically requires that each agency's implementation plan "include activities to increase public awareness of FOIA processing," Exec. Order No. 13,392, Sec. 3(b)(iii), which directly ties to this improvement area in that an effective means for increasing public awareness is through use of an agency's FOIA Reference Guide. See id. at Sec. 2(b)(v); see also id. at Sec. 1(b). (5)

*5. Automated tracking capabilities. Executive Order 13,392 places strong emphasis on the ability of an agency to provide information to FOIA requesters about the status of their requests. See, e.g., id. at Sec. 1(b). Accordingly, agencies should examine their existing capabilities in this regard to identify any need to install new -- or to upgrade existing -- request-tracking systems. (6)

*6. Electronic FOIA -- automated processing. New technologies are now being used by many agencies to scan, redact, and process FOIA-requested records faster, with less use of paper and greater quality control. Here, too, agencies should examine the efficiencies that can be achieved by installing (or, where applicable, upgrading) such systems. See id. at Sec. 2(b)(i) (reiterating strong emphasis on FOIA "efficiency"); see also id. at Sec. 3(a)(iii)(A) (speaking of "use of information technology in responding to FOIA requests").

7. Electronic FOIA -- receiving/responding to requests electronically. Beyond the use of advanced technology for FOIA request tracking and FOIA request processing is the potential for use of the Internet as a means of receiving (and in some cases even responding to) FOIA requests. The Office of Information and Privacy has encouraged agencies to explore their capability to use their FOIA Web sites in this way, see FOIA Update, Vol. XIX, No. 1, at 6, and some agencies now do so. Indeed, it is only a matter of time before this becomes "commonplace," id., so this is an ideal time for agencies to focus on this potential improvement area. (7)

*8. Multi-track processing. Through the 1996 FOIA Amendments, Congress encouraged agencies that have backlogs of pending FOIA requests to establish multi-track processing systems for the processing of their requests, see 5 U.S.C. § 552(a)(6)(D), and the executive order calls upon agencies to examine this as well, see Exec. Order No. 13,392, Sec. 3(a)(iii)(C). In doing so, agencies should consider a full range of questions where applicable in this improvement area: (a) whether a multi-track system should be established; (b) whether the existing number of tracks is sufficient; and (c) whether the existing contours between tracks (i.e., the lines used to delineate one track from the next) are most appropriate in light of the agency's current operations and its aspirations for backlog-related improvement. (8)

*9. Troubleshooting of any existing problems (even minor ones) with existing request tracking. Even agencies that have no need to install or upgrade automated FOIA request-tracking systems still can encounter particular problems with the tracking of requests due to human error or other difficulties. In light of the central role of request tracking in the executive order's implementation, with its strong emphasis on providing FOIA requesters with timely information about the status of their requests, see, e.g., id. at Sec. 2(c)(i)-(ii), agencies could find it useful to focus on any problems that arise in their request-tracking operations and to ensure that they are addressed with generic solutions where applicable.

10. Case-by-case problem identification. Likewise, problems or mistakes can arise in all aspects of an agency's FOIA operations, not just regarding request tracking as discussed above, and it is important to ensure that any lessons learned in particular cases are considered for across-the-board adjustments where necessary. In short, it can be useful for an agency to establish a practice of automatically considering generic solutions that can broadly be applied to their FOIA operations whenever individual problems of any type are identified and solved.

*11. Expedited processing. Both Congress and the executive order speak to the matter of expediting the processing of certain FOIA requests upon request. See 5 U.S.C. § 552(a)(6)(E); Exec. Order No. 13,392, Sec. 3(a)(iii)(B). Uniquely under the FOIA, decisions on whether to expedite the handling of a FOIA request must be made within ten calendar days. See FOIA Update, Vol. XVII, No. 4, at 10 (citing 5 U.S.C. § 552(a)(6)(E)(ii)(I)). Accordingly, agencies should review their practices to ensure that they are fully in compliance with the law and sound policy in this area as well.

*12. Backlog reduction/elimination. Agency backlogs of pending requests have long been a concern under the FOIA, and Executive Order 13,392 reflects that. Not all agencies have FOIA request backlogs, but for those that do the executive order calls upon them to "identify ways to eliminate or reduce" them. Exec. Order No. 13,392, Sec. 3(a)(v); see also id. at Sec. 3(b)(ii). This should be a major underpinning of the implementation plans of all such agencies. See also Part IV, Q&A # 13, below.

*13. Politeness/courtesy. This improvement area is no less integral to the overall "customer-service" policy of the executive order, see Exec. Order No. 13,392, Sec. 1(b), and by contrast with other areas it is one that does not involve any significant consumption of agency resources. Simply put, as often is said, "politeness costs nothing." So there is no reason why any agency should not pay considerable attention to this area. (9) See also Part IV, Q&A # 8, below.

*14. Forms of communication with requesters. A major theme of Executive Order 13,392 is that agencies should do a better overall job of communicating with FOIA requesters about their requests. See, e.g., Exec. Order No. 13,392, Sec. 1(b). This means paying attention to such things as the clarity of all agency/requester communications. Unless an agency is entirely confident that its standard forms of communication leave no room for improvement in this regard, it should consider making such improvements where appropriate. See also id. at Sec. 2(c)(iii).

15. Acknowledgment letters. It is particularly important for agencies to do the best that they can to make FOIA requesters aware of the status of their pending requests, both responsively (through their FOIA Requester Service Centers) and proactively as well. Acknowledgment letters are a vital tool that can be used by agencies toward that end, if they promptly make clear to requesters what they can expect regarding their requests, so this is a significant area for agencies to review with an eye toward improvement.

16. System of handling referrals. Agencies routinely engage in the process of making referrals to other agencies of FOIA-requested records that originated with those other agencies. See FOIA Post, "FOIA Counselor Q&A" (posted 1/24/06) (noting the distinction between "referring" records and "forwarding" a FOIA request); FOIA Update, Vol. XII, No. 3, at 3-4 ("OIP Guidance: Referral and Consultation Procedures"). This is an area in which there sometimes is room for improvement in agency practices, with respect to the processes both of making record referrals and responding to them, so it warrants careful consideration.

17. System of handling consultations. In other circumstances, where agencies locate responsive records that did not themselves originate with another agency but which contain information that did (or in which another agency has a strong interest), they engage in consultations with those other agencies before responding to the request. See id. at 4. Such consultations have been known to consume large amounts of time and to contribute to agency backlogs of pending requests, making this an area deserving of considerable remedial attention. Among other things, agencies encountering such difficulties should consider establishing new protocols and practices designed to achieve timely attention to this by all agencies involved. (10)

18. Process by which necessary cooperation is obtained from agency "program personnel." All agency FOIA personnel know that they have to depend upon the cooperation of agency "program personnel" -- i.e., those who both maintain requested records and often also maintain the particular subject-matter expertise necessary to determine a record's sensitivity -- in order both to locate responsive records and to process them as efficiently as possible. Such agency personnel, who by definition have primary missions that are not FOIA-related, in many cases could be encouraged to place greater priority on providing necessary FOIA assistance. This is an area in which there can be much room for improvement, through such steps as agency directives, protocols for escalating demands, intra-agency meetings, etc. See, e.g., footnote 10 above.

19. Improvement ideas from field office personnel (where applicable). Not all agencies have field offices or installations, but most that do have them handle their FOIA operations on at least a partly decentralized basis. Where this is the case, an agency should be sure not to overlook the contributions that can be made by knowledgeable field office FOIA personnel, both as to ideas for agencywide improvements that might not occur to headquarters personnel as well as regarding particular improvements that can be made at field offices (either individually or as a group) themselves. See also Part IV, Q&A # 5, below.

20. Additional training needed (formal and/or on-the-job). Because of the historically heavy turnover in FOIA personnel at federal agencies, FOIA training has long been a major element of governmentwide FOIA administration. The issuance of Executive Order 13,392 is a good occasion for agencies to consider whether they are taking full advantage of the governmentwide FOIA training that is available, see, e.g., FOIA Post, "FOIA Training Opportunities, Fiscal Year 2006" (posted 7/21/05; supplemented 9/20/05 and 1/26/06), conducting their own training sessions with sufficient regularity, see, e.g., FOIA Post, "FOIA Conferences Held by Growing Numbers of Agencies" (posted 2/22/05), and also focusing on whether they are using on-the-job training with sufficient effectiveness.

21. In-house training on "safeguarding label"/FOIA exemption distinctions. Across the federal government, agencies now use a variety of labels to designate certain types of unclassified records as those requiring special safeguarding or document controls for one reason or another. As has been observed, these "safeguarding labels" -- such as "For Official Use Only" ("FOUO") or "Sensitive But Unclassified" ("SBU"), to name just two -- generally "describe broad types of potentially sensitive information that might not even fall within any of the FOIA exemptions." Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 191 & n.218; see also id. at 225-26 & n.157. Increasingly, though, the use of such administrative labels might be seen as indistinct from FOIA-processing decisions at some agencies, so their attention to this area could be beneficial.

22. Increased staffing (where applicable). This potential improvement area requires little elaboration beyond the observation that agencies always should consider the propriety of reallocation of staffing resources where warranted by current circumstances. In this case, the existence of the executive order itself, with its new FOIA policies and FOIA-related obligations, provides a basis for such consideration. See Exec. Order No. 13,392, Sec. 2(b)(iii) (speaking of recommended "adjustments to agency practices, policies, personnel, and funding as may be necessary"); see also id. at Sec. 3(a)(i) (speaking of "expenditure of resources").

23. Changes to personnel practices (job series, grades, etc.) needed. In addition to examining staffing levels, agencies should look at the grade levels of their employees who are devoted to FOIA administration. In some cases, upgrades in this regard might be readily within an agency's power to implement. See also Part IV, Q&A # 9, below. In other cases, such steps might require consultation with or approval by the Office of Personnel Management. In either case, such improvements should be carefully considered. See also Part IV, Q&A # 4, below.

24. Contracting out/hiring of contract employees. An increasing number of agencies have made good use of either contracting out certain limited FOIA-related activities or hiring contract employees for FOIA work, or both. See FOIA Post, "The Use of Contractors in FOIA Administration" (posted 9/30/04); see also FOIA Post, "FOIA Counselor Q&A" (posted 1/24/06) (discussing the interplay of the FOIA and OMB Circular A-76 regarding "contracting out" and "competitive sourcing" information). Agencies should consider contracting out as one option for improvement in this area that "has become a large part of the FOIA landscape and is likely to remain so for some time to come." Id.

25. Purchase of new equipment needed. Beyond the possible installation or upgrade of automated request-tracking or request-processing equipment, agencies should not overlook the possible need for more basic office equipment in support of their FOIA operations. Sometimes, even a relatively small capital investment (in a more modern photocopy machine, for example) can yield significant improvements in FOIA productivity and efficiency.

26. Centralization/decentralization. Generally speaking, federal agencies handle their FOIA responsibilities on either a centralized basis (more common with small- or medium-sized agencies) or a decentralized basis (more common with larger agencies). At some agencies, it is a close call as to which approach is best. This is a good time for each agency to review its overall FOIA-administration structure in order to ensure that it is the most effective one possible.

*27. Recycling of improvement information gleaned from FOIA Requester Service Centers. Lastly, all agencies should be sure to take full advantage of the information that they now will be gaining -- in what can be regarded as "customer feedback" form -- through the new FOIA Requester Service Centers (and FOIA Public Liaisons as well) that they establish. Agencies should consider setting up a formal process for such requester-provided information to be tapped for the making of generic improvements in order to be well positioned to achieve the type of improvements that the executive order calls for...

Conclusion

In sum, all federal agencies should pay careful attention to the requirements of Executive Order 13,392, as further explicated in this guidance, as they continue to conduct their FOIA reviews and prepare their improvement plans for submission by no later than June 14. (25) Both the Justice Department and OMB encourage agencies to pose any additional questions that might arise during this critical implementation time period, as well as beyond, as full and proper compliance with this executive order by all federal agencies is essential. Toward this end, agency FOIA personnel should not hesitate to contact the Justice Department's Office of Information and Privacy, at (202) 514-FOIA, to raise any related question or to discuss any aspect of Executive Order 13,392's implementation at any time. (26)

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