Today I finally received our long-awaited response from the Department of Commerce. Unfortunately, though, the records came directly to us through the US mail — not through FOIAonline. And, according to our FOIAonline account, the request is still “On Assignment.”
It is notable that of the three requests we made to agencies using FOIAonline where we have received responses, the system has not worked as expected once — MSPB mailed us the report and then made the records available online a few weeks later and the EPA…well, the EPA emailed us the responsive records a couple of times before finally making the record available online. We have also had a hard time finding any of the documents that have been released to us using FOIAonline’s search function. Clearly, agencies need to invest more into training employees on how to use the system.
When the FOIAonline system works, there are clear benefits for requesters. A few weeks ago we used the system to make a new request to NARA — since our information was already stored in our account, all we had to do was describe the records we were requesting and click a few buttons. We were immediately given a tracking number for the request and a few weeks later we got an email letting us know that the records were available through our account. We logged on and downloaded the records without a problem. We also did a quick search to see if the records would be easy for anyone else interested in a similar topic to find: they were (if you have any interest in knowing what NARA’s human resources office did to implement the new FOIA job series, 0306, the records are awaiting you).
Speaking of making records available, we scanned in a copy of Commerce’s response and report. Hopefully, Commerce updates our account with better copies soon.
Today a giant envelope from the State Department appeared on my desk. Inside the envelope was the response to my FOIA request for the agency’s report to the Archivist on records management.
First, I must say that I’m glad it only took about 5 and a half months to get the requested documents; my response came in under the average 155 working days, on average, it takes State to process a simple request. Other things about this particular response can easily be classified as “the good, the bad, and the downright mystifying.”
The requested report was released in full. State joins the ever-growing list of agencies that have declined to protect the report using exemption b5 (interagency documents). State also granted my fee waiver request.
Did I mention that the report was mailed to me in a large envelope? As I do on all requests, I had asked for it to be sent to me electronically. State may very well have good reasons that it was not able to email me the records, but I would not know because they do not even acknowledge my request for an electronic version in their response. Adding insult to the injury is that State spent more than $16 dollars using registered mail to send me the copy.
When I first opened the package I assumed it must be a response to some other request I have open. Why would a report on records management be marked (repeatedly) as “Sensitive?”
Sensitive But Unclassified is one of many markings currently in use throughout the federal government that has no basis in statute or government-wide policy. These markings, which also include the ubiquitous “For Official Use Only,” are commonly called CUI or “Controlled Unclassified Information.” Each agency has its own rules for what is stamped, and how that document should be handled. The National Archives and Records Administration (NARA), in response to an Executive Order by President Obama, is currently going through a process to streamline the markings. Once it is fully-implemented, stamps like the “Sensitive But Unclassified” one should be a thing of the past.
Yesterday I found a very thick envelope from the Department of Justice (DOJ) waiting for me on my desk.
Inside the envelope were 4 documents: a letter letting me know that DOJ was releasing the report to me in full (more on that in a second); the report; and two attachments referred to by the report. You can download all of the documents here:
DOJ Response Letter
DOJ Records Mgmt Report
DOJ RM Report – Attachment A
DOJ RM Report Attachment B
First, I have to praise DOJ for the thoroughness of its response: proactively releasing attachments is a great way to help a requester avoid having to file more requests.
Honestly, however, this approach would have been even more appreciated is DOJ had sent me versions electronically — as I requested. About half of the agencies I sent requests to have corresponded with me using standard mail. Answering electronic requests with paper responses is extremely frustrating for users — and extremely inefficient. For one thing, using the US Postal service is slower than email and costs more money. According to the postmark, DOJ put the mail report in the mail 5 days ago, and it cost DOJ $2.12 cents to mail me the envelope. If they had emailed me the report, delivery would have been virtually instantaneous and free. Another frustration for users with paper responses is that it puts a greater burden on us to make the documents more usable and widely available. Furthermore, graphics that may be perfectly lovely in their digital format can become almost illegible when they are printed out (see DOJ RM Report Attachment B for an example of this).
Moving onto the substance of DOJ’s response letter, it is interesting that DOJ makes a point of pointing out that the report “contains information that could be considered exempt under FOIA exemption 5” and that the agency has made a “discretionary decision to release the report in full.” We decided to request copies of a report from agencies to the National Archives in part because we knew that the information could be covered under exemption 5 (intergovernmental records). Under the guidelines set by President Obama and Attorney General Holder, agencies are encouraged to make a discretionary release of such information unless there is a foreseeable harm in doing so. We know at least one other agency considered using exemption 5 before deciding to release the report in full. Thus far, however, DOJ’s response letter is the only one that contains this language.
As some of you may remember, in mid-December I called the DHS FOIA Customer Service Center to ask about my request because I had yet to receive a tracking number, or even an acknowledgement of my request. At that time I was told that there was no record of my request in the system, and was asked to please re-submit my request via email. Today I decided to check back in on my request with the Department of Homeland Security because I still had not gotten a tracking number, or any acknowledgement.
The good news? The FOIA Customer Service Center found my original request – according to their records, an acknowledgement letter had been sent out on October 16 – only a few days after I emailed my original request. It seems that letter must have been lost in the mail, however, since I have never seen it (and, by the way, I still don’t see any logic behind agencies answer FOIA requests submitted via email and explicitly requesting electronic copies of records in an electronic format with a paper letter sent via US mail). I even managed to get the tracking number assigned to the original request: 2013-HQFO-0091-JH.
The bad news? I still have no clue when I might actually receive a response to me request. I also have no idea why they could not find the record the first time I called the service center, or what happened to the second request. I’m also preparing myself to have to scan in any (hopefully) released documents before I can make them available for anyone else who might be interested in the text.
UPDATE: DHS finally emailed me a copy of the acknowledgement letter to my original request made on October 4 (still no word on the second request I submitted when DHS told me it had no record of my request in December…). I’m very glad to know DHS can email back requesters, but am all the more perplexed as to why they put the letter in the mail in the first place.
Annoyingly, the acknowledgement letter says that DHS will take additional time to process the request because my “request seeks numerous documents that will necessitate a thorough and wide-ranging search.” The request clearly seeks only a single document: we made such a significantly narrow request so that our project would not create an undue burden on FOIA offices.
We found similar language regarding “numerous documents” in the acknowledgement letter sent to us by DOD – when we called the FOIA processor to make sure there was not a misunderstanding about what we are seeking, he told us it was standard language they include in all letters. Using such language is disingenuous, at best, and – as our commenter Kel McClanahan has pointed out – not allowed under the FOIA.
Bennett Amy Ack ltr 1
Almost a full month after learning that our request to the Department of Justice had been referred to another division within the Department, we finally received a letter acknowledging that the Justice Management Division (JMD) had received our request and has assigned it a new tracking number (2582614). The letter, which can be downloaded below, was sent to us via US mail, and does not reference our request that all records be released electronically — hopefully the printed-out letter is not a sign of things to come.
DOJ – JMD tracking #
Our 11/6 mail delivery included a thick envelope from the EEOC that held a letter letting us know that the report we requested was being released in its entirety and a copy of the report. Frustratingly, the letter does not acknowledge that we specifically asked for the report to be released electronically, or explain why it was not released electronically. We scanned in the letter and the report to make them available below.
EEOC Released Report
Today’s mail delivery included a letter from the VA letting us know that they had found 9 pages responsive to our request and the pages were being released in their entirety. While we appreciate the information, we find it a little strange that the letter is stamped (Nov 2) the day after the VA actually emailed us the report (Nov 1).