crew: securities and exchange commission (sec): letter to inspector general h. david kotz: 04/06/11

8/7/2019 CREW: Securities and Exchange Commission (SEC): Letter to Inspector General H. David Kotz: 04/06/11

1/38


2/38

Inspector General H. David KotzApril 6, 2011Page TwoReform. Mr. Edwards described the results of an inspection his office conducted ofDHS'simplementation of the FOIA and its use of a "significant request review process.:" This process,like that of the SEC, allows leadership offices and others to review and weigh in on releases priorto their issuance, increasing the likelihood of political interference in the agency's FOIAprocessing. DHS attempted to justify this process of providing advance notice of significantreleases as "improv[ing] the DHS response to media inquiries that often follow public release ofinformation about DHS activities." Edwards Statement at p. 4. While the inspector generalrecognized DHS's "legitimate need to be aware of media inquiries," he found "delaying a FOIArelease so that officials can prepare for expected inquiries" creates "inefficiencies" and is not "thebest public policy," especially where the review leads to delays beyond the 20-business dayperiod the FOIA mandates for responding to FOIA requests. Id .

The SEC appears to have a similar policy of authorizing pre-release review by the seniorleadership office at the agency as well as the Offices of Public Affairs, General Counsel, andLegislative Affairs. As at DHS, this process likely creates "inefficiencies" and delays in theeventual release of documents that exceed the 20-day processing period mandated by the FOIA.Moreover, the SEC's FOIA Guidance requires FOIA officers to forward all responses to requestsfrom the media to the Office of Public Affairs for pre-release clearance. Again, the likely delaythis additional level of clearance creates may violate the FOIA. Even more troubling is thepossibility that such a pre-release clearance process results in greater withholdings at therecommendation or insistence of an office seeking to avoid the embarrassment that mayaccompany public disclosure.

Any practice that results in greater withholdings to avoid embarrassment would alsoconflict with Attorney General Eric Holder's directive that agencies not withhold information toprotect public officials from embarrassment, to avoid disclosing agency mistakes, or "because ofspeculative or abstract fears." Memorandum from the Attorney General to Heads of ExecutiveDepartments and Agencies, March 19,2009 (attached as Exhibit C). The attorney general madeclear that no agency FOIA program should impose "unnecessary bureaucratic hurdles." Id . Hisguidance flows from President Obama's mandate, issued on his first full day in office, that allagencies adopt "a presumption in favor of disclosure"that "should be applied to all decisionsinvolving FOIA.,,3

The SEC's FOIA Guidance cannot be reconciled with these directives. Without question,it imposes additional delay and appears, at least in part, to be motivated by a desire to avoidembarrassment from the disclosure of agency mistakes. We know of no legitimate justification

2 See Statement of Charles K. Edwards before the Committee on Oversight andGovernment Reform, March 31, 2011 (Edward Statement) (attached as Exhibit B).

3 See Memorandum from the President, January 21,2009 (attached as Exhibit D).


3/38

Inspector General H. David KotzApril 6, 2011Page Threefor requiring all FOIA requests from the media to be pre-cleared by the SEC's Office of PublicAffairs. As the Supreme Court has stated, neither the identity of the requester nor the reasons forthe request have any relevance to the agency's processing of the request. Nat 'IArchives &Records Admin. v. Favish, 541 U.S. 157, 170, 172 (2004); see also us. Dep 't of Justice v.Reporters Comm.for Freedom of the Press, 89 U.S. 749,771 (1989). Notwithstanding this legalimperative, the SEC's FOIA processing impermissibly does just that.

Underlying the president's open government directives is the recognition thattransparency is critical for government accountability. The SEC's FOIA processing policiesundermine these values and may be contrary to law. Accordingly, we respectfully request thatyou open an investigation into the SEC's FOIA processing, paying close attention to whetherthere has been improper political interference and whether political reviews have resulted inunreasonable delays in responding to requests.

Thank you for your attention to this important matter.

Executive DirectorEnclosurescc: Darrell Issa, Chairman

Elijah E. Cummings, Ranking MemberHouse Oversight and Government Reform CommitteeSpencer Bachus, ChairmanBarney Frank, Ranking MemberHouse Financial Services Committee


4/38

EXHIBIT A


5/38

UNITED STATESSECURiTiES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

OFFICE OF THEGENE:RAI_ COUNSE:L

Stop 9612 March 30, 2011

Adam J. RappaportCitizens for Responsibility and

Ethics in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005

Re: Appeal, Freedom ofInformation Act (FOIA) Request No. 2010-10344

Dear Mr. Rappaport:I am responding to your December 23,2010 appeal of the decision by the FOIAJPrivacy

Act Officer, Securities and Exchange Commission, denying in part your request for recordsrelated to the Commission's FOlA operations. On November 29,2010, the FOlA Officerreleased records responsive to Request items 1,2, 4 and 5. However, the FOrA Officer withheldportions of the FOIA Processing Guidance for Liaisons (item 1) under Exemption 2 and internalstaff materials related to the recusal policy (item 2) under Exemption 5. On appeal, you questionthese assertions and the sufficiency of the search for records responsive to item 3 (restructuringof the FOrA Office or its operations). I have considered your appeal, and as discussed below, itis granted in part.

I have determined to exercise my discretion and release the FOrA Processing Guidancefor Liaisons. A copy is enclosed.

With respect to item 2 of your request, the FOrA Officer released the recusal policy, butwithheld internal materials reflecting the drafting and consideration of that policy underExemption 5,5 U.S.C. 552(b)(5), 17 CFR 200.80(b)(5).1 This exemption protects documentsnormally privileged in the context of civil discovery, including documents covered by thedeliberative process privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-51 (1975).The deliberative process privilege covers "deliberations comprising a part of a process by whichgovernmental decisions and policies are formulated." Dept. a/the Interior v. Klamath WaterUsers Protective Assn., 532 U.S. 1,8 (2001). It thus exempts from disclosure documents that arepart of an agency's deliberative process leading to a final decision. Vaughn v. Rosen, 523 F.2d

'Exemption 5 permits an agency to withhold "intra-agency memorandums or letterswhich would not be available by law to a party ... in litigation with the agency."


6/38

Adam J. RappaportMarch 30, 2011Page 21136,1143-44 (D.C. Cir. 1975). Such documents are protected from public release so that anagency may freely engage in the candid, frank and open interchange of ideas critical to thedeliberative process. See, e.g., City a/Virginia Beach v. Dept. of Commerce, 995 F.2d 1247,1252-53 (4th Cir. 1993). I find that the internal staff materials, approximately 52 pages,comprise several drafts of the memorandum on the recusal policy and emails among staffdiscussing issues and their preliminary views, opinions and recommendations on that thenproposed policy. The very process by which a document evolves through drafts, internalcommentary and editing into a final document constitutes a deliberative process that warrantsprotection. To seek to find distinctions or differences between a draft report and one aspublished is an attempt "to probe the editorial and policy judgments of the decisionmakers."National Wildlife Fed'n v. us. Forest Service, 861 F.2d 1114,1122 (9th Cir. 1988). Nor aresuch internal records routinely made available to any party in litigation with the Commission.Release of these documents would likely inhibit the staff's candor in making recommendations,presenting alternative views and discussing the implications of a matter under consideration.Accordingly, these documents were properly withheld under Exemption 5.

Finally, I am remanding item 3 of your request to the FOIA Officer for furtherconsideration. While the FOIA Officer described some of the activities undertaken to restructurethe FOIA Office's processes, there was no indication whether records reflecting additionaltraining opportunities, acquisition of other technology or other aspects of the described activitiesdo or do not exist. However, there is no assurance that records in fact exist. Further, you shouldbe aware that even if responsive records are located, they may be exempt from disclosure, inwhole or part, pursuant to various exemptions. You may contact Ms. Celia Winter, FOIAOfficer, at 202-551-8307, regarding the status of the matter on remand.

You have the right to seek judicial review of this determination with respect toExemption 5 by instituting an action in the United States District Court for the District ofColumbia or in the district where you reside or have your principal place of business. See 5U.S.C.552(a)(4)(B). Voluntary mediation services as a non-exclusive alternative to litigation arealso available through the Office of Government Information Services ("OGIS"). Please contactOGIS at [email protected], www.archives.gov/ogis, or 1-877-684-6448 for more information. Ifyou have any questions regarding this determination, please contact Celia Jacoby, SeniorCounsel, at 202-551-5158.

For the Commission!~Cgatcd authority,

Richard M. HumesAssociate General Counsel
mailto:[email protected],http://www.archives.gov/ogis,http://www.archives.gov/ogis,mailto:[email protected],


7/38

SECFOJA /PA L ia is on Gu idance

FREEDOM OF INFORMATIONAND PRIVACY ACT

PROCESSING GUIDANCE FORLIAISONS

Revised August 27.2010 Page 1


8/38

S EC FO IA /P A Liaison Guidance

FOIA AND PRIVACY ACTPROCESSING GUIDANCE FOR LIAISONS

Table of Contents1. Overview of Office of Freedom of Information and Privacy ActOperations (FOINP A Office)

2. FOINP A Statutes and Regulations3. The FOIA Liaison Role4. FOINP A Reference Materials5. FOIA/PA Training6. Overview of FOINPA Request Process7. FOIA/PA Specialist Responsibilities8. FOWPA Liaison Responsibilities9. FOIA Reports and Recordkeeping10. FOIAXpress Guidance for Liaisons

- REVISION CHRONOLOGY-

Revised August 27, 2010 Page 2


9/38

SECFOJA /PA L ia is on Gu idance

FOIA AND PRlVACY ACTPROCESSING GUIDANCE FOR LIAISONS

The purpose of this memorandum is to provide gwdance to persons designated asFOIALiaisons for conducting records searches and responding to the FOIA/PAOffice when a FOIA request is referred to the program office or division.

1. Overview of Office of Freedom of Information and Privacy ActOperations (FOIAIPA Office).

The mission of the FOrA/PA Office is to facilitate the Commission's response toFOIA and Privacy Act requests and to manage the processing of requests, thetracking system, and reporting functions as mandated by the statute. All FOTAand PA requests received by the Commission are processed through the Officeof FOrA and PA Operations. The Commission has a centralized FOrA & PAprocess, therefore, no requests are considered "received" by the Commissionuntil received in the FOrA/PA Office. The FOrA/PA Office staff receives andassigns tracking numbers for all incoming requests. FOIA Research Specialistsperform initial research on requests to determine which officers) may holdrecords responsive to the request. The request may then be referred to theFOrA Lia isonvs) for the appropriate offices.The FOINPA Office also receives all incoming appeals of denials under theFOrA and Privacy Act. Once a FOIA or PA request has been denied in full orgranted in part, or a finding of "no responsive records" is rendered, therequestor is provided appeal rights instructing the submission of an appeal to theOffice of the General Counsel (OGC). However, the FOrA/PA Office receives allincoming appeals, assigns a tracking number and forwards the appeal to the OGCfor direct response to the requestor.2. FOIA/P A Statutes and Regulations.The Freedom of Information Act (FOrA), 5 USC 552. the Privacy Act (PA), 5USC 552a, and the Commissions FOrA and PA regulations, 17 CFR 200.80, maybe accessed via the FOrA/PA page on the INSIDER.

Revised August 27,2010 Page 3


10/38

SEC F O/A /P A Liaison G uidance

3. The FOIA Liaison Role.A. FOIA Responsibility Commission-wide: The Chairman, in her November

2009 message to all employees, stated:"As an SEC employee, you may be caJJed upon to locate or reviewdocuments that are responsive to a FOJA request. It is your responsibilityto do so in a timely manner so that a prompt response can be provided tothe requestor. The public's interest about our work is at an ell-time high.and this presents an opportunity to illustrate the dedication and effort thatyou put forth everyday on behalf of the investor community and theAmerican public. "See the full message at:http.//insider.sec.gor-/whats hapPt'ning/_9t the=sec/november 200!)/chairma17-fol~9-11232009.html

B. Liaison Purpose: Each division and program office director designatesone or more FOIA liaisonts) as contact points for the FOrA/PA Office andto receive and coordinate responses to FOJA requests which are referredto the division or program office. Each division and program office musthave at least one staff member designated as the primary FOIA Liaison. Itis recommended that each primary liaison have at least one alternateliaison. A FOJA liaison should be of sufficient grade or experience withinthe office to be knowledgeable about the work and the records of theprogram entity; the staff member should have the time and ability toaccurately search for records or direct other staff members to conductsearches and perform document-by-document reviews, J! necessary; andthe liaison should be able to provide a written response to the FOINPAOffice responding to the referral in a timely and accurate manner. FOrAliaisons should have knowledge of the law (FOrA and Privacy Act) which iscommensurate with the volume and complexity of referrals to the programoffice.

C. Liaison Listing and e-mail accounts: A listing of FOrA liaisons ismaintained by the FOJA/PA Officer and posted on the INSIDER web page.The FOrA/FA Officer also maintains e-mail groups for liaisons, listed inMS Outlook by searching "#FOrA". The Office of the General Counsel andthe Division of Corporation Finance maintain their own FOJA mailboxes.



11/38

SECFO /A /PA L ia is on Guid an ce

D. Liaison Use of FOIAXpress: All liaisons are placed in a user group fortheir division or program office in FOIAXpress. and in an e-mail accountfor the user group. Referrals are forwarded to FOrA liaisons via the e-mail account which is embedded in FOIAXpress. See paragraph 10 forinformation on FOIAXpress.

E. Changes or Additions to FOrA Liaison Designation: Any changes oradditions to the FOIA liaisonrs) for an office should be promptly e+rnailedto the FOrA Officer at [email protected]. All changes to the liaison list, theFOIAXpress user group and the #FOIA Outlook e-mail accounts aremanaged by the FOIA/PA Officer. New users may request access toFOIAXpress via the ITSM Self-Service Module under SEC Technology onthe OrT INSIDER page @ http://wapps.sec.gov/oitintranet.

F. Payroll Activity Code: Liaisons should keep track of daily time spent onFOIA processing duties by using activity code 4.3.1 in Quicktime to recordtheir FOrA workload.

4. FOIA/PA Reference Materials.The FOrA/PA page on the INSIDER provides internal guidance and informationfor FOIA liaisons and all staff including links to reference material including:

SEC FOIA and Privacy Act Regulations; The Freedom of Information Act (5 USC 552); The Privacy Act (5 USC 552a); SEC Privacy Act System of Records Notices CSORN's); SEC Confidential Treatment Rule 83 (17 CFR 200.83); SEC Annual FOrA Reports; Department of Justice Guide to the FOIA; Department of Justice FOIA Post (includes on-going litigation updates,

Attorney General Announcements and information for the FOrAcommunity);

Department of Justice listings of all agency FOrA/PA Officers; and FOrA/PA Training availability

mailto:[email protected]://wapps.sec.gov/oitintranet.http://wapps.sec.gov/oitintranet.mailto:[email protected].


12/38

SEC FO /A /PA Liaison G uidance

5. FOIAIPA Training.Liaisons may obtain training on the FOrA and Privacy Acts through the followingsources via links on the rOTA/PA INSIDER page: SEC University sponsors FOTA/PA training annually; Department of Justice (DOJ); ASAP (American Society of Access Professionals) Graduate School (formerly USDA Graduate School),

6. Overview of FOwP A Request Process.A. Agency Receipt of FOIAIPA Requests and Appeals: The FOIA Office

receives all FOIA and Privacy Act requests and subsequent appeals via e-mail account ([email protected]), fax or postal mail. FOrA and PA requests andappeals are received in the FOIA/PA Office 24 hours a day, includingweekends. Some requests are dated days or months in advance of receipt,however, the statutory time frame for response does not begin until therequest is received in the FOIA/PA Office.

B. Receipt of Requests by Other Offices: Should any other office receive arequest for non-public records or information from a member of thepublic, which is outside the normal course of business (or authority torelease information - such as access requests) for the receiving office orentity, the request should immediately be forwarded to the FOIA/PA Officefor tracking and coordination of response. The FOIA/PA Office routinelycoordinates requests for the release of sensitive information under theFOIA and PA, as well as to Congressional members, with the Offices ofthe General Counsel, Public Affairs, and Legislative Affairs. All requestsand responses are tracked in the e - FOrA tracking system (FOIAXpress) toensure accuracy, completeness and consistency of responses from theCommission.

C. Tracking of FOIA and PA Requests: Once received in the FOrA/PA Office,all FOrA requests, PA requests and appeals are date-stamped, scannedinto the FOIAXpress (FX) tracking system, and assigned a request number.The requestor is immediately notified of the receipt of the request andgiven the request tracking number for future correspondence. The FOrArequest number is in the following format as shown in the example:



13/38

SEC FO/A /PA L ia is on Guid an ce

lO-01234-FOIA

o The first 2 digits >fiscal year request received;o The next 5 digits >chronological numbering of requests as received

for the fiscal year;o The suffix which denotes the type of request, as follows:

FOIA - Freedom of Information Act request FOPA- FOIA and Privacy Act request APPS - Appeal GOVT - Government Agency referral to SEC REMD - Remand on appeal CONG- Request from Congressional CHAl - Request directed to Chairman's Office PAAM - Privacy Act amendment FIFO - First- In. First-Out

D. Initial Review, Research and Referral of FOIA requests: Each FOIA requestis assigned to a FOIA Research Specialist within the FOINPA Officewhose role is to facilitate processing of the request within 20 workingdays. If a requester is granted" expedited treatment" the request will beresponded to as soon as possible and as an agency priority. TheResearch Specialist will review the content of the request and searchappropriate Commission databases. including SEC websites. to determinethe existence of responsive records. and how best to obtain those recordsfor review and processing under the FOIA. Once the request has beenreviewed, the Specialist may contact the requestor for further informationor clarification. and/or may need to request additional time for processing.After initial review and research is completed, the FOIA Specialist mayforward the request to one or more program officets) or division FOIAliaisonts) for review of the request and to search for and provideresponsive records back to the FOIA Research Specialist. If the requesthas been granted expedited treatment. the liaison office will be notified toprioritize the processing.The FOrA Office will provide a referral memo to the liaison office andattach a complete copy of the incoming request. The full request isprovided to the liaisonts) to preclude any discrimination regarding therequester or stated motives for the request and any confusion on theinterpretation of the content of the request.



14/38

SEC FO/A/PA Liaison Guidance

The liaison is directed to provide the FOrA Office a recommendation as toreleasability in full or in part of the requested records; and if any recordsor portions thereof are to be denied. the FOrA exemption should be cited.In addition. the liaison is directed to respond to the request within aspecified period of time in order to comply with the statutory responsetime. including expedited treatment as well as when additional time (over20 days) has been secured.

E. Receipt of Liaison Response: Once the liaison response is received in theFOIA/PA Office, the response is scanned into the FOIAXpress trackingsystem and the Specialist will prepare a response to the request reflectingthe recommendation of the liaison office and the availability of responsiverecords. All redacting of records will be done by FOIA ResearchSpecialists using FOIA specific redaction tools in FOIAXpress.

F. Requests for Confidential Treatment under Rule 83 (17 CFR 200.83):Certain records submitted to the Commission, normally in conjunction withan Enforcement investigation, may also have a submission requestingconfidential treatment (CT) in the event that a FOIA request is receivedfor the submitted materials. In the event that records requested underFOIA are marked as "CT requested" and/or bates stamped indicating theyare part of a CT submission, the FOIA Office will contact the submitter torequest a substantiation of the request for CT. Once substantiation isreceived by the FOrA Office, the liaison may be asked to review andcomment on the basis claimed for confidential treatment. The FOIA Officewill notify the submitter of the determination to grant or deny CT forwhich the basis is Exemption 4 of the FOIA (5 USC 552(b)(4).

G. Review of Final or Partial FOIA or PA Responses: Final or partial FOIA andPA responses may be provided for review prior to release to the programoffice or division, the Office of Public Affairs, the Office of the GeneralCounsel, the Office of Legislative Affairs and the Office of the Chairman.Should a division or program office specifically want to review the finalresponse before it is released, the FOIA Specialist should be notified bythe liaison by stating the request in the recommendation memo (seeparagraph 8.D,)



15/38

SE C FO/A /P A L ia ison G uida nce

7. FOIA/PA Specialist Responsibilities.A. Referral Memo to Liaison: The FOrA Research Specialist assigned to

process the request will forward an e-mail containing a ForA ReferralMemo to the appropriate Iiaisonts) including a copy of the FOrA request.Any additional information in the case can be viewed in FOIAXpress. AllFOrA liaisons have been placed in user groups in FOIAXpress; and eachdesignated liaison has access to the cases assigned to the user group. Allreferrals are done via FOrA e-mail accounts, which contain the names ofthe liaisons for the division or program office.

B. Reviewing and Redacting Responsive Records: The FOJAStaff has theresponsibility to do a document by document review of responsive recordsprovided by agency components which are considered to be responsive tothe request and to officially redact and prepare those documents forrelease. Liaison offices should not redact documents for release. TheFOrA Staff will process the records for a final response, applyingexemptions and preparing records for release. The FOrA Office will scanresponsive documents into the FOIAXpress document managementcomponent and will electronically apply a redaction layer to the records.Electronically redacted records can be reviewed by others prior torelease, including FOIA management and often the Office of the GeneralCounsel.

C . Review of Final or Partial Responses: The FOrA Office is responsible forscanning all records associated with the request in the electronic case filein FOIAXpress. All full and partial responses to a request are located inthe FOIAXpress case file, which liaisons can view at any time. Final orpartial FOrA/PA responses may be provided for review prior to release tothe program office or division, the Office of Public Affairs, the Office ofthe General Counsel, the Office of Legislative Affairs and the Office of theChairman. Should a division or program office specifically want to reviewthe final response before it is released, the FOrA Specialist should benotified by the liaison by stating the request in the recommendation memo(see paragraph 8.0.7). The FOrA Officer will forward all responses torequests from the media to the Office of Public Affairs for clearance priorto release.



16/38

SEC FOJA/PA Liaison Guidance

8. FOWPA Liaison Responsibilities.A. Time frame for response: All FOrA Referral Memos require a response

from the Liaison within the time frame specified in the Referral Memo.Regardless of when the request was received in the Commission, theliaison will generally be given 5 working days to provide a response to theFOIA Office. Depending on the nature of the request, more time may beallocated. If additional time is needed, the liaison should contact the FOIASpecialist as soon as possible to relay the need for additional time to therequestor. Should the liaison not respond within the time frame provided,the FOIA Specialist will follow-up with an additional referral memo -which is tracked in FOIAXpress. Non-response to a FOrA Referral Memowill result in contact by a FOrA Manager and may result in an Aging orDelinquency Report to the division or program office head.

B. Review the request and search for records: Upon receipt of a FOrA referralmemo, the liaison should read the request carefully to determine if thereare records within the division or program office which may be responsiveto the request;1. Records located:a. If responsive records are located, obtain the records for review by

the FOrA Office, and draft a recommendation on full or partialrelease of material. to include applicable FOrA exemptions for anywithhold recommendations; or

b. Review each document, unless, in the opinion of the FOIA Liaisonand document subject matter experts, an entire group of responsivedocuments (i.e., compliance inspections, open investigations) wil! bewithheld pursuant to a FOIA exemption. Provide a recommendationto the FOIA Office as stated in paragraph 8,D.3b.

2. Records not located: If no responsive records are located within theliaison's program office, notify the FOrA Specialist that no recordscould be located, and/or what program entity may be able to provideresponsive records, if known. (see paragraph 8.D)



17/38


C, Clarification of request: If the liaison needs clarification of the request. orfeels it is too broad and needs more information or a narrowing of thescope of the request in order to proceed, the liaison should contact theFOIA Specialist as soon as possible in order to continue processing of therequest within the response time frame, The options to obtainclarification of the request are as follows:1. The liaison may contact the requestor. If this is done, the liaisonand/or program office entities involved in the contact must provide theFOIA specialist with a summary of the contact with the requestor,including the date and time of the contact and any changes to thesubstance of the request;

2. The liaison may relay questions/concerns to the FOIA Specialist whowill contact requestor; or3. The liaison may ask the ForA specialist to arrange a conference call or

meeting w/requestor to clarify request.D. Recommendation Memo: A recommendation memo serves as an affidavit

that the FOIA Office requested records of the agency component and thatthe component responded. Liaison responses may be used in defendingappeals and litigation in terms of content of response and in terms ofadequacy of search and may be used to populate declarations of fact forthe court. Therefore, all liaison responses must be accurate and reflectthe items indicated in items 1-6below:1. Description of Records: Description of requested records. or portionthereof, for which the program office has been asked to provideresponsive records;

2. Description of Search: Description and method used to conduct searchfor responsive records, to include the volume of records searched ifappropriate, the system searched, i.e., CATS, NRSI, ACTS, IRIS, otherdatabase, paper, or other form of search tool;

3. For records located:a) Provide the results of search for responsive records - describe

the responsive records located including the volume;

Revised August 27.2010 Page 11


18/38

SEC FOIA/PA Liaison Guidance

b) If the records will not be released to the FOIA/PA Office. providea statement that records were located but will not be provided tothe FOrA/PA Office and stating the volume of records (bothpaper and electronic) and the reasont s) and exemptions cited fornot providing the records to FOrA; or

c) A finding that responsive records exist in the program office, butmay be duplicative and should be obtained from the official filewhich is located in another program office or division & identifythat office;

4. An alternate finding such as:a) There are no responsive records located in the program office;b) The records are lost or destroyed;c) The records do not belong to the Commission (i.e., they

originated with another Federal, State or local governmentagency);

d) The records are publicly available (state where);e) The records are sealed or otherwise restricted by court order;f) The Commission will neither confirm nor deny the existence ofthe requested records; org) Any other finding.

5. Staffing resources used: The namers) of all persons involved in therecords search, SK rating of the individualts) and estimate of the timeeach person spent searching for records. This information will be usedin the Annual FOrA Report and contribute to calculations on the cost ofFOrA processing for the fiscal year.

6. Sign and date: The response should be signed or initialed and dated bythe FOrA liaison;



19/38

SE C F OlA /P A Liaison G uidance

7. Review of final or partial response: Final or partial FOIA/PA responsesmay be provided for review prior to release to the program office ordivision, the Office of Public Affairs, the Office of the General Counsel,the Office of Legislative Affairs and the Office of the Chairman. Shoulda division or program office specifically want to review the finalresponse before it is released, the FOrA Specialist should be notifiedby the liaison in the recommendation memo

E. Providing Releasable Records: The FOrA liaison, or persons designated bythe liaison, should forward to the FOIA/PA Office a copy of the responsiverecords to be released in full; or

F. Providing Records to be Redacted. A copy of the responsive recordsmarked to show portions to be deleted under a FOIA exemption.Liaison offices should not redact documents. Rather, the liaison mayindicate the records or portions thereof which are recommended forexemption from release by annotating a copy of the records via 1)bracketing lines or paragraphs with a pale pencil, or 2) by providing a lineby line or page by page description of exempted materials. The FOrAStaff has the responsibility to redact documents provided by the programoffice liaisonIs) for public release. The FOIA Staff will process therecords for a final response, applying exemptions and preparing recordsfor release. The ForA Specialist will scan responsive documents into theFOIAXpress document management component and will electronicallyapply a redaction layer to the records. Electronically redacted recordscan be reviewed by others prior to release, including FOrA managementand often the Office of the General Counsel.

G, Transmit Response to the FOIA Office: Liaison responses(recommendation memos and records) should be e+rnailed [email protected] with a copy of the e-mail to the FOrA Research Specialistwho sent the referral. If necessary, the responsive records may be handcarried to Room 2736, or the specialist can be contacted for pick-up.Responsive records should not be placed in inter-office mail.

mailto:[email protected]:[email protected]


20/38


9. FOIA Reports and Recordkeeping.A. ForA Annual Report to DOl The FOrA requires that agencies produce areport of all FOrA activities on a fiscal year basis. The Commission's

Annual FOrA Reports are posted on the FOlA page at \vw\v.sec.govThe Annual FOlA Report is prepared during Oct thru Dec of each year.Liaisons may be contacted to provide or clarify information regarding theprocessing of referrals sent to their office during the fiscal year. Thecontact would primarily be to provide input in determining the cost of theFOrA processing to the Commission for the fiscal year.

B. Aging Reports. The FOrA/PA Officer routinely runs reports viaFOIAXpress to determine what requests remain open and aging anddetermine why certain requests remain unresolved. There are manyreasons why a request remains open for a long period of time, includingthe complexity or volume of the request: the need to consult with otheragencies: the confidential treatment substantiation process; and litigation.The lack of response from a liaison office is another common reason whyrequests remain open. When a liaison office does not reply to a ForAreferral after 30 days, this information may be relayed via an "AgingReport" to the program office or division director or office head in orderto resolve any issues relating to the non-response. The FOIA liaison willbe notified prior to escalating the issue.

C. FOIAIPA Request Recordkeeping. The FOIAXpress system contains theofficial electronic case file for all FOIA and PA requests. Liaisons are notrequired to do any official r ecordkeeping regarding FOrA requests. FOrA,Privacy Act and appeal files are considered temporary administrativerecords and are maintained government-wide in accordance with theNational Archives General Records Schedule (GRS) Number 14. The ForALiaison may provide any information pertinent to the request to the FOrAOffice for placement in the electronic case file. The ForA Staff will scanor import any record provided by the liaison into the case file.



21/38

SEC FO IA /P A Liaison G uidance

10. FOIAXpress Guidance for Liaisons.FOIAXpress (rX) is an electronic document management system designedspecifically for use in FOIA Offices across the government. The SECFOIA Office purchased and configured this COTS (commercial off-the-shelf) product for use by the Commission in 2004. The system is a toolwhereby the FOIA staff can track, coordinate, and respond to FOINPArequests. All requests received in the FOIA Office are scanned into theFX system and an electronic case file is created. All further documentsare scanned in and managed electronically. The system tracks andmonitors progress on the complete casework associated with a request.The system does not track the work that goes on in a liaison office.All FOIA liaisons have read-only access to FOIAXpress. The FOIA staffdoes all data entry and scanning in the FX System. Existing users mayaccess the system via the INSIDER under SEC IT Systems by clicking one-FOIA. New users may request access to FOIAXpress via the ITSM Self-Service Module under SEC Technology on the OIT INSIDER page @http://wapps. sec,gov/oitintranet.The FOIA/FA webpage on the INSIDER contains detailed information onthe use of FOIAXpress (FX) for liaisons.



22/38

SE C F O/A /P A L ia ison G uidance

- REVISION CHRONOLOGY -June 30,2010 Initie! Version of Liaison Guidance, as released on July 1,2010;August 27 2010 Revision released to update paragraphs 3.B; 7B; and 8.B to

further define responsibilities for conducting document searchand review.



23/38

EXHIBITB


24/38

STATEMENT OF CHARLES K. EDWARDS

ACTING INSPECTOR GENERALU.S.DEPARTMENT OFHOMELAND SECURITY

BEFORE THE

COMMITTEE ON OVERSIGHT ANDGOVERNMENT REFORM

U.S. HOUSE OF REPRESENTATIVES

March 31,2011


25/38

Good morning, Chairman Issa, Ranking Member Cummings, and Members of the Committee.am Charles K. Edwards, Acting Inspector General for the Department of Homeland Security(DHS). Thank you for inviting me here today to discuss DHS efforts to disclose informationunder the Freedom of Information Act (FOIA, or the Act).In accordance with the Homeland Security Act of 2002 and the Inspector General Act of 1978,DHS Office ofInspector General (DHS-OIG) exists as an independent and objective unit withinDHS tasked with, among other things, (1) conducting and supervising audits and investigationsrelating to DHS' programs and operations; (2) recommending policies for activities designed topromote economy, efficiency, and effectiveness in the administration of those programs andoperations; and (3) providing a means for keeping both Congress and the Secretary ofDHS fullyand currently informed about the problems and deficiencies that we identify. In keeping with ourrole as an independent auditor ofDHS programs, we reviewed the DHS FOIA program andissued our recommendations in the March 2011 report titled, "The DHS Privacy OfficeImplementation of the Freedom ofInformation Act."My testimony will focus on this review and the March 2011 report. The DHS-OIG worked with DHS'Privacy Office and the Office of General Counsel during the course of our review. We thankthem for their cooperation in this effort.In our report, we determined that the Privacy Office helps DHS implement the Act. DHScomponents have stated that they are appreciative of the assistance and responsiveness of theFOIA staff in the Privacy Office.We also determined that the Office of the Secretary had unprecedented involvement in the FOIAprocess since 2009. For several hundred requests deemed significant, components were requiredto provide all materials intended for release to the Office of the Secretary for review andconcurrence. This review process created inefficiencies in implementing the FOIA.Our report makes six recommendations designed to further the progress that the Privacy Officehas already made.

The Act and the 2009 Executive Branch GuidanceThe Act mandates that certain executive branch information be accessible to the public. The Actcreates a presumption of disclosure. Materials must be disclosed unless it falls within one ofnine exemptions or three exclusions, to address instances when the government's need to protectinformation may outweigh the public's right to know. The DHS-OIG, like other DHScomponents, responds to FOIA requests. My testimony and our March 2011 report describesDHS FOIA policies and procedures, which are complied by my office.


26/38

Before discussing DHS FOIA operations, it is important to mention the government disclosureguidance created early in the Obama administration. On January 21,2009, the President directedagencies to make all FOIA decisions under a "presumption in favor of disclosure." When indoubt, the President wrote, "openness prevails." On March 19, 2009, the Attorney General, whoprovides FOIA policy guidance to federal entities, directed that agencies should not withholdrecords simply because an exemption may apply. When records cannot be fully disclosed,agencies must consider whether partial disclosure is possible. He added that "unnecessarybureaucratic hurdles" should not exist in a FOIA program.

The DHS FOIA ProgramDHS has a substantial FOIA caseload. In fiscal year (FY) 2009, it received 103,093 FOIArequests, or 18% of the federal government's 557,825 requests. In FY 2010, the number ofrequests increased by 26% to 130,098.Most of the department's components process requests for their own records under the guidanceof a FOIA Officer, while DHS Privacy Office staff processes requests for the Privacy Office andeight headquarters' offices. From the Privacy Office, the Chief FOIA Officer, who is also thedepartment's Chief Privacy Officer, supports component efforts, shares information, andmonitors the DHS FOIA program. However, the Privacy Office does not control FOIAprocessing in DHS components, and component FOIA Officers are not supervised by the ChiefFOIA Officer.To process requests, FOIA Officers work with program experts to determine whether responsiveinformation exists, then consider the possible exemptions or exclusions that would require theagency to withhold all or part of the information.FOIA Officers we interviewed had positive comments about the Privacy Office. Theyacknowledged the Privacy Office staff to be helpful in clarifying policy, offering guidance, andassisting FOIA processing efforts. FOIA Officers also noted that the Chief FOIA Officerensures greater communication across the department on FOIA issues, which improvesconsistency and efficiency in the disclosure of information.We determined that the department's FOIA Public Liaison, who reports to the ChiefFOIAOfficer, has provided important assistance in working with DHS components and the public onFOIA disclosures. Our interviewees praised the FOIA Public Liaison for approachability,thoroughness, and knowledge of FOIA case laws.Our report also discusses DHS efforts to promote proactive disclosure. Proactive disclosure isconsidered as a method of providing certain information online, even if the material has not beenrequested. This increases the department's level of transparency, while potentially decreasing


27/38

the number ofFOIA requests that the agency receives. The Privacy Officer provided earlyguidance to components in this area, and we identified progress in the posting of variousmaterials, such as the daily schedules of senior officials.

Recommendations Related to Administration of the FOIA Program in the Privacy OfficeThe first three recommendations in our report relate to building on the FOIA progress that thePrivacy Office has made. We recommended that DHS develop additional policies on proactivedisclosure that could help resolve some issues we learned about, such as, methods to ensureprotection of proprietary information when contracts are proactively disclosed. Alsorecommended, is formalizing the roles and responsibilities of the Public Liaison, who also has astatutory role, in resolving disputes among requesters and agencies. Further, we recommendedthat the Privacy Office work with components to implement a regular internal review function.This would formalize the process used in some cases to improve FOIA performance in DHScomponents.

The Significant Request Review ProcessDuring our review, we learned that the Office of the Secretary was involved in examining severalhundred FOIA requests prior to disclosure. This process was created so the department would beaware of certain FOIA requests that it deemed to be significant. After reviewing information andinterviewing DHS FOIA experts, we determined that the significant request review process ofDHS (hereafter, referred to as the review process) did not prohibit the eventual release ofinformation. However, the involvement of the Office of the Secretary created someinefficiencies and delayed the eventual release in some cases. Our concern pertains to the scopeof, and inefficiency caused by, the review process, and not with the Secretary's role, as head ofDHS, in overseeing the FOIA performance of her subordinates.We received information from the Office of the Secretary and the Chief FOIA Officer about theorigin of the review process. Components have been required to notify the Office of theSecretary of certain FOIA cases since 2005. This policy was designed to provide data on FOIArequests in general, including the identity of some requesters. Information gained is included inthe department's weekly report to the White House.In 2006, the policy was revised to provide more guidance to DHS components on the types ofFOIA requests that were of interest for weekly reporting purposes. This policy did not requirethat the Office of the Secretary review the actual FOIA releases. Rather, the process providedinformation about what was being disclosed. Among other areas, the Office of the Secretaryasked for details on FOIA releases that-


28/38

1. Related to a presidential or agency priority;2. Would likely garner media attention;3. Contained documents related to meetings with prominent public or private sector leaders;and4. Were from the media, Congress, or special interest groups.

This request policy remained in effect after the change of administrations. In 2009, the Office ofthe Secretary had a heightened interest in several specific FOIA requests. This promptedinquiries to components for more details about the scope of some requests and the individualswho had submitted them. A significant change occurred in September 2009, when componentswere prohibited from releasing responses to FOIA requests deemed significant until the Office ofthe Secretary reviewed and concurred on the FOIA responses.Department officials stated that advance knowledge of significant releases can improve the DHSresponse to media inquiries that often follow public release of information about DHS activities.While the department has a legitimate need to be aware of media inquiries, we are not persuadedthat delaying a FOIA release so that officials can prepare for expected inquiries is the best publicpolicy. Again, the problem is that some of these inquiries unnecessarily delayed the finalissuance of some FOIA responses.The Act calls for agency action on FOIA requests within 20 business days. In certain cases, thereview process led to violations of this statutory deadline. However, documents we receiveddemonstrate several cases of releases being delayed because the Office of the Secretary askedbasic questions about the FOIA process or for other minor reasons. In many cases, delays underthe review process were short -1 to 4 days. These relatively brief delays still caused thetemporary withholding of certain documents that a component was prepared to release. Otherreleases were delayed longer. In one example, the Office of the Secretary received acomponent's release on October 16, 2009. The review was delayed at least 10 calendar daysbecause of higher-priority business in the reviewing office.A similar example occurred on November 9, 2009, when the Privacy Office forwarded a FOIAresponse to the reviewers in the Office of the Secretary. On November 17,2009 the PrivacyOffice inquired about the status of the request, since no authorization had been received to permitrelease of the information. Data we received from the Privacy Office included a range of caseexamples that were under review at the Office of the Secretary for several weeks.For a short period, one component tracked the amount of time involved for the Office of theSecretary to review the significant FOIA requests. Of the 53 cases monitored, which coveredreleases sent for review from March through July 2010, the Office of the Secretary averaged 15business days to complete the review process, with several cases taking significantly longer.Because the component could not send the information to the requester until this review was


29/38

completed and the Office of the Secretary concurred, the review process caused the departmentto violate the 20 business day statutory deadline in many instances.In a June 20 I0 case, a component asked for an update more than 3 weeks after the reviewprocess began. In reply, a Privacy Office manager said that the release was still under review.The component FOIA expert noted the urgency of the matter, since the review process caused aviolation of the 20 business day response requirement. In another example, a componentreceived a FOIA request on March 1,2010, and completed processing it on March 19,2010.The release could have been made then, which was within the 20 business days requirement.However, it was not until March 31, 2010 - 23 business days after the request was made - thatan Office of the Secretary staff person submitted minor wording edits to clarify the component'sresponse.DHS officials expressed that correcting errors in cover letters was necessary. This led tocomponent authors to devote more attention to grammar and quality. They asserted that letterswith errors reflected poorly on the department's professionalism and service. We agree thatquality control is a legitimate basis for review of FOIA responses. However, we do not supportdelaying FOIA requests beyond the statutory timeframe to make minor edits - delays whichcould be viewed as inconsistent with the purpose of the Act and the short timeframes itestablished.The department also informed us about the SharePoint process it currently uses. SharePoint is acomputer-based system that enables multiples users to view the same informationsimultaneously. The Privacy Office uses SharePoint to provide multiple users with simultaneousaccess to significant FOIA responses. We acknowledge that the use of SharePoint is preferableto the abandoned process that delayed dozens of releases for long periods. Under the SharePointprocess, the response was held for 3 days and then finalized under a presumed concurrence ifthere is no response by the Secretary's office. As of March 28, 2011, the response is now heldfor one day. The department should continually examine how any delay - even of one day-affects statutory compliance and the efficiency of the DHS disclosure program and whether anysuch delay is truly necessary.

FOIA Experts Had Some Concerns Related to the Review ProcessUnder the review process, components would send significant FOIA releases to the PrivacyOffice. Staff there would forward the information to the Office of the Secretary for review. Inour interviews, several FOIA managers stressed that the process was counter to the statute andthe 2009 executive branch guidance. One member of the Privacy Office staff stated that theprocess was "a disservice to the requester" and it had "no added value." FOIA Officers can beconcerned with delays even when only one case is affected, because of potential legal liabilityand the desire to serve requesters promptly.


30/38

When the Office of the Secretary began to request copies of all significant FOIA disclosuresprior to release, the Chief FOIA Officer expressed concern about this to a senior official in theOffice of the Secretary. The ChiefFOIA Officer suggested that the process could createinefficiencies and burden the components. These concerns were not heeded.The documents we reviewed indicate that the Chief FOIA Officer's reservations have continuedafter implementation of the review process. In December 2009 emails to staff, the Chieflamented the level of attention that the Office of the Secretary was giving to significant requests.In the same month, the Chief FOIA Officer informed the DHS Office of the General Counselthat staff involved in the review process had suggested inappropriate edits to FOIA release coverletters+-edits that would have altered the information requesters received on appeal rights whenFOIA denials were made.

Recommendations Related to the Use of (k)(3) AuthorityRecommendations 4,5, and 6 in our report suggest expanded use of the statutory authority heldby the Chief FOIA Officer to make recommendations to the Secretary. The Chief FOIA Officerhas agency-wide responsibility for efficient and appropriate compliance with the Act. Tocoincide with this responsibility, 5 U.S.C. 552(k)(3) establishes that the Chief FOIA Officershall make recommendations to the Secretary for such adjustments to agency practices, policies,personnel, and funding as may be necessary to improve implementation of the Act. TheAttorney General reiterated this requirement in his March 2009 memo. The Attorney Generalnoted that the ChiefFOIA Officer must recommend adjustments to agency practices, personnel,and funding as may be necessary.The information we received demonstrates that the review process created inefficiencies in theFOIA process. Such inefficient oversight of significant requests before release led to statutorynoncompliance or prolonged delays in some cases. Additionally, various individuals whoreviewed significant cases, including senior DHS officials, had little to contribute to thedepartment's disclosure program. As cases went unprocessed for weeks, the ChiefFOIA Officercould have invoked the use of 5 U.S.c. 552(k)(3) authority. Recommending changes to DHSFOIA practices would have informed the Secretary of problems related to the review process.The Chief FOIA Officer and FOIA staff in the Privacy Office has improved the FOIA process atDHS. Components consider that the Chief FOIA Officer deserves credit for the positivecommunication and open dialogue across the department's FOIA offices. Components alsoobserve that the Chief FOIA Officer's staff deserves praise for their roles in improving DHS'FOIA operations. To further improve the DHS ForA program, the Chief FOIA Officer shoulddevelop a policy to use the (k)(3) authority on a regular basis. Doing so would give theSecretary information on what is needed to improve DHS FOIA operations. This is importantbecause of the legal risks that exist under the statute, and because the President has declared that


31/38

FOIA is "the most prominent expression of a profound national commitment to ensuring an openGovernment."Because the Chief FOIA Officer holds a vital position as advisor to the Secretary, routine use of(k)(3) reports would empower the Privacy Office and improve FOIA compliance across DHS.Recommendations under (k)(3) should be used to implement the President's vision and reducethe department's exposure to legal risk. Because the need for recommendations may fluctuateover time, a determination on the frequency of reporting should be made at the discretion of theChiefFOIA Officer.Recommendation 4 in our report supports establishment of a policy related to the Chief FOIAOfficer's use of the (k)(3) authority. Recommendation 5 recommends that the Secretary issueguidance on the President's vision that openness should prevail under FOIA. Recommendation 6specifically relates to FOIA staffing and the (k)(3) authority. Additional staff could be necessaryto deal with request backlogs or to improve proactive disclosure.

ConclusionThe department has made some important progress in the administration of the FOIA. Werecognize the inherent challenges in processing over a hundred thousand requests each year, in atimely manner. Through implementation of our recommendations, the Privacy Office couldbuild on successes and improve overall efficiency in the DHS disclosure program. We lookforward to continued cooperation during the corrective action process.


32/38

FOR OFFICIAL USE ONLY

Charles K. EdwardsActing Inspector General, Office of Inspector General

Charles K. Edwards assumed the position of Acting Inspector General of the Department ofHomeland Security on February 27, 2011. Prior to the Acting Inspector General position, Mr.Edwards served as Deputy Inspector General of the Department of Homeland Security.Mr. Edwards has over 20 years of experience in the federal government and has held leadershippositions at several federal agencies, including the Transportation Security Administration, theUnited States Postal Service's Office of Inspector General, and the United States Postal Service.Furthermore, Mr. Edwards has received numerous awards for his outstanding contributions to thefederal and law enforcement community, including awards for excellence and distinguishedachievement from individual Offices of Inspector General as well as from the Inspector Generalcommunity as a whole.Mr. Edwards is a graduate of Loyola College in Maryland, with a double Masters Degree inElectrical Engineering and Computer Engineering. He also holds a Federal Chief InformationOfficer Certificate and Master's Certificate in IT Project Management from Carnegie MellonUniversity. In addition, Mr. Edwards is certified as a Project Management Professional.

FOR OFFICIAL USE ONLY


33/38

EXHIBIT C


34/38

~it. o f tbe~ttorne!, Q g e n e r a (!lJasfJiurrtnn, iItC. 20530

M arch 19, 2009

i'viEMORANDU!v1 FOR HEl1. .DS OF EXECUTIVE DEPARTIvffiNTS ANDFROM: ~~E ATTORNEY GENERALSUBJE~The Freedom ofInformation Act ( F OtA . ' )

The ofInformetionAct (F OrA ), 5 U .S.C . 552, reflects our nation'sfundamental commitment to open government. This memorandum is meant to underscore thatcommitment and to ensure that it is realized in practice.A Presurnptlon of Openness

As President Obama instructed his January 21 Memorandum, "The Freedom MInformation Act should be administered with a clear presumption: In the face of doubt, openness.prevails." This presumption has two important implications.

First, an agency should not withhold information simply because it may do so legally.1strongly encourage agencies to make discretionary disclosures of information. An agencyshould not withhold records merely because it can demonstrate, as a technical matter, therecords fall the scope of a FOIA exemption.

Second, whenever an agency determines that it cannot make full disclosure of a requestedrecord, it must considerwhether it can make partial disclosure. Agencies should always bemindful that the FOJA requires them to take reasonable steps to segregate and release nonexemptinformation. Even if some parts of a record must be withheld, other parts either may not becovered by a statutory exemption, or may be covered only in a technical sense unrelated to theactual impact disclosure,

At the same time, the disclosure obligation under the FOIA is not absolute. The Actprovides exemptions to protect, for example, national security, persona] privacy, privilegedrecords, and law e nfo rc em e nt in te re sts , But as the President stated in his memorandum. "TheGovernment should not keep informat ion confidential merely because public might beembarrassed by disclosure, because errors and failures might be revealed, or because ofs pe cu la tiv e: o r a bs tr ac t fears."

Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescindth e Attorney Genera l's FO IA M emorandum of October 12, 20tH, which s ta te d that th eDepartment Justice would defend decisions to withhold records "unless they lack a sound


35/38

Memorandum for Heads of Executive Departments and AgenciesSubject: The Freedom of Information Act

Page 2

legal basis or present an unwarranted risk of adverse impact on the ability of other agencies toprotect other important records. 'l

Instead. the Department of Justice will defend a denial of a FOIA request only if (1) theagency reasonably foresees that disclosure would harm an interest protected by one of thestatutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending onthe date of the issuance of this memorandum, this guidance should be taken into account andapplied if practicable when, in the judgment of the Department of Justice lawyers handling thematter and the relevant agency defendants, there is a substantial likelihood that application of theguidance would result in a material disclosure of additional information.FOIA Is Everyone's Responsibility

Application of the proper disclosure standard I S only one part of ensuring transparency,Open government requires not just a presumption of disclosure but also an effective system forresponding to FOIA requests, Each agency must be fully accountable for its administration of theFOIA,

I would like toemphasize that responsibility t o r effective FOIAadministration belongs toall of us-c-it is not merely a task assigned to an agency's FOIA staff \Ve all must do our part toensure open government In recent reports to the Attorney General, agencies have noted thatcompeting agency priorities and insufficient technological support have hindered their ability toimplement fully the FOIA Improvement Plans that they prepared pursuant to Executive Order13392 of December 14,2005. To improve FOrA performance, agencies must address the keyroles played by a broad spectrum of agency personnelwho work with agency FOrA professionalsin responding to requests.

Improving ForA performance requires the active participation of agency Chief FOIAOfficers. Each agency is required by law to designate a senior official at the Assistant Secretarylevel or its equivalent who has direct responsibility for ensuring that the agency efficiently andappropriately complies with the FOIA That official must recommend adjustments to agencypractices, personnel, and funding as may be necessary.

Equally important. o f c ou rs e, are the FOIA professionals in the agency who directlyinteract with FOIA requesters and are responsible t o r the day-to-day implementation of the Act.I ask that you transmit this memorandum to all such personnel. Those professionals deserve thefun support of the agency's Chief FOIA Officer to ensure that they have the tools they need torespond promptly and efficiently to FOIA requests, FOIA professionals should be mindful oftheir obligation to work "in a spirit of cooperation" with FOIA requesters, as President Obamahas directed. Unnecessary bureaucratic hurdles have no place in the "new era. of openGovernment" that the President has proclaimed,


36/38

Memorandum for Heads of Executive Departments and AgenciesSubject: The Freedom of Information Act

Page 3

\VorkinlZ Proactively and PromptlvOpen government requires agencies to work proactively and respond to requests

promptly. The President's memorandum instructs agencies to "use modem technology to informcitizens what is known and done by their Government." Accordingly, agencies should readilyand systematically post information online in advance of any public request. Providing moreinformation online reduces th e need for individualized requests and may help reduce existingbacklogs. When information not previously disclosed is requested, agencies should make it apriority to respond in a timely manner. Timely disclosure of information is an essentialcomponent of transparency. Long delays should not be viewed as an inevitable andinsurmountable consequence of high demand.

In that regard. Iwould like to remind you of a new requirement that went into effect onDecember 31, 2008, pursuant to Section 7 of the OPEN Government Act of 2007, Pub. L.No. 110-175. For all requests filed on or after that date. agencies must assign an individualizedtracking number to requests that will take longer than ten days to process, and provide thattracking number to the requester. In addition, agencies must establish a telephone line or internetservice that requesters can use to inquire about the status of their requests using the request'sassigned tracking number) including th e date on "which the agency received the request and anestimated date on which the agencywill complete action on the request. Further information onthese requirements is available on the Department of Justice's website at\\'\vw. usda) .govlolp/foiapostl2008foiapost30.btm.

Agency ChiefFOIA Officers should review an aspects of their agencies; FOIAadministration. witb particular focus on the concerns highlighted in this memorandum, and reportto the Department of Justiceeach year on the steps that have been taken to improve FOIAoperations and facili tate information disclosure at their agencies. The Department of Justice'sOffice of'Information Policy (OIP) will offer specific guidance on the content and timing of suchreports ..

I encourage agencies to take advantage of Department of Justice FOIA resources. OIPwill provide training and additional guidance on implementing these guidelines. In addition;agencies should feel free to consult with OIP when making difficult FOIA decisions, Vlithregard to specific FOIA litigation; agencies should consult with the relevant Civil Division, TaxDivision, or U.S ..Atrorney's Office lawyer assigned to th e case.

This memorandum is not intended to, and does not, create any right or benefit,substantive or procedural, enforceable at law or equity by any party against the United States, itsdepartments, agencies, instrumentalities or entities, its officers, employees, agents, or any otherpenon.


37/38

EXHIBITD


38/38

Freedom of Information Act I The White House Page 1 of 1

Get Email Upda res Contact Ux

Home Freedom of JnJ(Ji'nWliOH Act Searc!l vVhiieHow:;e .gov

Freedom of Information ActMEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS ANDAGENCIES

SUBJECT: Freedom of Information ActA democracy requi res accountabi li ty, and accoun tabi li ty requi res t ransparency . AsJustice Louis Brandeis wrote, "sunli ght is sai d to be the best of disinfectants." Inou r democracy , the F reedom o f Informat ion Ac t (FOIA) , which encouragesaccount abi lity thr ough transparency, i s the most prominent expr ession of apr ofound national commitment to ensuring an open Government . At the hear t ofthat commitment i s the idea that accountabi li ty i s in the interes t o f the Gove rnmen tand the ci ti zen ry a li ke .The Freedom of I nformation Act should be administered wit h ac lea r presump tion : In the face o f doubt , openness prevai ls, The Governmen tshould not keep informat ion conf iden tial merely because publ ic o ff ic ial s might beembarr assed by disclosure, because errors and fail ures might be reveal ed, orbecause of speculative or abstract f ear s. Nondiscl osure shoul d never be based onan eff ort to protect the per sonal interests of Government offici als at the expense ofthose they are supposed to ser ve. In responding to requests under t he FOIA,executive branch agencies (agencies) should act promptly and i n a spir itof coope rat ion, recognizing tha t such agencies are servan ts o f the publ ic .Al l agencies should adopt a presumption in favor of disclosure, in order t o r enewtheir commitment to tile principles embodied in FOIA, and to usher in a new era ofopen Government. The pr esumption of disclosure should be applied to alldec is ions involving FOIAThe p resumpt ion of d isclosu re also means tha t agencies shou ld take af fi rmat ivest eps t o make inf ormation public. They should not wait for specific r equest s f rornthe public. Al l agencies shoul d use modern technology to inf orm citizens aboutwhat is known and done by their Government. Disclosure should be timely.I direct the Attorney Gener al to issue new guidelines governing the FOIA t o t heheads of execut ive depar tments and agencies, r eaf firming the commi tment toaccountabi li ty and t ransparency, and to publ is h SUC ll guidel ines in the FederalRegister. In doing so, the Att orney Gener al shoul d review FOIA reports producedby the agenci es under Execut ive Order 13392 of December 14, 2005. I also dir ectthe Director of the Office of Management and Budget to update guidance to theagencies to increase and imp rove informat ion dissemina tion to the publ ic ,including through t he use of new t echnologi es, and to publish such guidance inthe Federal Reqister.This memorandum does no t create any r ight o r benef it , substant iv e o r procedural ,enforceable at l aw or in equity by any party against t he Uni ted States. itsdepar tments, agenc ies , or ent it ies , i ts of fi cers, employees, o r agents. or any o the rperson.The Di rector of the Off ice of Management and Budget is hereby authorized anddirected to publish thi s memorandum in the Federal Register,

BARACK OBAMA

En esp,~f,oi i Accessibitity i COPYflgtlt inkimwiinn i Privacy Poi icy !ContactUSA.gov !Subsc ri be to RSf .) Feeds i Apply ror a Job

crew: securities and exchange commission (sec): letter to inspector general h. david kotz: 04/06/11

Documents