CREW I

citizens for responsibility and ethics in washington

April 6, 2011

By Facsimile (202-772-9265) and First-Class Mail

H. David Kotz Inspector General

U.S. Securities and Exchange Commission 100 F Street, N.E.

Washington, D.C. 20549-2736

Dear Inspector General Kotz:

Citizens for Responsibility and Ethics in Washington (CREW) respectfully requests that you investigate the U.S. Securities and Exchange Commission's (SEC) implementation of the Freedom of Information Act (FOIA). A newly released document reveals a FOIA review process at the SEC that allows for multiple layers of pre-release review that may facilitate political intervention and unreasonably delay disclosure of requested documents.

On September 28, 2010, CREW made a FOIA request of the SEC for documents pertaining to the SEC's implementation of the FOIA. In response, the SEC released 20 pages of records to CREW, but withheld portions of other documents based on FOIA Exemptions 2 and 5. CREW administratively appealed these withholdings, and by letter dated March 30, 2011, the SEC advised CREW it was exercising "discretion" to release the FOIA Processing Guidance for Liaisons.'

The newly unredacted guidance reveals a directive under which SEC FOIA officers are to "forward all responses to requests from the media to the Office of Public Affairs for clearance prior to release." Freedom ofInformation And Privacy At Processing Guidance For Liaisons (hereinafter FOIA Guidance), p. 9, ~ 7C (emphasis added). The FOIA Guidance also authorizes pre-release review by "the program office or division, the Office of Public Affairs, the office of the General Counsel, the Office of Legislative Affairs and the Office ofthe Chairman." Id. at p. 13, ~ 7. As discussed below, these practices increase the opportunity for political interference with the SEC's FOIA processing and likely result in delayed production of responsive documents. Such effects would contravene the FOIA, which requires agencies to respond to FOIA requests within 20 business days.

Last week Charles K. Edwards, acting inspector general for the U.S. Department of Homeland Security (DHS), testified before the House Committee on Oversight and Government

1 See letter from Richard M. Humes to Adam J. Rappaport, March 30,2011 (attached as Exhibit A).

1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org

Inspector General H. David Kotz April 6, 2011

Page Two

Reform. Mr. Edwards described the results of an inspection his office conducted ofDHS's implementation 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 prior to their issuance, increasing the likelihood of political interference in the agency's FOIA processing. DHS attempted to justify this process of providing advance notice of significant releases as "improv[ing] the DHS response to media inquiries that often follow public release of information about DHS activities." Edwards Statement at p. 4. While the inspector general recognized DHS's "legitimate need to be aware of media inquiries," he found "delaying a FOIA release so that officials can prepare for expected inquiries" creates "inefficiencies" and is not "the best public policy," especially where the review leads to delays beyond the 20-business day period the FOIA mandates for responding to FOIA requests. Id.

The SEC appears to have a similar policy of authorizing pre-release review by the senior leadership office at the agency as well as the Offices of Public Affairs, General Counsel, and Legislative Affairs. As at DHS, this process likely creates "inefficiencies" and delays in the eventual 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 requests from the media to the Office of Public Affairs for pre-release clearance. Again, the likely delay this additional level of clearance creates may violate the FOIA. Even more troubling is the possibility that such a pre-release clearance process results in greater withholdings at the recommendation or insistence of an office seeking to avoid the embarrassment that may accompany public disclosure.

Any practice that results in greater withholdings to avoid embarrassment would also conflict with Attorney General Eric Holder's directive that agencies not withhold information to protect public officials from embarrassment, to avoid disclosing agency mistakes, or "because of speculative or abstract fears." Memorandum from the Attorney General to Heads of Executive Departments and Agencies, March 19,2009 (attached as Exhibit C). The attorney general made clear that no agency FOIA program should impose "unnecessary bureaucratic hurdles." Id. His guidance flows from President Obama's mandate, issued on his first full day in office, that all agencies adopt "a presumption in favor of disclosure"that "should be applied to all decisions involving 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 avoid embarrassment from the disclosure of agency mistakes. We know of no legitimate justification

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

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

Inspector General H. David Kotz April 6, 2011

Page Three

for requiring all FOIA requests from the media to be pre-cleared by the SEC's Office of Public Affairs. As the Supreme Court has stated, neither the identity of the requester nor the reasons for the request have any relevance to the agency's processing of the request. Nat 'I Archives & 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 legal imperative, the SEC's FOIA processing impermissibly does just that.

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

Thank you for your attention to this important matter.

Executive Director

Enclosures

cc: Darrell Issa, Chairman

Elijah E. Cummings, Ranking Member

House Oversight and Government Reform Committee Spencer Bachus, Chairman

Barney Frank, Ranking Member

House Financial Services Committee

EXHIBIT A

UNITED STATES

SECURiTiES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549

OFFICE OF THE GENE:RAI_ COUNSE:L

Stop 9612

March 30, 2011

Adam J. Rappaport

Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, 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 records related to the Commission's FOlA operations. On November 29,2010, the FOlA Officer released records responsive to Request items 1,2, 4 and 5. However, the FOrA Officer withheld portions of the FOIA Processing Guidance for Liaisons (item 1) under Exemption 2 and internal staff materials related to the recusal policy (item 2) under Exemption 5. On appeal, you question these assertions and the sufficiency of the search for records responsive to item 3 (restructuring of the FOrA Office or its operations). I have considered your appeal, and as discussed below, it is granted in part.

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

With respect to item 2 of your request, the FOrA Officer released the recusal policy, but withheld internal materials reflecting the drafting and consideration of that policy under Exemption 5,5 U.S.C. 552(b)(5), 17 CFR 200.80(b)(5).1 This exemption protects documents normally privileged in the context of civil discovery, including documents covered by the deliberative 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 which governmental decisions and policies are formulated." Dept. a/the Interior v. Klamath Water Users Protective Assn., 532 U.S. 1,8 (2001). It thus exempts from disclosure documents that are part 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 letters which would not be available by law to a party ... in litigation with the agency."

Adam J. Rappaport March 30, 2011 Page 2

1136,1143-44 (D.C. Cir. 1975). Such documents are protected from public release so that an agency may freely engage in the candid, frank and open interchange of ideas critical to the deliberative 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 staff discussing issues and their preliminary views, opinions and recommendations on that then proposed policy. The very process by which a document evolves through drafts, internal commentary and editing into a final document constitutes a deliberative process that warrants protection. To seek to find distinctions or differences between a draft report and one as published 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 are such 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 further consideration. While the FOIA Officer described some of the activities undertaken to restructure the FOIA Office's processes, there was no indication whether records reflecting additional training opportunities, acquisition of other technology or other aspects of the described activities do or do not exist. However, there is no assurance that records in fact exist. Further, you should be aware that even if responsive records are located, they may be exempt from disclosure, in whole or part, pursuant to various exemptions. You may contact Ms. Celia Winter, FOIA Officer, 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 to Exemption 5 by instituting an action in the United States District Court for the District of Columbia or in the district where you reside or have your principal place of business. See 5 U.S.C.552(a)(4)(B). Voluntary mediation services as a non-exclusive alternative to litigation are also available through the Office of Government Information Services ("OGIS"). Please contact OGIS at ogis@nara.gov, www.archives.gov/ogis, or 1-877-684-6448 for more information. If you have any questions regarding this determination, please contact Celia Jacoby, Senior Counsel, at 202-551-5158.

For the Commission !~Cgatcd authority,

Richard M. Humes

Associate General Counsel

SEC FOJA/PA Liaison Guidance

FREEDOM OF INFORMATION AND PRIVACY ACT PROCESSING GUIDANCE FOR LIAISONS

Revised August 27.2010

Page 1

SEC FOIA/PA Liaison Guidance

FOIA AND PRIVACY ACT PROCESSING GUIDANCE FOR LIAISONS

Table of Contents

1. Overview of Office of Freedom of Information and Privacy Act Operations (FOINP A Office)

2. FOINP A Statutes and Regulations

3. The FOIA Liaison Role

4. FOINP A Reference Materials

5. FOIA/P A Training

6. Overview of FOINPA Request Process

7. FOIA/P A Specialist Responsibilities

8. FOWPA Liaison Responsibilities

9. FOIA Reports and Recordkeeping

10. FOIAXpress Guidance for Liaisons

- REVISION CHRONOLOGY-

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SEC FOJA/PA Liaison Guidance

FOIA AND PRlV ACY ACT PROCESSING GUIDANCE FOR LIAISONS

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

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

The mission of the FOrA/PA Office is to facilitate the Commission's response to FOIA and Privacy Act requests and to manage the processing of requests, the tracking system, and reporting functions as mandated by the statute. All FOTA and PA requests received by the Commission are processed through the Office of FOrA and PA Operations. The Commission has a centralized FOrA & PA process, therefore, no requests are considered "received" by the Commission until received in the FOrA/PA Office. The FOrA/PA Office staff receives and assigns tracking numbers for all incoming requests. FOIA Research Specialists perform initial research on requests to determine which officers) may hold records responsive to the request. The request may then be referred to the FOrA Liaisonvs) for the appropriate offices.

The FOINPA Office also receives all incoming appeals of denials under the

FOrA and Privacy Act. Once a FOIA or PA request has been denied in full or granted in part, or a finding of "no responsive records" is rendered, the requestor is provided appeal rights instructing the submission of an appeal to the Office of the General Counsel (OGC). However, the FOrA/PA Office receives all incoming appeals, assigns a tracking number and forwards the appeal to the OGC for 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), 5 USC 552a, and the Commissions FOrA and PA regulations, 17 CFR 200.80, may be accessed via the FOrA/PA page on the INSIDER.

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SEC FO/A/PA Liaison Guidance

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 review documents that are responsive to a FOJA request. It is your responsibility to do so in a timely manner so that a prompt response can be provided to the 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 that you put forth everyday on behalf of the investor community and the American public. "

See the full message at:

http.//insider.sec.gor-/whats hapPt'ning/_9t the=sec/november 200!)/chairm a17-fol~9-11232009.html

B. Liaison Purpose: Each division and program office director designates

one or more FOIA liaisonts) as contact points for the FOrA/PA Office and to receive and coordinate responses to FOJA requests which are referred to the division or program office. Each division and program office must have at least one staff member designated as the primary FOIA Liaison. It is recommended that each primary liaison have at least one alternate liaison. A FOJA liaison should be of sufficient grade or experience within the office to be knowledgeable about the work and the records of the program entity; the staff member should have the time and ability to accurately search for records or direct other staff members to conduct searches and perform document-by-document reviews, J! necessary; and the liaison should be able to provide a written response to the FOINPA Office responding to the referral in a timely and accurate manner. FOrA liaisons should have knowledge of the law (FOrA and Privacy Act) which is commensurate with the volume and complexity of referrals to the program office.

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

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SEC FO/A/PA Liaison Guidance

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

E. Changes or Additions to FOrA Liaison Designation: Any changes or additions to the FOIA liaisonrs) for an office should be promptly e+rnailed to the FOrA Officer at foiapa@sec.gov. All changes to the liaison list, the FOIAXpress user group and the #FOIA Outlook e-mail accounts are managed by the FOIA/PA Officer. New users may request access to FOIAXpress via the ITSM Self-Service Module under SEC Technology on the OrT INSIDER page @ http://wapps.sec.gov/oitintranet.

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

4. FOIA/P A Reference Materials.

The FOrA/PA page on the INSIDER provides internal guidance and information for 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 FOrA community);

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

• FOrA/PA Training availability

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SEC FO/A/PA Liaison Guidance

5. FOIAIPA Training.

Liaisons may obtain training on the FOrA and Privacy Acts through the following sources 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 email account (foiapa@sec.gov), fax or postal mail. FOrA and PA requests and appeals are received in the FOIA/PA Office 24 hours a day, including weekends. Some requests are dated days or months in advance of receipt, however, the statutory time frame for response does not begin until the request is received in the FOIA/PA Office.

B. Receipt of Requests by Other Offices: Should any other office receive a request for non-public records or information from a member of the public, which is outside the normal course of business (or authority to release information - such as access requests) for the receiving office or entity, the request should immediately be forwarded to the FOIA/PA Office for tracking and coordination of response. The FOIA/PA Office routinely coordinates requests for the release of sensitive information under the FOIA and PA, as well as to Congressional members, with the Offices of

the General Counsel, Public Affairs, and Legislative Affairs. All requests and responses are tracked in the e - FOrA tracking system (FOIAXpress) to ensure accuracy, completeness and consistency of responses from the Commission.

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

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SEC FO/A/PA Liaison Guidance

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 request is assigned to a FOIA Research Specialist within the FOINPA Office whose role is to facilitate processing of the request within 20 working days. If a requester is granted" expedited treatment" the request will be responded to as soon as possible and as an agency priority. The

Research Specialist will review the content of the request and search appropriate Commission databases. including SEC websites. to determine the existence of responsive records. and how best to obtain those records for review and processing under the FOIA. Once the request has been reviewed, the Specialist may contact the requestor for further information or clarification. and/or may need to request additional time for processing. After initial review and research is completed, the FOIA Specialist may forward the request to one or more program officets) or division FOIA liaisonts) for review of the request and to search for and provide responsive records back to the FOIA Research Specialist. If the request has been granted expedited treatment. the liaison office will be notified to prioritize the processing.

The FOrA Office will provide a referral memo to the liaison office and attach a complete copy of the incoming request. The full request is provided to the liaisonts) to preclude any discrimination regarding the requester or stated motives for the request and any confusion on the interpretation of the content of the request.

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SEC FO/A/PA Liaison Guidance

The liaison is directed to provide the FOrA Office a recommendation as to releasability in full or in part of the requested records; and if any records or portions thereof are to be denied. the FOrA exemption should be cited. In addition. the liaison is directed to respond to the request within a specified period of time in order to comply with the statutory response time. including expedited treatment as well as when additional time (over 20 days) has been secured.

E. Receipt of Liaison Response: Once the liaison response is received in the FOIA/PA Office, the response is scanned into the FOIAXpress tracking system and the Specialist will prepare a response to the request reflecting the recommendation of the liaison office and the availability of responsive records. All redacting of records will be done by FOIA Research Specialists 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 with an Enforcement investigation, may also have a submission requesting confidential treatment (CT) in the event that a FOIA request is received for the submitted materials. In the event that records requested under FOIA are marked as "CT requested" and/or bates stamped indicating they are part of a CT submission, the FOIA Office will contact the submitter to request a substantiation of the request for CT. Once substantiation is received by the FOrA Office, the liaison may be asked to review and comment on the basis claimed for confidential treatment. The FOIA Office will notify the submitter of the determination to grant or deny CT for which 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 and PA responses may be provided for review prior to release to the program office or division, the Office of Public Affairs, the Office of the General Counsel, the Office of Legislative Affairs and the Office of the Chairman. Should a division or program office specifically want to review the final response before it is released, the FOIA Specialist should be notified by the liaison by stating the request in the recommendation memo (see paragraph 8.D,)

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SEC FO/A/PA Liaison Guidance

7. FOIA/P A Specialist Responsibilities.

A. Referral Memo to Liaison: The FOrA Research Specialist assigned to process the request will forward an e-mail containing a ForA Referral Memo to the appropriate Iiaisonts) including a copy of the FOrA request. Any additional information in the case can be viewed in FOIAXpress. All FOrA liaisons have been placed in user groups in FOIAXpress; and each designated liaison has access to the cases assigned to the user group. All referrals are done via FOrA e-mail accounts, which contain the names of the liaisons for the division or program office.

B. Reviewing and Redacting Responsive Records: The FOJA Staff has the responsibility to do a document by document review of responsive records provided by agency components which are considered to be responsive to the request and to officially redact and prepare those documents for release. Liaison offices should not redact documents for release. The FOrA Staff will process the records for a final response, applying exemptions and preparing records for release. The FOrA Office will scan responsive documents into the FOIAXpress document management component and will electronically apply a redaction layer to the records. Electronically redacted records can be reviewed by others prior to release, including FOIA management and often the Office of the General Counsel.

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

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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, the liaison will generally be given 5 working days to provide a response to the FOIA Office. Depending on the nature of the request, more time may be allocated. If additional time is needed, the liaison should contact the FOIA Specialist as soon as possible to relay the need for additional time to the requestor. 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 Memo will result in contact by a FOrA Manager and may result in an Aging or Delinquency Report to the division or program office head.

B. Review the request and search for records: Upon receipt of a FOrA referral memo, the liaison should read the request carefully to determine if there are records within the division or program office which may be responsive to 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 partial release of material. to include applicable FOrA exemptions for any withhold recommendations; or

b. Review each document, unless, in the opinion of the FOIA Liaison and document subject matter experts, an entire group of responsive documents (i.e., compliance inspections, open investigations) wil! be withheld pursuant to a FOIA exemption. Provide a recommendation to the FOIA Office as stated in paragraph 8,D.3b.

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

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SEC FO/A/PA Liaison Guidance

C, Clarification of request: If the liaison needs clarification of the request. or feels it is too broad and needs more information or a narrowing of the scope of the request in order to proceed, the liaison should contact the FOIA Specialist as soon as possible in order to continue processing of the request within the response time frame, The options to obtain clarification of the request are as follows:

1. The liaison may contact the requestor. If this is done, the liaison and/or program office entities involved in the contact must provide the FOIA specialist with a summary of the contact with the requestor, including the date and time of the contact and any changes to the substance of the request;

2. The liaison may relay questions/concerns to the FOIA Specialist who will contact requestor; or

3. 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 that the component responded. Liaison responses may be used in defending appeals and litigation in terms of content of response and in terms of adequacy of search and may be used to populate declarations of fact for the court. Therefore, all liaison responses must be accurate and reflect the items indicated in items 1- 6 below:

1. Description of Records: Description of requested records. or portion thereof, for which the program office has been asked to provide responsive records;

2. Description of Search: Description and method used to conduct search for responsive records, to include the volume of records searched if appropriate, the system searched, i.e., CATS, NRSI, ACTS, IRIS, other database, 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;

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b) If the records will not be released to the FOIA/PA Office. provide a statement that records were located but will not be provided to the FOrA/PA Office and stating the volume of records (both paper and electronic) and the reasont s) and exemptions cited for not providing the records to FOrA; or

c) A finding that responsive records exist in the program office, but may be duplicative and should be obtained from the official file which is located in another program office or division & identify that 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 government agency);

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 of the requested records; or

g) Any other finding.

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

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

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SEC FOlA/PA Liaison Guidance

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

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

F. Providing Records to be Redacted. A copy of the responsive records marked to show portions to be deleted under a FOIA exemption.

Liaison offices should not redact documents. Rather, the liaison may indicate the records or portions thereof which are recommended for exemption from release by annotating a copy of the records via 1) bracketing lines or paragraphs with a pale pencil, or 2) by providing a line by line or page by page description of exempted materials. The FOrA Staff has the responsibility to redact documents provided by the program office liaisonIs) for public release. The FOIA Staff will process the records for a final response, applying exemptions and preparing records for release. The ForA Specialist will scan responsive documents into the FOIAXpress document management component and will electronically apply a redaction layer to the records. Electronically redacted records can be reviewed by others prior to release, including FOrA management and often the Office of the General Counsel.

G, Transmit Response to the FOIA Office: Liaison responses (recommendation memos and records) should be e+rnailed to foiapa@sec.gov with a copy of the e-mail to the FOrA Research Specialist who sent the referral. If necessary, the responsive records may be hand carried to Room 2736, or the specialist can be contacted for pick-up. Responsive records should not be placed in inter-office mail.

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SEC FO/A/PA Liaison Guidance

9. FOIA Reports and Recordkeeping.

A. ForA Annual Report to DOl The FOrA requires that agencies produce a report 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.gov

The Annual FOlA Report is prepared during Oct thru Dec of each year. Liaisons may be contacted to provide or clarify information regarding the processing of referrals sent to their office during the fiscal year. The contact would primarily be to provide input in determining the cost of the FOrA processing to the Commission for the fiscal year.

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

C. FOIAIPA Request Recordkeeping. The FOIAXpress system contains the official electronic case file for all FOIA and PA requests. Liaisons are not required to do any official r ecordkeeping regarding FOrA requests. FOrA, Privacy Act and appeal files are considered temporary administrative records and are maintained government-wide in accordance with the National Archives General Records Schedule (GRS) Number 14. The ForA Liaison may provide any information pertinent to the request to the FOrA Office for placement in the electronic case file. The ForA Staff will scan or import any record provided by the liaison into the case file.

Revised August 27,2010

Page 14

SEC FOIA/PA Liaison Guidance

10. FOIAXpress Guidance for Liaisons.

FOIAXpress (rX) is an electronic document management system designed specifically for use in FOIA Offices across the government. The SEC FOIA Office purchased and configured this COTS (commercial off-theshelf) product for use by the Commission in 2004. The system is a tool whereby the FOIA staff can track, coordinate, and respond to FOINPA requests. All requests received in the FOIA Office are scanned into the FX system and an electronic case file is created. All further documents are scanned in and managed electronically. The system tracks and monitors 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 staff does all data entry and scanning in the FX System. Existing users may access the system via the INSIDER under SEC IT Systems by clicking on e-FOIA. New users may request access to FOIAXpress via the ITSM SelfService Module under SEC Technology on the OIT INSIDER page @ http://wapps. sec,gov/oitintranet.

The FOIA/FA webpage on the INSIDER contains detailed information on the use of FOIAXpress (FX) for liaisons.

Revised August 27,2010

Page 15

SEC FO/A/PA Liaison Guidance

- 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 search and review.

Revised August 27,2010

Page 16

EXHIBITB

STATEMENT OF CHARLES K. EDWARDS ACTING INSPECTOR GENERAL

U.S. DEPARTMENT OF HOMELAND SECURITY

BEFORE THE

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

U.S. HOUSE OF REPRESENTATIVES

March 31,2011

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 information under 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 within DHS tasked with, among other things, (1) conducting and supervising audits and investigations relating to DHS' programs and operations; (2) recommending policies for activities designed to promote economy, efficiency, and effectiveness in the administration of those programs and operations; and (3) providing a means for keeping both Congress and the Secretary ofDHS fully and currently informed about the problems and deficiencies that we identify. In keeping with our role as an independent auditor ofDHS programs, we reviewed the DHS FOIA program and issued our recommendations in the March 2011 report titled, "The DHS Privacy Office Implementation 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 thank them for their cooperation in this effort.

In our report, we determined that the Privacy Office helps DHS implement the Act. DHS components have stated that they are appreciative of the assistance and responsiveness of the FOIA staff in the Privacy Office.

We also determined that the Office of the Secretary had unprecedented involvement in the FOIA process since 2009. For several hundred requests deemed significant, components were required to provide all materials intended for release to the Office of the Secretary for review and concurrence. This review process created inefficiencies in implementing the FOIA.

Our report makes six recommendations designed to further the progress that the Privacy Office has already made.

The Act and the 2009 Executive Branch Guidance

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

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

The DHS FOIA Program

DHS has a substantial FOIA caseload. In fiscal year (FY) 2009, it received 103,093 FOIA requests, or 18% of the federal government's 557,825 requests. In FY 2010, the number of requests increased by 26% to 130,098.

Most of the department's components process requests for their own records under the guidance of a FOIA Officer, while DHS Privacy Office staff processes requests for the Privacy Office and eight headquarters' offices. From the Privacy Office, the Chief FOIA Officer, who is also the department's Chief Privacy Officer, supports component efforts, shares information, and monitors the DHS FOIA program. However, the Privacy Office does not control FOIA processing in DHS components, and component FOIA Officers are not supervised by the Chief FOIA Officer.

To process requests, FOIA Officers work with program experts to determine whether responsive information exists, then consider the possible exemptions or exclusions that would require the agency to withhold all or part of the information.

FOIA Officers we interviewed had positive comments about the Privacy Office. They acknowledged the Privacy Office staff to be helpful in clarifying policy, offering guidance, and assisting FOIA processing efforts. FOIA Officers also noted that the Chief FOIA Officer ensures greater communication across the department on FOIA issues, which improves consistency and efficiency in the disclosure of information.

We determined that the department's FOIA Public Liaison, who reports to the ChiefFOIA Officer, has provided important assistance in working with DHS components and the public on FOIA 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 is considered as a method of providing certain information online, even if the material has not been requested. This increases the department's level of transparency, while potentially decreasing

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

Recommendations Related to Administration of the FOIA Program in the Privacy Office

The first three recommendations in our report relate to building on the FOIA progress that the Privacy Office has made. We recommended that DHS develop additional policies on proactive disclosure that could help resolve some issues we learned about, such as, methods to ensure protection of proprietary information when contracts are proactively disclosed. Also recommended, is formalizing the roles and responsibilities of the Public Liaison, who also has a statutory role, in resolving disputes among requesters and agencies. Further, we recommended that 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 DHS components.

The Significant Request Review Process

During our review, we learned that the Office of the Secretary was involved in examining several hundred FOIA requests prior to disclosure. This process was created so the department would be aware of certain FOIA requests that it deemed to be significant. After reviewing information and interviewing DHS FOIA experts, we determined that the significant request review process of DHS (hereafter, referred to as the review process) did not prohibit the eventual release of information. However, the involvement of the Office of the Secretary created some inefficiencies and delayed the eventual release in some cases. Our concern pertains to the scope of, and inefficiency caused by, the review process, and not with the Secretary's role, as head of DHS, in overseeing the FOIA performance of her subordinates.

We received information from the Office of the Secretary and the Chief FOIA Officer about the origin of the review process. Components have been required to notify the Office of the Secretary of certain FOIA cases since 2005. This policy was designed to provide data on FOIA requests in general, including the identity of some requesters. Information gained is included in the department's weekly report to the White House.

In 2006, the policy was revised to provide more guidance to DHS components on the types of FOIA requests that were of interest for weekly reporting purposes. This policy did not require that the Office of the Secretary review the actual FOIA releases. Rather, the process provided information about what was being disclosed. Among other areas, the Office of the Secretary asked for details on FOIA releases that-

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; and

4. Were from the media, Congress, or special interest groups.

This request policy remained in effect after the change of administrations. In 2009, the Office of the Secretary had a heightened interest in several specific FOIA requests. This prompted inquiries to components for more details about the scope of some requests and the individuals who had submitted them. A significant change occurred in September 2009, when components were prohibited from releasing responses to FOIA requests deemed significant until the Office of the Secretary reviewed and concurred on the FOIA responses.

Department officials stated that advance knowledge of significant releases can improve the DHS response 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 persuaded that delaying a FOIA release so that officials can prepare for expected inquiries is the best public policy. Again, the problem is that some of these inquiries unnecessarily delayed the final issuance of some FOIA responses.

The Act calls for agency action on FOIA requests within 20 business days. In certain cases, the review process led to violations of this statutory deadline. However, documents we received demonstrate several cases of releases being delayed because the Office of the Secretary asked basic questions about the FOIA process or for other minor reasons. In many cases, delays under the review process were short -1 to 4 days. These relatively brief delays still caused the temporary withholding of certain documents that a component was prepared to release. Other releases were delayed longer. In one example, the Office of the Secretary received a component's release on October 16, 2009. The review was delayed at least 10 calendar days because of higher-priority business in the reviewing office.

A similar example occurred on November 9, 2009, when the Privacy Office forwarded a FOIA response to the reviewers in the Office of the Secretary. On November 17,2009 the Privacy Office inquired about the status of the request, since no authorization had been received to permit release of the information. Data we received from the Privacy Office included a range of case examples 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 the Secretary to review the significant FOIA requests. Of the 53 cases monitored, which covered releases sent for review from March through July 2010, the Office of the Secretary averaged 15 business 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

completed and the Office of the Secretary concurred, the review process caused the department to violate the 20 business day statutory deadline in many instances.

In a June 20 I 0 case, a component asked for an update more than 3 weeks after the review process 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 a violation of the 20 business day response requirement. In another example, a component received 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 - that an Office of the Secretary staff person submitted minor wording edits to clarify the component's response.

DHS officials expressed that correcting errors in cover letters was necessary. This led to component authors to devote more attention to grammar and quality. They asserted that letters with errors reflected poorly on the department's professionalism and service. We agree that quality control is a legitimate basis for review of FOIA responses. However, we do not support delaying FOIA requests beyond the statutory timeframe to make minor edits - delays which could be viewed as inconsistent with the purpose of the Act and the short timeframes it established.

The department also informed us about the SharePoint process it currently uses. SharePoint is a computer-based system that enables multiples users to view the same information simultaneously. The Privacy Office uses SharePoint to provide multiple users with simultaneous access to significant FOIA responses. We acknowledge that the use of SharePoint is preferable to the abandoned process that delayed dozens of releases for long periods. Under the SharePoint process, the response was held for 3 days and then finalized under a presumed concurrence if there is no response by the Secretary's office. As of March 28, 2011, the response is now held for one day. The department should continually examine how any delay - even of one dayaffects statutory compliance and the efficiency of the DHS disclosure program and whether any such delay is truly necessary.

FOIA Experts Had Some Concerns Related to the Review Process

Under the review process, components would send significant FOIA releases to the Privacy Office. Staff there would forward the information to the Office of the Secretary for review. In our interviews, several FOIA managers stressed that the process was counter to the statute and the 2009 executive branch guidance. One member of the Privacy Office staff stated that the process was "a disservice to the requester" and it had "no added value." FOIA Officers can be concerned with delays even when only one case is affected, because of potential legal liability and the desire to serve requesters promptly.

When the Office of the Secretary began to request copies of all significant FO IA disclosures prior to release, the Chief FOIA Officer expressed concern about this to a senior official in the Office of the Secretary. The ChiefFOIA Officer suggested that the process could create inefficiencies and burden the components. These concerns were not heeded.

The documents we reviewed indicate that the Chief FOIA Officer's reservations have continued after implementation of the review process. In December 2009 emails to staff, the Chief lamented 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 Counsel that staff involved in the review process had suggested inappropriate edits to FOIA release cover letters+-edits that would have altered the information requesters received on appeal rights when FOIA denials were made.

Recommendations Related to the Use of (k)(3) Authority

Recommendations 4,5, and 6 in our report suggest expanded use of the statutory authority held by the Chief FOIA Officer to make recommendations to the Secretary. The Chief FOIA Officer has agency-wide responsibility for efficient and appropriate compliance with the Act. To coincide with this responsibility, 5 U.S.C. § 552(k)(3) establishes that the Chief FOIA Officer shall 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. The Attorney General reiterated this requirement in his March 2009 memo. The Attorney General noted 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 the FOIA process. Such inefficient oversight of significant requests before release led to statutory noncompliance or prolonged delays in some cases. Additionally, various individuals who reviewed significant cases, including senior DHS officials, had little to contribute to the department's disclosure program. As cases went unprocessed for weeks, the ChiefFOIA Officer could have invoked the use of 5 U.S.c. § 552(k)(3) authority. Recommending changes to DHS FOIA 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 at DHS. Components consider that the Chief FOIA Officer deserves credit for the positive communication and open dialogue across the department's FOIA offices. Components also observe 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 should develop a policy to use the (k)(3) authority on a regular basis. Doing so would give the Secretary information on what is needed to improve DHS FOIA operations. This is important because of the legal risks that exist under the statute, and because the President has declared that

FOIA is "the most prominent expression of a profound national commitment to ensuring an open Government."

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 reduce the department's exposure to legal risk. Because the need for recommendations may fluctuate over time, a determination on the frequency of reporting should be made at the discretion of the ChiefFOIA Officer.

Recommendation 4 in our report supports establishment of a policy related to the Chief FO IA Officer's use of the (k)(3) authority. Recommendation 5 recommends that the Secretary issue guidance on the President's vision that openness should prevail under FOIA. Recommendation 6 specifically relates to FOIA staffing and the (k)(3) authority. Additional staff could be necessary to deal with request backlogs or to improve proactive disclosure.

Conclusion

The department has made some important progress in the administration of the FOIA. We recognize the inherent challenges in processing over a hundred thousand requests each year, in a timely manner. Through implementation of our recommendations, the Privacy Office could build on successes and improve overall efficiency in the DHS disclosure program. We look forward to continued cooperation during the corrective action process.

FOR OFFICIAL USE ONLY

Charles K. Edwards

Acting Inspector General, Office of Inspector General

Charles K. Edwards assumed the position of Acting Inspector General of the Department of Homeland 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 leadership positions at several federal agencies, including the Transportation Security Administration, the United 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 the federal and law enforcement community, including awards for excellence and distinguished achievement from individual Offices of Inspector General as well as from the Inspector General community as a whole.

Mr. Edwards is a graduate of Loyola College in Maryland, with a double Masters Degree in Electrical Engineering and Computer Engineering. He also holds a Federal Chief Information Officer Certificate and Master's Certificate in IT Project Management from Carnegie Mellon University. In addition, Mr. Edwards is certified as a Project Management Professional.

FOR OFFICIAL USE ONLY

EXHIBIT C

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March 19, 2009

i'viEMORANDU!v1 FOR HEl1..DS OF EXECUTIVE DEPARTIvffiNTS AND FROM: ~~E ATTORNEY GENERAL

SUBJE~The Freedom ofInformation Act (FOtA.')

The ofInformetionAct (FOrA), 5 U.S.C. § 552, reflects our nation's

fundamental commitment to open government. This memorandum is meant to underscore that commitment and to ensure that it is realized in practice.

A Presurnptlon of Openness

As President Obama instructed his January 21 Memorandum, "The Freedom M

Information 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. 1 strongly encourage agencies to make discretionary disclosures of information. An agency

should not withhold records merely because it can demonstrate, as a technical matter, the

records fall the scope of a FOIA exemption.

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

At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, persona] privacy, privileged records, and law enforcement interests, But as the President stated in his memorandum. "The

Government should not keep information confidential merely because public might be

embarrassed by disclosure, because errors and failures might be revealed, or because of speculative: or abstract fears."

Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescind the Attorney General's FOIA Memorandum of October 12, 20tH, which stated that the Department Justice would defend decisions to withhold records "unless they lack a sound

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

Page 2

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

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

FOIA Is Everyone's Responsibility

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

I would like toemphasize that responsibility tor effective FOIAadministration belongs to all of us-c-it is not merely a task assigned to an agency's FOIA staff \Ve all must do our part to ensure open government In recent reports to the Attorney General, agencies have noted that competing agency priorities and insufficient technological support have hindered their ability to implement fully the FOIA Improvement Plans that they prepared pursuant to Executive Order 13392 of December 14,2005. To improve FOrA performance, agencies must address the key roles played by a broad spectrum of agency personnelwho work with agency FOrA professionals in responding to requests.

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

Equally important. of course, are the FOIA professionals in the agency who directly interact with FOIA requesters and are responsible tor the day-to-day implementation of the Act. I ask that you transmit this memorandum to all such personnel. Those professionals deserve the fun support of the agency's Chief FOIA Officer to ensure that they have the tools they need to respond promptly and efficiently to FOIA requests, FOIA professionals should be mindful of their obligation to work "in a spirit of cooperation" with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the "new era. of open Government" that the President has proclaimed,

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

Page 3

\VorkinlZ Proactively and Promptlv

Open government requires agencies to work proactively and respond to requests promptly. The President's memorandum instructs agencies to "use modem technology to inform citizens what is known and done by their Government." Accordingly, agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs. When information not previously disclosed is requested, agencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmountable consequence of high demand.

In that regard. I would like to remind you of a new requirement that went into effect on December 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 individualized tracking number to requests that will take longer than ten days to process, and provide that tracking number to the requester. In addition, agencies must establish a telephone line or internet service that requesters can use to inquire about the status of their requests using the request's assigned tracking number) including the date on "which the agency received the request and an estimated date on which the agencywill complete action on the request. Further information on these 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; FOIA administration. witb particular focus on the concerns highlighted in this memorandum, and report to the Department of Justiceeach year on the steps that have been taken to improve FOIA operations and facilitate information disclosure at their agencies. The Department of Justice's Office of'Information Policy (OIP) will offer specific guidance on the content and timing of such reports ..

I encourage agencies to take advantage of Department of Justice FOIA resources. OIP will provide training and additional guidance on implementing these guidelines. In addition; agencies should feel free to consult with OIP when making difficult FOIA decisions, Vlith regard to specific FOIA litigation; agencies should consult with the relevant Civil Division, Tax Division, or U.S .. Atrorney's Office lawyer assigned to the 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, its departments, agencies, instrumentalities or entities, its officers, employees, agents, or any other penon.

EXHIBITD

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

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Freedom of Information Act

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Freedom of Information Act

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a

clear presumption: In the face of doubt, openness prevails, The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit

of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to tile principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests frorn the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish SUCll guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Reqister.

This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States. its departments, agencies, or entities, its officers, employees, or agents. or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register,

BARACK OBAMA

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4/5/2011