DOJ Stresses Importance of FOIA and Open Government through Performance Standards for Employees

In the Department of Justice’s 2009 FOIA Guidelines, the Attorney General noted that “[o]pen government requires not just a presumption of disclosure but also an effective system for responding to FOIA requests.”  The Guidelines stress that “[e]ach agency must be fully accountable for its administration of the FOIA” and that “effective FOIA administration belongs to all of us.” The Open Government Directive issued by OMB in December of 2009 provides that “[t]he three principles of transparency, participation, and collaboration form the cornerstone of an open government.” The Department of Justice recently took an important step in reinforcing these principles through updated employee performance standards.

Agency accountability for ensuring open government flows directly from the efforts of the many individuals within agencies who have a role in responding to FOIA requests or overseeing open government policies and activities.  Ensuring that those activities are afforded their proper importance as a key aspect of job performance is an important way to both ensure accountability and to promote open government. As part of the Department of Justice’s own efforts to improve its open government, the Assistant Attorney General for Administration sent a memorandum to the heads of all department components on October 2, 2015, reminding them “of the importance of ensuring compliance with the requirements of the Freedom of lnformation Act (FOIA), and the Open Government Directive by incorporating appropriate performance standards in employee appraisal records and work plans.” To assist components in this effort, OIP worked to develop model performance standards for both open government and FOIA; the standards were distributed with the memorandum. 

There are six model performance standards. Two are for Open Government positions; specifically:

1. Executive and Supervisory Positions that oversee positions that have responsibility for open government policies, and
2. Positions that have responsibility for open government policies.

There are four model performance standards for FOIA, the first two addressing personnel who work primarily in FOIA; specifically:

1. Executive and Supervisory Positions that oversee positions that have primary responsibility for FOIA implementation (e.g., Government Information Specialists)
2. Positions that have primary responsibility for FOIA implementation (e.g., Government Information Specialists)

Significantly, the Department also included performance standards for those individuals who are not traditional FOIA Professionals, but who are called upon to assist FOIA Professionals in any number of ways during the administration of the Act. Those two standards address:

1. Professional positions that have responsibilities for certain aspects of the Department's compliance with disclosure obligations, which may include searching for and reviewing records for disclosure, and
2. Support Positions that provide administrative support to meet goals for timely responses to FOIA requests.

As the memorandum notes:

Ensuring that employee performance standards and work plans include FOIA and open government elements is a natural complement to the Department’s earlier work in converting all of its FOIA Professionals to the Government Information Specialist job series. That distinct occupational series was created by OPM in 2012 and was designed to recognize and further professionalize the FOIA workforce. Over the last three years, the Department of Justice has converted all of its FOIA Professionals to the new job series.

As the number of FOIA requests received across the government continues to rise, all agencies are encouraged to include appropriate FOIA- and Open Government-Related performance standards for all employees who have any role in administering these key programs. By doing so, they can help ensure that the principle that “FOIA is everyone’s responsibility” will be fully recognized.