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FOIA and Open Government

Introduction

The USTR FOIA Program is managed by a FOIA Office consisting of a Chief FOIA Officer, two FOIA Program Managers/Attorneys, and one FOIA Specialist who also acts as the FOIA Public Liaison. Together the FOIA team provides guidance to USTR’s nearly 250 employees on FOIA policy. FOIA requests submitted to USTR vary in size and complexity from narrow requests for a single or a few documents to voluminous and complex requests that require broad searches and line-by-line review of thousands of pages of text and emails. Many of USTR’s documents contain sensitive national security information that is classified pursuant to Executive Order 13526.

Before making a release determination, the FOIA Office often coordinates with other Federal agencies, foreign governments, and commercial entities whose information may be contained in USTR records. If a request involves a voluminous amount of material or searches in multiple locations, USTR may provide interim responses, releasing the records on a rolling basis. The number of FOIA requests USTR receives each year has steadily risen over the last several years from an average of 50 per year to a record high exceeding 105 requests in fiscal year 2016.

Requests generally fall into one of four categories: trade agreement negotiating documents, correspondence with members of Congress, correspondence with interest groups, and dispute documents. Upon receipt of a perfected FOIA request, the FOIA Specialist tasks the appropriate USTR office with collecting the responsive documents. At a weekly status meeting, the FOIA Office staff reviews all FOIA requests that are in process.

How we plan to further integrate a presumption of openness

The FOIA Office is working on four key initiatives to enhance FOIA compliance and overall transparency: decreasing the backlog of FOIA requests; increasing the number and quality of discretionary releases; improving communications with FOIA requesters; and ensuring USTR staff are properly trained and informed of their FOIA obligations.

Reduce Backlog. We have added new professional staff to help manage the increasing number and complexity of FOIA requests and improve the timeliness and quality of responses. Along with the unprecedented growth in the number of requests received, the FOIA Office also has to work around the demanding travel schedules of USTR program staff necessary to assist in relevance and sensitivity determinations before records can be disclosed.

Discretionary Releases of Information. The FOIA authorizes USTR to withhold information of a sensitive nature. USTR withholds pre-decisional, deliberative documents (Exemption 5), classified trade negotiating and policy documents (Exemption 1), confidential business information (Exemption 4), communications involving our cleared advisors (Exemption 3), and privacy protected information (Exemption 6). When the FOIA Office withholds information, our response ordinarily will specify the exemption we applied. USTR administers the FOIA with a presumption of openness. This means that as a matter of policy, we make discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. The FOIA Office works with subject matter experts to carefully review deliberative and/or privileged information to determine if it can be released.

Enhanced communications with requesters. As part of a comprehensive review of USTR practices related to the disclosure of records and information, we updated and modernized our FOIA implementing rule using an easy to understand plain language format. The revised rule also implements the changes made by the FOIA Improvement Act of 2016. The rule includes descriptions of the kinds of information the FOIA Office needs in order to process a request and explains how we process requests and apply exemptions. The updated FOIA Reference Guide includes tips and examples for crafting a FOIA request with sufficient detail to enable USTR personnel to locate the records the requestor seeks. In order to respond to FOIA requests with the precise records sought in a timelier manner, the FOIA Office engages with requestors early on, along with the relevant USTR policy staff, to ensure that all parties have a clear understanding of the scope of the request. This provides an interactive opportunity to tailor a request to enable USTR to provide available records in a reasonable time period or to refer the requestor to the appropriate agency.

Develop engaging FOIA training for USTR staff. USTR views compliance with the FOIA as a central part of its commitment to Open Government and a well-trained staff is critical to meeting this commitment. The FOIA Staff is developing a FOIA training program for all USTR employees that uses in-person and interactive virtual resources to train employees on their responsibilities under the FOIA. The training will provide practical advice on how to effectively search for records and how to apply FOIA exemptions in a careful manner that balances the presumption of openness against the foreseeable risks of disclosing exempt information.