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    This document is an administrative appeal of the Office of Management and Budget's response to a Sunlight FOIA for agencies' Enterprise Data Inventories.

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    Sunlight Foundation appeal of OMB's response to a FOIA for Enterprise Data Inventories

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    This document is an administrative appeal of the Office of Management and Budget's response to a Sunlight FOIA for agencies' Enterprise Data Inventories.

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    © All Rights Reserved
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    Sunlight Foundation Appeal of OMB's Response To A FOIA For Enterprise Data Inventories

    Uploaded by

    Sunlight Foundation
    This document is an administrative appeal of the Office of Management and Budget's response to a Sunlight FOIA for agencies' Enterprise Data Inventories.

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    © All Rights Reserved
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    Fifth floor beijing, china flour mitt building seew york, new york 1000 potomec street aw portland, oregon mashington, de, 20007-3501 seaitle, weshington ‘ree 202 965 78H0 vax 202985 1729 GSBLAW.com Please reply to JEFFREY YOUNG Jpoung@gsblaw.com (202)985"7880, ext 2520 September 25, 2014 VIA FAX and FEDEX Dionne Hardy FOIA Officer Office of Management and Budget 725 17th Street NW, Room 9026 Washington, D.C. 20503 Re: Appeal of OMB's Denial of the Sunlight Foundation’s December 5, 2013 Freedom of Information Act Request Dear Ms, Hardy: ‘On behalf of the Sunlight Foundation, I hereby submit this appeal of the Office of Management and Budget’s denial, dated August 27, 2014, of the Sunlight Foundation’s FOIA request, dated December 5, 2013. A copy of the initial request has been included for your convenience. Please communicate any questions directly with this office. Respectfully, foe FO Jeffrey C. Young J¥:acn Enclosure fifth floor beijing, china flour mith building sew york, mew york 1000 potomac street aw portland, oregon washington, de. 20007-3501 seattle, washington eu 202 965 7 10 eax 202 965 17 osBisw.com Please reply 10 JEFFREY YOUNG Iyoung @gsblaw.com Feu ext 2520, September 25, 2014 VIA FAX and FEDEX Dionne Hardy FOIA Officer Office of Management and Budget 725 17th Street NW, Room 9026 Washington, D.C. 20503 Re: Appeal of OMB’s Denial of The Sunlight Foundation’s December 5, 2013 Freedom of Information Act Request Dear Ms, Hardy, Our firm represents The Sunlight Foundation (“Sunlight”) in regard to its December 5, 2013 Freedom of Information Act (“FOIA”) request to the Office of Management and Budget (“OMB”) (the “Request”). This letter is Sunlight’s appeal of OMB’s August 27, 2014 denial of the Request (the “Denial”). After almost nine months of inaction by OMB, the Denial declines to release any responsive records, and recommends that Sunlight “contact [other] agencies directly.” This is contrary to the law. The records Sunlight seeks in the Request are OMB agency records that OMB is obliged to produce. If the production of those records implicates the interests of other agencies, OMB may wish to consult with those agencies, but that does not relieve OMB of its duty to release records responsive to Sunlight’s Request. Background Sunlight’s Request sought agency Enterprise Data Inventories and Inventory Schedules submitted to OMB under OMB’s Memorandum M-13-13, “Open Data Policy ~ Managing Information as an Asset” (“Memo 13-13”), As discussed in the Request, OMB issued Memo 13-13 in response to President Obama's May 9, 2013 Executive Order 13642 (“Making Open and Machine Readable the ‘New Default for Government Information”). Executive Order 13642 required agencies to take steps to better manage their data resources, including making agency data more open and available to the public. The President tasked OMB with responsibility for overseeing implementation of the Executive Order, under which OMB was to “issue an Open Data Policy to advance the management of Government Dionne Hardy < September 25, 2014 Page 2 information as an asset.”' Accordingly, OMB issued Memo 13-13 and “Supplemental Guidance on the Implementation of M-13-13 ‘Open Data Policy — Managing Information as an Asset’ (the “Supplemental Memo”). Memo 13-13 and the Supplemental Memo required all agencies to “Develop and Submit to OMB an Inventory Schedule” and “Create an Enterprise Data Inventory” by November 30, 20137 As described in more detail on pages 2-3 of Sunlight’s Request, the Inventory Schedules were required to be published on agency websites and describe how each affected agency would ensure that all data assets from each bureau and program in the agency had been identified and accounted for in the inventory, The Enterprise Data Inventories were supposed to catalogue all “data assets” of the agency, with one metadata record for each data asset, and were to be submitted as a single JSON file to OMB. Sunlight filed its Request on December 5, 2013, seeking both the Inventory Schedules, some of which were not posted on the agency websites as required by the November 30 deadline, and the Enterprise Data Inventories for each agency, which had not been made available to the public. After almost nine months of waiting for OMB’s response, the Agency sent a cursory two-page letter dated ‘August 27, 2014, with none of the requested records and a recommendation that Sunlight send a request to individual agencies for their Enterprise Data Inventories, because “OMB defers to the judgment of those offices [regarding release determinations].” Appeal In the long intervening period after Sunlight submitted the Request, the agencies subject to Memo 13-13 and the Supplemental Memo posted their Inventory Schedules online. Agencies have not posted their Enterprise Data Inventories, however, and thus this appeal concerns OMB's improper refusal to release the Enterprise Data Inventories. The Enterprise Data Inventories were OMB “agency records” at the time Sunlight made the Request. Rather than refusing to produce the Enterprise Data Inventories and “punting” to other agencies, OMB was required—under prevailing case law and OMB’s own FOIA regulations—to produce those records in response to Sunlight’s Request. ‘The Denial cites no basis for refusing to produce the Enterprise Data Inventories other than the fact that the agencies themselves purportedly make release determinations. In effect, OMB appears to be arguing that the Enterprise Data Inventories that OMB has obtained are not OMB’s ageney records. But regardless of who first created the Inventories, or who may have input on release determinations, if the Inventories are “agency records” of OMB, then OMB legally must provide them to Sunlight. " President Barack Obama, Executive Order 13642, "Making Open and Machine Readable the New Default for Government Information," May 9, 2013, available at; http:/www.whitehouse gov/the-press-office/2013/05/09/executive-order-making- ‘open-and-machine-readable-new-default-government- 2 office of Management and Budget, Memorandum M-13-13, “Open Data Policy-Managing Information as an Asset,” May 30, 2013, available at: http://project-open-data github o/policy-memo/#a-create-and-maintain-an-enterprise-data-inventory. Dionne Hardy September 25, 2014 Page 3 ‘A request under the FOIA may seek “agency records” of the agency receiving the request. The FOIA defines the term “record” as including “any information that would be an agency record ... when maintained by an agency in any format, including electronic format.” The U.S. Supreme Court has established a two-part test to determine whether a record qualifies as an “agency record”: “First, an agency must ‘ether create or obtain’ the requested materials ... Second, the agency must be in control of the requested materials at the time the FOIA request was made. Under the case law that has shaped the contours of this test, there are several ways that an agency may exercise the requisite “control” over a requested record so as to make it an “agency record” of the agency.” ‘These standards clearly instruct that the Enterprise Data Inventories were OMB “agency records” at the time of Sunlight’s Request. Memo 13-13 and the Supplemental Memo demonstrate that OMB “obtainfed)” the Inventories, and even participated in how the agencies were supposed to complete the Inventories. In fact, OMB provided extensive guidance to agencies on how to create the Inventories.® Courts have found that when an agency exercises this kind of involvement in the creation of records, the records are deemed “agency records” of the agency involved.” ¢ Inventories are also OMB’s agency records for purposes of the FOIA because OMB has ine eal be of the Inventories. Similar to the data at issue in the Burka case, OMB “planned to possession of the” Enterprise Data Inventories when they were submitted to OMB for review on Noventer 30, 2013, and “use” the Inventories to evaluate and shape each agency's submissions. In addition, OMB was “relying” on the submission of these Inventories in order to fulfill its duty to implement and enforce Project Open Data according to the President's orders. For example, OMB recently uploaded a broad audit of agency compliance with Project Open Data, which includes 2 5 U.S.C. § 552(42KA) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat, 2524. “US. Dep't of Justice v, Tax Analysts, 492. U.S. 136, 144-45 (1989). * See, e.g,, Burka v, HHS, 87 F.3d 508, $15 (D.C. Cir, 1996) (finding agency control of records originated by others given the “extensive supervision and control exercised by the agency over collection and analysis of the data”), Am. Small Bus. League v. SBA, 2008 WL. 3977780, at *3-4 (N.D. Cal. Aug. 26, 2008) (concluding that records in the procurement database maintained by GSA were under SBA “controt” because, for example, SBA directed GSA to analyze the database and extract information for SBA use. “In Memo 13-13, OMB instructs: “Agencies must update their inventory of agency information resources (as required by (OMB Circular A-130) to include an enterprise data inventory, if it does not already exist, that accounts for datasets used in the agency's information systems. The inventory will be built out over time, with the ultimate goal of including all agency datasets, to the extent practicable. The inventory will indicate, as appropriate, if the agency has determined that the individual datasets may be made publicly available (i.e, release is permitted by law, subject to all privacy, confidentiality, security, and other valid requirements) and whether they are currently available to the public.” 7 See, e.g, Burka, 87 F.3d at $15; Am. Small Bus. League v. SBA, 2008 WL 3977780, at *3. * Burka, 87 F.3d at $15 aw Dionne Hardy September 25, 2014 Page 4 submission of the Enterprise Data Inventory as a relevant factor.” This audit process, when combined with the supervisory role assigned to OMB by the President, and OMB’s Memos directing compliance with Project Open Data (OMB has called the submission of the Enterprise Data Inventories as a “milestone” step), all shows that the Enterprise Data Inventories were “integrated into [OMB’s] record system or files.""° While no one factor is determinative of whether an agency has “control” over a requested record, it is clear that the Enterprise Data Inventories were and are under OMB’s “control. oe ‘The Denial improperly refused to produce the responsive Enterprise Data Inventories, instead “recommending” that Sunlight file individual FOIA requests with each individual agency. The only justification OMB gives in its Denial is that “release determinations regarding agency enterprise data inventories are made by the agencies themselves” and thus “OMB defers to the judgment of those offices.” This was a derogation of OMB’s duty, While OMB may consult with “another agency having a substantial interest in the determination of the request or among two or more components of the agency which have a substantial subject matter interest therein,”"* the mere fact that OMB's guidance instructs the agencies to “incorporate privacy analyses” does not release OMB from its obligation under the FOIA to make its “agency records” available to the public. OMB’s FOIA regulations still obligate OMB to respond to FOIA requests even in “unusual circumstances,” such as when—before responding—OMB seeks to consult with “another agency having a substantial interest in the determination of the request or among two or more components of the agency which have a substantial subject matter interest therein.” Indeed, OMB’s own regulations anticipate the situation presented here. They do not excuse OMB from responding to a valid request under the FOIA when another agency has an interest in OMB's “agency records”; they merely provide that OMB may consult with that agency before fulfilling its obligation to respond. By OMB's own regulations, the basis for denial that OMB has given is not a valid justification for denying the Request. This is especially so since Sunlight’s Request was not for the underlying data sets themselves, but just the inventory of such data sets. ‘See Project Open Data Dashboard (available at htp:/labs.data. gov/dashboard/offices), © This situation is comparable to the one in Am. Small Bus, League v. SBA, where data from GSA was nevertheless deemed to be “agency records” of the SBA because “itis the SBA, not GSA, that Congress has charged with the duty to promote the interests of small businesses and to insure that a “fair proportion” of federal contracts are awarded to such entities.” 2008 WL 3977780, at *3. Similarly, OMB has been charged with implementing the mandate of E.O. 13642 through its open data policy, and cannot profess that the data it has requested and shaped is not an OMB “agency record.” " See, e., Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1400-01 (7th Cir. 1984) (determining that agency “use” of internal report submitted in connection with licensing proceedings renders the report an agency record). ” SCAR. § 1303.10(H)G). Ma GE Dionne Hardy sa September 25, 2014 Bt Page 5 Finally, OMB’s Denial contradicts long-standing case law as well as guidance from the Department of Justice (“DOJ”) on how to process FOIA requests. The requirement to work with other agencies that have an interest in responsive documents has been well-established for over three decades. “When an agency receives a FOIA request for ‘agency records’ in its possession, it must take the the request. It cannot simply refuse to act on the grounds that the documents originated elsewhere.” Similarly, DOJ instru strative practice, an agency should consult with any other agency or other agency component whose information appears in the responsive records, especially if that other agency or component is better able to determine whether the information is exempt from disclosure.”"* Thus, the courts, DOJ, and OMB’s ‘own FOIA regulations all require or advise OMB to work with the relevant agencies to resolve any issues with the release of documents, but they do not excuse OMB from responding under the FOIA. In fact, such consultations are not unfamiliar to OMB, and thus are not overly burdensome for the agency. In OMB’s own words, taken from its 2014 annual FOIA report, “OMB has also streamlined its approach for handling consultations from other agencies ... [and] uses technology to redact documents and consult with other agencies as necessary.”"® This is exactly what OMB should have done in advance of producing the Enterprise Data Inventories that Sunlight has requested. Instead, OMB has simply refused to do its duty. Cor OMB’s Denial of Sunlight’s Request was improper in light of established case aw, DOJ guidance, and OMB’s own FOIA regulations. As such, Sunlight respectfully appeals the Denial and requests that OMB produce the requested Enterprise Data Inventories immediately, with the assistance of any interagency consultation that may be necessary, Sincerely, GARVEY SCHUBERT BARER $26 FD Jeffrey C. Young \ McGehee v, CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (emphasis added). " Department of Justice Guide to the Freedom of Information Act, page 88. "6 Office of Management and Budget Chief Freedom of Information Act Officer's Report, March 2014, SUNLIGHT FOUNDATION ALS WSeea ILM ~ Sate 3 - ashgon, DC 20096 | 202.742.1820 | F:262702.1524 — bnpy/Sunigfeenctoncon ‘SENT VIA FAX: (202) 395-3504 Dionne Hardy, FOIA Officer Office of Management and Budget 725 17th Street NW, Room 9026 Washington, DC 20503, December 5, 2013 Dear Ms. Hardy, ‘This letter constitutes a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. $552, and is submitted on behalf of the Sunlight Foundation, As detailed below, the Sunlight Foundation seeks agency enterprise data inventories and inventory schedules submitted to the Office of ‘Management and Budget (“OMB”) as required by the OMB"s Memorandum M-13-13 “Open Data Policy - Managing Information as an Asset” and Supplemental Memorandum “Supplemental Guidance on the Implementation of M-13-13 “Open Data Policy - Managing Information as an Asset." Background ‘On May 9, 2013, President Obama issued Executive Order 13642, titled “Making Open and Machine Readable the New Default for Government Information.” This executive order required that agencies, under the guidance of OMB, take steps to better manage their data and make it more open to the public. Executive Order 13463 stated: “To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable, Government information shall be managed as an asset throughout its life cycle to promote interoperability and ‘openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new ‘default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security. " President Barack Obama, Exceuive Order 13642, “Making Open and Machine Readable the New Default for Government Information.” May 9. 2013, availabe at bupsivrw sthitehouse,gov/the-press-office/2013/0S 09/executve-order-aking-open-and-machine-readable-newedef aul- government ‘The President tasked the Director of (OMB), in consultation with the Chief Information Officer, Chief Technology Officer, and Administrator of the Office of Information and Regulatory Ai “issue an Open Data Policy to advance the management of Government information as an asset”? OMB then released Memorandum M-13-13, entitled “Open Data Policy-Managing Information as an Asset.” This memo outlined specific requirements for agency performance, including the requirement that each agency create an “Enterprise Data Inventory.” “Agencies must update their inventory of agency information resources (as required by OMB Circular A-130) to include an enterprise data inventory, if it does not already exist, that accounts for datasets used in the agency's information systems. The inventory will be built out over time, with the ultimate goal of including all agency datasets, to the extent practicable. The inventory will indicate, as appropriate, ifthe agency has determined that the individual datasets may be made publicly available (., release is permitted by law, subject to all privacy, confidentiality, security, and other valid requirements) and whether they are currently available to the public.” ‘OMB then further clarified its guidance in a later document titled “Supplemental Guidance on the Implementation of M-13-13 ‘Open Data Policy - Managing Information as an Asset." This document included an expanded description of the open data responsibilities of agencies. It required that by November 30, 2013, each agency must, at a minimum “Develop ancl Submit to OMB an Inventory Schedule” and “Create and Enterprise Data Inventory.” ‘The Enterprise Data Inventories must include, at a minimum, “all data assets which were posted on Data.gov before August |, 2013 and additional representative data assets from programs and bureaus. The inventories must contain “one metadata record for each data asset” and must be submitted as a single JSON file to OMB. While a small subset of these inventories - list ofthe already publicly available databases and databases which may be made public - were required to be published ‘online, the full enterprise databases have not been made available to the public. The inventory schedules will “{dJescribe how the agency will ensure that all data assets from Ph » Ofice of Management and Budget, Memorandum M-13-13, °Open Data Poliey-Managing Information as an Asset” May 30, 2013, available at: ‘ntp/projec-open-data github o/poley-memo(ta-create-and-maintain-an-

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