FOIA committee mulls Section 508 responsibilities

Section 508 of the Rehabilitation Act is meant to serve as a curb ramp for access to federal information and communication technology, but for some Freedom of Information Act stakeholders, 508 is more like a pothole.

That debate on whether 508 is an aid for open government or a crutch for agencies to lean on to avoid releasing information was highlighted during the Oct. 25 National Archives and Records Administration’s Federal Freedom of Information Act (FOIA) Advisory Committee meeting.

Officials with the U.S. Access Board — which is charged with providing standards under Federal Acquisition Regulation —told committee members a final rule for Section 508 is under review at the Office of Management and Budget, which will hopefully clear up questions around compliance.

“Websites for the federal government have been required to be accessible since 2000, so this shouldn’t be news to a lot of federal agencies,” said David Capozzi, executive director of the Access Board. “In terms of document accessibility, it is a relatively new area of focus. I think when we come out with our final rule updating the 508 standards, you will see a lot more detailed discussion about how to and why, about providing accessible documents. In 2000 there weren’t a lot of resources on how to make documents accessible … [now] there are more resources available to make thing a little bit easier. I understand people are going to struggle with it and it’s not always a binary yes or no answer.”

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That struggle is what brought Capozzi and his colleagues to the committee meeting.

Nikki Gramian, acting committee chairwoman, said during the committee’s last meeting in July there’d been a lot of discussion about 508 compliance and how it might limit an agency’s ability to follow FOIA rules.

That discussion continued on Tuesday.

When a requirement becomes a burden

Tom Susman, director of the governmental affairs office of the American Bar Association (ABA) said the two issues he hears most often within FOIA circles is proactive disclosures and “releasing to one should be released to all.”

“I guess I’m seeing a little bit of a disconnect,” Susman said at the meeting. “On the one hand, I’m hearing from you either there’s a technology that can do it, or if it’s too great a burden, an agency can go ahead with a disclaimer. Yet I’m hearing from the other side, a lot of agencies and government people say, ‘Oh no, no, 508 keeps us from doing it.’ I think that’s really the question of the day.”

Capozzi said Section 508 isn’t meant to be an accommodation law or regulation, but should act as more of a curb ramp to federal technology.

“What oftentimes gets overlooked, people think this is remediation,” Capozzi said. “The intent was to make government technology accessible out of the box, essentially, so that it doesn’t stand as a barrier to the employment of people with disabilities, or to the continued employment of federal employees or to people with disabilities from the public getting services from federal agencies. You don’t build a ramp every time somebody knocks on your door and says can I come in. You build the ramp when the building is new so that people can come in.”

Timothy Creagan, senior accessibility specialist with the Access Board, said accessibility is just an “alternative means for providing that same information.”

That could mean adding an audio output for someone who is visually impaired, or offering a way to see material to someone who has trouble hearing, he offered. But each agency is responsible for their own 508 implementations.

“We are only responsible for enforcing 508 without our own agency,” Creagan said. “Each agency of the federal government is responsible for establishing their own 508 program and establishing their own implementation of the law. People call us for technical assistance, we’re always happy to answer questions, but we are not a supreme court on 508. We just give you a learned opinion and you have to make and justify your own decisions.”

Nate Jones, committee member and FOIA coordinator for the National Security Archive, pointed out that there are millions of pages of documents posted to agency websites, many of them probably not 508 compliant. 

“I sure hope that these wouldn’t have to be taken down or beyond that, the pace of continuing to post documents online should be stopped if they’re not 508 compliant,” Jones said. “I understand very much the importance of accessibility, but I think that it would be harmful if documents that are currently online were taken offline.”

Helen Chamberlain, governmentwide Section 508 training and outreach director at GSA’s Office of Governmentwide Policy, said agencies aren’t being asked to remove these documents, but FOIA offices need to start making new documents being uploaded accessible, and those that aren’t “you have to provide that link for the person to go to somebody or mailbox or somewhere to get that information.”

There can be a lot of exceptions, Chamberlain said, which is why she handles each agency separately on a case by case basis. However, overall making information more accessible isn’t as hard as it was 16 years ago.

“It’s really not as scary as it sounds, because most of your softwares, your Microsofts, and your Adobe, your PDF software, they have these tools these days built right into them,” Chamberlain said.

Chamberlain said GSA is also partnering with the Access Board to redevelop 508 training through a new contract being put in place.

Capozzi said the hope is to publish the final rule by the end of the administration.

During the meeting the committee also agreed to form three subcommittees, one of which will address proactive disclosures and 508 compliance. The other two subcommittees focus on FOIA searches, and efficiencies and resources. All of the subcommittees will consider technology and best practices.