House Holds Hearing on New FOIA Ombudsman

On Wednesday, September 17, the House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives held a hearing on the implementation of the Office of Government Information Services (OGIS). The OPEN Government Act (P.L. 110-175) created OGIS within the National Archives and Records Administration (NARA) to review agency compliance with the Freedom of Information Act (FOIA) and offer mediation services to requestors.

I attended the hearing on Wednesday, much of which focused on the White House’s repeated attempts to shift the responsibility of OGIS to the Department of Justice (DOJ). As AALL stated in letters to the House and Senate Appropriations Committees in February 2008, allowing DOJ to oversee the office in charge of FOIA mediation services creates a major conflict of interest and contradicts both the spirit and the letter of the law. Congress agreed and indicated that it will appropriate $1 million for OGIS, specifying that the office will remain at NARA. However, the budget with this new appropriation is not likely to be enacted until March 2009.

In his testimony, Archivist of the United States Allen Weinstein encouraged Congress and the White House to meet to resolve their differences on whether OGIS should be located at NARA or DOJ. Mr. Weinstein stated, however, that if asked, NARA will create OGIS:

Should it be resolved that the responsibility of this office falls to the National Archives and Records Administration, we will do everything we can to follow the letter of the law and the intent of Congress to create an office that would assist in seeking to resolve disputes between agencies and individuals requesting information from their government.

The other witnesses offered recommendations for creating a successful Office within NARA. Thomas Blanton, Director of the National Security Archive at George Washington University, emphasized the importance of strong leadership, transparency, and priority setting for OGIS. Patrice McDermott, Director of OpenTheGovernment.org, focused on OGIS’s duties to ensure agency compliance with FOIA. Rick Blum, Coordinator of the Sunshine in Government Initiative, recommended that OGIS should be led by a senior executive reporting directly to the Archivist and that OGIS must maintain its independence. Lastly, Terry Mutchler, Executive Director of Pennsylvania’s Office of Open Records, described her experience as a FOIA mediator in Illinois and Pennsylvania and offered recommendations for the structure of OGIS.

In his testimony, Mr. Blanton nicely summed up the importance of creating a strong OGIS and the need for Congressional oversight:

None of this will be easy, as you know, Mr. Chairman. Every bureaucracy in world history has utilized secrecy as a core tool of its power. The iron laws of turf protection, embarrassment avoidance, and controlling the spin all mean that freedom of information is a constant struggle. But Congressional attention like this hearing today really works, providing decision-forcing deadlines, encouraging wider public dialogue, clarifying both official and stakeholder positions.

[Posted by Emily Feldman]

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