By Elizabeth Holland
One of the principle tenets of conflict mediation is to acknowledge the past and look to the future. In that vein, today OpenTheGovernment.org (of which AALL is a member) and the Newseum Institute hosted “OGIS at Five”, a celebration of the Office of Government Information Services (OGIS) five year anniversary of mediating disputes regarding Freedom of Information Act (FOIA) requests between requesters and federal agencies. In three panel session, FOIA experts from the administration and agencies, Congress, and requestor community shared their perspectives on the successes and shortcomings of OGIS and the parties it seeks to serve.
Since opening its doors five years ago, OGIS has worked to assist individuals with their FOIA requests, including offering non-binding mediation to resolve disputes about an agency’s decision. Panelist Bill Holzerland of the Food and Drug Administration’s Division of Information Disclosure at the Center for Devices and Radiological Health, credits OGIS with what he perceives to be a culture shift among agency FOIA professionals, who receive dispute resolution training from OGIS. As dispute resolution is increasingly encouraged by OGIS and FOIA Public Liaisons, more view mediation as a viable alternative to litigation, saving time and resources. Additionally, OGIS’s support of FOIAonline portal has been critical in pushing the government towards a model that makes the process of navigating FOIA easier for the public.
Still, many in the requestor community feel OGIS could use more teeth, particularly in its mission to review agencies’ FOIA performance and compliance. Last year’s Government Accountability Office audit found that OGIS had “not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies’ compliance with the law.” Helpfully, OGIS has recently begun posting its final response letters in FOIA mediation. But, mediation, of course, has not yet led to more public records, as OGIS lacks the power to compel disclosure.
Looking to the next five years, all parties agreed a stronger, better funded OGIS would serve requestors and agencies equally well. To this end, the FOIA Improvements Act of 2014 (S. 2520) is pending Senate consideration. If passed, the legislation would improve FOIA in significant ways, including codifying the presumption of openness by requiring agencies to release information responsive to a FOIA request and amending the overbroad (b)5 exemption. The bill would also strengthen OGIS by providing the ability to bypass the review of its recommendations to change FOIA practices by the Office of Management and Budget (OMB) before submitting them to Congress and the President. The bill also clarifies OGIS’ ability to issue advisory opinions at its discretion. With greater resources and more buy-in from agencies, OGIS Director Miriam Nisbet hopes OGIS could one day close its doors when FOIA dispute resolution is no longer needed.