New office opens to mediate federal public records disputes

From the Winter 2010 issue of The News Media & The Law, page 16.

Until last fall, if the federal government denied a public records request, the only recourse to appeal the denial was through the courts.

That changed when the Office of Government Information Services, created by Congress to resolve disputes over the federal government’s interpretation of the Freedom of Information Act, opened its doors in September.

The establishment of OGIS, which has six staff members and an annual budget of $1.4 million in 2010, was hailed by freedom-of-information advocates as a huge step towards improving transparency and access to federal records. But at the same time, many wonder how the new ombudsman office, which is housed within the National Archives and Records Administration, can effectively keep tabs on 97 federal agencies with fewer resources than a number of states with similar offices.

“I’ll say something controversial,” said Rick Blum with The Sunshine in Government Initiative. “The federal government is a lot bigger than the commonwealth of Pennsylvania’s government.”

Pennsylvania’s ombudsman office started with an annual budget of at least $1.2 million and nine people on staff. Connecticut allocated $2 million and 21 employees for its open government office — more manpower and comparatively more funding than OGIS.

“We would like to think we are a resource for all problems of all kinds,” said OGIS director Miriam Nisbet during a transparency panel at American University. “That’s very ambitious, particularly when we have a staff of six people, which is pretty small for the entire executive branch.”

Resources obviously will be crucial to the office’s success. Blum said the Congressional Budget Office estimated OGIS would need at least $3 million at its inception and $5 to $6 million more to operate.

“You say a million and it seems like a big number, but for the federal government, a million isn’t going to get you very far,” Blum said.

If anyone knows how important resources are when opening an open government office, it is Terry Mutchler, who opened similar ombudsman offices in Illinois and Pennsylvania, where she is currently its executive director. She testified before Congress about what worked and did not work when establishing these ombudsman-like offices and was frank about the resources it takes.

“If any administration is really committed, they can’t just be committed in principle, they have to back it up … you have got to put your money where your mouth is when it comes to ensuring open government,” Mutchler said.

Mutchler says a significant part of her job is advising other states on open-government legislation and many are already looking to Pennsylvania’s year-old office, which reviewed 800 cases during its first year, as a prototype to mediate public records disputes at the state level. The first year was so busy Mutchler has asked the state for two more attorneys in the coming year.

Mutchler says Pennsylvania’s aggressive approach is what made its office a success.

“Pennsylvania has had the unique foresight to make this office both independent and to have the decision be binding,” Mutchler explained “Those two factors, coupled with the fact that the presumption is [for records to be] open, really cracks open a lot of filing cabinets around the state.”

Where the new federal ombudsman should be housed was a matter of considerable debate. OGIS was specifically put under the aegis of the National Archives, and not within the Justice Department, as the administration of George W. Bush wanted, to avoid any conflict of interest. State offices, however, are often within the attorney general’s office and some open government advocates are concerned that such a structure may compromise their independence.

“Attorney generals often represent agencies in court,” said Robert J. Freeman, the executive director of the Committee on Open Government in New York. “How can they, at the same time, provide advice contrary to what the agency is claiming?”

Freeman started at New York’s open government office, which operates as an independent committee created by statute. It has lasted throughout six governors and was arguably the nation’s first state-level office when it opened in 1974. Over the past three decades, he has seen fledgling state ombudsman programs fail after maintaining too-close ties with particular administrations.

“To be successful and to survive, this kind of agency has to be independent,” Freeman said. Otherwise “an office could disappear just as quickly as it arrives.”

Colleen Murphy, the executive director of Connecticut’s Freedom of Information Commission, agreed with Freeman’s premise.

“You can’t be truly independent if you are answering to someone who is not,” Murphy said. “In one way or another if you are located within the attorney general, at some point the attorney general will want to weigh in.”

Other open government advocates say offices operating within an attorney general’s office can be effective at ensuring access and accountability if that goal is shared by the attorney general.

“Our attorney general is a tremendous advocate for open government and she’s a staunch believer in this work,” said Cara Smith, a public access counselor within Illinois’ attorney general’s office. “I have all the support I could need in this position.”

Illinois strengthened its public access laws last year. The public access counselor has authority over the state’s freedom of information and open meetings laws, and decisions are binding. Public bodies are also required to seek the counselor’s approval before they can claim certain frequently cited exemptions, such as an unwarranted invasion of personal privacy.

Even before the recent legislation, which left the open government office operating within the attorney general’s office, Mutchler said she had autonomy when she served as public access counselor in Illinois, but told Congress “that autonomy was a result of that particular Attorney General’s approach and is not guaranteed in the future.”

Mutchler said that Connecticut’s system, which began in 1975, is one of the best in the country. Like Pennsylvania and Illinois, it issues binding decisions, which can be appealed, and a substantial body of case law has emerged to which the courts give great deference.

The benefit of binding authority is striking, Mutchler said. “I have worked in an advisory system. The reality is it didn’t take too long for the agency to say ‘thanks for the advice, but we’re not taking it.’”

But Murphy admits that binding authority does have some drawbacks. With more than 800 formal complaints a year, Connecticut’s ombudsman office at times risks turning into its own mini-bureaucracy, with the review process taking six months on average from beginning to end.

“You are creating an agency that has to have its own processes and procedures and that can take a lot of time,” Murphy said.

Though Connecticut reviews every case that comes in the door, the state is also focused on mediation, which Murphy says can expedite the process and reduce the state’s caseload by roughly 65 percent.

Freeman, whose New York office issues only advisory opinions, agrees that nonbinding decisions have advantages when it comes to timeliness.

“The strength and the difference is that [offices that issue binding opinions] have a hearing, and it may take months before a determination is rendered,” he said. With a heavy focus on mediation and initial counseling, “in many instances I believe we resolve issues before they become disputes.”

And when a dispute does progress, Freeman says courts have agreed with his decisions about 90 percent of the time.

Additionally, Freeman points out, the size of some states is prohibitive when it comes to issuing binding decisions. The cost would be staggering, he explained—as it is his office, which consists of himself and two others, fields roughly 6,500 inquiries per year.

One characteristic that all open government offices share, no matter where they are housed or what sort of decisions they issue, is a desire to educate both public officials and citizen requesters about public records and open meetings laws.

Connecticut’s open government office spends a great amount of manpower dealing with anti-openness bills and unnecessary exemptions in the legislature, a phenomenon Murphy says stems from a lack of understanding of the freedom of information laws among lawmakers.

In Pennsylvania, where Mutchler says passions run high between two extremes, the open government office must educate both “citizens who are convinced that every public official is criminal and public officials who don’t like the public.”

But Mutchler says the office’s efforts are making a difference. Of 1,159 cases that were appealed to Pennsylvania’s office, which meant they were initially denied, about 80 percent of the records requested were eventually released.

For the federal Office of Government Information Services to see similar success, however, the Obama administration needs to give the office the funding and resources it needs right from the start.

“If you can’t carve a niche in the first few years, it’s not going to happen,” Mutchler said. “Open government is a fundamental issue to the foundation of government. We might want to save money on trim and decoration, but not on the foundation. This paramount issue deserves paramount attention and priority in the budget process.”