OGIS issues first year report

The U.S. Office of Government Information Services "resolved" more than 80 percent of its federal Freedom of Information Act cases in the office's first year serving as the executive branch's FOIA ombudsman, it said in a report released this week, "The First Year: Building Bridges Between FOIA Requesters and Federal Agencies."

According to the report, OGIS handled a total of 391 cases in its first year of operation, most of which it did not consider bona fide disputes between FOIA requesters and agencies. OGIS deems true disputes to be cases in which the agency used "facilitation" in an attempt to resolve the case. OGIS defines facilitation as when office personnel work in an informal manner with the requester and the agency in order to find common ground.

Of the 83 cases in which there was a dispute, 68 were "successfully resolved," OGIS said in the report. A "successfully resolved" case does not necessarily mean that the requested documents were released, but that the case "ended with the requester and the agency reaching an agreement."

OGIS was unable to resolve 15 cases in its first year. "In one case, for example, an agency agreed to provide data but the requester was still not satisfied," the report said. "In another, a Federal agency customer requested mediation but the requester's attorney advised against it. OGIS spent nearly eight months working to facilitate a resolution in another dispute in which a Federal agency was so unresponsive that the requester ended up filing a lawsuit."

OGIS provided examples in the report of the 308 cases that didn't "rise to the level of a dispute." In one such case, an imprisoned veteran had a FOIA request to the U.S. Department of Veterans Affairs denied because the requested document was available online. However, the facility at which the veteran was imprisoned did not have Internet access. "OGIS contacted the VA, explained the situation, and the agency fulfilled the request," OGIS said. In another case, the U.S. Treasury Department denied a Montana newspaper reporter certain documents he sought because his FOIA request was too narrow. After receiving guidance from OGIS, the reporter broadened his request and received the additional documents.

Nearly half of the 391 cases involved agency request denials or response delays. "Specifically, 61 cases involved agencies fully or partially denying release of requested records, while in 28 cases, agencies found no records to release."

Additionally, OGIS noted that 94 cases involved Privacy Act issues, which fall outside the scope of OGIS' statutory ombudsman authority. However, the office said that in many Privacy Act cases it was able to assist requesters. "The volume of these cases – comprising one-quarter of the OGIS caseload – suggests the need for an ombudsman for [Privacy Act] requests."

Although OGIS said FOIA requesters and many federal agencies "warmly welcomed" the ombudsman's office, this was not the case at all agencies. "OGIS observed that some Federal agencies viewed OGIS as the 'FOIA police' and thus were somewhat reluctant to share information with OGIS and to work with the Office to resolve disputes," the report said. "With continued outreach, OGIS is confident that agencies will come to understand that the Office is here to assist them as well as requesters, and that sharing information with OGIS will not adversely affect agency operations."

Less than 2 percent of the cases were initiated by government entities.

An agency-by-agency breakdown revealed that the highest percentage of cases – 38 percent – involved requests to the U.S. Department of Justice and its sub-agencies. Requests to the U.S. Department of Veterans affairs accounted for 9 percent of the cases, while the Defense Department accounted for 7 percent of all cases. Requests to the federal Department of Homeland Security and OGIS' parent agency, the National Archives and Records Administration, each accounted for 5 percent of cases.

OGIS cautioned that these volume numbers do not necessarily mean that these entities have more problematic FOIA processes than other departments, noting that "the Departments of Justice and Veterans Affairs were the first agencies to routinely use response letters and appeal letters to inform their FOIA requesters about OGIS and its mission."

Although it did not mention any agencies by name, OGIS scolded some agencies for providing poor customer service to FOIA requesters, noting that "[s]ome FOIA Public Liaisons do not publicize their telephone numbers, do not have voice mail that accepts messages, and return calls only sporadically, if ever. Some liaisons did not seem interested in resolving disputes, and refused OGIS's offers of assistance. Other liaisons did not appear familiar with FOIA."

OGIS also highlighted several agency customer service best practices it has observed. Several agencies created model letters for acknowledging, handling and responding, and the Department of Labor's Employment Training Administration created templates for responses to requests that resulted in no records, partial releases and third-party notifications.

The office also praised the U.S. State Department for releasing information to requesters on a rolling basis instead of waiting until processing ends.

OGIS also provided some best practices recommendations for agencies to follow including widely publicizing the names, phone numbers and e-mail addresses of FOIA public liaisons on the agency's FOIA website, within the agency and "throughout the FOIA requester community." It also recommended that agencies advise in final appeal letters that OGIS services are available to further assist in resolving FOIA disputes. It also advised agencies to create an online system enabling FOIA requesters to check the status of requests to post significant documents online after they have been released under FOIA so that subsequent seekers of such a document do not have to submit FOIA requests.

Although required by law to "recommend policy changes to Congress and the President to improve the administration" of FOIA, the report released by OGIS this week failed to include any such recommendations.

Going forward, the report said OGIS is working to establish "a comprehensive process for reviewing agency FOIA policies and procedures, better educating FOIA requesters, establishing a permanent case management system, developing a fully operational mediation program, and regularly offering dispute resolution skills training for agency FOIA professionals."