Should a FOIA Ombudsman punish or persuade?

The position of public records ombudsman is rapidly becoming a regular feature of state open records laws.  Indiana, Illinois, Iowa, Washington, Arizona and now Tennessee all have a state ombudsman with public records jurisdiction.   

But a new statewide survey by Indiana University’s Center for Survey Research on behalf of the Indiana Coalition for Open Government (ICOG) casts doubt on the public’s confidence in a records ombudsman without enforcement powers.

According to the survey, 91% of the people who used the services of Indiana’s ombudsman, called the Public Access Counselor or PAC, felt the office should include the authority to punish state officials who violate open records laws.

“This survey sheds light on the usefulness of the PAC office,” ICOG president Keith Robinson said.  "Clearly, users believe that the PAC’s lack of enforcement power is a weakness that needs to be addressed.”

Backers of advisory-only ombudsman opinions argue that public agencies and officials are far more likely to cooperate with a mediator if punitive enforcement isn’t directly implicated. 

It’s an issue that needs more study as more and more states, and now the federal government, look to the ombudsman model as an effective tool short of full-blown litigation.