Experienced FOIA requesters can attest that FOIA requests follow a well-established process: a requester submits a request; the agency responds to that request; if the requester is dissatisfied with the response, he/she submits an administrative appeal; the agency responds to the appeal. Before OGIS opened in 2009, a requester who remained dissatisfied after the agency issued a response to his/her appeal had one recourse: Federal court. Considering the FOIA process, when does OGIS get involved in FOIA disputes?
If you ask an OGIS staffer, she’ll likely tell you that OGIS strives to work in harmony with an agency’s administrative process. That’s because OGIS was established as a non-exclusive alternative to litigation. So, a requester should contact OGIS when he or she is contemplating litigation – in other words, when he or she completes the administrative process.
So does OGIS get involved in FOIA disputes before the agency issues a final decision on a FOIA appeal? As The Simpsons’ Reverend Lovejoy famously said: “The short answer is ‘yes’ with an ‘if.’ The long answer is ‘no’ with a ‘but.’” Let’s look at the short answer first.
The OPEN Government Act of 2007 directed agencies to make their FOIA Public Liaisons available to requesters. It also specified that FOIA Public Liaisons are to help resolve FOIA disputes. See 5 U.S.C. §§ 552 (a)(6)(B)(ii) & (l). If the administrative process is not completed (i.e., you have not received a response to your administrative appeal), we would encourage you to first contact the agency’s FOIA Public Liaison for assistance. A FOIA Public Liaison is in the best position to answer questions about his/her agency’s administrative process, answer questions about the agency’s records, and look into the status of your request.
So will OGIS get involved before an appeal is decided? In some cases, yes. We’ve had cases in which the administrative process has broken down to the point that it is appropriate for OGIS to get involved. In cases of significant delay, this might involve OGIS contacting the agency to determine the status of a request or an appeal. We’ve also been contacted by agencies asking us to assist them with overly broad requests or with communicating with a requester. In those cases we worked with the requester and the agency to understand the interests of each, narrow the request where it was possible, and facilitate internal and external communications.
The key to understanding OGIS’s role – at this or any point in the administrative process – is our commitment to the team approach. OGIS cannot compel an agency to release records, nor will we ask an agency to process one request or appeal ahead of another. What we can do is encourage an agency and a requester to work together to satisfy the shared goal of completing a FOIA request.
We look forward to hearing from you, wherever you are in the process!