As in past years, we at the Office of Government Information Services (OGIS) were too busy to celebrate our birthday on September 9. Instead, we marked our 5th year on October 31 with representatives from the requester and agency communities as well as House and Senate staff of the committees that helped create and now oversee OGIS.
Dubbed “OGIS at Five,” the half-day program focused on OGIS’s accomplishments in the last five years—and where the Office is headed in the next five years. And the Sunshine in Government Initiative (SGI), a coalition of media groups committed to promoting policies that ensure government is accessible, accountable and open, presented OGIS founding Director Miriam Nisbet with the Sunshine in Government Award. (More on that later.)
Discussion ranged from OGIS’s effect on the FOIA process to the balance between OGIS’s two missions of providing mediation services and reviewing agency policies, procedures and compliance to some requesters’ frustrations that OGIS does not have power to order agencies to release records.
One of our biggest challenges in our first five years was balancing our two missions, said Director Nisbet, who walked into an empty office on September 9, 2009, with no staff and requests for assistance already on her desk. “We really had to deal with those requests and deal with them quickly,” she said. Those requests dictated that OGIS focus on providing mediation services to both requesters and agencies. Mediation is “not ever going to take the place of litigation, but mediation is better than battling things out in the courtroom,” she said.
Bill Holzerland, director of the Division of Information Disclosure at the Food and Drug Administration’s Center for Devices and Radiological Health, has worked with OGIS from positions at three different agencies. Through our Dispute Resolution Skills training, OGIS has helped agencies overcome “the fear of engaging in conversation with the requester,” he said. “Engaging in dialogue in good faith with the requester certainly solves problems. At the minimum, it establishes a track record at the agency of working with the requester.”
Hundreds of FOIA professionals from across the government have taken our training since we began offering it in 2010.
The tension between providing mediation services and reviewing agency FOIA policies, procedures and compliance is one that Senator Patrick Leahy of Vermont was well aware of when Congress created OGIS in the 2007 amendments to FOIA, said April Carson, majority counsel to the Senate Judiciary Committee, which Sen. Leahy leads.
“The work OGIS has done has set a benchmark,” said Ms. Carson.
Krista Boyd, minority counsel to the House Oversight and Government Reform Committee, said “there is such trust in [OGIS’s] ability to carry out FOIA reforms effectively,” in part because of OGIS’s independent voice in advocating for the FOIA process. OGIS, she said, “gives both agencies and requesters a place to go to keep them from jumping into litigation.”
We at OGIS recently addressed the tension between the two missions by creating two teams, one overseeing mediation services and another overseeing review, a move that Ms. Boyd embraces. “I think the shift in staffing is an excellent idea,” she said. (Stay tuned to the FOIA Ombudsman in the coming weeks for more about the expansion of our review program to include assessments of agency FOIA programs.)
Lauren Barlow, counsel to Senator John Cornyn of Texas, who teamed with Sen. Leahy to help create OGIS, said the Office’s success is as a catalyst to “smooth the FOIA process from beginning to end” for both requesters and agencies.
Brad Heath, a reporter with USAToday, said that he had “tremendously high expectations” for OGIS, but said in his experience “the actual mediation process hasn’t led to the one thing I want, which is records.” As an ombudsman, OGIS cannot compel agencies to release documents, enforce FOIA or make determinations or dictate resolutions to disputes.
“It is good that when you deal with OGIS, you do get a more fulsome explanation of the process,” Mr. Heath said.
Nate Jones, FOIA coordinator for the National Security Archive, an independent non-governmental research institute, said he expected more review of agency FOIA compliance in OGIS’s first five years. At the same time, he said, one cannot ignore how “tremendously useful OGIS has been.”
Where will OGIS be in five years?
“I hope in five years OGIS is out of business or severely bored,” Mr. Holzerland said. (We’ve often said that we’d love for FOIA to be working so well for both FOIA professionals and requesters that there’s no need for OGIS.)
Absent from the “OGIS at Five” program was the surprise presentation of SGI’s Sunshine in Government Award, which SGI usually presents during Sunshine Week. The coalition decided to fast-track the award for Director Nisbet upon hearing of her retirement at the end of November.
“Miriam has accomplished so much. She took a 104-word mandate that Congress wrote into the federal FOIA and brought it to life. She conducted the office in a non-lawyerly, public-facing manner. She helped hundreds of requesters understand the responses they were getting from agencies, or pushed agencies to respond when they couldn’t or simply refused,” said Mr. Blum. (Read his full comments here.)
OpenTheGovernment.org and the Newseum Institute sponsored the event at the Newseum.