OGIS Releases Advisory Opinion and Compliance Assessment on Communication with Requesters

advisoryWe are very pleased to announce the publication of our first advisory opinion and a companion Freedom of Information Act (FOIA) compliance assessment on written communication with requesters. Both documents look specifically at the importance of clear communication to requesters: providing requesters with a clear understanding of the resources available to them as they navigate through the FOIA administrative process, ranging from the agency FOIA Service Request Center and FOIA Public Liaison to the availability of dispute resolution services at OGIS.

OGIS has a robust mediation program that provides valuable assistance to both FOIA requesters and agencies. The FOIA Improvement Act’s mandate that Federal agencies alert FOIA requesters to OGIS’s dispute resolution services at various points throughout the administrative process increased our visibility in the FOIA process and increased demand for our services. We have since handled a number of cases in which the dispute occurred because of requester confusion about who to contact within agencies for FOIA questions, and/or confusion about the appropriate next steps in the FOIA process. We have also received many submissions intended for agencies, such as FOIA requests and appeals, and identity certifications; materials intended for an agency’s FOIA Public Liaison, such as requests for assistance; and materials that confirm FOIA requesters’ belief that requests for OGIS assistance stop the 90-day clock to submit administrative appeals to the agencies.

To address these issues, OGIS worked with the U.S. Department of Justice’s Office of Information Policy and with agencies through the Chief FOIA Officers Council to update model language for agency response letters. We also contacted individual agencies through informal calls, emails, and formal letters to agency FOIA Officers; modified OGIS dispute resolution skills training to include these topics; widely distributed a flyer explaining the differences between the role of an agency FOIA Public Liaison and OGIS; and continue to ensure that we notify individuals seeking OGIS assistance about the importance of preserving their appeal rights.

While these efforts have had a positive impact, we continue to handle enough cases to warrant issuing an advisory opinion on communication to provide recommendations on how to help prevent similar disputes in the future. The compliance assessment released in conjunction with the advisory opinion shows that while many agencies are providing required notices of dispute resolution services, changes in correspondence can improve requester understanding. Clearly telling a requester where to send materials, noting the proper point of contact for assistance (including providing multiple contact options), and explaining how to preserve appeal rights, improves the FOIA process overall.

This is the first advisory opinion OGIS has issued. While we have had the authority to issue advisory opinions since our creation, prior to the passage of the FOIA Improvement Act, OGIS could only issue advisory opinions for individual disputes if mediation had not resolved the dispute.  For several years OGIS struggled with how to reconcile its authority to issue advisory opinions with its ability to be an impartial party that can facilitate the resolution of disputes between requesters and agencies.

We are grateful that Congress recognized this tension, and with the FOIA Improvement Act, gave OGIS the power to issue advisory opinions at its discretion.  OGIS intends to continue to use this now-modified advisory opinion power to issue opinions that address the most common disputes, complaints, and trends that are likely to lead to litigation. Our plan is to build a body of advisory opinions, available online for both requesters and agencies to consult, that will help head off disputes before they fester or lead to litigation.