Editor’s note: this blog post was written by Gbemende Johnson, an Associate Professor of Government at Hamilton College. Her research areas include executive-judicial relations, government transparency, and race and politics. She received her Ph.D. from Vanderbilt University in 2012.
During the fall of 2021, I worked with the Office of Government Information Services (OGIS) as an American Political Science Association (APSA) Pracademic Fellow. A key goal of the APSA Pracademic Fellowship program is to place academics within a government agency of their choice to allow them to gain first-hand experience and insight into the work of agency officials. Importantly, Pracademic Fellows are also expected to contribute to the work and operation of their placement agency. My interest in government transparency and transparency litigation made the placement choice of OGIS obvious given its unique vantage point of the operation of FOIA across the entire executive branch, and OGIS’s role in resolving disputes between requesters and agencies. OGIS publicly provides quarterly metric reports and annual reports of its work assisting requesters, and compliance assessment reports related to FOIA implementation. However, through direct work with OGIS, I hoped to gain greater insight into the types of FOIA issues that may eventually turn into legal disputes, given that my research empirically examines FOIA litigation.
During my time with OGIS, I worked with the Mediation Team, which directly responds to requests for assistance. Congress created OGIS to reduce litigation by providing dispute resolution services, and I have seen numerous examples of how OGIS’s efforts can help resolve disputes that could turn into litigation. For example, OGIS regularly assists requesters with delayed FOIA requests where communication with the agency has broken down. In these instances, OGIS can facilitate communication between the requester and the agency. Once this communication is established, requesters and agencies have an opportunity to identify actions that could reduce the FOIA processing time, such as narrowing the scope of a request or agreeing to rolling releases. Similarly, an instance where a requester is dissatisfied with the outcome of a FOIA appeal can be particularly “ripe” for litigation. While in some instances an agency will understandably stand firm in its appeal determination, in other cases, OGIS’s involvement has resulted in the release of additional records. In every case, OGIS provides additional information about the agency’s application of the FOIA. This information is valuable to the requester in determining their next steps.
OGIS’s mission expanded dramatically following the 2016 amendments to the FOIA, which required that agencies offer OGIS’s assistance throughout the FOIA process. The involvement of OGIS earlier in the process could potentially avoid or prevent conflicts that may result in an administrative appeal or FOIA litigation.
During my work with the Mediation Team, I quickly became aware of the complexity of the issues that requesters face at various stages of the FOIA process, a number of which would not necessarily show up in litigation. Providing an alternative to litigation is undoubtedly important, but FOIA statistics show that less than 1% of FOIA requests are ever litigated. And many of the conflicts and/or difficulties that requesters encounter during the FOIA process that are brought to OGIS are not necessarily ripe for litigation — or even mediation. Instead, OGIS customers often need assistance navigating the FOIA process itself. While the goal of FOIA is transparency, the process can confuse a first-time or inexperienced requester. The decentralized nature of FOIA can add complexity to the process as agencies across the executive branch can structure certain aspects of their FOIA process differently. When requesters reach out to OGIS, they are often frustrated and dissatisfied with the FOIA process. In Fiscal Year 2021, OGIS received approximately 4,200 requests for assistance. These cases involve requesters at various stages of the FOIA process. For example, of the cases in which the requester indicated where they were in the FOIA process, approximately 11 percent of those requesters contacted OGIS before filing a request. In such cases, OGIS staff is often explaining the FOIA process and/or directing requesters to the proper agency.
OGIS frequently hears from requesters who have received an initial FOIA response, but have not yet filed an administrative appeal. In these instances, OGIS most often assists by explaining the importance of the appeal process and providing resources to assist the requester as they draft an appeal. In such cases, OGIS is not engaging in mediation between requesters and agencies, but offering assistance to aid requesters through the FOIA process. This improves the FOIA process and protects the administrative rights of the requester.
FOIA litigation is costly for the requester and the agency. In some cases, litigation is appropriate, particularly when the issues between the agency and requester are intractable or unique. However, many of the disputes in OGIS submissions can be remedied by greater understanding of the FOIA process. For example, if a requester is unsure of where they are in the FOIA process, facilitated communication between the requester and the agency shines a light not only on the requester’s particular FOIA concern but on the agency’s FOIA process itself. Such information can be extremely useful for less experienced FOIA users who may go on to submit subsequent requests. OGIS also uses this OGIS-facilitated communication between the agency and requester as an opportunity to highlight to agencies areas where their FOIA process may confuse requesters.
Ensuring that requesters are informed about FOIA processes and procedures is not the only component of effective transparency policy. It is important to note that even the most knowledgeable FOIA requester can encounter difficulty and delay during the FOIA process. OGIS does not have the authority to “punish” agencies; however, OGIS’s compliance program — which is separate from the mediation program — informs agencies when there are areas of systemic FOIA noncompliance that the agency needs to address. For example, a 2007 amendment to FOIA requires agencies to provide “an estimated date on which the agency will complete action on the request.” Despite this amendment, many requesters contacted OGIS because they were unable to obtain an estimated date of completion (EDC). In response, the Compliance Team released an issue assessment in March 2020 on EDCs for FOIA requesters. Compliance reports, such as the EDC assessment, incorporate both feedback from requesters and FOIA professionals in order to develop recommendations and best practices aimed at promoting agency adherence to FOIA statutory requirements.
Any discussion of improving the FOIA experience must acknowledge the resource deficiencies that plague the implementation of FOIA. In my communication with agencies when seeking the status of delayed requests, some agency contacts candidly explained that they lack adequate staff resources and struggle with backlogs. The vast majority of agencies do not have dedicated FOIA funding and increases in FOIA staffing have not always kept pace with increases in FOIA requests. These deficiencies, which require congressional attention, can make it more difficult for an agency to respond to requests for information and for the FOIA Public Liaison to answer questions about individual requests and educate requesters about the FOIA steps and processes. Additional resources could assist in reducing requests and appeals backlogs and provide additional points of contact within agencies to guide individuals through FOIA along with OGIS. And although OGIS does not process FOIA requests, OGIS serves as a FOIA ombudsman for the entire federal executive branch—with a staff of eight currently tasked with processing thousands of requests for assistance each fiscal year while simultaneously assessing compliance.
The realization of government transparency is a complex undertaking requiring the engagement and input of all three branches of government to facilitate an effective, clear, and efficient experience for all FOIA requesters. The needs and goals of FOIA requesters vary substantially. Some requesters have extensive experience in making requests for media, litigation, or research purposes. Other requesters may use FOIA for the first time in order to access genealogical or benefit records. As noted previously, litigation, while sometimes appropriate, can drain time and resources for all parties involved in a dispute so the goal of litigation diversion is valuable on multiple metrics. However, the work of OGIS towards creating more informed FOIA requesters and FOIA professionals is also a key component of achieving effective transparency policy implementation.
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