Understanding the Office of Government Information Services (part 3/4)

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In our previous two blog posts “Understanding the Office of Government Information Services” parts 1 and 2, we provided a basic overview of how OGIS is structured and highlighted aspects of our dispute resolution program. In this post we’ll touch on the specific nuances of our compliance program. 

How does OGIS’s compliance work?

OGIS reviews agency policies, procedures and compliance through an impartial lens as an advocate for the FOIA process. We do this by:

  • assessing issues that we observe while assisting requesters and agencies with the FOIA process; 
  • offering assessments of individual agency FOIA programs; 
  • highlighting agency best practices;
  • reviewing and commenting on proposed agency FOIA regulations;
  • reviewing and suggesting improvements to agency FOIA materials;
  • working with agencies when we observe policies and procedures that appear to OGIS to be inconsistent with FOIA law or policy; and
  • reviewing government and non-government reports on FOIA activities and compliance.

We build on these activities through our agency assessment program in which OGIS reviews agency FOIA programs. This is accomplished by:

  • assessing agency FOIA programs and providing agencies with FOIA compliance reports; and
  • assisting agencies in solving their biggest FOIA challenges as an advocate for the FOIA process.

For example, if an individual agency is communicating that the requester has fewer than 90 days to appeal, OGIS reminds the agency of its statutory obligation. Similarly, if a requester does not submit a request in accordance with the statute or agency FOIA regulations, OGIS assists the requester by clarifying the requirements. In both of these examples, OGIS is advocating for the FOIA process by reminding the parties of the requirements of the law.

What are assessments and compliance reports?

OGIS conducts three types of assessments: issue assessments about a particular FOIA issue such as estimated dates of completion (EDCs); assessments of individual agency FOIA programs; and assessments emerging from responses to FOIA questions asked by NARA’s Office of the Chief Records Officer for the U.S. Government (the Records Management Self-Assessment) and DOJ’s Office of Information Policy (the Chief FOIA Officer Reports.) Some of these assessments evolve from our observation of the FOIA landscape government wide; others come from the FOIA Advisory Committee which may recommend that OGIS conduct various assessments.

An example of an issue that we observed globally in our dispute resolution work is FOIA’s requirement that agencies provide a requester with an EDC upon request. Our assessment found that agencies were challenged, even before the pandemic began, to provide EDCs, and that agency responses to such requests are mixed. One of our key recommendations is that agencies use average processing times for simple and complex requests to help determine EDCs. We also issued an advisory opinion stressing the importance of compliance with FOIA’s EDC requirement and a FOIA Ombuds Observer providing requesters with tips for obtaining an EDC. Our 2022 OGIS Annual Meeting and our 2022 Report for Fiscal Year 2021 to Congress and the President focused on EDCs, and we continue to assist requesters in obtaining EDCs and to advise Congress of requester and agency EDC concerns. 

Individual agency assessments have occurred at the invitation of agencies and are independent, systematic reviews of agencies to evaluate their compliance with FOIA. These reviews assess the agency’s FOIA operations, policies and procedures. A variety of past reports are available on our Agency Compliance Reports web page.

While we do not have the authority to conduct formal audits (the FOIA statute gives that power to the Government Accountability Office), we are trained in and apply auditing techniques in conducting our assessments. 

How does OGIS address specific instances of non-compliance with FOIA?

When OGIS observes policies, procedures and practices that appear to be out of compliance with FOIA law or regulation, or requesters bring compliance issues to OGIS’s attention, we work with agencies individually to share our concerns and understand the obstacles to agency compliance. When an agency FOIA program shares with us challenges to compliance, we rely on our knowledge of the FOIA landscape to offer possible approaches, such as suggesting ways other agencies have overcome similar obstacles. It is important to note that OGIS does not have investigatory or enforcement authority. We build on our relationships with FOIA programs and FOIA requesters, rely on their trust in our desire to advocate for the process, and keep open lines of communication to ensure compliance with the law.