FOIA and Dispute Resolution: Voices from the Field

This year’s American Society of Access Professionals (ASAP) Annual Training Conference included a panel titled “FOIA and Dispute Resolution.” The panel included Kathy Ray from the Department of Transportation and Brad Heath, a USA Today reporter and frequent FOIA requester. The session was completely full, and there were lots of questions and excellent discussion.

The panel focused on how agencies are resolving FOIA disputes (as they are instructed to do by the 2007 OPEN Government Act). The panelists and audience agreed that the most important tool for resolving FOIA disputes (and encouraging better requests) is good communications. No big surprise there, but what does that actually look like?

Here are some practical dispute resolution tips that the panelists and audience shared:

• Part of our job as FOIA professionals is giving requesters bad news or the same news. It’s not fun, but try to get comfortable with the idea.
• While it may not be possible at every agency, we heard that it can be helpful to have a requester speak directly to program staff.
• When you and a requester talk, follow up with an email summarizing your discussion. This not only ensures that everyone is on the same page, but it creates accountability for everyone involved in the request (such as program staff).
• One agency representative shared that he created a tickler file for all requests that involved 7(A) withholdings so that he can notify requesters when an investigation or proceeding ends.
• We on the government side bemoan requests that are too broad, or imprecise, or voluminous, but remember that if we want better requests, we must be willing to educate requesters about what’s available and how to ask for it in a way that it can be found. Reach out to the requester and help him or her understand your records.
• Think carefully before sending “still interested” letters. Remember that in many cases, the requester has been waiting for a response for months or years, so may strike the wrong tone to inform the requester that he or she must respond in a short time frame to keep that request open.

It was really wonderful to hear about all that agencies and requesters are doing to resolve—and prevent—FOIA disputes. But remember, if all else fails, OGIS is here to help.