OGIS releases FOIA recommendations amid Senate pressure

You-Jin Han | Freedom of Information | News | April 25, 2012

The Office of Government Information Services issued its recommendations for policy changes to the federal Freedom of Information Act yesterday, more than a year after it submitted a draft version to the Office of Management and Budget in February 2011 for review.

The draft remained stalled in OMB pending review for over a year, prompting members of the Senate Judiciary Committee to demand their release during a Sunshine Week hearing on March 13. After being pressed for an explanation of the recommendations’ delay, OGIS director Miriam Nisbet agreed to “get ‘something’ to Congress within a month” according to POLITICO.

On April 13, Nisbet sent Senate Judiciary Committee Chairman Sen. Patrick Leahy (D -Vt.) and Ranking Member Sen.Charles Grassley (R.- Iowa) a letter stating that OGIS would not be releasing recommendations, since they did not suggest “any substantive revisions to the disclosure requirements of FOIA,” only those for “improving internal coordination of government operations.”

“OGIS and OMB agreed that progress on these issues could be made administratively,” she said in the letter.

Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media organizations including The Reporters Committee for Freedom of the Press that advocate for improving open government, said he believes this move “clearly angered the Senate Judiciary Committee, and that controversy got the right results.”

On Tuesday, OGIS released its recommendations to Congress. Leahy issued a statement saying that he “welcome[s]” their release and plans to study them.

When asked why OGIS issued the recommendations following its April 13 letter, Nisbet said the agency “responded in one way and now we’ve responded in a way I hope will be very helpful to the committee and also to the requester community.”

“We’re happy to have these recommendations out there particularly because we want to be responsive to Congress when we’re asked, ‘What are you thinking about?’ and ‘What are you doing?’” she said. "There are a lot of different ways of talking about ways to improve FOIA, and that’s something that we’re doing all the time, whether it’s under the heading of something that says recommendations or whether it is in "other ways.”

The agency first recommends the development of methods to reduce its handling of cases related to the Privacy Act -- a federal law distinct from FOIA, but which often overlaps with it. Second, it suggests agencies adopt model language in their FOIA-related notices that would grant OGIS, as well as other agencies involved in cases referred to OGIS, advance permission to discuss and receive documents for requesters’ cases, rather than having to request consent throughout the process.

Third, OGIS discusses the development of the FOIA Module – a “one-stop portal” website through which requesters can submit requests and agencies can upload responsive documents – and states its intent to potentially “work with other agencies to consider how the Module might be useful to them.” The agency next describes its role in “facilitate[ing] communication on multi-agency requests” to ensure agencies know when other agencies receive the same FOIA request and reduce redundancies. Finally, it recommends dispute resolution training for agencies’ FOIA Public Liaisons, noting that while the law directs the liaisons to assist in FOIA dispute resolution, “there has been no comprehensive training effort.”

The recommendations do not include any proposals for legislative amendments to the FOIA.

Nisbet says some of the recommendations are intended to “help us handle requests for assistance better,” while the others address ways to improve FOIA processing at a more systemic level.

Blum says these recommendations should include “what problems are impacting agencies and requesters that they haven’t felt able to address yet,” rather than what he says they do in their current form – “reporting on what the problems they see are and how they’re addressing them.”

But he says the “broader issue” that the controversy surrounding the recommendations has highlighted is OGIS’s “need to be able to speak with greater independence,” as it “was never supposed to get approval from OMB to identify problems and possible solutions to FOIA’s biggest problems.”

“OGIS is relatively young, and so getting this right now is all the more important,” he said.