FOIA reforms don't spell victory yet

Uncertainty about the fate of new ombudsman position hampers effectiveness of recently enacted FOIA amendments.
Commentary
Page Number: 
21

From the Spring 2008 issue of The News Media & The Law, page 21.

Of all the elements in the 2007 FOIA reforms that squeaked into law last New Years Eve, the provision setting forth a government-wide FOIA ombudsman may be the most lauded but the toughest to implement.

The Office of Government Information Services — OGIS in government-speak — is intended to serve as an independent entity to help the public resolve disputes that arise while using FOIA.

Currently, requesters appeal any denials or disputes to the agency in question, with no further remedy except taking the matter to a federal court — a time-consuming, costly and legally intricate process for the average citizen-requester.

OGIS would serve as a mediator to fill that gap between an agency’s denial and a legal remedy. The fact that OGIS made it into the enacted legislation was a victory for open government advocates. But now what?

Finding a home

As passed, the OPEN Government Act (P.L. 110-175) placed OGIS within the National Archives and Records Administration (NARA). As the government’s repository for all records and a body that is experienced in record classification, NARA seems a logical and fair choice as OGIS’ home. Additionally, the Government Accountability Office would separately audit agencies’ FOIA operations.

But though President Bush signed the law as-is, his administration moved OGIS to the Justice Department in its fiscal year 2009 budget proposal, without explanation or warning. The Justice Department, as the lawyer for the federal government, defends against all FOIA challenges.

It’s a little like having your judge married to opposing counsel — only imagining these two in bed is a whole lot worse given the climate of secrecy and closure of public records that has occurred even without a Justice/FOIA marriage.

Following this proposed move, both the congressional sponsors of the measure as well as outside supporters expressed their outrage and are fighting hard to get OGIS back where it belongs. But they’ve got their work cut out for them.

Money talks

In a move that might prove to be good for OGIS after all, the Bush administration failed to ask for funding to start up or operate the office. While this came as yet another blow to the already beleaguered office, perhaps it can help get OGIS back where it belongs. If OGIS supporters in Congress — primarily Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.) — can push a specific appropriation through that would fund OGIS at NARA, the matter may be resolved.

The Congressional Budget Office already set forth recommended funding levels when the legislation was moving through Congress, based on the Senate bill. But the law as passed differed a bit from its initial incarnations and may need adjusted funding, some open government advocates say.

The Sunshine in Government Initiative — a coalition of government-access entities, of which the Reporters Committee is a member — suggested providing funding for OGIS within NARA, which it hopes Congress will adopt, cementing OGIS’ home there.

Making it happen

Though the funding hurdle remains a major obstacle, SGI and other OGIS proponents are wasting no time planning for its implementation while waiting for Congress to act.

In addition to its recommendations for OGIS funding, SGI also presented a strategy to get OGIS up and running (available at: http://www.sunshineingovernment.org/foia/OGIS_startup.pdf).

Suggestions include first clarifying a mission, principles and goals, centering them on building a stronger public trust in FOIA implementation and being fair and impartial in so doing. More specifically, SGI sets forth five major recommendations that promote transparency, public participation and convenience throughout a requester’s interaction with the office.

These suggestions are well-thought-out and consider the requester’s perspective, the limitations that would arise with funding OGIS and the realistic hurdles that will naturally come from creating and implementing this office from scratch.

Not a victory yet?

OGIS will serve an essential purpose in making it easier for a regular citizen to use FOIA in accessing government records. While it’s daunting enough to submit oneself to the process of requesting records from an agency — the formalized letter, the inevitable delay that flies in the face of the statute’s limitations, the impossible difficulty in following up on the request — when a request is denied, and when that same agency denies an appeal on its own decision (which is often the case), the requester can be stuck.

Most don’t have the time, money or energy to pursue the action in court. And frankly, they shouldn’t have to. When asking the government for records it keeps on the public’s behalf, the government should absolutely provide a mechanism short of private litigation to sort out disagreements that arise.

OGIS seems the perfect solution here, should it receive the funding and attention it needs. Let’s hope Congress — and, eventually, the executive branch — agrees and finds OGIS a fully funded home at NARA.

Until these FOIA reforms are implemented, passage of the new act will remain a somewhat hollow victory.

— Corinna Zarek, a former legal fellow at The Reporters Committee for Freedom of the Press, was promoted to the Freedom of Information director in March.