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From the Fall 2010 issue of The News Media & The Law, page 14.

From the Fall 2010 issue of The News Media & The Law, page 14.

On Sept. 8, 2009, the Office of Government Information Services opened for business with a hefty mandate. Established by amendments to the federal Freedom of Information Act found in the OPEN Government Act of 2007, OGIS’s mission is to provide free mediation services between requesters and federal agencies in disputes arising under FOIA as an alternative to litigation, to review agency FOIA policy and compliance, and to recommend policy changes. A little more than one year later, OGIS is active on all fronts. But it took some time before operations were in full swing.

OGIS Director Miriam M. Nisbet recalls having to build an office from the ground up. “I think I had a phone and a computer and that was it.” Indeed, some of the greatest challenges facing OGIS in its first year were purely administrative. Staffing, developing case management procedures, calculating budgets, procurement issues and developing a website were all areas that needed to be addressed at the outset. Nisbet, who has spent her career in information policy, including previous positions at the U.S. Department of Justice, the National Archives and Records Administration, the American Library Association and UNESCO, now manages a staff of six that handled approximately 400 cases over the first year.

Nisbet cites additional start-up challenges in the first year, including developing and implementing the office’s mediation services and determining how OGIS can best measure agency compliance with FOIA. Nisbet said there is “no full-blown plan on how to review agency compliance, but we are getting there.”

For example, Nisbet said that individual agency FOIA annual reports — submissions that are already used by the U.S. Department of Justice’s Office of Information Policy to evaluate compliance — will also be utilized by OGIS essentially to raise questions as to what the report data does not reveal and how it could be more informative.

“That’s where we see our added value” distinct from the Office of Information Policy, Nisbet said. Conversing with agency FOIA personnel as to what is and what is not working as well as seeking ways to utilize new technology are additional means by which OGIS intends to help improve the FOIA process.

According to Nisbet, case volume during the last year can be broken down into three main categories. Approximately one-fourth of all OGIS cases thus far are from individuals seeking general information about the FOIA process, such as how to file a records request and appeal agency denials, as well as information regarding the services OGIS provides. Another quarter of all inquiries involve what Nisbet calls “real disputes.” The cases involved disputes over whether a particular exemption to disclosure applied, the proper fees an agency may charge in fulfilling a request and disagreements over the scope of a particular request. Finally, a significant portion of OGIS’ caseload thus far has dealt with individuals who are seeking access to records about themselves. Such first-party requests are often governed not by FOIA but rather by the Privacy Act of 1974. OGIS is not authorized to handle Privacy Act requests or disputes arising under the act.

Interestingly, about one-third of the 382 cases OGIS had handled as of late September were from correctional facility inmates seeking records, with sixty-two of those cases involving Privacy Act requests. Of those same 382 cases, 41, or approximately 11 percent, involved a FOIA request from a member of the media.

While acknowledging that OGIS does not handle media FOIA requests differently than citizen requests, Nisbet noted that by and large journalists are more sophisticated FOIA requesters and are generally better informed about the process and the kinds of records they are looking for. Hence, journalists can be in a relatively advantageous position to engage in mediation with an agency as they often can better articulate a case for disclosure and are also more attuned to agency bases for non-disclosure.

Nisbet offered some advice to journalists who are having trouble gaining access to federal records and what they should do before coming to OGIS.

First, Nisbet advised that journalists who feel they are experiencing an unreasonable delay in processing to contact the FOIA public liaison officer at the agency where they filed a request.

Second, if a records request or fee waiver is denied, Nisbet recommends filing an appeal first with the agency itself before coming to OGIS. If the appeal remains unresolved or the filer continues to believe that an agency is unlawfully withholding documents, he or she should contact OGIS. When engaging OGIS, it is best to provide the entire paper trail of correspondence between the journalist and the agency — from the initial request letter through the final correspondence — along with a detailed letter explaining why you believe any agency is acting unlawfully.

Nisbet estimated that of the 85 total cases that have gone to mediation, approximately 80 percent resulted in a resolution that was agreeable to the requester and the agency. However, OGIS itself acknowledges that it cannot work miracles. OGIS mediation services are voluntary and non-binding, meaning that an agency is not required to respond to an OGIS mediation request, nor is it required to abide by any OGIS recommendation in a particular dispute. Indeed some agencies have been unwilling to engage OGIS. “I won’t say we always get a call back,” Nisbet said.

In one case, the Department of Labor refused to respond to OGIS with regard to a media request for access to an agency inspector general’s report regarding the federal investigation into a 2000 sludge spill in Martin County, Ky. After 174 days, OGIS was forced to close the case because the Department of Labor simply refused to correspond with OGIS. That requester was forced to file a lawsuit and eventually received much of the disputed information previously redacted from the report.

However, OGIS has found success with other requests where agencies refused to respond to a media FOIA request. In January 2010, The Associated Press filed a FOIA request with the Department of Homeland Security seeking documents related to the agency’s internal FOIA processing procedures. The department did not respond to the request and after two months AP filed an appeal within the agency. After again getting no response from the Department of Homeland Security, AP brought the case to OGIS in May 2010. OGIS was able to open a dialogue with the department and weeks later AP received copies of the documents it initially requested.

The documents AP received contained some redactions, which AP is appealing, but according to AP Assistant General Counsel Karen Kaiser, OGIS was instrumental in getting the department to process the request. Kaiser described OGIS as “very on the ball” in this particular records dispute as it was “able to break that barrier” that often arises between a requester and an agency.

In July 2010, AP used the documents it obtained to expose internal FOIA processing procedures within the Department of Homeland Security that routed certain requests deemed politically sensitive to senior advisers within the department for additional scrutiny and review. While department officials claimed that the additional review did not result in blocking the disclosure of otherwise non-exempt information, it did add an unnecessary layer of review resulting in slower FOIA processing and spurred political inquiry into the source and motive of the request. According to AP, the department abandoned the practice after its investigation.

Of the 30 closed media request cases documented as of late September, the average time such a case remained open was 37 working days, with a median of 22 working days. This was slightly longer than the overall average and median for all closed cases, which remained open for an average of 24 working days and a median of 16 working days. The fact that media requests often involve more substantive disputes beyond those raised by a first-time requester may account for the slightly longer time frames.

Further, Nisbet acknowledges that journalists’ expectations should be realistic. Referring a dispute to OGIS will not result in an instantaneous release of documents. But, “we can get to the right person” at the agency. Nisbet views OGIS as an “opportunity to open the lines of communication and not resort to giving up completely or going to look for an attorney.” This is particularly so in cases where agencies are not responding to requests in a timely manner.

Going forward, OGIS intends to broaden its outreach at the requester and agency levels. While some agencies have been quite receptive to OGIS and the idea of developing alternative dispute resolution programs to handle FOIA issues, some agencies simply remain unaware of OGIS and the services it provides.

“Sure, plenty still do not know who we are” Nisbet said. But OGIS intends to overcome this ignorance and has begun offering Alternative Dispute Resolution training sessions for federal FOIA professionals. OGIS also intends to further refine its plans to review agency compliance with FOIA and further develop its mediation program over the coming year. OGIS’ first Report to Congress and the President is scheduled to be released in mid-December 2010.