Customer Service: Resolving Disputes
“The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation, and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute.”
The Freedom of Information Act
5 U.S.C § 552(h)(3)
More than 1,200 FOIA requesters from nearly every state and points around globe turned to OGIS for assistance in its first two years as FOIA Ombudsman. Requests for help ranged from questions about how to file a FOIA request and how to appeal an agency release determination to more difficult inquiries about resolving disputes pertaining to specific exemption use or agency FOIA policy.
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Case Study Douglas J. Gillison, then-executive editor of the English-language Cambodia Daily, requested OGIS assistance in March 2011, after delays in processing his FOIA requests and appeals to the FBI and State Department. In addition to a 19-month wait for a State Department response, Mr. Gillison had received conflicting information about the FOIA referral process. Mr. Gillison sought access to records pertaining to a March 30, 1997, hand grenade attack in Phnom Penh, Cambodia, that injured American pro-democracy activist Ron Abney; corruption allegations at a U.S.-funded Cambodian tribunal; and the vetting of Cambodian military units for human rights violators. OGIS communicated with both agencies' FOIA Public Liaisons about the status of the requests, appeals, and referrals. OGIS learned and shared with the requester details about the processing of his requests and appeal, including:
Mr. Gillison did not receive all the information he sought, nor did he receive documents as soon as he would have liked, but OGIS's involvement helped ensure that the FOIA process worked for both the requester and the agencies. "Many thanks again for your help," he wrote OGIS in June 2011. "You guys really cut through the morass of our FOIA searches." |
OGIS opened 764 cases in response to those requests for assistance—391 in its first year and 373 in its second year, ending September 30, 2011. Between June 2010, when OGIS began tracking telephone and e-mail quick assists, and the end of FY 2011, the Office helped nearly 500 callers and e-mailers.
OGIS’s work has reached customers from 48 states, the District of Columbia, the Northern Mariana Islands, Puerto Rico, and 13 foreign countries, including Australia, Cambodia, Canada, France, India, Iraq, and Mexico. Individuals, including veterans, researchers, professors, journalists, attorneys, and inmates, comprised more than three-quarters of OGIS’s FY 2011 caseload.
On the agency side, OGIS cases in FY 2011 involved 42 Federal agencies, including all 15 cabinet-level departments. About half of OGIS cases came from five cabinet-level departments:
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94 cases (25 percent) from the Department of Justice
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42 cases (12 percent) from the Department of Homeland Security
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24 cases (about 7 percent) from the Department of Veterans
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28 cases (about 7 percent) from the Department of Defense
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13 cases (about 3 percent) from the Department of Health and Human Services
These numbers do not imply that those agencies have more problematic FOIA operations than other agencies; rather, those agencies regularly refer requesters to OGIS. Many offices still do not know about OGIS and the
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Best Practices: Exemption Use and Disclosure Attorney General Eric Holder, in his March 2009 memorandum on FOIA, strongly encouraged agencies to make discretionary disclosures of information and instructed agency FOIA personnel not to withhold information merely because, as a technical matter, the records fall within the scope of a FOIA exemption. Some examples of discretionary disclosures:
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services it offers. OGIS exists for both requesters and agencies, and in FY 2011, the Office saw an increase in the number of agencies coming to the FOIA Ombudsman for assistance. Four cabinet-level departments and a handful of smaller agencies sought OGIS assistance on a range of issues, from dealing with repeat requesters to working with program offices within the same agency to locate responsive records. A majority of OGIS cases—56 percent—involved delays and denials in FY 2011. Delays ranged from instances in which requesters wondered why agencies have not responded in 20 working days to cases in which delays lingered for months or years.
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Case Study Requester Scott Hodes contacted OGIS in July 2010 about five FOIA requests he had pending at the Centers for Medicare and Medicaid Services (CMS), some dating back to 2005. Mr. Hodes had heard little from the agency about the status of his requests apart from a call asking if he was still interested in receiving records. OGIS contacted CMS and learned that a major effort to clear its backlog, which included creating a Backlog Strike Force, sparked the "still interested" call. While such calls can be useful, the Department of Justice Office of Information and Policy encourages agencies to think carefully about making them -- requesters report that they can cause ill will toward an agency, since they may have taken an agency's silence as a sign that it is working on a request. OGIS told CMS that Mr. Hodes was indeed still interested in receiving the records. Though it took some time, CMS fulfilled Mr. Hodes's FOIA requests. While CMS's delay in processing Mr. Hodes's requests is regrettable, the agency's FOIA staff used several FOIA best practices to complete his requests. CMS FOIA staff communicated with OGIS throughout the process, informing the Office about which requests they were working on, the status of those requests, and when they might be completed. Since some of the records Mr. Hodes requested required pre-disclosure notification--notifying nongovernmental entities that were the source of the records and waiting for their reply--the status updates were particularly helpful. When it could, CMS also made interim releases, and once offered to resend records when it was unclear whether Mr. Hodes had received them. |
OGIS denial cases in FY 2011 involved eight of the nine exemptions to FOIA. (OGIS has not handled any cases involving Exemption 9, the least-cited exemption, which protects “geological and geophysical data, including maps, concerning wells.”)
The most often invoked exemptions in OGIS cases are Exemptions 6 and 7, which protect personnel, medical, and similar files, the release of which could invade personal privacy, and records and information compiled for law enforcement purposes, respectively. A vast majority of these cases involve requesters seeking information on third parties. Both FOIA and the Privacy Act prohibit the Government, as a general rule, from releasing information about a third party without his or her written consent or proof of his/her death, or without a showing of an overriding public interest in disclosure of the information.
OGIS saw about a dozen cases in FY 2011 involving Exemption 3, which covers nondisclosure provisions in other Federal statutes. Agencies invoked 150 such statutes in the year ending September 30, 2010, according to the Department of Justice (DOJ). OGIS cases involved at least seven of those laws, including
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Rule 6(e) of the Federal Rules of Criminal Procedure, which protects from disclosure Federal grand jury information (Fed.R. Crim. P. 6(e))
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the Postal Reorganization Act, which protects from disclosure certain postal information including the names or addresses of postal patrons and information prepared for use in collective bargaining agreement negotiations (39 U.S.C. § 410(c))
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the National Security Act of 1947, which protects from disclosure records pertaining to intelligence sources and methods (50 U.S.C. § 403-1)
Although OGIS has no investigatory or enforcement power and cannot compel an agency to release documents, the Office successfully facilitated resolutions in two-thirds of the cases involving a true dispute in FY 2011. The majority of OGIS cases—more than three-quarters—did not rise to the level of actual disputes between FOIA requesters and Federal agencies. In the 66 cases that OGIS identified as involving true disputes in FY 2011, two-thirds resulted in the disputing parties agreeing to an outcome. OGIS’s definition of success in such cases is that both the requester and the agency can endorse the outcome even if neither party’s position is entirely fulfilled.
In one-third of the cases that OGIS identified as disputes, the Office failed to facilitate resolutions. In several cases, agencies reviewed their final decisions, and OGIS determined that the cases were not successful candidates for formal mediation because case law and current FOIA policies clearly supported the agency position, which did not satisfy the requesters. In one case, for example, the agency stood by its claimed exemption as proper and necessary to protect the business interests of a private company that employs contractors, a position OGIS noted is supported by case law; the customer remained dissatisfied. In another case involving the denial of records containing classified information, OGIS could not directly assist and instead referred the requester to the Public Interest Declassification Review Board at the National Archives; the requester was dissatisfied with the referral.
During OGIS’s first two years, no cases resulted in formal mediation, and the Office issued no advisory opinions. Several cases were ripe for mediation, but in those cases, both parties could not agree on entering into that process. OGIS stands ready to provide formal mediation: All of OGIS’s professionals are trained in these services. OGIS’s facilitators became certified in Federal workplace mediation in FY 2011 by Northern Virginia Mediation Service, an affiliate of George Mason University School of Conflict Analysis and Resolution; OGIS also maintains a pool of trained outside mediators should the need arise.
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Case Study OGIS received several cases in FY 2011 regarding requests in which final closing letters from components of the Department of Homeland Security (DHS) referred vaguely to records found in searches and referrals to another agency or agencies. Although there are legal reasons why an agency might not name another agency to which records were referred, OGIS learned that a question remained about whether the use of so-called "blind referrals" was done as rule instead of an exception, leaving requesters feeling as if their requests had disappeared into a black hole. After OGIS brought the concern to the attention of DHS, the agency suggested that in cases of "blind referrals," it would more fully explain to requesters the nature of why the agency could not be named and would provide contact information so requesters could learn the status of the referral to the other agency or component. To date, OGIS has not been asked again to assist with this issue at DHS. |
During FY 2011, OGIS worked to refine its internal processes and measure its effectiveness by partnering with the Harvard Negotiation and Mediation Clinical Program, which offered its expertise and services at no cost to OGIS. The clinic, part of the teaching program at Harvard Law School, continued working into FY 2012 on developing methods for evaluating and improving OGIS’s effectiveness in dispute resolution and stakeholder satisfaction.
OGIS, created to complement existing FOIA practice and procedure, strives to work in conjunction with the existing request and appeal process. OGIS’s preference is to allow the requester, whenever practical, to exhaust his or her remedies within the agency, including the appeal process. However, requesters are welcome to come to OGIS at any point in the process. While 20 percent of OGIS customers sought the Office’s assistance in FY 2011 after an agency’s final determination on appeal, many came to OGIS with questions earlier in the process:
after filing a request (26 percent); after receiving an initial response (9 percent); or before receiving a response to an appeal (10 percent). And 5 percent came to OGIS before even filing a FOIA request.
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Best Practices: Records and Records Management Agency FOIA programs are improved considerably by thoughtful records management practices. The Securities and Exchange Commission reorganized its FOIA program to include records management services. The result: faster responses to FOIA requests. While FOIA does not require agencies to create new records in response to a request, the Surface Transportation Board endeavors to deliver the information sought by a requester--even when it is not compiled in a record--when it is reasonably possible and could save time or money. For example, a requester asked for a list of all Senior Executive Service employees. While such a list did not exist, the agency created and released it since the alternative was to review, redact, and release a number of different records containing the same information. |
OGIS cases were open an average of 50 working days in FY 2011 with a median of 31 working days. Sixteen cases were closed within one week, while one case stayed open 297 working days. The latter case involved a long-standing agency practice. OGIS worked with the agency and the requester, facilitating communication until both sides reached a compromise they found acceptable—an example of neither party’s position being fully satisfied, but both endorsing the outcome.
Despite the Office’s progress, some agencies do not cooperate with OGIS even though FOIA expressly requires FOIA Public Liaisons to assist in resolving disputes (5 U.S.C. § 552(a)(6)(B)(ii) and (l)). And some requesters see OGIS as ineffective.
Fifty cases in FY 2011 involved the Privacy Act, or first-party requests, which fall outside the scope of OGIS’s mission. That was a drop from 97 cases in OGIS’s first year. The Office originally told Privacy Act requesters that it could do little to help them. However, as requesters who are confused about the intersection of FOIA and the Privacy Act continued to come to OGIS, the Office realized in FY 2011 that it could offer ombuds services to individuals requesting their own records, including providing requesters with information about the process and the status of requests. OGIS informs these requesters that it does not have a statutory role in reviewing policies, procedures, and compliance with the Privacy Act as the Office does with FOIA.
