Ombudsman helps keep the peace during the FOIA process

When things go sour between an agency’s Freedom of Information office and someone seeking documents, the problem is as likely to be a communication breakdown as it is to be about differing interpretations of FOIA law, open government officials said Thursday.

That’s where the Office of Government Information Services, a sort of FOIA ombudsman written into law in 2007 and established in 2009, has been most helpful, agency FOIA officers said during a panel discussion sponsored by the American University Washington School of Law.

During its three-year life span, the seven-person agency has stepped in more than 2,000 times to mediate disputes between FOIA requesters and agencies to facilitate faster, cheaper and less acrimonious service. About 750 of those resolutions required only a quick email or phone call, but many of them took much more extensive work, OGIS Senior Attorney Corinna Zarek said.

In one case, OGIS mediated between several agencies and a requester seeking official travel records going back several administrations.

As the request was initially written, it would have taken a single FOIA analyst in one agency a full year to fulfill it, said Transportation Department FOIA officer Kathleen Ray. After she’d failed to negotiate a narrowed scope for the request herself, Ray contacted OGIS, which figured out a way for Transportation to fulfill the request with significantly less labor, she said.

In other cases, OGIS has been able to settle disputes about documents that were redacted or denied by giving a clearer explanation than the agency did of its own reasoning, Zarek said.

People who FOIA their own immigration records, for instance, are sometimes denied documents about people with the same or similar name that investigators confused them with, Zarek said. Immigration agencies don’t always make this clear when they deny requests, she said.

OGIS has also helped resolve internal agency disputes and delays, said James Holzer, senior director for FOIA operations at the Homeland Security Department.

“I routinely use OGIS as kind of a wedge internally,” Holzer said. “They’re kind of like my bargaining chip. I can say ‘Oh wait, OGIS is involved in this. They’re kind of interested in what we’re going to do. What do you think about that?’ And they say ‘Oh, maybe we should move this along.’”

The office has also helped explain to requesters the limitations of many outdated government computer systems, which Holzer said “weren’t built with FOIA in mind” and often perform poorly at locating responsive documents.

One of OGIS’s major concerns is how to balance its work as a neutral arbiter between agencies and requesters and its separate mission of providing agencies with recommendations on reforming their FOIA regulations, director Miriam Nisbet said.

“In an ideal world we’d perhaps have a division of staff to do those two things, but we don’t have that luxury,” Nisbet said. “We talk about that a lot internally, trying to figure out how to balance those things and to make those two pieces work well under the circumstances.”

OGIS’s first set of recommendations were delayed for more than a year before the White House approved their release following Senate pressure. 

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