“FEDERAL NEWS NETWORK” By Justin Doubleday
“A federal advisory committee is recommending Congress give a small office at the National Archives and Records Administration the ability to issue binding decisions over Freedom of Information Act request disputes.
The Committee is recommending Congress significantly increase the powers and budget of the small office. The committee’s annual report recommends giving OGIS authority to issue binding decisions that compel agencies to release records.”
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“Proponents of the recommendation say it will help improve FOIA at a time when public records requests backlogs and denials are on the rise. But the idea also faces pushback, including from the office’s director.
With just 10 employees and an annual budget of less than $2 million, the Office of Government Information Services, or OGIS, is charged with mediating disputes between the public and agencies over FOIA requests.
OGIS reported that it handled approximately 4,200 requests for assistance from both requesters and agencies in fiscal 2021.
The office describes itself as a “resource for information and assistance about the FOIA process” in its role as the federal FOIA ombudsman.
David Cullier is associate professor at the University of Arizona’s School of Journalism and a member of the FOIA Advisory Committee. He helped lead a “Reimagining OGIS” working group study that led to the recommendations.
“The more and more I’ve researched and looked into this, at the state level, local level, federal, other countries, it’s clear if you don’t have an enforcement mechanism that’s independent, that’s effective, that’s free to people, then it just doesn’t work,” Cullier said.
The Reimagining OGIS study found that about 80 countries and more than two dozen U.S. states have independent mechanisms for adjudicating public records disputes outside of the court system. The advisory committee specifically recommends Congress model OGIS after Pennsylvania’s Office of Open Records.
That office was established in 2008 as part of state’s reforms to its Right-to-Know Law. Terry Mutchler, an attorney who served as the Office of Open Records first executive director, helped contribute to the Reimagining OGIS study.
“What the Office of Open Records in the Pennsylvania model has done is it has cleared the forest, has created a path and has leveled the playing field, at least in the initial stages, for citizens to have greater ease at accessing the records that they own,” Mutchler said.
A requester in Pennsylvania can file a complaint with the Office of Open Records within 15 business days of being denied a records request. If mediation can’t settle the matter, then a complaint officer can issue a binding decision on whether or not to release the records.
Most decisions are made within 30 days, with the rest taking up to 60 days, according to the Reimagining OGIS study. The office’s conclusions can still be challenged in court. The study found that happens with about 3% of decisions.
Cullier says instituting that kind of model at the federal level could help ensure many FOIA disputes don’t end up in costly and lengthy court battles. FOIA litigation cost agencies more than $38 million last year.
“There’s a big chunk of these cases that are a waste of time, that can be handled much cheaper, much faster in other ways. They shouldn’t be bogging down the courts,” Cullier said. “You have this huge, massive chunk of disputes and denials, where requesters just walk away, because they’re average people who can’t hire an attorney to challenge it.”
The advisory committee’s report also recommends Congress give OGIS ability to review agency records “in camera.” Currently, agencies don’t have to show OGIS unredacted records during a dispute.
The committee is also recommending lawmakers increase OGIS’s funding and create a direct, line-item budget for the agency.
Proponents of the recommendations acknowledge that OGIS can’t solve all federal FOIA issues. Agencies chronically underfund their FOIA offices despite a spike in backlogs, and officials are also struggling to sort through increasingly high volumes of electronic data.
But Adam Marshall, a senior staff attorney at the Reporters Committee for Freedom of the Press, says having a stronger enforcement function could force agencies to improve support for their own FOIA programs.
“If government agencies are required to justify and defend their actions under FOIA to a third party, I do think that could have a systemic effect, and potentially improve the process for everyone,” Marshall said. “I think there’s truth in FOIA to the adage that the squeaky wheel gets the grease, and a lot of times, it’s just continuing to hammer on one issue until people start paying attention to it.”
“If government agencies are required to justify and defend their actions under FOIA to a third party, I do think that could have a systemic effect, and potentially improve the process for everyone,” Marshall said. “I think there’s truth in FOIA to the adage that the squeaky wheel gets the grease, and a lot of times, it’s just continuing to hammer on one issue until people start paying attention to it.”
But the call to revamp OGIS’s authorities is far from unanimous. The FOIA Advisory Committee approved the OGIS binding decision authority recommendation 12-3, with members from the FBI, the Department of Commerce and the Environmental Protection Agency, respectively, voting against the proposal.
OGIS Director Alina Semo, who also serves as chairwoman of the advisory committee, abstained from voting on the binding authority recommendation. But the office provided feedback to the “Reimagining OGIS” report, raising concerns that the proposal to shift the office to an enforcement function would “erode the trust and safe space for vital conversations that OGIS has built over the years with both requesters and agencies.”
During OGIS’s annual meeting on June 29, Semo further outlined her concerns.
“No, I don’t believe that we need reimagining,” Semo said. “Our approach from the very first day that we opened our doors as the FOIA Ombudsman is we believe we have been serving in the capacity consistent with what Congress envisioned for us to do. . . . These recommendations would erode and significantly shift away from our role as the FOIA Ombudsman that we’ve staked out for the last 12 or so years.”
Semo does support further study of the recommendations. But Mutchler says OGIS should position itself as being on the side of requesters.
“It’s very difficult to stand up to your fellow government lawyers,” Mutchler said. “I get it. I did it, my whole staff did it, it’s uncomfortable. But you just have to keep the lines clear as to what and who you’re fighting for. To the citizen, you’re the champion. To the agency lawyer, you’re a thorn in their side.”
But the advisory committee’s final report acknowledges that there are still open questions around how binding decision authority at OGIS would work in practice. For instance, should requesters be forced to file a complaint with OGIS before moving on to litigation? And if an agency decides to dispute an OGIS decision in court, would the requester be forced to pay for their own defense?
To grapple with those questions and others, the committee’s final report includes a unanimous recommendation for the National Archivist to commission a feasibility study of the OGIS proposals. The ideas are also likely to come up for further discussion when the next two-year term of the Advisory Committee begins this September.
Cullier acknowledges the OGIS ideas could use further study, but he hopes that members of Congress will take them under consideration in the not too distant future.
“These things take time,” he said. “I suspect we want to continue to flesh this out, so that when someone does get interested in grabbing this and running with it, they have the best information available.”
ABOUT THE AUTHOR:
Justin Doubleday is a defense and cybersecurity reporter for Federal News Network. He previously covered the Pentagon for Inside Defense, where he reported on emerging technologies, cyber and supply chain security. Justin is a 2013 graduate of the University of New Hampshire, where he received his B.A. in English/Journalism.
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