For OGIS, road to recommendations reveals not enough independence

When the Office of Management and Budget cleared the FOIA Ombudsman to issue its recommendations for improving FOIA operations, it was a win in the battle for open government.  However, the difficult process, in which we and others made a stink and Congress had to become involved, has made clear that the Office of Government Information Services does not yet have the independence that Congress considered so crucial for it to succeed.

OGIS & OMB decide not to make recommendations to Congress

We are deeply disappointed and concerned that the Office of Government Information Services (OGIS) — the FOIA Ombudsman — will not be transmitting its recommendations to Congress for improving FOIA.

OGIS Director Miriam Nisbet sent a letter to Senators Patrick Leahy, chairman of the Senate Judiciary Committee, and Ranking Member Charles Grassley noting that OGIS sent draft recommendations to the Office of Management and Budget (OMB) and after consulting with them decided not to send recommendations to Congress.

Leahy and Grassley: We want those OGIS recommendations. We do, too.

A month after senators Patrick Leahy and Charles Grassley complained bitterly, the Office of Government Information Services (OGIS) has still not released its long-delayed recommendations to Congress and the President on improving the Freedom of Information Act (FOIA) process.  OGIS should immediately release to the public recommendations for substantially improving how FOIA works for both agencies and requesters and regularly report on the government’s progress.

Spring cleaning for b(3) provisions

Spring is a time of growth, change, and ritual; for the openness community, that means Sunshine Week, the release of agency annual FOIA reports, and fresh hope that this year will bring more transparency from the federal government.

Specifically, this year’s FOIA reports detail the use of several new b(3) provisions:

In Case You Missed It: Fed Bank Data Released

While many people focused more on family reunions than the Federal Reserve, late last month Bloomberg News released the data on which banks received overnight loans from the Fed during the financial crisis that peaked in 2008. Release of this data was a hot topic during the debate over the Dodd-Frank financial reform package. Bloomberg News had sued for the data, and Congress wrote in a two-year delay on disclosing the data under FOIA.

Anyone interested in analyzing the data should read this helpful primer from Bloomberg News on the key numbers that have been the focus of controversy.

FCC responds efficiently, but most interesting information left out

The Federal Communications Commission on November 28th posted in one website documents responsive to multiple FOIA requests for information regarding Lightsquared, which is setting up a satellite-based broadband network.  From the FCC:

The Federal Communications Commission has received numerous requests under the Freedom of Information Act (FOIA) for documents related to LightSquared, Sky Terra, Mobile Satellite Ventures, Motient, Harbinger, TerraStar, and people related to these entities. For the convenience of the requesters and the public, under the “frequently requested records” provision of the FOIA, 5 U.S.C. § 552(a)(2)(D), the FCC has created this public web portal to provide ready access to publicly available documents and other responsive documents not otherwise exempt from release under the FOIA

This response will surely help the FCC efficiently respond to each requester. Sounds good, right?

But what the FCC chose to disclose — and not disclose — is at the heart of the dispute, the Washington Post points out in this story posted Nov. 23:

“The trove of hundreds of documents shows widening concern by lawmakers, federal agencies and consumers over whether the satellite technology owned by the firm, called LightSquared, would interfere with GPS systems and put airplanes in harm’s way. These officials also questioned whether the FCC had thoroughly tested the system.

The release, which was in response to a Freedom of Information Act request by several media outlets, largely cull from the public record and did not include any of the internal deliberations that led FCC Chairman Julius Genachowski to bypass a vote by his own commission and allow LightSquared to move forward with its plans.”

So by efficiently releasing documents in one place on a particular hot topic, the FCC did well.  By not yet releasing the document trail explaining the FCC’s handling of Lightsquared, the FCC still falls short.  This shows the difference between processing problems and the substance of agency’s decision to disclose.  Too often agencies can get away with avoiding disclosure of the most inconvenient information.

OGIS puts up new website

The FOIA Ombudsman is rolling out a new website this week.  The Office of Government Information Services (OGIS) created a sleek design with a library of informative background for new requesters and technical background for more experienced requesters.

Much of the new site will be immediately useful to FOIA users.  The OGIS Library should prove useful for requesters who are new to FOIA and want to better understand the FOIA-speak that they sometimes receive in agency responses, although this material is similar to the technical background on the Justice Department’s FOIA.gov.

Other parts are aspirational:  OGIS includes a section on Advisory Opinions but has not issued a single advisory opinion to date.  OGIS notes the office is developing guidance on to explain how and when they will be used.  Thus far, they have been a tool to be avoided, but we believe advisory opinions should be a useful tool that OGIS should use often.

AP study of open gov laws shows Open Government Partnership faces big challenge

The Associated Press (the only newsgathering organization that is a member of SGI) found the majority of countries violate their freedom-of-information laws, the AP reported in an audit released on November 17.

The audit, in which the AP submitted requests for documents to test the speed and quality of responses, should provide a good baseline for evaluating the impact of the U.S.-led Open Government Partnership, which launched earlier this year.

 

CNN notes exemption complicates reporting on Penn State scandal

We give thanks in this week before Thanksgiving to the CNN staff reporting on the Jerry Sandusky scandal at Penn State for explaining how a weakness in the public records law in Pennsylvania hampers efforts to unravel how officials responded to the allegations.   And for calling out the fired university president for fighting against transparency in the years since the alleged events occurred.

Fixing FOIA: Commentators reacting to DOJ’s reversal

The reaction was swift when the Justice Department confirmed in a letter to Senators Charles Grassley and Patrick Leahy that they would not move forward with their plan to say documents don’t exist when, in fact, they do.  You can read the reaction through a simple Google search.