Prospects for mediation at OGIS

The OPEN Government Act of 2007, which amended the Freedom of Information Act (FOIA) and created the Office of Government Information Services (OGIS), set out two tasks for the fledgling agency in the new section (h). First, OGIS is expected to review administrative agencies’ Freedom of Information Act (FOIA) policies, procedures, and compliance – and use what it learns to propose policy changes to Congress and the President. (As we blogged about last month.)

Second, and central to this analysis, OGIS is expected to “offer mediation services… as a non-exclusive alternative to [FOIA] litigation.” Mediation services, as OGIS explained, includes “a range of services within that spectrum. Both mediation and facilitation are forms of ‘mediation services.’.” During its first year, OGIS reported that facilitation succeeded fully in about 82% of cases (68/83).

And OGIS has created a comprehensive plan for mediation: OGIS employees have been trained in mediation-related skills, established procedures for mediation, and arranged for mediators to be available for mediation. OGIS has built constructive relationships with numerous agencies through interactions in hundreds of cases over the last two-plus years, since its inception in September 2009. OGIS has been able to resolve many of its cases through facilitation and providing ombuds services. However, some cases under the aegis of OGIS have faltered before reaching a conclusion that both requester and agency can accept; descriptions of the following cases, from the OGIS case files, explain how mediation has been considered and rejected.

Case number Date filed Agency Status of request/response
10-0084 3/15/10 DOD “Spoke to customer [agency] and requester’s attorneys; customer submitted proposal for mediation. Requester’s attorney advised not interested in mediation in this case.
10-0088 3/19/10 DOJ “Discussed issues with FPL and requested OIP reconsideration of appeal decision. On 12/7/10, discussed OIP’s decision upholding its original appeal decision with AP atty. Explained pros and cons of mediation, even if DOJ would be willing to participate.
10-0136 4/12/10 DOJ “Letter sent to customer explaining that mediation is not available and gave status of remanded request.”
10-0246 6/24/10 (multiple agencies) “OGIS, OMB and OIP held a meeting and call with agencies to gather information on 09/16/10. OGIS held a second meeting on 11/29/10 and has continued to work with agencies and customer. Customer has now requested formal mediation with 6 agencies.
11-0027 10/21/10 OPIC “Agency agreed to review a few items of interest and its own position on the response. Customer was not satisfied with that result and requested formal mediation. OGIS did not believe this case was appropriate for mediation.
11-0246 5/2/11 SEC “Spoke with customer for more information. Discussed the withholding with the agency and it is firm in its position. Customer inquired about mediation and after review, OGIS did not believe this was a successful candidate for mediation.
11-0372 9/27/11 DOJ Determined there is no issue that is appropriate for mediation.

After all, providing mediation services is one of OGIS’s two main responsibilities. And OGIS has been around now for over two years, fielding over 1,200 inquiries and opening over 700 cases, gearing up for mediation to resolve sticky situations… they’re still waiting for their first mediation.

We realize that there are case-specific details beyond the information in the OGIS logs. And of all the cases they saw in FY2011, only about a quarter involved “true disputes.” Of those true disputes, about two-thirds reached a conclusion both parties could accept.  As OGIS put it, “Several cases were ripe for mediation, but in those cases, both parties could not agree on entering into that process.”

Still, we had hoped that after being open for over two years, OGIS would have been able to shepherd at least one case involving a “true dispute” into mediation. We are also concerned that as time continues to pass with no formal mediations, agencies and requesters may come to view the option as illusory. This may not be fair to OGIS, agencies, or requesters, as none are entirely responsible for the existence or non-existence of mediations, but the longer OGIS goes without a track record of mediations, the less agencies and requesters will see it as a real option.

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