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.

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.

OGIS announces annual report, new blog

Our friends at the Office of Government Information Services (OGIS) are expanding the office’s online presence with a new blog, “The FOIA Ombudsman: Information and Advice”. Although the office and its staff have been busy with Sunshine Week activities, they have also found time to release their first annual office report: “The First Year: Building Bridges Between FOIA Requesters and Federal Agencies”. The report shows the office working to integrate statutory directions, practical expectations, and competing policy priorities as it strives to help both requesters and agencies use FOIA more efficiently and effectively.

Advocates, officials discuss sunshine measures

Here’s a brief summary of testimony by witnesses at a hearing of the Senate Judiciary Committee this morning on the Freedom of Information Act.  Our appreciation to Chairman Patrick Leahy for holding the hearing (and adjusting the schedule to avoid conflicting with “FOI Day” at the Freedom Forum).

Mining to resolve a dispute, OGIS gets the shaft

CNN’s Anderson Cooper talks a lot about transparency.  He focused on transparency troubles while covering the gulf oil spill.

Watching the Chilean mine rescue unfold, on October 12th Cooper noted that the Chilean government’s rescue operations have been more transparent than similar responses to mining disasters in the U.S.

If the way the Labor Department ignored the FOIA mediator’s office is any gauge, he may have a point.

A win for OGIS!

Today The Associated Press story showing that political officials reviewed FOIA requests proves that the Office of Government Information Services can effectively resolve disputes and avoid potential litigation (not that we necessarily doubted OGIS).

(For full disclosure, the AP is a member of the Sunshine in Government Initiative.)

AP’s Ted Bridis reports that political appointees at the Department of Homeland Security ordered career staff to give them a heads up when a FOIA request came in for sensitive information.  AP describes it this way:

[DHS] detoured hundreds of requests for federal records to senior political advisers for highly unusual scrutiny, probing for information about the requesters and delaying disclosures deemed too politically sensitive

As of June 1, OGIS reported closing 182 cases since opening their doors in September 2009.  The vast majority appear to be breakdowns in customer service: requests fall through the cracks, a requester needs more information about FOIA or where to submit a request, etc.

This is routine stuff that for the most part the agencies themselves should be taking care of.  It’s frustrating for the requester, and OGIS does a service by helping requesters with these issues, but these are things agencies should be fixing.

But this particular request by the AP appears to be a case where the agency did not want to disclose.  An independent eye (OGIS) on the dispute was necessary to resolve the issue and possibly prevented costly litigation.

This is exactly what the OGIS was created to do.

Agencies trend toward withholding upon appeal reverses course in 2009

First, look at this chart compiled by friend of SGI and master FOIA data analyst Pete Weitzel.

It’s pretty.  But it also clearly shows agencies responded more positively to FOIA appeals (not requests) by releasing more information in full or in part.  And note also that fewer appeals were completed in 2002 to 2006  compared with the years before and after.  And in those years, there were fewer rejected FOIA appeals (with the partially and fully granted requests lower than in other years but not by much).

Two theories may explain this trend.  This may be a clear reflection of administration priorities.  Appeals are heard by upper-level agency counsel or more senior managers, and managers simply may not have responded to as many appeals.  It also may reflect a calculation by requesters that their apeals will not be successfully, so more requesters whose appeals would be rejected do not file them at all.

But interestingly, the trend started in 2008.  Did the increased attention to FOIA in Congress or the 2005 executive order spur agencies to look at their FOIA operations and plan improvements that are now paying off?  That may be.  This is the kind of suggestive data that spurs debates about how to improve FOIA without giving much insight into the cause of the shift.

Paring the annual report data with interviews with agency personnel and outside audits will give better insights into how to improve the system.  Otherwise, agencies will be putting out data that is of little value.

We’re hoping the Office of Government Information Services will be able to conduct studies and analyses that bring together performance trends with the problems requesters are facing (and bringing to OGIS for mediation) and the access to the FOIA officials to give clear insights into how FOIA really functions and what practical changes will improve agency readiness to handle FOIA inquiries.

May update on FOIA ombudsman cases

More people are finding the Office of Government Information Services for help resolving problems with their FOIA requests, according to the latest monthly update from OGIS (pdf).

April brought 52 new cases to OGIS, a drop from 60 new cases in March.  March’s windfall likely came from the office’s visibility during Sunshine Week.  To its credit, each month OGIS has been able to close more cases than the previous month.

OGIS also reported this week (pdf) the office opened 206 cases since opening its doors in September 2009, resolving 149 of them as of May 5, 2010.  OGIS has hired a staff, started offering dispute resolution trainings for FOIA officers and made presentations at numerous conferences and workshops.

OGIS reports that roughly a quarter (24  percent) of its cases related to Privacy Act requests, which the office does not handle.  The biggest category of OGIS inquiries related to denials (28 percent).  Requests for information account for roughly another fourth of all requests, and delays spurred 16 percent of cases.  Other cases dealt with fees (9.5 percent) and other complaints.

OGIS has yet to report mediating a case of meaty differences between requesters and agencies.  Helping requesters avoid the annoying, frustrating and oftentimes confounding procedural problems with FOIA are a great contribution.  Requesters and agencies have not had a place to go for an independent voice to weigh in on FOIA disputes. How many of these resolved cases would have gone to litigation?  How many resulted in a different outcome, where the agency addressed a deficiency to avoid a later lawsuit, or a requester understood the nature of the agency’s decision to withhold, and avoided a costly lawsuit?  These are metrics that will show OGIS’s worth, but may be the hardest to come by.

We are still looking for that first good case where OGIS brought in a mediator to resolve a dispute.

Senate Approves FOIA Delays Commission, Adds Momentum to Improving FOIA

The Senate yesterday passed legislation (S. 3111) that would create a commission to study delays and other problems with the Freedom of Information Act (FOIA).

“This legislation adds momentum to get to the bottom of FOIA’s longstanding limits,” said Rick Blum, coordinator of the Sunshine in Government Initiative. “Too often the first advice to getting information from government is, ‘Avoid FOIA if you can.’ FOIA should help people obtain the information they seek from our government in a timely manner. While FOIA is vital to ensuring transparency when it’s inconvenient or embarrassing, using FOIA can be slow and unreliable. We hope this study will find ways FOIA can work better for agencies and the public. We applaud Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senator John Cornyn (R-TX) for their longstanding efforts to make FOIA work better.”

The Congress and executive branch have recently focused on improving FOIA.

In 2007, Congress enacted amendments that created the Office of Government Information Services (OGIS) within the National Archives and Records Administration to mediate FOIA disputes and recommend improvements to FOIA, improve incentives for federal agencies to avoid open records lawsuits and require agencies to track more information about their own FOIA compliance.

Congress has held several hearings in the past year to keep tabs on OGIS as it starts up and take the pulse of FOIA.

Earlier this year, the Justice Department announced it would create a FOIA Dashboard to help the public view agency FOIA performance and track improvements in agency operations.

The House of Representatives must still take up the legislation.

For more on the legislation, see Sen. Leahy’s statement and Senator Cornyn’s release.

Many agencies swept into early OGIS mediation requests

A quick glace of the latest case log from the Office of Government Information Services shows requests are coming in for help with many agencies.  In fact, the distribution of agencies with which requesters are seeking help is remarkable.  (Click image to expand. -RB)