Agencies Should Cooperate with Freedom of Information Ombudsman, Administrative Conference Says

by Gavin Baker, 6/6/2014

Federal agencies should do more to cooperate with the government's Freedom of Information Act (FOIA) ombudsman, according to recommendations approved June 5 by the Administrative Conference of the United States (ACUS). The recommendations also called for the ombudsman, known as the Office of Government Information Services (OGIS), to continue efforts to assist people who make FOIA requests. The recommendation is a positive step for helping people access public information under FOIA.

Created by the OPEN Government Act of 2007, OGIS serves two functions in the FOIA system. First, OGIS works to assist individuals with their FOIA requests, including offering non-binding mediation to resolve disputes about an agency's decision. In addition, OGIS reviews agencies' FOIA performance and compliance, a role that OGIS has so far only done in a limited fashion but is poised to expand.

In developing the recommendations, ACUS studied OGIS's dispute resolution and request facilitation work. ACUS generally backed the approach that OGIS has taken to date but also called for OGIS to consider issuing advisory opinions – a power granted to the office by the law, but which OGIS has yet to exercise. Such opinions could be a useful way to call attention to FOIA issues and steer agencies toward improved performance.

In addition, the ACUS recommendations say that agencies should do more to make FOIA work effectively. "All agencies, acting in a spirit of cooperation, should affirmatively seek to prevent or resolve FOIA disputes to the greatest extent possible," the recommendation exhorts. The recommendation calls on agencies to make better use of their FOIA Public Liaisons, the agency officials tasked with resolving FOIA problems, as well as OGIS – and make sure that requesters know they can call those offices for help, in line with recommendations from our Best Practices for Agency Freedom of Information Act Regulations.

OGIS remains a relatively new office – it's been not quite five years since it opened its doors – and it is still developing a reputation. But the ACUS recommendations make clear that agencies should take it seriously when OGIS takes on a FOIA case. "All agencies should cooperate fully with OGIS efforts to mediate or otherwise facilitate the resolution of individual FOIA disputes," the recommendation directs.

The ACUS recommendation is a helpful statement that can strengthen FOIA's functioning. Agencies should heed its message to increase transparency by working with FOIA requesters. Congress, too, has a role in making sure that the ombudsman office receives the resources and authority it needs to have the best positive impact.

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