Freedom of Information Act Ombudsman Not Yet at Full Force, Report Finds
by Gavin Baker, 9/26/2013
A recent report by the Government Accountability Office (GAO) found that the Office of Government Information Services (OGIS) doesn't have a plan for conducting comprehensive reviews of federal agencies' Freedom of Information Act (FOIA) policies or their compliance with the law.
Oversight of agency FOIA implementation and assistance for people using the law are vital to guarantee that this fundamental aspect of government transparency operates effectively. Indeed, such oversight and assistance were the purposes for which Congress passed the 2007 law creating OGIS within the National Archives and Records Administration. In response to persistent concerns about agency non-compliance with FOIA and difficulties facing requesters, the new office was established as a "FOIA ombudsman" and tasked with assisting the public in using the law to access information. But it is not obvious that Congress necessarily intended for OGIS to conduct comprehensive reviews, as GAO assumes, or that such an approach is necessary for OGIS to exercise effective oversight.
Since its creation, OGIS has made several positive contributions to improving the processing of FOIA requests, despite operating on a meager budget. The office has assisted individual requesters in resolving complaints, having handled hundreds of cases. Additionally, OGIS has published useful policy recommendations and best practices for improving FOIA procedures. The office has evaluated 18 proposed agency FOIA regulations and offered feedback and suggestions. OGIS also played a significant role in establishing the multi-agency FOIA portal.
Limited Agency Review
On Sept. 10, the GAO released a report on OGIS's work. The GAO report acknowledged the office’s accomplishments to date. But the report points out that OGIS has not carried out all of the responsibilities assigned to it by Congress. In particular, "the office has not conducted any reviews of agencies' compliance with FOIA," according to GAO.
GAO also reports that OGIS has not yet conducted a comprehensive review of agency FOIA policies, nor has it developed a clear methodology for doing so. Instead, the office’s policy review has been limited to particular cases, such as proposed regulations.
OGIS acknowledged its limitations in reviewing agencies, noting that, given its small budget, the office has focused on assisting individual requesters rather than conducting policy and compliance review.
The GAO report found that OGIS had successfully assisted some requesters in resolving problems in individual cases. But GAO said that the office should have performance goals and measures, such as resolving complaints within a certain number of days, for its requester services. Without such measures, the report states, "the office will not be positioned to determine how effectively it is performing mediation and contributing to the resolution of cases."
Overall, the agency agreed with GAO’s recommendations and stated that it would consider the report's suggestions.
We believe that an OGIS plan to review agency FOIA policies and compliance is important for the office to have a more systemic impact on FOIA implementation. Given the office's currently limited resources, such review may need to be targeted – focusing on particular concerns – rather than comprehensive, at least in the short term.
Indeed, OGIS should consider whether comprehensive review is necessary. The Justice Department's Office of Information Policy (OIP) recently issued its annual assessment of how well agencies are processing FOIA requests. The assessment measures agency performance against "implementation milestones" developed by OIP, providing a fairly comprehensive evaluation of FOIA implementation in each agency. The GAO report does not mention the OIP assessment or consider whether comprehensive review by OGIS would be duplicative of the existing evaluation.
Whatever approach OGIS takes, Congress needs to ensure that the office receives sufficient resources to carry out its duties. The open government community has complained that OGIS has been underfunded since its creation. Adequate funding is necessary for OGIS to play its role in making sure that FOIA works for providing access to public information.