AAN was one of 12 organizations who jointly filed comments drafted by Openthegovernment.org regarding the precedential value of advisory opinions issued by the Office of Government Information Services (“OGIS”) at the conclusion of dispute resolution between FOIA requesters and federal agencies. The comments were filed in response to Proposed Rule regarding OGIS’s fulfillment of its overall statutory mission, which involves: (1) offering mediation services to help resolve FOIA disputes; (2) reviewing agency FOIA policies, procedures and compliance; and (3) identifying procedures and methods for improving compliance under the FOIA.
OGIS – sometimes referred to as the “FOIA Ombudsman” was first created in the OPEN Government Act of 2007 with the expectation that it would provide a strong voice on behalf of FOIA requesters when agencies were recalcitrant or outright refused to follow the law. One expectation was that agency-requester mediations would conclude with an actual decision as to who was right and who was wrong that could be held out as some sort of precedent for similar agency actions in the future. To date, OGIS has largely stopped short of doing this; the closest they have come is to issue general advisory opinions don’t have much impact in terms of modifying bad agency behavior.
While the proposed rules have some positives, they do not address a key component of OGIS’s mission: its review of other agencies’ FOIA Policies, Procedures and Compliance. And, on the topic addressed by the proposed regulations – the procedures for dispute resolution – the proposed regulations fall short of our desires.
That is why our comments:
- Recommend the proposal and enactment of regulations addressing two “missing” issues: procedures for issuing advisory opinions and for reviewing other agency FOIA practices.
- Express concern with the statement that OGIS will “follow the Administrative Dispute Resolution Act (ADRA) principles for confidentiality strictly” and “not disclose any information parties share as part of OGIS’s dispute resolution efforts, unless an exception applies under ADRA.” As we note, it is unclear whether OGIS is legally bound by the ADRA; it is less clear whether OGIS’ mediation services are covered by the ADRA. The OPEN Government Act of 2007 certainly did not impose this restriction. The comments therefore oppose any interpretation that OGIS or its services are bound by the ADRA (with the unstated endgame being that OGIS would be free to issue specific final opinions in mediation).
- Also express concern with the proposal that, when issuing a final response letter to parties at the end of mediation, “No party may rely on the letter in subsequent proceedings and its contents are confidential unless both parties agree in writing to allow OGIS to disclose it publicly.”
As the comments note: “We are concerned that this confidentiality requirement is overly restrictive and would severely weaken the role of OGIS in providing expertise on FOIA issues for other agencies, lawyers, and judges, as well as the public.” Imposing strict and wide-ranging confidentiality prevents the public and Congress from monitoring the success of dispute resolution. Instead, confidentiality should apply – at most – to positions taken by the parties and, even then, it should be waivable by the affected party.