The federal government’s new Office of Government Information Services (OGIS) hosted a briefing on Thursday, January 14, to discuss the agency’s responsibilities and priorities. OGIS is a new outfit tasked to deal with government-wide transparency and openness issues. At Thursday’s briefing, OGIS Director Miriam Nisbet, and Archivist of the United States David S. Ferriero answered questions regarding the agency’s operations and its role in improving government compliance with the Freedom of Information Act.

Specifically, OGIS is charged with:

• Providing services to mediate disputes between FOIA requesters and Federal agencies;
• Reviewing policies and procedures of administrative agencies under FOIA;
• Reviewing agency compliance with FOIA; and,
• Recommending policy changes to the Congress and President to improve the administration of FOIA.

OGIS opened its doors in September of 2009 -- two years after it was officially established through the OPEN Government Act of 2007. The lengthy delay resulted from a battle between Congress and President Bush over the funding and location of the new agency. Congress originally placed OGIS within the National Archives and Records Administration (NARA), finding that the relatively apolitical NARA would limit the amount of political interference in OGIS activities. However, in President Bush’s 2009 FY budget proposal, there was no funding for OGIS within the NARA. Instead, the President’s budget proposed that OGIS be established in the Department of Justice.

Critics decried the prospect of moving OGIS into the Department of Justice, asserting such a move could undercut the agency’s mission of non-partisan transparency. The Justice Department defends the government’s position in FOIA actions -- a role that struck many as conflicting with the mission of OGIS. Because of these potential problems, OGIS was an agency only on paper until last June, when President Obama appointed OGIS Director Miriam Nisbet, and located OGIS in the National Archives. Congress also funded OGIS with a $1 million budget for establishment, provided by the FY2009 Omnibus Appropriation Act. For 2010 the agency’s budget will grow to $1.4 million.

OGIS Director Miriam Nisbet explained on Thursday that the agency, with a total staff of 6, has a threefold mission. First, the agency will review government-wide compliance with FOIA and recommend policy and procedural changes to Congress and the President. Nisbet said OGIS is working on the development of an Electronic Case Tracking System for FOIA requests. Like tracking a package in the mail, requesters would be able to track the status of their FOIA requests online -- a system Nisbet foresees as the “next step” for FOIA.

OGIS’ second mission is to facilitate mediation in order to prevent costly lawsuits. Nisbet declared that the agency is “committed to avoiding litigation” and will explore various Alternative Dispute Resolution Programs. However, Nisbet spoke only vaguely about what types of mediation OGIS would consider. These include both formal mediation procedures and informal discussion, and would utilize both government officials and mediators from outside the government. Nisbet also suggested the idea of online dispute resolution as a possibility for the future, but did not offer any specifics

OGIS’ third task is to be a “FOIA Ombudsman” serving as a place people could turn to for “anything related to FOIA.” The OGIS website has posted its case log for public review, and the Office is soliciting comments and questions from the public regarding the administration of FOIA.

OGIS has laudable goals, but it is yet to be seen if the agency will prove effective and useful, or whether it will simply be an extra level of bureaucracy in the FOIA process. Both Miriam Nisbet and David Ferriero declared that the agency’s staff would have to grow beyond 6 if it is going to really perform the government-wide functions stated as its mission. Also, review of FOIA policy and procedures is long overdue, but OGIS may have limited effectiveness as an “ombudsman” when the agency has no legal authority to compel document production. The agency needs to elaborate further what specific shape its mediation efforts will take and who will be doing the mediation. As an agency committed to avoiding litigation, it would be devastating if OGIS became just another cog delaying serious and effective FOIA litigation – which is often the only means of achieving document production.

Documents:

OGIS Handouts