NARA makes headway in solving FOIA disputes

Friday - 10/22/2010, 7:08am EDT

WFED's Max Cacas

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By Max Cacas
Reporter
Federal News Radio

An agency mandated by Congress to be the Freedom of Information Act Ombudsman is celebrating its first birthday by charting modest gains. And one observer likens its approach to being a mediator when it comes to FOIA disputes.

Starting with a staff of exactly one person, director Miriam Nisbet, and a mandate to resolve disputes between agencies and citizens making requests under the Freedom of Information Act, the Office of Government Information Services has had an eventful year since opening day in September 2009, said David Ferriero, Archivist of the United States.

"Creating the unit, hiring the staff," he said during a briefing at the National Archives and Record Administration in Washington Thursday, and noting that "this staff of seven has handled over 400 cases, so we're up and running."

The National Archives is the parent agency for OGIS.

Nisbet said one of the biggest challenges they have faced in this first year has to do with making agencies and citizens aware that they are here to help.

"People are finding us," she said. "But in the context of almost 600,000 FOIA requests across the Executive Branch that really doesn't tell you what the potential is for this office."

OGIS' mission is two-fold: one is to act as an arbiter between FOIA requestors and agencies to resolve disputes over those requests. The second is to provide guidance to agencies on best practices, policies and procedures to be proactively compliant with the latest iteration of the FOIA law.

She said they're tracking various categories of FOIA requests and many, she says, deal with the time it takes to comply.

"About 20 percent of the cases involve delays," Nisbet said. "That's pretty constant, has been from the beginning, people coming to us and saying, 'I haven't gotten an answer.' Sometimes they're saying 'No one will respond to my e-mail.' Or, 'I've just been told it's going to be three years, and you've got to be able to tell me something more than that.'"

Nisbet said another category of FOIA dispute centers on one word: No.

"About a quarter of the cases involve substantive denials of information," she said, explaining that sometimes an agency won't confirm or deny the existence of the information being requested from a law enforcement or intelligence agency.

In other cases, she said the information is contained in a document of more than 1,000 pages, and the denial is based on an exemption found in the current FOIA law.

As an example of OGIS fulfilling its mandate to help agencies comply with the FOIA law, Nisbet pointed to training seminars they have held for agency FOIA officers on the skills of Alternative Dispute Resolution.

"It's an all-day course for FOIA professionals in the skills needed to negotiate with requestors, and also with people in their agency with whom they need to work to fulfill FOIA requests," she said.

She added that NARA will offer the third course at its headquarters the week of Oct. 25.

Nisbet said she is hopeful that with additional budget resources in future years NARA can expand the OGIS staff and help resolve more FOIA disputes. But Ferriero said that as OGIS enters its second year in a time of budget constraint, any expansion will depend on Congress.

Rick Blum, coordinator with the Sunshine in Government Initiative, one of the many good government groups in Washington that has pushed for years for the creation of OGIS, said that in its first year the office has successfully created an avenue of appeal for FOIA requests that did not exist previously.

"OGIS' first year has been very successful," he said in a telephone interview, adding that he especially likes the fact that OGIS has embraced alternative dispute resolution as a means of bringing closure to FOIA disputes.

"It's going to take a while for this to take hold in many agencies, and as OGIS ramps up and gets additional resources to handle more cases, then you'll see more dividends pay off in how agencies are responding," he said.

Blum said he's looking forward to reading OGIS's first annual report to the President and Congress, which Nisbet said is expected to be delivered in early-to-mid- December.

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