Preventing FOIA Disputes

In addition to providing services that help Freedom of Information Act (FOIA) requesters and Federal agencies in resolving disputes, one of the goals of the Office of Government Information Services (OGIS) is to prevent FOIA disputes from arising in the first place. In line with this goal, OGIS recently issued its first advisory opinion, providing agencies with useful advice on effective communication with requesters to help them navigate through the FOIA process and the resources available to them.

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OGIS is the Federal FOIA Ombudsman. The office, created within the National Archives, opened its doors in 2009 to educate the public about FOIA, resolve FOIA disputes, and assess agency compliance with the statute. OGIS’s advisory opinion is based on its observations through its now robust mediation program. OGIS’s mediation program brings the office into contact with a broad range of Federal agencies and requesters at various points throughout the FOIA process. This unique lens enables OGIS to identify common causes of FOIA disputes and identify practices that can help avoid disputes.

The FOIA Improvement Act of 2016 requires that agencies let requesters know about the availability of dispute resolution services from agency FOIA Public Liaisons and OGIS at several points in the FOIA process. After the law’s enactment OGIS’ caseload increased significantly.  A common trend noted among several cases was the need for better communication between the agency and the requester.

OGIS’s first advisory opinion takes the communication issues OGIS noted in its individual cases and gathers it together to provides agencies with advice to help better communicate with requesters about the FOIA process: how to preserve their administrative rights to challenge an agency’s decisions, the kinds of assistance they can expect from an agency FOIA Public Liaison and OGIS, and the next steps to take if they need additional assistance with a request. The advisory opinion also provides agencies with specific examples of language and format.

This advisory opinion is a starting point. OGIS intends to use its authority to issue advisory opinions to address the most common disputes, complaints, and trends it sees in its dispute resolution practice that are likely to lead to litigation. Over time, OGIS intends to build a body of advisory opinions, available for online consultation by both requesters and agencies that OGIS believes will help head off disputes before they fester or lead to litigation.