Resolving Disputes
The first requests for assistance from OGIS awaited Director Nisbet on her first day. Within the year, the OGIS caseload, which includes both requests for dispute resolution as well as more general inquiries, swelled to 391 cases from 40 states, the District of Columbia, and 7 countries. More than one-third of the cases came from six locales: New York (9 percent), Washington, DC (9 percent), California (6 percent), Texas (6 percent), Pennsylvania (5 percent), and Virginia (5 percent), collectively. In 35 percent of all cases, OGIS provided ombudsman services, such as guidance on filing FOIA requests and appeals or information about how the FOIA process works. For many OGIS customers, the Office was a call of last resort.
As the caseload grew, so did refinements to data collection in the OGIS case-tracking system; some data are unavailable for OGIS's earliest cases.
In the first year, 83 of OGIS's 391 cases were considered actual disputes between FOIA requesters and agencies. Of those 83 disputes, which involved 24 agencies and departments, OGIS resolved 68. OGIS defines a successfully resolved case as one in which the disputing parties agree on the outcome. For example, the resolution may not result in further disclosure of records to the requester or in having the requester narrow the scope of his or her request. Rather, the object of the OGIS process is for the parties to agree on a solution that prevents litigation.
Despite OGIS's best efforts, it failed to resolve disputes between requesters and agencies in 15 of the 391 cases brought to the Office during the first year. In one case, for example, an agency agreed to provide data but the requester was still not satisfied. In another, a Federal agency customer requested mediation but the requester's attorney advised against it. OGIS spent nearly eight months working to facilitate a resolution in another dispute in which a Federal agency was so unresponsive that the requester ended up filing a lawsuit. Not surprisingly, request denials and delays in agencies responding to requests together accounted for nearly half of the cases OGIS handled in its first year. Specifically, 61 cases involved agencies fully or partially denying release of requested records, while in 28 cases, agencies found no records to release. Eighty-three cases involved delays of initial requests or appeals. Seventy-eight percent of OGIS cases originated with individuals, while 16 percent came from organizations, including the media, non-profits, businesses, and educational institutions. Fewer than 2 percent of OGIS cases came from Government entities, including Federal agencies and congressional offices.
FOIA requests to all 15 Cabinet-level Departments and 15 of the 79 Federal agencies comprised the OGIS first-year caseload. The bulk of OGIS cases-38 percent-involved FOIA requests to the Department of Justice and 18 of its components, including the Federal Bureau of Investigation, the Federal Bureau of Prisons, and the Executive Office for United States Attorneys.
About 9 percent of OGIS cases involved requests to the Department of Veterans Affairs. Requests to the Department of Defense accounted for 7 percent of OGIS's first-year caseload, while requests to the National Archives and Records Administration and the Department of Homeland Security each accounted for 5 percent of OGIS's caseload.
It would be incorrect to infer that the above-listed departments have more problematic FOIA processes than other departments, particularly since the Departments of Justice and Veterans Affairs were the first agencies to routinely use response letters and appeal letters to inform their FOIA requesters about OGIS and its mission. At OGIS's request, the Office of Information Policy published guidance in July 2010 directing agencies to notify requesters in their final agency responses that OGIS offers mediation services.
OGIS cases were open an average of 25 working days with a median of 16 working days. Fifty-five cases were closed within one week, while the above-mentioned case in which the customer filed a lawsuit stretched 174 days.
Ninety-four cases involved Privacy Act, or first-party, requests, which fall outside the scope of the OGIS mission; however, in many of those cases, the Office successfully assisted those requesters with determining the status of their requests or appeals. The volume of those cases-comprising one-quarter of the OGIS caseload-suggests the need for an ombudsman for first-party requests.
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