Outreach and Training
OGIS's staff made 43 presentations in the Office's first year. This included 41 presentations to agencies, nongovernmental organizations, academic groups, state organizations, and international organizations. In addition, Director Nisbet testified twice before Congress: in September 2009 before the Senate Judiciary Committee and in March 2010 before the House Committee on Oversight and Government Reform's Information Policy, Census, and National Archives Subcommittee. Early on, OGIS recognized that an important aspect of its outreach would be educating the FOIA community about dispute resolution. Although most Federal agencies have active and effective Alternative Dispute Resolution (ADR) programs, applying mediation principles and techniques to FOIA disputes is relatively novel. An informal inquiry into whether any agency ADR programs handle FOIA conflicts has not found any examples. OGIS views agency ADR programs as a great untapped resource to help extend the Office's reach by leveraging existing agency resources to help resolve FOIA disputes.
OGIS places a priority on establishing a program to provide dispute resolution skills training for FOIA Public Liaisons, designated in FOIA to help resolve any disputes between the requester and the agency. The goal is to equip FOIA Public Liaisons with the tools needed to address requester concerns while working within their agencies to prevent or resolve disagreements. FOIA Public Liaisons, in their new statutorily enhanced role, can most efficiently avoid disputes, remove obstacles to access, and provide excellent FOIA customer service.
Soon after OGIS opened, Deirdre Gallagher of the ADR staff of the Federal Energy Regulatory Commission (FERC) approached Director Nisbet about collaborating with OGIS to develop dispute resolution skills training for FOIA professionals. Ms. Gallagher and her FERC colleagues Jerrilynne Purdy and Paula Felt produced a cross-agency FOIA dispute resolution training program, co-sponsored by OGIS and the Department of Justice's Office of Information Policy (OIP).
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OGIS CASE STUDY ESPN reporter Elizabeth Merrill filed a FOIA request for immigration records with the Department of Homeland Security (DHS) in September 2009. The records concerned Sahel Kazemi, who was allegedly having an affair with Tennessee Titans quarterback Steve McNair, and who police say murdered him before she took her own life. The FOIA request initially produced some heavily redacted documents and a response letter stating that 19 additional pages had been referred to other agencies. Merrill didn’t hear anything about where those referrals went or how to follow up with them. ESPN contacted OGIS for assistance in May 2010, and the DHS FOIA Public Liaison was able to share the names of the agencies where the records were sent so the reporter could follow up. Merrill obtained a few additional records right away although others were still in a queue in the other agencies.
. ESPN reporter Paula Lavigne contacted OGIS to follow up on the network’s requests for assistance, and shared the following: “When ESPN was trying to get records from USCIS [U.S. Citizenship and Immigration Services], OGIS really helped us by breaking up a logjam in our request. We were unsure of the status of several documents in our request based on a somewhat ambiguous initial response from USCIS. The response indicated that several of our records actually belonged to other agencies, but it didn’t say which ones. [OGIS Attorney Adviser] Corinna Zarek intervened and found out which agencies had those records, what they were doing with them and which people at those agencies could help us follow up. She also gave us contact information of someone at USCIS who actually responded to our public records questions in a timely fashion. It just felt good to have someone who could grease the wheels a bit so we didn’t feel as if our request had just disappeared into the ether. |
Merrill produced a July 2010 article using some of the records she obtained. This case led to an OGIS “Best Practice” suggesting that when agencies refer records to another agency for review, they should let requesters know where the records were sent and how to contact that agencyOGIS received nearly 100 responses for the 30 slots available in the March 2010 training, attended by FOIA professionals from 27 departments and agencies. The daylong workshop included a review of the FOIA process, an introduction to mediation, a discussion of applying mediation to resolve FOIA disputes, an overview of successful communication techniques, the role OGIS plays in resolving FOIA disputes and how OGIS intends to work with agencies, and role-playing by participants using scenarios based on OGIS cases. Attendee feedback was very positive, with attendees noting that it was enlightening to learn about how agency ADR programs could be applied to FOIA disputes.
OGIS again collaborated with FERC and OIP to provide similar training at the 2010 public summer conference of the American Society of Access Professionals (ASAP), a nongovernmental association of agency FOIA professionals and FOIA requesters. While OGIS will continue to offer this popular cross-agency training regularly, several agencies, including the Departments of Defense, Health and Human Services, Homeland Security, and Interior, are interested in developing agency-specific FOIA dispute resolution training programs. The Department of Veterans Affairs (VA) took this step in July 2010 by teaming with FERC and OGIS to offer a half-day of dispute resolution skills training for VA FOIA professionals. In addition to the dispute resolution skills training targeted to FOIA Public Liaisons, OGIS and OIP together presented two orientation sessions for the Public Liaisons, to acquaint them with OGIS and its services, in December 2009 and again in March 2010. The latter session was held under the auspices of ASAP. OGIS also wrote a letter of introduction to the Public Liaisons and created a blog to communicate with the agency and requester communities.
Soon after opening, OGIS engaged the services of an expert to explore whether online dispute resolution (ODR) may be viable for providing mediation services. The private sector has had great success in using ODR as a tool for resolving disputes in connection with large caseloads. OGIS considered this approach in an effort to harness technology and as a fiscally responsible way to provide mediation services. The ODR feasibility study examined OGIS's internal processes, the FOIA administrative process employed at Federal agencies, and the data being compiled in OGIS's case database. After careful consideration, the expert found that OGIS's current caseload has not yet reached a level that would benefit from ODR.
At the same time, ODR-type tools could be employed to prevent disputes or resolve them at an early stage, and implementation efforts are being evaluated. Although the expert did not recommend that OGIS use ODR now, he provided invaluable insight into how to build efficiencies into OGIS's internal processes and how to capture pertinent data for self evaluation.
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