The OGIS Mission

Congress's mandate creating OGIS as an outward-facing office is two-pronged: review agencies' policies, procedures, and compliance, and offer mediation services to resolve disputes between FOIA requesters and Federal agencies.

OGIS took the 104 words added to FOIA in the 2007 legislation that created the Office and worked within their strictures, spirit, and intent. As the FOIA ombudsman, OGIS serves its customers-FOIA requesters and Federal agencies-to fulfill a role that previously did not exist in the Federal Government. OGIS advocates for a fair process and for FOIA to work as intended, not championing requesters over agencies, or vice versa. OGIS's FOIA advocacy ties directly to the Obama administration's commitment to transparency and Open Government, and to President Obama's statement on his first full day in office that "information maintained by the Federal Government is a national asset."

Requesters and many Federal agencies warmly welcomed OGIS. However, in the first year, OGIS observed that some Federal agencies viewed OGIS as the "FOIA police" and thus were somewhat reluctant to share information with OGIS and to work with the Office to resolve disputes. To ensure that OGIS can effectively and impartially work to facilitate resolutions of FOIA disputes through Alternative Dispute Resolution (ADR), OGIS adheres to the provisions of the Administrative Dispute Resolution Act of 1996 (ADRA) [5 U.S.C. §§ 571-84], including the confidentiality provision. OGIS strives to strike a balance between confidentiality allowed under ADRA, and openness and transparency. With continued outreach, OGIS is confident that agencies will come to understand that the Office is here to assist them as well as requesters, and that sharing information with OGIS will not adversely affect agency operations.

OGIS spent much of its first year working to resolve disputes that FOIA requesters and Federal agencies brought to the Office, and to track issues related to FOIA administration and performance. For example, OGIS created "best practices" and Appendices, based on the Office's own observations and its review of all 94 reports to the Attorney General from Agency Chief FOIA Officers. In resolving disputes using mediation services, OGIS also tracks troubling observations. A more structured approach to these reporting duties is being implemented.

Congress saw a role for OGIS in evaluating agency performance as a Government-wide office interacting with all departments and agencies on FOIA issues. OGIS recognized immediately that its review and compliance mission is similar to the role undertaken by the Department of Justice through its Office of Information Policy (OIP). One of OIP's regulatory responsibilities is to develop, coordinate, and implement FOIA policy [28 C.F.R. 0.24]. There is an intersection of duties that can enhance the services of both offices to agencies and requesters alike, but that also has created tension. To that end, OGIS and OIP are working together to define interagency procedures for successfully fulfilling both offices' roles. Collaboration between OGIS and OIP, while not yet fully realized, is critical to the effectiveness of both offices. A successful working relationship will dispel any agency and public confusion about the offices' roles, and strengthen FOIA as Congress intended.

OIP, pursuant to the Attorney General's statutory duty, collects and publishes agency FOIA data. This is information OGIS also will use to perform its statutory duty of reviewing agency policies, procedures, and compliance. OGIS foresees the need for flexibility among the agencies to share additional data and to assist the Office in establishing the parameters of its reporting.

In providing mediation services, OGIS occasionally encountered disputes that touched on agencies' policies and procedures; in an attempt to resolve those disputes, OGIS consulted with OIP, as the FOIA policy office. OGIS's and OIP's collaborative efforts highlight the potential for leveraging the authorities of both offices to improve the administration of FOIA.

OGIS created a framework for offering mediation services by drawing on the array of services that mediation can encompass, taking a commonsense and fiscally sound approach to dispute resolution. This includes traditional formal mediation as well as more informal facilitation. These are novel approaches when applied to FOIA.

Congress used the term "mediation services" to describe OGIS's work, and the Office explored a range of services within that spectrum. Both mediation and facilitation are forms of "mediation services." In mediation, a neutral third party, the mediator, assists disputing parties in reaching a mutually agreeable resolution. Facilitation is one approach used by mediators to help each party to understand the other's position, interests, and needs. OGIS uses the term facilitation to indicate those cases in which OGIS staff (as opposed to an outside mediator) works in a less-structured, informal manner with the parties to find common ground to resolve disputes. OGIS has found that informally facilitating communication between the parties is a successful approach to avoiding and resolving disputes. In its first year, OGIS used facilitation in 83 cases, and it fully succeeded in 68 cases, with the requester and the agency reaching an agreement. Whether records were disclosed or withheld, the parties in each of these cases agreed with the outcome, and the FOIA process worked.

Mediation training for OGIS staff members has equipped the Office with the skills needed to help resolve disputes. Though OGIS has yet to handle a case that resulted in formal mediation, the Office is creating procedures for conducting mediation and assembling a pool of trained outside mediators who can work with FOIA disputes.

OGIS strives to work in conjunction with the current request and appeal process that exists within Federal agencies. The goal is for OGIS to allow, whenever practical, the requester to exhaust his or her remedies within the agency, including the appeal process. Examples of OGIS services include helping requesters narrow the scope of their FOIA requests; helping agencies deal with difficult requests and serial requesters; obtaining information related to agency practices, policies, and procedures; working through issues related to fees and requests for fee waivers; and encouraging agencies to reconsider determinations to withhold requested agency records, particularly to look for instances where no foreseeable harm can be identified from release.

All of OGIS's mediation services are voluntary and conducted in accordance with the Administrative Dispute Resolution Act of 1996 (ADRA). It is within the scope and intent of the 2007 FOIA amendments for OGIS to encourage participants to use its mediation services at any point at which such services could be helpful. Although ADRA has been in effect since 1996, the application of ADR to FOIA is an innovative approach--but one very much in line with Federal Open Government initiatives.

OGIS also is authorized to issue advisory opinions, formal or informal. By issuing advisory opinions, OGIS does not intend to undertake a policymaking or an adjudicative role within the FOIA process, but instead will illuminate novel issues and promote sound practices with regard to compliance with FOIA. OGIS did not issue any advisory opinions in its first year.

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