File 025849
Office of Government Information Services - 2014 Report for FY 2013 (File 025849)
The Office of Government Information Services (OGIS) annual report for fiscal year 2013 detailing the organization's mediation services, caseload statistics, and efforts to resolve FOIA disputes between federal agencies and information requesters.
Summary
This report documents OGIS's fourth year of operation, highlighting a significant 40% increase in caseload to over 500 cases and nearly 500 closed cases in FY 2013. The office served as a dispute resolution mechanism for Freedom of Information Act (FOIA) disputes, providing mediation services and training to agency FOIA professionals. Key statistics show that the Department of Justice, Department of Homeland Security, and Treasury Department were the top three agencies involved in OGIS cases, with case issues ranging from request delays and exemption applications to fee disputes.
Office of Government Information ServicesBuilding a Bridge Between FOIARequesters & Federal Agencies2014 Report for FY 20132013Office of GovernmentInformation ServicesBuilding a Bridge BetweenFOIA Requesters &Federal Agencies2014 Report for FY 2013Cover image: Orhan Cam/Shutterstock.comMemorial Bridge, Washington, DCTable of Contents1Message fromthe DirectorIam pleased to present the fourth annual report from the Office ofGovernment Information Services (OGIS) detailing our fiscal year (FY)2013 activities. We are extremely proud of all that OGIS has accomplishedin our four years of operation. We have put Congress’s novel idea—applying Alternative Dispute Resolution techniques to an often highlyadversarial process—into action. We have assisted thousands of Freedomof Information Act (FOIA) requesters from across the country and aroundthe globe, along with dozens of agencies, in resolving disputes, some ofwhich would have otherwise led to costly litigation. We have worked withagencies to better fulfill their responsibility to provide good customerservice, resolve disputes with FOIA requesters, and promote compliancewith FOIA.Demand for OGIS’s services is high. Requests for assistance in resolvingFOIA disputes greeted me the morning the office opened four years ago. InFY 2013, the number of incoming cases jumped 40 percent from the previousyear to more than 500 cases; at the same time, we closed nearly 500 cases—also a 40-percent increase from the previous year—and handled hundreds ofinquiries by telephone and email.Much work remains for our innovative program. While we have carried outCongress’s mandate to review Federal agency FOIA policies, procedures, andcompliance in several ways, we would like to implement a more robust reviewprogram. OGIS’s mission is broad, and like many government programs, we2must make difficult choices about how we carry out our mandate as demandfor our services increases.We look forward to building on our first four years and continuing ourservice of helping anyone—requester or agency—with any part of the FOIAprocess and improving the administration of FOIA.You may notice that this report is slimmer than our first three reports. Pleasevisit our blog, The FOIA Ombudsman: Information and Advice, where you’llfind many of the items we included in past reports.Sincerely,Miriam Nisbet3ResolvingDisputesOGIS’s mediation services to resolve Freedom of Information Act(FOIA) disputes, as mandated by Congress, comprised the bulkof OGIS’s work in FY 2013, as in the previous three years. Requests forassistance awaited Director Nisbet when she opened the Office, and earlyon, OGIS decided that demand for mediation services dictated that theOffice commit to assistinganyone asking for help withFOIA.From the start, OGIS hasserved as a confidential andinformal information resource,communicationschannel,complaint handler, and disputeresolver. OGIS strives to be anadvocate not for the requester orthe agency, but for an effectiveFOIA process that works asintended.In its first three years, OGIShandled an average of roughly350 cases a year. The numberof requesters seeking OGISOGIS’s caseload soared above 500 for thefirst time in FY 2013. (NARA Identifier6443896)4assistance swelled in FY 2013, the Office’s fourth year. OGIS opened 508 cases, a40-percent increase from FY 2012 when OGIS opened 361 cases. OGIS also handledmore than 230 inquiries—telephone calls and emails yielding quick responses thatdid not require cases be opened—in FY 2013. OGIS closed 497 cases in FY 2013, a40-percent increase from FY 2012 when the Office closed 354 cases.OGIS cases involve issues that arise at various points in the FOIA process.OGIS encourages requesters and agencies to communicatethrough whatever means work best for them. (NARA Identifier6479577)In some cases, requesters attempt to learna request’s estimated date of completion asrequired by FOIA, 5 U.S.C. § 552(a)(7)(B)(ii), but are not able to obtain it from anagency. In other cases, requesters disagreewith an agency’s application of FOIAexemptions or an agency’s decision withregard to FOIA fees. In all cases, thereis some issue that benefits from OGISfacilitatedcommunication between therequester and the agency.OGIS’s mediation services also includeproviding Dispute Resolution Skillstraining to agency FOIA professionals.The goal of training is not to turn agency2007December 14U.S. Senate passes by unanimous consentthe Openness Promotes Effectiveness inour National (OPEN) Government Act of2007, which includes a provision creatingthe Office of Government InformationServices (OGIS) at the National Archivesand Records Administration (NARA)December 18U.S. House passes the OPEN GovernmentAct of 2007 by a voice voteDecember 31President GeorgeW. Bush signs theOPEN GovernmentAct of 2007; itbecomes PublicLaw 110 -175Patent drawing for watchcase (NARA Identifier7451700)5FOIA professionals into mediators, but to give them Alternative DisputeResolution tools to incorporate into their FOIA work and help themcomply with the statutory requirement that FOIA Public Liaisons assistin resolving disputes, 5 U.S.C. §§ 552(a)(6)(B)(ii) and 552(l). In FY 2013,OGIS offered three sessions of Dispute Resolution Skills training—twosessions in December 2012 and May 2013 that included participants fromseveral agencies and a Department of Labor–specific session in June 2013.600OGIS’s Caseload500400300200Cases openedCases closed1000FY 2009–10 FY 2011 FY 2012 FY 20132009September 8NARA opens OGIS, with Miriam Nisbet as itsfirst directorSeptember 9OGIS opens its first case, which involves a delaySeptember 30Director Nisbet testifies before the SenateJudiciary Committee hearing on “AdvancingFreedom of Information in the New Era ofResponsibility”October 13The first staff member joins OGISOctober 20The OGIS website goes liveOctober 26OGIS’s staff increases to threeNovember 10OGIS adds a case-tracking log to its websiteallowing customers to check the status of theirrequests for OGIS assistance6Top 10 departments & agenciesinvolved in FY 2013 OGIS cases160140120100806040200139These agenciesinform requesters104about OGISservices.32 29 27 19 19 14 14 1128% 21% 6% 6% 5% 4% 4% 3% 3% 2%DOJDHSTreasuryVAUSPSDoDHHSStateNARACIA2009 2010November 22OGIS’s staff increases to fourDecember 6OGIS’s staff increases to fiveDecember 7OGIS and the Department of Justice’sOffice of Information Policy (OIP) co-host ameeting for FOIA Public Liaisons to discussrecent changes to FOIAJanuary 21OGIS opens its 50th caseFebruaryOGIS joins other agency representatives todiscuss the feasibility of a multiagency FOIA portalFebruary 7–10OGIS staff present at the American Society of AccessProfessionals (ASAP) National Training ConferenceMarch 1OGIS’s staff increases to six7OGIS FY 2013 cases by exemptionExemption 1Exemption 2Exemption 3Exemption 4Exemption 5Exemption 6Exemption 7(A)Exemption 7(B)Exemption 7(C)Exemption 7(D)Exemption 7(E)Exemption 7(F)Exemption 8Exemption 90 10 20 30 40 50 60 70 802010March 9OGIS opens its 100th caseMarch 15–19OGIS celebrates Sunshine WeekMarch 18Director Nisbet testifies before the HouseOversight and Government Reform’s InformationPolicy, Census, and National ArchivesSubcommittee hearing on “Administration of theFreedom of Information Act: Current Trends”March 23OGIS holds its first training session for FOIA PublicLiaisons in collaboration with the Federal EnergyRegulatory Commission (FERC) and the Departmentof Justice’s Office of Information Policy (OIP)April 18–23Director Nisbet represents OGIS at the ChileanCouncil for TransparencyApril 29OGIS opens its 200th case8OGIS 2013 cases by category117 (23%)15 (3%)227 (46%)138 (28%)DenialDelayGeneral AssistanceFees2010May 10OGIS’s staffincreases to itscurrent size ofsevenJuly 14OGIS opens its300th caseAugust 24Director Nisbetrepresents OGIS atthe 7th National Transparency WeekConference in Mexico City, MexicoDecember 6Director Nisbet participates in theCouncil of Governmental Ethics Lawsannual conferenceOGIS opens its 500th caseDecember 10OGIS submits its first comments onagency FOIA regulationsSailor adjusts clock. (NARA Identifier 6422494)9When in administrative process requesterscame to OGIS (FY 2013 cases)Pre-FOIA 5These casestypically involvedelays.Request filed140Release determination 49Appeal filed 44These casestypically involvedenials.Final agency decision 2220 50 100 150 200 2502011March 11OGIS launches its blog “The FOIAOmbudsman: Information and Advice”March 14–18OGIS celebrates Sunshine WeekMarch 15Director Nisbet testifies before the SenateJudiciary Committee hearing on “The Freedomof Information Act: Ensuring Transparency andAccountability in the Digital Age”March 17Director Nisbet testifies before the House Oversightand Government Reform Committee hearing on“The Freedom of Information Act: Crowd-SourcingGovernment Oversight”July 7–8Director Nisbet presents at the United NationsEducational, Scientific and Cultural Organization(UNESCO) Seminar on Transparency in Brasilia,Brazil10MeasuringSuccessFrom OGIS’s start, the Office has faced enormous challenges in measuringits success. While litigation typically results in judgment for one partyor the other, the success of mediation services depends on compromise bythe parties, whose participation is voluntary. Experience has taught us thatOGIS’s success may not rest in the outcome of mediation services, but in theprocess of providing mediation services.Mediation is a voluntary alternative dispute resolution process in which aneutral third party, a mediator, assists disputing parties in reaching a mutuallyagreeable resolution. Mediators do not direct outcomes or resolutions toa dispute; the outcome of mediation depends on the extent to which theparties choose to engage in the process and themselves agree to an outcome.There may not necessarily be a “correct” answer; rather, the disputing partiesmay choose to agree to a compromise that both parties can accept, or theymay choose to not compromise at all. As such, the outcome of mediation isnot an effective way to determine the success of OGIS’s mediation servicesbecause OGIS does not determine the outcome. However, OGIS does control2011AugustOGIS facilitators become certified in Federalworkplace mediation by Northern VirginiaMediation ServiceSeptemberConstruction of multiagency FOIA portal beginsOctober 2–6Director Nisbet presents at the InternationalConference of Information Commissioners inOttawa, CanadaNovember 28OGIS launches its online case managementsystem, the OGIS Access SystemDecember 7–8OGIS staff presents at the American Society ofAccess Professionals Annual Symposium11the steps required to administermediation itself, and the Office’ssuccess in mediation servicescan be more uniformly evaluatedin that regard. The challenge ofevaluating success of mediationservices is not unique to OGISor to the government—otherombudsmen struggle with thesame issue.The Government AccountabilityOffice (GAO), which conductedan audit of OGIS in FY 2013,recommended that OGIS establishperformance measures andgoals for its mediation servicesthat define the Office’s successin handling mediation cases.One challenge OGIS faces is measuring its success.(NARA Identifier 6600378)The GAO recommendation, coupled with OGIS’s experience providingmediation services, will inform OGIS’s FY 2014 creation of performancemeasures and goals for the work OGIS does. That multifaceted work2012March 12Archivist of the United States David Ferrierojoins Director Nisbet in welcoming guests to theNational Archives to view the original Freedom ofInformation Act in observation of Sunshine WeekMarch 13Director Nisbet testifies before the SenateJudiciary Committee on “The Freedomof Information Act: Safeguarding CriticalInfrastructure and the Public’s Right to Know”March 21Director Nisbet testifies before the HouseOversight and Government Reform’s Technology,Information Policy, Intergovernmental Relationsand Procurement Reform Subcommitteehearing on “The Freedom of Information Act andInformation Technology”March 21–23OGIS staff presents at the American Society ofAccess Professionals National Training Conference12includes interacting with requester and agency customers, and providingassistance, from answering basic questions about FOIA to facilitatingcommunication between disputing parties to convening multiple agenciesworking on the same or similar requests.2012May 24OGIS opens its 1,000th caseAugust 2–3OGIS staff presents at the American Society ofAccess Professionals Summer School trainingSeptember 11The Inspector General at the National Archives andRecords Administration releases a report on OGISas part of its routine examination of NARA officesOctober 1Online FOIA request portal, FOIAonline, goes liveat six agencies, including NARADecember 4–5OGIS staff presents at the American Society ofAccess Professionals Annual Symposium13Agency ReviewOGIS also is tasked with reviewing agencies’ FOIA operations andcompliance.OGIS reviews agencies’ FOIA policies, procedures, and compliance invarious ways. Our review work includes• Providing Dispute Resolution Skills training to agency FOIA professionals to helpthem comply with the statutory requirement that FOIA Public Liaisons assist inresolving disputes, 5 U.S.C. §§ 552(a)(6)(B)(ii) & 552(l)• Highlighting Best Practices for agencies and requesters• Reviewing and commenting on proposed agency FOIA regulations• Reviewing FOIA websites and template letters• Working with agencies when the Office observes policies or procedures that arenot consistent with FOIA law or policy, or that may differ from the practicesoccurring at other agencies• Review of government and non-government reports on FOIA activity andcompliance2013March 1Director Nisbet discusses “Mediating FOIACases” with the mediators of the U.S. Courtsof the District of Columbia CircuitMarch 8Archivist of the United States David Ferrierosends a notice to the 2,500 employees of theNational Archives reminding them that FOIA iseveryone’s responsibility.March 12Archivist of the United States David Ferrierojoins Director Nisbet in welcoming guests toview the original Freedom of Information Act,in observation of Sunshine WeekDirector Nisbet presents to the U.S. HouseTransparency Caucus on “The Future of FOIAReform”14OGIS has identified FOIA fees as an issue that warrants study. (NARA Identifier 6011228)2013March 13Director Nisbet testifies before theSenate Judiciary Committee hearingtitled “We the People: Fulfilling thePromise of Open Government Five YearsAfter the OPEN Government Act”May 3Director Nisbet represents the UnitedStates at the Canadian Association ofJournalists’ observation of World PressFreedom Day in Ottawa, CanadaMay 13–15OGIS Staff participates in the AmericanSociety of Access Professionals NationalTraining ConferenceJuly 18OGIS opens its 1,500th caseSeptember 10Government Accountability Office (GAO)15In FY 2013, OGIS began looking at several specific issues regarding agencypolicies, procedures, and compliance, including FOIA fees and fee waivers, and theways agencies process records related to immigration matters. OGIS also begana “Preventing Litigation” project, working with agencies on ways to reduce theirchances of a request resulting in litigation.GAO recommended that OGIS establish a time frame for completing andimplementing a methodology that defines, among other things, the scope,schedule, criteria, and evaluation questions for reviewing Federal agencies’FOIA policies, procedures, and compliance. OGIS had already begun creatinga draft assessment framework, which will form one piece of OGIS’s expandedreview methodology.GAO’s recommendation mirrored that of the National Archives andRecords Administration’s Inspector General (IG), which conducteda routine review of OGIS in FY 2012 to determine whether OGIS wasadequately established and meets Congress’s intent. The IG report,completed in September 2012, found that OGIS meets the requirements setforth in FOIA with regard to both review and dispute resolution. The IGfound that “additional resources could significantly improve OGIS’s abilityto address and meet its mission.”In response to the GAO recommendations, NARA concurred with bothrecommendations and will work to address them in FY 2014.2013releases report on OGIS along with tworecommendationsSeptember 18–20Director Nisbet represents the NationalArchives and Records Administration at thebiennial International Conference of InformationCommissioners in BerlinPatent drawing for R.H. Strong clock(NARA Identifier 7451701)16OGIS RECOMMENDATIONSFOR IMPROVING FOIAFOIA also directs OGIS to make recommendations to Congress and thePresident to improve FOIA. In April 2012, OGIS released five recommendationsthat the Office compiled in its first years. For example, OGIS encouraged agencyparticipation in FOIAonline, the Federal Government’s first multiagency FOIAportal. As a founding partner in FOIAonline, OGIS continues to support theportal’s improvement of services and expansion of partners.In March 2013, OGIS issued four additional recommendations forimproving FOIA.1. IMPLEMENTING DISPUTERESOLUTION FOR FOIA CONFLICTSOGIS expanded its dispute resolution program to connect FOIA professionals,legal counsel, and dispute resolution professionals to embed dispute resolutionfirmly into an agency’s FOIA process. The goal is to identify issues that areripe for partnership and explore ways to work together to prevent and resolvedisputes as well as avoid litigation.In 2013, OGIS identified several agencies, including OGIS’s parent agency,NARA, to help to pilot a project designed to prevent and resolve disputes aswell as avoid litigation. OGIS has begun meeting with each of these agenciesto determine the types of FOIA disputes that result in litigation and to exploreways to incorporate dispute resolution into their FOIA processes. (OGISalso has worked with the Administrative Conference of the United Statesto promote research into FOIA litigation to inform this process.) OGIS willcontinue to pilot this project in FY 2014.172. REITERATING THE IMPORTANCE OF FOIAOGIS routinely encourages all Federal agencies to remind their staffmembers of the importance of FOIA and that FOIA is everyone’sresponsibility. During Sunshine Week 2013, Archivist of the UnitedStates, David Ferriero, sent such a message to NARA staff. Other agencies,including the Departments of Energy and Transportation, sent similarmessages throughout the year. OGIS continues to encourage all agenciesto remind their staffs of the importance of FOIA and offers the Archivist’smessage as a model.3. EXAMINATION OF FOIA FEESOGIS continues to observe that fees and fee waivers remain a persistent pointof contention administratively and in litigation. OGIS began examining FOIAfee issues by reviewing its own fee-related cases over the past four years andidentifying common themes. OGIS intends to continue this project in FY 2014by working with stakeholders from both inside and outside government todiscuss fee issues.4. IMMIGRATION RECORDS AND FOIAOver the past four years, OGIS has observed a large increase in our cases relatedto requests for immigration-related records from individuals who are not U.S.citizens or lawful permanent residents. OGIS began communicating with agencyofficials who receive these types of requests, as well as with some of the requesterorganizations and representatives who file them. OGIS continues to work withagencies to streamline the process and to identify issues related to first-partyimmigration-related records requests that will inform OGIS stakeholders as wellas Congress and the President.18LOOKING AHEADIn its fifth year, OGIS will continue to offer mediation services torequesters and agencies; review agencies’ FOIA policies, procedures,and compliance; and identify additional areas for improvement in theFOIA process through recommendations to Congress and the President.OGIS will also work to implement GAO’s recommendations of creatingperformance measures and goals for its mediation services, as well as tobuild on its review program.SPECIAL THANKSOGIS thanks the 113th Congress for its support of the FOIA Ombudsman’soffice: Senate Judiciary Committee Chairman Senator Patrick Leahy andRanking Member Senator Chuck Grassley, and their personal and committeestaffs, particularly Lydia Griggsby; Representative Darrell Issa, chairmanof the House Committee on Oversight and Government Reform, RankingMember Representative Elijah Cummings, and Representative John Mica,chairman of that committee’s Subcommittee on Government Operations,and their personal and committee staffs, particularly Krista Boyd and TeganMillspaw; and Wendy Ginsberg of the Congressional Research Service.We extend a special thanks to our colleagues at the National Archives,including David S. Ferriero, Archivist of the United States; Jay Trainer,Executive Head for Agency Services; and National Archives General CounselGary M. Stern and Assistant General Counsel Jean Whyte for their support ofOGIS’s work.We also thank Susan Ashtianie, Susan Cummings, and Mary Drak for theirguidance and help with the GAO report.19OGIS sends “bouquets” of thanks to people inside and outside of Government.(NARA Identifier 6728212)We thank John Albanes, who was a student at the American UniversityWashington College of Law, who spent a semester volunteering his time atOGIS.Finally, we would like to thank the legions of FOIA professionals atagencies who work with us on a daily basis and the hundreds of FOIArequesters who seek our assistance.