A month after senators Patrick Leahy and Charles Grassley complained bitterly, the Office of Government Information Services (OGIS) has still not released its long-delayed recommendations to Congress and the President on improving the Freedom of Information Act (FOIA) process. OGIS should immediately release to the public recommendations for substantially improving how FOIA works for both agencies and requesters and regularly report on the government’s progress.
Congress intended for OGIS to have an independent voice turning their experiences mediating disputes into ideas for making the process work better. The idea was for OGIS to identify FOIA’s biggest weaknesses (delays? backlogs?), figure out their root causes (overbroad requests? agencies communicating by paper via snail mail?) and identify the solutions that give the biggest bang for the buck. OGIS would be helping make the next big FOIA reforms more likely to have an impact. By requiring the recommendations be sent to Congress and the President, Congress clearly anticipated that some recommendations would be action items for the executive branch, while others would fall to Congress to act.
In a Senate hearing March 15, during Sunshine Week, Leahy and Grassley pointedly questioned OGIS Director Miriam Nisbet over the recommendations. Senator Leahy even threatened to subpoena the documents, and at one point offered to drive over himself and pick up the recommendations “if they will let me in the building.” Leahy later explained his frustration was not directed at OGIS but at the Office of Management and Budget (OMB), which has many times delayed reports that Congress has required.
Under withering questioning from both Leahy and Grassley, Nisbet promised within 30 days to work very hard to work with OMB to deliver the report. It’s now been a month.
With the delay of these recommendations, the OMB review process, in which other agencies are given the chance to comment on a draft of the recommendations, is slowing public debate about needed updates to FOIA.
In addition, the OMB review process may even be filtering OGIS recommendations. Consider comments from a National Archives spokesperson quoted in a piece by POLITICO’s Josh Gerstein:
‘OGIS worked through OMB to get agency feedback on our initial proposals,’ National Archives spokeswoman Susan Cooper said in an e-mail Tuesday [the day of the Senate hearing]. ‘Based on this feedback and discussion with OMB, OGIS is exploring ways to accomplish its objectives expeditiously through administrative actions, and without the need for legislation.’
Despite these pleas, over a year after OGIS sent its draft recommendations to OMB for review and more than two years since OGIS opened its doors, the public — and Congress — cannot read OGIS’s recommendations. We suggest several next steps:
- In the near term, OMB should let OGIS release its first recommendations.
- Over the next year, OGIS should publish several recommendations for broadly improving FOIA without regard for whether those ideas would fall on Congress or the executive branch to implement.
- Over the longer term, OGIS should be freed to make recommendations as it sees fit, but no less than annually, without OMB review.
These recommendations, and the independent, straight-shooting voice giving concrete ways to address FOIA’s biggest problems that Congress sought, are long overdue.