We are deeply disappointed and concerned that the Office of Government Information Services (OGIS) — the FOIA Ombudsman — will not be transmitting its recommendations to Congress for improving FOIA.
OGIS Director Miriam Nisbet sent a letter to Senators Patrick Leahy, chairman of the Senate Judiciary Committee, and Ranking Member Charles Grassley noting that OGIS sent draft recommendations to the Office of Management and Budget (OMB) and after consulting with them decided not to send recommendations to Congress.
We have thus far focused on improving internal coordination of government operations – and have not proposed any revisions to the disclosure requirements of FOIA. Given this, we do not feel that activities needed to address OGIS’s concerns rise to the level of recommendations to Congress at this time.
The statute does not say that OGIS recommendations must revise the disclosure requirements of FOIA itself, but rather that OGIS should, based upon its experiences and reviews of agency FOIA operations, issue recommendations “to Congress and the President” to improve FOIA. That’s it.
Why are OGIS recommendations so vital to a healthier FOIA? OGIS sits between requesters and federal agencies. Its unique position would help inform discussions about how best to improve FOIA. For our part, we intended to use its insights to advocate for a stronger FOIA. Congress could use these ideas to focus agency and public attention on the biggest problems of FOIA and examine potential improvements without regard for who must act.
For example, delays and backlogs are longstanding problems with FOIA for both agencies and requesters. One idea (among many others) that OGIS could float is to create a tracking number for each request that would be unique across all federal agencies. Would that help agencies confer with one another on a particular request? It seems so. Right now each agency assigns its own numbers, so when one agency sends potentially responsive documents to another agency to review for possible release, the second agency assigns a new number. (And confusion often ensues.)
An act of Congress requiring a single number may push agencies to adopt a unique identifier system earlier than they would with purely administrative efforts. Or maybe that idea would not have as much impact as we would think. That’s just one concrete issue OGIS might take up.
It has been nearly five years since Congress passed the 2007 amendments to FOIA that created OGIS and made other significant improvements. Robust recommendations on FOIA’s biggest problems and potential fixes would make improving FOIA more transparent, accountable and participatory – three pillars of the Obama administration’s Open Government Directive. And it would lead to better ideas and better solutions to address FOIA’s most pressing needs.