OGIS’s “Final Response Letters” Go Behind the Scenes

We’re glad to see that OGIS has begun posting its “Final Response Letters”, in which the office explains what FOIA requesters have sought from agencies, what OGIS has done to help requesters, and how agencies have reacted. Although OGIS has only posted 26 letters so far, we can start to see some trends among the requests, denials, appeals, and reviews.

First, OGIS has been able to provide assistance in the form of increased information, or education, or both, in nearly every case listed. In over half of the cases described, OGIS was able to obtain additional information the requester(s) had sought, redirect the requester to a more appropriate agency, or explain the status of the request within the agency’s process (in the absence of direct communication from the agency). Of the eleven cases where OGIS could not provide additional information or present an alternative, in nine OGIS did provide a more detailed explanation of the way exemptions prevented agencies from releasing information.

Some requesters may be disappointed that OGIS endorses agencies withholding information, but the source of that disappointment is FOIA, rather than OGIS. OGIS can provide an independent eye on how well (or poorly) an agency has complied with FOIA in responding to a request. Only Congress can change FOIA.

Second, OGIS has not shied away from flagging agencies’ mistakes:

  • OGIS explained to one requester that a specific provision of FOIA required an agency to provide an estimated date of completion, but that a branch of the Department of Homeland Security had refused to comply.
  • OGIS explained to another requester that the Department of the Interior had not responded to a request because the Department’s online request system was malfunctioning, preventing requests from that time period from reaching Department staff. (DOI does not appear to have acknowledged this issue; its Chief FOIA Officer Reports for 2013 and 2014 do not mention it.)
  • OGIS explained to another requester that his request had been denied – and upheld by the Department of Justice’s Office of Information Policy – because he had used an informal term for the subject. When OGIS discussed the case with the agency, the agency recognized the subject of the query as essentially synonymous with something it had already posted online – so OGIS sent a copy to the requester and summarized its investigation in the Final Response Letter.

Furthermore, OGIS devotes time to bridging gaps in communication between requesters and agencies. Agencies should take more responsibility for avoiding these disputes by improving communication. Making improvements may involve better training or adding staffing. OGIS has been able to get status reports from recalcitrant agencies. OGIS discovered that one agency had no record of a requester’s request (much less his appeal), a disconnect that neither the agency nor the requester was aware of (we’re not sure how that happened either). OGIS has also relayed several non-FOIA methods of pursuing information (for example, after a car accident, an agency may withhold certain information from a requester as a member of “the public,” but it has to share it with the requester’s car-insurance company).

In the end the burden on OGIS to address many of these issues should be temporary. As OGIS documents a track record with particular problems (through its cases, handling of disputes and its recommendations), agencies should be accountable for avoiding those problems in the future.

Finally, sometimes a requester makes a vague or unclear request, or makes multiple requests, adding to the burdens on the receiving agency and OGIS. In those cases, better tracking of requests would save OGIS and agencies time and frustration.

Are there limits on the lessons we can draw here? Certainly. The letters aren’t necessarily representative of all the cases (over 1,800 to date) that OGIS has seen. These letters only involve cases that OGIS resolved. The agencies involved were largely responsive; most were already abiding by FOIA.

And these letters, and subsequent cases which OGIS can describe and post as part of this collection, will reveal trends among agencies and among requests, as complicated as some of them may be. We hope OGIS can build a public knowledge base for everyone and help hold agencies accountable for complying with FOIA.

Leave a Reply