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The First Year - Building Bridges Between FOIA Requesters and Federal Agencies, OIG, 2011

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Office of Government
Information Services

The First Year
Building Bridges Between FOIA
Requesters and Federal Agencies
March 2011

Cover: Sipapu Bridge, White Canyon, Natural Bridges National
Monument, Utah, May 1972 (NARA 412-DA-2446)

Office of Government
Information Services

The First Year
Building Bridges Between FOIA
Requesters and Federal Agencies
March 2011

TABLE of CONTENTS

Message from the Director	

1

Executive Summary	

3

FOIA Matters	

5

The OGIS Mission	

8

Opening the Office	

13

Resolving Disputes	

16

Improving the FOIA Process	

18

Outreach and Training	

25

Collaborating with Government Agencies	

29

Collaborating with NGOs	

30

A Look Ahead	

31

Special Thanks	

34

OGIS Timeline	

36

OGIS Staff 	

38

Endnotes	

38

Appendices	

40

Resolving Federal FOIA Disputes Handout	

40

FOIA Requirements and Agency Best Practices 	

42

MESSAGE from the DIRECTOR

I am proud to present the first report of the Office of Government Information Services (OGIS). Our office is an important symbol of both the
Obama administration’s commitment to Open Government and Congress’s vision of a better Freedom of Information Act (FOIA). I thank
President Obama for his support of OGIS’s mission, and Congress for
the clear mandate it presented in the OPEN Government Act of 2007,
which created the Office, and for its continued support.
Congress has called OGIS the “FOIA ombudsman.” Our statutory
directive is to offer a range of mediation services to resolve FOIA disputes and to review agencies’ FOIA policies, procedures, and compliance. Above all, our role is to advocate for the proper administration
of FOIA itself—from agency practices to resolution of disputes between
requesters and agencies.
OGIS opened in September 2009. Through the hundreds of cases
brought to us, we have observed that the 94 departments and agencies
of the Federal Government count among their ranks many hardworking
and committed FOIA professionals. While these people are determined
to help the public obtain access to Federal records, they face significant
obstacles including inadequate funding for FOIA operations, insufficient
support from agency leaders, and unrealistic statutory deadlines.
We also have observed repeatedly the importance of good communication between agencies and FOIA requesters. Though OGIS was established to provide a range of mediation services (up to and including
formal mediation), our experience shows that facilitating constructive
communications between agencies and requesters prevents or resolves
many disputes. Changing the FOIA culture to foster communications is
as real an obstacle as lack of resources and more difficult to overcome
than might be imagined.

1

Since opening, OGIS has been figuring out how to do our work while
doing our work. Several cases awaited me when I opened the office; since
then we have hired staff, created policies and procedures, dealt with unexpected obstacles, provided training, explored technological solutions
to help us do our job, and communicated with FOIA Public Liaisons—all
while handling FOIA disputes. Throughout, our focus was to carry out
our mission with these principles in mind:
•	OGIS advocates for a fair FOIA process and for improving
FOIA.
•	OGIS’s work must complement agency practice without making
the process more burdensome.
•	OGIS exists as a resource to help requesters navigate the FOIA
landscape and to help agencies improve their FOIA practices.
•	 FOIA Public Liaisons are essential to improving FOIA administration,
and OGIS must support them and promote their role.
We continue to adhere to and build on these principles in our second year. I thank David S. Ferriero, Archivist of the United States, and
Adrienne C. Thomas, Deputy Archivist of the United States, for their
unwavering support in helping transform OGIS from statutory language
to reality.

Sincerely,

Miriam Nisbet, Director
Office of Government Information Services (OGIS)

2

EXECUTIVE SUMMARY

The Office of Government Information Services (OGIS) serves—in the
words of Congress—as the nation’s Freedom of Information Act (FOIA)
ombudsman. The mission is simple:
Improving the FOIA process and resolving disputes
between Federal agencies and FOIA requesters.
The mission dovetails with that of OGIS’s parent agency, the National
Archives and Records Administration (NARA), which states, in part:
We ensure continuing access to the essential
documentation of the rights of American citizens
and the actions of their Government.
In OGIS’s first year as FOIA ombudsman, the Office worked to fulfill its mission by helping FOIA requesters and agencies with everything
from filing requests and appeals to dealing with difficult requesters to
resolving disputes. OGIS handled 391 cases, the majority of which did
not rise to the level of a dispute. Of the 83 cases involving disputes between FOIA requesters and 24 departments and agencies, OGIS resolved
a majority—more than four out of five cases ended with the requester
and the agency reaching an agreement. But for OGIS, most of these customers would not have received help.
OGIS also teamed with existing agency Alternative Dispute Resolution programs to launch targeted training for agencies interested in applying mediation techniques to FOIA disputes. Many agencies embraced
this creative approach, and more training is planned. Collaboration with
Federal agencies also focused on identifying and solving FOIA’s shortcomings, while collaboration with nongovernmental organizations offered the Office another perspective into its work.

3

OGIS’s first-year caseload allowed the Office to observe effective
and efficient FOIA programs, as well as programs that would benefit
greatly from improved customer service. The Office’s list of best practices offers commonsense recommendations for improving communications between agencies and requesters, an approach that could help
prevent many disputes.

"Under the Freedom ofInformation Act, rm requesting that
you disclose whatyou have on me in yourJiles. "

4

This first year, OGIS wrestled with how to fulfill its mandate to
review agency FOIA policies, procedures, and compliance in order to
recommend policy changes to Congress and the President. The Office,
meanwhile, is working to implement a comprehensive review plan.
OGIS remains a nascent program with much work left to do. In its
second year, OGIS is working toward advancing its mission and the
goals of the Obama administration’s Open Government Initiative by
establishing a comprehensive process for reviewing agency FOIA policies and procedures, better educating FOIA requesters, establishing a
permanent case management system, developing a fully operational mediation program, and regularly offering dispute resolution skills training
for agency FOIA professionals.

FOIA MATTERS

“The Government should not keep information
confidential merely because public officials might
be embarrassed by disclosure, because errors
or failures might be revealed, or because of
speculative or abstract fears.”
President Barack Obama
January 21, 2009

FOIA matters. Every day, FOIA helps countless members of the
public learn about the inner workings of their Government, fostering
transparency and accountability and, in turn, nurturing the nation’s
democracy.

5

As President Obama said on his first full day in office, “A democracy requires accountability, and accountability requires transparency.”
FOIA, he said, “is the most prominent expression of a profound national commitment to ensuring an Open Government. At the heart of
that commitment is the idea that accountability is in the interest of the
Government and the citizenry alike.”
In the last fiscal year, FOIA shined a light on oil drilling, falsified military valor claims, and Government credit card misuse, among
many other examples. After the April 2010 BP oil disaster in the Gulf
of Mexico, the nonprofit Center for Public Integrity analyzed data obtained under FOIA and reported in May that 97 percent of all “egregious willful” violations cited by Occupational Safety and Health
Administration inspectors in the previous three years were found at two
BP-owned refineries.1 The Associated Press relied on FOIA to report
in May that the Minerals Management Service (recently renamed the
Bureau of Ocean Energy Management, Regulation and Enforcement)
violated its own policy by not conducting monthly inspections on
BP’s Deepwater Horizon rig.

2

Two weeks later, The New York

€beNt\tJ Jl!ork mime~

Times reported that Federal

Exp<:c< .he World

Documents Show Early
Worries About Safety of Rig

drilling records and well reports
obtained from the Bureau under

By IAN URBINA May 29, 2010

FOIA helped reveal a history of

WASHINGTON - Internal
documents from BP show that
there were serious problems and
safety concerns with the
Deepwater Horizon rig far earlier
than those the company described
to Congress last week.

problems with a blowout preventer and casing long before the
Deepwater Horizon explosion.3
A Washington, DC-area man
uses FOIA daily to obtain offi-

cial military medal citations from the National Archives and Records
Administration’s National Personnel Records Center. Vietnam veteran

6

Doug Sterner has uncovered hundreds of cases of falsified military valor
in his compilation of a database of more than 200,000 military honor
citations.4
FOIA sometimes reveals misuse of Government resources. The
Washington Times reported in May 2010 that 21 employees of the Federal
Protective Service used Government credit cards to buy gold coins, flatscreen televisions, gym memberships, and clothing.5 Several months earlier,
the Times reported that the Securities and Exchange Commission investigated more than two dozen of its employees and contractors after they viewed
pornography on their Government computers during the work day.6
Politico used FOIA to learn from
the FBI about threats made against
members of Congress.7 The New York

THE DANGERS
FDISSE T

THE FBI AND CIVIL LIBERTIES SINCE 1965

IVAN GREENBERG

City News Service, run by The City
University of New York Graduate
School of Journalism, obtained the FBI
file on the late Senator Jesse Helms of
North Carolina, which shows that he received repeated death threats and, early
in his career as a broadcaster, offered to
help the FBI.8 And Representative John
Dingell of Michigan used FOIA to obtain Federal inspection reports revealing
that the Ambassador Bridge connecting Detroit, Michigan, and Windsor,
Ontario, suffered corrosion, cracked concrete, and rusted railings.9 Best-selling author Jon Krakauer used FOIA in
reporting about Pat Tillman’s journey from the National Football League

7

to the U.S. Army in Afghanistan in Where Men Win Glory: The Odyssey
of Pat Tillman.10 FOIA helped writer Ivan Greenberg trace the evolution
of FBI spying in The Dangers of Dissent: The FBI and Civil Liberties since
1965.11 And FBI files obtained under FOIA contributed to author Alex
Heard’s research for The Eyes of Willie McGee: A Tragedy of Race, Sex,
and Secrets in the Jim Crow South, about a black man sentenced to death
for raping a white woman in Mississippi in 1945.12

OGIS CASE STUDY
OGIS received a letter in March 2010 from an imprisoned veteran who
had requested a section of a document from the Department
of Veterans Affairs (VA). The VA denied the FOIA request
because the document is freely available online; however,
the customer does not have Internet access at his prison
facility. OGIS contacted the VA, explained the situation,
and the agency fulfilled the request. OGIS served a vital
ombudsman role by short-circuiting what could have become
a lengthy series of back-and-forth letters.

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

8

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.”
The Office of Government Information Services shall
(A)	review policies and procedures of administrative
agencies under this section;
(B)	 review compliance with this section by administrative agencies; and
(C)	 recommend policy changes to Congress and the
President to improve the administration of this section.
	
The Freedom of Information Act
5 U.S.C. § 552 (h)(2)(A)-(C)
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.

9

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” (see pages 19–25 and Appendices, Best
Practices) 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

10

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.
The Office of Government Information Services shall
offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation
and, at the discretion of the Office, may issue advisory
opinions if mediation has not resolved the dispute.
The Freedom of Information Act
5 U.S.C. § 552 (h)(3)
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

11

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.

12

“Establishing this new FOIA office within the
National Archives is essential to reversing the
troubling trend of lax FOIA compliance and
excessive Government secrecy during the past
eight years. OGIS will also play a critical role
in meeting the goals of President Obama’s new
directive on FOIA.”
Senator Patrick Leahy
March 5, 2009

OPENING the OFFICE

OGIS opened September 8, 2009, with the arrival of Director Miriam
Nisbet, an expert in information policy law with a distinguished career
both within and outside of the Federal Government. Director Nisbet
assembled a diverse staff with expertise in Open Government, Federal
and state access laws, information science, mediation, journalism, and
database analysis. Since May 2010, OGIS has been staffed with seven
professionals including from both the agency access and the FOIA requester communities.
The OGIS web site, which went live within a few weeks of the Office
opening, explains the Office’s services and provides links to a wide
variety of resources including guides to requesting documents under
FOIA, obtaining previously released FOIA records, and seeking OGIS
assistance.
The Office also created and widely distributed an OGIS fact sheet for
potential customers and other interested parties (see Appendix). In the
interest of transparency and accountability, OGIS case logs, which detail
the cases OGIS handles, are posted weekly on archives.gov/ogis allowing

13

customers—and the public—to track the progress of cases. OGIS regularly hears from agency professionals who routinely read the case logs in
an effort to address potential problems in their FOIA operations.
OGIS created a database to serve as an interim case management
system, helping the office track cases and measure the effectiveness of its
work. The Office’s growing caseload demands a more robust solution
for case management, and OGIS is implementing a sophisticated interactive electronic case management system.
OGIS also addressed various procedural requirements related to establishing a new Federal office by developing policies and procedures
that should be published in early 2011. As required by the Privacy Act
of 1974, OGIS published a new “Privacy Act System of Records Notice,
NARA 40” (75 Fed. Reg. 45674, August 3, 2010), which informs the
public of the types of information OGIS maintains, the procedures for
accessing this information, and how OGIS safeguards the information.
OGIS created and refined its process for helping customers, both
FOIA requesters and Federal agencies. When a requester contacts OGIS,
the staff determines whether the individual seeks personal records. Such
“first-party” requests are considered Privacy Act requests and thus fall
outside the scope of the Office’s mission. In its ombudsman role, OGIS
has succeeded in assisting those requesters with determining the status
of their requests or appeals or directing them to other entities such as the
courts or state agencies.
Once OGIS opens a case, it is assigned to an OGIS staff member
who fact finds with the requester and the agency and works to resolve
the dispute. Each agency’s FOIA Public Liaison, who has a statutory
role to assist in resolving disputes, is usually the Office’s first point of
agency contact.
In aiming to complement agency practice, OGIS encourages customers to allow FOIA’s administrative procedures to work whenever
possible. Although customers can contact OGIS at any point in the

14

administrative process, the Office encourages them to wait for the agency’s appeal determination before engaging OGIS. But OGIS recognizes
that, in cases of lengthy delays at the request or appeal stage or a breakdown of communications between requester and agency, such advice is
not always practical.

OGIS CASE STUDY
When General Motors declared bankruptcy and canceled its contract
with the Stillwater Mining Company, Al Knauber, editor of the Big
Timber Pioneer, noticed an effect on his small town of Big Timber,
Montana. Wanting to know more, Knauber submitted a FOIA request
to the Department of the Treasury in January 2010.
Knauber, hoping to get a better picture of why the contract was cancelled, asked the Treasury Department’s

The

Big

TimberPioneer

Office of Financial Stability (OFS)—the office that oversees the Federal
Troubled Asset Relief Program, or TARP—for correspondence between
GM and any Federal agency.
The search returned only a few e-mails, surprising Knauber who
thought there were far more records in the agency. He asked OGIS to
look into it. A call to the OFS showed that there were a lot more records
related to the Stillwater Mining Company and GM held by the OFS, but
they were not correspondence between the agency and GM, which is
what Knauber had specifically asked for.
The office suggested that Knauber broaden the scope of his request
to include internal agency documents and correspondence so the remaining records could be properly processed and released. Knauber was glad
to hear there were more records and that he simply had to rewrite his
request. He submitted a new request in July and received 88 pages of
records two months later. “Without the assistance of your office, I would
have been left to start over,” Knauber wrote OGIS in an e-mail.

15

RESOLVING DISPUTES

The first requests for assistance from OGIS awaited Director Nisbet on
her first day. Within the year, the OGIS caseload, which includes both
requests for dispute resolution as well as more general inquiries, swelled
to 391 cases from 40 states, the District of Columbia, and 7 countries.
More than one-third of the cases came from six locales: New York (9
percent), Washington, DC (9 percent), California (6 percent), Texas (6
percent), Pennsylvania (5 percent), and Virginia (5 percent), collectively.
In 35 percent of all cases, OGIS provided ombudsman services, such as
guidance on filing FOIA requests and appeals or information about how
the FOIA process works. For many OGIS customers, the Office was a
call of last resort.
As the caseload grew, so did refinements to data collection in the
OGIS case-tracking system; some data are unavailable for OGIS’s earliest cases.
In the first year, 83 of OGIS’s 391 cases were considered actual
disputes between FOIA requesters and agencies. Of those 83 disputes,
which involved 24 agencies and departments, OGIS resolved 68. OGIS
defines a successfully resolved case as one in which the disputing parties agree on the outcome. For example, the resolution may not result in
further disclosure of records to the requester or in having the requester
narrow the scope of his or her request. Rather, the object of the OGIS
process is for the parties to agree on a solution that prevents litigation.
Despite OGIS’s best efforts, it failed to resolve disputes between
requesters and agencies in 15 of the 391 cases brought to the Office
during the first year. In one case, for example, an agency agreed to
provide data but the requester was still not satisfied. In another, a
Federal agency customer requested mediation but the requester’s attorney advised against it. OGIS spent nearly eight months working

16

to facilitate a resolution in another dispute in which a Federal agency
was so unresponsive that the requester ended up filing a lawsuit.
Not surprisingly, request denials and delays in agencies responding to
requests together accounted for nearly half of the cases OGIS handled
in its first year. Specifically, 61 cases involved agencies fully or partially
denying release of requested records, while in 28 cases, agencies found
no records to release. Eighty-three cases involved delays of initial requests or appeals. Seventy-eight percent of OGIS cases originated with
individuals, while 16 percent came from organizations, including the
media, nonprofits, businesses, and educational institutions. Fewer than 2
percent of OGIS cases came from Government entities, including Federal
agencies and congressional offices.
FOIA requests to all 15 Cabinet-level Departments and 15 of the 79
Federal agencies comprised the OGIS first-year caseload. The bulk of
OGIS cases—38 percent—involved FOIA requests to the Department
of Justice and 18 of its components, including the Federal Bureau of
Investigation, the Federal Bureau of Prisons, and the Executive Office
for United States Attorneys.
About 9 percent of OGIS cases involved requests to the Department
of Veterans Affairs. Requests to the Department of Defense accounted
for 7 percent of OGIS’s first-year caseload, while requests to the National
Archives and Records Administration and the Department of Homeland
Security each accounted for 5 percent of OGIS’s caseload.
It would be incorrect to infer that the above-listed departments have
more problematic FOIA processes than other departments, particularly
since the Departments of Justice and Veterans Affairs were the first agencies to routinely use response letters and appeal letters to inform their
FOIA requesters about OGIS and its mission. At OGIS’s request, the
Office of Information Policy published guidance in July 2010 directing
agencies to notify requesters in their final agency responses that OGIS
offers mediation services.

17

OGIS cases were open an average of 25 working days with a median
of 16 working days. Fifty-five cases were closed within one week, while
the above-mentioned case in which the customer filed a lawsuit stretched
174 days.
Ninety-four cases involved Privacy Act, or first-party, requests,
which fall outside the scope of the OGIS mission; however, in many
of those cases, the Office successfully assisted those requesters with determining the status of their requests or appeals. The volume of those
cases—comprising one-quarter of the OGIS caseload—suggests the need
for an ombudsman for first-party requests.

IMPROVING the FOIA PROCESS

“What is most critical is a change in the ethic
and the culture of the Federal Government when
it comes to our citizens and their requests for
information, which is not the Government’s. It is
theirs. Citizens requesting information should be
treated as valued customers, not as adversaries,
and certainly not a nuisance. They should be
engaged and assisted and not avoided.”
Senator John Cornyn
September 30, 2009

“A responsibility of both the people and the
Government is to work with each other on issues
of access and accountability. . . . Working together,
you can avoid the delays, misunderstandings and
frustrations that can unfortunately characterize the

18

FOIA process. You should both adopt the attitude
of ‘Help me help you.’”
Representative William Lacy Clay
March 19, 2010
OGIS has found that simple communication between a FOIA requester
and an agency FOIA professional can go a long way in avoiding frustration and disputes. OGIS also has observed that agencies whose FOIA
professionals provide good customer service have a greater chance of resolving disputes than agencies with FOIA offices that need improvement.
OGIS invites any agency that has a good practice to contact the Office.
Observed agency customer service best practices, detailed in an OGIS
chart (see Appendix), include the following:
•	Several component offices within the Department of Agriculture
immediately acknowledge FOIA requests with the name and
telephone number of the FOIA professional assigned to the case.
•	Several agencies created model letters for acknowledging, handling, and responding to requests.
•	The Department of Labor’s Employment Training Administration
wrote response templates for requests resulting in no records,
partial releases, and third-party notifications.
•	The FBI’s FOIA web site explains how to understand and obtain
records from the agency and includes information about what
happens after a request is made. Requesters also can learn
how long it takes to receive information and what requesters can expect to receive after FBI processing.
•	A Forest Service FOIA analyst informed a requester who
was willing to pay thousands of dollars to obtain records
that he could easily download the data free from the Federal
Procurement Data System web site.

19

•	The State Department makes rolling releases of information to
requesters rather than waiting until processing ends.
•	In cases requiring referral to or consultation with another
agency, an Air Force FOIA officer created for the Department
of Defense (DoD) a document-sharing platform to streamline
FOIA referrals and consultations.
•	The Surface Transportation Board adopted an informal policy
of accepting administrative appeals in cases where the only reason to refuse the appeal is technical, such as the appeal was
received after the deadline for filing an appeal.
•	The Environmental Protection Agency operates a national FOIA
hotline where callers can talk to a FOIA specialist about their
requests or general FOIA questions.
•	The DoD’s Office of Secretary of Defense/Joint Staff FOIA Office
established a new position to coordinate directly with OGIS.
•	The Departments of Education and the Interior and 11 nonCabinet-level agencies, including the Council on Environmental
Quality, updated their FOIA regulations since the 2007 FOIA
amendments. Such regulations outline agency-specific procedures governing the FOIA request process.
OGIS also has observed—and FOIA requesters have reported to
the Office—that customer service could be greatly improved at some
agency FOIA offices. Among OGIS’s observations: Some FOIA Public
Liaisons do not publicize their telephone numbers, do not have voice
mail that accepts messages, and return calls only sporadically, if ever.
Some liaisons did not seem interested in resolving disputes, and refused
OGIS’s offers of assistance. Other liaisons did not appear familiar with
FOIA.
Several requesters reported an unprofessional tone used by FOIA
staff, including, in response to one requester’s follow-up question, an

20

admonition to “Read your letter.” One FOIA appeals attorney repeatedly insisted that an appeal letter was “self-explanatory” and discussed
its contents only in response to specific questions from OGIS. One requester reported being hung up on three times when she called an agency’s FOIA Public Liaison office. OGIS also has encountered hurdles in
getting responses from several agencies.
To improve the administration of FOIA, OGIS recommends that
agencies establish standards for customer service, everything from returning telephone calls to explaining clearly the distinction between fee categories and fee waivers. OGIS recommends the following best practices:
•	Ensure that each agency and department employee recognizes
that she or he represents the Federal Government
•	Ensure that all FOIA professionals—from the paralegal to the
FOIA Public Liaison to the agency Chief FOIA Officer—are
courteous and patient with requesters and respond quickly to
their communications
•	Require FOIA Public Liaisons to be FOIA professionals with
good communication skills
•	Publicize widely the FOIA Public Liaison’s name, telephone
number, and e-mail address on the agency’s FOIA web page,
within the agency, across the Government, and throughout the
FOIA requester community
•	Set up FOIA professionals’ voice mail to accept messages and
return all messages
•	Create a general FOIA e-mail account that all FOIA Public
Liaisons can access for requesters to write with concerns or
questions
•	Include information about OGIS in final appeal letters advising
requesters that the Office can assist in resolving FOIA disputes
as an alternative to litigation

21

•	Attend dispute resolution skills training offered by OGIS
•	Provide in writing to the requester the tracking number and contact information for the FOIA Public Liaison and the FOIA professional assigned to the case as quickly as possible, along with
an estimate of how long the request is going to take to process,
even if the agency is unable to make the 20-day response time,
as required under the law
•	Create an online system to allow FOIA requesters to easily check
the status of their requests
•	Develop intra- and interagency agreements (memoranda of understanding) regarding the processing of routine agency-specific
documents, releases, and withholdings to avoid or minimize the
need for referral or consultation between agencies
•	Inform requesters, when practicable, about records referrals and
consultations, including which agencies are involved and how to
contact those agencies
•	Post in plain language information about and examples of agency determinations on fees charged, fee categories, and fee waivers
•	Cite OGIS and the services it offers when updating agency FOIA
regulations.

“[T]he Department of Justice will defend a
denial of a FOIA request only if (1) the agency
reasonably foresees that disclosure would harm
an interest protected by one of the statutory
exemptions, or (2) disclosure is prohibited by law.”
Attorney General Eric Holder
March 19, 2009
An agency is to deny disclosure only if, after review, the agency can
reasonably foresee that disclosure would harm an interest protected by
one of FOIA’s nine exemptions. OGIS recommends that agencies develop

22

guidance on how to conduct foreseeable harm analysis, which clearly
identifies the harm that would occur with disclosure. If the agency cannot identify harm, it should consider disclosing the information as a matter of discretion. Such discretionary disclosures should include making
partial disclosures when full disclosure is not possible. Observed agency
foreseeable harm best practices include the following:
•	Senior officials responsible for processing FOIA requests at the
Department of Commerce must certify that a foreseeable harm
analysis is applied to all responsive documents.
•	Forest Service employees wishing to withhold records under
Exemptions 2 (purely internal matters that courts have
ruled are of no interest to the public) or 5 (interagency
or intra-agency documents) must provide the Washington,
DC, office with written justification outlining the harm
that would result from release of the requested information. Requesters can now obtain accident investigation report recommendations from Forest Service headquarters,
documents that were previously withheld in their entirety under
Exemption 5.
•	Re-review of materials previously found to be protected under
Exemption 5 resulted in the Department of Energy releasing an
agreement between the Savannah River Ecology Laboratory and
the University of Georgia. The re-review determined that release
would cause no foreseeable harm. The stepped-up foreseeable
harm reviews resulted in a 17-percent drop in the Department’s
use of Exemption 5 between FY2009 and FY2010.
•	The Nuclear Regulatory Commission updated its FOIA training class and its written guidance to include instruction on
foreseeable harm review. OGIS also recommends that agencies
establish procedures for identifying information appropriate

23

for disclosure and establish categories of records that can be disclosed regularly without waiting for a FOIA request, such as calendars and travel records of senior agency leaders. OGIS foresees
a day when agencies can, with ease, release all FOIA requests
and responsive documents online. Until then, OGIS recommends
that agencies post online significant documents that have been
released under FOIA without waiting for a second FOIA request.
A number of agencies reported significant reductions in FOIA
requests for the same information posted proactively.
Observed agency proactive disclosure best practices include posting
on agency web sites:
•	Downloadable state-by-state and nationwide lists of all Federal
firearms and Federal explosives licenses issued by the Bureau of
Alcohol, Tobacco, Firearms and Explosives13
•	Previously restricted classified records of the Department of
Justice’s Civil Rights Division’s historic investigation into the
1964 murders of civil rights workers James Chaney,
Andrew Goodman, and Michael Schwerner, also
known as the “Mississippi Burning” incident14
•	Statistics on wild horses and burros on land managed
by the Bureau of Land Management15	
•	The 333-page FBI file on pop singer Michael Jackson,
whose June 25, 2009, death sparked a high volume of
FOIA requests16
•	A subscription offer for people wishing to receive automated
e-mails every time the Department of Agriculture’s Food Safety
and Inspection Service updates its log of FOIA requests17
•	Lists of Government credit card holders in Federal agencies,
including the Departments of Agriculture and Labor headquarters, the Bureau of Labor Statistics, the Department of

24

Justice’s National Drug Intelligence Center, the National Science
Foundation, and the United States Postal Service18
•	Environmental Protection Agency’s “MyPropertyInfo” database
allowing users to determine if there are environmental records
on a specific property19

OUTREACH and TRAINING

OGIS’s staff made 43 presentations in the Office’s first year. This included 41 presentations to agencies, nongovernmental organizations,
academic groups, state organizations, and international organizations. In
addition, Director Nisbet testified twice before Congress: in September
2009 before the Senate Judiciary Committee and in March 2010 before the House Committee on Oversight and Government Reform’s
Information Policy, Census, and National Archives Subcommittee.
Early on, OGIS recognized that an important aspect of its outreach
would be educating the FOIA community about dispute resolution.
Although most Federal agencies have active and effective Alternative
Dispute Resolution (ADR) programs, applying mediation principles and
techniques to FOIA disputes is relatively novel. An informal inquiry into
whether any agency ADR programs handle FOIA conflicts has not found
any examples. OGIS views agency ADR programs as a great untapped
resource to help extend the Office’s reach by leveraging existing agency
resources to help resolve FOIA disputes.
OGIS places a priority on establishing a program to provide dispute
resolution skills training for FOIA Public Liaisons, designated in FOIA
to help resolve any disputes between the requester and the agency. The
goal is to equip FOIA Public Liaisons with the tools needed to address
requester concerns while working within their agencies to prevent or

25

resolve disagreements. FOIA Public Liaisons, in their new statutorily
enhanced role, can most efficiently avoid disputes, remove obstacles to
access, and provide excellent FOIA customer service.
Soon after OGIS opened, Deirdre Gallagher of the ADR staff of the
Federal Energy Regulatory Commission (FERC) approached Director
Nisbet about collaborating with OGIS to develop dispute resolution
skills training for FOIA professionals. Ms. Gallagher and her FERC colleagues Jerrilynne Purdy and Paula Felt produced a cross-agency FOIA
dispute resolution training program, co-sponsored by OGIS and the
Department of Justice’s Office of Information Policy (OIP).

OGIS CASE STUDY
ESPN reporter Elizabeth Merrill filed a FOIA request for immigration
records with the Department of Homeland Security (DHS) in September
2009. The records concerned Sahel Kazemi, who was allegedly having an

--••

~~r

~
Updated: July 4, 2010

affair with Tennessee Titans quarterback Steve McNair,
and who police say murdered him before she took her
own life. The FOIA request initially produced some
heavily redacted documents and a response letter stat-

The woman forever
tied to Steve McNair

ing that 19 additional pages had been referred to other

Former Titans QB Steve
McNair was shot
and killed July 4, 2009

referrals went or how to follow up with them. ESPN

By Elizabeth Merrill
ESPN.com

NASHVILLE, Tenn. -- They
gathered in a parking lot long past
nightfall, after the last karaoke singer
stumbled over the fmal note and the
signs flipped to CLOSED. It was
fitting, that Sahel Kazemi's
candlelight vigil would be held in the
backdrop of Opryland, where the
stars gravitate. Kazemi always said
that someday she'd be famous.

agencies. Merrill didn’t hear anything about where those
contacted OGIS for assistance in May 2010, and the
DHS FOIA Public Liaison was able to share the names
of the agencies where the records were sent so the reporter could follow up. Merrill obtained a few additional records right away although others were still in a
queue in the other agencies.
Merrill produced a July 2010 article using some of
the records she obtained. This case led to an OGIS “Best

26

OGIS received nearly 100 responses for the 30 slots available in the
March 2010 training, attended by FOIA professionals from 27 departments and agencies. The daylong workshop included a review of the
FOIA process, an introduction to mediation, a discussion of applying
mediation to resolve FOIA disputes, an overview of successful communication techniques, the role OGIS plays in resolving FOIA disputes and
how OGIS intends to work with agencies, and role-playing by participants using scenarios based on OGIS cases. Attendee feedback was very
positive, with attendees noting that it was enlightening to learn about
how agency ADR programs could be applied to FOIA disputes.

Practice” suggesting that when agencies refer records to another agency
for review, they should let requesters know where the records were sent
and how to contact that agency.
ESPN reporter Paula Lavigne contacted OGIS to follow up on the
network’s requests for assistance, and shared the following: “When ESPN
was trying to get records from USCIS [U.S. Citizenship and Immigration
Services], OGIS really helped us by breaking up a logjam in our request.
We were unsure of the status of several documents in our request based
on a somewhat ambiguous initial response from USCIS. The response
indicated that several of our records actually belonged to other agencies,
but it didn’t say which ones. [OGIS Attorney Adviser] Corinna Zarek
intervened and found out which agencies had those records, what they
were doing with them and which people at those agencies could help us
follow up. She also gave us contact information of someone at USCIS
who actually responded to our public records questions in a timely fashion. It just felt good to have someone who could grease the wheels a bit
so we didn’t feel as if our request had just disappeared into the ether.”
http://sports.espn.go.com/espn/otl/news/story?id=5347315

27

OGIS again collaborated with FERC and OIP to provide similar
training at the 2010 public summer conference of the American Society
of Access Professionals (ASAP), a nongovernmental association of
agency FOIA professionals and FOIA requesters. While OGIS will continue to offer this popular cross-agency training regularly, several agencies, including the Departments of Defense, Health and Human Services,
Homeland Security, and Interior, are interested in developing agencyspecific FOIA dispute resolution training programs. The Department of
Veterans Affairs (VA) took this step in July 2010 by teaming with FERC
and OGIS to offer a half-day of dispute resolution skills training for VA
FOIA professionals.
In addition to the dispute resolution skills training targeted to FOIA
Public Liaisons, OGIS and OIP together presented two orientation sessions for the Public Liaisons, to acquaint them with OGIS and its services, in December 2009 and again in March 2010. The latter session
was held under the auspices of ASAP.
OGIS also wrote a letter of introduction to the Public Liaisons and created a blog to communicate with the agency and requester communities.
Soon after opening, OGIS engaged the services of an expert to explore whether online dispute resolution (ODR) may be viable for providing mediation services. The private sector has had great success in using
ODR as a tool for resolving disputes in connection with large caseloads.
OGIS considered this approach in an effort to harness technology and as
a fiscally responsible way to provide mediation services. The ODR feasibility study examined OGIS’s internal processes, the FOIA administrative process employed at Federal agencies, and the data being compiled
in OGIS’s case database. After careful consideration, the expert found
that OGIS’s current caseload has not yet reached a level that would
benefit from ODR.
At the same time, ODR-type tools could be employed to prevent
disputes or resolve them at an early stage, and implementation efforts are

28

being evaluated. Although the expert did not recommend that OGIS use
ODR now, he provided invaluable insight into how to build efficiencies
into OGIS’s internal processes and how to capture pertinent data for self
evaluation.

COLLABORATING with GOVERNMENT AGENCIES

Collaboration is a cornerstone of OGIS’s outreach efforts. Starting
in November 2009 with the Department of the Army, the Office participated in seven agency FOIA training sessions to alert agencies to
OGIS’s role in the FOIA process. OGIS regularly presents at Office of
Information Policy agency-wide FOIA training programs. OGIS also has
worked with Federal agencies, FOIA requesters, and FOIA advocates to
identify the law’s shortcomings and to develop solutions to help it work
more effectively and efficiently. For example, OGIS collaborated with
OIP on a few disputes brought to OGIS that involved questions about
the interpretation and implementation of agencies’ FOIA policies.
Early on, Director Nisbet joined the Interagency Alternative Dispute
Resolution (ADR) Working Group, comprised of ADR leaders throughout the Government who meet to discuss common issues and share best
practices.
To further OGIS’s commitment to support FOIA Public Liaisons
and other FOIA professionals in improving the administration of FOIA,
OGIS also is collaborating with the ADR specialists at the Departments
of Defense, Interior, and Veterans Affairs, which have volunteered to
serve as pilots in extending their existing mediation and dispute resolution programs to include FOIA disputes.
ADR specialists at Defense and Interior are quickly advancing their
respective pilot programs, which they hope to launch in FY 2011; OGIS

29

continues to work with both departments. Recently, the Department
of Homeland Security agreed to collaborate with OGIS to develop a
department-wide dispute resolution skills training program for its FOIA
Public Liaisons. Also, the FBI has agreed to work with OGIS to develop
a plan for providing this training to its FOIA professionals. OGIS is excited about the opportunity to collaborate with these departments and
agencies.

OGIS CASE STUDY
A requester filed a request with the Central Intelligence Agency (CIA)
for records for a book that he was writing. The CIA began processing
the request, placing the requester in the “commercial” fee category,
which would require him to pay for all fees incurred in the processing of the request. The requester, believing he should qualify for a
favorable fee category, contacted OGIS. OGIS spoke with the CIA
about the various categories and whether this requester best fit with
the “commercial” status, and the CIA decided to waive all fees for the
request.	

COLLABORATING with NGOs
From its inception, OGIS has enjoyed the support and interest of nongovernmental organizations (NGOs), primarily nonprofit Open Government
groups in Washington, DC, that made creation of a Federal FOIA ombudsman’s office a high priority when Congress began considering amending
FOIA in 2004. The groups lobbied hard to keep the ombudsman provision
in the legislation as it moved through Congress, and even after the OPEN
Government Act of 2007 was signed into law, they continued advocating
for the resources and attention needed to open and operate OGIS.

30

In 2008 and 2009, NGO FOIA advocates met among themselves
to suggest strategies for OGIS and discussed the Office in meetings
with other stakeholders including OIP and the White House. These
NGO groups were quick to contact Director Nisbet early on, beginning a regular series of informal meetings that continues today.
The NGOs regularly contact OGIS with informal observations or questions, but they also have come to OGIS for formal assistance with FOIA
requests. About two dozen of OGIS’s cases in its first year were from
members of this active requester community. These interactions give the
NGOs the opportunity to see how OGIS works to resolve disputes and
to provide helpful feedback and suggestions to help OGIS in continuing
to perfect its practices and procedures.

A LOOK AHEAD	

In its second year, OGIS is working to better educate FOIA requesters,
implement a comprehensive plan for reviewing agency FOIA policies
and procedures, regularly offer dispute resolution skills training, establish a permanent case management system, and develop measures
of effectiveness of a fully operational mediation program. Meeting
these objectives will help to implement fully OGIS’s mission to improve the FOIA process as well as realize President Obama’s Open
Government Initiative and his January 21, 2009, FOIA Memorandum.
	

Many individuals who request information from the Government

are FOIA savvy; others may be aware they have a right to request information from the Government, but are not sure how to do it. They may
not understand the fee structure, or know how to check the progress of
their requests, or even know where to send requests. The Department
of Justice, along with the Office of Management and Budget and the

31

General Services Administration, publishes “Your Right to Federal
Records,” a helpful guide to requesting records under FOIA and the
Privacy Act. However, the guide does not explain some of the trickier
nuances under FOIA; for example, the distinction between a fee category and a fee waiver and how those might be determined. The guide
also has not been updated to outline the role and duty of the FOIA
Public Liaisons at agencies or to discuss OGIS and the statutory right
of agencies and requesters to ask for assistance. A variety of nongovernmental organizations provide information on the FOIA process, including these specific explanations and suggestions, and it makes sense
that OGIS as a Government-wide FOIA office provide similar tips to
aid requesters and agencies.
OGIS fielded dozens of calls in the first year from FOIA requesters
asking for basic information about the law, such as how to make FOIA
requests, where to send them, the correct points of contact within
an agency, and whether the U.S. Congress or private corporations
are subject to FOIA (they are not). OGIS also met more experienced

OGIS CASE STUDY
A requester contacted OGIS seeking to understand what was necessary
in a fee waiver appeal to the Centers for Disease Control and Prevention.
The letter the requester received did not clearly address how or what a
requester must do to file a proper appeal of a fee waiver denial decision. OGIS explained to the requester the fee waiver as
well as fee category aspects of FOIA including how to
properly appeal those decisions. The requester then filed
CENTERS

FOR

DISEASE

CONTROL AND PREVENTION

a fee waiver appeal. Although the agency denied the fee
waiver, the FOIA requester was able to understand what

is needed in order to obtain a fee waiver as well as the difference between
the favorable fee categories and fee waivers.

32

requesters who had questions or misconceptions about FOIA. These
calls and interactions show the need for education and training on
FOIA processes and procedures for all levels of the requesting public,
and as the outward-facing Federal FOIA ombudsman, OGIS is ideal
to fill that need.
In its mission of reviewing agency compliance with FOIA, OGIS
is creating a comprehensive plan for such review. As previously mentioned in this report, OGIS will consider the FOIA-reporting framework
already in existence, and will work to complement, not duplicate, that
process.
OGIS’s mission to provide mediation services is inextricably intertwined with the FOIA Public Liaisons’ statutory role of helping
reduce delays, increase transparency and understand the status of requests, and assist in resolving disputes, 5 U.S.C. §§ 552(h)(3) & (l).
Early on, OGIS observed that the duties of FOIA Public Liaisons were
unclear. To address that, OGIS committed itself to engaging FOIA
Public Liaisons as a community within the 94 departments and agencies, providing regular dispute resolution skills training, and establishing itself as a resource for FOIA Public Liaisons. This fiscally sound
approach recognizes that by supporting the work of FOIA Public
Liaisons, OGIS is efficiently implementing its statutory mission. One
of OGIS’s top priorities is to offer regular dispute resolution skills
training for FOIA Public Liaisons and for other FOIA professionals.
In OGIS’s first year, the need for formal mediation to resolve a dispute
did not arise. OGIS is considering various mediation program models
to determine the most efficient and cost-effective way to establish its
mediation program. As a newly created office providing services that
have never existed in the Federal Government, OGIS’s efforts are complicated by the need to predict many vital factors, including the potential size of the caseload requiring formal mediation, the time required
to mediate FOIA disputes, and the logistics of convening geographically

33

dispersed parties. OGIS intends to operate a mediation program that is
flexible, efficient, and cost-effective.
With the support of the Archivist of the United States, OGIS is planning to move from the National Archives’ College Park, MD, facility to
a location in downtown Washington, DC, closer to the Federal departments and agencies with which it works. OGIS hopes to complete this
move by the middle of FY 2011.

SPECIAL THANKS

OGIS is grateful to the 111th Congress: Senate Judiciary Committee
Chairman Senator Patrick Leahy, Committee Member Senator John
Cornyn, and Representative William Lacy Clay, chairman of the House
Subcommittee on Information Policy, Census, and National Archives
of the House Oversight and Government Reform Committee, and
their personal and committee staffs. OGIS looks forward to working
with the 112th Congress, including those previously mentioned as well
as Representative Darrell Issa, chairman of the House Oversight and
Government Reform Committee, and Representative Trey Gowdy,
chairman of that committee’s Subcommittee on Health Care, District
of Columbia, Census and the National Archives, and their personal and
committee staffs.
OGIS would like to thank several professionals for their outstanding
work with OGIS and on behalf of FOIA.
OGIS appreciates the dedication of the Federal Energy Regulatory
Commission Alternative Dispute Resolution Specialists Paula Felt,
Deirdre Gallagher, and Jerrilynne Purdy who assisted OGIS in developing and presenting agency training programs. The commitment of these
FERC professionals made possible this innovative collaboration.

34

Although OGIS has successfully interacted with many FOIA Public
Liaisons, three FOIA Public Liaisons are leaders in their efforts to
work collaboratively with OGIS. The Office’s interactions with FBI
FOIA Public Liaison Dennis Argall, DHS FOIA Public Liaison William
Holzerland, and former VA Public Liaison Lizzette Katilius have been
particularly effective and efficient, and in many cases have led to resolution of issues.
OGIS appreciates Treasury Department attorney Allan Blutstein’s
patience in providing OGIS with a roadmap for how the Department
operates. OGIS also is grateful for the continuous help in understanding
the FOIA structure of the Department of Health and Human Services
(HHS), provided by Carol Maloney, director of the Division of FOIA
Services for the HHS Program Support Center.
Many thanks go to Adrianna Rodriguez, OGIS’s first law clerk and
a student at Harvard Law School, who worked diligently—and without
pay—to advance OGIS’s mission with her excellent legal research and
writing.
Finally, the American Society of Access Professionals (ASAP) and
its Executive Director, Claire Shanley, provided opportunities early and
often for OGIS to participate in ASAP programs, for which OGIS is most
grateful.

35

OGIS TIMELINE

Sept. 8, 2009	

Miriam Nisbet opens the Office of Government
Information Services

Sept. 9, 2009	

OGIS opens its first case involving a delay

Sept. 30, 2009	

Director Nisbet testifies before the Senate Judiciary
Committee at a hearing on “Advancing Freedom of
Information in the New Era of Responsibility”

Oct. 13, 2009	

Staff Assistant Barbara Gordon joins OGIS

Oct. 20, 2009	

archives.gov/ogis goes live

Oct. 26, 2009	

Candace Boston joins the OGIS staff as its first
analyst

Nov. 10, 2009	

OGIS adds to its web site a case-tracking log
allowing customers to check the status of their
OGIS cases

Nov. 22, 2009	

Attorney Adviser Corinna Zarek becomes OGIS’s
fourth staff member

Dec. 6, 2009	

Karen Finnegan joins the OGIS staff as deputy
director

Dec. 7, 2009	

OGIS and the Department of Justice’s Office of
Information Policy (OIP) co-host a meeting for
FOIA Public Liaisons to discuss the new FOIA
landscape

Jan. 21, 2010	

OGIS receives its 50th case

36

Feb. 9–11 & 	

OGIS works through the blizzards of 2010

24–26, 2010	
Mar. 1, 2010	

Analyst Carrie McGuire joins the OGIS staff

Mar. 9, 2010	

OGIS receives its 100th case

Mar. 15–19, 2010	 OGIS participates in a number of Sunshine Week
events
Mar. 18, 2010	

Director Nisbet testifies before the House
Committee on Oversight and Government
Reform’s Information Policy, Census, and National
Archives Subcommittee

Mar. 23, 2010	

OGIS holds its first training session for FOIA
Public Liaisons in collaboration with the Federal
Energy Regulatory Commission (FERC) and OIP

Apr. 18–23, 2010	 Director Nisbet represents OGIS at the Chilean
Council for Transparency
Apr. 29, 2010	

OGIS receives its 200th case

May 10, 2010	

Analyst Kirsten Mitchell becomes OGIS’s seventh
staff member

May 24, 2010	

Adrianna Rodriguez becomes OGIS’s first law clerk

July 14, 2010	

OGIS receives its 300th case

Aug. 24, 2010	

Director Nisbet represents OGIS at the 7th
National Transparency Week Conference in
Mexico City, Mexico

37

OGIS STAFF

Front row (left to right):
Candace

Boston,

Miriam

Nisbet; Second row: Corinna
Zarek, Carrie McGuire, Kirsten
Mitchell, Adrianna Rodriguez;
Back row: Barbara Gordon,
Karen Finnegan.

ENDNOTES

1	 “Renegade Refiner: OSHA Says BP Has ‘Systemic Safety Problem’,” Jim
Morris and M. B. Pell, The Center for Public Integrity, May 16, 2010,
http://www.publicintegrity.org/articles/entry/2085/ (Accessed Feb. 18, 2011)

2	 “AP IMPACT: Fed’l Inspections on Rig, Not as Claimed,” Justin Pritchard,
The Associated Press, May 16, 2010, http://abcnews.go.com/Business/
wireStory?id=10661614 (Accessed Feb. 18, 2011)

3	 “Documents Show Early Worries About Safety of Rig,” Ian Urbina, The New
York Times, May 29, 2010, http://www.nytimes.com/2010/05/30/us/30rig.html
(Accessed Feb. 18, 2011)

4	 “One man’s database helps uncover cases of falsified valor,” Christian Davenport,
	The Washington Post, May 10, 2010, http://www.washingtonpost.com/ wpdyn/
	content/article/2010/05/09/AR2010050903363_pf.html; http://www.militarytimes.
com/citations-medals-awards/ (Both accessed Feb. 18, 2011)

5	 “No penalty for federal credit-card misuse,” Matthew Cella, The Washington
Times, May 21, 2010, http://www.washingtontimes.com/news/2010/may/21/
no-penalty-for-misuse-of-federal-credit-cards/ (Accessed Feb. 18, 2011)

38

6	 “SEC workers investigated for porn surfing,” Jim McElhatton, The Washington
Times, Feb. 2, 2010, http://www.washingtontimes.com/news/2010/feb/02/sec-workers-investigated-for-viewing-porn-at-work/ (Accessed Feb. 18, 2011)

7	 “Exclusive: FBI details surge in death threats against lawmakers,” Erika Lovley, Politico, May
25, 2010, http://www.politico.com/news/stories/0510/37726.html (Accessed Feb. 18, 2011)

8	 “FBI Files: Helms Faced Threats,” Indrani Datta, New York City News Service, May 25, 2010,
http://nycitynewsservice.com/2010/05/25/fbi-files-helms-faced-threats/ (Accessed Feb. 18, 2011)

9	 “Inspection Reports: Ambassador Bridge Needs Work,” David Runk, The
Associated Press, Oct. 15, 2009, http://seattletimes.nwsource.com/html/business
	

technology/2010072846_apmiambassadorbridgeinspectionreport.html?
syndication=rss (Accessed Feb. 18, 2011)

10	 Jon Krakauer, Where Men Win Glory: The Odyssey of Pat Tillman (New York:
Doubleday, 2009).

11	 Ivan Greenberg, The Dangers of Dissent: The FBI and Civil Liberties since 1965
(Lanham, MD: Lexington Books, 2010).

12	 Alex Heard, The Eyes of Willie McGee: A Tragedy of Race, Sex, and Secrets in the
Jim Crow South (New York: Harper, 2010).

13	 http://www.atf.gov/about/foia/ffl-list.html (Accessed Feb. 18, 2011)
14	 http://www.justice.gov/crt/foia/mississippi/miss_burning.php (Accessed Aug. 30, 2010)
15	 http://www.blm.gov/wo/st/en/prog/wild_horse_and_burro/wh_b_information_
	center/monthly_review_of.html (Accessed Feb. 18, 2011)

16	 http://foia.fbi.gov/foiaindex/jackson_michael.htm (Accessed Feb. 18, 2011)
17	 http://www.fsis.usda.gov/News_&_Events/Email_Subscription/index.asp (Accessed
Feb. 18, 2011)

18	 http://www.dm.usda.gov/procurement/ccsc/APC_list.pdf; http://www.dol.gov/oasam/
	

contacts/PurchaseCardholders.htm; http://www.bls.gov/bls/cardholders.htm;

	

http://www.justice.gov/ndic/foia.htm#holders;

http://www.nsf.gov/policies/impac.cfm;

and http://www.usps.com/foia/readroom/welcome.htm (All accessed Feb. 18, 2011)

19	 http://www.epa.gov/enviro/html/fii/myproperty.html (Accessed Feb. 18, 2011
Picture credits: p. 4, used with permission, The New Yorker; p. 6, used with permission, The New
York Times; p. 7, used with permission, Lexington Books; p. 15, used with permission, The Big
Timber Pioneer; p. 26, used with permission, ESPN.

39

APPENDICES

OGIS

Office of Government Information Services (OGIS)
Resolving Federal FOIA Disputes

About OGIS (www.archives.gov/ogis)
The OPEN Government Act of 2007 amended the Freedom of Information Act (5 U.S.C. Section 552) to create an Office

of Government Information Services (OGIS) within the National Archives and Records Administration (NARA).
OGIS opened in early September 2009, with its main office at NARA in College Park, Maryland. The OGIS staff

has been working with the Department of Justice, other agencies, and with private-sector stakeholders to promote

transparency, provide training, and resolve requester and agency FOIA issues.

OGIS Mission
1.

Review compliance and policy. Review policies and procedures of administrative agencies under the

Freedom of Information Act (FOIA). Review compliance with FOIA by agencies. Recommend policy

changes to Congress and the President to improve the administration of FOIA.

2.

Mediate disputes. Offer mediation services to resolve disputes between persons making FOIA requests and agencies

(nonexclusive alternative to litigation). May issue advisory opinions if mediation has not resolved the dispute.

3.

Serve as ombudsman. Solicit and receive comments and questions from Federal agencies and the public

regarding the administration of FOIA to improve FOIA processes and facilitate communication between

agencies and FOIA requesters.

OGIS Contact Information
National Archives and Records Administration, OGIS – Room 2510
8601 Adelphi Road, College Park, MD 20740
Telephone: 301-837-1996 • Toll-free: 1-877-684-6448 • Fax: 301-837-0348 • Email: ogis@nara.gov
Miriam Nisbet, Director, miriam.nisbet@nara.gov • Karen Finnegan, Deputy Director, karen.finnegan@nara.gov
Corinna Zarek, Attorney Advisor, corinna.zarek@nara.gov • Candace Boston, Program Analyst, candace.boston@nara.gov
Carrie McGuire, Program Analyst, carrie.mcguire@nara.gov • Barbara Gordon, Staff Assistant, barbara.gordon@nara.gov

www.archives.gov/ogis
Kirsten Mitchell, Program Analyst, kirsten.mitchell@nara.gov

40

The amended portions of the FOIA, 5 U.S.C. Section 552, concerning OGIS as well as some
other aspects of agency compliance and service are:
(h)(1) There is established the Office of Government Information Services within the National
Archives and Records Administration.
(2) The Office of Government Information Services
shall—
A. review policies and procedures of administrative agencies under this section
B. review compliance with this section by administrative agencies, and
C. recommend policy changes to Congress and
the President to improve the administration
of this section.

the agency and keep the head of the agency, the chief
legal officer of the agency, and the Attorney General
appropriately informed of the agency’s performance in
implementing this section
3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and
funding as may be necessary to improve its implementation of this section
4) review and report to the Attorney General, through
the head of the agency, at such times and in such
formats as the Attorney General may direct, on the
agency’s performance in implementing this section

(3) The Office of Government Information Services
shall offer mediation services to resolve disputes
between persons making requests under this section and administrative agencies as a nonexclusive
alternative to litigation and, at the discretion of
the Office, may issue advisory opinions if mediation has not resolved the dispute.
(i) The Government Accountability Office shall conduct
audits of administrative agencies on the implementation
of this section and issue reports detailing the results
of such audits.
(j) Each agency shall designate a Chief FOIA Officer
who shall be a senior official of such agency (at the
Assistant Secretary or equivalent level).
(k) The Chief FOIA Officer of each agency shall, subject
to the authority of the head of the agency—
1) have agency-wide responsibility for efficient
and appropriate compliance with this section
2) monitor implementation of this section throughout

5) facilitate public understanding of the purposes of the
statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s
handbook issued under subsection (g), and the agency’s
annual report on this section, and by providing an overview, where appropriate, of certain general categories of
agency records to which those exemptions apply, and
6) designate one or more FOIA Public Liaisons.
(l ) FOIA Public Liaisons shall report to the agency Chief
FOIA Officer and shall serve as supervisory officials to whom
a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester
Center Staff. FOIA Public Liaisons shall be responsible for
assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.

In addition, subsection (b)(6)(B)(ii)—which gives a FOIA requester and an agency the opportunity to modify the scope
of a request and to agree to an alternative time frame for processing the request—was amended:
To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of
any disputes between the requester and the agency.

41

(Xi.IS

Office ofGovernment Information Services
National Archives and Records Administration
8601 Adelphi Road, Room 2510 College Park, MD 20740-6001

OFFICE -/GOVERNMENT
INFORMATION SERVICES

FOIA Requirements, Agency Best Practices, and OGIS Recommendations
Requirements
President Obama's
Memorandum for the
Heads of Executive
Departments and
Agencies on the
Freedom of
Information Act

Apply a presumption of openness and a
presumption in favor of disclosure

Department of Labor and Nuclear
Regulatory Commission: Developed
training programs for staff on
implementing the President's and
Attorney General's memoranda; the new
requirements of the OPEN Government
Act of 2007 and the "foreseeable harm"
standard

Issued: Jan. 21,2009

42

Attorney General
Holder's
Memorandum for
Heads of Executive
Departments and
Agencies on the
Freedom of
Information Act

Observed Agency Best Practices

Deny disclosure only if the agency can
reasonably foresee that disclosure
would harm an interest protected by a
statutory exemption

Issued: Mar. 19, 2009

Department of Agriculture/Animal
and Plant Health Inspection Service:
Implemented a universal foreseeable
harm standard to determine the
appropriate withholdings under FOIA
Exemptions 2,5, and 7

OGIS Recommended Best Practices
Establish procedures for identifying information
appropriate for disclosure and establish categories
of records that can be disclosed regularly, such as
calendars and travel records of senior agency
leaders
Provide FOIA training to all new employees,
including political appointees, and provide annual
FOIA refresher training for all employees
Establish agency-specific record types that are
likely candidates for discretionary disclosure
Develop agency-specific guidance on how to
conduct a foreseeable harm analysis, which clearly
identifies the harm that would occur with
disclosure

Department of Commerce: Requires
certification that a foreseeable harm
analysis has been applied to all withheld
documents with a determination that
disclosure would result in harm

Department of AgriculturelForest
Service: Employees wishing to withhold
records under Exemptions 2 or 5 must
provide in writing the harm that would
result from the release of the requested
information
Make partial discretionary disclosures
of requested records when full
disclosure cannot be made

Department of Justice/Federal Bureau
of Prisons: Released 8 pages in full, 21
in part of Federal prison records that

Establish procedures for identifying information
appropriate for discretionary disclosure

Requirements

Observed Agency Best Practices

OGIS Recommended Best Practices

could have been properly withheld under
FOIA Exemptions 2 and 5

Attorney General
Holder's
Memorandum for
Heads of Executive
Departments and
Agencies on the
Freedom of
Information Act

Department of Justice/FBI: In response
to a high volume of requests, made a
discretionary release of 333 pages of FBI
investigatory records on Michael
Jackson, who died June 25, 2009

Issued: Mar. 19, 2009

Department of Transportation:
Released documents that could have
been withheld under Exemption 5,
including internal managerial e-mails
discussing a controversial proposed
agency policy and e-mails regarding
safety issues for medical air ambulances
Make proactive disclosures by readily
and systematically posting information
online

43

Department of Agriculture/Food
Safety and Inspection Service: Offers
subscriptions to e-mail notifications of
updates to its log of FOIA requests; more
than 9,100 people subscribe
Department of
Agriculture/Agriculture Marketing
Service: Posted online a searchable
database of 50, 164 animal care
inspection reports for 2006, 2007, and
2008; the number of incoming FOIA
requests dropped by nearly 35 percent

Establish categories of records that can be
disclosed regularly
Post online significant documents that have been
released under FOIA without waiting for a second
FOIA request
If feasible, post previously released documents, of
whatever age, in searchable form on agency FOIA
web page

Department of JusticelBureau of
Alcohol, Tobacco, Firearms and
Explosives: Posted lists of all active
Federal firearms licenses and Federal
explosives licenses in the United States
Freedom of
Information Act,
5 U.S.c. § 552, as
amended by the
OPEN Government
Act of 2007

Make a determination on a records
request and notify the requester within
20 business days after receiving the
request

Department of State: Processes FOIA
requests incrementally, releasing
documents on a rolling basis instead of
waiting until processing of requested
documents ends

Keep requesters informed about the timeframe for
release and how they can track their requests, even
if the agency cannot meet 20-day response time
Develop an online or e-mail system for filing
FOIA requests, allowing requesters to easily check
the status of their requests

OGIS e-mail: ogis@nara.gov • telephone: 301-837-1996· toll-free: 1-877-684-6448· fax: 301-837-0348
web site: www.archives.gov/ogis • NARA's web site: www.archives.gov

Requirements

Observed Agency Best Practices

OGIS Recommended Best Practices
Make rolling releases in cases with many records

Response Time:

Tolling:

Establish procedures for promptly analyzing and
responding to requests for expedited processing

Determine within 10 days of receiving
request whether requester has
demonstrated "compelling need"
requiring expedited processing

Designate one senior staff member, and other
employees as necessary, to act quickly on requests
for expedited processing

44

Determine an appeal within 20 business
days of appeal's receipt

Surface Transportation Board:
Adopted an informal policy accepting
administrative FOIA appeals in cases in
which the only reason to refuse the
appeal is technical, such as the appeal
was received after the deadline for filing
an appeal

Establish online procedure for tracking appeal
status

Extend 20-day processing time for no
more than 10 days only after giving
written notice of "unusual
circumstances"

Defense Intelligence Agency: Detail in
interim response letters to requesters the
"unusual circumstances" preventing the
agency from responding to request
within required time period

Explain to requester the "unusual circumstances"
causing the need for 10 extra days to respond to
request

Extend time for processing a request
only in unusual circumstances and only
after consulting with another agency, or
two or more components within an
agency with a "substantial interest" in
the request

Department of Defense: In cases
requiring referral to another agency, an
Air Force FOIA officer created a FOIA
document-sharing platform to streamline
FOIA referrals and consultations

Advise the requester of option to narrow request or
arrange an alternative timeframe for processing
request with the agency
When a request is referred, notify the requester of
the referral, the agency it was sent to, and how to
follow up on the status of the request
Dse technology to maximize efficiency of referral/
consultation process
Develop intra- and interagency agreements
(MODs) regarding processing routine agencyspecific documents, releases, and withholdings to
avoid the need for referral/consultation

Agency may make one request for
additional information and toll the 20day processing time while waiting for a
response from requester
Fee categories:

Commercial use: reasonable standard
charges for search, duplication, review

u.S. Census Bureau: Provides
customers with clear breakdown of fees

Post clear information about and examples of
agency determinations on fee categories

OGIS e-mail: ogis@nara.gov • telephone: 301-837-1996· toll-free: 1-877-684-6448 • fax: 301-837-0348
web site: www.archives.gov/ogis • NARA's web site: www.archives.gov

Requirements

Observed Agency Best Practices

Educational, noncommercial scientific
institutions, and representatives of the
news media: reasonable standard
charges for document duplication

OGIS Recommended Best Practices
Make public information easy to find for
requesters
Develop guidance for determining whether
bloggers meet the "representative of the news
media" status

All other requesters: reasonable
standard charges for document search
and duplication

Negotiate lower fees with requesters willing to
narrow the scope of their requests
Provide requesters with a breakdown of the total
fee estimate

Fee waivers:

Charge no fee if the costs of routine fee
collection and processing are likely to
equal or exceed the fee amount. Charge
no fees for first two hours of search and
first 100 pages of duplication for
noncommercial requesters

45

Charge no fees or reduced fees if
disclosure is in the public interest and
likely to contribute significantly to
public understanding of operations or
activities of the Government and is not
primarily in the commercial interest of
the requester

Department of AgriculturelForest
Service: A FOIA analyst informed a
requester who was willing to pay
thousands of dollars to obtain records
that he could easily download the data
free from the Federal Procurement Data
System

Develop guidance on how to analyze requests for
fee waivers
Post in plain language information about and
examples of agency determinations on fee waivers
Develop guidance on types of information that
would be in the public interest to disclose
Adopt an expansive view of information that is in
the public interest to disclose

Assess no fees if the agency fails to
comply with any time limit, if no
unusual or exceptional circumstances
apply to processing the request
No advance payment required unless
fee will exceed $250, or requester has
previously failed to pay fees
Tracking requests:

•

Assign and provide to requester a
tracking number for each request that
will take longer than 10 days to process

•

Provide requesters with an estimated
time of completion of request

Environmental Protection Agency:
Operates a national FOIA hotline
allowing callers to speak to a FOIA
specialist about their requests or get
answers to general FOIA questions

Provide in writing to the requester the tracking
number and contact information for the FOIA
Public Liaison as quickly as possible
Provide requester with an estimate of how long the
request is likely to take to process

OGIS e-mail: ogis@nara.gov • telephone: 301-837-1996· toll-free: 1-877-684-6448 • fax: 301-837-0348
web site: www.archives.gov/ogis • NARA's web site: www.archives.gov

Requirements

Observed Agency Best Practices
Department of Agriculture/Animal
and Plant Health Inspection
Service/Office of the Assistant
Secretary for Civil Rights: immediately
acknowledges requests and provides
name and contact information ofFOIA
specialist assigned to the case

Establish telephone line or web service
providing the status of a request using
the tracking number

OGIS Recommended Best Practices
Post a case log on agency FOIA web page
allowing requesters to search by tracking number;
update weekly

Department of JusticelBureau of
Alcohol, Tobacco, Firearms and
Explosives: Created acknowledgment
tracking log to allow the chiefFOIA
officer to track the progress of each
FOIA request
M ultitracking
requests:

Develop multitrack system for requests
based on amount of work and/or time
involved in processing the requests

46

Department of Justice/Executive
Office for U.S. Attorneys: Created a
multitrack system for processing FOIA
requests-expedited, complex, and
simple; simple requests no longer must
wait until larger, more complex requests
are finished
•

FOIAPublic
Liaisons (FPLs):

Designate FOIA Public Liaisons (FPLs)
within each agency who shall assist in
resolving disputes between requesters
and agencies

Improve multitracking system for efficient FOIA
administration
Advise requesters, where appropriate, to narrow
search

National Archives and Records
Administration: Expanded the use of
multiple tracking queues to ensure that
simple, easily processed requests are not
caught behind more complex requests.
For very old cases, NARA contacts
requesters to determine whether
requesters are still interested in the
requested record or if they are willing to
narrow the request to a smaller subset of
records
FPLs should be FOIA professionals with good
communication skills
Publicize widely the FPL's name, telephone
number, and e-mail address on the agency's FOIA
web page, within the agency, government-wide,
and in the FOIA requester community

OGIS e-mail: ogis@nara.gov • telephone: 301-837-1996· toll-free: 1-877-684-6448 • fax: 301-837-0348
web site: www.archives.gov/ogis • NARA's web site: www.archives.gov

Requirements

Observed Agency Best Practices

OGIS Recommended Best Practices
Set up FOIA professionals' voice mail to accept
messages, and respond to requesters
Create a general FOIA e-mail account to which
requesters can write with concerns or questions
Attend OGIS dispute resolution skills training

OGIS:

Offer "mediation services" to resolve
FOIA disputes between requesters and
agencies
Issue advisory opinions if warranted
when mediation fails to resolve dispute
Review agency FOIA policies and
procedures
Review agency compliance with the
FOIA

47

Recommend policy changes to
Congress and the President

The following agencies currently include
OGIS language in their appeal letters:
Department of Agriculture
Department of Health and Human
Services

Include OGIS language in agency final appeal
letters to advise requesters that OGIS can assist in
resolving any FOIA disputes as an alternative to
litigation
Include OGIS link and information on agency
FOIA web pages

Department of Homeland SecuritylU.S.
Citizenship and Immigration Services &
U.S. Immigration and Customs
Enforcement

Update agency FOIA regulations to reflect new
requirements added to the FOIA by the OPEN
Government Act of 2007

Department of the Interior

Post agency FOIA regulations on the FOIA web
page

Department of Justice/Office of
Information Policy and National Drug
Intelligence Center
Department of Veterans Affairs
Corporation for National and
Community Service
Social Security Administration
U.S. Postal Service

Additional recommended OGIS Best Practices:
Contacting requesters need not always be by mail. Often, it may be more efficient to contact requester bye-mail or by telephone; these messages can
be memorialized in writing later.
Agencies should post their FOIA regulations on their FOIA web pages.
Agencies should update their FOIA regulations to reflect new requirements added to the FOIA by the OPEN Government Act of 2007.

OGIS e-mail: ogis@nara.gov • telephone: 301-837-1996· toll-free: 1-877-684-6448 • fax: 301-837-0348
web site: www.archives.gov/ogis • NARA's web site: www.archives.gov

www.archives.gov/ogis

 

 

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