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Introducing: The FOIA Dispute Resolution Process

On April 26, the OGIS staff (along with our friend Jean Whyte from NARA’s Alternative Dispute Resolution program) presented a daylong training session entitled “Dispute Resolution Skills Training for FOIA Professionals” to representatives from agencies across the Government. As with previous offerings of this training over the past year, the Justice Department’s Office of Information Policy participated as a co-sponsor.

Many of the attendees were FOIA Public Liaisons (FPLs) who, according to the OPEN Government Act of 2007, have a statutory responsibility to assist in the resolution of disputes. While not all of the attendees were FPLs, all of them deal with disputes on a regular basis.

The purpose of the training, as Director Miriam Nisbet succinctly stated, was “to put ourselves out of business.” In other words, we brought these FOIA professionals together to share with them what we at OGIS have learned about resolving disputes. Ideally, prevention and resolution of disputes will be mostly accomplished at the agency level without needing to involve OGIS.

We spent some time familiarizing the attendees with the basics of Alternative Dispute Resolution (ADR) in its many forms. We also explained to them the ADR processes that OGIS uses under the umbrella term mediation services — formal mediation, facilitation, and ombuds services — as well as OGIS’s role in the Federal FOIA landscape.

Once we had the trainees up to speed on ADR and OGIS, we turned to the real focus of the training — the role of the FOIA professional in resolving FOIA disputes. We introduced a new tool that FOIA professionals can use when faced with a FOIA dispute — the FOIA Dispute Resolution Process (FOIA DR Process).

We developed the FOIA DR Process from the hundreds of FOIA disputes we have dealt with since our office’s inception 18 months ago. In particular, the process reflects both OGIS’s own processes and those we have seen work at agencies across the Government (in other words, best practices). The steps of the process are:

1.      Conduct Fact Finding

2.      Identify Issues

3.      Brainstorm Options

4.      Facilitate Resolution

5.      Reflect on Lessons Learned

While this process is not meant to be lock-step — it is iterative, allowing the FOIA professional to loop back to the beginning at any point, if necessary — most disputes will require the completion of each of the steps. Good communication is key to the success of the FOIA DR Process, and at Tuesday’s training, we practiced skills like active listening, open questions, and reframing.

We are still refining the FOIA DR Process, but its debut was a success! We look forward to sharing it more widely at future training sessions and elsewhere.