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OGIStance: “We’re from the government and we’re here to help!”

How often have you heard that statement? When you heard it, did you believe it? In the OPEN Government Act of 2007 Congress baked customer service into FOIA by creating OGIS to help the FOIA community resolve disputes and to recommend improvements to the administration of FOIA. Congress also codified the role of FOIA Public Liaison, a supervisory official “to whom a requester … 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.”  5 U.S.C. § 552(l). FOIA requesters now have several avenues for assistance with FOIA matters: an agency’s requester/customer service center, an agency’s FOIA Public Liaison, an agency’s FOIA office, or OGIS. All avenues are valid and intended to lead to efficient customer service.

Requesters routinely seek help obtaining the status of pending requests and/or appeals, a service we provide as FOIA Ombudsman. In a few instances, agencies told us that they will provide status information directly to requesters, but will not share that information with OGIS. In other words, we’ve been told to go away and let the agency handle the matter. While it is good customer service to offer this means of obtaining the status of a request or appeal, insisting that a customer use that service (rather than allowing him or her to use OGIS if that is the requester’s wish) is counterproductive and places a bureaucratic hurdle in the process. This is the type of situation that Attorney General Eric Holder cautioned against in his March 19, 2009 FOIA Memorandum in which he encouraged FOIA professionals to be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters.  When OGIS contacts an agency to obtain the status of a request or an appeal, we are not acting as a proxy for the requester. Rather, we are fulfilling our statutory mission and the requester is exercising his or her statutory right to seek OGIS assistance. Likewise, when working with OGIS — not around it — to assist a requester, agencies are complying with FOIA’s legal requirements.

We have observed that agencies that collaborate with OGIS enjoy these benefits:

1. Problem solving. Our broad experience dealing with nearly 50 agencies, including all 15 Cabinet-level departments, and many, many FOIA problems makes us an ideal partner for brainstorming solutions. Let’s work together to assist requesters!

2. Delivering difficult news. We hear time and again that FOIA requesters find it easier to digest bad news when it comes through OGIS rather than directly from the agency. This may be due in part to bad feelings that a requester can develop toward an agency as a result of a FOIA dispute, and to our independence as the FOIA Ombudsman advocating for neither the agency nor the requester, but for the FOIA process.

3. Providing a pressure valve. OGIS provides a listening ear for FOIA requesters who need to vent their frustrations. This allows the agency to focus on fulfilling requests rather than fielding angry calls. By the way, OGIS also provides a listening ear for FOIA professionals who need to vent their frustrations.

For all of these reasons, we recommend that agencies partner with OGIS to provide the most efficient customer service available, and not get hung up on artificial requirements that a requester use only one of the avenues of assistance. We are all in this together — to provide good customer service — and to do so efficiently is taking another step towards fully complying with FOIA.