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FOIA and ADR: Will You Be My Valentine?

Romance is afoot at the National Archives and Records Administration. Photograph of St. Valentine’s Day Hop on the Mezzanine Level of the National Archives, 1975. (ARC identifier 3493299)

My name is Jean Whyte, and I serve as Director of the National Archives and Records Administration’s Alternative Dispute Resolution (ADR) program.  I’ve been invited to write this guest post about the intersection of FOIA and ADR and why I believe these two are made for each other.  First, a little about our couple:

Freedom of Information Act (FOIA): A 45 year-old federal law that provides for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemptions set forth in the statute.

Administrative Dispute Resolution Act (ADRA): A 21 year-old federal law that encourages the use of ADR processes, rather than litigation, to settle disputes or legal conflicts.

Despite the age gap and different interests, these two got hitched back in 2007 when Congress established OGIS as the FOIA ombudsman by amending the FOIA with the O.P.E.N. Government Act of 2007.

While hardly a contentious union befitting the Montagues and Capulets, the marrying of these bodies of law was a unique combination without precedent. At most federal agencies, ADR was one thing and FOIA was something else altogether, without even a passing glance between them.  But some recognized a matchmaking opportunity when considerable FOIA backlogs caused requesters and agencies alike to seek out new solutions to disputes.  The promise of increasing communication, resolving disputes, and speeding up access to information was an enticing prospect to all involved.  OGIS has been working diligently over the past few years to fulfill those objectives.  The honeymoon is now over, and like any relationship, it has taken hard work and a willingness to learn new ways to integrate FOIA with ADR.

One of the strategies employed by OGIS has been to embrace the federal ADR community and adopt ADR conflict resolution techniques to improve the FOIA process.  At first blush, it appears that little commonality among the two exists.  ADR methods have traditionally been used in the federal government to resolve, for example, employment or procurement matters…but FOIA?

Through my collaborations with OGIS, I’ve found that FOIA and ADR are actually a perfect fit. Participants in the FOIA process bring varied, and sometimes contrary, positions to a pending FOIA request.  It turns out that the heart of many FOIA disputes often comes down to effective communication and developing positive relationships among stakeholders.  FOIA professionals equipped with core ADR skills such as interest-based bargaining, open questions, active listening, and option-building increases the likelihood that parties will achieve greater satisfaction.

OGIS is making a match between agency ADR programs and FOIA programs in a couple of ways. First, OGIS hosts dispute resolution training sessions for agency FOIA professionals in partnership with agency ADR offices, and I’ve had an opportunity to participate in several of them.  The feedback from these sessions has been very positive, and I hope that there will be more opportunities for collaboration going forward. Second, OGIS reaches out to agency ADR programs to introduce the idea of applying their work to FOIA disputes within their agencies.

By interacting with OGIS as an ADR professional, I have learned a great deal about how we can work together to strengthen and improve both fields.  It’s my hope that ADR and FOIA will be a love match for the ages.

Comments

Comment from Kel McClanahan
Time February 15, 2012 at 12:03 pm

If you took a survey, I think you would find that the vast majority of requesters would prefer going the ADR route rather than engaging in costly and time-consuming litigation. In fact, most LAWYERS, who actually get PAID to litigate these things, prefer the ADR option, at least as a precursor to litigation. Unfortunately, if experience working with OGIS has taught me one thing, it’s that agencies, when informed that mediation requires the consent of both parties, inevitably decline mediation.

How can this paradigm be changed? The inescapable fact is, as long as agencies decline mediation, having a mediation option doesn’t help.