Striving for Perfect Pitch: OGIS and Agencies’ Administrative Processes
Since opening in late 2009, we’ve received requests for assistance from requesters and agencies at every stage in the FOIA process. We’ve heard from requesters planning to sue within days of contacting us and we have heard from agencies asking for help communicating with just such a FOIA requester. While we do our best to help any requester or agency that contacts us, we strive to work in concert with an agency’s administrative process. Sounds great, but how do we strike that harmonious chord?
The 2007 OPEN Government Act created OGIS to “offer mediation services to resolve disputes between persons making requests under [FOIA] and administrative agencies as a non-exclusive alternative to litigation.” A requester most typically files a FOIA lawsuit after exhausting his or her administrative remedies — in other words, after making a FOIA request, receiving a response, filing an appeal, and receiving a final decision letter from the agency. (Note that lawsuits related to delays are an exception to this rule — by law, a requester may sue an agency 21 working days after filing a FOIA request if he or she has not received a response). OGIS’s mediation services fit best at this point in the administrative process — after a requester has received a final decision letter. For this reason, we encourage agencies to include OGIS’s language in final appeal letters.
So what can you expect if you contact OGIS before you receive an appeal response? Congress dubbed OGIS the “FOIA Ombudsman,” and as explained in a previous post, our ombuds services do not address the substance of a dispute (such as the exemptions taken), but rather the mechanics of a dispute (such as providing a status update on a delayed request). If you contact OGIS with a substantive dispute before you file an administrative appeal, we will direct you to do just that and ask that you contact us again if you remain dissatisfied after you receive a final response. This is how we stay in perfect rhythm with agencies.
So what about those pesky delays referred to earlier? If you’ve spent any time around FOIA, you know that delays are a big problem for almost every agency. If you contact OGIS regarding a delay, we can:
- Contact the agency for an update on the status of your request;
- Learn more about the agency’s backlog and how it affects your place in the queue;
- Provide information about how the agency processes requests; and, in some cases,
- Work with you to narrow the scope of your request which may result in faster processing.
What we cannot do is ask an agency to move your request ahead in the queue.
Wherever you are in the process, feel free to contact us. We will do our best to assist you however we can.