FOIA Update: Focus on FOIA "Ombudsman" Role

There has been increased attention in recent months to possible applications of the "ombudsman" concept of dispute resolution to disagreements between federal agencies and requesters under the Freedom of Information Act.

In 1986, a study of this subject was commenced under the auspices of the Administrative Conference of the United States, an independent governmental entity which makes recommendations to federal executive branch agencies on matters of administrative law and procedure. This study analyzed the administration of the FOIA by federal agencies and considered whether a range of alternative dispute mechanisms, such as those used by some state and foreign governments, could viably be employed to reduce agency/requester disagreements arising under the Act.

The study, which was conducted for the Administrative Conference's Committee on Judicial Review by Washington and Lee University Law Professor Mark H. Grunewald, recognized the FOIA "ombudsman" role that traditionally has been exercised by the Office of Information and Privacy, and its predecessor Justice Department offices, on a limited basis over the years.

OIP regularly responds to requests for assistance received from dissatisfied FOIA requesters who believe that the federal agencies processing their FOIA requests are operating contrary to, or under a misunderstanding of, applicable legal requirements. In pursuing the relative handful of such assistance requests received each year, OIP attempts to ensure that there is an accurate understanding of the law by both requester and agency alike and that the agency involved achieves full and proper compliance with its FOIA obligations.

While OIP does not interfere with an ongoing administrative appeal process, nor does it involve itself in this way in a matter that has proceeded to litigation, it is available to examine any specific allegations of agency noncompliance that are brought to its attention. Such OIP activities are included in the Attorney General's annual report to Congress on the Department of Justice's efforts to encourage agency compliance with the Act.

The Administrative Conference completed its consideration of the Grunewald study in June 1987. After deliberating over the possible establishment of various types of more formal FOIA "ombudsman" mechanisms, as suggested in that study, the Administrative Conference ultimately did not recommend that any such new mechanism be established. It did recommend, consistent with the Justice Department's position on the subject, that the limited "ombudsman" function performed by OIP be made better known to FOIA requesters and thus more generally available to them.

Most recently, the House Government Operations Committee's Subcommittee on Government Information, Justice, and Agriculture, chaired by Rep. Glenn English (D. Okla.), held a hearing on the subject of alternative dispute resolution under the FOIA, with particular focus on the Grunewald study. Held on December 1-2, 1987, the hearing featured representatives of state governments employing "ombudsman-type" procedures for access disputes, although no federal agencies were asked to attend. At the hearing's conclusion, Chairman English indicated that no legislation on this subject is contemplated.

FOIA requesters wishing to avail themselves of the Office of Information and Privacy's "ombudsman" services may do so simply by sending requests for such assistance, with pertinent details, to OIP. Senior OIP attorney Thomas J. McIntyre ordinarily handles such matters and can be contacted at (202) 633-4412. Also, through its FOIA Counselor Service, (202) 633-FOIA, OIP routinely responds to a wide range of citizen inquiries regarding the FOIA's general operation.

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