Notifying Requesters of the Mediation Services Offered by OGIS
As part of the OPEN Government Act of 2007, the FOIA was amended to create the Office of Government Information Services (OGIS) within the National Archives and Records Administration. OGIS opened in September 2009 and the Department of Justice provided agencies with details about this new office in FOIA Post.
A significant new feature of FOIA administration is the offering of mediation services by OGIS to resolve disputes between requesters and agencies, as a non-exclusive alternative to litigation. All agencies share the Department of Justice's goal to prevent disputes in the first instance. To the extent that disputes arise, however, mediation holds potential to resolve those disputes short of litigation. OGIS offers mediation services for just that purpose.
Mediation is a voluntary process where a mediator assists the parties in resolving their dispute. The mediator is a third-party neutral with no authority to make a decision. The value of mediation is that the parties themselves, with the help of the mediator, devise an agreement to resolve their dispute. In the context of the FOIA, mediation is now offered by OGIS as a non-exclusive alternative to litigation. OGIS reports that both FOIA requesters and agencies have asked for its assistance and that OGIS has facilitated the resolution of a number of disputes, short of formal mediation, over the past few months. The OGIS case log and information about those cases are available on the OGIS website.
In order to ensure that all requesters know of this service, agencies should include in their final agency responses to requesters a standard paragraph notifying the requester that mediation services are offered by OGIS and giving contact information for that office. This notification to requesters should be provided at the conclusion of the administrative process within the agency, i.e., as part of the agency's final response on administrative appeal. This will allow requesters to first exhaust their administrative remedies within the agency. Agencies should also, of course, continue to provide requesters with notification of their right to seek judicial review. OGIS offers language that agencies might wish to use as a model for notifying requesters of its services.
Resolving FOIA disputes through mediation holds the potential to reduce litigation, thereby saving time and money for agencies and requesters alike, as well as enhancing the operation of the FOIA and public collaboration.