When Congress last updated federal open government laws in 2007, it created a new ombudsman intended to serve as an honest broker between Freedom of Information Act requestors and agencies. But unlike most other ombudsmen, this one works for one of the parties in the disputes it’s supposed to mediate. Pending legislation would change that by making the Office of Government Information services (OGIS) truly independent from the executive branch.
The proposed change is part of a large package of updated FOIA reforms Reps. Darrell Issa (R-Calif.) and Elijah Cummings (D-Md.) introduced earlier this month. The lawmakers’ goal is to revive and update legislation that passed both houses of Congress last year but finally died in December because the chambers couldn’t work out their differences.
This year’s version, similar to the previous one, would create a “presumption of openness,” placing the burden on agencies to prove that FOIA requests should be denied. Among its other provisions, the bill also would raise the profile of OGIS, which already is in charge of mediating FOIA disputes and making recommendations to Congress to improve the FOIA process. But as of now, OGIS is housed within the National Archives and Records Administration, and like the rest of the executive branch, ultimately reports to the White House.
“Under the law now, OGIS is not an independent watchdog or overseer,” Miriam Nisbet, who was OGIS’ first director from 2009 until her retirement last November told the House Oversight and Government Reform Committee Friday. “It must send its proposed recommendations through an intra- and- interagency review process that all other agencies must follow. If you want to see recommendations, reports and testimony that have not had to be reviewed, changed and approved by the very agencies that would be affected, then you should change the law.”
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Nisbet said any legal changes that strengthen the office also should ensure that OGIS maintains its position as a neutral facilitator and not become a “FOIA police” agency acting on behalf of requestors.
“However, the authority to report directly to Congress would be an important reform for an office that hears complaints, resolves disputes, reviews compliance and is expected to speak truth to power,” she said. “I might add that if I were still director, I could not say any of this.”
Benefits of third party rule
FOIA experts said the wide-ranging bill, which touches on virtually all aspects of the landmark 1967 law, provides some needed updates while also introducing potential unintended consequences, including extra work for agencies without extra funding.
The more independent role for OGIS could benefit both agencies and FOIA requesters, argued Rick Blum, the director of the Sunshine in Government Initiative, an advocacy group that mainly represents media organizations. He said agencies could stand to gain by having a neutral center of expertise to turn to on tough questions about how to apply FOIA. And ideally, requesters would benefit from getting quick answers in disputes over whether information should be released.
He suggested having a strong FOIA ombudsman might avoid some of the more trivial fights between agencies and the media, such as the one that occurred in the aftermath of the “miracle on the Hudson.” After United Airlines flight 1549 lost power in both engines and glided to a safe landing, news outlets sought historical FAA records to help determine whether the incident was an improbable fluke or, instead, if bird strikes to engines were fairly common. The FAA initially agreed to provide the data, but then reversed course.
“Within a few days, they said, ‘No, actually, releasing this information might harm transportation safety.’ But there was a lot of public attention to that and to the limitations of FOIA, and to his credit, the Transportation Secretary eventually overruled the FAA and they released the data,” Blum said. “But that’s a perfect example of something that doesn’t need to get to that level.
OGIS could say, ‘Wait a minute. Do you really mean to say that giving out information about bird strikes on airplanes is going to encourage someone to intentionally create this kind of accident? That’s just not going to happen.’ Ms. Nisbet is correct that we don’t have a FOIA police, but OGIS is the closest thing we have, and we’d like some rationality and clarity when these kinds of results happen.”
In denying the bird strike data, the FAA initially relied on what’s known as Exemption 3, a catch-all provision that states if any language anywhere else in federal law hints that a certain piece of information should be protected from public release, then FOIA doesn’t apply.
This year’s version of the Issa-Cummings bill would not eliminate the broad exemption, but would lay the groundwork for perhaps moderating its use by ordering the Government Accountability Office to draw up a list of the statutes that agencies rely on to invoke it.
“Individual statutory exemptions are often slipped into legislation without consultation with this committee,” said Rep. Gerry Connolly, (D-Va.), a co- sponsor of the bill, “and so we don’t even know how many FOIA exemptions are on the books. Requiring GAO to catalog them will help us identify outdated or inappropriate exemptions.”
Another e-FOIA mandate
The legislation also aims to make OGIS and federal agencies’ own FOIA public advocates a preferred alternative to costly lawsuits by requiring departments to tell requestors they have a right to turn to OGIS for mediation.
Among other provisions, the bill also would mandate the creation of an electronic governmentwide portal to submit and manage FOIA requests, and demand that agencies take a more proactive approach to records releases by releasing information online if it’s “likely to be in the public interest” or if the same records have already been requested through FOIA more than a few times.
As a matter of policy, most agencies already do some version of that through the electronic reading rooms on their public websites.
But enshrining the practice into statute in the way the bill is written could create some vexing conflicts with other federal laws, said Frederick Sadler, who worked as a FOIA officer in the Food and Drug Administration for more than 40 years.
For example, section 508 of the Rehabilitation Act requires agencies to make sure that any information they post online also is accessible to visually-impaired people who browse the Web using software that translates text into speech.
“If the requirement to post frequently-requested records were to become law and there’s no increase in resources, most FOIA officers are going to have to choose which statute to violate,” he said.
Not another unfunded mandate
That’s because a lot of government information that’s subject to FOIA simply isn’t compatible with current text-to-speech technology, including handwritten documents, papers in foreign languages, photos, graphs and charts. Under current law, any information posted online also needs to be turned into an accessible format through a process known as remediation or taken down from an agency website within 20 days, and with current technologies, most of the process can’t be handled through automation.
Sadler said the Section 508 problem also crops up frequently when agencies are trying to scan paper records into an electronic format — including paper records that were originally generated by computers.
“Optical character recognition picks up every little nit and unclear line. An ‘A’ becomes an ‘E’ and an ‘I’ becomes an ‘L,’ and it’s rendered illegible, so it’s also unusable by the visually handicapped,” he said. “We once issued an admonition letter to a breakfast bar company because they weren’t labeling their product with specific allergens that are required to be listed — peanuts in this case. It came to my office to be posted, and because it couldn’t be remediated quickly, we went ahead and posted the letter. Unfortunately, the phrase ‘allergy- inducing ingredients’ was mistranslated by the scanner as ‘orgy-inducing ingredients,’ which was publicity that the firm couldn’t buy. All of the documents had to come down from the website immediately, and all of it had to be manually read word-for- word and line-by-line to ensure it was appropriately remediated.”
More broadly, Sadler said FOIA always has been an unfunded mandate upon agencies, and that Congress should proceed with caution before adding more requirements that may or may not improve on the law’s original intent.
While FOIA reform did not make the cut in the last Congress and died just as the last session was running out of time in December, open government advocates said they have strong reason for hope that things will be different this year.
Companion legislation to the Issa-Cummings bill has also been introduced and marked up in the Senate — a significant sign, proponents believe, since it’s happening so early in a new legislative session, giving plenty of time for debate and amendments before an end-of-session stalemate dooms its passage again.