OGIS Posts More Response Letters Online
The Office of Government Information Services (OGIS), the federal office created to facilitate the FOIA process, first began posting a sampling of its final response letters online in 2013. In the first two years of these OGIS postings, approximately thirty letters responding to requests for help resolving FOIA disputes were placed on the OGIS website. OGIS has dramatically increased the numbers of final response letters it has posted this year, however, and has already posted well over one hundred final response letters for fiscal year 2015 online. This rise in the number of posted response letters allows for a greater glimpse into the common problems encountered in the FOIA process, as well as several extremely useful lessons for requesters using FOIA in order to declassify and release government documents.
Several of OGIS’s final response letters answer requesters who contacted the office for help with issues that fall completely outside of OGIS’s jurisdiction. For instance, one response observes: “It appears that you seek assistance in researching your family history. Please know that OGIS’s mission is to review Federal agency compliance with the FOIA and….we are not able to assist you with researching your family history.” However, the response continues to suggest several helpful strategies to facilitate and expedite the requester’s search at the National Archives and Records Administration (NARA). Another requester asked OGIS to initiate a lawsuit on their behalf. Although this action lies outside the office’s purview, OGIS’s response contained information referring the respondent to the relevant statutes involved in initiating a FOIA lawsuit independently.
Others contacted OGIS because their FOIA requests had originally been denied or delayed due to imprecision in the filing process. One request was delayed for eight to ten months because many thousands of responsive pages required extensive review and redaction before they could be released. This demonstrates the importance of specificity and proper scope when filing FOIA requests. Another letter to OGIS objected to the prohibitively large estimated fees involved in an agency processing their FOIA request. The petitioned agency rejected the requester’s claim “to be treated as a representative of the news media for the purpose of fees.” OGIS’s response letter explained that it was “generally not sufficient to simply state that you belong in a fee category” and suggested the requester provide the agency with a publication contract if he or she wished to be considered a freelance journalist in order to qualify for a fee category.
Some letters answered by OGIS directly reflect the red tape and bureaucratic rigidity encountered by FOIA requesters. The Social Security Administration (SSA) rejected one requester’s attempt to obtain information about a deceased family member without proof that the person concerned was actually dead. Attempting to point out the absurdity of these grounds for rejection, the requester responded that their deceased family member would now be 114 years old if he or she were still alive. Another rejection from NARA’s Jimmy Carter Presidential Library and Museum in response to a separate request utilized the “Glomar” provision, which neither confirms nor denies the existence of the requested records. This provision is used to obfuscate when even the act of admitting the existence of a record could reveal a fact exempt under the provisions of FOIA.
Perhaps the most inflexible response to be found in this sampling of 2015 final response letters involves the appeal deadline of the U.S. Immigration and Customs Enforcement (ICE). In July, a FOIA appeal to ICE was rejected on the grounds that the deadline for processing an appeal had expired “well before” the receipt date. In fact, the deadline fell on a weekend and the appeal could not be delivered. Postal records revealed that the appeal was then delivered on the very first business day following this date. This behavior, documented and shared by OGIS, seems to show a FOIA office that is more concerned with closing out cases and improving reporting numbers than one striving to release as much information as possible to the public. Though the ICE FOIA office initially considered the appeal “untimely,” it eventually agreed to reopen and process the appeal after the requester enlisted OGIS’s help.
These final response letter examples posted to the OGIS website demonstrate many of the difficulties encountered by requesters, but they also reveal the potential effectiveness of OGIS and the appeals process. The drastically increased number of letters available online this year provides a number of useful lessons to those of us trying to utilize FOIA to declassify government documents. The OGIS website and its blog, The FOIA Ombudsman, contain a significant amount of other useful information for both requesters and processors. Hopefully this year’s rise in publicly available final response letters is only the beginning, and future years will continue to develop in this direction towards increased transparency and decreased FOIA mistakes.