The Openness Ombudsman

D.C.’s new FOIA ombuds office is finally taking shape

Stakeholders in government information policy—academics, lawyers, advocates, officials, and bureaucrats—gathered today at American University’s Washington College of Law to discuss how the Obama administration and the new Congress might lower barriers to information access.

Less than ten days after President Obama’s high-profile executive actions on openness, the general mood at the conference is somewhere between excited and jubilant. “This is an incredible, transformative opportunity for all of us,” says OMB Watch executive director Gary Bass, a dean of the community.

While the focus of the conference is what the Obama administration might yet do, the luncheon speaker, Gary Stern, general counsel of the National Archives and Records Administration, focused mostly on a bit of unfinished business from the Bush era: the Office of Government Information Services.

OGIS has a short but tangled history. In 2007, Congress passed legislation calling for its creation, which President Bush signed it into law. The law intended to create an independent office inside the federal bureaucracy to mediate disputes stemming from requests under the Freedom of Information Act—to rebuke agencies making indefensible decisions, and to help explain to users why unreasonable or poor requests were denied. Congress chose to place the office within the National Archives, viewed by the FOIA community as a relatively non-political agency.

In a massive budget bill signed on New Year’s Eve 2007, President Bush, in a small note tucked in a section focusing on Commerce Department appropriations, directed that OGIS’s responsibilities be handled by the Justice Department office tasked with defending other government agencies in FOIA court battles. The budget didn’t provide Justice with any more funding for the task, and OGIS proponents cried foul at the obvious conflict of interest.

According to Lucy Dalglish of the Reporter’s Committee for Freedom of the Press, the maneuver delayed the Archives from working on the office for about a year.

Over the clink of lunching forks this afternoon, Stern warned that it will yet be some time before OGIS will be up and running. It was only yesterday that the Archives released a job posting for the office’s director. After a thirty-day application period, the future ombudsman will then have to pass through at least four levels of review.

“It’s not going to be until the fall at the earliest that this office is going to be ready,” said Stern. “Give us the rest of this calendar year.”

In the past, the Archives made it clear that it was less than thrilled about hosting OGIS. According to Stern, the agency was worried that the office might be an unfunded mandate, to be saddled upon a workforce already struggling to keep up with the government’s ballooning records. The Archives regarded OGIS’s ombudsman mission as being somewhat afield of its core archival mission.

Despite that history, Stern reassured the crowd: “I’m here to say that NARA is ready to embrace OGIS.”

“That’s a turning point,” said Rick Blum, director of the Sunshine in Government Initiative, a journalist’s coalition that worked closely with Senators Patrick Leahy and John Cornyn to craft the legislation, and which has watchdogged the office’s status.

Stern offered some more information on what, in due time, the admittedly embryonic OGIS could resemble. The office’s director will report directly to the presidentially appointed National Archivist, similar to the director of the Information and Security Oversight Office, an independent office within the National Archives charged with monitoring the government’s classification system. The vast majority of OGIS’s initial $1 million financial appropriation will go to support a staff of six or seven, though Stern suggested that the office could eventually grow to match ISOO’s staff of over twenty people.

Two weeks ago, the National Archives was granted permission to make the OGIS director a member of the Senior Executive Service, a bureaucratic designation held by about 7,000 of the highest-ranking federal officials.

That ensures that the director will be a relatively senior official. “It’s really about the stature of the person and their independence and evenhandedness,” says Blum.

“Our plan is very simple. We’ll hire a director, and the director gets to figure out what to do with OGIS,” said Stern, who says that his agency has looked to state and foreign information ombuds as models. “That’s the plan, and there’s not too much more to it at the moment.”

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.