OGIS Was Established to Help Oversee the Administration of FOIA

To help address the concerns surrounding FOIA implementation, the  OPEN Government Act,NARA to:   among other things, established OGIS within  review policies and procedures that agencies have developed to  administer FOIA;  review agency compliance with FOIA requirements;  recommend policy changes to Congress and the President to improve  the administration of FOIA; and offer mediation services to resolve disputes between individuals or  entities making FOIA requests and agencies as an non-exclusive  alternative to litigation. According to Justice, as of fiscal year 2012, a total of 99 federal agencies  had responsibility for implementing FOIA. Similarly, while the office reported that it has  reviewed agencies’ annual FOIA reports and Chief FOIA Officer reports  from Justice’s Office of Information Policy website to identify best  practices on improving FOIA processing, and has made general  observations about agencies’ policies, procedures, and compliance with  FOIA through the office’s mediation case work, these actions were not  undertaken as part of a specific review of agencies’ compliance with  FOIA, as required by the OPEN Government Act. A key factor contributing to the absence of proactive and comprehensive  reviews of federal agencies’ FOIA policies, procedures, and compliance  by OGIS is that the office has not established a structured methodology  for conducting such reviews. OGIS officials added  that the office is in the early stages of drafting a methodology for  conducting the reviews, but that a time frame for when the methodology  will be completed has not been established. (Most of the
One or both parties took action or modified their position after  OGIS’s intervention. However, consistent with its fiscal year 2013 annual report, in which the  office states that it has no formal metrics for measuring success, OGIS  has not developed measures and goals for its mediation services. Until OGIS establishes  quantifiable goals and measures of success for its mediation services, the  office will not be positioned to determine how effectively it is performing  mediation and contributing to the resolution of cases that might otherwise  have resulted in potentially costly litigation or gone unresolved. These recommendations have largely focused on  improving the internal coordination of government FOIA operations and  areas where OGIS’s role could be made more effective. OGIS officials stated that the recommendations were based on the  office’s ongoing work with federal agencies and members of the public. Toward this end, OGIS collects best practices for improving FOIA  processing from several sources, including its reviews of agencies’  annual FOIA reports and mediation case files, as well as anecdotally from  persons involved in mediation cases facilitated by the office. OGIS  publishes best practices related to key FOIA requirements and guidance  in its annual reports, and on its website (https://ogis.archives.gov/) and  blog (http://blogs.archives.gov/foiablog/). Conclusions

Since it was established 4 years ago, OGIS has taken actions to  implement selected legislative responsibilities, although it has fallen short  in certain areas. Specifically, while the office has suggested  improvements to a number of agencies’ FOIA regulations and system of  records notices, it has not completed a methodology for proactively  reviewing agencies’ policies, procedures, and compliance with FOIA  requirements and a time frame for doing so. On the basis of its reviews of agency  policy and procedures, and mediation experience, OGIS has made a  number of recommendations to Congress and the President and shared  best practices to help agencies improve the administration of FOIA. Appendix I: Objectives, Scope, and Methodology

Our objectives were to assess the actions that the Office of Government  Information Services (OGIS) has taken to (1) review agencies’ Freedom  of Information Act (FOIA) policies, procedures, and compliance, (2)  mediate disputes between FOIA requesters and federal agencies, and (3)  recommend policy changes to Congress and the President, and develop  and issue guidance and best practices to agencies aimed at improving  the administration of FOIA.
Why GAO Did This Study

The OPEN Government Act of 2007 amended FOIA and established OGIS within the National Archives and Records Administration to provide oversight and assistance to federal agencies in implementing FOIA. To evaluate how effectively the office is meeting its responsibilities, GAO assessed the actions that the office has taken to (1) implement its responsibilities for reviewing agencies' policies, procedures, and compliance with FOIA; (2) mediate disputes between FOIA requesters and federal agencies; and (3) recommend policy changes to Congress and the President and develop and issue guidance and best practices to improve the administration of FOIA. To do so, GAO analyzed documents describing the office's plans and activities for conducting reviews, mediation case files, and documents describing its policy recommendations made to Congress and the President and its guidance and best practices. GAO also interviewed officials at relevant agencies.

What GAO Found

Since its establishment in 2009, the Office of Government Information Services (OGIS) has provided comments on proposed Freedom of Information Act (FOIA) regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices. While OGIS has suggested improvements to a number of those regulations and notices, it has not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies' compliance with the law. In addition, since it was established 4 years ago, the office has not developed a methodology for conducting reviews of agencies' FOIA policies and procedures, or for compliance with FOIA requirements. OGIS is in the early stages of developing a methodology for conducting such reviews, but has not established a time frame for completion. Until OGIS establishes a methodology and time frame for proactively reviewing agencies' FOIA policies, procedures, and compliance, the office will not be positioned to effectively execute its responsibilities as required by the act.
OGIS is providing mediation services and is resolving disputes that might otherwise go unresolved or lead to litigation, although not all of its efforts have been successful. OGIS has achieved positive results for about two-thirds of the cases reviewed by GAO where mediation services were provided. For example, in several cases, one or both parties took action or modified their position after OGIS's intervention. Nevertheless, the office lacks quantifiable goals and measures for its mediation activities, as required by law. For example, it does not have goals to measure timeliness or success. Without these important management tools, OGIS cannot determine how effectively its mediation services are in improving the implementation of FOIA.
Since April 2012, OGIS has issued nine recommendations to Congress and the President aimed at improving the administration of FOIA. These recommendations focus on areas where OGIS could help agencies improve their FOIA processes as well as areas where its role could be made more effective. These recommendations were based on its ongoing work with federal agencies and with members of the public. In addition, while not required to issue guidance or best practices, the office collects best practices for improving FOIA processing from several sources, including its reviews of agencies' annual FOIA reports and mediation case files, as well as anecdotally from persons involved in mediation cases facilitated by the office. OGIS shares these best practices in its annual reports and on its website and blog.

What GAO Recommends

GAO is recommending that OGIS fulfill its statutory responsibilities by establishing (1) a time frame for completing and implementing a methodology for proactively reviewing agencies' policies, procedures, and compliance with FOIA requirements and (2) measures and goals for its mediation services. In written comments on a draft of the report, the National Archives and Records Administration concurred with the recommendations.