FOIA Advisor

Commentary: First "advisory opinion" issued by OGIS

Commentary (2018)Allan BlutsteinComment

The FOIA requires the Office of Government Information Services to offer mediation services to resolve disputes between requesters and agencies, and it authorizes OGIS to issue advisory opinions "at the discretion of the Office or upon request of any party to a dispute."   On Wednesday, July 17, 2018, after teasing Twitter followers about a "big announcement," OGIS issued an "advisory opinion" -- the first in its history -- concerning agency communications with requesters.  The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views about OGIS's historic action.

AB:  It reminded me of Geraldo Rivera's "The Mystery of the Al Capone's Vaults," an overhyped 1986 television special that infamously failed to deliver on its tantalizing promises.  The content of OGIS's guidance is useful, to be sure, but it  is not the "advisory opinion" that Congress or the requester community envisioned -- that is, an opinion about a specific dispute between parties.  So why the embellishment?  OGIS has consistently claimed that issuing such opinions would undermine its role as a neutral mediator.  Fair enough.  DOJ should be the government's final decision-maker on the interpretation of the law in any event.

RM:  Yes, the substance of OGIS's "advisory opinion" is helpful but less than groundbreaking.  I'm not sure I agree, however, that Congress intended these sorts of opinions to address only particular disputes.  Section 552(h)(3) is ambiguous.  In my mind, the whole concept of an advisory opinion suggests it is meant to be more general and provide an interpretation of the law that transcends any specific case.  Here, OGIS's opinion was issued at its own discretion and based on its experience mediating a number of disputes.  I don't think that's objectionable.  And as far as I can tell, the legislative history is silent about what Congress actually envisioned OGIS's role to be with advisory opinions, although DOJ unsurprisingly raised "concerns" that OGIS would be given "any sort of policymaking and adjudicative role with respect to FOIA compliance."  I'd just add that it's unclear what OGIS even thinks its authority should be; the agency issued a proposed rule at the end of 2016 to introduce regulations implementing its statutory mission, but the rule was never finalized and inexplicably failed to address advisory opinions.

KS: The tinfoil hat side of me believes this advisory opinion may have been a trial run. As Ryan noted, DOJ is not happy that OGIS is able to issue any sort of opinion on FOIA compliance. So OGIS wanted to test the water and put out a rather unobjectionable first advisory opinion and see what sort of feedback they get. DOJ puts out guidance related to improving agency communication with requesters on a regular basis, so this isn't breaking any new ground. At least publicly, I'd say mission accomplished, but who knows what sort of feedback they've gotten behind the scenes. We won't be able to glean much information about OGIS' intent until they put out another advisory opinion.