Revisiting FOI Dispute Resolution Models
Back in 2009, as part of my research for my dissertation on managing disputes arising under freedom of information laws, I wrote this article, published in the Journal of Media Law & Ethics, in which I designed a typology of the different ways states manage these things.
Why do I bring this up now? Well, 10 years later, I’m speaking at the SPJ Excellence in Journalism conference in San Antonio, specifically about various ombuds and mediation programs offered under freedom of information laws around the country. And, as is to be expected, a lot has changed in the past decade.
Five models emerged from the examination of dispute resolution systems in state and federal freedom of information laws.
My initial research identified the following five kinds of managing disputes (such as denials of access to records/meetings, fee charges, redactions, delays, etc.) arising under FOI laws:
(1) Multiple Process–Multiple layers of dispute processing are available for people requesting access, including early mediation, administrative review, and both informal and formal hearings prior.
(2) Administrative Facilitation– Includes a person or agency to investigate and mediate disputes. These include mediation programs, ombuds offices, and public access counselors, among others.
(3) Administrative Adjudication– An individual or agency provides more formal, binding review of disputes, often required before a dispute can proceed to court.
(4) Advisory– Individuals or agencies, such as attorneys general, may provide informal, non-binding review of disputes on FOI matters.
(5) Litigation– No formal system is in place to manage disputes besides courts of law.
My initial study found 17 states plus the federal government (with its then brand-new Office of Government Information Services) offered either “multiple process” or “administrative facilitation” services to manage disputes, while 7 jurisdictions offered “administrative adjudication,” and the remaining 26 states and the District of Columbia were either merely “advisory” or “litigation only.”
At the conference, I’ll be talking about some of the changes over the years. But here’s information from the handout on where things stand now. Those with an * are agencies that are either new or have changed in the past decade.
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Multiple Processes
Connecticut FOI Commission: Hears appeals, makes binding rulings, mediation, ombuds
Hawaii Office of Information Practices: Handles appeals, offers opinions, takes calls, training
Illinois Public Access Counselor*: Informal and binding opinions, mediation, investigation
New Jersey Government Records Council: Handles inquiries, makes advisory opinions, mediation
Pennsylvania Office of Open Records*: Handles appeals, binding rulings, mediation
Administrative Facilitiation
Ombuds Model
Alaska Office of the Ombudsman: Not FOI-specific but handles inquiries, investigates
Arizona Ombudsman-Citizens’ Aide: Investigates, make recommendations, resolve disputes
Federal Office of Gov’t Information Services*: Dispute resolution, agency oversight, education
Maryland Public Access Ombudsman*: Handles complaints, investigates, offers mediation
Utah Government Records Ombudsman*: Handles inquiries from gov’t & public, offers mediation
Washington AG Open Government Ombuds: Handles inquiries from gov’t & public, informal opinions
Mediation Model
Florida Open Gov’t Mediation Program: Attorney general handles inquiries, mediates disputes
Georgia Open Gov’t Mediation Program: Attorney general handles inquiries, mediates disputes
Oregon Public Records Advocate*: Offers mediation of disputes, training, policy advice
Tennessee Open Records Counsel*: Offers advisory opinions, mediation, training
Other Examples
Indiana Public Access Counselor: Issues advisory opinions, informal inquiries, training
Iowa Public Information Board*: Hears appeals, complaints, issues advisory & formal ops
New York Committee on Open Government: Issue advisory opinions, telephone assistance, training
Maryland Open Meetings Compliance Board: Hears complaints about violations, issues opinions
Virginia FOI Advisory Council: Hears inquiries, gives advice, formal & informal opinions
Administrative Adjudication
Kentucky Attorney General: Handles appeals from citizens & gov’t, binding opinions
Massachusetts Supervisor of Records: Handles appeals from citizens & gov’t
Nebraska Attorney General: Hears appeals from citizens, can order compliance
Rhode Island Attorney General: Investigates complaints against gov’t for violations
Texas Attorney General: Hears appeals from gov’t, issues rulings & advisory opinions
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When I spoke at the National Freedom of Information Coalition annual meeting back in March, I got a chance to meet with a number of folks doing good work on FOI laws and advocacy. I was glad to hear that NFOIC was looking at possibly doing a white paper with an update to my research in this area; enough has changed that it is worth a new look.
