Filing a FOIA request is common practice for investigative reporters, but whether a request is honored sometimes feels like chance. So in 2007 Congress created a kind of FOIA ombudsman: the director of the Office of Government Information Services. Last week Miriam Nisbet, who has worked for the Justice Department and the American Library Association, was named to the post. Nisbet explains how she hopes to improve the FOIA process.
BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And, I'm Bob Garfield. As many an investigative reporter can tell you, the relatively simple process of filing a Freedom of Information Act request can turn into a frustrating and protracted nightmare. Some requests are denied, for no apparent reason, some disappear into a bureaucratic rabbit hole and some wind up in litigation. And so, to speed up and open up the process, in 2007 Congress created the Office of Government Information Services. Many refer to the director of this new office as the FOIA ombudsman, and this month, Miriam Nisbet got the job. She seems like an ideal candidate since she’s logged time both in and outside the government, working 15 years at the Justice Department processing FOIA requests and many years at the American Library Association, advocating open government. Nisbet says that in recent years you didn't have a lot of options if your FOIA request was denied.
MIRIAM NISBET: Your only choice at that point was to file a lawsuit in federal court. That’s expensive. It’s time consuming for the requester as well as for the government.
BOB GARFIELD: So what does this office do that wasn't in the original FOIA Act to begin with?
MIRIAM NISBET: It is a new office with authorization to mediate as an alternative to litigation when there are disputes between a government agency and a FOIA requester.
BOB GARFIELD: Well, them’s pretty words, but I have to ask you -
MIRIAM NISBET: [LAUGHS]
BOB GARFIELD: - whether the mediation process really has any teeth to it. Should you make a ruling that the government has to surrender some information, is it, therefore, automatic that the agency submits?
MIRIAM NISBET: It’s not going to be a binding opinion, it’s an advisory opinion. But that certainly would be part of the administrative record going to court if the case did go to court. We would certainly like to think that an agency head that is aware of an advisory opinion going against the agency would take that into consideration before absolutely defending to the death the withholding of the documents.
BOB GARFIELD: In the beginning of the Bush administration, then- Attorney General John Ashcroft, by kind of executive fiat, ordered the Justice Department to essentially disregard FOIA requests. I'm wondering if an agency director should do something similar, whether you have the power to intervene?
MIRIAM NISBET: Well, first of all, the new Attorney General has issued a directive going precisely the other way, sort of presumption of disclosure as opposed to nondisclosure. And the director of this new office will be able to work with the agencies to report to Congress and to the President and make recommendations for ways to improve the process.
BOB GARFIELD: This law was passed by Congress in 2007 and you are just now getting this appointment to begin the work of the Office of Government Information Services. What in the world went on in the intervening two years?
MIRIAM NISBET: Well, it’s a matter of [LAUGHING] public record that the Bush administration was not enthusiastic about this newly created position, was reluctant to fund it and was trying to make the office be within the Department of Justice. Congress just said no to that. And now, with the change in administration, there’s a green light.
BOB GARFIELD: Now, before we give the Obama White House a free ride, there have been some disturbing developments with respect to the State Secret Privilege, invoking the privilege in court, in a couple of cases, in precisely the way that the Bush administration did, and, most recently, denying the press access to the White House visitor logs, in precisely the way the Bush administration did. I wonder if you’re getting a little nervous that the transparency that the Obama White House has promised is not quite as transparent as you'd like?
MIRIAM NISBET: Well, I don't know whether or not this is going to be a specific case that the new office is going to be able to weigh in on. There are many people right now in the White House, at the Justice Department, at the National Archives, who are trying to figure out a way to ensure as much openness as possible with regard to these particular records. It’s a little too soon to be pessimistic about that.
BOB GARFIELD: Miriam, thank you so much.
MIRIAM NISBET: Well, you’re welcome, Bob.
BOB GARFIELD: Miriam Nisbet is the incoming director for the Office of Government Information Services.