Public Comments Submitted by Kohl Harrington on April 20, 2022
I have a series of public comments concerning the OGIS document titled, "OGIS 2.0: Reimagining FOIA Oversight Reimagining OGIS Working Group and Legislation Subcommittee1 Recommendations to the Federal FOIA Advisory Committee March 30, 2022". I am a FOIA requester, and I rely on FOIA to research and report on various important issues primarily with HHS agencies. For example, CDC has made public comments recommending no pet owner ever feed a "raw pet food" product, and CDC stated their recommendation was based on solid science. Via FOIA, I requested the science this specific recommendation was based on, and was informed no such science exists. As an additional example, FDA-CVM has been regulating for years by their "opinion" instead of a properly passed rule. Via FOIA, and specifically via FOIA litigation due to FDA-CVM refusing to provide me records, I have uncovered a multitude of lies and violations of federal law by this agency. My work informs the public mainly through board approved continuing education courses, documentary film, and even via a book expected to be published by Chelsea Green Publishing.
OGIS states, "Since 2009, the office has handled more than 30,000 requests for assistance with the FOIA process, providing an alternative to the historical solution of litigation to resolve FOIA disputes." And, "Through its work, OGIS advocates for a fair process for requesters and agencies, and its neutral position as an ombudsman resolves a good proportion of disputes. The directors and staff members have done an exemplary job with the resources and powers afforded them."
Over the past 3+ years, I have personally experienced OGIS not engaging in what most would probably call a "fair process". Specifically, Alina Semo allowed government agencies (the other party in my dispute) to preview and make changes to official OGIS letters prior to them being sent to me. Ms. Semo did not allow me to preview or make changes changes to the letter in the same way. She and others at OGIS supplied FDA and other agencies with phone calls and webex meetings, specific to my case. Ms. Semo refused to speak to me by phone or webex meeting though. I was again not provided with equal resources in a process that OGIS has proclaimed to congress to be "fair" and "neutral".
After years of trying, I complained up the chain of command until Ms. Semo finally scheduled a call with me. Again, this was after trying at least 12-15 times over the course of years. Since that phone call, Ms. Semo has not followed through with requested mediation. In a letter to me, OGIS (Ms. Semo) stated OGIS could do nothing for me, because in my case FDA FOIA refused to budge on their handling of violating FOIA against me. I found OGIS stating they can "do nothing" for me given that the FDA refused. In fact, OGIS could actually "do more", especially with the letters they issue. For example, OGIS could have recommended that the FDA process most of my FOIA requests in a more efficient fashion than they currently are, given that's a total possibility for the agency. OGIS could have informed FDA I was open to various other options than the volatile options they were offering me. In my case though, it felt as though OGIS was simply acting on behalf of the FDA, and their goal was to continue to road block me while doing as much for FDA as possible.
This raises many questions and concerns relating to what OGIS is asking from congress via their "reimagining" of OGIS, of which I'm making public comments about today.
Ms. Semo told me that allowing agencies to review official OGIS "neutral" letters, prior to OGIS providing the letter to the requestor, is normal and is not biased. I disagree with that. So, how does this level of outright bias with working with one side of a dispute change with OGIS's request for more legal authority? Is OGIS going to continue to provide agencies with more resources than the requestor? Will OGIS shift it's structure
OGIS states, "Backlogs continue to increase, from 120,436 in 2019 to 141,762 in 2020, and have worsened through the pandemic." I specifically want to publicly comment on FDA-CVM. OGIS states, "Simple requests take an average 30 days to process, and complex requests can lag months, or years." Specifically with FDA-CVM, the agency is taking an average of 18-24 months to process simple requests. OGIS notes, "Agencies complain of requesters jumping quickly to litigation, having unrealistic expectations, increasingly complex requests, and inflicting unwarranted hostility through 'predatory requests'." While FDA-CVM may not be the specific agency complaining about litigation, I have found as a requester that suing an agency is my only option for receiving records most of the time.
In regards to the overly burdensome time it takes FDA-CVM to process records, and in response to FDA-CVM constantly and broadly complaining they don't have "resources", I note FDA-CVM asked congress for an additional $48 million in funding for the 2023 year. No where in the budget request or proposal does FDA-CVM commit to improving their FOIA process. We have to assume then that the excuse of lack of "resources" is not actually true, and it appears the agency simply doesn't care or doesn't want records to be provided to the public in less burdensome time frames.
This leads into OGIS noting, "95% of requesters who have utilized OGIS said the agency has too little power, and 93% said OGIS should be granted the power to compel agencies to provide requesters records. Ultimately, the current system, relying on the courts to resolve disputes, is expensive and time-consuming,19 inadequately serving the average person, agencies, and the taxpayer. The current system disfavors those who are economically disadvantaged, since enforcement of FOIA is possible only through litigation. Even news organizations, particularly local outlets with diminishing resources, are less likely to challenge public record denials in court because of the time and expense."
I have a few public comments on this information provided by OGIS. Specifically OGIS stating, "The current system disfavors those who are economically disadvantaged, since enforcement of FOIA is possible only through litigation." I have seen first hand how OGIS is actually a part of this current system that disfavors those who are disadvantaged. In various instances, OGIS could provide guidance or advice to this type of requestor, but does not. OGIS attempts to flip the script and say "we can't provide legal advice", but that is not the same thing. For example, OGIS stated to me there was "nothing they can do ''to help me, given FDA refused to budge on their stance. OGIS could have also stated something to the effect of, "given our inability to further assist you given we have no legal authority to do so, we wish to make you aware that your next option could be to file a lawsuit in federal court." OGIS could also make educational material available to those "who are economically disadvantaged, since enforcement of FOIA is possible only through litigation." OGIS does not though. As OGIS notes, this results in the "alienating average Americans who cannot afford to sue," so I can assume OGIS is aware of their actions or lack of actions here.
I somewhat agree with OGIS's statement that "These mechanisms are insufficient, and further legislative authority for OGIS is needed, guaranteeing affordable and effective aid for requesters yet still protective of national secrets, privacy, and other legitimate competing interests." And "It is time, now, to redouble our investment in democracy’s infrastructure." Specific with what I have noted in my examples with my experience with FDA-CVM, a major issue is simply FDA-CVM properly operating their FOIA division. If FDA-CVM and the FDA appeals divisions were more appropriately staffed, a lot of my FOIA related issues would be resolved. How will providing OGIS more legal authority be helpful when the agencies themselves are still not staffing their FOIA divisions appropriately? Is OGIS wishing for authority to force agencies to hire appropriate levels of staff for FOIA fulfillment? With more legal authority, if I come to OGIS with a legal complaint that FDA-CVM is taking 18-24 months to process my request, is OGIS aiming for the authority to force the agency to begin processing my records, similar to what happens in litigation? Or does OGIS expect to tell requestors something similar to what we are already receiving via the FOIA appeals process?
Recommendation 1
OGIS states, "We recommend that Congress clearly defines OGIS’ mandate by resolving disputes through a mediation arm while also empowering it to issue binding decisions through adjudication, if requested, with the authority to compel agencies to release records. Requesters or agencies could still challenge such decisions in court." Again I point to the fact that the major issue is simply FDA-CVM properly operating their FOIA division. If FDA-CVM and the FDA appeals divisions were more appropriately staffed, a lot of my FOIA related issues would be resolved. Again I ask, how will providing OGIS more legal authority be helpful when the agencies themselves are still not staffing their FOIA divisions appropriately? Is OGIS wishing for authority to force agencies to hire appropriate levels of staff for FOIA fulfillment? With more legal authority, if I come to OGIS with a legal complaint that FDA-CVM is taking 18-24 months to process my request, is OGIS aiming for the authority to force the agency to begin processing my records, similar to what happens in litigation? Or does OGIS expect to tell requestors something similar to what we are already receiving via the FOIA appeals process?
I have a question when OGIS states, "If mediation does not settle the matter, then it may be handed to a different complaint officer for a binding decision. One of the office’s 14 complaint officers, all lawyers trained in the public records law, then makes a determination, looping back to the parties for clarification, if needed. A decision is written, evaluated by two editors, and then sent to the executive director or deputy director for final approval. About 70% of complaints are decided within 30 days and the rest within another 30 days, typically because of delays caused by in camera review of documents, if necessary, by the complaints officer. The agency’s decisions are binding, although either side may challenge the decision in court (about 3% of decisions are challenged in court)." How will OGIS ensure that cases in their recommendation would be handled in 30 days, or 60 days? As of now, OGIS is taking years (if ever) to even get to mediation disputes. How can we expect this recommendation for binding decisions to be any different?
This brings me to "Would a requester have to go through OGIS before filing a lawsuit, or go straight to litigation as many time-sensitive litigants, such as journalists, might prefer?" I have a personal experience where the Illinois Department Of Agriculture was violating open records law in that state. My first option was to file a PAC complaint with the attorney general office. I attempted to resolve the complaint first via that mechanism. What happened? Well, the attorney general's office verbally called me and attempted to coerce me to allow the Illinois Department Of Agriculture to violate law in various other ways, as an attempt to "settle" my dispute. Due to my years of fighting FDA on similar points, I didn't comply with this but was shocked that the process was so biased. However, the PAC office didn't provide me with an official decision in 30 days, so I filed suit in court and the lawsuit rectified the matter. Point being, if OGIS doesn't rectify the matter in 30 days time or such, once a lawsuit is filed, OGIS should be required by law to end their aspect of the complaint. Using the Illinois issue as an example again, once I filed suit against the Illinois Department Of Agriculture, I alerted the IL PAC office that I filed suit. They then closed my complaint with their office.
I do believe if properly funded, this recommendation could help. Again, I don't believe it is appropriate for OGIS to gain more legal authority and help resolve disputes, when FOIA staffing remains unresolved at agencies creating burdensome issues for requesters.
Recommendation 2
I fully agree with this recommendation. If OGIS is to mediate or adjudicate disputes between requesters and agencies, then yes it would be appropriate for all the facts at hand. I also note as I already have above, I believe OGIS needs to address their current biased approach in how they communicate between agencies and requestors, and how they provide agencies more resources than they do requestors. Currently, agencies do not have to show OGIS unredacted records in dispute, and I disagree with this.
Recommendation 3
I also agree with this recommendation. Respectfully, OGIS is pretty useless at this moment in regards to mediation, because they have no teeth. In other states, I attempt to resolve FOIA related issues first via a PAC (public access) office prior to any litigation. I can still litigate if OGIS misinterprets law, or if law is still violated with an OGIS decision.
Recommendation 4
I agree with this recommendation, and I agree with OGIS's point that "A direct line-item budget would send a message to the people of America that government transparency and accountability are fundamental to a democracy, and that Congress backs its commitment with direct funding." Again though, I have to stress that OGIS getting a massive budget is not going to resolve issues like FDA-CVM severely under staffing their FOIA office, creating massive backlogs and burdensome time periods for requesters to receive their records. I know that's a different agency and point, but it does impact OGIS and what they're asking from Congress. We can't sit here and think simply providing more authority and money to OGIS is going to resolve FDA-CVM taking 18-24 months to fulfill simple records requests if FDA-CVM continues to employ only 10 people in their FOIA office.
Recommendation 5
I agree
Recommendation 6
I agree
Recommendation 7
I agree
Other remedies for future consideration
I agree with all recommendations A-H
For the recommendation, "I. Move OGIS outside of the executive branch", I believe this is one of the most important recommendations to happen asap.
For "J. Establish resolution mechanisms in the judiciary to reduce FOIA litigation," OGIS has pointed out how much money is being spent on FOIA litigation. Taxpayer dollars are either going to be directed to FOIA litigation, or OGIS. There's no expectation from my perspective that OGIS will help save funds via more legal authority as they are requesting. Additionally, I find in my circumstances with the FDA that the agency simply doesn't care. FDA often "takes a position" and sticks to it. OGIS is ineffective because they can't force anything to happen, so I have to litigate in court instead. Sadly, I believe various ongoing disputes with FDA can be resolved outside litigation, but the FDA FOIA director refuses to properly resolve things, and instead seems intent on dragging out or slowing down the records production process as much as possible. What's fascinating is that the FDA FOIA director, according to FOIA logs, may have provided other people with FOIA records for identical requests to mine, while I sit here without the records. Not efficient. She won't resolve the matter when I write by email pointing out the fact the agency provided or appears to have provided similar or same records as I am requesting. So again, I'm interested in OGIS's point of view on matters like this, and how they see themselves operating in a situation like mine. How would they resolve something like this with more legal authority, as they are requesting?
Kohl Harrington
Harrington Films
323-237-9958