Our History: Told By You -- Miriam Nisbet

Our History: Told By You - a 50th Anniversary Blog Post Series

Celebrating ACUS’s 50th anniversary happily coincides with a major 40-year milestone for the Freedom of Information Act (FOIA), the focus of much of my career in Administrative Law. FOIA, first passed in 1966, didn’t have “teeth” until the 1974 post-Watergate amendments. Fortunately, ACUS was already a well-respected source of guidance and expertise while both FOIA and I were growing up!

When I started my legal career in 1978 with the U.S. Department of Justice, in what was then the Office of Privacy and Information Appeals (now the Office of Information Policy), the Federal agencies and the public were just becoming acquainted with FOIA. It was exciting to work with a relatively new law and administrative process that cut across the Executive Branch.  (In Fiscal Year 2013, agencies received about 700,000 FOIA requests, showing the enduring popularity of the original “Open Government” law.) In 1993, I joined the National Archives and Records Administration (NARA), initially to work on the “White House email case,” a lawsuit against the Executive Office of the President and the Archivist of the U.S. about the preservation of backup tapes containing emails. It’s hard to remember now that at the time, the question of whether the government must keep the electronic version of email messages was a novel legal issue.

After 10 years in the private sector and at the United Nations, I rejoined the National Archives in 2009—almost exactly 5 years ago—to start the Office of Government Information Services (OGIS), a new entity in the federal FOIA landscape.  OGIS, the federal FOIA ombudsman, for the first time in FOIA’s history brings mediation to the FOIA administrative process as an alternative to litigation. And, in another happy coincidence, OGIS can trace its beginnings to an ACUS Statement on the Resolution of Freedom of Information Act Disputes, adopted in June 1987, which recommended exploring informal approaches to FOIA dispute resolution that could result in more effective handling of some FOIA disputes. One such approach included the “voluntary use of informal alternative dispute resolution techniques, such as informal investigation of complaints, mediation or conciliation, and provision of a neutral government official to aid the parties in reaching settlement to avoid unnecessary litigation of Freedom of Information Act disputes.”

ACUS was well out front in signaling a less adversarial approach to providing access to government information. Twenty years later, in 2007, Congress amended FOIA to create OGIS with a two-prong mission to bring dispute resolution into the administrative process as an alternative to litigation and to recommend ways to improve FOIA policies, procedures and compliance. Representing the National Archives at ACUS and chairing the Committee on Collaborative Governance is not only a privilege, but a perfect match for the OGIS Director: ACUS is, of course, all about improving the administrative process; the Committee on Collaborative Governance looks at collaborative techniques that agencies use to implement their programs, including consensual processes such as negotiated rulemaking and alternative means of dispute resolution. The Committee also is concerned with using new media, which all of us with responsibility for federal programs (including FOIA) need to explore to better connect with our customers inside and outside the government.

I was fortunate to chair the Committee following the excellent leadership of Jody Freeman. In the last several years, we’ve proposed recommendations that illustrate well the Committee’s aims: making the Federal Advisory Committee Act more flexible and conducive to 21st century technologies; improving coordination of agency policymaking; and using private sector third parties to inspect and verify that regulated entities conform to standards and other requirements.

The most recent project led to Recommendation 2014-1, adopted by the Conference in June 2014: Reducing FOIA Litigation Through Targeted ADR Strategies. The underlying study aimed to look at “how alternative dispute resolution (ADR) procedures might help to resolve FOIA disputes and identifying those areas where the capabilities and resources of the Office of Government Information Services (OGIS) within the National Archives and Records Administration and other federal agencies could be directed most effectively.”  (Because the subject of the study was my office, my Committee colleague, John Kamensky of the IBM Center for the Business of Government, kindly agreed to chair the project.) The research sponsored by ACUS produced a 95-page scholarly report by Professor Mark H. Grunewald of Washington and Lee University School of Law (who was also the Conference consultant on the 1987 study on FOIA and ADR) and a recommendation that strongly supports the work of OGIS and encourages agencies to cooperate with OGIS and to use our services.

The Committee’s work has been marked by its efforts to bring in and incorporate the advice of stakeholders outside of the ACUS membership. With the assistance of the outstanding ACUS staff, most especially David Pritzker, the Committee meetings are well attended by the public and are readily available through live streaming. Moreover, participation is encouraged and public comments are always welcome.  In other words, Collaborative Governance is true to its name and its mission.

Finally, one more funny intersection: I didn’t have the foresight to take Administrative Law when I was a student and it would have been very helpful. That’s especially so because one of the best professors I could have had was right there at my law school, the University of North Carolina at Chapel Hill—Paul Verkuil, our eminent ACUS Chairman!

--Miriam M. Nisbet

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