Mediation Without Litigation
By Harry Hammitt
The FOI Reports: Volume 2, Number 3
Published by the National Freedom of Information Coalition
Creating some kind of ombudsman-like office within the federal government to help requesters resolve problems with Freedom of Information Act requests has been a primary recommendation for amending FOIA in the past few years. The small newspaper community has been particularly supportive of the idea and bills to amend FOIA in both the Senate and the House incorporate the concept, establishing a national information office at the National Archives.
Regardless of the ultimate details, the push for an ombudsman reflects a frustration with the inability of many individuals and small organizations to press their case in the face of agency denials or delays. The FOIA, passed by Congress in 1966, set up the federal courts as the final arbiter for resolution of disputes between requesters and government agencies. While the courts are respected for their independence, forcing requesters to go to court if they are dissatisfied has prolonged an already arduous process, often adding years to the final resolution. Both the cost and time of litigation has discouraged requesters from litigating.
Now, some 40 years later, access advocates are turning to state models for examples of how access to information disputes can be resolved short of litigation. While litigation is still the ultimate resolution even in the states, a number of states have both formal and informal processes that provide opportunities for dispute resolution without going to court. This report will survey the approaches taken by those states with both specific and informal dispute resolution as a way of better understanding what currently exists and what models might be adopted at both the federal level and for those states that currently do not have a mediation system of their own.
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