Building the Perfect Ombudsman's Office

by Aimee Edmondson, NFOIC contributing writer

OK, there’s no such thing as the perfect ombudsman’s office. But there are some ways to create a really good one, according to experts discussing the issue at the National Freedom of Information Coalition’s 2008 FOI Summit in Philadelphia on May 9-10.

An ombudsman’s office can help cut down on the number of expensive and lengthy court battles over access to information. It can mediate for both parties and offer informal opinions. It can provide trainers to travel around the state, teaching public officials and others about FOI, thus cutting down on the number of disputes in the first place.

“I can’t underscore enough the importance of training,” said Maria Everett, a lawyer and executive director of the Virginia Freedom of Information Advisory Council, a legislative agency. “It really is an ignorance issue. You need to get out there in the hinterlands and talk about what FOI actually requires.”

Everett does an annual FOI road show, traveling the state to train public employees and officials. It’s free to anybody who shows up.

Since Virginia’s advisory council was created in July 2000, it has rendered more than 9,000 informal opinions and more than 180 written opinions applying and interpreting FOI. The council has a $150,000 annual budget and staffs two attorneys.

“That’s pretty cheap. You get a lot of bang for the buck,” Everett said.

Disputing parties can also come to the council before going to court, though the agency does not have enforcement authority.

“Have people come to you first,” Everett advised. “You can fashion remedies in advance so you can get closer to a win-win about releasing records that is satisfactory to both parties.”

Chip Stewart, assistant professor at the Schieffer School of Journalism at Texas Christian University, has examined dispute resolution systems in freedom of information laws in all 50 states. He found a wide variety of models. Many states do not have an alternative to litigation in place. Others provide a special role for its attorney general. Some have created administrative agencies with varying degrees of power. Others have an ombudsman with support staff.

“The states are all over the place,” said Stewart, a lawyer and editor-in-chief of Dispute Resolution Magazine.

Obviously, the battle for records can be just that, a battle.

“You go in expecting confrontation, and there is often a hostile tenor,” Stewart said. “As a former reporter and editor, I want to look at how to improve the tone and come up with systems to deal with this.”

Mitchell W. Pearlman, executive director emeritus and former general counsel of the Connecticut FOI Commission, underscored the need for political independence on the part of the ombudsman.

It’s a bad idea, he said, to put the office in the department of community affairs, for example. That may be a cabinet position appointed by the governor. And that puts the public at a disadvantage in FOI disputes.

“In some states, where the ombudsman is appointed by the governor, they are simply not going to embarrass the administration,” Pearlman said.

They aren’t going to last long politically if they take a stand that angers the boss.

“People in charge of public records have taken brave positions and gotten their heads chopped off. You have to be independent.”

The ombudsman’s office can’t be too powerful. If you are too strong, it can be your downfall.

Pearlman pointed to a near-perfect system in Mexico. After the public became fed up with its corrupt officials, constitutional reforms help bring about the creation of an institute for access to information. The office provided education, offered mediation and aided the public in being better watchdogs.

But government officials became resentful of its success and powers, and began moving to weaken the institute.

Pearlman is also seeing similar problems in Connecticut, a state widely noted by FOI advocates as having a model ombudsman’s office.

The Connecticut Freedom of Information Commission was created in 1975 with the passage of the state’s FOI act. It is made up of 26 full-time staffers and has a budget of more than $1.5 million. The commission has quasi-legal powers to investigate FOI violations, enforce the law’s provisions and mediate disputes informally before the parties turn to the courts.

But Mitchell has noted a “pull back” in Connecticut as a result of the commission’s success.

“We never lost a case in the first five years. In the second five years we never won one,” Mitchell said. “There’s no perfect ombudsman system in my view. If you get the perfect system it may not last long because its head will be chopped off.”

That’s one reason Everett likes the fact that many states don’t give their ombudsman enforcement power.

An ombudsman can also draft legislation for public officials and can effectively lobby on behalf of the public.

Harry Hammitt monitors FOI at the federal level. He laments the “withering on the vine” of a federal ombudsman’s office. The newly-created position was part of the legislation that President Bush signed into law. It was intended to expedite and streamline the government’s response to FOI requests. But Bush’s 2009 budget eliminated the position.

 Hammitt, editor and publisher of Access Reports, a biweekly newsletter on the Freedom of Information Act, worries especially about small newspapers.

“They need some way to get fast, cheap dispute resolution. A lot of newspapers can’t afford to go to court.”

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