The legislation creating the Office of Government Information Services (OGIS) is clear – OGIS is to provide Congress with recommendations on how to improve the government’s implementation of the Freedom of Information Act. As we explained last week, OGIS prepared its recommendations months ago and submitted them to the Office of Management and Budget for pre-release clearance. Congress grew impatient when OMB refused to clear the recommendations and demanded them of OGIS’s director during a congressional hearing last month. In response, OGIS sent legislators a letter, but no recommendations.

CREW has now learned the Senate Judiciary Committee threatened a subpoena if OMB refused to clear the recommendations and OMB blinked – a little. Rather than the original recommendations, OGIS sent Judiciary Chairman Patrick Leahy and Ranking Member Charles Grassley a “report” laying out OGIS’s recommendations, expressed in policy, not legislative, terms.

Read OGIS's letter to the Senate Judiciary Committee and their recommendations.

We will never know how this report differs from the recommendations OGIS submitted to OMB. But the newest OGIS report raises six challenges and recommendations on how to address them in fairly detailed terms, and will likely appease Congress for now.

In the long term, however, OMB’s position – that OGIS is not required by statute to provide Congress with recommendations – raises some very disturbing concerns. Perhaps most troubling, it suggests OGIS does not, in fact, enjoy the independence Congress deemed critical for OGIS to fulfill its mission as a neutral, third-party arbiter of FOIA disputes. And it reinforces what many of us have been hearing for months, namely that DOJ’s Office of Information Policy has been trying to undermine OGIS – which it views as a threat – and has enlisted the help of OMB in this effort. We applaud Senators Leahy and Grassley for their refusal to back down and hope we can count on them to continue to fight for OGIS’s independence.