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Administrative Conference of the United States Adopts Recommendations Based on FOIA Study by W&L Law’s Mark Grunewald

At its Plenary Session in Washington, D.C., on June 5, 2014, the Administrative Conference of the United States (ACUS) adopted a set of recommendations concerning Freedom of Information Act (FOIA) dispute resolution based upon a study conducted for ACUS by Washington and Lee law professor Mark H. Grunewald.

In 2013, over 700,000 FOIA requests were filed with Executive Branch agencies by individuals and organizations seeking government information. These requests cost the government more than $400 million in processing costs and an additional $27 million in litigation costs related to the requests. Grunewald’s study was commissioned by the ACUS to determine how dispute resolution might be better implemented to help reduce these costs and improve the FOIA request process.

Grunewald’s study analyzes a wide range of data related to federal agency processing of FOIA requests and federal court review of agency FOIA decisions. It also synthesizes the results of numerous interviews with FOIA experts and examines comparative approaches to FOIA dispute resolution. His study and the ACUS recommendations address particularly the role of the Office of Government Information Services (OGIS) and the role of agency Chief FOIA Officers and Public Liaisons created by the OPEN Government Act of 2007 to assist in the resolution of disputes arising under FOIA.

Grunewald’s recommendations suggest ways that OGIS can maximize the effectiveness of its resources to help requesters and agencies resolve FOIA disputes through the use of mediation and other alternatives to litigation. The recommendations also suggest steps that agencies can take to prevent or resolve FOIA disputes, including making FOIA staff and requesters aware of OGIS services and engaging with OGIS and requesters to aid in the resolution of requests.

ACUS is an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. The Act which created ACUS emphasizes collaboration among a wide array of federal agencies as well as experts in administrative law and government from the private sector and academia, reflecting a wide diversity of views – all of whom serve without any additional compensation. This collaborative effort is designed to identify consensus recommendations for improvement in the administrative process that affects every sector of the National economy and the lives of American citizens.

Grunewald, who holds the James P. Morefield chair at W&L Law, is an expert in administrative and labor and employment law. He has served three times previously as a research consultant for the ACUS, in 1987 for Statement 12, “Statement on Resolution of Freedom of Information Act Disputes,” in 1991 for Recommendation 91-5, “Facilitating the Use of Rulemaking by the National Labor Relations Board,” and in 1995 for Recommendation 95-6, “ADR Confidentiality and the Freedom of Information Act.”