Evaluating Public Access Ombuds Programs: An Analysis of the Experiences of Virginia, Iowa and Arizona in Creating and Implementing Ombuds Offices to Handle Disputes Arising Under Open Government Laws
Daxton R. "Chip" Stewart
Ombuds offices have been established in several states to oversee disputes arising under state open government laws. The author conducted case studies of three of these programs. Using Dispute Systems Design theory, this article analyzes the major themes uncovered in the case studies of Virginia’s Freedom of Information Advisory Council, created in 2000; Iowa’s public records and open meetings position in the state office of the Citizens’ Aide/Ombudsman, established in 2001; and Arizona’s assistant ombuds for public access, created in 2007 in the Ombudsman/Citizens’ Aide office. Results showed that the offices largely comported with the major goals of ombuds programs – independence, impartiality, and providing a credible review process – but weaknesses in perceptions of impartiality hurt the development of the Iowa and Arizona programs. The program with the most perceived success, Virginia’s FOI Advisory Council, also appeared to embrace the tenets of Dispute Systems Design the most in the creation and implementation of the office, such as involving stakeholders and actively pursuing buy-in of government groups in the early days of the program. In conclusion, this article offers best practices for designing new ombuds offices or improving existing programs.
Government transparency is essential in a democracy to ensure that citizens and their proxy, the news media, can effectively scrutinize the conduct of public business. For this reason, the federal government, the District of Columbia, and all 50 states have passed open government laws that are intended to ensure public access to government records and meetings.
And yet, more than a century after the earliest of these “sunshine laws” went into effect, citizens and journalists still struggle to consistently receive access to meetings and records as the laws require. Tension is certainly inherent in the relationship between a citizenry that wants to remain informed and agents of government who seek to control information, and the tension may be even greater between government and those given special protection under the First Amendment to monitor government, the news media.
Since Connecticut created the state’s Freedom of Information Commission in 1975, several jurisdictions have developed programs to manage disputes concerning public access to government records and meetings. While every state offers judicial remedies for parties who feel they have wrongfully been denied access to records or meetings under the law, alternative programs have been created in several jurisdictions. As of the end of 2009, 32 states had implemented some kind of alternative dispute resolution (ADR) program to handle public access issues, including administrative agencies, mediation programs, public access counselors, special duties for attorneys general, and groups to provide informal advisory opinions. Five states have created ombuds programs to scrutinize public access issues, and others have incorporated already existing ombuds programs to investigate complaints regarding public access matters. Additionally, the federal government established the Office of Government Information Services, which in 2009 began providing oversight of agencies’ responses to the Freedom of Information Act.
Though ombuds offices to manage public access disputes have been in existence for nearly a decade, the process of creating and operating these programs has been the subject of little empirical research. As new public access ombuds programs are created, and as other new programs develop, the successes, failures, and challenges faced by other ombuds program can help to inform better design and outcomes. This study, informed by Dispute Systems Design theory, includes the conclusions drawn from case studies of public access ombuds offices in three jurisdictions: Virginia and Iowa, the first two programs, which have been in existence for nearly a decade, and the more recently-created Arizona program.
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