Federal Agency Ombuds: The Costs, Benefits, and Countenance of Confidentiality

Abstract

Based upon the largely beneficial experience in corporate America and in governments abroad, federal agencies increasingly have employed ombuds. Federal agencies use ombuds to work with private parties and agency employees to defuse agency-related problems before they escalate and to provide an outlet for dissatisfied employees or members of regulated communities to relay their concerns. Confidentiality plays a critical role in encouraging governmental employees and private parties to utilize the ombuds. Employees and regulated entities may fear reprisals or embarrassment if their contacts with ombuds are disclosed. Conversely, senior agency management may not confide in an ombud if such confidences could later be disclosed in a court proceeding or to any interested employee via a Privacy Act request. Moreover, the stature of the ombud office is tied to its seeming neutrality, and confidentiality enhances that appearance.

Nonetheless, confidentiality cannot be guaranteed under the law currently. Ombuds, like other agency officials, must keep and retain all official agency "records" under the Federal Records Act, which include any notes bearing upon the agency's policy and programmatic objectives. Virtually all of the ombud's writings would so qualify. The Archivist may agree to limit any record retention period, but prior to disposal, agency records are subject to disclosure upon requests under FOIA and the Privacy Act. Moreover, courts have not uniformly recognized any privilege for ombuds protecting against disclosure in court. Thus, ombuds may have to testify in court proceedings relating to their contacts with the litigants or about matters subject to the litigation.

Of the avenues for reform available, a legislatively-enacted privilege holds the most promise. A statute protecting communications to an ombud has the virtue of safeguarding both records and testimony. If the information sought falls within the privilege, the ombud need not disclose such information whether in response to a FOIA request, request from congressional staff, demand from agency management, or court subpoena. Protection for ombud confidentiality, however, should not extend to situations in which the public health or safety is at stake or the information is necessary to help establish a significant violation of law involving fraud, waste, or abuse. In addition, a catchall provision to allow disclosure so as to prevent "manifest injustice" should also be applicable, and would likely be relevant only rarely. Sound legislative policy suggests shielding confidential communications with ombuds while recognizing the overriding public interest in ordering disclosure either to prevent future harm or to protect the integrity of the judicial system.

JEL Classification: H1, K1