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The calls come at a steady clip, about 6,000 last year from New Yorkers with questions about open records, public meeting and privacy issues.
"I never know who is going to be at the other end when the phone rings," said Robert Freeman, executive director of the state's Committee on Open Government. Some days, it's The New York Times; the next ring, it may be the Governor's Office.
Since 1974, New York state has relied on the office to provide ombudsman services, fielding inquiries from the public, media and government about access to information — an idea now before a legislative working group considering ways to update and refine Utah's Government Records Access and Management Act (GRAMA).
"We provide advice and legal opinions to anybody who has a question about what's public and what's not," Freeman said. Other states — including Connecticut, New Jersey, Arizona and Virginia — operate similar offices and, since 2009, a "FOIA ombudsman" has helped federal agencies wade through 600,000 record requests each year.
Craig Call, who spent 10 years as Utah's property rights ombudsman, proposed a records ombudsman in March during a GRAMA Working Group meeting. Call said he was upset that lawmakers had "severely eroded" access to public records with the now-repealed HB477, but offered the idea when asked how to improve the process.
"It is just a natural for that topic because it is a great way for the public to feel it has an advocate in the government," said Call, executive director of the Utah Land Use Institute. "It facilitates a one-stop place where people can get information."
Call said an ombudsman, operating as a neutral third party, could dispatch with a majority of questions the same way he did — over the telephone, alleviating the burden on governmental entities and helping them sidestep many contentious disputes.
"The most valuable function was answering the phone," Call said of his time as the property-rights ombudsman. "Most of the time it was a city or citizen or neighbor of someone with a [property] application, and helping them understand the process so they could help themselves."
That's how it works in New York. In 2010, the committee's three-person staff fielded 6,000 telephone inquiries, but just a fraction — 572 — required formal advisory opinions. A majority of the questions came from the public, followed by local government entities; most involved access to records.
"Our only goal is to give what we believe to be the right answers under the law, regardless of who asks the questions," said Freeman, whose office operates on a "tiny budget" of about $350,000. The office also provides about 90 training sessions around the state annually.
Freeman's opinions can be appealed to court, but "when he issues an opinion or even a telephone interpretation of something, it has a good deal of credibility," said Harry Hammitt, editor of Access Reports and a nationally recognized expert in Freedom of Information law. "Courts are not required to follow him, but he is considered to be very persuasive on these issues."
Since its launch in September 2009, the federal Office of Government Information Services has dedicated much of its staff time to answering questions and facilitating records requests.
"As an ombudsman, [the office] acts as a confidential and informal information resource, communications channel and complaint handler," director Miriam Nisbet told the House Committee on Oversight and Government Reform last month.
Nisbet said the office doesn't champion "requesters over agencies or vice versa. We work to encourage a more collaborative and accessible [Freedom of Information Act] process for everyone in the FOIA community."
In the first five months of fiscal 2011, the office averaged 38 new cases a month and took calls from requesters in 43 states, the District of Columbia, Puerto Rico and 12 foreign countries. Some callers needed help figuring out who might have the records they wanted, while others asked the office to informally mediate record denials.
The office is still in its infancy, but has worked out much better than expected, Hammitt said.
"The ombudsman has turned out to be certainly a useful concept," Hammitt said. "The bottom line is people who work in those offices have to be dedicated to the idea that these [records] statutes are disclosure statutes."
What sells the concept with policy makers is that an ombudsman's office improves access and offers an inexpensive and credible alternative that the public, government officials and media can turn to short of going to court, he said.
In Utah, several members of the GRAMA Working Group expressed interest in a "records czar," but the group has yet to flesh out how it might work.
Call envisions it as a small operation focused on being the "go-to place for information" about what's available, how to get it and what the options are when a request is denied. Key words for him are "neutral" and "knowledgeable."
A suitable home for an ombudsman, especially given the heated debate now surrounding the topic? Probably the Utah State Archives and Records Service, which already hosts the state Records Committee and has staff members who are knowledgeable about the law, Call said.
In fact, the archive staff already informally resolves some records disputes before the hearing stage, according to Betsy Ross, state Records Committee chairwoman. One example: In the past month, Ross scheduled a telephone conference call on a records dispute between a representative of PETA and the University of Utah but the matter was resolved, at least temporarily, after a round of preliminary email discussions.
"The pre-hearing can help when parties seem just to need a little help working together, where it appears the issues between them are not hard and fast disagreements about the classification of a record," Ross said.
The committee's secretary also often is able to pare some cases from the monthly hearing list as a result of educating callers about GRAMA and making suggestions on how to resolve disputes, she said.
That's the role played by the ombudsman program in Connecticut, which Hammitt says acts as a buffer between requesters, public entities and the state's Freedom of Information Commission.
The commission office, which has an annual budget of $2.3 million, employs 20 people, mostly attorneys and paralegals. It receives 8,000 to 10,000 calls and about 800 formal complaints a year.
When a complaint is filed, the office assigns a staff member to act as a liaison between the parties in trying to negotiate a settlement. If the effort fails, the case moves to a hearing officer; it also can be appealed in court. But of the complaints received, approximately 69 percent are successfully mediated.
New Jersey's Government Records Council also provides an informal mediation program, in addition to answering general records questions, operating an information hot line, issuing advisory opinions, hearing appeals and providing training.
The Government Records Council was established in 2002; it currently has an eight-person staff and an annual budget of $619,000.
It has received more than 11,000 inquiries and, as of April 2010, had processed nearly 2,000 formal complaints; of those, 85 percent were successfully resolved.
Would that approach work in Utah? "I can't see a downside to having an ombudsman, except for the fact of additional cost, but I wonder if ultimately it would end up a cost savings," Ross said.
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Ombudsman approach requires broad support
In some instances, ombudsmen in other states have found themselves at odds with politicians because of their rulings, which one expert says illustrates the need for the office to have broad support from government officials and access advocates.
In his 2007 report, "Mediation Without Litigation," Harry Hammitt, a nationally recognized access expert and editor of Access Reports, found:
The supervisor of the Massachusetts Office of Records lost his job after finding there was no privilege for the deliberative process.
The director of Hawaii's Office of Information Practices lost her job after ruling against the well-connected police union; the office was moved from the Attorney General's Office to the Office of the Lieutenant Governor, decreasing its visibility.
The executive director of the Freedom of Information Commission was targeted after ruling against a gubernatorial candidate — who was subsequently elected — over access to a police report about a domestic violence incident at his home.