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Letters to the 107th Congress

September 26, 2002

The Honorable James M. Jeffords
Chairman
Committee on Environment and Public Works
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

On behalf of the American Bar Association ("ABA") and its more than 400,000 members throughout the country, I write to express our support for the greater use of ombuds* to receive, review, and resolve complaints involving the Environmental Protection Agency ("EPA") and for the revised version of S. 606, the "Ombudsman Reauthorization Act of 2002," that your committee is scheduled to markup today.

On July 2, 2002, the ABA provided written comments to you and your committee regarding the original version of S. 606. In those earlier comments, the ABA suggested a number of specific amendments consistent with the ABA's Standards for the Establishment and Operation of Ombuds Offices (the "ABA Standards"), and a copy of those ABA Standards are enclosed. As indicated in our previous comments, we believe that all ombuds-including the EPA Ombudsman-should operate under certain basic principles, including independence, impartiality, and confidentiality. We appreciate many of the revisions that have been made to S. 606, and we believe that the bill has been greatly improved. In particular, we commend your efforts to clarify the role and independence of the EPA Ombudsman. Now that your committee is preparing to consider a revised version of the legislation, we would like to offer some additional comments with regard to confidentiality.

Confidentiality

As the American Bar Association pointed out in its letter to you dated July 2, 2002, confidentiality is an essential characteristic of the ombuds process that permits the process to work effectively. Confidentiality promotes disclosure from reluctant complainants, elicits candid discussions by all parties, and provides an increased level of protection against retaliation to or by any party.

Confidentiality must extend to all communications with the ombuds and all notes and records maintained by the ombuds in the performance of assigned duties. It begins when a communi-cation is initiated with the ombuds to schedule an appointment or make a complaint or inquiry. Confidentiality may apply to the source of the communications and to the content of the communications. Individuals may not want the ombuds to disclose their identity but may want the ombuds to act on the information presented. An ombuds should discuss confidentiality and any exceptions with individuals who communicate with the office.

S. 606, as originally introduced, contained a sweeping confidentiality provision that stated that the EPA Ombudsman "shall maintain as confidential and privileged any and all communications concerning any matter pending, and the identities of any parties or witnesses appearing before the Ombudsman." (See previous Sec. 2008(d)(5)). Unfortunately, as the ABA pointed out in its July 2, 2002 letter, this provision was overly broad and appeared to conflict with the Administrative Dispute Resolution Act, 5 U.S.C. § 574 ("ADRA").

In creating a confidentiality section in ADRA that is the most detailed of any federal or state ADR statute, Congress explicitly stated its intent to give parties in federally-related ADR proceedings assurance that their dispute resolution communications would generally be immune from discovery. Congress went on to define these protections in detail. ADRA forbids neutrals from disclosing such communications, and also states that the neutrals shall not "be compelled to disclose" the communications. The existing statute also guarantees certain due process protections, including prior notice to parties in any case where protected data are sought, an opportunity for the parties to contest disclosure before a federal court, and a decision by the court reached under a balancing test based on specific statutory criteria. ADRA goes on to say that a dispute resolution communication which is between a neutral and a party and which may not be disclosed under the confidentiality provisions of the ADRA shall also be exempt from disclosure under the Freedom of Information Act.

ADRA represents a careful balance between open government, oversight, and confidentiality, in which Congress makes clear the standards and procedures that should govern whenever disputed issues of confidentiality arise in agency-related ADR, which includes the activities of an agency ombuds. ADRA's stated intent is clear: to assure parties to ADR proceedings involving federal programs that communications they make in those proceedings will not later be used against them. Its language precluding voluntary and compulsory disclosure is explicit, its coverage broad, its exceptions narrowly drawn, and its procedures spelled out in detail.

The revised version of S. 606 contains no confidentiality provision. Although the ABA supports this change in the bill, we believe that the bill could be further improved by adding a specific provision expressly stating that the EPA Ombudsman Office is subject to the terms of ADRA, and clarifying that all communications with the ombuds under this statute are "dispute resolution communications" within the purview of ADRA (5 U.S.C. §571(5)). In this way, Congress can ensure that the benefits of ADRA, including the Act's confidentiality provisions, will apply to EPA Ombudsman's dispute resolution proceedings, including intake and convening stages as well as more formal mediation activities.

Thank you for considering the views of the ABA on these important matters. If you would like more information regarding the ABA's positions on these issues, please contact our legislative counsel for administrative law issues, Larson Frisby, at (202) 662-1760.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office

cc: All members of the Senate Environment and Public Works Committee

Enclosure

*The term ombuds in this letter is intended to encompass all other forms of the word such as ombudsperson, ombuds officers, and ombudsman.

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AMERICAN BAR ASSOCIATION
Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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