Leahy to Bush: Leave FOIA Oversight Alone

Patrick Henry is better known for his liberty-or-death quote. But the American revolutionary also said: “The liberties of a people never were, nor ever will be, secure when the transactions of their rulers may be concealed from them.”

The Freedom of Information Act [1] (FOIA), the 42-year-old federal law that codifies the public’s right to know what its own government is up to, finally got some long-overdue and much-needed repair work late last year. The “Openness Promotes Effectiveness in our National Government Act of 2007” amended FOIA to create an Office of Government Information Services (OGIS) within the nonpartisan National Archives and Records Administration. OGIS’ job is to referee disputes between citizens who file FOIA requests and federal agencies that can’t, or won’t, comply with those requests. Though the Bush administration opposed the law, known as the OPEN Government Act [2], both the House and Senate passed it unanimously in November. The president signed it into law December 31.

Less than two months later, however, the administration is trying to undo a major provision of the act. In his 2009 budget, Bush has proposed moving OGIS funding into the Department of Justice, an agency overseen by the executive branch. Vermont Sen. Patrick Leahy, one of the primary architects of the OPEN Government Act, strongly opposes the move [3]. Leahy told members of the New England Press Association at its February 9 meeting in Boston that implementing and protecting FOIA reforms will be “one of my top priorities” this congressional session.

“Given the Justice Department’s abysmal record on FOIA compliance during the last seven years, I will fight to make sure that OGIS stays where it belongs — in the National Archives — and to make sure that this office is fully funded,” he said.

Indeed, FOIA has taken a severe beating under the Bush administration. In the aftermath of the 9/11 attacks, the administration enacted sweeping rules and regulations that, in the words of former Attorney General John Ashcroft, “err on the side of secrecy.” Some of those restrictions, which curtailed the public’s access to tens of millions of federal documents, were put in place ostensibly to protect sensitive information related to homeland security. But Leahy has accused the Bush presidency, which he’s called “the most secretive administration of modern times,” of trying to conduct the public’s business behind closed doors.

Bush isn’t the first president to find FOIA inconvenient. Last year, an audit by the National Security Archive [4], an independent, nongovernmental research institute at George Washington University, found at least 10 unanswered FOIA requests that were more than 15 years old; some dated back to the Reagan administration. Moreover, the archive’s audit of the 1997 E-FOIA law [5], which covers electronic records of the federal government, found that only one in five federal agencies were complying with that law.

The OPEN Government Act is designed to make FOIA more responsive. It created a tracking system for all FOIA requests that take longer than 10 days to process, and provides incentives to federal agencies to avoid litigation and processing delays. Also, for the first time ever, agencies that do not comply with FOIA’s time limits will now be penalized.

All that’s needed is a president who will comply with the bill he signed into law.