Earlier this month, I wrote in Restoring FOIA about recently passed amendments to the Freedom of Information Act (FOIA) which were signed into law by President Bush on Dec. 31, 2007. Supporters of the OPEN Government Act, including the Society for Environmental Journalists (SEJ), are hoping that these new FOIA requirements will bring easier and speedier access to government records. The new law requires the Administration to create an ”Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA)” to review agencies’ compliance with FOIA and serve as an ombudsman for FOIA users.
Suddenly, late last week, the emails were flying across the ever-informative SEJ listserve that the Bush Administration is “trying to hijack” the OGIS. The Bush Plan? To shift the office from NARA and to the Department of Justice (DOJ). Yes, the same DOJ that defends EPA, OSHA and other agencies in lawsuits filed by FOIA requesters.
A news release issued by Senator Patrick Leahy (D-VT), lead sponsor of the OPEN Government Act, announced:
“White House Signals Intent to Strip Critical FOIA Funds from OGIS” and “Move Would Run Afoul of Newly Enacted OPEN Government Act”
“Just this week, the Administration signaled that it will move the much-needed funding for the OGIS created under the OPEN Government Act from the National Archives to the Department of Justice. Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation—to ensure the timely and fair resolution of American’s FOIA requests. Given its abysmal record on FOIA compliance during the last seven years, I hope that the Administration will reconsider this unsound decision and enforce this law as the Congress intended.”
The Austin American-Statesman’s Rebecca Carr wrote that Leahy’s Republican co-sponsor, Senator John Cornyn (TX) also opposed the Bush Administration’s plan. She quotes Pete Weitzel, head of the Coalition of Journalists for Open Government:
“the idea of shifting to Justice is ludicrous. Justice has a clear conflict of interest.”
For a first-person account of DOJ’s role in defending federal agencies that withhold public documents, look no further than the FOIA request made by former OSHA scientist Adam Finkel. The lead attorneys defending OSHA’s decision to withhold its enforcement data from Finkel were lawyers from the Justice Department. Although a U.S. federal judge ruled in Finkel’s favor in July 2007, the case dragged on for three years.
I agree with open government advocates who plead that a federal FOIA ombudsman’s office has no place in DOJ.