Copyright Law

Bush Refuses to Fund New FOIA Ombudsman, Takes the Heart Out of Open Government Reform Law

By David Ardia

Well, that was quick. Mere weeks after signing the "OPEN Government Act of 2007" on December 31, 2007, which significantly reformed the Freedom of Information Act (FOIA), President Bush is now attempting to cut out the heart of the OPEN Government Act by refusing to fund the newly created FOIA ombudsman's office.

According to The Washington Post,

in his budget request this week, Bush proposed shifting a newly created ombudsman's position from the National Archives and Records Administration to the Department of Justice. Because the ombudsman would be the chief monitor of compliance with the new law, that move is akin to killing the critical function, some members of Congress and watchdog groups say.

As I noted when President Bush signed the Act, the legislation substantially reforms FOIA and expands the definition of who is a "representative of the news media." This change would significantly benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to "representatives of the news media."

Other important reforms include:

• Broadening the scope of information that can be requested by including government contracting information held by private contractors;
• Assigning public tracking numbers to all requests;
• Denying agencies that exceed the 20-day deadline for responses the right to charge requesters for search or copying costs; and
• Making it easier to collect attorneys' fees for those who must sue to force compliance with their FOIA requests.

Obviously the FOIA ombudsman is only one part of these comprehensive reforms. But it plays an important oversight role over a law that is more honored in the breach than in the observance by government agencies. Under the new law, an ombudsman's office is to be established within the National Archives and Records Administration to accept citizen complaints, issue opinions on disputes, and foster best practices within the government.

Bush's insistence that the Department of Justice be the sole arbiter of compliance is clearly an evisceration of the Act's oversight requirements. After all, as The Washington Post remarked:

The Justice Department has hardly shown itself to be a strong supporter of public information requests: After the Sept. 11, 2001, terrorist attacks, then-Attorney General John D. Ashcroft issued a memo urging agencies to use all legal means to refuse public document requests.

More than 30 open-government groups have sent a letter to the House Appropriations Committee opposing Bush's attempt to circumvent the Act. You can read the letter on OpenTheGovernment.org.

Full post as published by Citizen Media Law Project on February 07, 2008 (boomark / email).