Reproduced with permission from Daily
Environment Report, No. 16 (Jan. 25, 2008),
Copyright 2008 by The Bureau of
Affairs, Inc. (800-372-1033)
Friday, January 25, 2008
White House Plan to Put New FOIA Office
in Justice Department Draws Fire in Senate
The Bush administration is planning to
place a new government ombudsman's office
to help requesters under the Freedom of
Information Act at the Justice Department
instead of the National Archives and
Records Administration, a senior aide with
the Senate Judiciary Committee told BNA
The administration's move which would
shift the office from a politically
neutral National Archives to the Justice
Department, which defends the government
against requesters in lawsuits under
FOIA — has drawn fire from senators who
sponsored the legislation.
"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 Americans' FOIA requests,"
said Sen. Patrick Leahy (D-Vt.), chairman
of the Senate Judiciary Committee.
Leahy was a Senate co-sponsor, along with
Sen. John Cornyn (R-Texas), of the Open
Government Act (Pub. L. No. 110-175), a
sweeping FOIA reform measure (S. 2488)
that passed Congress in late December and
was signed by President Bush on Dec. 31 (1
DEN A-8, 1/3/08).
Establishment of the ombudsman's office,
known as the Office of Government
Information Services (OGIS), was a key
provision in the measure.
Under the new law, OGIS, which the law
places within National Archives, is
required to "offer mediation services" to
requesters as an alternative to litigation
in FOIA disputes. OGIS also has authority
to review agency compliance with FOIA
requirements and recommend policy changes
"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," Leahy said in remarks on the
Brian Walsh, communications director for
Cornyn, said the senator "agrees with
Chairman Leahy's views on this matter and
will join him in opposing this effort by
Move to Come With Budget Submission
The administration's move to fund the
office within the Justice Department is
expected to become public on Feb. 4 when
the White House releases the president's
proposed budget for fiscal year 2009,
congressional aides told BNA.
According to a government source familiar
with the administration's plan, funding
for OGIS would be placed within the
Justice Department's Office of Information
and Privacy, an existing office with a
staff of about 45 lawyers that provides
general guidance to federal agencies on
compliance with FOIA.
The Office of Management and Budget did
not return a call for comment.
The Justice Department also did not return
a call for comment.
'Remarkably Extreme Development.'
Daniel J. Metcalfe, who served as director
of the Justice Department's Office of
Information and Privacy (OIP) for 25 years
until 2007, called news of the
administration's plan "a remarkably
extreme development in multiple respects."
In an e-mail to BNA, Metcalfe, said, "The
very idea of 'moving' these newly created
functions flies in the face of what
Congress explicitly enacted just last
month, let alone proposing that it be done
indirectly through an appropriations
He added, "What's more, there are sound
reasons for Congress now to have placed
these functions in NARA [the National
Archives and Records Administration].
While OIP effectively discharged them in
the past, including with a nascent
ombudsman role, its capability obviously
is not what it once was."
Metcalfe, now a professor at American
University's Washington College of Law,
noted the White House plan, even if it is
contained in the administration's FY 2009
budget submission, remains a proposal
until it is actually passed by Congress
through the appropriations process. He
directs the Collaboration on Government
Secrecy program at the law school.
Susan Cooper, a spokeswoman for NARA, told
BNA the agency would have no comment on
reports that OMB intended to fund OGIS
through the Justice Department.
The administration's plan was first
revealed at a closed-to-the-public
training conference on the new FOIA law
held for government employees on Jan. 16,
a congressional source told BNA.
Along with establishing the new
ombudsman's office, the FOIA amendments
tighten deadlines for agencies to respond
to FOIA requests, clarify that FOIA
applies to agency records maintained by
private contractors, establish a FOIA
hotline to help requesters, and expand the
availability of copying fee waivers for
members of the news media.
Open Government Advocates Decry Plan
Open government advocates, who fought for
the new FOIA legislation during the past
two Congresses, reacted with a mix of
anger and dismay over the administration's
"The plan violates congressional intent
that there needs to be some independence
in the new ombudsman's office," said Rick
Blum, coordinator of the Sunshine in
Government Initiative, a coalition of
media groups advocating FOIA reforms.
Noting that Bush signed the legislation
without comment, Blum told BNA, "I guess
the president didn't have a signing
statement but this is the administration's
way of doing what they want, ignoring the
Kevin M. Goldberg, legal counsel for the
American Society of Newspaper Editors,
said the White House plan "would entirely
gut one of the most important provisions
in the Open Government Act." He said the
reason OGIS was placed at NARA was "to
avoid the Justice Department which has a
clear conflict of interest."
By Ralph Lindeman