Reproduced with permission from Daily Environment Report, No. 16 (Jan. 25, 2008), pp. A-13 - A-14.
Copyright 2008 by The Bureau of National Affairs, Inc. (800-372-1033)

Friday, January 25, 2008

General Policy
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 Jan. 24.

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 to Congress.

"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 Senate floor.

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 the administration."

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 process."

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 plan.

"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 law."

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

The Society of Environmental Journalists
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