President Bush did the right thing a month agowhen he signed the OPEN Government Act of 2007, the first significant reform of the federal Freedom of Information Act in more than a decade. The legislation includes numerous much-needed reforms designed to make it easier for citizens to obtain documents and information held by the federal government, most notably creating the Office of Government Information Services (OGIS) as an independent ombudsman to oversee FOIA requests.
The new law — which was co-sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas — couldn’t have come at a better time because many departments and agencies have backlogs of thousands of unanswered FOIA requests. As the Leviathan on the Potomac grows ever larger, it becomes increasingly important to make sure citizens can find out what is being done in their name, subject only to reasonable concerns about national security, law enforcement and personal privacy. After all, transparency may well be the last effective restraint on the actions of officeholders and bureaucrats who would rather not be bothered by the need for accountability.
So it is perplexing to find in Bush’s final federal budget submission a proposal to shift OGIS from the National Archives and Records Administration (NARA) to the Justice Department. As Cornyn and Leahy explained in a letter to the administration earlier this week, the clear legislative intent — which Bush endorsed with his signature on the OPEN Act — was that OGIS be in NARA: “This placement was intentional. We and our fellow lawmakers, supported by the FOIA requester community, sought to make the FOIA ombudsman independent of the Department of Justice, which represents agencies sued by FOIA requesters. A primary reason for this intentional separation was to enhance the office’s independence, as well as to avoid real or perceived conflicts of interest.”
By moving OGIS to Justice, the Bush administration would hobble the OPEN Act’s purpose of ensuring that FOIA requesters get a fair hearing from an independent source when they believe they are being unfairly treated by agencies. The Justice Department cannot simultaneously be an independent advocate for FOIA requesters and the legal defender of agencies accused of improperly administering the FOIA.
Critics should be forgiven for seeing the Bush attempt at putting OGIS under the Justice Department as a way of effectively negating the OPEN Act by rendering meaningless its ombudsman role. It would be a shame for Bush’s legacy to include undermining an effort to shine light in the darkest reaches of the unaccountable bureaucracy that is steadily accumulating the power to tell the rest of us how to live our daily lives.
