Past Columns

FU, FOIA

In December President Bush quietly signed a law to make federal records more accessible. This month he quietly gutted it.

By Michael Miner

February 14, 2008

The Office of Management and Budget released President Bush’s proposed new budget on February 4, and the game was on. Champions of an open federal government expected the elephantine document to contain bad news, and they set out to find it. But, appropriately I guess, the bad news about open government was brilliantly hidden.

Let me back up and explain exactly what they were looking for, and why.

On December 31 President Bush signed into law a bill the media liked a lot more than he did. The Openness Promotes Effectiveness in our National Government Act of 2007 amended the 42-year-old federal Freedom of Information Act, most dramatically by adding a subsection (h) to Section 552, Title 5, of the United States Code: “There is established the Office of Government Information Services within the National Archives and Records Administration.” This would be OGIS, the people’s new FOIA ombudsman.

A change to the laws on public information was long overdue. Last year the National Security Archive—a private research institute that collects and publishes declassified documents obtained through FOIA—asked 87 federal offices if they were keeping abreast of FOIA requests. Tellingly, 30 didn’t even respond. Of the 57 that did, 53 had backlogs, and 12 of them admitted they had unsatisfied requests that had been pending for ten years or more. The most egregious example was a FOIA request the Scientologists filed with the State Department in 1987.

These backlogs suggested, among other things, that former attorney general John Ashcroft had been heeded in October 2001, when he issued what’s remembered as his “err on the side of secrecy” memo. Ashcroft declared that the Bush administration was “committed to full compliance” with the federal FOIA but “equally committed” to other “fundamental values”—such as national security and “protecting sensitive business information.” So he urged federal department and agency heads to think twice before making FOIA disclosures, letting them know that “when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.”

The new OPEN Government Act was sponsored by Senate judiciary committee chairman Patrick Leahy, a Democrat from Vermont, and John Cornyn, a Republican from Texas. Last August, when the Senate unanimously passed the bill, Leahy predicted that it would “help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government.” He added that the new office would “provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.”

OGIS was the alternative. In the past the Justice Department’s Office of Information and Privacy had mediated FOIA disputes, but it could no longer be counted on to be evenhanded—not after Ashcroft promised noncommunicative federal officials that the department would defend them in court.

One champion of the OPEN Government Act was the Sunshine in Government Initiative, a three-year-old coalition of major media groups including the Association of Alternative Newsweeklies, the American Society of Newspaper Editors, the Associated Press, the National Association of Broadcasters, and the Society of Professional Journalists. When Bush signed the act, Sunshine coordinator Rick Blum said he was “ecstatic,” but nobody was naive enough to believe the matter was decided. Bush is notorious for issuing “signing statements” that assert how he intends to interpret the measures he’s signing into law, and often these statements turn Congress’s intent on its head. Bush didn’t favor the OPEN Government Act with a signing statement—on the contrary, he signed it into law without comment on a day when news shops were all but shut down. But there’s more than one way to skin a statute.

In mid-January word began to circulate in Washington that the White House had something up its sleeve. Leahy heard that the next budget would transfer OGIS to the Justice Department.

“Given its abysmal record on FOIA compliance during the last seven years,” Leahy declared on January 23, “I hope that the administration will reconsider this unsound decision and enforce this law as the Congress intended.”

And so February 4 dawned as a day of high drama. That morning the OMB proudly posted online, for the first time ever, the entire new White House budget. Leahy’s office and open-government advocates everywhere booted up and went to work.

But they couldn’t find what they were looking for. “It was not right in front of our nose,” says Erica Chabot, a Washington spokeswoman for Leahy. “We were scouring [the budget], looking in the Justice Department section and the archives section, and we couldn’t locate it.”

Patrice McDermott, director of openthegovernment.org, couldn’t find it either. “We were looking in the Justice Department, and so were the people on the Hill.”

The fiscal 2009 budget proper is a 171-page political document that begins with a message from the president trumpeting its virtues: “Above all, my budget continues the pro-growth policies that have helped promote innovation and entrepreneurship. I will not jeopardize our country’s continued prosperity with a tax increase.” Then it frames every expenditure as an investment in a stronger America and freer world.

There’s no mention of OGIS anywhere in those 171 pages. But it’s the 1,300-page appendix that gets down to the nitty-gritty.

Before you read on, perhaps you’d like to take a crack at this yourself. If you would, go to whitehouse.gov/omb/budget/fy2009 and try to find out what the White House has in mind for OGIS. Be forewarned: the hero of the day, Rick Blum, knows his way around a budget, yet he and his people searched for an hour and a half before they hit pay dirt.

You’re back? How’d you do? Here’s how Blum found it. “When the budget came out Monday I cleaned out my calendar and we just started going through it,” Blum tells me. “It was a fine-toothed comb. We tried the obvious search terms, like Freedom of Information Act and Office of Government Information Services.” No luck. Then he had a stroke of inspiration. He typed in 552, for the section of the code that was supposed to be changed. With that as his keyword, Blum found what everyone had been looking for. It was hidden in plain sight, you might say, on page 239 of the Department of Commerce budget, even though it had nothing to do with the Department of Commerce:

“The Department of Justice shall carry out the responsibilities of the office established in 5 U.S.C. 552(h), from the amounts made available in the Department of Justice appropriation for ‘General Administration Salaries and Expenses.’ In addition, subsection (h) of section 552 of title 5, United States Code, is hereby repealed . . .”

You may be wondering how the president could disregard the will of Congress and unilaterally repeal a crucial section of a law he’d signed into being a month earlier. Technically he hasn’t—not yet. The OPEN Government Bill created a new office but it said nothing at all about how to pay for it. That’s where the budget process comes in. The Bush budget proposes sending OGIS to the Justice Department and paying for it out of that department’s general fund. If Congress goes along, then Congress, in effect, repeals subsection (h) itself. If Congress insists on putting OGIS back into the archives administration—well, the money will have to come from somewhere.

Leahy and Cornyn protested to the OMB, cosigning a letter that said, “This proposal violates both the explicit text of the OPEN Government Act and its legislative intent . . . . The administration’s proposal alters the essential character of OGIS as an independent, disinterested office serving FOIA interests.”

The Society of Professional Journalists and 42 other organizations wrote House appropriations committee chair Dave Obey, a Democrat from Wisconsin, and ranking Republican Jerry Lewis, of California, urging them not to let the White House get away with it. “We strongly oppose this effort to use the budget process to rewrite the law, undermining congressional intent and flouting a specific statutory mandate,” said the letter, whose other signatories included the American Civil Liberties Union, the American Association of Publishers, and the American Library Association.

I asked the Justice Department for its thoughts on the budget. A spokesman let me know by e-mail that even though the OPEN Government Act had assigned “some functions”—e.g., arbitration—to the National Archives, “the Act does not take anything away from DOJ, which is still the lead agency on FOIA matters. DOJ will continue to perform its FOIA responsibilities under the law.”

“Justice doesn’t want to lose control over FOIA,” Blum tells me. “I think they pushed hard for this.”

On the sidelines, more than a little curious about how it all plays out, is the National Archives and Records Administration. Do you want FOIA oversight? I asked spokeswoman Susan Cooper. Aren’t you already overstaffed and underbudgeted?

“Understaffed,” Cooper corrected me. “Understaffed.”

I apologized.

“I have to tell you,” she said, “the National Archives isn’t going to comment on this. If Congress and the president decide to do this, we’ll take it on.”

But you didn’t seek it?

“No, we did not.”   

For more see Michael Miner’s blog, News Bites.

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