January 28, 2008 The Pump Handle 3Comment

Earlier this month, I wrote in Restoring FOIA about recently passed amendments to the Freedom of Information Act (FOIA) which were signed into law by President Bush on Dec. 31, 2007.  Supporters of the OPEN Government Act, including the Society for Environmental Journalists (SEJ), are hoping that these new FOIA requirements will bring easier and speedier access to government records.  The new law requires the Administration to create an “Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA)” to review agencies’ compliance with FOIA and serve as an ombudsman for FOIA users.

Suddenly, late last week, the emails were flying across the ever-informative SEJ listserve that the Bush Administration is “trying to hijack” the OGIS.  The Bush Plan?  To shift the office from NARA and to the Department of Justice (DOJ).  Yes, the same DOJ that defends EPA, OSHA and other agencies in lawsuits filed by FOIA requesters.

A news release issued by Senator Patrick Leahy (D-VT), lead sponsor of the OPEN Government Act, announced:

“White House Signals Intent to Strip Critical FOIA Funds from OGIS” and “Move Would Run Afoul of Newly Enacted OPEN Government Act”

“Just this week, the Administration signaled that it will move the much-needed funding for the OGIS created under the OPEN Government Act from the National Archives to the Department of Justice.  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 American’s FOIA requests.  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.”

The Austin American-Statesman’s Rebecca Carr wrote that Leahy’s Republican co-sponsor, Senator John Cornyn (TX) also opposed the Bush Administration’s plan.  She quotes Pete Weitzel, head of the Coalition of Journalists for Open Government:

“the idea of shifting to Justice is ludicrous.  Justice has a clear conflict of interest.”

For a first-person account of DOJ’s role in defending federal agencies that withhold public documents, look no further than the FOIA request made by former OSHA scientist Adam Finkel.  The lead attorneys defending OSHA’s decision to withhold its enforcement data from Finkel were lawyers from the Justice Department.  Although a U.S. federal judge ruled in Finkel’s favor in July 2007, the case dragged on for three years.

I agree with open government advocates who plead that a federal FOIA ombudsman’s office has no place in DOJ.

3 thoughts on “Bush’s FOIA Antics

  1. Thanks very much for covering this.

    I’m not actually sure this is legal. My understanding is that Congress *ordered* that the ombudsman’s office, a centerpiece of the OPEN Government Act, be put in NARA.

    Robert McClure
    Seattle P-I

  2. Legal—illegal. I don’t think this Administration really cares. You’re correct. The law says “in NARA,” not something like “wherever the heck you want.”

    My understanding is that we’ll have to wait for the President’s Fy’09 budget request to see if they actually try to pull this off.

  3. After 10 years service, and conscientious reporting of Safety problems, my Surface Mine Operator XXXXX (Xxxxxxxx Xxxxxx) wrongfully terminated me. I rightfully claimed 105C DISCRIMINATION. After my complaint was determined to be non-frivolous, MSHA West Special Investigator XXXX wrongly ruled my case as unfounded. I FOIA requested statements recorded by XXXX to support my appeal of her decision to F.M.S.H.R.C.
    MSHA Western District refused to give me the recorded Statements of the Operator’s Safety Manager XXX and important others (REDACTED). I am once again FOIA requesting that information from MSHA, this time to support my petition for Review of F.M.S.H.R.C. A.L.J. XXXXX’s wrong determination of my 105C Discrimination case. MSHA has a few more days to respond, FMSHRC already has partially complied with my FOIA requested copies of my various denied requests for the compelling of discovery and for the issuing of sanctions against the Operator for not complying with my proper & rightful requests for Discovery from the A.LJ.. F.M.S.H.R.C. has a useful policy where all the A.L.J.’s Conference Calls (very instrumental for A.L.J. and Operator) are not recorded nor is there any provision for transcripts of those conversations. Will the individuals responsible for carrying out Miner requested Investigation, 105C & FOIA provisions do the right thing?
    The possibility of any fair remedy or even a fair judgment (in principle) by the dignitaries in MSHA & the A.L.J. Office is remote. Look at the records (if you can find them). There are no lawyers willing to help Miners due to the ridiculously poor Remedy the 105C Discriminated Miner can hope for. The Operators get away with Delay and Deny tactics, in their response to 105C Discrimination Investigations, because they know neither MSHA or the A.L.J. will seriously pursue Miners’ rights. I have a righteous case & am glad to share particulars of it with anyone interested. Thank you for your interest; Jayson Turner

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