To groups like us – interested in open government – this past New Year’s Eve gave us special reason to celebrate. That’s when President Bush signed into law the Open Government Act of 2007, a bill that enjoyed broad bipartisan support in Congress. Among other things, the bill called for the appointment of a FOIA ombudsman, to work out of the National Archive, who would serve as an impartial mediator between citizens and the government agencies receiving their FOIA requests.
A FOIA ombudsman would ensure that FOIA requestors, including both private citizens, journalists and groups like the ACLU, get a fair shake from the agencies that are tasked with implementing the FOIA. Agencies would be held to the FOIA standards by the ombudsman and not just by threat of court action. FOIA requesters would find it less necessary to bring lawsuits and the government itself would save itself from having to spend public money and time to mount defenses.
. Sounds pretty good, right?
Well, turns out, it was too good to be true. Tucked away in Bush’s proposed new budget for 2008 – in the 1,300-page appendix – was language that stripped funding for the FOIA ombudsman role, and shoves the responsibilities off to the Justice Department. The same department, we might add, responsible for defending the government agencies when they’re named in lawsuits to have FOIA requests enforced.
Nasrina Bargzie, an Attorney with the ACLU’s National Security Project, has filed many FOIA requests, including to gather information about civilian deaths in Iraq and Afghanistan. She says of Bush’s underhanded move:
Almost every time Congress has amended the FOIA it’s been in response to the same thing – agencies frustrating the intent of an open government by narrowly interpreting the FOIA. Congress understood that to impose real change in the process, an intermediary between the agencies and the public, that is intended to benefit from the FOIA, was necessary. With the addition of an ombudsman by the OPEN Government Act of 2007 the government would have the opportunity to police itself and ensure that agency action reflects the underlying policy of open government. Without an ombudsman, Congress and the public are right back where we started – a wonderful law espousing open government that is routinely frustrated by agency delay.
We hope to see the Congress take action this year, to put all the teeth back in the Open Government Act.