From left, James C. Ho, Gibson, Dunn & Crutcher; Dan Metcalfe, American University, Washington College of Law; Tonda Rush, former CEO, National Newspaper Association; Thomas Susman, Ropes & Gray; and moderator Tom Blanton, National Security Archive
WASHINGTON — Almost three months after President Bush signed into law the first substantive changes to the Freedom of Information Act in a decade, open-government advocates say their fight for greater sunshine isn’t over.
“We came into [this process] with the idea that this bill (the OPEN Government Act) was going to be incremental progress,” Tonda Rush, a veteran journalist, lawyer and newspaper lobbyist, told attendees of the National FOI Day Conference March 14. “We’ve made it clear to people on both sides [in] Congress that we aren’t going away. This (law) was a step forward; we’re coming in for more steps.”
Rush, who spoke during the panel discussion “The New FOIA Law: Good News/Bad News,” said one of these steps was a bill introduced last week by the same senators who backed the OPEN Government Act. Sponsored by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, the new bill, called the OPEN FOIA Act, “would add new transparency and accountability standards when Congress considers adding new FOIA exemptions to the law,” according to a news release announcing the bill’s introduction.
The measure had been part of the OPEN Government Act when it was introduced but was cut before the legislation passed, much to the frustration of the bill’s backers.
When drafters included the exemptions provision, they thought that “if nothing else, this will be an easy provision to get through (Congress) quickly,” said James Ho, an attorney who served as chief counsel to Cornyn and helped craft the OPEN Government Act. “We thought, frankly, this is Congress essentially regulating itself and so we were hoping that that (provision) would get through, [but we are] pleased to see that (it has been) reintroduced and hopefully (will) be enacted as quickly as possible.”
Breaking the 10-year cycle
Panelist Dan Metcalfe, former director of the Department of Justice’s Office of Information and Privacy, echoed Rush’s idea of incremental progress, noting the OPEN Government Act didn't go “as far as many people wanted it to go.”
Metcalfe attributed this shortfall to the fact that historically, significant open-government reforms have occurred only once every 10 years. Tracking this 10-year cycle, Metcalfe pointed to the 1946 Administrative Procedures Act, hearings on that act in 1956, the enactment of FOIA in 1966, FOIA amendments in 1974, 1986, 1996 and the latest amendment in 2007.
The exemptions bill, Metcalfe said, provides an opportunity to amend this cycle.
“Now is the time, I suggest, to break the mold of that 10-year cycle and engage in incrementalism by having [the 2007 bill] just be the first step," Metcalfe said. "The logical way to do that is to take the exemptions provision — which I do believe was jettisoned (from the OPEN Government Act) only due to a misunderstanding and a bit of a quirk in the drafting and the rush of things — take that exemptions (bill) … and have that be the core to perhaps a broader bill.”
Metcalfe emphasized that open-government advocates should not stop with the exemptions bill.
“If there are people who are interested in amending the FOIA in other ways, … now would be the time to communicate that to the Hill to see if perhaps other things could be added also to, again, break the mold of that 10-year cycle, not just with a single provision but with perhaps things that are broader than that,” he said.
Ombudsman issue unresolved
Panelist Tom Susman, an attorney and member of the National FOIA Hall of Fame, said although the exemptions bill was important, there were unresolved issues from the OPEN Government Act that Congress needed to address.
One of those issues, Susman said, is the establishment of an ombudsman office. Under the law, the Office of Government Information Services is to be established in the National Archives. Last month, in a move Susman described as a “stealth veto,” President Bush submitted a budget proposal that would place the office instead in the Justice Department. FOI advocates have criticized this move, saying the Justice Department would have a conflict of interest because it would be defending federal agencies seeking to withhold records.
Unless Congress says that it will fund the establishment of the ombudsman office within the National Archives, Susman said, “we are nowhere.”
“Until Congress speaks again — it’s not enough that [both houses spoke] unanimously once — but until Congress speaks again and says, 'We will not repeal this provision as proposed by President Bush and the Office of Management and Budget, and we will fund the program within the National Archives,' … we’re in the same place we were last year at this time without an office to assist small newspapers, historians (and) other requesters [in resolving] their problems without going to court,” he said.
In response, Metcalfe said the National Archives should be required to establish the office even without further word from Congress.
“I think the fair reading of the law is that as of Dec. 31, [the archives] was required to offer these services to FOIA requesters,” he said. “There’s one provision of the law … that specified pointedly that it was effective immediately, and that was Section 10, the one that contains the OGIS (Office of Government Information Services) provision. Congress went out of its way to state explicitly even though it didn’t have to … that [that provision] should be effective right away. And I would suggest that that creates albeit an unfunded mandate, a mandate to offer those services to requesters immediately.”
'Call to arms'
During the Q&A at the end of the panel discussion, audience member Meredith Fuchs, a colleague of moderator Tom Blanton at the National Security Archive, gave conference attendees what she referred to as a “call to arms.”
“What we need to do is now transform [FOIA]. We don’t have to be stuck in the old model. We need to think of ways to make it work better,” she said. “As a community who wants open government … we need the government at the same time to feel that we are going to make a change, we’re going to make it better because the ultimate goal is to end the dispute between the public and the government and to get to a point where the government makes as much open as possible and we’re really only arguing about the things where there are hard questions. … I think we need to push more and expect more. … I really encourage you to start thinking about how can we transform this, how can we make OGIS a reality and make it bring us to a different place in terms of freedom of information.”