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Project on Government Oversight

Congress Needs to Learn a Little Openness Itself

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March 13, 2008

A new bill introduced on Tuesday by Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX)--the 2005 recipients of POGO's Good Government Award--would add an important provision to last year's OPEN Government Act, signed by the President in December.

That bill represented the first major reform of the Freedom of Information Act (FOIA) in more than a decade.  It expanded the definition of "news media" to include bloggers; imposed more stringent deadlines on executive agencies; required each agency to make available a FOIA public liaison; ordered each agency to establish tracking systems for requests, along with phone lines or internet service to provide status updates on requests; and mandated that each agency file a report with the Attorney General every February reporting the number of requests received along with the amount of time taken to respond.  There was also an Office of Government Information Services (OGIS) set up within the National Archives and Records Administration to review polices and procedures and monitor agencies' compliance with FOIA, although President Bush would like OGIS to be housed in the Department of Justice.

Clearly that bill, as with the original FOIA, was aimed at executive branch agencies in an effort to force them to be more responsive, transparent and open about the public's business.

The new bill, S.2746, was dropped in the hopper just as Sunshine Week approaches, and is named the OPEN FOIA Act of 2008.  It is actually aimed at Congress itself.  Executive branch agencies often cite certain exemptions to FOIA in their refusal to release documents.  But increasingly Congress has failed in its duties with regard to one specific exemption, known as the "(b)(3) exemption."

As explained by Senator Leahy, Chairman of the Judiciary Committee, the (b)(3) exemption "requires that government records that are specifically exempted from FOIA by statute may be withheld from the public.…But in recent years we have witnessed an alarming number of FOIA (b)(3) exemptions being offered in legislation--often in very ambiguous terms--to the detriment of the American people's right to know." 

When Congress instead allows such exemptions to be stealthily buried in complex legislation, Leahy said, it is shirking its duty.  He and Sen. Cornyn said Congress must be diligent in reviewing any new exemptions to FOIA to prevent abuses and to shine more light on government processes.

The new bill requires that when Congress provides for any statutory exemption to FOIA, it must state its intention to do so clearly and explicitly.  It seems unobjectionable, right?  Nevertheless, last year the Administration did object, and offered so many changes that the language got watered down until it ultimately was dropped from the OPEN Government bill.

Apparently when executive agencies offer draft legislation, they like to be able to hide FOIA exemptions inside confusing language.

Lydia Griggsby, counsel to the Judiciary Committee, told POGO she is hopeful the bill will pass this year as a stand-alone provision.  Noting that both Sens. Leahy and Cornyn "feel very strongly" about the measure, she added that "it's also important to raise the awareness of Members" to the bill's significance.

Sunshine Week, by the way, is scheduled to run from March 17th through the 21st.

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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