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Analysis

Secrecy With A Smile?

Yesterday President Bush issued a new executive order on the Freedom Of Information Act (FOIA). Overall, the order:

  • Enhances the profile of FOIA within government agencies by making a senior official within each agency in charge of FOIA;
  • Emphasizes more of a customer service approach with information requestors; and
  • Directs agencies to review and plan to address deficiencies in processing requests (e.g. speed, reducing backlog).

It doesn't go as far as Senator John Cornyn (R-TX) and Patrick Leahy's (D-VT) legislation, the OPEN Government Act.

Also, the executive order doesn't address former Attorney General John Ashcroft's memo which, in 2001, stated that the Department of Justice would defend agency decisions to withhold information "unless they lack a sound legal basis." The Ashcroft Memo superseded former Attorney General Janet Reno's FOIA memo in 1993, which stated that "it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption."

As attorney Stephen Gidiere has written, "The Ashcroft Memo with its 'sound legal basis' standard encourages (or at least supports) greater use of FOIA exemptions by federal agency personnel." However, the National Security Archive found in 2003 that the Ashcroft Memo may actually be "more thunder than lightning" because only a relative handful of agencies at the time of the Archive's audit did anything different in response to the Memo.

Furthermore, the executive order does not seek to curb the over-broad use of and the proliferating number of FOIA exemptions. Nor, as Mark Tapscott of the Heritage Foundation has pointed out, does it impose penalties for agency or individual violation of FOIA.

While this new executive order is a positive step, POGO hope its result isn't just secrecy with a smile.