January 25, 2008 – Less than a month after President Bush signed legislation overhauling the Freedom of Information Act, the measure’s main Senate backers are accusing the White House of planning to scuttle a special FOIA office in violation of the law.
An aide to Senate Judiciary Chairman Patrick Leahy, D-Vt., said Office of Management and Budget officials have told committee staff that they plan in the president’s fiscal 2009 budget to park within the Justice Department all the funding authorized by the new law for a Government Information Services Office within the National Archives and Records Administration.
The office would include an ombudsman to oversee FOIA disputes across government. It is intended to push agencies to comply with the law, address FOIA backlogs and speed up resolution of FOIA requests. The office has not received any appropriations and its budget has not been set.
But by shifting the funding to the Justice Department, OMB would effectively eliminate the office, because it appears no similar operation would be created there, Leahy’s aide said. Instead, the funds apparently would go to the department’s Information Policy Office, which now oversees government FOIA compliance.
The recently enacted FOIA bill, sponsored in the Senate by Leahy and Sen. John Cornyn, R-Texas, deliberately located the new office outside of Justice.
National Archives officials are relatively independent of political pressure, the staffer explained, “but DOJ is different.” Government transparency advocates consider the department hostile to efforts to improve FOIA responsiveness, in part because it represents agencies sued by FOIA requesters.
In a floor speech Wednesday, Leahy called the White House’s prospective plans illegal. “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 Americans’ FOIA requests,” he said. Though creation of the office is one of a series of steps mandated by the legislation, Leahy indicated it is a key component of the bill.
Cornyn has taken the same position. “He does agree with Senator Leahy and would oppose that effort,” a Cornyn spokesman said.
An OMB spokesman said Thursday he could not comment on whether the administration has the authority to move the money to Justice, because doing so would require speculating about the budget before its Feb. 4 unveiling. “This will be answered when the budget is released,” he said.
Patrice McDermott, director of OpenTheGovernment.org, an umbrella group for organizations advocating increased federal transparency, said the White House may say shifting the money to Justice is just a preliminary step before the office in the National Archives is set up. But even initially “putting it in DOJ would essentially obviate what Leahy and Cornyn did with the legislation,” McDermott said.