New FOIA Law Does Not “Restore Presumption of Openness”

Updated below

On December 31 President Bush signed into law the “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007,” which amends the Freedom of Information Act (FOIA).

The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the “OPEN Government Act” can still be withheld now that the President has signed it.

Some reporters and editorial writers, perhaps enchanted by the name of the new law, mistakenly assumed that it accomplishes much more than that.

“The law … restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm,” according to a January 1 Associated Press account that appeared in the Washington Post, the New York Times, USA Today, the Wall Street Journal and elsewhere.

Further, the widely-published AP account continued, “The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.”

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a “presumption of openness,” that provision was removed from the bill prior to passage.

Thus, Rep. Henry Waxman (D-CA) noted with regret on the House floor on December 18 that the final legislation “does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret.”

From an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that “the provision repealing the so-called Ashcroft memorandum was eliminated…. The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.”

“I think preservation of the Ashcroft policy is the right policy to adopt in the current environment,” Rep. Davis said.

Right or not, the Ashcroft FOIA policy remains the policy of the Bush Administration even after enactment of “The OPEN Government Act.”

Update:On January 4, the Associated Press issued the following clarification:

BC-NA-GEN–US-Bush-Freedom of Information,CLARIFICATION/245
Eds: Subscribers who used BC-NA-GEN–US-Bush-Freedom of Information of Dec. 31 may wish to use the following, which explains that the bill does not explicitly reverse former Attorney General John Ashcroft’s order to lean against disclosure when uncertain about any impact on national security.
Clarification: Bush-Freedom of Information

CRAWFORD, Texas (AP) _ In a Dec. 31 story, The Associated Press reported that Freedom of Information legislation signed by President George W. Bush aims to reverse an order by former Attorney General John Ashcroft instructing agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.

The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act.

The new law cites Supreme Court decisions for a “strong presumption in favor of disclosure” and states that “disclosure, not secrecy, is the dominant objective of the act.”

“No matter who is the next president, he will have to run a government that is more open than in the past,” Sen. Patrick Leahy, a Democrat from Vermont, said when the bill passed the Senate.

Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.

A House draft version of the bill explicitly reversed Ashcroft’s order, but that language was stripped out at the insistence of the administration and Republican lawmakers.

No Responses to “New FOIA Law Does Not “Restore Presumption of Openness””

  1. Bob Gellman January 2, 2008 at 5:14 PM #

    Steve is right to damp enthusiam for the new FOIA law. It is a very mediocre law that will do little to change most of the realities of the FOIA. For reasons that escape me, some of the FOIA community seems to love any legislative attention, even when its substantive value for solving FOIA problems is de minimus. The 1996 Amendments made only marginal changes, and the new law does no better. The new Office of Government Information Services at the National Archives is unfunded, and it will be a great surprise if it accomplishes much for requesters when it is eventually established. As for freelance journalists, the law isn’t likely to help unless they have publication contracts, and the contracts will be scrutinized by government lawyers for loopholes and contingencies. The attempt to breathe life into the disciplinary part of the law will fail miserably. The time limit change sounds helpful, but for those agencies that do not comply with current time limits, a debate on when the time limit actually starts is meaningless. The Chief FOIA Office will join the other Chief _____ Officers at agencies, and accomplish just about as much as the other ones do in their respective fields. The report by OPM will be useless. The best things in the law are the change in attorneys fees, the requirement to describe exemptions, and the tracking system. Pretty thin soup, if you ask me. The FOIA community would have been better served if the legislation had been postponed until the next President takes office.

  2. Harry Hammitt January 3, 2008 at 8:41 AM #

    I’m perhaps a little bit more optimistic than Bob, but generally I agree with him that the amendments do little to solve the actual problems. Many of the provisions are good ideas in the abstract, but things like an ombudsman at NARA, for which the Archivist has already said there are no funds and that NARA will do the best it can, are not adequately fleshed out to give much hope of success. Restoring the pre-Buckhannon status for eligibility for attorney’s fees is the biggest practical plus, although the case law is already so skewed against plaintiffs on this issue that we are unlikely to see a flood of awards anyway. If agencies can actually implement a tracking system that provides good information about the status of FOIA requests, including a realistic appraisal of how and when they will be completed, that would also be useful, but not necessarily beneficial to requesters beyond knowing for sure that a requester was going to have to wait for months or years rather than the current situation of just guessing that that is the case. I completely agree with Bob that we would have had a better shot for real reform under a Democratic president and a stronger Democratic Congress. I strongly believe in the ten-year rule on FOIA amendments. It is just wishful thinking to believe that Congress will take up these issues on a regular and timely basis. We can now wait another decade to get something else done.

  3. FOIA Friend January 3, 2008 at 8:44 AM #

    Excellent article by Steve and comment by Bob. Another thing the amendments do not do is redefine the 20-day statutory time limit for a requester to receive a determination letter regarding their request. There has never been a statutory requirement of when responsive documents must be provided to a requester. Note to requesters: You are not entitled by law to receive responsive documents within 20 days. The law only requires that a determination regarding your request be made and communicated to you in 20 days. The courts and DOJ guidance is that records should be released “promptly thereafter” once the FOIA processing determination letter has been sent to the requester. The “teeth” in the FOIA has always been there and has always been in the hands of the requesters – in the form of appealing the lack of response to providing responsive records (or completing their request) on the basis of a constructive denial. The “fourth track” for getting FOIA requests processed is the [threat of] litigation track – and it takes just one stamp and a letter to the appeal authority; next stop is the courts and OGC does not want that to happen. Internal pressure causes “potential” litigation requests to jump to the head of the line for attention and processing. In many instances, appealing is the only way to jump start a program to even begin their search for responsive documents so that actual FOIA processing can commence. The more constructive denial appeals there are is a way to signal that appropriate resources and management priority need to be applied to FOIA processing.