Bush's Open-Records Order a Sham

On Dec. 14, 2005, President Bush issued an executive order that, at first glance, seemed highly out of character. "The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed," it began. "For nearly four decades, the Freedom of Information Act (FOIA) has provided an important means through which the public can obtain information regarding the activities of federal agencies." The multipronged order went on to call for improving the system for the government's processing of FOIA requests. In addition to dealing with them "in an efficient and appropriate manner," federal agencies were to conduct themselves "courteously" and in a "citizen-centered" way.

Bush's rhetoric -- suspicious as it seemed -- was welcome. Signed into law by President Lyndon Johnson in 1966, the Freedom of Information Act is a singularly important tool for people -- particularly journalists -- to ensure government transparency. Yet, for years, the government's response to FOIA requests has been notoriously sluggish, with some FOIA requests taking as long as 10 years to process.

To speed things up and improve the FOIA system, Bush said a senior official of each agency would be designated to serve as the "chief FOIA officer," managing the implementation and conduct of all things FOIA-related. The executive order applied to some 90 government offices; it would be up to the attorney general to oversee the whole operation.

The role of the attorney general should have raised a serious red flag -- especially given the history of the Department of Justice under Bush. Weeks after Sept. 11, then-Attorney General John Ashcroft gutted a Freedom of Information order issued by Janet Reno in 1993 that stated the Department of Justice would "no longer defend an agency's withholding of information merely because there is a 'substantial legal basis' for doing so." Ashcroft's move placed "national security" above all else, setting the stage for years of gross civil liberties abuses.

Last week, the National Security Archive released an audit showing the results of Bush's 2005 initiative. The predictable conclusion: It's been a miserable failure. When it comes to reducing the number of unanswered FOIA requests, the Bush administration has barely made a dent. The amount went down a measly 2 percent over the past two years -- from 217,000 to 212,000.

News of the audit didn't make much of a splash -- and why should it? For a president who once reduced the U.S. Constitution to "a piece of paper," Bush's desire to improve FOIA was laughable from the start.

The past year alone has revealed much about Bush's attitude towards FOIA. Last spring, when the nonprofit group Citizens for Responsibility and Ethics in Washington (CREW) sued the administration for its records on some 5 million White House emails that went mysteriously missing between March 2003 and October 2005, the response was to change the rules.

"The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of emails missing from White House servers," reported the Washington Post in August 2007. "The claim," noted the Post, "... is at odds with a depiction of the office on the White House's own website. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA."

It was not the first time the administration had decided to redraw the government map to fit its agenda. Dick Cheney, after all, has long maintained that he is not subject to government oversight, famously declaring himself last summer an entity outside the executive branch. The notoriously secretive vice president has shown particular hostility towards the Information Security Oversight Office -- a division of the National Archives that handles classified information -- an agency he has suggested abolishing altogether.