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.
Against this kind of backdrop, it was especially significant when Congress passed the Open Government Act of 2007 -- legislation introduced last March that was partly focused on improving the government's response to FOIA requests. Among other things, the bill would hold government agencies accountable by threatening them with fines if their offices failed to respond to FOIA requests within 20 days. Most significantly, it created the position of an independent ombudsman who would oversee the process and ensure that the rules be enforced.
The Open Government Act passed Congress in December 2007. A less-than-thrilled President Bush could not veto the bill -- it passed unanimously -- and on New Year's Eve, he signed it into law. Two months later, however, using the 2009 budget as a Trojan horse, the president took the position of the independent FOIA ombudsman, and swiftly and quietly killed it.
"Last week, the president buried a provision in the administration's fiscal year 2009 budget proposal that would move the functions of the new Office of Government Information Services ... from the independent National Archives and Records Administration to the Department of Justice," wrote an outraged Patrick Leahy, one of the bill's co-sponsors, on Feb. 14. "The president's proposal is not only contrary to the express intent of the Congress, but contrary to the very purpose of this legislation -- to ensure the timely and fair resolution of American's FOIA requests."
Yanking the position of the ombudsman and placing oversight in the hands of the DoJ was not just a classic Bush-style undermining of Congress; it's a classic example of having the fox guard the henhouse. As one National Security Archive attorney told the Washington Post, "Justice represents the agencies when they're sued over FOIA ... It doesn't make a lot of sense for them to be the mediator."
Congress does not appear ready to make a fuss about this. As a national correspondent for Cox Newspapers, Rebecca Carr told NPR's "On the Media" last month, "They're not likely to stop a $3.1 trillion train car in order to restore an ombudsman office at the National Archives. At a time when we're at war in Iraq and Afghanistan, at a time when we have a hotly contested political election going on ... this is going to fly right under the radar."
Kind of like the NSA audit, whose admittedly unsurprising findings should still be sobering to anyone who believes in the importance of FOIA (if not in the Bush administration's commitment to it). "Behind its ambitious facade," the audit concluded, Bush's executive order "lacked both carrot and stick."
The good news? Customer service has improved. As one newspaper points out, "at most government offices, there is now an official whose job it is to tell requesters how far down the list their request is." After all, when it comes to stonewalling the citizenry, the Bush administration believes in service with a smile.