< FOIA's Foil

Transcript

Friday, February 08, 2008

BROOKE GLADSTONE:
And I'm Brooke Gladstone. This week, Congress and the White House clashed over President Bush’s proposed $3.1 trillion budget for 2009. Most of the anger was aimed at its call for tax cuts, but for us freedom of information wonks there was something else tucked into Bush’s budget – the elimination of the new job of FOIA ombudsman.

When citizens try to obtain government documents under the Freedom of Information Act, the ombudsman was created to consider their cases fairly when their requests were denied. The position was written into the bipartisan Open Government Act signed into law on New Year's Eve, when champagne corks were popped, but now it’s all gone flat because Bush’s budget effectively killed the ombudsman.

Rebecca Carr is national correspondent for Cox Newspapers. She says the ombudsman could have helped make the system more responsive to the public it’s supposed to serve.
REBECCA CARR:
There’s some Freedom of Information requests languishing in excess of 15 years. That’s far in excess of the 20-day time limit. And this is the first time in 10 years that any legislation has passed Congress that addresses the major problems within the Freedom of Information Act.
BROOKE GLADSTONE:
Assuming it isn't defanged in the budget process, how does it affect the work of journalists? I mean, if there really were, for instance, a 20-day response deadline to FOIA requests, could that usher in a new era of aggressive watchdogging?
REBECCA CARR:
Well, that is certainly the hope of journalists in Washington and throughout the country, that if the Freedom of Information Act actually works, you are going to see, you know, not just a spring of information but a river.
BROOKE GLADSTONE:
FOIA has been ailing for a while. Why did Congress pass this act now?
REBECCA CARR:
What really was the impetus behind this was a Republican by the name of John Cornyn of Texas who rode to town saying he was going to be the open government master. And he worked hard in hand with Patrick Leahy of Vermont, the chairman of the Senate Judiciary Committee, to bring about this change.

It wasn't easy. It took over five years to make what some consider very small changes, but, in essence, changes that would make the Freedom of Information Act more accessible to the average citizen out there.
BROOKE GLADSTONE:
So summarize some of these small changes that the Open Government Act would make in the process.
REBECCA CARR:
They were going to have a federal tracking system for Freedom of Information Act requests. There were going to be penalties levied for agencies that failed to comply within a 20-day time period. And they were going to, for the first time, allow people who actually had to go to court to pry loose documents, those individuals would be reimbursed for their legal fees.

But the centerpiece is the ombudsman. The ombudsman was seen as an independent arbitrator of Freedom of Information Act disputes. Right now it’s so difficult to get information from the government that many requestors who are filing Freedom of Information Act requests are forced to go straight to court after the 20-day time limit.

So the ombudsman was going to step in and say, hey, I'm the independent guy. I'm going to see if the federal agencies are accurate in withholding this. And it was going to prevent parties from having to go to court.
BROOKE GLADSTONE:
The President signed this act and this position into law, right?

REBECCA CARR:
That's right. Senator Leahy and Senator Cornyn have been trying to pass this legislation for five years. Finally, finally, finally, in December, the Senate passes their bill by unanimous consent. That’s huge.

It goes over to the House one week later. It passes by voice vote. So, in essence, you have legislation passing unanimously in Congress, which is, as you know, a very rare thing. It goes to the –
[OVERTALK]
BROOKE GLADSTONE:
It’s veto-proof.
REBECCA CARR:
It’s veto-proof. It goes to the President’s desk. The President sits on it. And finally, on New Year's Eve, he quietly signs this legislation into law on his Texas ranch. And the Open Government community is ecstatic.

But then, in the dark of night, [LAUGHS] you could say, because buried in the President’s mammoth, inches-thick budget document, on page 239, at the appendices of the Commerce Department [LAUGHING] section, which had nothing to do [LAUGHS] with the Justice Department, is a phrase that does not mention FOIA, the Freedom of Information Act, does not mention the Office of Government Information Services, which is the name of the ombudsman, does not mention the National Archive. It just has this, you know, pithy little phrase that says, “This position will no longer exist.”
[BROOKE LAUGHS]
REBECCA CARR:
And all duties are transferred to the Justice Department. What makes this so egregious is the Justice Department is the very agency that’s been criticized for not enforcing the Freedom of Information Act in the position of settling conflicts.

So it’s not just the open government advocacy groups that are upset. Congress, Republicans and Democrats alike, are very upset because it’s basically taking Congress’s law and thumbing their nose at it.
BROOKE GLADSTONE:
Is Congress so mad that it will therefore not approve Bush’s budget?
REBECCA CARR:
They're not likely to stop a 3.1 trillion–dollar 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, it’s probably – this is going to fly right under the radar.

You might ask what options are left? Cornyn and Leahy are already working behind the scenes to publicly advocate to restore the ombudsman role. This week, they sent a letter to OMB director Jim Nussle urging him to restore this, expressing their displeasure.

In addition, Cornyn and Leahy could offer an amendment on the floor when the budget resolution comes to the floor that would strip the language from the President’s proposal. So there are some legislative options here. All is not lost.
BROOKE GLADSTONE:
Rebecca, thank you very much.
REBECCA CARR:
Well, thank you so much for having me.
BROOKE GLADSTONE:
Rebecca Carr is the national correspondent for Cox Newspapers.