March 05, 2005
Saturday

The federal government's basic sunshine law is the Freedom of Information Act, passed in 1974 to ensure public access to the inner workings of government. But over the years, often through inattention or inertia but on occasion by intent, the effectiveness of the law has been diminished.

This has been especially true under the Bush administration, no great friend of openness, candor and transparency in government. Indeed, early in Bush's first term, then-Attorney General John Ashcroft circulated a memo government-wide urging agencies to take the most restrictive position on releasing information. He told the bureaucrats that "if you decide to withhold records, in whole or in part, rest assured that the Department of Justice will defend your decisions."

And when the Department of Homeland Security was created, the administration insisted on a large exemption from FOIA for the agency.

As with much else, the administration invoked the rubric "national security" to justify its penchant for secrecy. But the existing law already has protections for information deemed vital to national security.

Some help is on the way through a bill in Congress, the Openness Promotes Effectiveness in Our National Government Act _ who names these things anyway? _ sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., and Rep. Lamar Smith, R-Texas. The bill proposes no radical changes, only ways to make the law work as intended.

The existing law requires federal agencies to respond to FOIA requests within 20 days; this proposed change would apply penalties if they don't. A common tactic is for uncooperative agencies to ignore the deadline and simply stall, hoping the requestor will get discouraged and go away.

Another proposed change establishes that government records held by private contractors are still subject to FOIA.

Another amendment would broaden the criteria for waiving the costs of searching for and copying documents. A common discouraging tactic is for an agency to demand absurdly high search and copy fees.

Whoever is seeking the documents can then sue under FOIA to get them and be reimbursed for attorneys' fees if the judge grants the request. The law would be changed to end the punitive bureaucratic tactic of caving on the eve of the court date and then denying attorneys' fees on the technicality that the judge never ruled.

Other provisions would seek to ensure that Homeland Security's exemption is not abused and establish a federal FOIA ombudsman to monitor government compliance with the act.

The Freedom of Information Act reinforces an important American principle: that the vast amount of information compiled by the government ultimately belongs to the people.

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