Two steps forward, one step back?

After signing off on a FOIA reform bill, Bush sent a 2009 budget to Congress that would repeal a key section of the new law.

From the Winter 2008 issue of The News Media & The Law, page 16.

By Lucy Dalglish

The ink had scarcely dried on the president’s signature on the first federal Freedom of Information Act amendments in more than a decade when the Bush administration made a full frontal assault on the new law.

Congress established an independent ombudsman within the National Archives and Records Administration when it adopted the FOIA amendments in late 2007.

Although Bush signed the OPEN Government Act of 2007 on New Year’s Eve, he later effectively killed the much-anticipated ombudsman office by refusing to fund it in his budget for fiscal year 2009.

Language inserted in the appendix to the president’s budget released after the State of the Union would, if enacted, eliminate the Office of Government Information Services, as the ombudsman office was to be called, within NARA and instructs the Justice Department to carry out its functions.

The budget action set off a fusillade of criticism from congressional sponsors and open government advocates.

"Asking the Justice Department to perform the responsibilities creates an inherent conflict of interest," said Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media groups advocating for openness in the federal government.

"We encourage the Congress to fully fund OGIS within the National Archives. This reflects the plain language of the statute and intent of Congress in passing the OPEN Government Act," Blum said. (The Reporters Committee is a member of the media coalition.).

The OPEN Government Act passed with wide bipartisan support, and the ombudsman office was one of its key provisions.

It was envisioned as a tool to help the public reduce long delays and avoid costly litigation by mediating disputes that can arise when the public seeks documents held by the government.

In addition to the mediation function, the ombudsman’s office is authorized to audit agency FOIA departments and suggest changes in agency practices.

Because the Justice Department frequently litigates challenges under the FOIA on behalf of federal agencies that don’t want to give up documents, congressional sponsors recognized that the new mediation office needs independence from the Justice Department.

A week before the president’s budget was released, Sen. Patrick Leahy (D-Vt.), one of the law’s chief sponsors, got wind of the administration’s plans and blasted the White House in a speech on the Senate floor.

"Such a move is not only contrary to the express intent of Congress, but it is also contrary to the very purpose of the legislation — to ensure the timely and fair resolution of Americans’ FOIA request," Leahy said. "Given its abysmal record on FOIA compliance during the last seven years, I hope that the administration will reconsider this unsound decision and enforce this law as Congress intended."

The rumor was not only true, but the president’s action was worse than Leahy had anticipated.

Rather than merely shift the duties of the ombudsman from NARA to the Justice Department, Bush’s spending plan for 2009 killed the office entirely.

Joined by co-sponsor Sen. John Cornyn (R-Tex.), Leahy wrote a terse letter Feb. 4 to Jim Nussle, director of the Office of Management and Budget.

"This proposal violates both the explicit text of the OPEN Government Act and its legislative intent," the senators wrote. "We and our fellow lawmakers, supported by the FOIA requester community, sought to make the FOIA ombudsman independent of the Department of Justice, which represents agencies sued by FOIA requesters."

Bush’s budget proposal must be adopted by Congress, so the fight now moves to the appropriations and budget committees to determine the fate of the ombudsman.

Meanwhile, other provisions of the OPEN Government Act are in the implementation stage.

While the amendments do not add or eliminate any exiting exemptions to public disclosure, the new law should make it easier for requesters to get information in a timely way.

Bloggers and freelancers stand to gain substantially under the new law, which widens the definition of a journalist to potentially allow them to qualify for various fee waivers.

Another component strengthens reporting requirements by clarifying more precisely when the 20-day time limit clock begins after a request.

Agencies that blow the 20-day deadline will be prohibited from charging search and duplication fees to non-commercial requesters. Each new FOIA appeal also will be given a tracking number designed to figure out where each request is in the process.

Another important change in the law is the so-called "Buckhannon fix," named for a 2001 U.S. Supreme Court case, Buckhannon Board and Care Home, Inc., v. West Virginia Dep’t of Health and Human Resources, which made it much more difficult for requesters who were forced to sue to get a document to recover attorney fees.

Under Buckhannon, which originally addressed attorney fee issues in civil rights cases but had been extended to FOIA cases as well, plaintiffs suing the government could not even petition the trial court to recover attorney fees unless they had "substantially prevailed" at trial.

In the aftermath of Buckhannon, a popular government technique became stringing a FOIA requester along through the process, then turning over documents on the eve of trial.

The government thus argued that since the release of information was "voluntary," the requester had not prevailed at trial and was not eligible to recover the cost of hiring a lawyer to litigate the case.

Knowing the odds of recovering attorney fees if the agency capitulated on the eve of trial were dismal greatly reduced the number of plaintiffs willing to sue the government for documents.

In testimony before a subcommittee of the House Oversight and Government Reform Committee last year, former Knight Ridder Washington editor Clark Hoyt described the difficulties one of his reporters faced when using FOIA for a series of stories he wrote on the U.S. Department of Veterans Affairs and the agency’s wrongful denials of veterans’ benefits.

After more than a year of FOIA denials and legal wrangling, the department turned over all the requested records but at a cost of more than $100,000 in attorney fees, Hoyt said.

"Buckhannon encourages delaying tactics by agencies that are trying to evade the requirements of FOIA," Hoyt said at the hearing. "I believe, though I cannot prove it, that VA officials knew they had a losing case but decided to fight us as long as possible to test our resolve and the depth of our pockets. They knew that in doing so, the VA faced no potential liability."

Under the new law, a requester is eligible to recover attorney fees if he or she has obtained the documents through a judicial or administrative order or if the pursuit of a claim was the "catalyst" for the voluntary or unilateral change in position by the agency.