It's Better FOIA

Information wants to be free.

The Bush administration has a reputation for jealously guarding its secrets. But a burgeoning backlash from journalists and legislators on both sides of the aisle may give a boost to government transparency.

In late July, Attorney General Alberto Gonzales heartened advocates of open government by suggesting that he'd consider reversing a 2001 memorandum issued by his predecessor John Ashcroft. In the Clinton years, agencies had been directed to err on the side of "maximum responsible disclosure"; Ashcroft's memo informed agencies that the Justice Department would back a policy of withholding information when any legal basis can be found for doing so.

Last February, Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) introduced the OPEN Government Act, one section of which passed the Senate in June as a stand-alone bill. That law would attempt to eliminate "stealth exemptions" to the Freedom of Information Act (FOIA) by requiring Congress to explicitly identify any statutes that would limit the public's right to access information under FOIA. The new act would also encourage the Office of Special Counsel to discipline officials for "arbitrary and capricious" denial of FOIA requests.

"You can't find anyone who's ever been punished in the federal government for keeping something secret against the law," says Ari Schwartz, associate director of the Center for Democracy and Technology. "It's hard to say the law's being enforced well if we know there are cases where people don't give out information they're supposed to and there are no consequences."

Among other reforms, OPEN would guarantee online journalists the same expedited review as their print counterparts and establish an Office of Government Information Services to act as a FOIA ombudsman. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, is particularly enthusiastic about a provision that would force agencies to pay the legal fees of people who successfully petition the courts for access to information.

Under the status quo, says Dalglish, agencies are able to deter FOIA requests by withholding documents, waiting for the requester to run up a hefty legal bill, and then (if the requester seems likely to prevail) voluntarily releasing the information before court proceedings begin. Cornyn and Leahy's legislation would make it expensive rather than prudent to stall.?