New FOIA Law Does Not “Restore Presumption of Openness”

01.02.08 | 3 min read | Text by Steven Aftergood

Updated below

On December 31 President Bush signed into law the “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007,” which amends the Freedom of Information Act (FOIA).

The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the “OPEN Government Act” can still be withheld now that the President has signed it.

Some reporters and editorial writers, perhaps enchanted by the name of the new law, mistakenly assumed that it accomplishes much more than that.

“The law … restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm,” according to a January 1 Associated Press account that appeared in the Washington Post, the New York Times, USA Today, the Wall Street Journal and elsewhere.

Further, the widely-published AP account continued, “The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.”

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a “presumption of openness,” that provision was removed from the bill prior to passage.

Thus, Rep. Henry Waxman (D-CA) noted with regret on the House floor on December 18 that the final legislation “does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret.”

From an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that “the provision repealing the so-called Ashcroft memorandum was eliminated…. The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.”

“I think preservation of the Ashcroft policy is the right policy to adopt in the current environment,” Rep. Davis said.

Right or not, the Ashcroft FOIA policy remains the policy of the Bush Administration even after enactment of “The OPEN Government Act.”

Update:On January 4, the Associated Press issued the following clarification:

BC-NA-GEN–US-Bush-Freedom of Information,CLARIFICATION/245
Eds: Subscribers who used BC-NA-GEN–US-Bush-Freedom of Information of Dec. 31 may wish to use the following, which explains that the bill does not explicitly reverse former Attorney General John Ashcroft’s order to lean against disclosure when uncertain about any impact on national security.
Clarification: Bush-Freedom of Information

CRAWFORD, Texas (AP) _ In a Dec. 31 story, The Associated Press reported that Freedom of Information legislation signed by President George W. Bush aims to reverse an order by former Attorney General John Ashcroft instructing agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.

The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act.

The new law cites Supreme Court decisions for a “strong presumption in favor of disclosure” and states that “disclosure, not secrecy, is the dominant objective of the act.”

“No matter who is the next president, he will have to run a government that is more open than in the past,” Sen. Patrick Leahy, a Democrat from Vermont, said when the bill passed the Senate.

Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.

A House draft version of the bill explicitly reversed Ashcroft’s order, but that language was stripped out at the insistence of the administration and Republican lawmakers.