[Congressional Record: February 14, 2008 (Senate)]
[Page S1050-S1051]
OFFICE OF GOVERNMENT INFORMATION SERVICES
Mr. LEAHY. Mr. President, with the enactment of bipartisan Freedom of
Information Act, FOIA, reform legislation late last year, Congress
demanded and won more openness and accountability in monitoring the
activities of our Government. But, regrettably, just weeks after this
historic open government legislation was signed into law, there are
troubling signs from the Bush administration regarding how this law
will be enforced.
Last week, the President buried a provision in the administration's
fiscal year 2009 budget proposal that would move the functions of the
new Office of Government Information Services, OGIS, which was created
under the OPEN Government Act, from the independent National Archives
and Records Administration to the Department of Justice. The
President's proposal is not only contrary to the express intent of the
Congress, but contrary to the very purpose of this legislation--to
ensure the timely and fair resolution of American's FOIA requests.
The Office of Government Information Services was established to,
among other things, mediate FOIA disputes between Federal agencies and
FOIA requestors, review and evaluate agency FOIA compliance and house
the newly established FOIA ombudsman. When Senator Cornyn and I drafted
the OPEN Government Act, we intentionally placed this critical office
in the National Archives, so that OGIS would be free from the influence
of the Federal agency that litigates FOIA disputes--the Department of
Justice. We also placed OGIS in the apolitical National Archives to
enhance this office's independence, so that all Americans can be
confident that their FOIA requests would be addressed openly and
fairly.
Given the clear intent of Congress to establish OGIS as an
independent office in the National Archives, the President's budget
proposal should not--and cannot--go unchallenged. What's more, given
the Justice Department's own abysmal record on FOIA compliance--a
recent Bureau of National Affairs Daily Report for Executives article
found that the Justice Department's Office of Information Policy is
burdened by increasing FOIA backlogs--it is simply unfathomable that
this agency would be entrusted with overseeing the processing of
American's FOIA requests.
When the Congress unanimously passed the OPEN Government Act just a
couple months ago, Democrats and Republicans alike joined together in
promising the American people a more open and transparent government. I
intend to work to ensure that that this was not an empty promise, but
one that will be honored and fulfilled.
[[Page S1051]]
I call on all Members of Congress, on both sides of the aisle and in
both Chambers, to join with me to ensure that the Office of Government
Information Services is promptly established and fully funded within
the National Archives. The American people have waited for more than a
decade for this office and for the other historic FOIA reforms
contained in the OPEN Government Act. They should not be forced to wait
any longer.
Mr. President, I ask unanimous consent that a copy of a letter from a
coalition of more than 40 different open government organizations that
strongly oppose moving the Office of Government Information Services to
the Department of Justice be printed in the Record.
Congress must work to beat back the administration's ill-advised
attempts to undermine the intent of Congress in a bill that this
President signed into law. In the coming weeks and months, I will be
working with other advocates of FOIA in the Senate to do just that.
There being no objection, the material was ordered to be printed in
the Record, as follows:
February 6, 2008.
Hon. Robert C. Byrd, Chairman
Hon. Thad Cochran, Ranking Member,
Committee on Appropriations, U.S. Senate, Washington, DC.
Dear Chairman Byrd and Ranking Member Cochran: We are
writing to express our concern that the Bush Administration's
proposed FY 2009 budget attempts to repeal a section of law
and shift funding for a new Office of Government Information
Services (OGIS) at the National Archives and Records
Administration (NARA) to the Department of Justice (DOJ).
President Bush signed the Openness Promotes Effectiveness in
our National Government Act (OPEN Government Act), which
creates OGIS at NARA, a mere five weeks ago. We urge you to
ensure the President's budget reflects congressional intent
and the explicit mandate of the statute as the budgetary
process unfolds.
Currently, the president's budget proposes: ``The
Department of Justice shall carry out the responsibilities of
the office established in 5 U.S.C. 552(h), from amounts made
available in the Department of Justice appropriation for
General Administration Salaries and Expenses. In addition,
subsection (h) of section 552 of title 5, United States Code,
is hereby repealed, and subsections (i) through (I) are
redesignated (h) through (k). (Commerce, Justice, and Related
Agencies Appropriations Act, 2008.)'' (Section 519 of Title V
of the Department of Commerce; p. 239 of the Appendix)
The OPEN Government Act (P.L. 110-175) established OGIS
specifically at NARA. It did so as a result of congressional
findings that interests promoted by the Freedom of
Information Act (FOIA), as well as American traditions and
ideals regarding the value of an informed citizenry and the
legitimacy of representative government, were being
insufficiently served by the existing system of agency
practices and implementation, in which DOJ has been the lead
agency for 30 years. Additionally, since it is the
responsibility of the Department to defend its government-
agency clients in litigation brought by requestors, there is
a built-in conflict of interest in vesting DOJ with
responsibilities to resolve FOIA disputes informally and to
hold agencies accountable for FOIA implementation. Congress
specifically directed the creation of an ombudsman office
apart from the Department of Justice for mediation of
contested requests, thus reducing the amount, and concomitant
costs, of litigation--burdens whose reduction would be
beneficial to all. The new office, established with strong
bipartisan support in both Houses of Congress, also has the
critical mandate to evaluate agency implementation of FOIA
with a disinterested eye.
We strongly oppose this effort to use the budget process to
rewrite the law, undermining congressional intent and
flouting a specific statutory mandate. We urge you to
appropriate necessary funds to establish the Office of
Government Information Services in the National Archives and
Records Administration, as your legislation wisely requires,
and, to reinforce the intent of the OPEN Government Act,
reject Section 519 of the proposed budget.
Sincerely,
Access Reports, Inc.; American Association of Law
Libraries; American Association of Publishers; American
Civil Liberties Union; American Library Association;
American Booksellers Foundation for Free Expression;
Association of Research Libraries; Bill of Rights
Defense Committee; Californians Aware; Citizens for
Responsibility and Ethics in Washington; Citizens for
Sunshine; Coalition on Political Assassinations;
DownsizeDC.org, Inc.; Electronic Frontier Foundation;
Essential Information; Feminists for Free Expression;
Government Accountability Project; Indiana Coalition
for Open Government; The James Madison Project; Justice
Through Music; League of Women Voters of the U.S.;
Liberty Coalition; Maine Association of Broadcasters;
Minnesota Coalition on Government Information; National
Coalition Against Censorship; National Freedom of
Information Coalition; The National Security Archives;
9/11 Research Group; OMB Watch; Open Society Policy
Center; OpenTheGovernment.org; PEN American Center;
Project On Government Oversight; Public Citizen;
Readthebill.org Foundation; The Rutherford Institute;
Society of Professional Journalists; Society of
Professional Journalists Montana Professional Chapter;
Special Libraries Association; Sunlight Foundation;
United States Bill of Rights Foundation; Velvet
Revolution; Washington Coalition for Open Government.
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