[Congressional Record: February 14, 2008 (Senate)]
[Page S1050-S1051]


  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 
  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.
         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.