George Bush has signed into law S. 2488, a bill that strengthens the Freedom of Information Act. There are a lot of signs that Bush did not much like this Open Government Act, so it’s significant that he didn’t veto it.
What are the signs of Bush’s displeasure? For one thing, the WH published a description of the new law that is terse and, rather glaringly, excludes most of its more important provisions. You’ll find these spelled out in some detail in the CRS summary of the bill.
As a point of comparison, let’s look at which elements the Associated Press chose to include in its summary of the legislation. According to AP, the new law:
- requires the release of requested documents unless their disclosure would do actual harm
- brings government contractors under FOIA
- compels the government to respond to FOIA requests within 20 days of their receipt
- creates a system by which citizens may track the progress of their requests
- establishes a hot-line service for all federal agencies to cope with problems
- establishes an ombudsman to help resolve disputes about non-disclosure
By contrast, the published WH summary mentions only that the law “amends (FOIA) by…”:
(1) establishing a definition of “a representative of the news media;” (2) directing that required attorney fees be paid from an agency’s own appropriation rather than from the Judgment Fund; (3) prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and (4) establishing an Office of Government Information Services in the National Archives and Records Administration to review agency compliance with FOIA.
You’ll note that there’s barely any overlap between the elements that the AP and the White House highlight. Furthermore the four elements listed by the WH say virtually nothing about the need or the mechanisms for greater openness — the very goal of the legislation.
The “Open Government Act” will “help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public’s trust in their government,” said Senate Judiciary Committee Chairman Patrick Leahy
As the AP describes it:
The new law…amounts to a congressional pushback against the Bush administration’s movement to greater secrecy since the terrorist attacks of 2001.
Bush signed the bill without comment in one of his final decisions of the year…
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.
Even if the Open Government Act is not a cure for all of FOIA’s ills, it is a highly symbolic piece of legislation. And it’s hard to ignore the symbolism of the manner in which Bush signed it into law — on New Year’s Eve, without comment. It was almost as if Bush wanted to avoid drawing attention to a victory for government transparency.