Is Ombudsman Already in Jeopardy?

Sen. Patrick Leahy promises vigilance in yet another executive-legislative battle.
Sen. Patrick Leahy promises vigilance in yet another executive-legislative battle. (By Dennis Cook -- Associated Press)
By Elizabeth Williamson
Washington Post Staff Writer
Wednesday, February 6, 2008

Hours before the new year, open-government groups won a key victory in their years-long fight to force government agencies to release documents without months, and sometimes years, of delay. The moment came when President Bush reluctantly signed a law enforcing better compliance with the Freedom of Information Act.

But in his budget request this week, Bush proposed shifting a newly created ombudsman's position from the National Archives and Records Administration to the Department of Justice. Because the ombudsman would be the chief monitor of compliance with the new law, that move is akin to killing the critical function, some members of Congress and watchdog groups say.

"Justice represents the agencies when they're sued over FOIA. . . . It doesn't make a lot of sense for them to be the mediator," said Kristin Adair, staff counsel at the National Security Archive, which is suing the White House to force it to preserve e-mails the administration says it may have lost.

"Once again, the White House has shown they intend to act contrary to the intent of Congress," Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said in a statement. "I will continue to work through the appropriations process to make sure that the National Archives and Records Administration has the necessary resources and funds to comply with the OPEN Government Act, and we will continue to work in Congress to make necessary reforms to the Freedom of Information Act."

White House spokesman Tony Fratto said that the Bush administration strongly supports "the timely and fair resolution of FOIA requests" but that "only the Department of Justice, as the government's lead on FOIA issues and mediation in legal matters, is properly situated and empowered to mediate issues between requestors and the federal government."

Fratto said various government agencies are making "measurable progress" toward responding more quickly to FOIA requests.

Bush is no fan of the Open Government Act of 2007, which takes aim at his administration's secretive ways by requiring government agencies to cough up the information Americans request within 20 days, or face monetary penalties. After months of fighting it, and faced with bipartisan support that included many of his allies in Congress, Bush quietly signed the bill on New Year's Eve at his Texas ranch.

The law establishes the ombudsman's office to hear disputes over unmet FOIA requests, monitor agencies and foster best practices. The ombudsman would be part of the National Archives and Records Administration, the non-partisan repository where most of the nation's important documents eventually wind up, and from which they are distributed.

The Justice Department has hardly shown itself to be a strong supporter of public information requests: After the Sept. 11, 2001, terrorist attacks, then-Attorney General John D. Ashcroft issued a memo urging agencies to use all legal means to refuse public document requests.

A recent review of overdue FOIA requests by the National Security Archive criticizes Justice for holding up public records releases. In at least four cases, the delay was for more than 15 years.

More than 30 open-government groups have signed a letter they will deliver this week to Capitol Hill, "to highlight for congressional appropriators the executive branch's attempt to re-write the law -- signed only five weeks ago by the President," Chris Green, program associate at said in an e-mailed request for signatures.

By law, agencies must respond within 20 days to FOIA requests, but in practice the process can take months or years. Delays grew after the terrorist attacks in 2001 as agencies began to favor nondisclosure in the name of national security.

Under the new law, requests will be assigned public tracking numbers. Agencies that exceed the 20-day deadline for responses will be denied the right to charge requesters for research or copying costs.

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