Sunshine Week Celebrates New FOIA Amendments

Yesterday, I attended the First Annual Freedom of Information Day Celebration at American University’s Washington College of Law (WCL) to kick off Sunshine Week (March 16-22), which celebrates government transparency and freedom of information.

Each year Sunshine Week coincides with the birthday (March 16) of James Madison, who famously wrote in 1822:

“A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power which knowledge gives.”

Yesterday morning’s keynote speaker was Prof. Robert Vaughn of WCL, who is better known as the plaintiff in the 1973 D.C. Circuit case Vaughn v. Rosen. This seminal Freedom of Information Act (FOIA) case set forth the right of a FOIA plaintiff to ask the court to order the government agency defendant to provide a list of the documents that are responsive to the plaintiff’s FOIA request but that the government claims are exempt from disclosure, and to include the agency’s specific justification for withholding each document. This list is also known as a “Vaughn Index.”

As the first Ron Plesser Fellow at CDT, I was happy to hear Prof. Vaughn pay tribute to the late Ron Plesser during his keynote address. Ron was the attorney who litigated Vaughn v. Rosen and many other FOIA cases in the 1970s; working with Ralph Nader, Ron successfully got Congress to pass the important 1974 amendments to the Act.

Following Prof. Vaughn’s opening keynote, the first panel discussed the 2007 amendments to FOIA, the first since 1996. The OPEN Government Act (S. 2488) was signed into law on December 31, 2007 as Public Law No. 110-175. CDT’s Vice President Ari Schwartz testified in favor of the proposed OPEN Government Act back in 2005.

A key change to FOIA under the new law is the broadening of the definition of “news media” for the purposes of fee waivers. The definition change was intended to bring bloggers, freelance journalists, and other members of the non-traditional media, under the same tent as all other media outlets.

Another key change under the OPEN Government Act is the creation of a new Office of Government Information Services (OGIS) to be housed in the independent and non-political National Archives and Records Administration (NARA). The primary charge of OGIS is to mediate FOIA disputes between document requestors and federal agencies, and to evaluate agency compliance with the Act.

However, President Bush’s Fiscal Year 2009 budget proposal buried language that would move OGIS from NARA to the Department of Justice. Because NARA’s role is to preserve information and DOJ litigates FOIA cases on behalf of the government against FOIA requesters, open government advocates believe this proposed change is akin to having the fox guard the hen house. These groups are actively lobbying Congress to make sure this language does not find its way into any FY2009 appropriations legislation.

Finally, in honor of Sunshine Week, Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) last week introduced the OPEN FOIA Act of 2008 (S. 2746). This short but important piece of legislation would allow Congress to create new statutory FOIA exemptions only if Congress includes clear and specific language indicating an intent to do so, and only if the new exemption “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld” (emphasis added).

CDT strongly supports S. 2746, which was raised in concept during the OPEN Government Act debates last year. By mandating that Congress make clear its intent to create a statutory FOIA exemption, this law would counter attempts by special interests to hide FOIA exemptions in legislation, and attempts by the executive branch to claim a statutory FOIA exemption that may or may not exist. Passage of this bill would cap an impressive year of open government legislation that would make James Madison proud.