Leahy, Cornyn Vow to Fight Administration's FOIA Ombud Kidnap Plot

January 30, 2008

The idea was to set up an independent ombudsman's office to mediate time-consuming disputes over what documents the feds would release in response to Freedom of Information Act requests. To make it independent, Congress put it in the National Archives and Records Administration - an agency separate from the major cabinet departments who get most of those requests and from the Justice Department, which administers most of FOIA. The ombud - formally titled the Office of Government Information Services - was one of the key features of the FOIA amendments passed by Congress in Dec. 2007 and signed by President Bush on New Year's Eve.

Now the administration plans to ignore the law and put the ombud office in the Justice Department rather than the National Archives, federal employees were told at a secret briefing Jan. 16 about how the administration would carry out the updates to FOIA law.

That is clearly illegal. Public Law 110-175 states: "There is established the Office of Government Information Services within the National Archives and Records Administration." The law leaves no discretion to the President about where to put the office.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) took to the floor Jan. 23 to protest the White House action. Senate co-sponsor John Cornyn (R-TX) echoed Leahy's views.

"Such a move is not only contrary to the express intent of the Congress," Leahy said in floor remarks, "but it is also contrary to the very purpose of this legislation - to ensure the timely and fair resolution of American's FOIA requests. Given its abysmal record on FOIA compliance during the last 7 years, I hope that the administration will reconsider this unsound decision and enforce this law as the Congress intended."

Despite rhetorical attacks on "earmarking," the White House planned to accomplish the switch by earmarking money in its fiscal 2009 budget request - putting the ombud office in Justice's budget rather than NARA's.

That raises problems, however, not just because of illegality. The move could not take place unless the Democrat-controlled Congress implements it by passing appropriations bills giving President Bush what he wants. The game the White House seems to be playing is one of sabotage and delay. By telling federal employees to prepare for an ombud office in the Justice Department, the administration ensures the federal bureaucracy will spin its wheels for much of the year - until Congress squashes the idea by appropriation (as seems likely). If past performance is any guide, Congress might not enact final 2009 appropriations until very late in 2008; Bush signed the final 2008 omnibus appropriation on Dec. 26, 2007.

The new FOIA law, PL 110-175, makes establishment of the ombud office effective immediately upon enactment (Dec. 31, 2007) - not one year after enactment, as is the case with other sections of the law. So the White House ploy could still have the effect of delaying establishment of the office by about a year.