Thursday, January 3, 2008

New law won't change fed secrecy policy

You may have read (here and elsewhere) about the OPEN Government Act, a new law which makes several important changes to the Freedom of Information Act. It is meant to encourage better response times, allow requests to be tracked, and expand the basis for fee waivers. But what it doesn't do, according to the FAS Project on Government Secrecy, is to restore the "presumption of openness" that was demolished by John Ashcroft.

That provision was removed from the bill's final form.

From Steven Aftergood's Secrecy News:

Whatever records that a government agency was legally
entitled to withhold before enactment of the "OPEN Government Act" can still be withheld now that the President has signed it.

Some reporters and editorial writers, perhaps enchanted by the name of the new law, mistakenly assumed that it accomplishes much more than that. "The law ... restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm," according to a January 1 Associated Press account that appeared in the Washington Post, the New York Times, USA Today, the Wall Street Journal and elsewhere.

Further, the widely-published AP account continued, "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."

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a "presumption of openness," that provision was removed from the bill prior to passage.

Thus, Rep. Henry Waxman (D-CA) noted with regret on the House floor on December 18 that the final legislation "does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret."