From Secrecy News:
NEW FOIA LAW DOES NOT "RESTORE PRESUMPTION OF OPENNESS"
On December 31 President Bush signed into law the "Openness Promotes
Effectiveness in our National (OPEN) Government Act of 2007," which
amends the Freedom of Information Act (FOIA).
The new law makes several constructive procedural changes in the FOIA
to encourage faster agency response times, to enable requesters to
track the status of their requests, to expand the basis for fee
waivers, and more.
One thing it does not do, however, is alter the criteria for secrecy
and disclosure. 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
"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include a provision that would have repealed the Ashcroft policy and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."
From an opposing perspective, Rep. Tom Davis (R-VA) expressed his
approval that "the provision repealing the so-called Ashcroft
memorandum was eliminated.... The Ashcroft memorandum established that
the administration would defend agency decisions to withhold records
under a FOIA exemption if the decision was supported by a sound legal
basis, replacing the pre-9/11 Janet Reno standard of always releasing
information absent foreseeable harm."
"I think preservation of the Ashcroft policy is the right policy to
adopt in the current environment," Rep. Davis said.
Right or not, the Ashcroft FOIA policy remains the policy of the Bush
Administration even after enactment of "The OPEN Government Act."
[Use links above to continue reading]