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Santa Delivers The Open Government Act of 2007

By Eric Sinrod

Secret government is dangerous government. Government must be accountable to its citizenry. But how is light shed on government activities for public monitoring? That is where the Freedom of Information Act (FOIA) comes into play.

The FOIA was enacted back in 1966 so that the American public could gain access to government information to monitor the service of elected and appointed federal officials. The FOIA was amended in the 1970s with sharper teeth in the wake of the Watergate scandal. Much later in the mid-1990s the statute was further revised to allow for the discovery of government information in electronic form.

There has been a perception that the present administration has diluted the timing and quality of provision of information under the statute. Those days appear to be coming to an end, as the House of Representatives recently passed a bill referred to as the Open Government Act of 2007 (the Act) that passed the Senate just days earlier. Perhaps seeing the ultimate writing on the wall, President Bush signed the Act into law on December 31.

As noted in the findings supporting the Act, the FOIA originally was signed into law because "our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends on the consent of the governed," and that such consent "is not meaningful unless it is informed consent."

According to the concurring opinion of Supreme Court Justice Black from the case Barr v. Matteo "the effective functioning of a free government like ours depends largely on the force of an informed public opinion." As Justice Black found, this calls for "the widest possible understanding of the quality of government service rendered by all elective or appointed officials or employees."

And not to be forgotten, in United States Department of State v. Ray, a case that I briefed as counsel for the FOIA requesters in the early 1990s, the Supreme Court found that the FOIA establishes "a strong presumption in favor of disclosure."

Yet, in recent times, many FOIA requests go unanswered by government agencies well past statutorily mandated response times. Whereas the usual request deserves a response within 20 days, some requests go answered for months and even years, while a few requests never lead to a response.

In addition, the FOIA sets forth certain exemptions that agencies can invoke to refuse to provide information to requesters. Such exemptions have to do with national security, law enforcement, privacy and other important matters. Of course, how an agency interprets exemptions has an impact on the flow of information provided. The current administration has been viewed in some quarters as having broadly interpreted FOIA exemptions precisely to limit the amount of information disclosed under the statute.

Congress evidently became fed up - hence the passage of the Open Government Act. The Act by its own terms comes into effect one year after enactment.

The Open Government Act contains some helpful and important features. There are provisions to speed up the timing of responses to FOIA requests, provisions making clear that the 20-day response time generally applies and should not be tolled, terms assigning tracking numbers to FOIA requests that take longer than 10 days to process, and sections invalidating the ability of agencies to charge requesters for research and copying costs if the response deadlines in the statute are not met.

The Act also broadens the scope of information potentially available pursuant to FOIA requests, by including government information maintained for agencies by government contractors.

In addition, the Act extends the circumstances under which FOIA requesters may obtain attorney's fees under the statute.

On top of all of this, the Open Government Act requires more accurate reporting by agencies to Congress with respect to FOIA compliance and creates the Office of Government Information Services at the National Archives to mediate conflicts between FOIA requesters and agencies.

The Act represents the first changes to FOIA since 1996, when amendments were made to address information maintained electronically. For people who believe that the public has a right to find out what the government is up to, this holiday season Santa has come down the chimney with the Open Government Act.

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