An overdue update
Shortly after President Bush took office in 2001, his first attorney general, John Ashcroft, sent a disappointing message about the new administration’s attitude toward open government.
He directed federal agencies, when asked for access to government documents, to assume the records to be closed unless there was convincing legal authority to compel their release. Nearly eight years later, the president has been presented with legislation repudiating that approach, and the backing of Congress is so strong and bipartisan that a veto would be futile.
The most significant revision in the 1966 Freedom of Information Act in more than a decade passed the Senate unanimously and by an unrecorded consent vote in the House. It was by Sens. Patrick Leahy, a liberal Democrat from Vermont, and John Cornyn, a conservative Republican from Texas.
As written, the OPEN Government Act is an attempt to deliver on the promises contained in the original law enacted more than 40 years ago.
Since then, most states have acted forcefully to open up government within their control, but the federal law has been ineffectual, thanks to long delays by federal agencies and lack of effective enforcement for noncompliance.
For one thing, the new law assumes a right of access and puts the burden on agencies to justify withholding records. But the most important reforms deal with how the law discourages noncompliance. No longer will agencies be allowed to claim compliance by releasing records only after months and sometimes years of denials or inaction. And when fines are handed out, they will have to be paid out of the agency’s own budget, not the U.S. Treasury’s claims and judgment fund.
As with any legislation, we’ll have to watch to see if this one lives up to its intent, but for now it’s a hopeful sign that public records can truly be public.