WASHINGTON - Congress on Tuesday struck back at the Bush administration’s trend toward secrecy since the 2001 terrorist attacks, passing legislation to toughen the Freedom of Information Act and increasing penalties on agencies that don’t comply.
The White House would not say whether President Bush will sign the legislation, which unanimously passed the House by voice vote Tuesday a few days after it sailed through the Senate. Without Bush’s signature, the bill would become law during the congressional recess that begins next week.
It would be the first makeover of the FOIA in a decade, among other things bringing nonproprietary information held by government contractors under the law. The legislation also is aimed at reversing an order by former Attorney General John Ashcroft in the wake of the attacks, in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.
The overwhelming congressional support for the legislation owes in part to administration allies who successfully insisted on stripping out language explicitly reversing Ashcroft’s order.
That victory, said Rep. Tom Davis, R-Va., is evidence that “we’ll continue to try to balance national security with the vital interests of open government.”
With or without the Ashcroft provision, one of the sponsors said, the rewritten version that cleared Congress Tuesday will have the intended effect of reversal.
“No matter who is the next president, he will have to run a government that is more open than in the past,” if the bill becomes law, Judiciary Committee Chairman Patrick Leahy, D-Vt, said on the Senate floor.
Sen. John Cornyn, a member of the Judiciary Committee, had attempted to pass versions of the open government bill in earlier sessions of Congress. He is a co-sponsor with Leahy on the bill approved Tuesday. He said in a statement his efforts were modeled on Texas open government laws.
“Texas has one of the strongest open government laws in the nation. When I came to the Senate five years ago, bringing a little Texas sunshine to the federal government was a cornerstone of my legislative priorities. It is a principle I have advocated throughout my years in public service,” Cornyn said.
A previously passed version was rewritten this month to meet House concerns about how government agencies would pay for attorneys’ fees when they lose or settle a FOIA lawsuit. That money will now have to come from other programs within each agency.
Supporting changes in the law were dozens of media outlets, including The Associated Press.
“After years of growing government secrecy, today’s vote reaffirms the public’s fundamental right to know,” said Rick Blum of the Sunshine in Government Initiative, which represents 10 media organizations. “This bill makes commonsense changes to help the public know what government is up to.”
“People worldwide have admired America for its openness in government, yet in past years we’ve moved backwards toward secrecy,” said Dave Ledford, president of the Associated Press Managing Editors and editor of The News Journal of Wilmington, Del. “This bill is a positive step forward.”
Last year, the government received 21.4 million requests for information under the 40-year-old law, according to statistics provided by the Justice Department. Of those, agencies processed nearly 21.4 million, nearly 1.5 million more than the previous fiscal year, according to DOJ.
The bill restores a presumption of disclosure standard committing government agencies to releasing requested information unless there is a finding that such disclosure could do harm.
Agencies would be required to meet a 20-day deadline for responding to FOIA requests. Their FOIA offices would have to forward requests for information to the appropriate agency office within 10 days of receiving them.
It they fail to meet the 20-day deadline, agencies would have to refund search and duplication fees for noncommercial requesters. They also would have to explain any redaction by citing the specific exemption under which the blacked-out information qualifies. Nonproprietary information held by government contractors also would be subject to the law.
The legislation also creates a system for the media and public to track the status of their FOIA requests. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has been working with the Justice Department on the legislation and has said he expects the president to sign it.
But the White House wasn’t committing the president to any such action.
Asked whether Bush would sign, veto or ignore the bill, White House spokesman Tony Fratto responded only that the legislation “is certainly an improvement” over previous versions.
There may be a key reason for the non-commitment: Congress is about to recess — but not adjourn — for the year. Under the Constitution, legislation passed by a Congress technically in session that is not signed by the president within 10 days automatically becomes law.
This pocket-veto-in-reverse would give Bush some political cover, allowing the FOIA bill to become law without taking the affirmative step of endorsing it.
The White House, however, wouldn’t say if that is Bush’s plan.
Senate Majority Leader Harry Reid, D-Nev., is planning to keep the Senate officially in session by holding a brief — often only seconds long — “pro forma” session every four business days over the winter break to prevent Bush from making recess appointments not subject to Senate confirmation.
The bill is S. 2488.