Andrew Zajac
Nearly lost in the flood of presidential primary reportage over the past week was news that President Bush signed into law legislation overhauling the federal Freedom of Information Act.

The federal FOIA law -- and companion open records statutes in state government -- are critical tools for reporters and ordinary citizens to ferret out public information that might otherwise stay hidden.

But in recent years, the federal FOIA has come under increasing criticism because of slowing response times.

The "Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007, aims to address that sluggishness by imposing a process for prodding agencies to respond more quickly to records requests.

The non-profit National Security Archive, which collects and publishes declassified documents obtained via FOIA, issued a statement hailing the new law for providing bi-partisan common sense solutions.

"This bill establishes tracking systems for FOIA requests like FedEx uses for packages, actually penalizes agencies for the first time for delays that our audits found could reach 20 years, and sets up an office to mediate disputes as an alternative to litigation," said Meredith Fuchs, NSA's general counsel.

"This is the bill that President Bush wrote an executive order to try to prevent," said Tom Blanton, director of the Archive, referring to E.O. 13392 (December 14, 2005), which called for a "citizen-centered and results-oriented approach" to FOIA, established Chief FOIA Officers at each of 92 major agencies, and required agencies to evaluate their FOIA programs and draft improvement plans. President Bush signed the bill without comment after unanimous approval in Congress.

A less sanguine take came from Steven Aftergood, of the Federation of American Scientists, which also deals extensively in material obtained via FOIA.

Aftergood conceded that the "new law makes several constructive procedural changes in the FOIA to encourage faster agency response times" but notes that "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," Aftergood wrote in a lengthy analysis.

"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," Aftergood said.

"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," " Aftergood concluded.