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Be Patriotic and Pass the OPEN Government Act

This July 4th will mark the 41st anniversary of the passage of the Freedom of Information Act (FOIA).  FOIA is a vital tool in our arsenal for democracy because it allows the press, businesses, and most importantly, the American people, to access government records to find out what our government is doing in our name.  The transparency that FOIA affords is essential to ensure the government is working in the public interest. Time and again, documents obtained through FOIA requests have exposed government waste, abuse and corruption that would otherwise never would have seen the light of day.   

But after forty years, FOIA is in dire need of serious reform.  Today, FOIA backlogs are at an all-time high and Americans who seek information under FOIA are less likely to obtain that information than in any other time in FOIA’s 41 year existence.   According to the National Security Archive, an independent research institute, some outstanding FOIA requests date back to before the collapse of the Soviet Union in 1989.  The Openness Promotes Effectiveness in our National Government Act of 2007 – or the OPEN Government Act (S.849) – would expedite FOIA requests and increase transparency by:

  • Restoring meaningful deadlines for agency action under FOIA;
  • Imposing real consequences on federal agencies for missing statutory deadlines;
  • Clarifying that FOIA applies to agency records held by outside private contractors;
  • Establishing a FOIA hotline service for all federal agencies; and
  • Creating a FOIA Ombudsman as an alternative to litigation.

Despite passage of the OPEN Government Act in the House (H.R. 1309) and overwhelming support for these common-sense reforms from across the political spectrum, the Senate bill has been stopped dead in its tracks by Senator Kyl (R-AZ).  In an ugly irony, Kyl placed a secret hold on the bill.  Although Kyl was unmasked, he and the Republican leadership, continue to stand in the way.  Apparently, Kyl is carrying water for Alberto Gonzales’s Department of Justice (DOJ).  Gonzales particularly objects to the bill’s provision requiring that agencies pay the attorneys’ fees of individual requesters when requesters are forced to go to court to get agencies to comply with FOIA.  But without that provision, there would be no incentive for agencies to release documents before a court orders them to and every incentive to use delay as a tactic to make it costly for the public to use FOIA.  Of course, this is not surprising considering the Attorney General’s disdain for accountability.

Even as we celebrate our freedom, we must defend it.  As we approach July 4th and the 41st anniversary of FOIA, it is time for all of us to stand up and speak out against government secrecy.  Let’s insist that the Senate reaffirm our nation’s commitment to a government by and for the people by passing the OPEN Government Act NOW. It’s the patriotic thing to do.

This post was coauthored by Andrew Bowne, Congress Watch Civil Justice Intern.