House Panel Holds Hearing on FOIA Ombudsman

On September 17, 2008, the House Information Policy, Census and National Archives Subcommittee held a hearing to inquire into the Bush administration’s failure to implement a law Congress passed last year mandating the creation of a Freedom of Information Act ombudsman office at the National Archives and Records Administration (NARA).

In 2007, President Bush signed into law the “Open Government Act of 2007” (Public Law 110-175). The law requires the establishment of an Office of Government Information Services within the National Archives and Records Administration. Within that office a Freedom of Information Act (FOIA) ombudsman is to be appointed to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies.

Unfortunately, when President Bush sent his proposed FY ’09 budget to Congress, no funding was included for the establishment of the OGIS at NARA. Instead, the President proposed language to move OGIS to the Department of Justice, and to repeal the language in the Open the Government Act placing OGIS at the National Archives.

In his oral testimony, Archivist of the United States Allen Weinstein made it clear that he was appearing before the subcommittee to represent the Administration’s position. He noted that if the current impasse between Congress and the Administration were resolved, that NARA would do all it could to create the office and execute its responsibilities.

Both the House and Senate Appropriations Committees have included $1 million in funding to establish the OGIS at the National Archives in their FY ’09 budget bills. However, since it is likely that Congress will not pass a FY’09 budget until January, creation of the OGIS office within NARA would likely not take place until next spring.

The private sector witnesses on the panel were Tom Blanton, Director of the National Security Archive; Patrice McDermott, Director of and Rick Blum, Coordinator of the Sunshine in Government Initiative. There was a consensus among these witnesses that placing the OGIS at the Department of Justice (DOJ) created an inherent conflict of interest since the DOJ has the responsibility to defend federal agencies in lawsuits brought by FOIA requesters.