President’s open-records order: working or worse?

Thursday, March 16, 2006

ARLINGTON, Va. — Participants in the National FOI Day conference panel on “FOIA’s Past, Present and Future” agreed on one thing today: The president’s executive order directing agencies to be more efficient in responding to records requests could have a great impact on the state of freedom of information.

Whether that impact will be positive or negative, however, is where the panelists diverged.

In asking the panelists to discuss the executive order, moderator Tom Blanton of the National Security Archive cited Sen. John Cornyn’s response to the order’s signing: “Well, it’s a small step in the right direction.” Cornyn, R-Texas, last year’s FOI Day keynote speaker, has sponsored legislation that, as Blanton described it, “would go a fair amount further” than Bush’s order.

In light of Cornyn’s response, Blanton asked the panel: “Was [the executive order] really a preemptive strike … on possible real reform to freedom of information, or what?”

Justice Department official Daniel Metcalfe, who has worked with FOIA for nearly 30 of its 40 years of existence, said the order had already had a positive effect on the roughly 89 federal agencies.

Each agency has named a chief FOIA officer and is working hard to meet a June 14 deadline to conduct a review and create a plan for how FOIA processes can be improved, said Metcalfe, who is the director of the DOJ’s Office of Information and Privacy.

The Justice Department has hosted a series of meetings to help agencies develop ideas for meeting the requirements set by the executive order, Metcalfe said. And, he said, the department is committed to making sure the process of how the agencies work to become more open is open itself.

“We want to see exactly what agencies come up with,” Metcalfe said. “And we will because everything will be posted online, and we will have, at that point, what I will call transparency about transparency.”

Panelist Tom Susman, however, was not so optimistic. Susman described the executive order as “good, bad and ugly.”

The ugly part, he said, is that the order seems to elevate “form over substance.” Susman said he was willing to see what agencies do to meet the June 14 deadline, but was “doubtful.”

“So far, we’ve had lots of meetings — I wonder who’s getting freedom-of-information requests processed while all those officials are doing meetings,” Susman said.

The bad part is that the order seems to have been “intended to preempt Congress, to try to suggest that the administration is doing something and distract attention from what a Republican senator (Cornyn) has been trying to do in pushing legislation that would do an awful lot to advance the cause of freedom of information,” he said.

But Susman said he didn’t want to overlook the good part. The order, he said, is a positive message from an administration that has had an otherwise negative response in regard to openness.

“Think back to the first we heard out of the (Bush) White House relating to freedom of information. It was the president’s conversation with … ASNE saying [he] would never use e-mail because that would be subject to the Freedom of Information Act. Betraying from day one his lack of familiarity with the law and his hostility to the law,” Susman said.

“We had a tone in this government, in this administration, a tone set that was hostile to freedom of information,” said Susman. “I think this executive order is a change of tune. It will be really quite good if agency officials said the White House is singing a new tune, is beginning to tell us they care about freedom of information. That would be very good.”

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