Friday, January 04, 2008

How not to let you in on a little secret




Even ChinaDaily is carrying the story, along with this photo, that President Bush has signed a new
Government Transparency Bill that is
aimed at giving the public and the media greater access to information about what the government is doing. The new law toughens the Freedom of Information Act, the first such makeover to the signature public-access law in a decade. It amounts to a congressional pushback against the Bush administration's movement to greater secrecy since the terrorist attacks of 2001.

The law also 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.

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.

Dozens of media outlets, including The Associated Press, supported the legislation.

Well, not so fast there, Pilgrim.

Steven Aftergood (a name you just have to trust), blogging in Secrecy News from the Federation of American Scientists Project on Government Secrecy, suggests the government is not lifting exactly all of its seven veils:
The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

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.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a "presumption of openness," that provision was removed from the bill prior to passage.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."

Hattip to Kim Zetter, writing in Wired.

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