Justice role in FOIA gets new scrutiny

For the second time in two weeks, the Justice Department’s role in Freedom of Information Act open government efforts has become a subject of controversy as two senators question whether Justice officials are attempting to usurp duties of the independent FOIA Ombudsman office.

A Justice insider said on March 29 the department is taking actions to address the new concerns.

In the latest developments, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, wrote in a letter to Attorney General Eric Holder on March 26 that they were “very troubled” by Justice’s recent proposal to modify its Privacy Act and FOIA system of records.

The DOJ proposal outlined a future role for DOJ’s Office of Information Policy as a FOIA “ombudsman.”

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The senators said that the DOJ proposed modifications clashed with the duties of the existing independent FOIA Ombudsman office created under a 2007 law they authored. The current ombudsman is the Office of Government Information Services in the National Archives and Records Administration.

“As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal is inconsistent with of the plain language of that law and with our intent,” Leahy and Cornyn wrote.

The senators also said the modifications would cause “unnecessary confusion for agencies and requesters alike, regarding how FOIA disputes are to be resolved within the federal government” and they urged Justice to reconsider.

A Justice official told Federal Computer Week on March 29 that in response to those concerns, the agency has reconsidered the language and would modify the proposal.

The DOJ Office of Information Policy has used the term 'ombudsman' since the 1980s as it handles its official statutory duties responding to inquiries about FOIA compliance, according to the statement released by Tracy Russo, DOJ spokeswoman.

However, in the recent proposal, the term 'ombudsman' has "caused confusion," Russo said. "To alleviate that confusion and to more accurately denote the type of files at issue, the department will amend its notice and refer to the files as 'compliance inquiries," she added.

"We believe that denoting these files as 'compliance inquiries' will be clearer to the public. The work the Office of Information Policy does in responding to these inquiries is for the overall benefit of FOIA administration and is fully in keeping with their statutory responsibilities," the DOJ statement said.

Despite those explanations, there may be some lingering controversy because Justice has been in similar disputes about the FOIA ombudsman role before, as Suzanne Dershowitz, public policy fellow for the Project on Government Oversight, pointed out in a blog entry on March 29.

President Bush attempted to move the FOIA ombudsman role to DOJ in 2007, but Congress objected.

“DOJ’s new proposal isn’t an isolated incident—time and again, DOJ’s actions have been at odds with President Obama’s directives for increased government openness and transparency," Dershowitz wrote in the blog. “This is especially troubling because DOJ is responsible for setting the standards for FOIA compliance throughout the federal government.”

The episode is the second time in recent weeks in which Justice officials have been accused of interfering with other agency efforts on FOIA.

In the previous incident, POGO and several other watchdog groups alleged that Justice officials may have discouraged other federal agencies from participating in a multi-agency FOIA Web portal being spearheaded by the Environmental Protection Agency.

Justice was accused of steering agencies to FOIA.gov, which is a DOJ website, rather than the new multi-agency FOIA Web portal. The DOJ website is primarily informational, while the FOIA Web portal would allow users to submit and track FOIA requests to multiple agencies.

Gina Talamona, a spokeswoman for Justice, said those claims were “wrong” and she issued a statement saying the department “supports” other FOIA efforts. However, she said she could not confirm at this time whether DOJ would participate in the FOIA Web portal.

“POGO thinks FOIA.gov is useful in that it educates the public about FOIA, but is not currently designed as a viable alternative to the centralized multi-agency portal. It is time for DOJ to get on board with a portal that can provide broad public access to any previously released documents and one location for filing and tracking all FOIA requests,” Dershowitz wrote in the blog.