FOIA on the block

A Legal View: The public availability of information is being reduced, though more carelessly than intentionally

Under basic constitutional concepts of "due process," American citizens who are potentially affected by decisions of their government have a right to notice and an opportunity to comment on those decisions. Consistent with this, Congress passed the Freedom of Information Act in 1966 in order to strengthen citizens' rights to obtain information from government agencies, subject only to certain narrowly tailored exceptions.

In 1996, Congress passed the Electronic Freedom of Information Act (EFOIA) in order to reinforce those rules and to require agencies to provide the public with electronic access to most types of information without having to ask. This includes:

* All orders and final opinions an agency issues.

* All statements of policy and interpretations that an agency adopts.

* All administrative staff manuals and instructions to staff that may affect a member of the public.

* All records released to any person that are likely to be requested by others.

Following the tragic events of Sept. 11, 2001, and the start of the war on terrorism, government agencies naturally have looked harder at information they make public to ensure that sensitive defense-related data does not get out. However, the Bush administration has repeatedly stated that it does not want to curtail the release of information that is clearly public in nature.

Unfortunately, the public availability of such information is being reduced, although it sometimes appears to be the result of carelessness more than intent. Ironically, one of the most egregious examples is in the U.S. Office of Government Ethics (USOGE).

In September, USOGE announced that it was replacing a long-standing, publicly available electronic newsletter, the "Government Ethics Newsgram," with a new electronic "Ethics News and Information E-mail List Service," which would be available only to government employees. This is the opposite of what should be happening. Under the EFOIA, agencies are supposed to make more information electronically available to the public, not less.

Moreover, USOGE's announcement closely follows a separate notice in the Federal Register that the office was soliciting comments on possible amendments to the government's conflicts of interest rules.

What was startling about this notice was the contrast between it and a set of much more specific questions contained in a letter from the USOGE to the American Bar Association requesting its views on the same subject.

There is an inconsistency between that behavior and the congressional mandate that agencies should publicly disseminate general information as widely as possible.

The administration must ensure that federal agencies comply with the statutory mandate to make information readily available to the public as far as practicable.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

RELATED INFO

Materials discussed in this column include: the Freedom of Information Act, 5 U.S.C. 552; U.S. Office of Government Ethics, "What's New in Ethics 2002"; Office of Government Ethics, Notice of Review of Criminal Conflict of Interest Statutes, 67 Fed. Reg. 43321 (June 27, 2002).

See also General Accounting Office, "Information Management, Update on Implementation of the 1996 Electronic Freedom of Information Act Amendments," GAO-02-493 (August 2002).

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