President George W Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart Congress desire to lift the veil of secrecy that has shrouded the US government for the past seven years.

In August 2007, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The new office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way the Department of Justice (DOJ) implements that law.

President Bush signed the measure in December 2007. But when he submitted his 3.1 trillion dollar budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce - on page 239 of the 1,314-page document - and shifted the new office to Department of Justice (DOJ) jurisdiction.

“The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president’s attempt to alter implementation of a law as it was laid out by Congress,” according to Sean Moulton, Director of Federal Information Policy for OMB [Office of Management and Budget] Watch, a not-for-profit government watchdog group.Backlogs in processing requests remain significant, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA. One FOIA request has now been pending for more than 20 years, according to the NSA.

OMB Watch’s Moulton takes a different view. He said, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice’s traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”“The office’s direct clout with agencies will derive from the level of support the administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency.”

But, both agree, “It is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.” Both also point out that the president’s budget action “is not a done deal.” “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice,” Aftergood says.

Moulton agrees. “Congress can, and in many ways always does, deviate from the President’s proposed budget. The question is whether Congress will allocate money to the National Archives for the office even though the President didn’t request it,” he said. — IPS