Lame Duck Makes Lots of Noise

In an obscure section (p. 239, Sec. 519 of the Commerce Department Appendix) of President Bush's FY09 budget, funds for the newly created Office of Government Information Services (OGIS) have been shifted from the National Archives to the Department of Justice.  In fact, the President went so far as to repeal a portion of a law he had just signed:

SEC. 519. The Department of Justice shall carry out the responsibilities of the office established in 5 U.S.C. 552(h), from amounts made available in the Department of Justice appropriation for "General Administration Salaries and Expenses". In addition, subsection (h) of section 552 of title 5, United States Code, is hereby repealed, and subsections (i) through (l) are redesignated as (h) through (k). (Commerce, Justice, Science, and Related Agencies Appropriations Act, 2008.)

In an effort to rationalize the sneaky addition to the FY09 budget, the White House stated that "most of the proposed functions for the office are already performed by the Justice Department and that the National Archives has limited experience dealing with intricate legal issues relating to Freedom of Information Act requests."

The irony of this shift is that the President is using closed door tactics to undo part of the OPEN Government Act that he had signed in December 2007.  OGIS is intended to serve as the Freedom of Information Act (FOIA) oversight office.  One of the most important aspects of this newly created office is to "offer mediation services to resolve disputes between persons making requests under this section and administrative agencies."  The National Archives was chosen as a home for the oversight office because of its ability to provide impartial mediation, rather than DOJ, which defends agencies in FOIA lawsuits.

Open government advocates, led by Senator Leahy, were not pleased with the President’s attempt to undercut the OPEN Government Act.  POGO has long supported the efforts of Senators Leahy and Cornyn, and we provided them with our 2005 Good Government Award for their bi-partisan work on improving FOIA.

Another issue to consider is the President's efforts to create laws rather than enforce them.  Repealing laws and attempting to void them via Presidential Signing Statement are becoming all too common and are challenging the checks and balances governed by the Constitution.

-- Jake Wiens and Scott Amey

Comments

[Bill Harshaw]

I think you are mistaken in the status--the President's Budget is only a proposal, and the appendix contains the draft language:

"It includes for each agency: the proposed text of appropriations language, budget schedules for each account, new legislative proposals, explanations of the work to be performed and the funds needed, and proposed general provisions applicable to the appropriations of entire agencies or group of agencies. Information is also provided on certain activities whose outlays are not part of the budget totals."
(http://www.whitehouse.gov/omb/budget/fy2009/)

It remains for Congress to work its will. The President cannot create a law.