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Wednesday, May 11, 2005

Justice Department Official Punts on FOIA Reform Support at House Hearing

Some fireworks were expected but none developed when a top Justice Department official testified for nearly an hour today before a House subcommittee considering the status of the federal Freedom of Information Act.

Deputy Assistant Attorney General Carl Nichols was expected to critique the proposed Open Government Act of 2005 while testifying as a member of the first of two panels appearing before the House Government Reform Committee Subcommittee on Government Management, Finance and Accountability. Rep. Todd Platts, R-PA, is chairman of the subcommittee.

The Open Government Act of 2005 was introduced in February by Sen. John Cornyn, R-TX, and Sen. Pat Leahy, D-VT, to make a number of much needed improvements to the FOIA, including perhaps most notably some actual consequences to federal employees and agencies that violate the law. A companion version of the Cornyn-Leahy proposal was introduced in the House by Rep. Lamar Smith, R-TX.

Cornyn said Attorney General Albert Gonzalez told him his confirmation hearing that he was willing to work with Cornyn and others in Congress to reform and improve the FOIA, so there was much surprise among reform advocates earlier this week when word spread that Justice had allegedly decided to oppose Cornyn-Leahy and would say so at Platt's hearing today.

Nichols was anything but critical of Cornyn-Leahy during the hearing, however, and in fact had little beyond platitudes about good government and transparency to offer the panel. On virtually every question of substance, Nichols had to defer to subordinates who attended the hearing with him.

Perhaps what was most revealing about Nichols appearance was the number of basic questions about FOIA administration and background for which he had no answers. For example, pressed by Platt for the number of federal employees who have been disciplined or terminated for violating the FOIA, Nichols was unable to say and had to resort to a promise to provide the requested information after the hearing. The answer is no federal employee has ever been fired for violating the FOIA and it is highly unlikely that any have ever been disciplined for doing so. It will be interesting to see how Nichols responds to the panel in his subsequent offering.

Asked by Rep. Carolyn Maloney, D-NY, how often administrative appeals of a federal agency's redactions of information from requested documents are reversed, Nichols again had to promise to provide an answer following the hearing.

And pressed by Rep. Edolphus Towns, D-NY, on what Justice actually does to insure federal agencies comply with the FOIA, Nichols steadfastly avoided answering directly, noting only that Justice provides daily "guidance" to agencies on FOIA, maintains a web site with FOIA information and publishes a thick hard-copy book of guidance. It was painfully obvious to those in the hearing room that if Justice does anything else to encourage compliance, Nichols didn't know it and neither did any of his associates.

A close reading of Nichols' formal testimony does provide some clues about how Justice views the FOIA reform effort and those clues aren't encouraging. I'll have any additional post describing those clues in more detail later. For now, suffice it to say that if Congress does reform the FOIA in 2005 it won't be with help from the Bush Justice Department.