Moving and shaking for OPEN Government

Here's a summary of a recent meeting focused on the reintroduction of the OPEN Government Act to the new Congress. This summary was filed by Laurie A. Babinski of SPJ's law firm, Baker Hostetler in Washington, D.C.:

In the past few weeks, members of the Sunshine in Government Initiative, including SPJ, have been working to make revisions to the bill so that it can be reintroduced quickly in the 110th Congress.

With the three changes we believe are within our reach (ombudsman, attorneys' fees and reporting requirements), members of the coalition met with Lydia Grigsby, a staff member for Sen. Patrick Leahy (D-Vt.), who is incoming chairman of the Senate Judiciary Committee, and with Reed O'Connor of Sen. John Cornyn's (R-Tex.) staff.

The meeting was a success, largely because we discovered that both Leahy and Cornyn are on the same page as we are regarding the bill. Both agree with members of the coalition that the new bill should be as close to the OPEN Government Act as possible for the best chance at passage. Leahy and Cornyn have coordinated with members of the House, including Rep. Henry Waxman (D-Calif.), in an attempt to keep both the House and Senate versions of the bill identical.

Both are working to make some of the same changes (and thus coming up against some of the same difficulties) that we are proposing. Finally, both agree with the coalition that the new bill should be introduced in conjunction with Sunshine Week in March.

The main purpose of the meeting was to highlight the three key changes we would like to see made before the bill is reintroduced.

The first issue involves clarifying the ombudsman provision. The coalition attempted to clarify for Grigsby and Reed what we believe the role of the ombudsman should be and where the ombudsman would be placed within the government.

First, we suggested that the role of an ombudsman be both to issue informal oral opinions that would provide guidance to requestors and to write formal, non-binding opinions that could later be used as an irrebuttable presumption that attorneys' fees should be paid if the case goes to court. We stressed that an ombudsman would in no way affect a requestor's right to go to court.

The coalition has suggested placing an ombudsman in each agency under the supervision of the Inspector General, a model that has worked well in some states. However, the coalition will continue to examine alternatives, including placing the ombudsman under the auspices of the Office of Management and Budget, General Accounting Office, National Archives, Office of Governmental Ethics, Administrative Conference or under a separate office.

We also could explore a suggestion from Grigsby that the bill create a position in each agency that would be similar to an Administrative Law Judge or actually place the responsibility with an ALJ already in the agency.

Grigsby and Reed agreed with our proposals for a help desk to assist requestors -- as well as a pilot program to test how the role of the ombudsman would actually function wherever it ends up.

The second and third issues discussed were our recommendations for fixing both the attorneys' fees and reporting requirements provisions of the bill. Our changes to the attorneys' fees provision center on making it more possible to receive attorneys' fees in court even where litigation doesn't end in a court order to turn over documents (such as if parties settle or the government decides to turn over a large portion of the request last minute).

Changes to the reporting provision include the requirement that the agencies maintain a database of FOIA requests and make the raw statistical information from that database publicly available.

The coalition needs to continually stress that the bill, with the changes we've recommended, is worth fighting for. Once it gets through both houses of Congress, we don't anticipate that the bill with changes as drafted would be a likely candidate for a veto.

In the next week or two, the coalition plans to meet again with Waxman's staff to follow up and present the same set of changes. Once the full list of new members to the House Government Reform and Oversight Committee is released (as well as the new information subcommittee), the coalition will continue to meet with key players with hopes of smoothing the road for passage.