Watchdog criticizes distance between open government policy and reality

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Obama administration criticism of the open government watchdog community overlooks the gap between good policy and implementation, said Nate Jones while speaking earlier this month on a Freedom of Information Act panel at American University.

Jones is the freedom of information coordinator at the National Security Archive at George Washington University--precisely one of a handful of kvetchy Washington, D.C.-based transparency advocacy organizations.

White House and other officials say, "'You open government folks never give us any credit. We put our neck out and work so hard to write these really good regulations and these really good memos, and these really good ideas'--and they do," Jones said Jan. 17.

But "the reason they don't get any credit...is because they put their effort into crafting the regs, but they don't put any effort into forcing the behemoth of government into enforcing them," he said.

The archive in December published the latest of its annual reviews of agency compliance with the latest in FOIA law and administration policy, finding that 62 of 99 agencies have not updated their internal FOIA regulations since Attorney General Eric Holder issued in March 2009 a memo (.pdf) requiring agencies to adopt a "presumption of openness" in response to FOIA requests.

Fifty-six agencies hadn't updated their regulations to include requirements of the OPEN Government Act of 2007, which requires agencies to reform their fee structures and undertake other changes.

The internal regulations matter because they guide how agency FOIA shops respond to requests, and the Justice Department Office of Information Policy has demonstrated a willingness to defend in court agency actions even when plainly in violation of current law, Jones said.

He cited the case of Bensman v. National Park Service, in which plaintiff Jim Bensman sued the Interior Department for improperly denying him a fee waiver under the OPEN Government Act. The law mostly prevents agencies from assessing search fees on requestors when agencies exceed the statutory processing time period (typically 20 working days). In 2011, the district court for the District of Columbia ruled (.pdf) in Bensman's favor.

The DOJ Office of Information Policy defended Interior "to the bitter end," Jones said. "I don't know why they did it. It was clear as day that [the National Park Service] was acting against the 2007 law."

For more:
- watch an archived webcast of the panel Jones spoke on Jan. 17 at American University in Washington, D.C.

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