Justice office foils Clinton's FOIA policies

For any administration, getting agencies to march to the same beat is not a trivial
concern. For example, the Clinton administration has been very supportive of computer
networks and has been good about making government information available on the Internet.
The policy direction has clearly and consistently favored citizen access to data,
computers and computer networks.


But the Justice Department has its own views. In particular, the department's Office of
Information and Privacy (OIP) seems not to care about the Clinton administration's support
for openness. In arguing Freedom of Information Act (FOIA) cases in court, OIP will take
any position that will improve its chances of winning a case. This happens even when an
argument is contrary to Office of Management and Budget policies, to positions that
Justice Department officials have stated elsewhere, or to good public policy.


An illustrative case is Delorme Publishing Co. vs. the National Oceanographic and
Atmospheric Administration
, decided March 12 by the U.S. District Court of Maine. The
records in dispute were nautical charts that could be read by computer. Like all computer
records, they are more valuable because they're more efficient and easier to use than
paper records.


Many FOIA issues are raised in this case, but I will focus on one to make a point about
OIP. When records exist in two formats (e.g., paper and electronic files), can a FOIA
requester choose the format?


In a 1984 case, Dismukes vs. Interiorinlvolving a dispute over the release of
computer or microfiche records, a U.S. District Court held that the agency and not the
requester could select the format of the disclosure. For spite, the agency had given out
microfiche, which was useless to the requester. The case arose in the heyday of the Reagan
administration, which was doing its best to fight every disclosure and undermine the FOIA.


From a policy perspective, the proper result is clear. If information is publicly
available, then the government should try to satisfy a requester's reasonable needs for an
available format. The Dismukes case is a terrible one, and it has been trashed routinely
by policy-makers everywhere.


Other courts usually distinguish or ignore Dismukes, but the decision has never been
expressly overruled. Even representatives of the Justice Department have admitted in
legislative discussions that the case is bad policy and bad law.


So what happened in the nautical records case? You guessed it. OIP argued that Dismukes
still is good law and that the NOAA case should be decided by giving the government and
not the requester the choice of format.


It is an outrage that OIP made this argument. We are too far into the computer age for
any government lawyer to suggest that handing out paper records is acceptable when
computer records are available and desired. Nevertheless, OIP continues to work against
access in this fashion when there are plenty of other arguments available.


What about administration policy? After all, OMB Circular A-130 on the management of
information resources expressly supports making government information available in
electronic formats. In a footnote, OIP dismissed this important policy document as
internal managerial guidance. So much for Clinton administration initiatives.


OIP even will defend agencies' violations of OMB policy! It turned out the government
won the Delorme case, and the court never got to rule on the choice of format issue. It is
still a troubling decision for other reasons, but that is not the point here. OIP
demonstrated that it is nothing more than a bunch of out-of-control, say-anything
litigators.


I offer some modest solutions. First, we need new leadership at OIP. The people in
charge are the same ones who ran the Reagan administration's anti-FOIA campaign. It is
time for a change.


Second, OIP should be stripped of all policy functions. Policy control over FOIA cases
should be transferred to OMB. Litigators should not be allowed to make policy decisions,
let alone take positions in court that are contrary to administration positions.


Finally, OMB and the attorney general should immediately put a stop to this particular
FOIA foolishness. They should issue a statement that Dismukes is bad law and bad policy
and that the government will not support the decision. The next OIP lawyer who argues that
the government can give out paper instead of electronic files should be sent to collect
defaulted student loans.


Robert Gellman, former chief counsel to the House Government Operations
Subcommittee on Information, Justice, Transportation and Agriculture, is a Washington
privacy and information policy consultant. His e-mail address is rgellman@cais.com.
 



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