03.26.12

Leahy, Cornyn Urge DOJ To Clarify Department’s Position On FOIA Ombudsman

WASHINGTON (Monday, March 26, 2012) – Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) today sent a letter to Attorney General Eric Holder, urging the Department of Justice to clarify its proposed modifications to the Department’s Freedom of Information Act (FOIA) system of records.

The Justice Department recently noticed publicly its proposed modifications to its Privacy Act and Freedom of Information Act system of records.  The modifications included several references to the Office of Information Policy acting in the role of an “ombudsman” in disputes between federal agencies and individuals who submit FOIA requests.  However, legislation authored by Leahy and Cornyn in 2007 – the OPEN Government Act – created the Office of Government Information Services within the National Archives and Records Administration to expressly fulfill the role of FOIA Ombudsman. 

“As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal is inconsistent with of the plain language of that law and with our intent,” wrote Leahy and Cornyn.  “We are also concerned that the proposed modification to the Department’s records system will create unnecessary confusion for agencies and requesters alike, regarding how FOIA disputes are to be resolved within the Federal Government.  We urge the Department to reconsider the proposed modification to its records system.”

Leahy and Cornyn have teamed together in the past to author legislation to make the federal government more open and transparent to the people it represents.  They authored the 2007 OPEN Government Act, made the first major reforms to FOIA in more than a decade.  In 2009, Leahy and Cornyn authored the OPEN FOIA Act, which mandated greater transparency for legislative exemptions to FOIA.  That bill was signed into law in October 2009.  Most recently, they have teamed together to author the Faster FOIA Act.  The legislation has twice passed the Senate this Congress, but has stalled in the House of Representatives.

# # # # #

March 26, 2012

The Honorable Eric H. Holder Jr.

Attorney General

Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC  20530-0001

Dear Attorney General Holder:

We write to express our deep concern with the Department of Justice’s recent public notice of proposed modifications to its Privacy Act and Freedom of Information Act system of records, which makes several references to the Office of Information Policy (OIP) “serving as Ombudsman in disputes between federal agencies and individuals who submit requests under the Freedom of Information Act."   See Privacy Act of 1974; System of Records, 77 Fed. Reg.16066-16069 (March 19, 2012).

In 2007, Congress enacted the OPEN Government Act, which among other things, established the Office of Government Information Services within the National Archives and Records Administration as the office responsible for providing FOIA mediation and Ombudsman services.  Specifically, section 10 of that law states that, “The Office of Government Information Services shall offer mediation services to resolve disputes between persons making [FOIA] requests under this section and administrative agencies as a non-exclusive alternative to litigation.”

As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal is inconsistent with of the plain language of that law and with our intent.  We are also concerned that the proposed modification to the Department’s records system will create unnecessary confusion for agencies and requesters alike, regarding how FOIA disputes are to be resolved within the Federal Government. 

We urge the Department to reconsider the proposed modification to its records system.  We also request that the Department immediately clarify how it interprets the FOIA mediation provisions in the OPEN Government Act and state how the Office of Information Policy will comply with the requirements of this important open government law. 

We look forward to your prompt response. 

Sincerely,

PATRICK LEAHY                                                     JOHN CORNYN

Chairman                                                                    United States Senator

# # # # #

Press Contact

David Carle: 202-224-3693