FOIAgeddaboudit! Presumed openness still gone

The U.S. Freedom of Information Act (FOIA) has been on the books since 1966 to establish the public’s right to get government documents. In that time its powers have repeatedly waxed and waned. On New Year’s Eve, President Bush signed a law that amended FOIA.  An unbylined Associated Press article that ran in USA Today said:

“The new law toughens the Freedom of Information Act . . . It amounts to a congressional pushback against the Bush administration’s movement to greater secrecy since the terrorist attacks of 2001. . . . The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.” (emphasis added)

Writing in Secrecy News, a blog published by the Federation of American Scientists, Steven Aftergood said the part about reversing the Ashcroft order is wrong. The original House version of the bill would have repealed the Ashcroft policy and established a “presumption of openness” but that provision was removed prior to passage. To proves his case Aftergood quotes from the Congressional Record: 

“Rep. Henry Waxman (D-CA) noted with regret . . .  that the final legislation ‘does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret. . . . (while) from an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that ‘the provision repealing the so-called Ashcroft memorandum was eliminated.” (Both quotes are from the same Congressional Record entry; use “find” to locate them.)

On January 4 the Associated Press issued a clarification that said in part:

“The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act . . . Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.”

The original AP story on the signing of the bill said that “Dozens of media outlets, including The Associated Press, supported the legislation.”

Did these supporters read the legislation? I ask because media organizations have also supported the so-called reporter’s shield law and I wonder why. It does not contain the word shield. How can there be a shield bill without a shield? See for yourself. Use the Library of Congress to search for the following title: “The Free Flow of Information Act of 2007.” I not only read the text, I copied it into a word processor and searched for “shield.” It’s not there.

The FOIA clarification and the unshield law both touch on professional concerns of journalists. If we can’t get it right about issues that directly affect our own profession, what does that say to the public about the overall quality of our work?