Buried deep within an appendix of President Bush's $3.1 trillion budget proposal is an effort by the administration to rewrite the newly minted OPEN Government Act of 2007, which seeks to improve agency implementation of the Freedom of Information Act (FOIA). Despite clear language in the OPEN Government Act requiring that a new Office of Government Information be established at the National Archives and Records Administration (NARA), the Bush administration has proposed shifting the new office to the Department of Justice (DOJ). The OGIS was created to oversee disputes over FOIA. The new ombudsman at NARA would monitor the way DOJ implements FOIA and could help avoid unnecessary litigation by giving the public an alternative method for resolving complaints with agencies.

The proposed change is hidden deep in the budget appendix under Department of Commerce, on page 239 of the 1,314-page appendix. Only those with a careful eye and good knowledge of the U.S. Code designations would notice it.

The budget proposes:

"The Department of Justice shall carry out the responsibilities of the office established in 5 U.S.C. 552(h), from amounts made available in the Department of Justice appropriation for 'General Administration Salaries and Expenses'. In addition, subsection (h) of section 552 of title 5, United States Code, is hereby repealed, and subsections (i) through (l) are redesignated as (h) through (k)."

Sen. Patrick Leahy (D-VT), one of the original cosponsors of the OPEN Government Act, made a floor speech the week of Jan. 28, before the budget was released, strongly opposing the Bush administration's plan to shift OGIS to another agency. "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of American's FOIA requests," Leahy stated in the speech. Sen. John Cornyn (R-TX), the other co-sponsor of the new law, also opposed the funding allocation that would place the FOIA ombudsman in DOJ.

The OPEN Government Act specified NARA as the location for OGIS in an effort to establish the office at an objective agency with a good reputation for records management. Since DOJ defends agencies accused of inappropriately withholding documents, the Department is viewed as having a bias toward federal agencies. Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.

Advocates for government transparency who worked hard supporting the legislation through several years and difficult negotiations are upset with the proposed shift and are organizing to oppose the move.

The president's budget proposal is not a legally binding document and instead is merely used as a guide by congressional committees in planning the various appropriations bills that allocate federal funds to government agencies and programs. The administration hopes that the language that shifts the location of OGIS will be incorporated into the appropriate bill and passed by Congress. Until that happens, the legal requirement to establish OGIS at the National Archives remains in place. Of course, if no funds are allocated to NARA to create and operate the new office, it is unlikely that the agency will be able to accomplish much.

Implementation of a law can be a complex and problematic process during which the final programs and policy can wind up looking fairly different from what lawmakers intended. However, it is rare that implementation would include breaking from clear instructions contained within unambiguous legislative language.