Rules lacking over access to executive branch info

No laws have been established to help Congress obtain internal information, including e-mails, from the executive branch -- and that may not be a bad thing according to some open government advocates and a recent Congressional Research Service report.

But at least one member of Congress says there should be a law forcing executive branch departments to make their electronic records easier to search and retrieve.

An April 23 CRS report obtained by the Federation of American Scientists states, "In general, inter-branch disputes over access to information are political conflicts of the highest order. The federal courts, historically, have been reluctant to review and resolve such 'political questions.'"

But Congress has an arsenal of tools to encourage disclosure or to punish undue secrecy, ranging from unfavorable publicity to adversarial hearings to subpoenas to budget cuts.

"Congress can use its 'power of the purse' to leverage its information access demands," according to the report, which the federation released on Tuesday. "In view of the American separation of powers model of government, such conflicts are neither unexpected nor necessarily destructive."

Rep. Tom Davis of Virginia, the ranking Republican on the House Oversight and Government Reform Committee, said that laws are not likely to enhance the gathering of emails and internal communications sought in congressional investigations, such as those associated with the student loan and U.S. attorney firing scandals.

The committee's request for electronic records regarding conditions at Walter Reed Army Medical Center has hit a wall because the Defense Department estimates it will take many months and several million dollars to crawl through back-up tapes just for an initial cull, he said on Thursday.

"While no statutory inter-branch production scheme is likely to produce much or withstand serious constitutional scrutiny, Congress has the power to make it worth agencies' while -- or make it painful if they don't -- to keep and index key records in a way that is accessible to Congress and the public."

Congress should find a way to make federal departments conform to the same strict corporate records management structure dictated by the 2002 Sarbanes-Oxley corporate accounting law, Davis added.

Steven Aftergood, with the Federation of American Scientists, said legislation is probably too blunt an instrument to resolve the perennial inter-branch conflicts.

He noted that out-of-court negotiation has been successful, but "what is essential, and what has been largely missing in recent years, is a sense of assertiveness on the part of Congress. If you don't ask, you can be sure you will not get what you need."

But Meredith Fuchs with the nonprofit research institute National Security Archive said present procedures for soliciting information from the Bush administration are flawed.

"Think of the scandals of the last few years -- warrantless wiretapping, flawed intelligence about [weapons of mass destruction], the firing of U.S. attorneys for political reasons -- and how important it has been to have a Congress willing to fight for information," she said. "There should be easier ways for members of Congress or the minority to get information than the backlogged Freedom of Information Act system that they sometimes have to rely on."

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