President Signs FOIA Amendment;
First FOIA Reform Bill In More Than A Decade Becomes Law
Bill Provides “Common Sense” Solutions for Openness Problems: Penalties for Delays, Tracking Systems for Requests, Ombuds-style Office to Mediate Disputes, Better Agency Reporting
Reforms Recommended by Archive Audits and Testimony
Updated - January 2, 2008
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DC, January 2, 2008 - In one of his last decisions of the year on Monday, December 31, 2007, President Bush signed into law the Freedom of Information Act (FOIA) reform bill (S. 2488). The bill, the OPEN Government Act of 2007, was passed unanimously by both the House and the Senate in December. The new law aims to fix some of the most persistent problems in the FOIA system, including excessive delay, lack of responsiveness, and litigation gamesmanship by federal agencies. Upon the President’s approval, certain provisions in the reform bill went into effect immediately, while others will apply to federal agencies beginning one year after enactment, on December 31, 2008.
The OPEN Government Act mandates tracking numbers for FOIA requests that take longer than 10 days to process to ensure they will no longer fall through the cracks and provides incentives to agencies to avoid litigation and processing delays. For the first time, there will be a penalty for agencies who do not comply with the FOIA’s time limits. When the provision goes into effect, agencies will no longer be permitted to charge requesters search fees (or, in the case of news media and educational requesters, duplication fees) when the agencies miss the 20-day deadline set out in the FOIA. Requesters who are forced to go to court to obtain information under FOIA will be eligible for attorneys’ fees if the agency reverses its position after it is sued.
The new law also requires agencies to report more accurately to Congress and the public on their FOIA programs and creates the Office of Government Information Services at the National Archives to mediate conflicts between agencies and requesters and review agency FOIA performance. The creation of a new ombuds-type office is inspired in part by positive experiences in a number of states with information commissioners and attorney general offices providing mediation services for requesters. In addition, many countries around the world have established information commissioners as part of their FOI regimes, resulting in the successful resolution of many disputes without litigation whether the body is given binding decisionmaking power or purely advisory capacity.
In addition, the law codifies the definition currently used by most courts to determine which requesters are considered representatives of the news media and therefore entitled to reduced processing fees. However, this provision is unlikely to change the status of bloggers and some other freelance journalists who do not qualify for news media treatment under existing law. S. 2488 also includes a provision requiring agencies to inform requesters about the amount of information redacted from documents released under FOIA and the exemption justifying each deletion.
Contrary to some news reports, the new law does not include a provision that was originally contained in legislation introduced in the House to reverse the presumption of secrecy applied by federal agencies pursuant to an October 2001 memorandum issued by Attorney General John Ashcroft. However, the spirit of the new law counters the government’s tendency toward increased secrecy in recent years by providing greater oversight of agency decisions on FOIA requests through better reporting and a new independent body to which requesters can turn when agencies improperly withhold information.
“Our six government-wide audits of FOIA performance show that these bipartisan changes to the Freedom of Information Act are common sense solutions,” remarked Meredith Fuchs, general counsel of the National Security Archive. “This bill establishes tracking systems for FOIA requests like FedEx uses for packages, actually penalizes agencies for the first time for delays that our audits found could reach 20 years, and sets up an office to mediate disputes as an alternative to litigation.”
The OPEN Government Act represents a bipartisan effort that has stretched over several years, spearheaded by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), the original co-sponsors of the OPEN Government Act of 2007, Congressman Henry Waxman (D-CA), and Congressman William Lacy Clay (D-MO). The Senate bill was also co-sponsored by Senator Jon Kyl (R-AZ), who originally opposed the bill and held up its passage. Efforts to amend the FOIA have faced stumbling blocks in part because of strong administration opposition to earlier versions of this FOIA reform bill in both the House and the Senate.
“This is the bill that President Bush wrote an executive order to try to prevent,” said Tom Blanton, director of the Archive, referring to E.O. 13392 (December 14, 2005), which called for a “citizen-centered and results-oriented approach” to FOIA, established Chief FOIA Officers at each of 92 major agencies, and required agencies to evaluate their FOIA programs and draft improvement plans. President Bush signed the bill without comment after unanimous approval in Congress.
“Congress has acted to improve the FOIA for the first time in more than a decade, since the electronic FOIA amendments of 1996, but Congressional and public oversight will be essential for the law’s success,” Blanton noted. “Our Knight Open Government Survey in 2007 found that only one in five federal agencies fully complied with the 1996 law, even after 10 years of implementation.”