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FOIA Facts: The Impact of the OPEN Government Act of 2007

By Scott A. Hodes, Published on January 19, 2008

Now that Congress has passed, and the President has signed the FOIA Amendments known as the OPEN Government Act of 2007, many wonder what the new law does and doesn't do for FOIA requesters. Below, I go through what I consider the major provisions of the new law and how it will or won't affect FOIA requesters.

Initially, Section 3 of the law, which is entitled "Protection of Fee Status for News Media" redefines a representative of the news media as:

...any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term 'news' means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of 'news') who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

In other words, bloggers and websites may now be considered by this definition as members of the news media. However, bloggers and websites, must still show that the information they seek under a FOIA requests fits the definition of news. And some of the language may mean that the bloggers and websites have to be part of an established news site, such as the blogs for Time or Newsweek. Thus, the controversy will now move from are bloggers part of the news media to can independent non-traditional bloggers and websites be considered part of the newsmedia? Agencies will now be updating their regulations to incorporate this new definition, and requesters should keep their eyes on what agencies require as proof in their regulations under this new definition of news media.

Section 4 of the new law concerns the recovery of attorney fees and litigation costs to plaintiff's that prevail in FOIA litigation. It states that "a complainant has substantially prevailed if the complainant has obtained relief through either—(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial."

This changes current case law that basically requires a plaintiff to obtain a court order that gives the plaintiff some type of relief in a FOIA case before attorney fees can be recovered. Under the new law, if an agency changes its position and, for instance, releases previously withheld documents in the course of the litigation, a plaintiff may become eligible for the recovery of attorney fees. What a voluntary or unilateral change in position by the agency will likely become an area litigated in attorney fee recovery cases in the near future.

Further, the new law does not make it so that all FOIA requesters that win their FOIA case get attorney fees. The new law does not change the law that pro se litigants can receive attorney fees. Nor, does it change the requirement that the requester that is eligible for recovery of attorney fees is entitled to the attorney fees. To be entitled to attorney fees, a litigant must be seeking the documents in the public interest, not a commercial or personal interest. So many individuals and business will be unaffected by the new law.

Furthermore, the new law states that attorney fees in FOIA lawsuits may not come from the Claims and Judgment Fund of the United States Treasury but can only be paid from "funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered." This means that an agency that loses a FOIA lawsuit must now pay the fees out of its own pocket. The hope of this limitation is that agencies will now feel the heat on not releasing documents before a matter goes to litigation. I'm not sure that billion dollar agencies will actually care about the amount of fees they may have to pay; I'm of the opinion that these individuals who don't want to release information will not do so even if their agency is penalized. The real way to fix this is to take it out of that person's salary - and that will never happen.

The next major change, which becomes effect in 2009, is that Section 6 specifically states when the 20 day time limit begins and specifically says that agencies that do not comply with the time limits can not assess search fees (and in some cases duplication fees) for requesters. While this gives requesters a lot of free information, I'm not sure it will have the effect Congress wanted. Fees paid to agencies for FOIA processing and duplication go to the Treasury Department; not the agencies itself. Thus, agencies may not really care about having to assess fees. In fact, it may free them from having to account for and collect fees; a job most agency FOIA personnel dread. This section of the new law also requires each agency to appoint a public liaison "who shall assist in the resolution of any dispute between the requester and the agency." A Public liaison is good, but without any real authority, they are limited in the assistance they can give requesters.

Section 7 requires agency to establish in 2009 a "(A) system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and (B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including--(i) the date on which the agency originally received the request; and`(ii) an estimated date on which the agency will complete action on the request.

The ability of FOIA requesters to track their requests is a good thing. However, no funds have been appropriated for this system - and it doesn't really help FOIA requests to get processed any quicker.

Section 9 of the new law specifically states that any information subject to the FOIA that is maintained for an agency by an entity under Government contract is still subject to the FOIA. In other words, the government can't contract out its responsibilities as a way of avoiding the FOIA.

Section 10 establishes the "Office of Government Information Services" within the National Archives and Records Administration. This Office is to act an as ombudsman and specifically "(A) review policies and procedures of administrative agencies under this section;`(B) review compliance with this section by administrative agencies; and`(C) recommend policy changes to Congress and the President to improve the administration of this section.

Additionally, "the Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute.

Establishing an ombudsman in theory is good. In reality, there are numerous problems. Initially, this office is not funded, so NARA will have to come up with funds to live up to the law. Secondly, some of its responsibility clash with historical Department of Justice FOIA responsibility. Thus, these FOIA oversight responsibilities will have to be worked out. Finally, it is not clear that agencies have to participate in the mediation and what, if any, authority the ombudsman actually has in resolving the dispute. Thus, it may only delay a requester's filing of a lawsuit and ultimately getting the relief sought.

This section also specifically orders the Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits. Further, the Chief FOIA Office of an agency, established previously by Presidential Executive Order, is now formally codified by law.

Thus, the new law doesn't fund FOIA agencies (and in some cases may take money away from them). Further, it doesn't limit what agencies can withhold; nor does it establish or change any of the nine FOIA exemptions. This is of course the problem with the new law. Agency backlogs will probably continue to grow and information that should be released to the public will continue to be withheld under the protection of the current FOIA exemptions and caselaw.