Landmark Legislation Strengthens Federal Freedom of Information Act
 
March 26, 2008
 
Christopher Nugent - Washington

President Bush has signed into law a set of amendments to the federal Freedom of Information Act (FOIA) that substantially strengthens the public’s right to recover records and attorney’s fees in litigation against the government.

The Openness Promotes Effectiveness in our National Government Act of 2007, or OPEN Government Act of 2007, is a product of extensive bicameral and bipartisan negotiations in Congress. It provides for a number of substantive and procedural reforms to FOIA to facilitate governmental accountability and openness in the processing of FOIA requests and enhancing the rights of people who sue under FOIA. For example, the law provides:

• Expanded definition of “news media.” Section 3 of the Act, titled “Protection of Fee Status for News Media,” expands the definition for requesters who qualify for an exemption of fees under FOIA. “News media” under the law now include representatives of alternative news media, including freelance journalists, bloggers and authors for Web sites.
• Expanded recovery of attorneys’ fees and litigation costs. Section 4 of the Act, titled “Recovery of Attorney Fees and Litigation Costs,” a FOIA complainant has substantially prevailed in a legal proceeding to compel disclosure – and therefore may recover attorneys’ fees and litigation costs – if he or she obtained relief through either “(I) a judicial order or an enforcement 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.” According to the bill’s authors and legislative history, Section 4 represents a fundamental fix to Buckhannon Board of Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 498 (2001) by restoring the legal doctrine known as the “catalyst theory.” Under it, a plaintiff may now prevail in a FOIA case when the agency unilaterally decides to provide the requested documents during the course of FOIA litigation in the absence of a judicial order, so long as the court finds the FOIA claim is “not insubstantial.”
• Accelerated time limitations and sanctions. Section 6 of the Act, titled “Time Limits for Agencies to Act on Requests,” now provides a maximum 20-day processing period for FOIA requests, beginning on the date on which the request is first received by the appropriate component of the agency, but in any event not later than 10 days after the request is first received by any component that the agency designates in its regulations. If the agency fails to comply, the Act provides that the agency cannot assess search or copying fees, except when the delay was caused by the agency’s reasonable need to seek clarification from the requester concerning the nature of the FOIA request.
• Individualized tracking of FOIA requests. Section 7 of the Act, titled “Individualized Tracking Numbers for Requests and Status Information,” requires agencies to provide an individualized tracking number for each FOIA request with status information accessible by phone or the Internet.
• Electronic records and access to private entity data. Section 9 of the Act, titled “Openness of Agency Records Maintained by a Private Entity,” now subjects all records – including electronic records – to FOIA, including those held by a private entity under government contract.
• Enhanced quality assurance. Section 10 of the Act, titled “Office of Government Information Services,” requires that agencies designate a FOIA Public Liaison Officer to serve as an official to whom a FOIA request can raise concerns about services from the FOIA Requester Center in order to reduce delay, increase transparency and understanding of the status of requests and mediate disputes over the requests.
• Claimed exemptions under FOIA. Section 12 of the Act, titled “Requirement to Describe Exemptions Authorizing Deletions of Materials Provided for FOIA,” provides new requirements for agencies to specifically describe exemptions authorizing deletions of material provided under FOIA on the released portion of the record.
  While the legislation does not alter the regime of the substantive legal exemptions for disclosure under FOIA, the Act clearly provides for far-reaching meaningful reform to facilitate government accountability and openness in FOIA processing and to eliminate many obstacles to government transparency under the prior law.

For more information, email Christopher Nugent at christopher.nugent@hklaw.com or call toll free, 1.888.688.8500.