FOIA Post (2008): Congress Passes Amendments to the FOIA

October 17, 2007

FOIA Post

Congress Passes Amendments to the FOIA

For the first time in well over a decade, Congress has enacted amendments to the Freedom of Information Act.  No changes to the Act's nine exemptions were made.  Rather, the amendments address a range of procedural issues impacting FOIA administration, including the codification of several provisions of Executive Order 13,392, "Improving Agency Disclosure of Information."

Entitled the "Openness Promotes Effectiveness in our National Government Act of 2007," or the "OPEN Government Act of 2007," the bill was signed into law by the President on Monday, December 31, 2007.  See, http://www.whitehouse.gov/news/releases/2007/12/20071231-4.html

The amendments consist of ten substantive sections, each of which is summarized and discussed below.  For the complete text of the OPEN Government Act of 2007, see http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2488enr.txt.pdf

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Section 3 amends § 552(a)(4)(A)(ii) of the FOIA by providing a definition of "a representative of the news media" directly in the statute. The provision:

(1) defines the term "news;"
(2) gives examples of news-media entities such as "television or radio stations broadcasting to the public at large;"
(3) recognizes the evolution of "methods of news delivery" through, for example, "electronic dissemination" and notes that news-media entities might make their products available by "free distribution to the general public;" and
(4) includes provisions for a "freelance journalist."

Agencies should consult their existing fee regulations and practices to ensure compliance with this new provision.

Section 4 of the Open Government Act amends 5 U.S.C. § 552(a)(4)(E) by adding two new elements to the attorney fees provision of the FOIA. The FOIA's pre-existing attorney fees provision provides that a court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred" in cases in which the "complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). Section 4 of the Open Government Act first defines the circumstances under which a FOIA plaintiff can be deemed to have "substantially prevailed." It adds a provision that states that for purposes of this subparagraph, a FOIA complainant has "substantially prevailed" if the complainant "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."

Second, section 4 of the Open Government Act also changes the method by which attorney fees and costs are paid to FOIA plaintiffs.  Such amounts will no longer be paid by the Claims and Judgment Fund of the United States Treasury.  Instead these fees and costs will be paid directly by the agency, using funds "appropriated for any authorized purpose."

Section 5 amends 5 U.S.C. § 552(a)(4)(F) by adding reporting requirements for the Attorney General and the Special Counsel. The pre-existing provision of the FOIA provides that where a "court orders the production of any agency records improperly withheld . . . and assesses against the United States reasonable attorney fees and other litigation costs, and . . . additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."

Section 5 of the Open Government Act requires that the Attorney General notify the Special Counsel of each civil action described under this provision and submit a report to Congress on the number of such civil actions in the preceding year. The Special Counsel is also directed to submit a report to Congress "on the actions taken by the Special Counsel" under this provision.

Section 6 of the Open Government Act has two provisions that address time limits for complying with FOIA requests, and the consequences of failing to do so. Significantly, this section does not take effect until one year after the date of enactment and will apply to FOIA requests "filed on or after that effective date." Accordingly, agencies have until December 31, 2008 to take any necessary steps to prepare for the implementation of this Section.

First, section 6(a) of the Open Government Act amends 5 U.S.C. § 552(a)(6)(A) which gives the statutory time period for processing FOIA requests, and includes criteria for when that time period begins to run and when that time period may be suspended or "tolled." Specifically, section 6(a) provides that the statutory time period commences "on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests." This provision addresses the situation where a FOIA request is received by a component of an agency that is designated to receive FOIA requests, but is not the proper component for the request at issue. In such a situation, the component that receives the request in error - provided it is a component of the agency that is designated by the agency's regulations to receive requests - has ten working days within which to forward the FOIA request to the appropriate agency component for processing. Once the FOIA request has been forwarded and received by the appropriate agency component - which must take place within ten working days - the statutory time period to respond to the request commences.

Section 6(a) further provides for those circumstances when an agency may toll the statutory time period.  Specifically, an agency "may make one request to the requester for information and toll" the statutory time period "while it is awaiting such information that it has reasonably requested from the requester."  The agency may also toll the time period "if necessary to clarify with the requester issues regarding fee assessment."  There is no limit given for the number of times an agency may go back to a requester to clarify issues regarding fee assessments - which sometimes may need to be done in stages as the records are being located and processed.  In both situations, section 6(a) specifies that the requester's response to the agency's request "ends the tolling period."

Second, section 6(b) addresses compliance with the FOIA's time limits by amending 5 U.S.C. § 552(a)(4)(A), the provision addressing fees.  Section 6(b) adds a clause to that provision providing that "[a]n agency shall not assess search fees (or in the case of a [favored] requester [i.e., one who qualifies as an educational or noncommercial scientific institution, or as a representative of the news media] duplication fees) . . . if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of (6)(B) and (C), respectively) apply to the processing of the request."

As noted in the language of the new provision, the terms "unusual circumstances" and "exceptional circumstances" are existing terms in the FOIA.  "Unusual circumstances" occur when there is a need to search or collect records from field offices, or other establishments; when there is a need to search for and examine a voluminous amount of records; or when there is a need for consultation with another agency or with more than two components within the same agency.  Unlike "unusual circumstances," "exceptional circumstances" are not affirmatively defined in the FOIA, but the FOIA does provide that "exceptional circumstances" cannot include "a delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests."  5 U.S.C. § 552(a)(6)(C)(ii).  In addition, the statute provides that the "[r]efusal by a person to reasonably modify the scope of a request, or arrange an alternative time frame for processing the request . . . shall be considered as a factor in determining whether exceptional circumstances exist." Id. at § 552(a)(6)(C)(iii).

Section 6(b) therefore precludes an agency from assessing search fees (or in the case of "favored" requesters, duplication fees), if the agency fails to comply with the FOIA's time limits, unless "unusual" or "exceptional" circumstances "apply to the processing of the request."

Finally, section 6(b) amends 5 U.S.C. § 552(a)(6)(B)(ii), which discusses notification to requesters regarding the time limits and the option of arranging an alternative time frame for processing, by directing agencies "[t]o aid the requester" by making "available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency." This provision incorporates an existing aspect of Executive Order 13,392.

The Department of Justice will be providing guidance to agencies in the near future on section 6.

Section 7 amends 5 U.S.C. § 552(a) by requiring agencies to assign a tracking number for each request that will require more than ten days to process.  This section further requires agencies to establish a phone number or an Internet site to enable requesters to inquire about the status of their request.  This section codifies existing requirements set forth in Executive Order 13,392.

Like section 6, this section does not take effect until one year after the date of enactment of the Open Government Act and will apply to requests "filed on or after that effective date."

Section 8 amends 5 U.S.C. § 552(e)(1) by requiring that new statistics and data be included in the FOIA annual reports that agencies are required to submit to the Attorney General.  The FOIA requires that agencies submit the reports to the Attorney General by February 1 of each year and that the reports "cover the preceding fiscal year." 5 U.S.C. § 552(e)(1).  The current fiscal year, Fiscal Year 2008, is already into its second quarter.  Agencies will therefore need to begin collecting the new statistics required by section 8 so that they can be included in the annual report covering this fiscal year, which will be due on February 1, 2009.  The Department of Justice, in conjunction with the Office of Management and Budget (OMB), will issue supplemental guidance on these new reporting requirements in the near future.  This is not unlike what occurred in 1997 when the FOIA was last amended, and when the establishment of new reporting requirements resulted in a partial year report compiled under the pre-existing requirements.

Under section 8, in addition to reporting on the median number of days required to process requests, agencies must now provide the "average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests."

Section 8 also requires agencies to provide an extensive breakdown of the time it takes to respond to requests.  Specifically, agencies are now required to provide "the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days."  All other requests must be grouped by number depending upon whether they were processed between 200 and 300 days; between 300 and 400 days, or greater than 400 days.

Additionally section 8 requires agencies to report "the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information."

Section 8 requires agencies to report their ten oldest pending requests.  (The Department of Justice has already required agencies to provide this information in Section XII of their annual FOIA reports, see FOIA Post, "Supplemental Guidance for Preparation and Submission of Section XII of Agency Fiscal Year 2007 Annual FOIA Reports (posted 10/17/07), and that information will be included in the upcoming annual FOIA reports to be filed for Fiscal Year 2007.)

Section 8 also sets forth a number of new reporting requirements for administrative appeals. Agencies are now required to provide "the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal."  Likewise, agencies are now required to report on their ten oldest pending administrative appeals.

Section 8 also requires agencies to report "the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days."  Similarly, agencies are also required to report "the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations."

Finally, the reporting requirements shall be "expressed in terms of each principal component of the agency and for the agency overall."  The data used to compile the reports must also be made "available electronically to the public upon request."

As mentioned above, the Department of Justice and OMB will issue guidance for agencies to use in compiling these new statistics for their Fiscal Year 2008 annual FOIA reports.  See 5 U.S.C. § 552(e)(4).

Section 9 amends 5 U.S.C. § 552(f), the definitions provision of the FOIA, by including in the definition of "record" any information "maintained for an agency by an entity under Government contract, for the purposes of records management."  This provision makes clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA.

Section 10 of the Open Government Act has four organizational elements.  The first part of section 10 creates a new office, the Office of Government Information Services, within the National Archives and Records Administration.  This new office will have two main functions: (1) to review agency FOIA activities and recommend changes to Congress and the President; and (2) to offer mediation services to FOIA requesters as a "non-exclusive alternative to litigation."  This new office may also "issue advisory opinions if mediation has not resolved the dispute."

Second, section 10 directs the Government Accountability Office (GAO) to conduct audits "on the implementation of this section" and to issue reports.

Third, section 10 codifies many of the key provisions of Executive Order 13,392, which are already in place across the government, and which directly address FOIA administration within each agency.  Specifically, agencies are directed to designate a Chief FOIA Officer, and one or more FOIA Public Liaisons.  Section 10 provides a detailed list of the various duties and responsibilities of the Chief FOIA Officer, who is charged with "agency-wide responsibility for efficient and appropriate compliance" with the FOIA.  The Chief FOIA Officer is required to "monitor implementation" of the FOIA and recommend to the agency head "such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation."  The Chief FOIA Officers are to report to the Attorney General, through the head of the agency.  The Attorney General, in turn, is given authority to direct the Chief FOIA Officers to submit reports on their agency's performance "at such times and in such formats" as he establishes.

Fourth, FOIA Public Liaisons are given the responsibilities of "assisting in reducing delays, increasing transparency" and also "resolving disputes."  Because agencies have already been operating under the requirements of Executive Order 13,392, the bulk of Section 10's requirements are already in place across the government.

Section 11 only applies to the Office of Personnel Management (OPM).  This provision requires OPM to examine personnel policies and report to Congress on whether changes in those policies could be made to provide greater encouragement to, and "enhance the stature of," government employees involved in administering the FOIA.  OPM is directed to file the report no later than one year after the date of enactment of the Open Government Act.

Section 12 amends 5 U.S.C. § 552(b), the provision listing exemptions and generally requiring agencies to indicate directly "on the released portion of the record" the amount of information deleted, by adding the additional requirement that agencies also indicate "the exemption under which the deletion is made."

Conclusion

The Open Government Act addresses a range of administrative and procedural issues affecting FOIA administration. In several instances it codifies what is already existing practice, such as the assigning of tracking numbers contained in section 7, the designation of Chief FOIA Officers and FOIA Public Liaisons set out in section 10, and for some agencies the marking of exemptions at the point of the deletion as described in section 12.

Other provisions establish new reporting requirements, such as the additional statistics required in agency annual FOIA reports under section 8, the specialized reports required of the Attorney General and the Special Counsel concerning disciplinary actions as described in section 5, and the personnel practices report required of OPM by section 11.

Still other provisions change existing practice, such as section 4 which addresses the "substantially prevailed" standard applicable to an award of attorney fees, and section 6 which specifies procedures for the calculation of the FOIA's time periods and limits the assessment of search (or duplication) fees for certain requests not responded to within the applicable time period.

The Department of Justice, in conjunction with OMB, will issue additional guidance to agencies on the provisions of section 6 and 8 in particular, and on other issues arising under the new provisions. Agencies are encouraged to contact OIP, through our FOIA Counselor service, with any questions they have on implementation of these new statutory provisions.   (posted 1/9/2008)

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