FOIA bill passes Congress, awaits president's signature

Dec. 19, 2007  ·   Awaiting only the stroke of President Bush’s pen, the Freedom of Information Act is primed to receive what is arguably its most significant revision in more than 30 years.

Known as the Openness Promotes Effectiveness in our National Government Act – or “OPEN Government Act of 2007” – the bill cleared the House by voice vote on Tuesday after surviving a myriad of changes to the original, most recent FOIA reform effort that started in 2004. The Senate passed the bill unanimously last week, and President Bush now has 10 days, excluding Sundays and holidays, to sign the bill into law.

Among its more potent revisions, the bill makes it more difficult for a federal agency to avoid paying a FOIA requestor’s attorney fees when the requestor successfully challenges a final agency rejection in court. The bill also creates a FOIA ombudsman to mediate disputes between requestors and agency officials, while also reviewing agency FOIA procedures, among other duties.

The attorney fees provision was once a formidable obstacle as the legislation moved forward this fall, as the Senate version of the bill didn’t at first address House “pay-as-you-go” rules, which necessitate that bills requiring new funding include explicit sources for that funding. The version of the bill passed by the House Tuesday satisfied so-called “pay-go” rules by requiring that attorney fee awards be extracted from annually appropriated agency funds.

The ombudsman provision, meanwhile, has the potential to have the most universal effect on the FOIA process, according to Thomas M. Susman, a former congressional counsel who has since specialized in FOIA litigation and other access issues.

Along with providing a standard mechanism for virtually all parties involved in a FOIA dispute – including private citizens, businesses, journalists and FOIA officers – by which to communicate through a common mediator, the ombudsman’s office will be authorized to audit agency FOIA departments and suggest changes.

“It will provide a continuing voice for improvement of the process that hasn’t been there unless Congress has occasionally decided that it wants to put together a little oversight or some amendments,” said Susman, who also noted that the FOIA ombudsman model has worked well in certain states and other countries for years.

Bloggers and freelancers particularly benefit from the bill, which widens the definition of a journalist to potentially allow them to qualify for fee waivers. Another key aspect of the bill calls for strengthening reporting requirements by clarifying more precisely when the 20-day time limit clock begins after a request, and by prohibiting FOIA agencies from charging search and duplication fees to non-commercial requestors when an agency has missed the 20-day deadline.

The FOIA reforms will force private contractors that have been hired by the federal government to maintain public records to disclose those records. A new tracking system for FOIA requests will also be created.

Open government advocates generally applauded the bill’s passage Tuesday, but also lamented some concessions that were made to get the bill through both chambers.

For instance, earlier variations of the bill would have mandated that new statutes intending to exempt certain records from disclosure would have had to have explicitly mentioned FOIA within the statute, thereby alerting open government advocates to the proposed exemption before passage, said Rick Blum, coordinator of the Sunshine in Government Initiative.

But that provision ultimately fell by the wayside, and Blum said open government advocates will simply have to keep their eyes open for such legislation in the future.

“All that means is that media groups and others will have to watch bills closely, very closely, and have a seat at the table during any new efforts to hide information,” he said.

Even with strong support from both houses of Congress, Blum said there has been no indication from the White House as to whether the president plans to sign the bill.

(S. 2488) — Scott Albright

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