SPJ Reading Room
Revised OPEN Government Act: Complete details and analysis
Sens. Patrick Leahy and John Cornyn introduced a revised version of the FOIA reform bill, the OPEN Government Act of 2007, in the Senate on Dec. 6. Below is a quick summary of where we stand on FOIA reform, followed by additional details.
The new FOIA reform bill introduced in the Senate yesterday works out some of the problems with the versions passed by the House and Senate earlier this year. The same bill will be introduced in the House. Though counterintuitive, sending new, identical bills through both houses of Congress was the only way to move ahead quickly without sending the previously-passed versions into Conference, which is often a dangerous prospect. We dont anticipate any opposition in either chamber of Congress, and we expect both the House and Senate to fast-track their respective bills and pass them before Congress recesses for the holidays. Once passed, FOIA reform can be sent to the President for his signature. The President has not threatened a veto.
Taking a step back, the original OPEN Government Act of 2007 (S. 849) passed the Senate by unanimous consent back in August. The House version (H.R. 1309) passed earlier this year. However, the two versions werent identical. To avoid sending the bills into Conference where closed doors prevent us from knowing about or having any influence on what goes on, we looked at several possibilities. Because of Sen. Kyls opposition, it would have been nearly impossible to pass the House version through the Senate. It would have been equally problematic to pass the Senate version through the House because the Senate version lacked the mandatory procedural pay-go provision (which requires any new expenditures created by the bill to be offset in the bill itself, in other words requiring legislators to pay as they go) and incorporated a last-minute drafting error regarding b(3) exemptions that would have made new b(3), or catch-all, exemptions to FOIA easier to draft into new legislation.
After much discussion, the staffs of Sen. Leahy and Sen. Waxman worked together to create this new bill that cures those defects. While it seems counterproductive to start with two new bills in both Houses of Congress, avoiding Conference on the previous two bills will actually save time and ensure that the bill that is signed into law is what we intended. On the Senate side, the bill has the approval of both Sens. Cornyn and, believe it or not, Kyl. Thus, the bill will likely go through the Senate quickly on unanimous consent. We have no reason to believe, with Sen. Kyls blessing, that any Senator will attempt to put an anonymous hold on or otherwise try to block the bill. We also do not anticipate any opposition in the House.
Without opposition, both of these bills should move quickly and may be passed by both the House and the Senate by the time they break for the holidays. As we have a better idea of a timetable, we will let you know. Because both bills are identical, once they are passed by their respective houses of Congress, a final bill can be sent to the President for his signature. Unlike the shield bill, the President has not threatened to veto FOIA reform.
On a related note, negotiations continue on the shield law, the Free Flow of Information Act of 2007. The House version (H.R. 2102) passed by a landslide in October. The Senate version (S. 2035) awaits a full floor vote in the Senate. Sen. Kyl remains an obstacle to passage, but we have been holding back criticism because he and Sen. Schumer continue to work in good faith to resolve Sen. Kyls concerns. We believe any negative press at this point would be detrimental to that effort, but will certainly let you know if negotiations break down and we need to start putting pressure on him. Given the Senates busy calendar before it breaks for the holidays, we dont anticipate that the shield bill will see a floor vote before the new year. However, once Congress returns, we anticipate that Sen. Leahy will make another push to get the bill to the floor in short order.
Because of the positioning of the bills, we recommend that SPJ leaders and members hold off on any publicity for the moment other than general attention endorsing both the FOIA reform and shield bills and pushing for their quick passage.
Presented by Laurie Babinski, Baker & Hostetler LLP
Openness Promotes Effectiveness in our National Government Act of 2007
(OPEN Government Act of 2007) (Cornyn-Leahy)
Section-by-Section Analysis (revisions in italics)
Sec. 1. Short Title. The Open Government Act of 2007.
Sec. 2. Findings. The findings reiterate the intent of Congress upon enacting the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended, and restate FOIAs presumption in favor of disclosure.
Sec. 3. Protection of Fee Status for News Media. This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity. In determining whether to grant a fee waiver, an agency shall consider the prior publication history of the requestor. If the requestor has no prior publication history and no current affiliation with a news organization, the agency shall review the requestors plans for disseminating the requested material and whether those plans include distributing the material to a reasonably broad audience.
Sec. 4. Recovery of Attorney Fees and Litigation Costs. This section, the so-called Buckhannon fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees, if the complainant has obtained relief through a judicial or administrative order or if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party. The section responds to the Supreme Courts ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dept of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the catalyst theory of attorney fee recovery under certain Federal civil rights laws. FOIA requestors have raised concerns that the holding in Buckhannon could be extended to FOIA cases. This section preserves the catalyst theory in FOIA litigation. Adds House pay/go language to require that any attorneys fees be paid from annually appropriated agency funds.
Sec. 5. Disciplinary Actions for Arbitrary and Capricious Rejections of Requests. FOIA currently requires that when a court finds that agency personnel have acted arbitrarily or capriciously with respect to withholding documents, the Office of Special Counsel shall determine whether disciplinary action against the involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). This section of the bill amends FOIA to require the Attorney General to notify the Office of Special Counsel of any such court finding and to report the same to Congress. It further requires the Office of Special Counsel to report annually to Congress on any actions taken by the Special Counsel to investigate cases of this type.
Sec. 6. Time Limits for Agencies to Act on Requests. The section clarifies that the 20-day time limit on responding to a FOIA request commences on the date on which the request is first received by the appropriate agency component. Further, the section states that if the agency fails to respond within the 20-day limit, the agency must refund the FOIA search fees collected in connection with that FOIA request. Adds House pay/go language to require that any attorneys fees be paid from annually appropriated agency funds.
Sec. 7. Individualized Tracking Numbers for Requests and Status Information. Requires agencies to establish tracking systems by assigning a tracking number to each FOIA request; notifying a requestor of the tracking number within ten days of receiving a request; and establishing a telephone or Internet tracking system to allow requestors to easily obtain information on the status of their individual requests, including an estimated date on which the agency will complete action on the request.
Sec. 8. Reporting Requirements. This section adds to current reporting requirements by mandating disclosure of data on the 10 oldest active requests pending at each agency, including the amount of time elapsed since each request was originally filed, and requires additional breakdowns depending on the length of delay. This section further requires agencies to calculate and report on the average response times and range of response times of FOIA requests. (Current requirements mandate reporting on the median response time.) Finally, this section requires reports on the number of fee status requests that are granted and denied and the average number of days for adjudicating fee status determinations by individual agencies. The bill does not include the Specific Citations in Exemptions provision that was set forth in Section 8 of S. 849.
Sec. 9. Openness of Agency Records Maintained by a Private Entity. This section clarifies that agency records kept by private contractors licensed by the government to undertake recordkeeping functions remain subject to FOIA just as if those records were maintained by the relevant government agency.
Sec. 10. Office of Government Services. This section establishes an Office of Government Information Services within the National Archives and Records Administration. Within that office will be appointed a FOIA ombudsman to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies. The establishment of an ombudsman will not impact the ability of requestors to litigate FOIA claims, but rather will serve to alleviate the need for litigation whenever possible.
Sec. 11. Report on Personnel Policies Related to FOIA. This section requires the Office of Personnel Management to examine how FOIA can be better implemented at the agency level, including an assessment of whether FOIA performance should be considered as a factor in personnel performance reviews, whether a job classification series specific to FOIA and the Privacy Act should be considered, and whether FOIA awareness training should be provided to federal employees.