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Home > Publications > Quill > FOI: New FOIA amendments speed records requests


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Friday, August 1, 2008
FOI: New FOIA amendments speed records requests

By David Cullier

Finally, some improvements to the federal Freedom of Information Act.

On Dec. 31, President Bush signed into law the OPEN Government Act of 2007, which was the biggest overhaul of FOIA since 1996.

While on paper the amendments improve access to federal records, the law’s effectiveness is so far unknown, according to SPJ attorney Laurie Babinski. I also haven’t heard much from journalists on whether the changes have made a difference.

We hope access will improve. An added bonus of the new fixes is that they could bolster access at the state and local level, at least indirectly. Sometimes when state public record laws don’t address a specific issue, courts look to FOIA for guidance.

So arm yourself with knowledge of the new provisions to help you get the federal documents you need:

Fee waivers for freelancers: Journalists who aren’t affiliated with a recognized news media entity are eligible for fee waivers, just like journalists working at newspapers or television stations. It’s unclear whether a blogger would be covered, but he or she probably would be if he or she “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.”

No more cut and run: Sometimes agencies deny a request and force a person to sue, hoping the person can’t afford to go to court. If the person does hire an attorney and files suit, the agency then hands over the records and walks away. Since the case was never litigated, the agency doesn’t have to pay the requester’s attorney fees. The amendment fixes that. A requester can get attorney fees and litigation expenses from the agency, provided the person substantially prevails or the filing of the lawsuit prompts the agency to hand over the documents.

Tattling on bad agencies: This provision requires the U.S. attorney general to notify the Office of Special Counsel and Congress any time an agency acts arbitrarily or capriciously in denying a request.

Price of tardiness: If the agency fails to respond within the 20-day limit, then the agency must provide search fees for free. This takes effect in December. However, there is some language that agencies might use to weasel out: They don’t have to give up the fees if there are any “unusual or exceptional circumstances” with the request.

Tracking system: You know how you can track your Amazon.com order or Postal Service package online? Well, you might be able to do the same thing with your FOIA request. Starting in December, the law requires agencies to establish a tracking system by assigning a number to each request, notifying a requestor of the number within 10 days of receiving the request and setting up a telephone or Internet tracking system so requesters can monitor the status of their request, including an estimated date when the agency will have the records.

Response time statistics: This requires agencies to report the 10 oldest active requests still pending, the average response times, the range of response times, the number of fee waivers granted and denied and the average number of days for determining fee status each year.

Can’t hide records with contractors: This clarifies that records kept by private contractors for the government are still subject to FOIA.

Ombudsman: The law creates a records ombudsman within the National Archives and Records Administration. The person won’t be able to force an agency to provide the records but can mediate disputes. However, the president tried to shift the office to the more secretive Department of Justice. Also, Congress is wrangling to get sufficient funding, so maybe the position will be up and running in a year or two.

Employee expectations: This provision requires the Office of Personnel Management to examine whether FOIA performance should be considered in performance reviews of federal employees and if FOIA training should be provided to federal employees.

Specific justification for each deletion: This requires an agency to cite the exact exemption justifying the deletion of information where the information is blotted out rather than simply providing a broad reason in a cover letter. It forces the agency to justify each and every deletion.

David Cuillier is SPJ’s Freedom of Information Committee chairman and an assistant professor of journalism at the University of Arizona. He can be reached at cuillier@email.arizona.edu.

For More FOI

Information Visit:

- History and analysis of the OPEN Government Act by SPJ attorney Laurie Babinski, www.spj.org/rrr.asp?ref=81&t=foia

- Text of the OPEN Government Act of 2007, thomas.loc.gov (search for “S.2488.ENR")

- Guide to using FOIA, www.rcfb.org/foiact.

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