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18 JANUARY 2008 Two weeks after President Bush signed landmark legislation to reform the Freedom of Information Act (FOIA) the first public discussion between officials and openness advocates was held this week. The meeting focused on key provisions of the new law, including the creation of the Office of Government Information Services (OGIS) to function as a FOIA ombudsman, the availability of attorneys fees for FOIA requesters, penalties for agency delay, and changes to the definition of "news media." (Listen to a podcast of the event.) The law, which passed both houses of Congress in December with bipartisan support after several years of negotiation, aims to fix some of the most persistent problems in the FOIA system, including excessive delay, lack of responsiveness, and litigation gamesmanship by federal agencies. Much of the conference focused on how the Office of Government Information Services should be set up to most effectively serve the functions of overseeing FOIA compliance government-wide and mediating disputes that arise between requesters and agencies. OGIS will be housed at the National Archives and Records Administration (NARA), but no funding has been provided in this year’s budget to set up the new office and NARA continues to face serious resource constraints agency-wide. In addition to the lack of resources, a significant challenge will be how to imbue OGIS with legitimacy and support to ensure executive branch officials will listen to its recommendations and participate in mediation activities. NARA General Counsel Gary Stern participated in the meeting and emphasized his willingness to listen to ideas from the requester and advocacy community. But he stated that the agency was still deliberating about how to implement the OGIS mandate and was not yet in a position to get the office up and running. Another panel at the meeting looked at how the provisions of the new law will affect the media. The law changes the definition of “representative of the news media” contained the FOIA for purposes of allowing media requesters to pay reduced processing fees for their requests. There has been significant debate about whether the new definition will allow bloggers and other internet publications to qualify for media treatment. The media panelists generally agreed that the new definition will be applied on a case-by-case basis, taking into consideration the nature of a specific blogger’s activities. Bloggers who act as journalists, using editorial skills to turn government information into a published work, would qualify; but others who simply post raw government information or distribute it for profit without editorial content would not. Another significant provision of the law will allow requesters to collect attorneys fees when they are forced to sue to get information under the FOIA. Meeting participants largely agreed that this provision would allow requesters who might not otherwise be able to challenge improper government withholding of information to bring lawsuits, and that hopefully it would also encourage government agencies to comply with the FOIA from the start rather than facing costly litigation. However, questions remain about how courts will interpret this provision in light of prior case law that allows courts substantial discretion to grant or deny attorneys fees. Finally, federal agencies for the first time will face penalties when they do not respond to FOIA requests within the 20-day statutory limit—for these requests, the agencies will be unable to collect some processing fees. It is unclear, however, how this provision will actually be implemented because agencies may still delay when certain “unusual” or “exceptional” circumstances prevent them from processing requests on time. The new law also mandates tracking systems to ensure that requests are not lost and to allow requesters to check on the status of their requests at any time. In addition to a tracking number, agencies will also be required to provide requesters with an estimated date for completion of the request, which may reduce some of the uncertainty for requesters who now wait months, years, or even decades for a response. Several provisions of the law became effective immediately on December 31, 2007, while others will not be applied until one year following enactment. Additional meetings are planned as implementation of the new law moves forward, and openness groups asserted their intentions to closely monitor agency compliance with the new provisions, which many officials believe place hefty new burdens on FOIA offices across the government. Read more about the new law on the National Security Archive Web site Materials from the Conference on the 2007 FOIA Amendments on January 16, 2008 Collaboration on Government Secrecy at Washington College of Law, American University |
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