FOIA Conference on the 2007 FOIA Amendments
Collaboration on Government Secrecy ("CGS")
American University Washington College of Law
January 16, 2008

Sections of S. 2488 (Pub. L. No. 110-175)

  1. Sec. 1: Title
  2. Sec. 2: Findings
  3. Sec. 3: Definition of "news media"
  4. Sec. 4: Attorney fees
  5. Sec. 5: Arbitrary and capricious denials
  6. Sec. 6: Time limits/fees/liaisons
  7. Sec. 7: Request tracking
  8. Sec. 8: Annual FOIA statistics
  9. Sec. 9: Contractor records
  10. Sec. 10: OGIS/GAO/Chief FOIA Officers
  11. Sec. 11: OPM report
  12. Sec. 12: Exemption specification

Miscellaneous and Effective Date Provisions

  • Four effective date provisions, two miscellaneous (at least one likely to be codified)
  • Explicitly effective upon enactment (December 31, 2007): All of Section 10
  • One-year delay: All of Section 6 and Section 7
  • One-year deadline: Section 11
  • Implicitly effective upon enactment: All else
  • Miscellaneous provision on OPM report
  • Miscellaneous provision on fund for attorney fees (possibly to be codified in title 31)
  • Finding on openness "presumption"
  • Finding on congressional determination of need for "further changes"

Ten Amendment Subject Areas

  1. Establishment and operation of OGIS
  2. Prohibitions on fees
  3. Records maintained by contractors
  4. New attorney fees standard
  5. News media definition -- bloggers, freelancers, etc.
  6. Tracking of requests by phone or Internet
  7. Reports: Annual FOIA; GAO; AG; OSC; OPM
  8. Executive Order 13,392 codification
  9. Time limit procedures
  10. Exemption specification

Subject Area Outline

  1. Establishment and operation of OGIS
    • New Office of Government Information Services within NARA
    • Effective immediately
    • Five functions, found in new subsection (h) of the Act
      • Review all agencies' FOIA "policies and procedures"
      • Review their FOIA "compliance"
      • Recommend "policy changes" to "improve" FOIA administration
      • Offer mediation services
      • Issue (as a matter of discretion) advisory opinions
    • No new funding accompanying new statutory mandates
    • No mention of existing functions performed by Office of Information and Privacy within Department of Justice
    • Justice Department objected to "any sort of policymaking role" being established elsewhere (House Floor Statements, Mar. 14, 2007)
    • Note that the original effective date of this was one year after enactment
  2. Prohibitions on charging fees
    • Enacted as "penalty" provision for time limit noncompliance, in order to "encourage" timeliness (Senate Floor Statements, Aug. 3, 2007)
    • Triggered by noncompliance with "any" time limit of the Act
    • Penalty is no search fees for all types of requesters (even commercial)
    • For "favored" requesters under 1986 FOIA Amendments (i.e., media and educational or noncommercial scientific institutions), who already pay no search fees, penalty is no duplication fees
    • Only exception is where "unusual circumstances" (i.e., the basis for an agency extending its deadline for an additional ten working days) or "exceptional circumstances" (i.e., the basis for a court issuing an Open America stay) "apply to the processing of the request"
    • Note that the Act's "unusual circumstances" provision, in particular, may be used by an agency "only to the extent reasonably necessary to the proper processing" of a request, 5 U.S.C. § 552(a)(6)(B)(iii)
    • It is unclear exactly how this exception might be implemented
    • Penalties begin to apply as of requests filed on or after December 31, 2008
  3. Records maintained by contractors
    • Contained within the FOIA's definition of "record"
    • Extends the FOIA to "information maintained for an agency by an entity under Government contract, for the purposes of records management"
    • Language itself is subject to interpretation
    • Senate Report (Apr. 30, 2007) suggests narrow interpretation
    • Could be interpreted more broadly
    • Example: Records of functions "outsourced" under OMB Circular A-76, lest they be removed from FOIA coverage
    • Mechanics of operation (including judicial review) are unclear
  4. New attorney fees standard
    • Effectively overturns the Buckhannon rule on fee-shifting statutes generally, as it has been applied to the FOIA in particular since 2002
    • Standard for eligibility now is whether FOIA plaintiff has obtained "relief" through any of the following:
      • judicial order
      • enforceable written order
      • consent decree
      • "a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial"
    • It is unclear to what extent this preserves existing case law standards on attorney fee "entitlement" (e.g., longstanding "four factors" test)
    • Fee awards now to come from agency appropriations only as a result of House PAYGO complication, not as penalty to agencies
    • It remains to be seen whether this alteration of attorney fee funding affects agency behavior
    • It also remains to be seen whether the new standard is readily applied in cases currently pending, e.g., National Security Archive v. DOD, No. 86-3454 (D.D.C. Jan. 15, 2008) (denying attorney fees without regard for new statutory standard)
  5. News media definition -- bloggers, freelancers, etc.
    • Most of the definition incorporates the 1987 OMB Fee Guidelines, as already implemented in agency regulations
    • Most of the remainder codifies the 1989 D.C. Circuit standard of National Security Archive v. DOD
    • Does not explicitly include bloggers; neither does Senate Report speak of them; legislative statements speak of them only as not being "automatically excluded" from definition
    • Might be subject to further interpretation and administrative gloss through revised OMB Fee Guidelines, upon APA notice and comment
  6. Tracking of request by phone or Internet
    • Statutory language gives agencies choice of Internet or phone "hotline"
    • Legislative statements speak of viable "hotline" as required
    • Requester to receive tracking number, request receipt date, and also "estimated date on which the agency will complete action on the request"
    • Justice Department has inexplicably suggested that this is nothing more than what already is required
    • Agencies will have until December 31, 2008 to sort this out
  7. Reports: Annual FOIA; GAO; AG; OSC; OPM
    • Extensive revisions to contents of required annual FOIA reports, including new categories of response times, agency component breakdowns, data on administrative appeals, addition of "average" to "median" calculations, etc.
    • Applies to Fiscal Year 2008 reports, due February 1, 2009
    • Underlying statistical data to be made available as well
    • Oddly uses both "days" and "business days"
    • Explicit requirement of Government Accountability Office audits and reports on FOIA implementation, found in new subsection (i) of the Act
    • Bolstering of "arbitrary and capricious" mechanism of FOIA subsection (a)(4)(F) by requiring reporting to Congress by Attorney General and head of Office of Special Counsel on all such cases
    • Additional miscellaneous provision: Office of Personnel Management given one year to report to Congress on possible "encouragement” and "enhancement" of FOIA personnel, including need for further "awareness training" on both the FOIA and the Privacy Act
  8. Executive Order codification
    • Codifies certain elements of Executive Order 13,392 (Dec. 14, 2005), including Chief FOIA Officer, FOIA Public Liaison, and "FOIA Service Center" (previously "FOIA Requester Service Center")
    • Found in new subsections (j), (k), and (l) of the Act
    • Oddly delays implementation of one partly duplicative aspect of FOIA Public Liaison function ("assisting in the resolution of any disputes between the requester and the agency," S. 2488, Sec. 6(b)(1)(B)) for one year
  9. Time limit procedures
    • Specifies that FOIA time limits commence to run as of the date on which a request is "first received by the appropriate component of the agency," which codifies general agency practice
    • Further specifies that time limits commence in no event "later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations" to receive FOIA requests
    • Allows an agency to "toll" a time limit where it makes a single request to the requester for "reasonably requested" follow-up information "or" for clarification of "issues regarding fee assessment"
    • In the case of either type of follow-up request, the agency's receipt of the requester's response "ends the tolling period"
  10. Exemption specification
    • Requires agencies to specify not only volume of information withheld, but also particular exemption(s) relied upon, "at the place" where each deletion is made
    • Includes "specification harm" and "if technically feasible" exceptions
    • Added in December 2007 at behest of the House

Initial Questions

  1. Does the immediate OGIS effective date create agency obligations and requester entitlements notwithstanding funding issues? Will NARA be able to obtain support from the Department of Justice, the Office of Management and Budget, and Congress during this current fiscal year and as part of its Fiscal Year '09 budget?
  2. How will the OGIS policy and compliance review responsibilities be reconciled with those of the Justice Department's Office of Information and Privacy?
  3. Does the new search/duplication fee penalty apply in the case of absolutely any deadline breach, even including the rigorous ten-calendar-day deadline for acting on expedited processing requests?
  4. Should the "unusual circumstances" and "exceptional circumstances" exceptions complicate or eviscerate this penalty provision?
  5. Does the contractor record provision apply only narrowly, or to at least contractors performing agency functions under OMB Circular A-76?
  6. How exactly will this contractor provision work mechanically (both administratively and in court) wherever it does (or might) apply?
  7. Does the new attorney fee standard apply to cases that are already pending in court in one stage or another?
  8. What affect does this new statutory standard have on the standards that were developed by the courts for purposes of interpreting the term "substantially prevailed" before that term was defined statutorily -- does any of that case law survive, especially regarding the standard of "entitlement"?
  9. Is the new definition of "news media" really any broader that the existing standard applied under the OMB Fee Guidelines and the D.C. Circuit's National Security Archive case?
  10. Does that definition now broadly include bloggers?
  11. Is the new tracking requirement really no different than what agencies are required to do under existing law and policy?
  12. Will the varying use of "days" and "business days" in the new annual FOIA report provisions cause confusion, especially in light of the statute's "calendar day" deadline for expedited processing requests?

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