First FOIA Reform Bill In More Than A Decade Becomes Law

January 2, 2008 - In one of his last decisions of the year on Monday, December 31, 2007, President Bush signed into law the Freedom of Information Act (FOIA) reform bill (S. 2488). The bill, the OPEN Government Act of 2007, was passed unanimously by both the House and the Senate in December. The new law 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.

The OPEN Government Act mandates tracking numbers for FOIA requests that take longer than 10 days to process to ensure they will no longer fall through the cracks and provides incentives to agencies to avoid litigation and processing delays. For the first time, there will be a penalty for agencies who do not comply with the FOIA's time limits. The new law also requires agencies to report more accurately to Congress and the public on their FOIA programs and creates the Office of Government Information Services at the National Archives to mediate conflicts between agencies and requesters and review agency FOIA performance.

In addition, the law codifies the definition currently used by most courts to determine which requesters are considered representatives of the news media and therefore entitled to reduced processing fees. However, this provision is unlikely to change the status of bloggers and some other freelance journalists who do not qualify for news media treatment under existing law. S. 2488 also includes a provision requiring agencies to inform requesters about the amount of information redacted from documents released under FOIA and the exemption justifying each deletion.

"Our six government-wide audits of FOIA performance show that these bipartisan changes to the Freedom of Information Act are common sense solutions," remarked Meredith Fuchs, general counsel of the National Security Archive. "This bill establishes tracking systems for FOIA requests like FedEx uses for packages, actually penalizes agencies for the first time for delays that our audits found could reach 20 years, and sets up an office to mediate disputes as an alternative to litigation."

"This is the bill that President Bush wrote an executive order to try to prevent," said Tom Blanton, director of the Archive, referring to E.O. 13392 (December 14, 2005), which called for a "citizen-centered and results-oriented approach" to FOIA, established Chief FOIA Officers at each of 92 major agencies, and required agencies to evaluate their FOIA programs and draft improvement plans. President Bush signed the bill without comment after unanimous approval in Congress.

"Congress has acted to improve the FOIA for the first time in more than a decade, since the electronic FOIA amendments of 1996, but Congressional and public oversight will be essential for the law's success," Blanton noted. "Our Knight Open Government Survey in 2007 found that only one in five federal agencies fully complied with the 1996 law, even after 10 years of implementation."

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