On Aug. 3, 2007, the Senate approved legislation S. 849, The OPEN Government Act of 2007 which amends The Freedom of Information Act (“FOIA”), by unanimous consent. This follows a 308–117 vote in the House of Representatives on similar legislation, H.R. 1309, The Freedom of Information Act Amendments of 2007. Congress is expected to take steps that will enable this legislation to go to the President’s desk for signature—either by resolving key differences in House/Senate conference or by having either house pass the version approved by the other house of Congress.

Quick Summary of Changes. The legislation amends FOIA by extending FOIA’s reach to records held by government contractors; tightening time limits for agencies to act on FOIA requests; clarifying when attorney fees may be imposed; strengthening reporting requirements; and creating an ombudsman’s office to monitor FOIA implementation and provide assistance to the public.

This Bulletin serves to advise Reed Smith clients of certain key similarities and differences in this pending legislation, given its importance and probability of becoming law. We will continue to monitor the progress of this legislation and work to influence deliberations on its content and passage.

Pending legislation applies FOIA to records maintained by private entity, e.g., government contractors. The scope of FOIA currently applies only to “any executive department, military department, government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency” 5 U.S.C. § 552(f). Both S. 849 and H.R. 1309 would broaden this scope to include government contractors. S. 849 would expand FOIA’s scope to include any information “that is maintained for an agency by an entity under Government contract, for the purposes of records management.” H.R. 1309 expands FOIA’s scope more broadly to include any information “that is maintained for an agency by an entity under a contract between the agency and the entity.” (Emphases supplied.)

Pending legislation tightens time limits for agencies to act on FOIA requests. Under FOIA, agencies have 20 business days to determine whether to reply to an FOIA request 5 U.S.C. § 552(a)(6). Both S. 849 and H.R. 1309 would limit the times when this period could be tolled. Under S. 8.49, the 20-day period could be tolled once by a request by an agency for (1) more information, or (2) to clarify fee assessment. H.R. 1309 only allows the 20-day period to be tolled at the consent of the party filing the request. S. 849 would start the clock on the 20-day period once the request is first received by any component of the agency that is designated to receive FOIA requests. H.R. 1309 has no such provision.

Pending legislation penalizes late responses to FOIA requests by denying search fees. Under both S. 849 and H.R. 1309, if an agency does not comply with 20-day time limit to determine whether to respond, it may not assess search fees. S. 849 provides an exception for “unusual or exceptional circumstances.” H.R. 1309 does not.

Pending legislation helps track FOIA requests. Both S. 849 and H.R. 1309 require agencies to create an individual tracking system for requests that take longer than 10 days, as well as for a telephone line or Internet service to research the status of FOIA requests upon request by individuals.

Pending legislation expands when attorney’s fees and other litigation costs may be imposed. Under FOIA, a court may assess reasonable attorney’s fees and other litigation costs incurred in any case where complainant has “substantially prevailed” U.S.C. § 552(a)(4). “Substantially prevailed” had not been defined under FOIA but is defined in both S. 849 and H.R. 1309, albeit slightly differently:

  • Under S. 849, a complainant has substantially prevailed if the complainant has obtained relief through either:
    • a judicial order, or an enforceable written agreement or consent decree; or,
    • a voluntary or unilateral change in position by the agency, provided that the complainant’s claim is not insubstantial.
  • H.R. 1309 contains a similar, if somewhat broader, definition, with key differences highlighted in bold:
    • a judicial order, administrative action, or an enforceable written agreement or consent decree; or,
    • a voluntary or unilateral change in position by the opposing party, in a case in which the complainant’s claim or defense was not frivolous.

In other words, both S. 849 and H.R. 1309 make clear that a formal decision is no longer required for attorney’s fees and litigation costs to be imposed. S. 849 is more restrictive about when this can happen and also provides a potentially higher bar in that a complainant’s claim must be “not insubstantial.”

H.R. 1309 states that agencies must pay judgments directly. H.R. 1309 prohibits any funds to be expended from the Claims and Judgment Fund of the United States Treasury to pay for any judgments for FOIA requests. The agency must pay out of its budget. S. 849 has no such provision.

Pending legislation strengthens reporting requirements. Under FOIA, agencies must report every February to the Attorney General on their response to requests, including number of requests denied, number of appeals made, and statutes relied on for denial U.S.C. § 552(e)(1). Both S. 8.49 and H.R. 1309 amend this to require the reporting of additional data, including the average and median number of days it took an agency to respond to an FOIA request, as well as the range of days between the shortest and the longest response.

Pending legislation would create an FOIA Ombudsman. Under S. 849, each agency must designate a chief FOIA officer who will monitor FOIA compliance and implementation and recommend changes to improve implementation. H.R. 1309 would establish a “National Information Advocate” within an “Office of Government Information Services” at the National Archives. The National Information Advocate shall “provide informal guidance to requesters and may provide fact-finding reviews and opinions to requesters.”

H.R. 1309 requires a report on the accessibility of critical infrastructure information. H.R. 1309 requires the Comptroller General of the United States to submit a report to Congress regarding the implementation of a section of the Homeland Security Act (6 U.S.C. 133) regarding the voluntary submission of information concerning the security of critical infrastructure like dams and power plants. The Homeland Security Act makes such information exempt from FOIA. The intent behind H.R. 1309 is to learn (1) the number of persons in the private sector who furnished information; (2) the number of FOIA requests granted or denied; and (3) whether nondisclosure has led to increased protection of critical infrastructure. S. 849 has no such provision.

Some key future steps regarding the new FOIA. Regardless of the version ultimately agreed to by Congress and signed by the President, the FOIA law will be materially changed. With both bills headed to conference, individual client interests might yet be advocated. Further, the amended FOIA will result in future rulemaking, where potentially adversely affected clients may attempt to influence the implementation of any new law. The FOIA impacts many public and private entities and its proposed revision provides an important opportunity to effect change.