On December 31, 2007, President Bush signed legislation into law that amends The Freedom of Information Act (“FOIA”). “The OPEN Government Act of 2007” (“the Act”) (Pub. L. No. 110-75) tightens time limits for agencies to act on FOIA requests; extends FOIA’s reach to agency records maintained by government contractors; clarifies when attorney fees can be recovered; creates a number of FOIA advocates within the federal government; and strengthens reporting requirements by agencies (Pub. L. No. 110-75). The Act makes no change to the exemption categories of FOIA.

This Bulletin serves to advise Reed Smith clients of the elements covered in the final version of this legislation, including how key differences were resolved between the House of Representatives and the Senate, and how this will affect dealings with the federal government. The prior Reed Smith Bulletin 07-072 is superseded.

Note: The changes described below take effect on the date the legislation was signed into law, unless noted otherwise.

Tighter time limits for agencies to act on FOIA requests

Under FOIA, agencies have 20 business days to determine whether to comply with an FOIA request. 5 U.S.C. §552(a)(6)(A). The Act would strictly limit the number of times when this 20-day period could be tolled by the agency. Under the Act, the 20-day period shall not be tolled except:

  •  for one request for additional information; or 
  • to clarify fee assessment.

In either case, the requester’s response to the agency’s request ends the tolling period. This requirement takes place one year after enactment into law. Pub. L. No. 110-175 §6(a)(1).

Analysis: Both the Senate and the House of Representatives had differing language as to when the 20-day period would be tolled. The House language tolled the 20-day period only with the consent of the party filing the request. The Senate countered with the stricter language listed above, which prevailed in House-Senate conference.

Scope of FOIA broadened to include records maintained by a private entity; i.e., government contractor

FOIA still applies to any agency in the executive branch of government or any independent regulatory agency 5 U.S.C. §552(f)(1). However, the Act broadens this application to also include any agency record “that is maintained by an entity under Government contract, for the purposes of records management.” 5 U.S.C. §552(f)(2).

Analysis: Congress debated how far the reach of FOIA should be extended to the records held by a government contractor. The House of Representatives wanted to include any information maintained by any private entity that was under contract with an agency. This could have been construed to include proprietary information that was part of the contract. The Senate rejected this language and restricted the reach of FOIA only to information “maintained” by private entities solely for the purposes of records management. The Senate language prevailed.

Reverse FOIA remedy not impacted

The final language makes no change to the potential use of a “reverse FOIA” to challenge release of proprietary data, such as “trade secrets and commercial or financial information,” under 5 U.S.C. §552(b)(4). See, e.g., Canadian Commercial Corporation and Orenda Aerospace Corporation v. Department of the Air Force, C.A. No. 06- 5310 (D.C. Cir., Jan. 29, 2008) (affirming that this exemption virtually always included “line item pricing information”).

Attorney fees and litigation costs can be recovered, even if a judicial order is not in place Under FOIA, a court could assess reasonable attorney fees and other litigation costs in any case where the complainant has “substantially prevailed.” 5 U.S.C. §552(a)(4)(E). “Substantially prevailed” was not defined under FOIA but has been defined under the Act:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either

(I) a judicial order, or an enforceable written agreement or consent decree; or

(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial. 5 U.S.C. §552(a)(4)(E) et al.

Compare: The “Equal Access to Justice Act,” which provides that “An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” (Emphasis added.) 5 U.S.C. §504 (a).

Analysis: Congress had to choose between two different standards to decide when a complainant in an FOIA action has “substantially prevailed.” Both the Senate and the House of Representatives agreed that this should include situations where a judicial order or enforceable written agreement or consent decree was entered. However, the House of Representatives wanted to include administrative orders under this section as well. The House also applied a less strict standard to cases where an agency unilaterally changes its position. Under the House bill, attorney fees were recoverable in those matters if the claim was “not frivolous”—the Senate standard was “not unsubstantial.”

Recovery of attorney fees was a chief stumbling block during House/Senate negotiations, with the House eventually capitulating to the Senate language.

Agencies must pay FOIA judgments directly

Under the Act, “no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury” for any judgment for FOIA requests. The agency must pay out of its own budget. Pub. L. No. 110-175 §4(b).

This requirement take place one year after enactment into law.

Analysis: This language originated in the House of Representatives and was agreed to by the Senate in conference.

Denial of search fees for late agency responses to FOIA requests Under the Act, if any agency does not comply with the 20-day time limit to determine whether to respond, it may not assess search fees. Pub. L. No. 110-175 §6(b)(1). This requirement does allow for an exception for “unusual or exceptional circumstances.” Unusual circumstances are already defined under FOIA to include:

  • the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
  • the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or
  • the need for consultation, which shall be conducted with all practicable speed, with another agency. 5 U.S.C. §552(a)(6)(B)(iii).

This requirement takes place one year after enactment into law. Pub. L. No. 110-175 §7.

Tracking FOIA requests

Under the Act, agencies shall establish a tracking system in order to keep track of requests that take longer than 10 days to process, with an individual tracking number for each. The system shall include either a telephone number or website to provide information on the status of each request, including estimated time of completion.

Reporting requirements strengthened

Under FOIA, agencies must report every February to the Attorney General on their response to requests, including the number of requests denied, number of appeals made, and statutes relied on for denial. 5 U.S.C. §552(e)(1). The Act would expand this to require the reporting of an additional date, 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 longest response. 5 U.S.C. §552(e)(1), et al.

FOIA officer at every agency

The Act creates the position of Chief FOIA officer at each agency, on the Assistant Secretary-level. 5 U.S.C. §552(k). This person is responsible for FOIA compliance, including the implementation of all requirements and recommendations for improvement with same. The FOIA officer shall designate one or more FOIA liaisons who “shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received.” 5 U.S.C. §552(l). As another check in the system, the Act establishes an Office of Government Information Services at the National Archives, which shall review FOIA policies and procedures of administrative agencies, including compliance, and recommend policy changes to improve same. 5 U.S.C. §552(h). The Office shall also be available to mediate disputes between requestors and agencies.