The House of Representatives passed important legislation reforming the Freedom of Information Act via unanimous consent on December 18, clearing the "Open Government Act" for Presidential Signature after the Senate passed an identical version of the bill last week.

These reforms have been three years in the making.  Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) introduced the Open Government Act in the 109th Congress but it stalled after passing the Senate Judiciary Committee.  A version introduced in the 109th Congress by Rep. Lamar Smith (R-TX) failed to get a vote in the House Committee on Government Reform. 

With those markers in place, several open government advocates, including the Sunshine in Government Initiative, which includes Fletcher Heald & Hildreth client the American Society of Newspaper Editors, had high hopes for this bill in 2007-2008.  Congress did not disappoint.

Legislation again was quickly introduced by Senators Leahy and Cornyn and by Rep. William Lacy Clay (D-MO) at the beginning of 2007.  The Senate passed S 849 in early August and the House did the same with the slightly different HR 1309 just before recessing for the month.  It took until December, however to resolve the differences and pass S 2488.

The bill makes procedural reforms to the Freedom of Information Act, including:

  • Broadening the definition of "news media" for purposes of obtaining a waiver of search fees when filing a FOIA request. The final bill  essentially codifies a 1987 definition of "news media," which emanated from the Office of Management and Budget that clearly includes newer media, even some bloggers, in the definition. 
  • Increasing the likelihood that a FOIA requester who must go to court in order to receive requested records will recover at least some of the attorney’s fees expended in that fight. Prior to 2001, a requester was eligible to be reimbursed for attorneys fees when the initiation of court action resulted in the receipt of the records through a court order or a voluntary and unilateral change in position by the government (settlement). A 2001 Supreme Court case took away the right to receive attorney’s fees in cases in which the records were obtained pursuant to a settlement without court order, which resulted in several cases in which government agencies would drag a requester through the court system and then provide some or all of the requested records on the eve of trial so as to avoid paying attorney’s fees.  This legislation restores the pre-2001 state of the law.  Penalizes agencies that fail to meet the statutorily mandated response time of 20 days. This was the original genesis of the bill — the desire of Senator Cornyn to replicate the enforcement mechanisms available to him as Attorney General of Texas.  Earlier versions of the Open Government Act removed the right of recalcitrant agencies to apply certain of the nine exemptions used to withhold information under FOIA. The final version prohibits these agencies from charging search fees to commercial FOIA requesters or duplication fees to noncommercial requesters. 
  • Creates an "Office of Government Information Services" within the National Archive to serve what will essentially be an ombudsman’s function in assisting the public in receiving the maximum service possible when problems arise during the processing of a FOIA request.
  • Creates a tracking system to allow users to learn the status of a filed FOIA request via telephone or the Internet.

There has been no official word as to whether the President will actually sign this bill, though it seems likely that he will despite the issuance of a Statement of Administration Policy generally opposing much of the methods embedded in HR 1309 to attack FOIA inefficiencies.  Two strong votes (in August and then again in December) in favor of this legislation in both the House and Senate may signal that resistance to open government is futile.