President Bush has signed into law a measure aimed at strengthening the Freedom of Information Act, one of the basic tools for journalists, despite administration opposition to the bill.
Bush waited until the last minute, when the bill was about to become law without his signature, and then signed the bill (S 2488) Dec. 31, 2007, without a statement, while vacationing at his Crawford, Texas, ranch.
Journalists and other information-requestors have long complained that government agencies are slow in responding to requests and that they do not release enough information. The new bill contains a series of modest measures aimed at improving government compliance with provisions of the existing FOIA. FOIA was first enacted in 1966, and the last set of major amendments was passed in 1996.
Here are the provisions of the new law:
- It protects the fee status of news media previously defined by the courts. FOIA requires limitation on copying fees and waiver of search fees for any "representative of the news media." Courts have defined that as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." The definition explicitly includes periodicals, broadcast, online media, and freelancers. The new legislation codifies existing court definitions into statute.
- Existing law allows courts to award attorneys' fees to plaintiffs suing the government for nondisclosure if the plaintiff has "substantially prevailed." The new bill defines "substantially prevailed" to include cases where the government concedes to the request for information after the case has gone to court. The Bush administration had a habit of conceding at the last minute and then arguing against award of attorney fees because the case had not gone to trial.
- Existing law requires the Special Counsel (the federal legal officer who prosecutes Civil Service violations) to start disciplinary investigative action against any federal official a court finds to have improperly withheld requested records. Few such cases result in disciplinary action. The new bill requires the Special Counsel to report all such cases to the Justice Department, and requires the Justice Department to report annually to Congress on their disposition.
- Current law gives agencies 20 days (excluding weekends and holidays) to determine and notify the requestor of its decision on whether to provide information. The new bill makes clear that the 20-day clock starts when the request is received by the appropriate part of an agency - but not later than 10 days after the request is received by any part of the agency. It allows the agency to stop the clock only once while it seeks information from the requestor about what information is sought. It requires agencies to restart the clock immediately upon receiving any additional information related to the requestor's fee status.
- The effective date of most provisions of the new law is one year from the date of enactment - which puts it at Jan. 1, 2009.
- When an agency fails under normal circumstances to meet the 20-day deadline for response (or certain other deadlines), the penalty is that the agency can not collect search or duplication fees.
- Requires each agency to make available its FOIA Public Liaison, to assist in the resolution of any disputes between the requestor and the agency. This requirement codifies in law one set up under executive order by President Bush.
- Requires each agency to set up a tracking system for requestors. Each requestor whose request will take longer than 10 days to fulfill will be given a tracking number and telephone number or web address to inquire about the status of his/her request, including the estimated date of completion.
- Under existing law, each federal agency is required to report annually to the Attorney General certain statistics which reflect its performance in fulfilling FOIA requests. The Attorney General compiles them and publishes them on a single Web site. The new law significantly expands the detail which agencies are required to report to the Attorney General. It also requires agencies to break down the statistics by sub-agency, and to make their raw statistical data available to the public.
- Explicitly applies the requirements of the FOIA to any agency records maintained by a private entity such as a federal contractor.
- Establishes an Office of Government Information Services within the National Archives and Records Administration. The office is to oversee agency procedures, policies, and compliance and to recommend to Congress and the President any changes needed to improve them. It is also to offer mediation services to resolve disputes between requestors and agencies. Such mediation can take place simultaneously with litigation.
- Authorizes the Government Accountability Office (GAO) to conduct audits of compliance.
- Requires each agency to appoint a high-level Chief FOIA Officer, reporting to the agency head, to be responsible for the agency's FOIA performance. This codifies into law a requirement set by President Bush through executive order.
- Requires the federal Office of Personnel Management to report within one year on any changes in executive branch personnel policies that would improve agency FOIA performance,