On Dec. 31, 2007, President Bush signed the OPEN Government Act (S. 2488), which includes long-sought reforms of the Freedom of Information Act (FOIA). Though some important provisions were dropped in order to reach bipartisan agreement in Congress, the bill creates incentives to reduce agency backlogs of FOIA requests, increases reporting requirements, and increases the scope of who can make requests and what entities are covered by FOIA.

The mounting problems regarding FOIA are well documented. The Coalition of Journalists for Open Government's report Waiting Game: FOIA Performance Hits New Lows found that even though the number of FOIA requests dropped in 2005, the backlog of unanswered requests rose from 20 percent of total requests made in 2004 to 31 percent in 2005. In addition to the increase in unanswered requests, requesters had to wait longer for replies.

In an effort to reduce agency backlogs and improve FOIA procedures, President George W. Bush issued Executive Order 13392 on Dec. 14, 2005. The order, though, did little to relieve agency backlogs. The Government Accountability Office (GAO) recently reported, "Despite increasing the numbers of requests processed, many agencies did not keep pace with the volume of requests that they received." The OPEN Government Act, sponsored by Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) in the Senate and Rep. Henry Waxman (D-CA) in the House, seeks to resolve some of these problems.

Incentives for Improving Response Time

A long-standing and notorious problem with FOIA is the large backlog of requests and slow response times. The National Security Archive conducted a 2006 audit of FOIA that found agencies failing to make significant improvements to eliminate or reduce backlogs and reported on the ten oldest unanswered FOIA requests, several dating back to 1989. To help alleviate this problem, the OPEN Government Act penalizes agencies that fail to respond to FOIA requests within the required 20 days by barring them from collecting search fees for all requesters and duplication fees for certain favored requestors like the news media. Moreover, the bill requires agencies to create a FOIA tracking system that would allow requestors to monitor the progress of requests on the Internet or by telephone. The OPEN Government Act also requires agencies to clearly state the amount of information deleted in its redactions and the exemption invoked for making each individual redaction. This may help to limit the number and scope of agency redactions.

Attorney Fees

Previously, attorney fees were only awarded to those complainants that succeeded with a FOIA case in court. A common criticism was that agencies would refuse to release information to requestors until a lawsuit was filed, but the agencies would comply with the request just before trial and thereby avoid paying attorneys fees. The OPEN Government Act expands awards of attorney fees to include cases where the agency makes a "voluntary or unilateral change in position" in the face of a lawsuit. Hence, agencies will no longer be able to avoid the cost of paying attorney fees if they force complainants to prepare cases against them.

Expanded Scope

Under FOIA, the news media does not pay search fees, and the OPEN Government Act expands the definition of news media to possibly include bloggers. The bill defines members of the news media 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 material into a distinct work, and distributes that work to an audience." This provision may greatly expand the audience using FOIA to collect information and research governmental issues, and through the exploding number of online political blogs, expand the number of people learning about their government.

Another provision expands the scope of who must respond to FOIA requests. In response to the fact that the government contracts out so many of its activities, the OPEN Government Act extends FOIA to include any information that "would be an agency record" that is maintained by "an entity under Government contract, for the purposes of record management." While the breadth of this provision is untested, it will surely serve to provide new access to information held by contractors that store and manage government records and data.

Reporting Requirements

The OPEN Government Act also adds several important reporting requirements. The new provisions require agencies to report on the average, range, and median number of days for responding to requests. The number of responses made within the 20-day requirement, and in 20-day increments up to 200 days, also must be reported. Additionally, agencies are required to disclose the ten oldest active FOIA requests. Importantly, agencies are required to disclose the raw data regarding FOIA response times upon public request. In addition to the existing reporting requirements, this data will vastly improve oversight of agency practices regarding implementation of FOIA.

Missed Opportunity: Ashcroft Memo

The House passed the OPEN Government Act in March of 2007, but the Senate was held up due to various objections made by Republican senators and the White House. To address these concerns, a number of compromises and revisions were made. Unfortunately, one of these compromises was the removal of a provision which would have reversed the so-called "Ashcroft memo." On Oct. 12, 2001, Attorney General John Ashcroft issued a memo urging federal agencies to exercise greater caution in disclosing information, placing the presumption in favor of not disclosing information under FOIA. Many access advocates believe this policy shift has led to a significant reduction of information being released by agencies in response to FOIA requests.

In the coming months, agencies will translate the new FOIA law into reality, and much will depend on how the implementation of these improvements occurs. It is a practical certainty that many access advocate groups will be monitoring the agencies and testing compliance with the new law.