Openness Promotes
Effectiveness In Our National Government Act Of 2007
("Open Government Act Of 2007")
Section-By-Section Analysis
Sec. 1. Short Title. The Open Government
Act of 2007.
Sec. 2. Findings. The findings reiterate
the intent of Congress upon enacting the Freedom of Information Act (FOIA),
5 U.S.C. 552 as amended, and restate FOIA’s presumption in favor of
disclosure.
Sec. 3. Protection of Fee Status for News
Media. This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear
that independent journalists are not barred from obtaining fee waivers
solely because they lack an institutional affiliation with a recognized
news media entity. In determining whether to grant a fee waiver, an
agency shall consider the prior publication history of the requestor.
If the requestor has no prior publication history and no current
affiliation with a news organization, the agency shall review the
requestor’s plans for disseminating the requested material and whether
those plans include distributing the material to a reasonably broad
audience.
Sec. 4. Recovery of Attorney Fees and
Litigation Costs. This section, the so-called Buckhannon
fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has
substantially prevailed in a FOIA lawsuit, and is eligible to recover
attorney fees, if the complainant has obtained relief through a judicial
or administrative order or if the pursuit of a claim was the catalyst
for the voluntary or unilateral change in position by the opposing
party. The section responds to the Supreme Court’s ruling in
Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health
and Human Resources, 532 U.S. 598 (2001), which eliminated the
“catalyst theory” of attorney fee recovery under certain Federal civil
rights laws. FOIA requestors have raised concerns that the holding in
Buckhannon could be extended to FOIA cases. This section
preserves the “catalyst theory” in FOIA litigation.
Sec. 5. Disciplinary Actions for Arbitrary and
Capricious Rejections of Requests. FOIA currently requires that
when a court finds that agency personnel have acted arbitrarily or
capriciously with respect to withholding documents, the Office of
Special Counsel shall determine whether disciplinary action against the
involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F).
This section of the bill amends FOIA to require the Attorney General to
notify the Office of Special Counsel of any such court finding and to
report the same to Congress. It further requires the Office of Special
Counsel to report annually to Congress on any actions taken by the
Special Counsel to investigate cases of this type.
Sec. 6. Time Limits for Agencies to Act on
Requests. The section clarifies that the 20-day time limit on
responding to a FOIA request commences on the date on which the request
is first received by the agency. Further, the section states that if
the agency fails to respond within the 20-day limit, the agency may not
then assert any FOIA exemption under 5 U.S.C. 552(b), except under
limited circumstances such as endangerment to national security or
disclosure of personal private information protected by the Privacy Act
of 1974, unless the agency can demonstrate, by clear and convincing
evidence, good cause for failure to comply with the time limits.
Sec. 7. Individualized Tracking Numbers for
Requests and Status Information. Requires agencies to establish
tracking systems by assigning a tracking number to each FOIA request;
notifying a requestor of the tracking number within ten days of
receiving a request; and establishing a telephone or Internet tracking
system to allow requestors to easily obtain information on the status of
their individual requests, including an estimated date on which the
agency will complete action on the request.
Sec. 8. Specific Citations in Exemptions. 5
U.S.C. 552(b) (3) states that records specifically exempted from
disclosure by statute are exempt from FOIA. This section of the bill
provides that Congress may not create new statutory exemptions under
this provision of FOIA unless it does so explicitly. Accordingly, for
any new statutory exemption to have effect, the statute must cite
directly to 5 U.S.C. 552(b) (3), thereby conveying congressional intent
to create a new (b) (3) exemption.
Sec. 9. Reporting Requirements. This
section adds to current reporting requirements by mandating disclosure
of data on the 10 oldest active requests pending at each agency,
including the amount of time elapsed since each request was originally
filed, and requires additional breakdowns depending on the length of
delay. This section further requires agencies to calculate and report
on the average response times and range of response times of FOIA
requests. (Current requirements mandate reporting on the median
response time.) Finally, this section requires reports on the number of
fee status requests that are granted and denied and the average number
of days for adjudicating fee status determinations by individual
agencies.
Sec. 10. Openness of Agency Records Maintained
by a Private Entity. This section clarifies that agency records
kept by private contractors licensed by the government to undertake
recordkeeping functions remain subject to FOIA just as if those records
were maintained by the relevant government agency.
Sec. 11. Office of Government Services.
This section establishes an Office of Government Information Services
within the Administrative Conference of the U.S. Within that office
will be appointed a FOIA ombudsman to review agency policies and
procedures, audit agency performance, recommend policy changes, and
mediate disputes between FOIA requestors and agencies. The
establishment of an ombudsman will not impact the ability of requestors
to litigate FOIA claims, but rather will serve to alleviate the need for
litigation whenever possible.
Sec. 12. Accessibility of Critical
Infrastructure Information. This section requires reports on the
implementation of the Critical Infrastructure Information Act of 2002, 6
U.S.C. 133. Reports shall be issued from the Comptroller General to the
Congress on the number of private sector, state, and local agency
submissions of CII data to the Department of Homeland Security and the
number of requests for access to records. The Comptroller General will
also be required to report on whether the nondisclosure of CII material
has led to increased protection of critical infrastructure.
Sec. 13. Report on Personnel Policies Related
to FOIA. This section requires the Office of Personnel Management
to examine how FOIA can be better implemented at the agency level,
including an assessment of whether FOIA performance should be considered
as a factor in personnel performance reviews, whether a job
classification series specific to FOIA and the Privacy Act should be
considered, and whether FOIA awareness training should be provided to
federal employees.
# # # # #
Statement:
Of Sen. Patrick Leahy, Chairman, Senate Judiciary Committee, On
Reintroduction Of The Leahy-Cornyn OPEN Government Act
Section-By-Section Analysis:
Openness Promotes Effectiveness In Our National Government Act Of 2007
One Pager:
Leahy-Cornyn Openness Promotes Effectiveness In Our National Government
Act Of 2007
Leahy Op-Ed:
A Sunshine Week Forecast: Mostly Cloudy, Thin Rays Of Hope On The
Horizon,
as distributed by the Vermont Press Association during Sunshine Week
2007
Leahy-Cornyn Op-Ed:
The OPEN Government Act:
An Investment In American Democracy
Text Of Legislation
