Comments on: New FOIA Law Does Not “Restore Presumption of Openness”

By: FOIA Friend

FOIA Friend — Thu, 03 Jan 2008 12:44:54 +0000

Excellent article by Steve and comment by Bob. Another thing the amendments do not do is redefine the 20-day statutory time limit for a requester to receive a determination letter regarding their request. There has never been a statutory requirement of when responsive documents must be provided to a requester. Note to requesters: You are not entitled by law to receive responsive documents within 20 days. The law only requires that a determination regarding your request be made and communicated to you in 20 days. The courts and DOJ guidance is that records should be released “promptly thereafter” once the FOIA processing determination letter has been sent to the requester. The “teeth” in the FOIA has always been there and has always been in the hands of the requesters – in the form of appealing the lack of response to providing responsive records (or completing their request) on the basis of a constructive denial. The “fourth track” for getting FOIA requests processed is the [threat of] litigation track – and it takes just one stamp and a letter to the appeal authority; next stop is the courts and OGC does not want that to happen. Internal pressure causes “potential” litigation requests to jump to the head of the line for attention and processing. In many instances, appealing is the only way to jump start a program to even begin their search for responsive documents so that actual FOIA processing can commence. The more constructive denial appeals there are is a way to signal that appropriate resources and management priority need to be applied to FOIA processing.

By: Harry Hammitt

Harry Hammitt — Thu, 03 Jan 2008 12:41:46 +0000

I’m perhaps a little bit more optimistic than Bob, but generally I agree with him that the amendments do little to solve the actual problems. Many of the provisions are good ideas in the abstract, but things like an ombudsman at NARA, for which the Archivist has already said there are no funds and that NARA will do the best it can, are not adequately fleshed out to give much hope of success. Restoring the pre-Buckhannon status for eligibility for attorney’s fees is the biggest practical plus, although the case law is already so skewed against plaintiffs on this issue that we are unlikely to see a flood of awards anyway. If agencies can actually implement a tracking system that provides good information about the status of FOIA requests, including a realistic appraisal of how and when they will be completed, that would also be useful, but not necessarily beneficial to requesters beyond knowing for sure that a requester was going to have to wait for months or years rather than the current situation of just guessing that that is the case. I completely agree with Bob that we would have had a better shot for real reform under a Democratic president and a stronger Democratic Congress. I strongly believe in the ten-year rule on FOIA amendments. It is just wishful thinking to believe that Congress will take up these issues on a regular and timely basis. We can now wait another decade to get something else done.

By: Bob Gellman

Bob Gellman — Wed, 02 Jan 2008 21:14:20 +0000

Steve is right to damp enthusiam for the new FOIA law. It is a very mediocre law that will do little to change most of the realities of the FOIA. For reasons that escape me, some of the FOIA community seems to love any legislative attention, even when its substantive value for solving FOIA problems is de minimus. The 1996 Amendments made only marginal changes, and the new law does no better. The new Office of Government Information Services at the National Archives is unfunded, and it will be a great surprise if it accomplishes much for requesters when it is eventually established. As for freelance journalists, the law isn’t likely to help unless they have publication contracts, and the contracts will be scrutinized by government lawyers for loopholes and contingencies. The attempt to breathe life into the disciplinary part of the law will fail miserably. The time limit change sounds helpful, but for those agencies that do not comply with current time limits, a debate on when the time limit actually starts is meaningless. The Chief FOIA Office will join the other Chief _____ Officers at agencies, and accomplish just about as much as the other ones do in their respective fields. The report by OPM will be useless. The best things in the law are the change in attorneys fees, the requirement to describe exemptions, and the tracking system. Pretty thin soup, if you ask me. The FOIA community would have been better served if the legislation had been postponed until the next President takes office.