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«The Cycle Continues: Congress Amends the FOIA in 2007* On New Year’s Eve, when most Americans were welcoming in a presidential election year, those ...»

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The Cycle Continues: Congress Amends the FOIA in 2007*

On New Year’s Eve, when most Americans were welcoming in a presidential

election year, those in the openness-in-government community were waiting to learn what

the current president would do with the package of Freedom of Information Act

amendments that Congress had passed despite Administration objections just prior to the

end of its 2007 session.

President Bush could have vetoed the bill (S. 2488), though it no longer contained an arguably unconstitutional penalty provision for agency time-limit violations. He could have signed it, perhaps with one of his controversial “signing statements” designed to lay a foundation for eliding one or more of its provisions. He even could have allowed the bill to become law without his signature, under Art. I, Sec. 7 of the Constitution, given that the Senate technically was not “in recess.” But he simply signed it without fanfare, and at nearly the last minute, thus ensuring that the “2007 FOIA Amendments” would join previous ones in a near-perfect 10-year cycle of legislative activity stretching back to the enactment of the Administrative Procedure Act (APA) in 1946.

Not that these amendments to the FOIA are as comprehensive as the previous ones made in 1974, 1986, and 1996. In fact, the 2007 FOIA Amendments are entirely procedural in nature and contain absolutely nothing sought by federal agencies as a needed reform from their own perspective -- hardly what one might have expected of the first major post-9/11 FOIA amendments.

Yet they nonetheless include several points of ambiguity and uncertainty that can be expected to breed litigation for years to come. Among them is a new attorney fee standard that, viewed on its face, might alter the litigation landscape more than was expected during the legislative process. Likewise, a revised definition of “agency record” that newly encompasses many records held by government contractors has a facial breadth that should spawn much litigation if it is implemented too narrowly. And no small amount of controversy -- albeit largely political, not interpretive -- surrounds a novel provision that unambiguously establishes a new governmentwide FOIA policy office within the National Archives and Records Administration.

New Provisions These new FOIA provisions, which stem from a rare bi-partisan effort begun early in 2005 by Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.), fall into the following

ten categories:

New Attorney Fee Standard. One of the primary driving forces of the 2007 FOIA Amendments was the strong dissatisfaction of media groups and other representatives of the FOIA-requester community with the availability of attorney fees in FOIA cases. When the Supreme Court rejected the longstanding “catalyst theory” for fee-shifting statutes such as the FOIA in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that had the effect of limiting the circumstances under which FOIA plaintiffs could be awarded attorney fees and costs to only those involving formal court orders, a considerable curtailment. Members of public interest groups soon began complaining about agencies’ new-found ability to withhold records until the midst of litigation and then release them in advance of such a court order, contrary to the spirit if not the letter of the FOIA’s attorney fee provision, which provides for fees if a requester has “substantially prevailed.” 5 U.S.C. § 552(a)(4)(E).

Congress addressed this head-on, and it did so by going so far as to explicitly

define, for the first time, what is meant by its “substantially prevailed” standard:

... a complainant has substantially prevailed if the complainant has obtained relief through either -- (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.

5 U.S.C. § 552(a)(4)(E)(ii), as amended by Pub. L. No. 110-175 (effective as of Dec. 31, 2007). By taking such a big step, Congress certainly took care of “the Buckhannon problem,” yet in so doing it provided an opportunity for FOIA requesters to now argue that courts should award them fees once this distinct new standard is met, regardless of any other consideration, especially as there is nothing in the amendments’ sparse legislative history that prevents that. To be sure, the statute says that courts “may” award FOIA fees, which means that judicial discretion always is involved, but the very large body of FOIA case law that preceded this major legislative action now may be called into question by FOIA plaintiffs in future cases.

Exactly which cases those soon might be is another issue that evidently will require adjudication. Like most of the amendments’ provisions, this new attorney fee standard silently took effect immediately upon enactment. But the Department of Justice soon thereafter signaled its intention to resist its applicability to cases that are already pending.

On this question of “retroactivity” under the FOIA, the government previously had taken the position that legislation enacted during the pendency of litigation could be applied to a FOIA plaintiff’s disadvantage -- that, for example, newly enacted Exemption 3 statutes could be invoked by an agency to withhold otherwise nonexempt information even if they were enacted as late in the day as while a case was pending in a court of appeals. See, e.g., City of Chicago v. ATF, 423 F.3d 777, 783 (7th Cir. 2005) (applying new Exemption 3 statute retroactively to pending cases); Sw. Ctr. for Biological Diversity v. USDA, 314 F.3d 1060,1062 (9th Cir. 2002) (same).

Now the question is whether the government is entitled to the exact opposite result when the shoe is on the other foot, so to speak, and the new legislation benefits the other party. The basic justification for the government trying to “have it both ways” under the FOIA is that it is a waiver of sovereign immunity, so evenhandedness is not necessarily required. Such a position, if accepted by the courts, would unexpectedly defeat the immediacy of Congress’s Buckhannon fix. However, what it overlooks, among other things, is that when the FOIA’s attorney fee provision itself originally was enacted, as part of the 1974 FOIA Amendments, this same sovereign immunity argument was made by the government, in the same kind of effort to forestall the awarding of FOIA fees, and it was firmly rejected. Cuneo v. Rumsfeld, 533 F.2d 1360, 1363-64 (D.C. Cir. 1977) (holding new FOIA attorney fees provision applicable to any “action which is terminated after [its] effective date”).

Prohibitions on Agencies Charging Fees. Another new provision deals with fees of a different kind. For a long time, representatives of the FOIA-requester community have urged Congress to enact some sort of “penalty provision” within the FOIA as a means of indirectly enforcing agency compliance with the Act’s time limits. Previous bills in the 109th and 110th Congresses had even gone so far as to propose that agencies be forced to waive the applicability of FOIA exemptions for their time-limit noncompliance, with insufficient safeguards for private interests and those of constitutional dimension, but that unrealistic approach ultimately yielded to the idea of penalizing agencies through the FOIA’s fee structure instead. (A miscellaneous 2007 FOIA Amendments provision specifying that attorney fees henceforth will be paid out of an agency’s own budget, see S.

2488, Sec. 4(b) (likely to be codified in title 31 of the United States Code), has been called by some an additional attempt to “penalize” agencies into better FOIA compliance, but it actually is not; the legislative record is clear that it was merely a last-minute procedural device designed to comply with technical “PAYGO requirements” in order to ensure passage in the House.) What Congress did instead was to provide that “if [an] agency fails to comply with any time limit” of the Act, its penalty is loss of its right to charge search fees for that FOIA request, no matter what type of requester is involved -- even a commercial requester. 5 U.S.C. § 552(a)(4)(A)(viii). And for the types of FOIA requesters who under the provisions of the 1986 FOIA Amendments are not obliged to pay search fees to begin with (such as representatives of the news media and academic requesters), the penalty is the complete elimination of duplication fees, no matter how many thousands of document pages or items of electronic media are involved and no matter how large the applicable fee would be.

While this penalty provision does not take effect until the end of this year (i.e., by applying to requests made on or after December 31, 2008), anyone who regularly makes FOIA requests should recognize that it holds enormous potential for affecting the administration of the Act. At many agencies, regular compliance with the Act’s 20-workingday deadline is beyond their reach even for the simplest of requests. And at any other agency, even one so small that it never or hardly ever runs a “backlog,” the next FOIA request to arrive could always be so large and/or complex that the same result obtains -especially if that requester were interested in enjoying a new freedom from search and/or copying fees. This of course applies to the Act’s 20-working-day deadline for adjudicating administrative appeals as well. In fact, because this new provision speaks of “any time limit,” it should not be overlooked that it also encompasses an agency’s failure to make a timely response to a request for “expedited processing,” which under the 1996 FOIA Amendments must be done within ten calendar days. See 5 U.S.C. § 552(a)(6)(E)(i)-(ii).

This last aspect alone could be used by many FOIA requesters, especially “representatives of the news media” (as newly defined -- see below), to impose upon agencies quite a penalty indeed.

The only caveat to this is that Congress left the door open to the possibility of an exception. With an oddly structured formulation, this provision imposes the new penalty “if” there is a deadline failure and then “if no unusual or exceptional circumstances...

apply to the processing of the request.” 5 U.S.C. § 552(a)(4)(A)(viii). It remains to be seen, of course, to what extent agencies will attempt to seek refuge in this terminology, let alone succeed with it in litigation. One of its two terms, “exceptional circumstances,” refers to the standard applied by courts in litigation to determine whether an agency is entitled to a so-called Open America stay of judicial proceedings, see 5 U.S.C. § 552(a)(6)(C)(i)-(ii), so it is difficult to imagine it operating at the administrative level where fees are first set as a practical matter. The other term, “unusual circumstances,” is the longstanding statutory standard by which an agency, if such circumstances do exist, invokes by letter an additional ten working days to respond to a request, see 5 U.S.C. § 552(a)(6)(B), something that agencies with time limit problems hardly ever bother doing. Furthermore, the statute not only contemplates agencies sending requesters timely “unusual circumstances” letters when such circumstances do exist (letters which must specify an exact date for the extended response), it also pointedly commands that “unusual circumstances” be used by agencies “only to the extent reasonably necessary to the proper processing of the particular requests.” 5 U.S.C. § 552(a)(6)(B)(iii). At a minimum, FOIA processing is likely to become far more interesting due to this new provision.

Contractor Records. A quite novel provision in these amendments is their extension of the FOIA to records maintained not by federal agencies but by federal contractors instead. This is accomplished by supplementation of the Act’s definition of “agency record” to more expansively include information “that is maintained for an agency by an entity under Government contract, for the purposes of records management,” 5 U.S.C. § 552(f)(2)(B), as amended by Pub. L. No. 110-175 (effective as of Dec. 31, 2007), language that may be read either broadly or narrowly. While there are indications in the legislative history of this language that it was meant to be given a relatively narrow construction, i.e., applying only where an agency contracts out its “records management” functions per se, it nevertheless is broad enough on its face to potentially include a much wider range of contractor records under the FOIA.

For example, the federal government now engages in the “contracting out” of many agency functions in accordance with the dictates of OMB Circular A-76 (as revised in 2003), which necessarily involves the removal of records pertaining to those functions from the FOIA’s ordinary reach. The information in such contractor records typically is maintained “for an agency,” and any such contractor regularly maintains information, in the words of the definition’s separate second clause, for “purposes of records management.” It is unclear why this new definition would not readily encompass all types of records now held by contractors instead of agencies, lest they be removed from FOIA coverage merely by dint of a “contracting out” enterprise.

Also unclear is how a novel thing such as this might work in actual practice.

Generally speaking, FOIA requesters know that they should make their requests to the agency (or in some cases agency component) that maintains the records sought, and agencies are obligated to search through their records for any that are responsive to a FOIA request’s terms. With the universe of records that are subject to the FOIA suddenly broadened by this provision, however, this becomes a much more complicated enterprise, far outside the norm for the FOIA’s usual administration, and it raises a host of questions.

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