59–010 

Calendar No. 127 

110TH CONGRESS REPORT " ! SENATE 1st Session 110–59 

OPEN GOVERNMENT ACT OF 2007 

APRIL 30, 2007.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 849] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to which was referred the bill 

(S. 849), to promote accessibility, accountability, and openness in 

Government by strengthening section 552 of title 5, United States 

Code (commonly referred to as the Freedom of Information Act), 

and for other purposes, report favorably thereon without amendments, and recommends that the bill, without amendment, do pass. 

CONTENTS 

Page 

I. Purpose of the Openness Promotes Effectiveness in our National Government Act (‘‘OPEN Government’’) of 2007 ............................................ 00 

II. History of the Bill and Committee Consideration ....................................... 00 

III. Section-by-Section Summary of the Bill ...................................................... 00 

IV. Cost Estimate ................................................................................................. 00 

V. Regulatory Impact Evaluation ...................................................................... 00 

VI. Conclusion ...................................................................................................... 00 

VII. Additional Views ............................................................................................ 00 

VIII. Changes in Existing Law Made by the Bill as Reported ............................ 00 

I. PURPOSE OF THE OPEN GOVERNMENT ACT

A. Summary 

Chairman Patrick Leahy and Senator John Cornyn introduced 

the Openness Promotes Effectiveness in our National Government 


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1 Janet Reno, Attorney General, Memorandum for Heads of Departments and Agencies, Subject: The Freedom of Information Act (Oct. 4, 1993). 2 John Ashcroft, Attorney General, Memorandum for Heads of All Federal Departments and 

Agencies, Subject: The Freedom of Information Act (Oct. 12, 2001). 

Act (‘‘OPEN Government’’) of 2007 on March 13, 2007. This legislation is cosponsored by Senators Specter, Kerry, Feingold, Isakson, 

Cardin and Brown. This bipartisan legislation promotes and enhances public disclosure of government information pursuant to the 

Freedom of Information Act (‘‘FOIA’’). The legislation will strengthen FOIA by, (1) helping Americans to obtain timely responses to 

their FOIA requests, (2) improving transparency in the federal government’s FOIA process, (3) providing an alternative to costly litigation for FOIA requesters and the government, and (4) promoting 

accountability for agency decisions to withhold information under 

FOIA. 

B. Background and Need for Legislation 

1. Background 

With the enactment of FOIA, 5 U.S.C. §552, et seq., in 1966, the 

Federal Government established a policy of openness toward information within its control. The FOIA establishes a presumptive 

right for the public to obtain identifiable, existing records of federal 

agencies. Any member of the public may use FOIA to request access to government information, and FOIA requesters do not have 

to show a need or reason for seeking information. 

When responding to FOIA requests, the burden of proof for withholding requested information rests with the federal department or 

agency seeking to deny the requests. Pursuant to FOIA, federal 

agencies may only withhold documents, or portions of documents, 

sought under FOIA if they fall within one or more of nine categories of exemptions established by the statute. The exemptions 

under FOIA allow federal agencies to withhold, among other 

things, information that relates solely to an agency’s internal personnel rules and practices; internal government deliberative communications about a decision before an announcement; information 

about an individual that, if disclosed, would cause an unwarranted 

invasion of personal privacy; and law enforcement records, particularly with regard to ongoing investigations. 

The enforcement of FOIA has been affected by memoranda 

issued by the Department of Justice. Under the Clinton Administration, Attorney General Janet Reno instructed agencies to make 

discretionary disclosures to FOIA requesters, and to withhold 

records only if a foreseeable harm existed from that release 1 In 

2001, the Bush Administration reversed this policy with a memorandum from Attorney General John Ashcroft that encouraged 

agencies to limit discretionary disclosures of information, calling on 

them to exercise ‘‘full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.’’ Similarly, the memo 

stated that the Department of Justice would defend decisions to 

withhold information from requesters unless those decisions ‘‘lack 

a sound legal basis.’’ 2 In addition, on December 14, 2005, President 

Bush issued Executive Order No. 13392 on Improving Agency Disclosure of Information under FOIA. 


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2. Need For Legislation 

Now in its fourth decade, the Freedom of Information Act remains an indispensable tool in shedding light on bad policies and 

government abuses. But, today, FOIA also faces challenges like 

never before. During the past six years, lax FOIA enforcement has 

undermined FOIA and eroded the public’s right to know. As a result, there is an urgent need to update and strengthen FOIA. 

Chief among the problems with FOIA are the major delays encountered by FOIA requestors. According to a report by the National Security Archive, an independent non-governmental research 

institute, the oldest outstanding FOIA requests date back to 

1989—before the collapse of the Soviet Union. And, while the number of FOIA requests submitted each year continues to rise, our 

federal agencies remain unable—or unwilling—to keep up with the 

demand. Recently, the Government Accountability Office found 

that federal agencies had 43 percent more FOIA requests pending 

and outstanding in 2006, than they had in 2002. 

Although the Bush Administration has taken some helpful first 

steps to address the growing problem with FOIA delays, the President’s Executive Order on FOIA, E.O. 13392 has not done enough 

to correct lax FOIA enforcement by federal agencies. More than a 

year after the President’s directive to government agencies to improve their FOIA services, Americans who seek information under 

FOIA remain less likely to obtain it. For example, a recent study 

by the Coalition of Journalists for Open Government found that the 

percentage of FOIA requestors who obtained at least some of the 

information that they requested from the government fell by 31 

percent last year. These and other shortcomings with the current 

FOIA policy demonstrate that the Congress must play an important role in preserving and strengthening FOIA. 

3. The OPEN Government Act 

This bipartisan bill contains commonsense reforms to update and 

strengthen FOIA. The OPEN Government Act addresses concerns 

with lax FOIA enforcement and compliance by helping Americans 

obtain timely responses to their FOIA requests and providing government officials with the tools that they need to ensure that our 

government remains open and accessible. Specifically, S. 849 addresses the growing backlog of FOIA requests and restores meaningful deadlines for agency action, by ensuring that the 20-day 

statutory clock runs immediately upon an agency’s receipt of a request and by imposing consequences on federal agencies for missing the deadline. The bill also establishes a FOIA hotline service 

for all federal agencies, either by telephone or on the Internet, to 

enable requestors to track the status of their FOIA requests. 

To address concerns about the growing costs of FOIA litigation, 

the bill also contains an ombudsman provision that creates an Office of Government Information Services within the Administrative 

Conference of the United States, which would review agency FOIA 

compliance and offer mediation services for FOIA requestors. The 

bill also clarifies that FOIA applies to agency records that are held 

by outside private contractors, no matter where these records are 

located. 

The bill also addresses a relatively new concern that, under current law, federal agencies have an incentive to delay compliance 


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3 In the additional views filed by Senator Kyl, he questions whether reversing Buckhannon 

is good policy. As a policy matter, Buckhannon raises serious and special concerns within the 

FOIA context. Under Buckhannon, it is now theoretically possible for an obstinate government 

agency to substantially deter many legitimate and meritorious FOIA requests. Here’s how: A 

government agency refuses to disclose documents even though they are clearly subject to FOIA. 

The FOIA requestor has no choice but to undertake the time and expense of hiring an attorney 

to file suit to compel FOIA disclosure. Some time after the suit is filed, the government agency 

eventually decides to disclose the documents—thereby rendering the lawsuit moot. By doing so, 

the agency can cite Buckhannon for the proposition that, because there is no court-ordered judgment favoring the requestor, the requestor is not entitled to recover attorneys’ fees. This 

straightforward application of the Buckhannon ruling effectively taxes all potential FOIA requestors. As a result, many attorneys could stop taking on FOIA clients—and many FOIA requestors could stop making even legitimate and public-minded FOIA requests—rather than pay 

what one might call the ‘‘Buckhannon tax.’’ The ‘‘Buckhannon tax’’ is not theoretical; it is a reality to FOIA requestors and litigators. In recent years, oversight hearings in both the House 

and Senate have exposed the reality of government stonewalling in FOIA cases. See Hearing 

before the Senate Committee on the Judiciary on ‘‘Open Government: Reinvigorating the Freedom of Information Act’’ Wednesday, March 14, 2007; House Government Reform Subcommittee 

on Government Management, Finance, and Accountability ‘‘Information Policy in the 21st Century: A Review of the Freedom of Information Act’’ Wednesday, May 11, 2005 (discussing cases 

and examples where the government abandoned dubious legal positions with respect to exemptions and withholding of documents after unreasonable delay and often on the eve of trial). 

with FOIA requests until just before a court decision that is favorable to a FOIA requestor. The Supreme Court’s decision in 

Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of 

Health and Human Resources, 532 U.S. 598 (2001), eliminated the 

‘‘catalyst theory’’ for attorneys’’ fees recovery under certain federal 

civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the 

records requested in the litigation just prior to a court decision that 

would have been favorable to the FOIA requestor. The bill clarifies 

that Buckhannon does not apply to FOIA cases.3

Finally, the bill enhances the agency reporting requirements 

under FOIA to ensure that federal agencies provide the information 

needed to understand FOIA delays and the bill also improves personnel policies for FOIA officials to enhance agency FOIA performance. 

The OPEN Government Act is supported by more than 25 different organizations ranging from journalists to librarians to public 

interest organizations, including, the American Association of Law 

Libraries, American Civil Liberties Union, American Library Association, American Society of Newspaper Editors, Associated Press 

Managing Editors, Association of Health Care Journalists, Center 

for Democracy & Technology, Coalition of Journalists for Open 

Government, Committee of Concerned Journalists, Education Writers Association, Electronic Privacy Information Center, Federation 

of American Scientists/Project on Government Secrecy, Free Congress Foundation/Center for Privacy & Technology Policy, Freedom 

of Information Center/University of Missouri, The Freedom of Information Foundation of Texas, The Heritage Foundation/Center 

for Media and Public Policy, Information Trust, National Conference of Editorial Writers, National Freedom of Information Coalition, National Newspaper Association, National Security Archive/ 

George Washington University, Newspaper Association of America, 

People for the American Way, Project on Government Oversight, 

Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, and the Society of Environmental 

Journalists. 


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4Senators Leahy and Cornyn introduced essentially identical FOIA reform legislation, S. 394, 

on February 16, 2005. The Judiciary Committee favorable reported that legislation on September 21, 2006. However the full Senate did not consider the measure before the 109th Congress adjourned. 

II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. Hearings 

1. March 15, 2005 

On March 15, 2005, the Subcommittee on Terrorism, Technology 

and Homeland Security held a hearing entitled, ‘‘Expanding Openness in Government and Freedom of Information.’’ This hearing focused on three FOIA bills introduced during the 109th Congress, 

including an earlier version of the OPEN Government Act, S. 394,4

which Chairman Leahy and Senator Cornyn had introduced on 

February 16, 2005. During the hearing, witnesses from the FOIA 

requestor community and media, including Katherine M. ‘‘Missy’’

Cary, Assistant Attorney General of Texas and Chief, Open 

Records Division, Walter Mears, former Washington bureau chief 

and executive editor, Associated Press, Mark Tapscott, Director, 

Center for Media and Public Policy, The Heritage Foundation, Meredith Fuchs, General Counsel, National Security Archive, Thomas 

Susman, a longtime practicing FOIA lawyer, and Lisa Graves, a 

representative of the ACLU, discussed the need to reform FOIA 

and for Congress to enact the FOIA reforms contained in the 

OPEN Government Act. 

2. March 14, 2007 

On March 14, 2007, the full Judiciary Committee held a hearing 

on ‘‘Open Government: Reinvigorating the Freedom of Information 

Act,’’ which examined the OPEN Government Act of 2007, S. 849, 

and other efforts to reinvigorate FOIA. The hearing also examined 

a new report by the National Security Archive which found that 

federal agencies are not complying with the Electronic Freedom of 

Information Act (‘‘E–FOIA’’) amendments of 1996. During this 

hearing, witnesses from the FOIA requestor community and media 

representatives, including, Meredith Fuchs, Katherine M. Carey, 

Sabina Haskell, Editor, Brattleboro Reformer, and Tom Curley, 

President and CEO of the Associated Press, Representing the Sunshine in Government Initiative, testified about the continuing need 

for Congress to enact FOIA reform legislation and endorsed the 

FOIA reforms contained in the OPEN Government Act. 

B. Legislative History 

Senators Leahy and Cornyn introduced the OPEN Government 

Act, S. 849, on March 13, 2007. After the Committee hearing on 

this bill, the bill was considered by the Committee on April 13, 

2007. During that consideration, Senator Kyl noted some concerns 

and filed amendments. However, he agreed to proceed to report the 

bill without amendment, subject to additional negotiations with the 

bill’s chief sponsors. The Committee agreed by unanimous consent 

to report the bill favorably to the Senate. 


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III. SECTION-BY-SECTION SUMMARY OF THE BILL

Sec. 1. Short title 

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. Requestors have raised concerns that the holding in 

Buckhannon could be extended to FOIA cases. This section clarifies 

that Buckhannon’s holding does not and should not apply to FOIA 

litigation. 

Sec. 5. Disciplinary actions for arbitrary and capricious rejections 

of requests 

The 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 


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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 Information 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. 


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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. 

IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

Summary: S. 849 would make several amendments to the Freedom of Information Act (FOIA), which generally allows any person 

the right to obtain federal agency records protected from disclosure. 

Specifically, the legislation would: 

• Expand FOIA’s definition of the news media; 

• Require time limits for agencies to act upon FOIA requests; 

• Allow greater recovery of attorneys’ fees and litigation 

costs by FOIA requestors if information is withheld by the government; 

• Require agencies to provide tracking numbers for FOIA requests and status information; 

• Amend the types of information that are exempt from disclosure under FOIA; 

• Require federal agencies to prepare additional reports to 

the Congress concerning FOIA activities; 

• Require new reports concerning agencies’ FOIA programs 

from the Government Accountability Office (GAO), the Department of Justice (DOJ), the Office of the Special Counsel (OSC), 

and the Office of Personnel Management (OPM); and 

• Establish an Office of Government Information Services 

(OGIS) to review FOIA policies and procedures, conduct audits, 

and offer mediation services. 

CBO estimates that enacting this legislation would increase direct spending by $6 million in 2008 and $63 million over the 2008– 2017 period to reimburse citizens making FOIA requests for attorney’s fees and litigation cost payments. CBO also estimates that 

enacting S. 849 would result in a loss of certain fees that are recorded in the budget as revenues, for a cost of less than $500,000 

annually over the 2008–2017 period. 

In addition, we estimate that implementing the bill would in- crease costs subject to appropriation by $9 million in 2008 and $57 

million over the 2008–2012 period to establish the OGIS and implement new agency reporting requirements. S. 849 would codify and 


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expand Executive Order 13392 that requires agencies to improve 

their FOIA operations, including improving efficiency and customer 

services. 

S. 849 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

would not affect the budgets of state, local, or tribal governments. 

Estimated cost to the federal government: The estimated budgetary impact of S. 849 is shown in the following table. The costs 

of this legislation fall within budget function 800 (general government) and all other budget functions that include federal salaries 

and expenses. 

Basis of estimate: For this estimate, CBO assumes that S. 849 

will be enacted before the start of 2008, that the necessary funds 

will be provided for each year, and that spending will follow historical patterns for similar programs. 

Enacted in 1966, FOIA was designed to enable any person—individual or corporate, regardless of citizenship status—to request, 

without explanation or justification, access to existing, identifiable, 

and unpublished executive branch records on any topic. The Office 

of Management and Budget issues guidelines to agencies on fees to 

charge for providing copies of information requested, while DOJ 

oversees agency compliance with FOIA. Based on information from 

GAO for fiscal year 2005, federal agencies (excluding the Social Security Administration) received more than 2.5 million FOIA requests. In addition, DOJ reports that in fiscal year 2005, agencies 

devoted about 5,000 employee-years to processing and litigating 

FOIA requests at a cost of over $300 million. 

By fiscal year, in millions of dollars— 

2009 2010 2011 2012 2013 2014 2015 2016 2017 

CHANGES IN DIRECT SPENDING 

Attorneys’ Fees and Litigation 

Costs: 

Estimated Budget Authority 6 6 6 6 7 7 7 7 7 7 

Estimated Outlays ................ 6 6 6 6 6 6 6 7 7 7 

CHANGES IN REVENUES 

FOIA Fees: 

Estimated Revenues ............. * * * * * * * * * * 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Office of Government Information 

Services: 

Estimated Authorization 

Level ................................. 3 6 6 7 7 7 7 8 8 8 

Estimated Outlays ................ 3 5 6 6 7 7 7 8 8 8 

FOIA Reporting Requirements: 

Estimated Authorization 

Level ................................. 4 5 5 5 6 6 6 6 6 7 

Estimated Outlays ................ 3 5 5 5 6 6 6 6 6 7 

Other Reports: 

Estimated Authorization 

Level ................................. 3 2 1 * * * * * * * 

Estimated Outlays ................ 3 2 1 * * * * * * * 

Total Changes: 

Estimated Authorization 

Level ................................. 10 13 12 12 13 13 13 14 14 15 

Estimated Outlays ................ 9 12 12 11 13 13 13 14 14 15 

NOTE: * = revenue loss or spending increase of less than $500,000. 


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Direct spending and revenues 

Attorneys’ Fees and Litigation Costs. Under section 4, FOIA requestors would be entitled to recover any attorneys’ fees and litigation costs incurred to receive requested information through a judicial or administrative order or because of a voluntary change in an 

agency’s FOIA policies. Those payments would be made from the 

Judgment Fund (a permanent, indefinite appropriation for claims 

and judgments against the United States). The cost of implementing this section would depend on the number of successful 

challenges to FOIA requests that are either fully or partially denied and any changes in FOIA disclosure policies. 

Under current law, when a FOIA request is denied or partially 

granted, the requestor can administratively appeal the decision. If 

the administrative appeal is also denied, a requestor has the right 

to appeal the decision in federal court. Based on a review of FOIA 

decisions by federal courts over the 2001–2005 period, CBO estimates that about 350 FOIA cases are presented annually, and 

about 6 percent of complainants subsequently challenge agency decisions and are reimbursed for attorneys’ fees and litigation costs. Those payments by the Judgment Fund cost about $3 million a 

year. In addition, based on information from 15 major agencies 

over the 2001–2005 period, including the Departments of Veterans 

Affairs, Treasury, Defense, Labor, State, and Justice, CBO estimates that requestors successfully appeal about 1,000 FOIA cases 

each year. 

CBO estimates that the average cost of litigating a FOIA lawsuit or administrative appeal is about $6,000 per case. Assuming that 

agencies act on about 1,000 FOIA cases each year, CBO estimates 

that enacting this legislation would increase direct spending from 

the Judgment Fund by $30 million over the 2008–2012 period and $63 million over the 2008–2017 period. 

FOIA Fees. FOIA requests from researchers associated with academic institutions and the news media are charged fees for the duplication of records that are larger than 100 pages. All other requestors are charged fees for research time and duplication costs 

after the first two hours of research and 100 pages of copying. 

Those fees are recorded on the budget as revenues and deposited 

into the general fund of the Treasury. Section 3 would expand the 

definition of news media researchers to FOIA requestors who have 

no affiliation with a media outlet but have a publishing history. 

Based on a review of annual FOIA reports from 15 major agencies 

over the fiscal year 2003–2005 period, CBO estimates that agencies collect about $4 million in FOIA fees annually. CBO expects that 

expanding the definition of the news media would reduce the 

amount of fees currently collected for retrieval of information. 

Based on information from some of the 15 major agencies, CBO estimates that the reduction in FOIA fees collected would be less 

than $500,000 annually. 

Spending subject to appropriation 

Office of Government Information Services. Section 11 would establish an Office of Government Information Services within the 

Administrative Conference of the United States. The office would 

review FOIA policies and practices, make recommendations, offer 

mediation services, and conduct audits of agency’s FOIA programs. 


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Based on information from DOJ and the cost of similar offices, 

CBO estimates that implementing this provision would cost $7 million annually for additional staff to conduct audits of FOIA programs. CBO expects that the new agency would take about two 

years to reach that level of effort. We estimate that operations of 

the new office would cost $27 million over the 2008–2012 period, 

assuming appropriation of the necessary amounts. 

FOIA Reporting Requirements. Section 9 would add a number of 

additional reporting requirements to the annual FOIA reports submitted by all federal departments and agencies. This would include 

FOIA information on the time required to process requests, median 

and average processing time, expedited and appeal processing time, 

and the oldest pending requests. In addition, S. 849 would require 

each agency to provide the raw data used to compile their annual 

FOIA report. Based on the costs of similar reports, a review of annual reports by 15 major agencies over the 2001–2005 period, and 

additional information from some of those agencies, CBO estimates 

that those reporting requirements would cost about $5 million annually and $24 million over the 2008–2012 period, assuming the 

appropriation of the necessary amounts. 

Other Reports. S. 849 would require new reports by a number of 

government agencies. GAO would be required to report on critical 

infrastructure information that is collected by the government from 

the private sector but is exempt from FOIA disclosure. DOJ and 

OSC would be required to report on legal actions related to the rejection of FOIA requests, and OPM would be required to produce 

a report on FOIA personnel policies. Based on the costs of similar 

reports, CBO estimates that implementing those provisions would 

cost $6 million over the 2008–2012 period, assuming the availability of appropriated funds. 

Other Provisions. Additional provisions would require providing 

tracking numbers for FOIA requests and would expand the provisions of Executive Order 13392 issued on December 14, 2005. That 

order calls upon all federal agencies to improve their FOIA operations, including customer service and assistance. Specifically, the 

order requires agencies to develop FOIA improvement plans, designate a Chief FOIA officer, and establish FOIA requestor centers. 

Based on information from DOJ and a review of annual reports by 

15 major agencies over the 2001–2005 period, CBO estimates that 

those provisions would not significantly increase agencies’ costs to 

implement FOIA. 

Intergovernmental and Private-Sector Impact: S. 849 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would not affect the budgets of state, local, or tribal governments. 

Previous CBO estimate: On March 12, 2007, CBO provided a cost 

estimate for H.R. 1309, the Freedom of Information Act Amendments of 2007, as ordered reported by the House Committee on 

Oversight and Government Reform on March 8, 2007. Both bills 

would amend the Freedom of Information Act but have different 

provisions, including provisions related to the structure of the 

OGIS and the payment of FOIA fees. CBO cost estimates for the 

two bills reflect those differences. 


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Estimate prepared by: Federal Costs: Matthew Pickford; Impact 

on State, Local, and Tribal Governments: Elizabeth Cove; and Impact on the Private-Sector: Amy Petz. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

V. REGULATORY IMPACT EVALUATION

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will 

result from the enactment of S. 849. 

VI. CONCLUSION

Passage and enactment of the OPEN Government Act of 2007, S. 

849, is long overdue. This bipartisan legislation reaffirms the fundamental premise of FOIA—that government information belongs 

to all Americans. Open government is not a Democratic issue, or 

a Republican issue. It is an American issue. 


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VII. ADDITIONAL VIEWS

A. ADDITIONAL VIEWS OF SENATOR KYL 

Although the goals of the OPEN Government Act are laudable, 

the bill reported by the committee has a number of flaws that must 

be addressed. Chief among these is the bill’s elimination of several 

FOIA exemptions—including for information that is privileged or 

law-enforcement sensitive—in cases where a Federal agency misses 

the statutory deadline for responding to a FOIA request. The Justice Department’s Views Letter for this bill, using uncharacteristically strong language, describes this provision as a ‘‘draconian 

remedy with enormous consequences.’’

Subsection (b) of FOIA exempts several categories of information 

from disclosure under FOIA. The OPEN Government Act, however, 

provides that if an agency does not comply with FOIA’s 20-day decision deadline, then no FOIA exemptions shall apply unless disclosure of the information would harm national security, disclose personal private or proprietary information, or is otherwise precluded 

by law. Among the current, codified FOIA exemptions that would 

be defaulted under the OPEN Government Act if the 20-day deadline were missed are: 

• information that is privileged in litigation, 

• law-enforcement information whose disclosure could reasonably be expected to interfere with law-enforcement proceedings, 

• information whose disclosure would deprive a person of a 

fair trial, 

• information whose disclosure could reasonably be expected 

to disclose the identity of a confidential source, 

• information about the techniques and procedures for law 

enforcement investigations and prosecutions, and 

• information whose disclosure could reasonably be expected 

to endanger the life or physical safety of an individual. 

Disclosing all of these types of information simply because a 20- 

day deadline was not met is a harsh and disproportionate remedy. 

Many of these disclosures would harm individuals who have no 

control whatsoever over the government’s compliance with FOIA 

requests—individuals who would not even know that a FOIA request had been made. Should we really force disclosure of information ‘‘whose disclosure could reasonably be expected to endanger 

the life or physical safety of an individual’’ simply because a Federal employee did not meet a FOIA request deadline? 

The Justice Department’s Views Letter addresses this issue as 

well. The letter states: 


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Of greatest concern to the Department is the automatic 

waiver of the existing exemption for law enforcement information. The wholesale release of law enforcement-related documents would have devastating consequences for ongoing criminal investigations. Sensitive law enforcement techniques could 

be exposed, and the lives of witnesses, confidential informants, 

and law enforcement officials would, without a doubt, be placed 

in imminent danger. Indeed, the very system of confidentiality 

inherent in the federal government’s law enforcement activities 

would be shattered by the lack of predictability that this provision would yield. 

The Justice Department’s letter also raises a number of other 

concerns about the OPEN Government Act that ought to be addressed. For example, the bill legislatively overrules the U.S. Supreme Court’s decision in Buckhannon Board and Care Home v. 

West Virginia Dept. of Health and Human Services, 532 U.S. 598 

(2001), as that decision applies to FOIA. Buckhannon clarifies that 

a party suing the government is not entitled to attorney’s fees 

under the standard fee-shifting statutes if the government voluntarily changed its position and gave the plaintiff what he wanted. 

The bill would reverse this rule and allow such a plaintiff to recover attorney’s fees. 

If the government is forced to pay attorney’s fees even if it settles 

a lawsuit without court action—if it is forced to pay even if it voluntarily or unilaterally agrees to turn over documents, enters into 

an agreement with the parties, or resolves the matter in administrative proceedings without going to court—then we may well find 

that the government is less inclined to settle FOIA lawsuits. By 

punishing the government for changing its position and handing 

over the requested information, this provision of the bill may undercut the broader purposes of the OPEN Government Act. 

Moreover, it is entirely reasonable and to be expected that, over 

the course of litigation or administrative proceedings, new information is uncovered that causes the government to reevaluate and reverse its initial denial of a FOIA request. The fee-shifting statute 

should not deter the government from acting on that new information and reversing its earlier FOIA denial. Also, sometimes an initial denial may be reversed for reasons beyond the control of the 

agency to which the request was made—for example, another part 

of the government might declassify the requested documents. In 

these types of situations, the government should not be punished 

for having initially denied the request. 

At the very least, a FOIA plaintiff should not be allowed to recover the costs of maintaining his litigation if the litigation itself 

was meritless. Even a meritless lawsuit may prove enough of a 

burden to persuade the government to change its position—or such 

a lawsuit may generate public pressure that results in such a 

change in position. That is all very well. But if the lawsuit itself 

was not legally sound, the plaintiff should not be compensated for 

bringing the litigation. 

The Justice Department’s Views Letter raises a number of other 

important points. Rather than reiterate those points here, I simply 


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include the letter as an attachment to this statement and urge anyone who is interested in this bill to read the letter. 

JON KYL. 

MARCH 26, 2007. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: This letter presents the views of the Department on S. 849, the ‘‘Openness Promotes Effectiveness in our 

National Government Act of 2007’’ or the ‘‘OPEN Government Act 

of 2007,’’ which amends the Freedom of Information Act (FOIA), 5 

U.S.C. § 552. The FOIA is a vital and continuously developing government disclosure mechanism that has been refined over time to 

accommodate both technological advancements and society’s maturing interests in a transparent and fully responsible government. 

The Department is firmly committed to full compliance with the 

FOIA as a means of maintaining an open and accountable system 

of government, while also recognizing the importance of safeguarding national security, enhancing law enforcement effectiveness, respecting business confidentiality, and preserving personal 

privacy. 

As a sign of the Department’s continued commitment to the 

FOIA, it serves as the lead agency in the implementation of Executive Order 13,392, ‘‘Improving Agency Disclosure of Information,’’ issued on December 14, 2005. This Order has immediately brought 

high visibility and focused attention on the FOIA by mandating the 

designation of a Chief FOIA Officer, FOIA Requester Service Centers, and FOIA Public Liaisons, in each agency. The Order has also 

focused on the improvement of FOIA processing by ensuring that 

agency FOIA operations are both ‘‘citizen-centered’’ and ‘‘resultsoriented.’’ The benefits of instituting these policies are already felt 

Government-wide, as agencies have developed comprehensive FOIA 

improvement plans and have issued their first reports mandated by 

this Order. 

The Department opposes several sections of S. 849, as currently 

drafted, including, most importantly, section 6, which prevents the 

Government from relying on a number of FOIA exemptions, including exemptions for highly sensitive law enforcement information 

and privileged material, if the Government does not meet the statutory deadline for responding to requests. The Department also has 

concerns with section 3, which expands the definition of ‘‘representative of the news media’’ for purposes of assessing FOIA fees; and 

section 4, which reinstates the so-called ‘‘catalyst theory’’ for reimbursement of attorneys fees in FOIA litigation. More generally, the 

Department is very concerned about the substantial administrative 

and financial burdens that this legislation would impose upon the 

Executive branch, without authorizing the resources necessary to 

implement its statutory scheme. 

Section 6—Time limits for agencies to act on requests 

Of grave concern to the Department is section 6(b) of the legislation, which prevents an agency from relying on a number of statutorily provided exemptions from FOIA unless it meets the twentyVerDate Aug 31 2005 07:01 May 01, 2007 Jkt 059010 PO 00000 Frm 00015 Fmt 6604 Sfmt 6602 E:\HR\OC\SR059.XXX SR059

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day accelerated deadline established in section 6, or unless the 

agency can make a ‘‘clear and convincing’’ showing to a court that 

there was ‘‘good cause’’ for its failure to meet the applicable deadline. Although this provision preserves exemptions for national security information, Privacy Act-protected information, ‘‘proprietary 

information,’’ and information otherwise protected by law, section 

6(b) eviscerates several critical exemptions in FOIA including exemptions for inter- or intra-agency memoranda and highly sensitive 

categories of law enforcement records, unless an agency persuades 

a court that it has good cause for failing to meet the deadline. 

Section 6 of S. 849 is a misguided attempt to remedy one perceived problem—compliance with the statutory response deadlines—with a measure that would eviscerate a central principle of 

FOIA—protection of sensitive information. While the basic purpose 

of FOIA is to ensure an informed citizenry, it balances society’s 

strong interest in open government with other compelling public interests, such as protecting national security, enhancing the effectiveness of law enforcement, protecting sensitive business information, protecting internal agency deliberations and common law 

privileges and, not least, preserving personal privacy. 

This provision, which would establish that failure to meet an applicable deadline would lead to the automatic release of all information with only a few narrow exceptions, is a draconian remedy 

with enormous consequences. For example, the automatic waiver of 

privileges, including privileges for attorney-client and attorney 

work-product information that are incorporated in FOIA through 

Exemption 5 and well-established by common law for centuries, is 

unprecedented. This would frustrate the policy behind these privileges and, among other things, would doubtless create a chilling effect on policy discussions, create public confusion that could result 

from disclosure of reasons and rationales that were not the grounds 

for agency action, and cause the premature disclosure of proposed 

policies before they have been sufficiently considered. It would also 

greatly interfere with government attorneys’ work in preparing for 

litigation, exposing their legal strategies, approaches, and views to 

their opposing counsel, thereby greatly undermining their ability to 

represent their client. It would also chill the exchange of information to government attorneys from their clients, reducing their ability to properly represent them. 

Of greatest concern to the Department is the automatic waiver 

of the existing exemption for law enforcement information. The 

wholesale release of law enforcement-related documents would 

have devastating consequences for ongoing criminal investigations. 

Sensitive law enforcement techniques could be exposed, and the 

lives of witnesses, confidential informants, and law enforcement officials would, without a doubt, be placed in imminent danger. Indeed, the very system of confidentiality inherent in the federal government’s law enforcement activities would be shattered by the 

lack of predictability that this provision would yield. This is also 

troubling since there is greater convergence between law enforcement activities and homeland security activities. 

Further, under section 6(b), any person or organization with 

criminal intent (including terrorist organizations) could possibly 

gain access to internal military force protection information (i.e., 


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information concerning the protection of the Pentagon reservation, 

munitions sites, and any other military installation) if an agency 

possessing such information were forced to automatically waive any 

applicable exemption. Disclosures of such highly sensitive information could have dire consequences for our military. 

Among the limited exceptions that section 6 would allow the government to invoke after the twenty-day deadline, the exception 

stated for ‘‘personal private information’’ would be inadequate in 

any event. Because this exception is limited to ‘‘personal private information protected by section 552a’’ it would apply only to information protected by the Privacy Act. This lack of protection for information not protected by the Privacy Act could result in the public disclosure of personal information, such as third parties’ social 

security numbers. Such a disclosure could have severe consequences for unsuspecting third parties, especially if the social security numbers were used for criminal purposes, such as identity 

theft. Under current law, personnel, medical, and similar files are 

exempt from FOIA if disclosure ‘‘would constitute a clearly unwarranted invasion of personal privacy.’’ 5 U.S.C. §552(b)(6); see also 

id. §552(b)(7)(C). This category of information is far broader than 

the information covered by the Privacy Act. The existing exemption 

has been interpreted by the courts to mean that a government decision-maker must balance the severity of the threat to an individual’s privacy against the public interest in disclosure. See Dep’t of 

the Air Force v. Rose, 425 U.S. 352 (1976). By narrowing this important exemption to protect only information covered by the Privacy Act, S. 849 repudiates the policy of balancing any individual’s 

privacy interest against the public interests in disclosure. Thus, S. 

849 will significantly limit personal privacy safeguards. 

Section 6(b) does contain a purported safety valve that would 

permit a court to waive the harsh application of the section if an 

agency ‘‘demonstrates by clear and convincing evidence that there 

was good cause for the failure to comply with the applicable time 

limit provisions.’’ However, by focusing on the agency’s reason for 

failing to meet the twenty day deadline, rather than upon the potential harm that reasonably could be expected to be caused by the 

radical disclosures that would occur, this provision ignores the substantial public interest in avoiding the disclosure of highly sensitive records. 

Although section 6(b) would not eliminate the availability of the 

President’s constitutional privilege to protect the interests covered 

by the statutory exemptions, section 6(b) would nonetheless raise 

substantial constitutional concerns that could make it unconstitutional as applied in particular circumstances. The uncertainty created by a system that depends on a court finding ‘‘good cause’’ for 

delay or upon the invocation of constitutional privilege would likely 

chill the candor of the constitutionally-protected deliberations of 

the Executive branch or otherwise harm the interests protected by 

the statutory exemptions in a way that could compromise the Executive’s discharge of its constitutional functions. Rather than fostering responsible disclosure, this provision actually could well 

force agencies to deny requests by the twenty-day deadline in order 

to avoid waiving any exemptions, and thus needlessly increase appeals and litigation. In addition, this provision fails to take into acVerDate Aug 31 2005 07:01 May 01, 2007 Jkt 059010 PO 00000 Frm 00017 Fmt 6604 Sfmt 6602 E:\HR\OC\SR059.XXX SR059

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1 If enacted, the penalties imposed by section 6(b) would have an equally adverse effect on 

NARA’s ability to protect under the FOIA records that are also subject to the Presidential 

Record Act (PRA). When processing requests for Presidential records, the PRA requires NARA 

to inform the former President of its intent to publicly disclose the requested records. In conjunction with this statutory requirement, Executive Order 13,233, ‘‘Further Implementation of 

the Presidential Records Act,’’ affords the former President (and the incumbent President) ninety days to conduct a records review. As a result of the drastic penalties contained in section 

6(b) of S. 849, NARA would, after only twenty-days, forfeit its ability to protect certain records 

under the FOIA, even if such records contain sensitive private information not protected by the 

Privacy Act, including FBI background files and other law enforcement or investigatory information. Additionally, it would be an added burden for NARA to attempt to compel a court to waive 

this provision in an effort to protect information for which it already has a sound legal basis 

to withhold. 2 Importantly, additional mail processing time is required in the post–9/11 world because the 

Department, as well as other agencies, now must x-ray or irradiate incoming mail, including 

FOIA requests. Five days might pass while the request is being irradiated and before any program office of an agency receives the x-rayed mail. 

count the complexity of many requests, the need to consult with 

other agencies, or the need to search for records in multiple locations, including at Federal records centers, all of which necessarily 

and reasonably add to the time it takes to respond to a request.1

The Department is also opposed to section 6(a) of S. 849, which 

would amend 5 U.S.C. §552(a)(6)(A)(i)by changing the twenty-day 

time limit so that it commences on the date that the request ‘‘is 

first received by the agency.’’ This represents a very significant 

change from current practice in which the twenty-day clock begins 

once the appropriate element of an agency has received the request 

in accordance with the agency’s FOIA regulations. Beginning the 

twenty-day time limit as soon as a request ‘‘is first received by the 

agency’’ does not allow for the practical necessity of forwarding a 

request to an appropriate field office, division, or component, which 

could take several or more days.2 This provision is thus at odds 

with the longstanding practice at all Federal agencies, under regulations that have been duly promulgated and followed in accordance with the explicit direction of the Act itself. See 5 U.S.C. 

§ 552(a)(3)(A). For example, Department of Justice FOIA regulations provide that ‘‘[a] request will be considered [as] received as 

of the date it is received by the proper component’s FOIA office.’’

28 C.F.R. §16.3 (2006). Additionally, given that agencies make addresses readily available on their Web sites and in their FOIA Reference Guides, it is not imposing any undue burden on a requester 

to direct his/her request to the appropriate office. Further, when a 

requester neglects to address his/her request properly, agencies 

routinely route the request to the proper office, so the requester is 

not penalized in any way for a failure to properly address a request. Conversely, this proposed change in the way the time periods are calculated penalizes the agency for something completely 

out of its control. Requesters will have no incentive to properly address their requests. More significantly, they will actually have an 

incentive to use the most obscure address possible in the hope that 

the time expended in properly routing it will render the agency unable to meet the response deadline. 

The Department is opposed to the second clause of section 6(a) 

which states that the twenty-day time period to respond to a request ‘‘shall not be tolled without the consent of the party filing the 

request.’’ In the course of processing a FOIA request there are numerous occasions when an agency must stop its processing in order 

to get information from the requester, and the agency should not 


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be penalized for the time it takes the requester to provide needed 

information to the agency. For example, after a request is first received by an agency the personnel responsible for processing it 

might determine that the request fails to reasonably describe the 

records that are being sought. In such situations agency personnel 

routinely go back to the requester for clarification of the request. 

Similarly, during the course of processing a request, the agency 

may determine that the search for responsive records will take 

longer than anticipated and so will cost more than the requester 

has agreed to pay. Again, in such situations the agency routinely 

goes back to the requester to see if the requester would like to narrow its request to reduce the fees owed, or to see if the requester 

will agree to pay the fees that are anticipated. In these situations, 

when the processing of the request is necessarily ‘‘on hold’’ while 

the agency awaits a decision by the requester, the time period for 

responding has traditionally been tolled. The language in section 

6(a) would not allow that to happen without the consent of the requester. That means that absent consent—which is not likely to be 

given—the agency will be penalized for the failure of requesters to 

provide necessary information in order for their requests to be 

processed. Rather than having an incentive to respond quickly to 

the agency in order to get their request back on track, this provision will actually give requesters an incentive to delay responding 

to the agency’s request for clarification, or for a commitment to pay 

fees, etc. because by doing so, they know that the twenty-day time 

period is ticking. 

We believe that the draconian penalties in section 6 not only are 

unwise, but are also unnecessary since Executive Order 13,392 has 

improved FOIA operations by requiring agencies to review their administration of the FOIA and their compliance with the statutory 

deadlines. The Executive Order also requires agencies to implement improvement plans specifically focused on eliminating or reducing any backlog of FOIA requests. The Department’s preliminary review of reports in this regard indicates that agencies overall 

are devoting increased resources to processing FOIA requests more 

efficiently and quickly, and indeed some agencies have already realized meaningful backlog reduction. 

Section 3—Protection of fee status for news media 

Section 3 of the legislation, titled ‘‘Protection of Fee Status for 

News Media,’’ expands the definition of ‘‘representative of the news 

media,’’ and thereby exempts a larger class of requesters from the 

obligation to pay what can sometimes be quite significant fees assessed for searching for responsive documents. The current law 

represents a carefully-struck balance that establishes differing fee 

levels for different categories of requesters. For example, an agency 

is permitted to charge a requester for document search time, duplication, and review costs if the request is made for a ‘‘commercial 

use.’’ 5 U.S.C. §552(a)(4)(A)(ii)(I). An agency may charge a requester only for document duplication if the request is made by an 

educational or non-commercial scientific institution, whose purpose 

is scholarly or scientific, or by a representative of the ‘‘news 

media.’’ 5 U.S.C. §552(a)(4)(A)(ii)(II). Section 3 of the legislation 

amends subclause (II) so that an agency ‘‘may not deny [to a repVerDate Aug 31 2005 07:01 May 01, 2007 Jkt 059010 PO 00000 Frm 00019 Fmt 6604 Sfmt 6602 E:\HR\OC\SR059.XXX SR059

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resentative of the news media] status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester’’ including Internet publications. Most significantly, it would further require an 

agency, in the absence of such prior publication history, to ‘‘consider the requestor’s stated intent at the time the request is made 

to distribute information to a reasonably broad audience.’’ Because 

it can be assumed that virtually all requesters claiming to be representatives of the news media will readily state that it is their ‘‘intent’’ to distribute the records to a broad audience, this expansion 

of the definition of ‘‘representative of the news media’’ would 

render the concept of ‘‘representative of the news media’’ virtually 

meaningless. 

Such an expansion of the definition of ‘‘representative of the 

news media’’ would have severe fiscal and other practical consequences for the Executive branch, and is ill-advised without empirical evidence that the current definition of ‘‘representative of the 

news media’’ is insufficient to carry out FOIA’s purposes. The increased taxpayer burden that would result from the changed definition should be undertaken only after careful review by Congress in 

light of limitations being imposed across the board on domestic discretionary spending. Indeed, the limitation in section 3 on the Government’s ability to collect fees for FOIA processing seems inconsistent with the stated desire of many Members of Congress to improve FOIA timeliness. With no requirement that requesters pay 

search fees, they have no incentive to tailor their requests and so 

they are likely to make overly broad requests. This, in turn, will 

stretch agency resources and will increase the time it takes to process all requests. The Executive branch cannot process FOIA requests expeditiously without adequate manpower and resources, 

which is dependent on adequate funds, including FOIA processing 

fees deposited in the Treasury Department’s general fund. 

Section 4—Attorneys’ fees 

Section 4 of the legislation would reinstate the so-called ‘‘catalyst 

theory’’ for the reimbursement of FOIA litigation fees. Current law 

permits a court to assess reasonable attorneys’ fees and litigation 

costs incurred when the complainant in a lawsuit challenging an 

agency’s response (or lack thereof) to a FOIA request has ‘‘substantially prevailed.’’ Section 4 of S. 849 would amend 5 U.S.C. 

§552(a)(4)(E) by altering and expanding the definition of ‘‘substantially prevailed’’ to include situations in which a ‘‘complainant has 

obtained relief through either (I) a judicial order, an administrative 

action, or an enforceable written agreement or consent decree; or 

(II) a voluntary or unilateral change in position by the opposing 

party, where the complainant’s claim or defense was not frivolous.’’

We understand this provision’s intent to be the overruling of the 

Supreme Court’s decision in Buckhannon Board & Care Home, Inc. 

v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598 (2001), 

and of a number of recent court of appeals decisions that have applied Buckhannon to reject the catalyst theory as a basis for FOIA 

attorneys’ fee awards. See OCAW v. Dep’t of Energy, 288 F.3d 452 

(D.C. Cir. 2002); Union of Needletrades v. INS, 336 F.3d 200 (2d 

Cir. 2003). 


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The Department does not support the reinstatement of the catalyst theory, for many of the same reasons enunciated in Chief Justice Rehnquist’s Buckhannon opinion. Proponents of the catalyst 

theory have argued that it is needed for two reasons. First, they 

argue that it would encourage plaintiffs with meritorious but expensive cases to bring suit. Second, they argue that it would prevent defendants from unilaterally mooting an action before judgment to avoid an award of attorneys’ fees. As Chief Justice 

Rehnquist noted in his opinion in Buckhannon, however, ‘‘these assertions . . . are entirely speculative and unsupported by any empirical evidence.’’ Buckhannon, 532 U.S. at 608. 

More importantly, the Department is especially concerned that 

the catalyst theory, if reinstated, will serve as a disincentive to a 

Government agency’s decision to voluntarily change decisions and 

procedures with respect to FOIA requests, because doing so could 

make the agency liable for a complainant’s legal fees. Such a result 

would be inconsistent with FOIA’s underlying purpose of promoting, rather than inhibiting, disclosure. 

Furthermore, it is unclear what is meant by the inclusion of an ‘‘administrative action’’ as a possible means by which a requester 

can obtain ‘‘relief’’ that would justify attorneys’’ fees. If it is deemed 

to apply to a requester who receives documents through the administrative FOIA appeals process, that would be a major departure 

from long-standing administrative law practice and would severely 

undercut the traditional function of the administrative appeal process, which is designed to provide the requester with an avenue of 

further review at the agency, as well as provide the agency with 

a second opportunity to evaluate its response, thereby reducing the 

likelihood of a lawsuit. If this provision covers relief provided at the 

administrative appeal stage, this could increase the FOIA program 

costs dramatically, and would serve as a disincentive to release 

records at the administrative appeal stage. 

Section 7—Tracking numbers 

Section 7 would require agencies to establish systems to assign 

an individualized tracking number to each request and to notify requesters of this number within ten days. In addition, the legislation mandates the establishment of a telephone line or Internet 

service to provide information about the status of the request, including receipt date and estimated completion date. The need for 

this provision has been mitigated by the issuance of the FOIA Executive Order which required that agencies establish FOIA Requester Service Centers to provide requesters with information concerning the status of their FOIA requests. In addition, supervisory 

personnel have been appointed as FOIA Public Liaisons to ensure 

that FOIA requesters receive appropriate assistance from the service centers. Moreover, many agencies which receive higher volumes 

of requests already notify requesters of assigned tracking numbers 

when they first acknowledge receipt of requests. 

Section 8—Specific citations in exemptions 

Section 8 of S. 849 would amend FOIA’s Exemption 3, which protects information otherwise statutorily exempted from disclosure, 

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lic disclosure of information specifically cite to this section of S. 

849. We believe this amendment is unnecessary. The current 

version of Exemption 3 was enacted in 1976 (see Pub. L. No. 94–

409) to limit Exemption 3’s availability to specific categories of 

statutes: those that require agencies to withhold documents with 

no agency discretion, or, alternatively, that establish particular criteria for withholding or refer to particular types of matters to be 

withheld. The 1976 amendment to Exemption 3 has worked well 

now for over thirty years. Courts have recognized that the congressional intent to maintain the confidentiality of particular information is the central consideration in determining whether a statute 

falls within Exemption 3. In focusing on congressional intent, 

courts have avoided imposing additional requirements that Congress use any particular ‘‘magic words’’ to establish a statute as an 

Exemption 3 statute. Thus, the Census Act, the Internal Revenue 

Code, the National Security Act of 1947, and the grand jury secrecy 

rule, Fed. R. Crim. P. 6(e), to take several well-known examples, 

have been determined by the courts to qualify as Exemption 3 statutes even though those statutes do not specifically refer to Exemption 3. 

Moreover, subsection (e)(1)(B)(ii) of FOIA now requires agencies 

to include in their annual FOIA reports a complete list of all statutes that the agency relies upon to authorize withholding under 

Exemption 3, together with other pertinent information concerning 

such withholding. Thus, Congress has a ready mechanism under 

current law, created in the 1996 e-FOIA amendments (Pub. L. No. 

104–231), to determine how Exemption 3 is being administered. 

Additionally, section 8 could unduly hamper Congress in the future or even constitute a hidden trap. For example, Congress has 

recently enacted appropriations laws to bar the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives from releasing certain sensitive 

law enforcement data to the public. Because congressional intent to 

maintain the confidentiality of such data is apparent from these 

appropriations laws, there is no reason to require, in addition, a 

specific reference to Exemption 3 in every subsequent annual appropriations law. Most significantly, Congress over the years has 

acted to revitalize certain export laws that periodically expire while 

Congress deliberates over policy matters. These statutes protect 

confidential business information submitted to the Government in 

connection with export applications, and the courts have upheld 

Exemption 3 protection for such matters, based upon the clear import of the overall statutory scheme. See Times Publ’g. Co. v. Dep’t 

of Commerce, 236 F.3d 1286 (11th Cir. 2001). Under S. 849, such 

confidential business information would necessarily be subject to 

disclosure if Congress failed to meet the additional requirement imposed by S. 849. Additionally, if this provision is enacted, it is possible that there would be recurring disagreement as to whether 

subsequent nondisclosure statutes that do not clearly reference Exemption 3 have impliedly repealed or amended section 8. This sort 

of uncertainty would eviscerate what appears to be the central purpose of this provision. 


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Section 9—Reporting requirements 

Pursuant to the 1996 e-FOIA amendments (Pub. L. No. 104– 231), the Department of Justice has responsibility for collecting information from other Executive branch agencies concerning FOIA 

compliance, including the number of determinations not to comply 

with requests for records, the number of appeals, the number of 

pending requests, and the median time to process such requests. 

See 5 U.S.C. §552(e)(1). Section 9 expands the existing requirements in five principal areas: (1) Agencies’ detailed response data 

based upon the date on which the request was originally received 

including the average number of days, the median number of days, 

and the range of dates to respond; (2) data concerning the 10 active 

requests with the earliest filing dates; (3) data concerning the 10 

active administrative appeals with the earliest filing dates; (4) data 

concerning requests for expedited review; and (5) data on fee waiver requests. 

The Department believes that these new reporting requirements 

would be a largely unnecessary burden upon agencies that, as described above, cuts against the timeliness objectives pursued elsewhere in the bill. In addition, as described above, using the date 

a request is ‘‘originally received by the agency’’ as the starting 

point for determining time periods will result in a great distortion 

of the annual report statistics. If requesters misdirect requests, 

then the time spent correcting that error (i.e., the time spent forwarding the request to the proper office) would be counted against 

the agency’s processing time. This will result in statistics that do 

not actually reflect processing time. Further, it is not clear that 

providing the additional data will provide any new or useful information regarding agency response times. Importantly, as part of 

their new Executive Order reporting requirements, agencies now 

report on the range of dates for both pending requests and 

consults. Moreover, there has been a great deal of focus on the ten 

oldest requests by agencies. 

Section 10—Agency records maintained by a private entity: 

Current law defines an agency record as information that is ‘‘maintained by an agency in any format, including an electronic 

format.’’ 5 U.S.C. §552(f)(2). The Supreme Court elaborated on this 

standard by holding that an ‘‘agency record’’ is a document ‘‘. . . either created or obtained by an agency and under agency control at 

the time of the request.’’ Dep’t of Justice v. Tax Analysts, 492 U.S. 

136 (1989). The Supreme Court has also held that Federal participation in, or funding of, the generation of information by a privately controlled organization does not render that information an 

‘‘agency record’’ under the terms of FOIA. See Forsham v. Harris, 

445 U.S. 169 (1980). 

Section 10 of S. 849 amends the existing statutory definition in 

5 U.S.C. §552(f)(2) to include information ‘‘that is maintained for 

an agency by an entity under a contract between the agency and 

the entity.’’ The Department does not object to section 10 if its intention is solely to clarify that agency-generated records held by a 

Government contractor for records-management purposes are subject to FOIA. On the other hand, the Department would have very 

serious concerns if section 10 of S. 849 were intended to disturb 


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over twenty-five years of settled law by overruling the Forsham 

and Tax Analysts decisions. At the very least, section 10 is ambiguous as currently drafted and should be clarified. 

Section 11—Office of government information services 

The Department has significant questions and concerns about 

section 11, which would create an ‘‘Office of Government Information Services’’ within the Administrative Conference of the United 

States. This new office would be charged with responsibility for reviewing policies and procedures of agencies, conducting audits of 

those agencies, issuing reports, recommending policy changes to 

the President and Congress to improve the administration of the 

FOIA, and offering mediation services between requesters and administrative agencies. 

The Department is concerned about any intent that the proposed 

Office of Government Information Services would be given any sort 

of policymaking and adjudicative role with respect to FOIA compliance. Such a role is foreign to the traditional mission of the Administrative Conference of the United States, which was tasked with 

promoting improvements in the efficiency, adequacy, and fairness 

of procedures of the government’s regulatory programs by conducting research and issuing reports. See 5 U.S.C. § 594 (2000). Importantly, the aforementioned policymaking role remains appropriately placed with the Department of Justice, which has long 

held responsibility for ensuring compliance with the FOIA throughout the Executive branch. This role is all the more important, now 

that the Department serves as the lead agency in implementing 

Executive Order 13,392. 

Of additional concern is that the Office of Government Information Services would be authorized by S. 849 to provide mediation 

services between agencies and FOIA requesters. It should be noted 

that many FOIA disputes are not particularly well-suited to mediation because, inter alia, the two matters generally at issue in 

FOIA litigation—the adequacy of the search and the assertion of 

exemptions—are questions of law. Moreover, the authority given 

this Office under the bill may constitute the kind of significant authority that can only be exercised by officers duly appointed under 

the Appointments Clause, U.S. Const. art. II, sec. 2, cl. 2, and if 

that is the case, the provision would raise constitutional concerns. 

Further, the establishment of such an office would be unwarranted and redundant. Agencies routinely review their FOIA policies and procedures to ensure that they are adequately funded for 

the administration of the program. In fact, with the recent issuance 

of Executive Order 13,392, agencies are now required to scrutinize 

their processing of FOIA requests and report to the Department of 

Justice on their improvements made in that regard. Agencies then 

report any deficiencies in the implementation of their improvement 

plans to the Attorney General and the President’s Management 

Council. Also, the Executive Order required agencies to appoint 

Chief FOIA Officers, who ‘‘have agency-wide responsibility for efficient and appropriate compliance with the FOIA.’’ This requirement ensures high-level visibility and accountability by an agency’s 

‘‘senior official.’’ Further, the Department of Justice and the Government Accountability Office (GAO) already perform the function 


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of holding agencies accountable, working quite well together. Indeed, there have been several GAO reports analyzing Governmentwide administration of FOIA during just the past four years. 

Additionally, the creation of a separate, independent office to provide Ombudsmen-type services to requesters is unnecessary in 

light of all agencies’ meeting the Executive Order’s requirement to 

designate FOIA Public Liaisons and establish FOIA Requester 

Service Centers. The Public Liaisons and Requester Service Centers are there to provide information to the public about the status 

of their requests, to ensure that agencies use a ‘‘service-oriented’’

approach in responding to FOIA-related inquiries, and to resolve 

disputes. 

Finally, both sections 11 and 13 of the bill appear to require the 

submission of legislative recommendations to Congress by Executive branch agencies, requirements which conflict with the President’s authority to submit only such legislative proposals as he 

deems ‘‘necessary and expedient.’’ See U.S. Const. art. II, sec. 3. 

Any such provisions in the bill should be precatory rather than 

mandatory. 

Conclusion 

Since its enactment in 1966, FOIA has firmly established an effective statutory right of public access to Executive branch information in the Federal government. But the goal of achieving an informed citizenry is often counterpoised against other vital societal 

aims, such as the public’s interest in effective and efficient operations of government; the prudent use of limited fiscal resources; 

and the preservation of the confidentiality and security of sensitive 

personal, commercial, and governmental information. 

Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing 

a workable scheme that encompasses, balances, and appropriately 

protects all interests, while placing primary emphasis on the most 

responsible disclosure possible. 

Regrettably, S. 849, however well intentioned, does not provide 

a workable regime for effective, efficient compliance with the FOIA, 

nor does it provide a reasonable balance for the competing and 

equally compelling governmental aims involved here. 

Thank you for the opportunity to present our views. The Office 

of Management and Budget has advised us that from the perspective of the Administration’s program, there is no objection to submission of this letter. 

Sincerely, 

RICHARD A. HERTLING, 

Acting Assistant Attorney General. 


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B. ADDITIONAL VIEWS OF SENATOR CORNYN 

THE NATIONAL SECURITY ARCHIVE, 

THE GEORGE WASHINGTON UNIVERSITY, 

Washington, DC, May 10, 2005. 

Hon. JOHN CORNYN, 

U.S. Senate, 

Washington, DC. 

Hon. PATRICK LEAHY, U.S. Senate, 

Washington, DC. 

DEAR SENATORS CORNYN and LEAHY: On April 23, 2004, Professor Ralph Begleiter, a University of Delaware professor and a 

former CNN correspondent, filed a Freedom of Information Act 

(FOIA) request seeking two categories of information: (1) copies of 

361 photographic images of the honor ceremony at Dover Air Force 

Base for fallen U.S. military returning home to the United States 

that already had been released to another FOIA requester; and (2) 

similar images taken after October 7, 2001 at any U.S. military facility. 

The unnecessarily prolonged history of this FOIA request demonstrates how plaintiffs often are forced to take the extreme measure of filing a lawsuit to get the government to release information 

(which in this case probably was not too hard to find or review). 

And then how, when faced with the obligation to respond in court 

to the unreasonable denial of the FOIA request or unnecessary 

delay in processing, the government sometimes simply releases the 

records. This litigation strategy imposes significant burdens on the 

FOIA requester, who must locate counsel and participate in litigation, but denies the requester any recompense for fulfilling the ‘‘private attorney general’’ role envisioned by the FOIA, since the absence of a final court ruling requiring the disclosure often denies 

the plaintiff statutory attorneys’ fees. 

On June 30, 2004—48 business days after Professor Begleiter’s 

request was filed and more than twice the response time permitted 

under the FOIA—Mr. Begleiter filed an administrative appeal of 

his April 23, 2004 FOIA request. The appeal was never acknowledged or responded to by the Air Force. 

As of September 2004—five months after the request was filed—

Professor Begleiter had received no substantive response to the 

FOIA request or administrative appeal. Professor Begleiter then 

contacted each of the two FOIA personnel at the Department of Air 

Force who had acknowledged receipt of the FOIA request and was 

told by one person that there were no records and by another that 

the request was being processed. It was at that point that Professor 

Begleiter determined to file suit. 

On October 4, 2004, Professor Begleiter filed suit for the records 

requested on April 23, 2004, and in subsequent FOIA requests for 

similar images. On November 22, 2004, the Air Force provided Professor Begleiter a CD–ROM with the 361 images that had been released six months earlier to another FOIA requester and denied 

the remainder of his request claiming that it had no more responsive records. When Professor Begleiter demonstrated to the Air 

Force in an administrative appeal that its response was incorrect—


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since he had evidence that numerous other photographic images 

fitting the description in his FOIA request existed—the Air Force 

asked for additional time to search a range of components and 

agencies that had not been searched in the first place. Professor 

Begleiter, through counsel, agreed to provide the Air Force with additional time and the litigation was stayed at the end of December 

2004 pending completion of the search. At the end of February 

2005, Professor Begleiter agreed to wait another 30 days for the 

search to be completed. On March 25, 2005, however, Professor 

Begleiter informed the court and the Air Force that his counsel was 

preparing a motion for summary judgment based on the Air Force’s 

failure to process the FOIA request. In response to that notice, on 

April 8, 2005, the government advised Professor Begleiter’s counsel 

that hundreds of additional images would soon be provided. Ninety-two images were provided on April 15, and an additional 268 images were provided on April 25, 2005. Professor Begleiter is in the 

process of deciding future steps in the lawsuit. 

It was not until he filed his lawsuit that Professor Begleiter obtained release of records that previously had been provided to another FOIA requester. It took an entire year, the filing of a lawsuit, 

and finally the notice that a summary judgment motion was being 

prepared to obtain any additional substantive response to the FOIA 

request. In my view, this sort of manipulation of the timing of 

records releases is a purposeful litigation strategy designed to put 

off release of information that someone does not want to release 

until the government knows that it can no longer resist because a 

court will not agree with the withholding. It is an attempt to evade 

FOINs attorney’s fees provision by denying the FOIA requester a 

judicial decision ordering the release. It diverts FOIA requesters’

resources unnecessarily into litigation that could be avoided by 

proper initial handling of FOIA requests. 

Please feel free to contact me with any questions you may have 

or for more information about Professor Begleiter’s lawsuit. 

Thank you for your efforts to strengthen the accountability of our 

government agencies. 

Sincerely, 

MEREDITH FUCHS, General Counsel. 

LAW OFFICE OF

ROBERT UKEILEY, 

Berea, KY, May 10, 2005. 

Hon. JOHN CORNYN, 

U.S. Senate, 

Washington, DC. 

Hon. PATRICK LEAHY, 

U.S. Senate, 

Washington, DC. 

DEAR SENATOR CORNYN AND SENATOR LEAHY: It is my understanding that Congress is considering changing the language of the 

Freedom of Information Act (FOIA) to allow for the recovery of attorneys’ fees and expenses if the agency turns over the requested 

documents after a suit is filed, regardless of whether or not a court 


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orders the agency to turn over the documents. I think such a 

change would serve the public interest. 

In the following two cases, I filed suit, and shortly after I filed 

suit, the agency turned over the requested documents and I did not 

recovery attorney fees. 

Forest Guardians v. U.S. Fish and Wildlife Service, 04–N–1396 

(OES)(D.Colo. 2004) 

Forest Guardians v. U.S. Fish and Wildlife Service, 04–MW–2529 

(OES)(D.Colo. 2005) 

I generally represent my clients on a pro bono basis. However, 

I am no longer able to take most FOIA cases because I know it is 

highly likely that the agency will turn over the documents after I 

file suit and then refuse to pay attorneys’ fees and expenses. 

Thank you for your consideration of this important issue. 

Sincerely, 

ROBERT UKEILEY. 

VIII. CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that it is necessary to dispense with the requirement of paragraph 12 to expedite the business of the Senate. 

Æ 


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