FOIA Amendments, the Open Government Act 2007,(December 31, 2007)

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
www.blm.gov
July 9, 2008
In Reply Refer To:

1278 (560) P

EMS TRANSMISSION 07/11/2008

Instruction Memorandum No. 2008-147

Expires: 09/30/2009

To: All SD’s, CD’s and AD’s
Attn: Bureau of Land Management (BLM) Chief Information Officers (BCIOs) Freedom of Information Act (FOIA) coordinators

From: Assistant Director, Information Resources Management

Subject: FOIA Amendments, the “Open Government Act 2007,”
(December 31, 2007)

Program Area: FOIA

Purpose: The purpose of this Instruction Memorandum (IM) is to inform all employees of several FOIA amendments contained in the “Open Government Act” (Act) of 2007. This Act became law December 31, 2007.

This Act mandates a number of significant procedural requirements to the FOIA, although some of these changes do not have effective dates. The new requirements include improvements to automated tracking of FOIA requests, and increased reporting requirements. The Act resulted from Congress’ belief that the FOIA has not lived up to its strong presumption in favor of disclosure. Through the Act, Congress is seeking to strengthen the FOIA to promote accessibility, accountability, and openness in Government.

Policy/Action: The BLM supports the concept of the original FOIA, which promotes openness and disclosure unless one or more of the nine exemptions apply. The Act did not change any of the nine FIOA exemptions that enable withholding of certain types of records. The most substantial changes implemented from the Act involve payment of attorney fees and costs for FOIA litigation. First, the Act expands the circumstances in which a plaintiff may be awarded attorney fees when the plaintiff obtained relief in litigation due to a voluntary or unilateral change in the agency’s position. Second, the Act provides that attorney fees and costs from FOIA litigation may no longer be paid from the Judgment Fund in the Treasury, but rather these fees shall be paid from annual appropriations of the agency. The new law also limits the agency’s ability to access certain FOIA fees for requests not responded to within the statutory timeframes of 20 working days.

The effect of this change makes it incumbent that we reduce the backlog of FOIA cases as much as possible. Some of the effects of these particular changes will not be known until they have been addressed by litigation. However, it is clearly possible that where an agency, fails to properly process a FOIA request by either not responding in time, improperly asserting exemptions, or failing to search for responsive material adequately, a plaintiff may be entitled to attorney fees and costs when the agency releases documents or otherwise attempts to resolve the matter after a case is filed. It is also clear that the BLM budget could be adversely affected by awards of attorney fees resulting from inadequate FOIA responses.

Therefore, all BLM personnel should be made aware that their FOIA decisions and activities carry much greater significance. The Department of the Interior (DOI) has released guidance stating that “FOIA decisions or actions should be made in consideration of the financial consequences that may result from inadequate or incorrect FOIA processing.” (See attachment entitled “Freedom Information Amendments,” dated April 28, 2008).

Timeframe: Effective immediately.

Background: In December 2007, the Act was implemented to improve processing of requests under the FOIA. This Act amended the FOIA to speed up responses, mandated electronic tracking of FOIA requests, and mandated that agencies must pay attorney fees out of appropriated funds. There are more significant changes to the FOIA in effect from the Act that will cause tax BLM resources, although some of the changes do not have effective dates assigned to them. Additional guidance will be forthcoming.

Budget Impact: None. There may be significant impacts to appropriated funds if FOIA requests are not responded to within the statutory timeframes. Therefore, program staff who receives requests from FOIA coordinators should respond to the requests within the 5 working days established by IM 2008-059 to start the processing of the request.

Manual/Handbook Sections Affected: BLM Manual 1278 – External Access to BLM Information.

Coordination: This IM has been coordinated within the IRM Governance Directorate (WO-560).
Contact: Keel Ross, Division Chief, IRM Governance (WO 560) at (202) 557-3561.

Signed by: Authenticated by:
Ronnie Levine Robert M. Williams
Assistant Director Division of IRM Governance,WO-560
Information Resources Management

1 Attachment
1 - Freedom of Information Act Amendments (2 pp)