Requesters and agencies likely will spend much of 2009 adjusting to procedural changes in the federal Freedom of Information Act.

When President Bush on Dec. 31, 2007, signed the OPEN Government Act of 2007, many of the act’s amendments took effect immediately. The act delayed the effective date of some of its provisions, however, until Dec. 31, 2008, meaning the changes will apply only to requests submitted after that date.

One of the most significant procedural changes is the limit on agencies’ ability to "toll" FOIA’s 20-day response period. To toll is to exclude from the allowed days the time spent communicating with requesters. In the past, agencies frequently did not count such time as part of the 20 days they had to respond to the requests. Under the new law, however, agencies can toll the 20-day time period only once while waiting for information “reasonably requested from the requester.” Agencies also can toll the response period as many times as necessary to clarify fee questions with requesters.

Another change relating to the 20-day response period is the limit on charging fees and duplicating costs when the response time is not met. Before the amendments, agencies were able to assess search fees and duplicating costs regardless of whether their responses were timely. Under the new law, agencies (with two exceptions) may not assess search fees unless they provide the requested documents within the required 20 days. For requesters not subject to search fees, such as educational institutions and news organizations, agencies are prohibited from charging duplication costs unless their responses are timely.

The two exceptions are for “unusual” or “exceptional” circumstances. Unusual circumstances exist if an agency needs to search or obtain records from field offices, review voluminous documents or consult with another agency regarding the requested records. Exceptional circumstances exist if an agency has a backlog of pending requests and is making reasonable progress in reducing the backlog. The exceptions for “unusual” and “exceptional” circumstances have been part of FOIA for many years and have in many cases swallowed the rule. It therefore seems unlikely that the prohibition on charging fees and costs will significantly affect FOIA response times.

Other changes worth watching are the requirements that agencies assign a tracking number to any request that will take more than 10 days to process and create a telephone or online service to allow requesters to determine the status of their requests.

Although changes like these ideally will assist requesters in battling the FOIA bureaucracy, it is perhaps just as likely that the additional bureaucracy will make obtaining government records even harder. And though requesters’ experiences in 2009 likely will not determine whether the act is ultimately considered a success, they will nonetheless create an important first impression.

Posted December 2008