On his first full day in office, President Barack Obama has issued a memo to the heads of executive departments on the Freedom of Information. Stressing the importance of transparency and accountability, the memo indicates that "the Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears." The memo adds that "the presumption of disclosure should be applied to all decisions involving FOIA." The memo instructs the Attorney General to issue new FOIA guidance and directs OMB to update its guidance to agencies "to increase and improve information dissemination to the public. . ."
President George W. Bush signed into law the OPEN Government Act Dec. 31, marking the first time the FOIA has been amended in ten years. The new amendments restore the attorney's fees eligibility criteria that existed before the Supreme Court's Buckhannon ruling and prohibit agencies from collecting fees if they do not respond to a request within the statutory 20-day time limit. The amendments also provide a tracking system for requests and codify the positions of Chief FOIA Officer and FOIA Public Liaisons that first appeared in the Bush executive order issued in December 2005. The amendments create an ombudsman, designed to resolve disputes short of litigation, at the National Archives and clarify the status of media requesters. Finally, the amendments direct OPM to study how to encourage federal employees to choose FOIA as a career path by creating greater incentives and recognition.
The House passed a revised set of FOIA amendments Dec. 18 shortly after the Senate had acted as well. Although the House passed its set of amendments in March and the Senate passed a compromise bill in August, House "pay-as-you-go" rules required that body to revise the Senate bill to provide alternative funding for two provisions -- the potential increase in attorney's fees due to rejection of the Supreme Court's Buckhannon decision as the threhold standard for awarding fees, and to replace the loss of fees agencies would no longer be able to charge if they did not respond within the 20-day statutory time limit. The amendments passed the Senate by unanimous consent and the House by a voice vote. It seems likely that President Bush will sign the legislation or allow the bill to become law by failing to sign or veto it before the upcoming congressional recess.