Federal Legislative Update

OPEN Government Act of 2007 (S.2488)

The Congress has passed and sent to the President for signature, amendments to the Freedom of Information Act (FOIA). Among other changes, section 4 relaxes the requirements for an award of attorneys' fees in FOIA litigation. The section 4 amendment provides that a FOIA complainant has substantially prevailed in a legal proceeding to compel disclosure if such complainant obtained relief through either: (1) a judicial order or an enforceable written agreement or consent decree; or (2) a voluntary or unilateral change in position by the agency if the complainant's claim is not insubstantial. In addition, where the complainant has substantially prevailed, section 4 prohibits the use of the Treasury's Claims and Judgment Fund to pay attorneys' fees, and requires that such fees be paid only from funds annually appropriated for authorized purposes for the federal agency against which a claim or judgment has been rendered.