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United States Department of the Interior
Montana State Office
5001 Southgate Drive
Billings, Montana 59101-4669

August 22, 2008

1278 (935.DD) P
Instruction Memorandum No. MT-2008-064
Expires: 9/30/09
To:             State Management Team
From:         State Director
Subject:     FOIA Amendments, the “Open Government Act 2007,” (December 31, 2007)
                  (WO IM-2008-147)
Program Area: FOIA
Purpose: The purpose of this Instruction Memorandum is to transmit Washington Office IM-2008-147 and to remind the SMT of their responsibility under the new amendment.
Policy/Action: It is important that managers understand the importance of thorough and timely staff work when responding to a FOIA request. Failure to meet the regulatory timeframes or inadequate record searches can result in litigation. This FOIA amendment makes substantial changes from the original FOIA. The changes implemented from the new 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 results 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 timeframe of 20 working days.
All personnel should be made aware that their FOIA activities carry much greater significance.
Timeframe: Effective immediately.
Budget Impact: None, unless there is a lawsuit and plaintiff is awarded attorney fees. The fees will come from annual appropriations of the agency.
Background: In December 2007, the new Act was implemented to improve processing of requests under the FOIA. This Act amended several aspects of the original Act. The effect of this change makes it incumbent that BLM reduce the backlog of FOIA cases as much as possible, speed up responses, and mandates that agencies must pay attorney fees out of appropriated funds. There are more significant changes to the FOIA in effect from the Act that may tax BLM resources, although some of the changes do not have effective dates assigned to them. Additional guidance will be forthcoming.
Manual/Handbook Sections Affected: BLM Manual 1278 – External Access to BLM Information.
Coordination: This IM was developed based on WO IM-2008-147.
Contact: Debbie DeBock, State FOIA Coordinator (MT-935) at (406) 896-5157.
Signed by: Diane M. Friez, Acting
Authenticated by: Jennifer C. McKinley, (MT-935)
Assistant Field Manager, Glasgow Field Station
Assistant Field Manager, Havre Field Station

Last updated: 06-28-2012