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Engrossed in House	3,433	14	6%
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HR 1309 EHRFSCommentsClose CommentsPermalink

110th CONGRESS 1st Session H. R. 1309 AN ACT

To promote openness in Government by strengthening section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the `Freedom of Information Act Amendments of 2007'.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink





Sec. 2. Findings.CommentsClose CommentsPermalink





Sec. 3. Protection of fee status for news media.CommentsClose CommentsPermalink





Sec. 4. Recovery of attorney fees and litigation costs.CommentsClose CommentsPermalink





Sec. 5. Disciplinary actions for arbitrary and capricious rejections of requests.CommentsClose CommentsPermalink





Sec. 6. Time limits for agencies to act on requests.CommentsClose CommentsPermalink





Sec. 7. Individualized tracking numbers for requests and status information.CommentsClose CommentsPermalink





Sec. 8. Specific citations in exemptions.CommentsClose CommentsPermalink





Sec. 9. Reporting requirements.CommentsClose CommentsPermalink





Sec. 10. Openness of agency records maintained by a private entity.CommentsClose CommentsPermalink





Sec. 11. Office of Government Information Services.CommentsClose CommentsPermalink





Sec. 12. Accessibility of critical infrastructure information.CommentsClose CommentsPermalink





Sec. 13. Report on personnel policies related to FOIA.CommentsClose CommentsPermalink





Sec. 14. Promotion of public disclosure.CommentsClose CommentsPermalink





Sec. 15. Requirement to describe exemptions authorizing deletions of material provided under FOIA.CommentsClose CommentsPermalink

SEC. 2. FINDINGS.

Congress finds that--CommentsClose CommentsPermalink





(1) the Freedom of Information Act was signed into law on July 4, 1966, because the American people believe that--CommentsClose CommentsPermalink





(A) our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;CommentsClose CommentsPermalink





(B) such consent is not meaningful unless it is informed consent; andCommentsClose CommentsPermalink





(C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), `The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.';CommentsClose CommentsPermalink





(2) the American people firmly believe that our system of government must itself be governed by a presumption of openness;CommentsClose CommentsPermalink





(3) the Freedom of Information Act establishes a `strong presumption in favor of disclosure' as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;CommentsClose CommentsPermalink





(4) `disclosure, not secrecy, is the dominant objective of the Act,' as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976));CommentsClose CommentsPermalink





(5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; andCommentsClose CommentsPermalink





(6) Congress should regularly review section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), in order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the `need to know' but upon the fundamental `right to know'.CommentsClose CommentsPermalink

SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.

Section 552(a)(4)(A)(ii) of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`In making a determination of a representative of the news media under subclause (II), an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audience.'.CommentsClose CommentsPermalink

SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.

(a) In General- Section 552(a)(4)(E) of title 5, United State Code, is amended by adding at the end the following: `For purposes of this section only, a complainant has substantially prevailed if the complainant has obtained relief through either--CommentsClose CommentsPermalink





`(i) a judicial order, administrative action, or an enforceable written agreement or consent decree; orCommentsClose CommentsPermalink





`(ii) a voluntary or unilateral change in position by the opposing party, in a case in which the complainant's claim or defense was not frivolous.'.CommentsClose CommentsPermalink





(b) Limitation- Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from the amendments made by this section. Any such amounts shall be paid only from funds annually appropriated for the Federal agency against which a claim or judgment has been rendered.CommentsClose CommentsPermalink

SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS REJECTIONS OF REQUESTS.

Section 552(a)(4)(F) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) by inserting `(i)' after `(F)'; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





`(ii) The Attorney General shall--CommentsClose CommentsPermalink





`(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); andCommentsClose CommentsPermalink





`(II) annually submit a report to Congress on the number of such civil actions in the preceding year.CommentsClose CommentsPermalink





`(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).'.CommentsClose CommentsPermalink

SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.

(a) Time Limits-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 552(a)(6)(A)(i) of title 5, United States Code, is amended by striking `determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request' and inserting `within the 20-day period commencing on the date on which the request is first received by the agency (excepting Saturdays, Sundays, and legal public holidays), which shall not be tolled without the consent of the party filing the request, determine'.CommentsClose CommentsPermalink





(2) EFFECTIVE DATE- The amendment made by this subsection shall take effect 1 year after the date of enactment of this Act.CommentsClose CommentsPermalink





(b) Applicability of Agency Fees-CommentsClose CommentsPermalink





(1) LIMITATION- Section 552(a)(4)(A) of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(viii) An agency shall refund any fees collected under this subparagraph if the agency fails to comply with any time limit that applies under paragraph (6). Such refunds shall be paid from annual appropriations provided to that agency.'.CommentsClose CommentsPermalink





(2) EFFECTIVE DATE AND APPLICATION- The amendment made by this subsection shall take effect 1 year after the date of enactment of this Act and shall apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date.CommentsClose CommentsPermalink

SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND STATUS INFORMATION.

(a) In General- Section 552(a) of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(7) Each agency shall--CommentsClose CommentsPermalink





`(A) establish a system to assign an individualized tracking number for each request for information under this section;CommentsClose CommentsPermalink





`(B) not later than 10 days after receiving a request, provide each person making a request with the tracking number assigned to the request; andCommentsClose CommentsPermalink





`(C) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including--CommentsClose CommentsPermalink





`(i) the date on which the agency originally received the request; andCommentsClose CommentsPermalink





`(ii) an estimated date on which the agency will complete action on the request.'.CommentsClose CommentsPermalink





(b) Effective Date and Application- The amendment made by this section shall take effect 1 year after the date of enactment of this Act and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date.CommentsClose CommentsPermalink

SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS.

Section 552(b) of title 5, United States Code, is amended by striking paragraph (3) and inserting the following:CommentsClose CommentsPermalink





`(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute--CommentsClose CommentsPermalink





`(A) if enacted after the date of enactment of the Freedom of Information Act Amendments of 2007, specifically cites to this section; andCommentsClose CommentsPermalink





`(B)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; orCommentsClose CommentsPermalink





`(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld;'.CommentsClose CommentsPermalink

SEC. 9. REPORTING REQUIREMENTS.

(a) Annual Report Requirements- Section 552(e)(1) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) in the matter preceding subparagraph (A) by striking `fiscal year and which' and inserting `fiscal year. Information in the report shall be expressed in terms of each principal component of the agency and for the agency overall, and';CommentsClose CommentsPermalink





(2) in subparagraph (B)(ii), by inserting after the first comma the following, `the number of occasions on which each statute was relied upon,';CommentsClose CommentsPermalink





(3) in subparagraph (C), by inserting after `median' the following: `and average';CommentsClose CommentsPermalink





(4) in subparagraph (E), by inserting before the semicolon the following: `, based on the date on which each request was initially received by the agency'; andCommentsClose CommentsPermalink





(5) by redesignating subparagraphs (F) and (G) as subparagraphs (N) and (O), respectively, and inserting after subparagraph (E) the following new subparagraphs:CommentsClose CommentsPermalink





`(F) the average number of days for the agency to respond to requests beginning on the date on which each request was initially received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;CommentsClose CommentsPermalink





`(G) based on the number of business days that have elapsed since each request was initially received by the agency--CommentsClose CommentsPermalink





`(i) the number of requests for records to which the agency has responded with a determination within a period greater than 1 day and less than 201 days, stated in 20-day increments;CommentsClose CommentsPermalink





`(ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;CommentsClose CommentsPermalink





`(iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; andCommentsClose CommentsPermalink





`(iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days;CommentsClose CommentsPermalink





`(H) the average number of days for the agency to provide the granted information beginning on the date on which each request was initially received by the agency, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;CommentsClose CommentsPermalink





`(I) the median and average number of days for the agency to respond with a determination to administrative appeals based on the date on which each appeal was initially received by the agency; the highest number of business days taken by the agency to respond to an administrative appeal; and the lowest number of business days taken by the agency to respond to an administrative appeal;CommentsClose CommentsPermalink





`(J) data on the 10 active requests with the earliest filing dates pending at the agency, including the amount of time that has elapsed since each request was initially received by the agency;CommentsClose CommentsPermalink





`(K) data on the 10 active administrative appeals with the earliest filing dates pending at the agency as of September 30 of the preceding year, including the number of business days that have elapsed since each request was initially received by the agency;CommentsClose CommentsPermalink





`(L) the number of expedited review requests received by the agency, the number that were granted and the number that were denied, the average and median number of days for adjudicating expedited review requests, and the number of requests that adjudicated within the required 10 days;CommentsClose CommentsPermalink





`(M) the number of fee waiver requests that were granted and the number that were denied, and the average and median number of days for adjudicating fee waiver determinations;'.CommentsClose CommentsPermalink





(b) Availability of Raw Statistical Data- Section 552(e)(2) of title 5, United States Code, is amended by adding after the period the following: `In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.'.CommentsClose CommentsPermalink

SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE ENTITY.

Section 552(f) of title 5, United States Code, is amended by striking paragraph (2) and inserting the following:CommentsClose CommentsPermalink





`(2) `record' and any other term used in this section in reference to information includes--CommentsClose CommentsPermalink





`(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; andCommentsClose CommentsPermalink





`(B) any information described under subparagraph (A) that is maintained for an agency by an entity under a contract between the agency and the entity.'.CommentsClose CommentsPermalink

SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.

(a) In General- Chapter 21 of title 44, United States Code, is amended by inserting after section 2119 the following new section:CommentsClose CommentsPermalink

`Sec. 2120. Office of Government Information Services

`(a) In General- There is established in the National Archives an office to be known as the `Office of Government Information Services'.CommentsClose CommentsPermalink





`(b) National Information Advocate-CommentsClose CommentsPermalink





`(1) IN GENERAL- The Office of Government Information Services shall be under the supervision and direction of an official to be known as the `National Information Advocate' who shall report directly to the Archivist of the United States.CommentsClose CommentsPermalink





`(2) FUNCTIONS OF OFFICE-CommentsClose CommentsPermalink





`(A) GUIDANCE FOR REQUESTERS-CommentsClose CommentsPermalink





`(i) IN GENERAL- The Office of Government Information Services shall provide, as a non-exclusive alternative to litigation, guidance to FOIA requesters.CommentsClose CommentsPermalink





`(ii) TYPES OF GUIDANCE- In providing such guidance, the Office shall provide informal guidance to requesters and may provide fact-finding reviews and opinions to requesters. All reviews and opinions shall be non-binding and shall be initiated only on the request of FOIA requesters.CommentsClose CommentsPermalink





`(iii) AVAILABILITY- Any written opinion issued pursuant to this section shall be available on the Internet in an indexed, readily accessible format.CommentsClose CommentsPermalink





`(iv) FOIA REQUESTERS- In this paragraph, the term `FOIA requester' or `requester' means a person who has made a request under section 552 of this title and who has been denied records or has not received a timely response to the request or to an administrative appeal.CommentsClose CommentsPermalink





`(B) ANALYSES OF AGENCY OPERATIONS- The Office of Government Information Services shall--CommentsClose CommentsPermalink





`(i) review polices and procedures of administrative agencies under section 552 of this title and compliance with that section by administrative agencies; andCommentsClose CommentsPermalink





`(ii) recommend policy changes to Congress and the President to improve the administration of section 552 of this title, including whether agencies are receiving and expending adequate funds to ensure compliance with that section.CommentsClose CommentsPermalink





`(3) IMPACT ON REQUESTER ACCESS TO LITIGATION- Nothing in this section shall affect the right of requesters to seek judicial review as described in section 552 of this title.'.CommentsClose CommentsPermalink





(b) Technical and Conforming Amendment- The table of sections for chapter 21 of title 44, United States Code, is amended by inserting after the item relating to section 2119 the following:CommentsClose CommentsPermalink





`2120. Office of Government Information Services.'.CommentsClose CommentsPermalink

SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE INFORMATION.

(a) In General- Not later than January 1 of each of the 3 years following the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the implementation and use of section 214 of the Homeland Security Act of 2002 (6 U.S.C. 133), including--CommentsClose CommentsPermalink





(1) the number of persons in the private sector, and the number of State and local agencies, that voluntarily furnished records to the Department under this section;CommentsClose CommentsPermalink





(2) the number of requests for access to records granted or denied under this section;CommentsClose CommentsPermalink





(3) such recommendations as the Comptroller General considers appropriate regarding improvements in the collection and analysis of sensitive information held by persons in the private sector, or by State and local agencies, relating to vulnerabilities of and threats to critical infrastructure, including the response to such vulnerabilities and threats; andCommentsClose CommentsPermalink





(4) an examination of whether the nondisclosure of such information has led to the increased protection of critical infrastructure.CommentsClose CommentsPermalink





(b) Form- The report shall be submitted in unclassified form, but may include a classified annex.CommentsClose CommentsPermalink

SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.

Not later than 1 year after the date of enactment of this Act, the Office of Personnel Management shall submit to Congress a report that examines--CommentsClose CommentsPermalink





(1) whether changes to executive branch personnel policies could be made that would--CommentsClose CommentsPermalink





(A) provide greater encouragement to all Federal employees to fulfill their duties under section 552 of title 5, United States Code; andCommentsClose CommentsPermalink





(B) enhance the stature of officials administering that section within the executive branch;CommentsClose CommentsPermalink





(2) whether performance of compliance with section 552 of title 5, United States Code, should be included as a factor in personnel performance evaluations for any or all categories of Federal employees and officers;CommentsClose CommentsPermalink





(3) whether an employment classification series specific to compliance with sections 552 and 552a of title 5, United States Code, should be established;CommentsClose CommentsPermalink





(4) whether the highest level officials in particular agencies administering such sections should be paid at a rate of pay equal to or greater than a particular minimum rate;CommentsClose CommentsPermalink





(5) whether other changes to personnel policies can be made to ensure that there is a clear career advancement track for individuals interested in devoting themselves to a career in compliance with such sections; andCommentsClose CommentsPermalink





(6) whether the executive branch should require any or all categories of Federal employees to undertake awareness training of such sections.CommentsClose CommentsPermalink

SEC. 14. PROMOTION OF PUBLIC DISCLOSURE.

Section 552 of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(h)(1) The policy of the Federal Government is to release information to the public in response to a request under this section--CommentsClose CommentsPermalink





`(A) if such release is required by law; orCommentsClose CommentsPermalink





`(B) if such release is allowed by law and the agency concerned does not reasonably foresee that disclosure would be harmful to an interest protected by an applicable exemption.CommentsClose CommentsPermalink





`(2) All guidance provided to Federal Government employees responsible for carrying out this section shall be consistent with the policy set forth in paragraph (1).'.CommentsClose CommentsPermalink

SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING DELETIONS OF MATERIAL PROVIDED UNDER FOIA.

Section 552(b) of title 5, United States Code, is amended in the matter appearing after paragraph (9)--CommentsClose CommentsPermalink





(1) in the second sentence, by inserting after `amount of information deleted' the following: `, and the exemption under which the deletion is made,'; andCommentsClose CommentsPermalink





(2) in the third sentence, by inserting after `amount of the information deleted' the following: `, and the exemption under which the deletion is made,'.CommentsClose CommentsPermalink

Passed the House of Representatives March 14, 2007.CommentsClose CommentsPermalink

Attest:CommentsClose CommentsPermalink

Clerk.

110th CONGRESS1st SessionH. R. 1309AN ACTTo promote openness in Government by strengthening section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), and for other purposes LORRAINE C. MILLER, CommentsClose CommentsPermalink

Clerk.CommentsClose CommentsPermalink