To promote accessibility, accountability, and 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.

This Act may be cited as the `Openness Promotes Effectiveness in our National Government Act of 2007' or the `OPEN Government Act of 2007'.CommentsClose CommentsPermalink

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

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





`In this clause, the term `a representative of the news media' means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term `news' means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of `news') who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.'.CommentsClose CommentsPermalink

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





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





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





`(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either--CommentsClose CommentsPermalink





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





`(II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.'.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 fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered.CommentsClose CommentsPermalink

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

(a) Time Limits-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 552(a)(6)(A) of title 5, United States Code, is amended by inserting after clause (ii) the following:CommentsClose CommentsPermalink





`The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except--CommentsClose CommentsPermalink





`(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; orCommentsClose CommentsPermalink





`(II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period.'.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) Compliance With Time Limits-CommentsClose CommentsPermalink





(1) IN GENERAL-CommentsClose CommentsPermalink





(A) SEARCH FEES- 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 not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request.'.CommentsClose CommentsPermalink





(B) PUBLIC LIAISON- Section 552(a)(6)(B)(ii) of title 5, United States Code, is amended by inserting after the first sentence the following: `To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the 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 apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date.CommentsClose CommentsPermalink

(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 received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; andCommentsClose CommentsPermalink





`(B) 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

(a) In General- Section 552(e)(1) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





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





(2) in subparagraph (C), by inserting `and average' after `median';CommentsClose CommentsPermalink





(3) in subparagraph (E), by inserting before the semicolon `, based on the date on which the requests were received by the agency';CommentsClose CommentsPermalink





(4) by redesignating subparagraphs (F) and (G) as subparagraphs (N) and (O), respectively; andCommentsClose CommentsPermalink





(5) by inserting after subparagraph (E) the following:CommentsClose CommentsPermalink





`(F) the average number of days for the agency to respond to a request beginning on the date on which the request was 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 originally 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 up to and including 20 days, and in 20-day increments up to and including 200 days;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 the request was originally filed, 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 to administrative appeals based on the date on which the appeals originally were 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 each agency, including the amount of time that has elapsed since each request was originally received by the agency;CommentsClose CommentsPermalink





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





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





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





(b) Applicability to Agency and Each Principal Component of the Agency- Section 552(e) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) by redesignating paragraphs (2) through (5) as paragraphs (3) through (6), respectively; andCommentsClose CommentsPermalink





(2) by inserting after paragraph (1) the following:CommentsClose CommentsPermalink





`(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall.'.CommentsClose CommentsPermalink





(c) Public Availability of Data- Section 552(e)(3) of title 5, United States Code, (as redesignated by subsection (b) of this section) is amended by adding at the end `In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.'.CommentsClose CommentsPermalink

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 Government contract, for the purposes of records management.'.CommentsClose CommentsPermalink





SEC. 10. OFFICE OF GOVERNMENT INFORMATION SERVICES.CommentsClose CommentsPermalink





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





`(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration.CommentsClose CommentsPermalink





`(2) The Office of Government Information Services shall--CommentsClose CommentsPermalink





`(A) review policies and procedures of administrative agencies under this section;CommentsClose CommentsPermalink





`(B) review compliance with this section by administrative agencies; andCommentsClose CommentsPermalink





`(C) recommend policy changes to Congress and the President to improve the administration of this section.CommentsClose CommentsPermalink





`(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute.CommentsClose CommentsPermalink





`(i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits.CommentsClose CommentsPermalink





`(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).CommentsClose CommentsPermalink





`(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency--CommentsClose CommentsPermalink





`(1) have agency-wide responsibility for efficient and appropriate compliance with this section;CommentsClose CommentsPermalink





`(2) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing this section;CommentsClose CommentsPermalink





`(3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;CommentsClose CommentsPermalink





`(4) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing this section;CommentsClose CommentsPermalink





`(5) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's handbook issued under subsection (g), and the agency's annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply; andCommentsClose CommentsPermalink





`(6) designate one or more FOIA Public Liaisons.CommentsClose CommentsPermalink





`(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.'.CommentsClose CommentsPermalink





(b) Effective Date- The amendments made by this section shall take effect on the date of enactment of this Act.CommentsClose CommentsPermalink





SEC. 11. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.CommentsClose CommentsPermalink





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; andCommentsClose 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. 12. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING DELETIONS OF MATERIAL PROVIDED UNDER FOIA.CommentsClose CommentsPermalink





Section 552(b) of title 5, United States Code, is amended in the matter 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 Senate December 14, 2007.Attest:NANCY ERICKSON,Secretary Speaker of the House of Representatives. CommentsClose CommentsPermalink

President of the Senate.CommentsClose CommentsPermalink