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S 849 RS

Calendar No. 127ESCommentsClose CommentsPermalink

110th CONGRESS 1st Session S. 849

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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

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 The term `a representative of the news media under subclause (II), an agency may' 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. 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 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. Priorall-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 history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no priorthrough that entity, whether or not the journalist is actually employed by the entity. A publication history or current affiliation, the agency shallcontract would present a solid basis for such an expectation; the Government may also consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audiencepast publication record of the requester in making such a determination.'.CommentsClose CommentsPermalink

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

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 section, a complainant has substantially prevailed if the complainant has obtained relief through either--CommentsClose CommentsPermalink





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





`(II) a voluntary or unilateral change in position by the opposing party, where the complaintagency, provided that the complainant's claim or defense wais not frivolousinsubstantial.'.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 `determination;' and inserting `, and tdetermination. The 20-day period shall commence on the date on which the request is first received by the agency, anppropriate component of the agency, but in any event no later than ten days after the request is first received by any component of the agency that is designated in the agency's FOIA regulations to receive FOIA requests. The 20-day period shall not be tolled without the consent of the party filing the request' after `adverse determinationby 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 FOIA requester; 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) Availability of Agency Exemptions-(1) IN GENERAL-COMPLIANCE WITH TIME LIMITS-CommentsClose CommentsPermalink





(1)(A) Section 552(a)(64)(A) of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(G)(i) If an agency fails to comply with the applicable time limit provisions of this paragraph with respect to a request, the agency mayviii) an agency shall not assert any exemption under subsection (b) to that request, unless disclosure--`(I) would endanger the national security of the United States;`(II) would disclose personal private information protected by section 552a or proprietary information; or`(III) is otherwise prohibited by law.`(ii) A court may waive the application of clause (i)ss search fees under this subparagraph if the agency demonstrates by clear and convincing evidence that there was good cause for the failure to comply with the applicablefails to comply with any time limit provisionsunder paragraph (6), provided that 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) Section 552(a)(6)(B)(ii) of title 5, United States Code, is amended by inserting between the first and second sentences 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

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;`(B) not latreceived that will take longer than 10 days after receiving a request, provideten days to process and provide to each person making a request with thethe tracking number assigned to the request; andCommentsClose CommentsPermalink





`(CB) 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 ofprior to the date of enactment of the Openness Promotes Effectiveness in our NationalPEN Government Act of 2005, specifically cites to this section; and`(B)(i)7, requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or`(ii), or establishes particular criteria for withholding or refers to particular types of matters to be withheld; orCommentsClose CommentsPermalink





`(B) if enacted after the date of enactment of the OPEN Government Act of 2007, specifically cites to the Freedom of Information Act.'.CommentsClose CommentsPermalink

SEC. 9. REPORTING REQUIREMENTS.

(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 after the period `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 theentity under Government contract, for the purposes of records management.'.CommentsClose CommentsPermalink

SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.

(a) In General- Chapter 5 of title 5, United States Code, is amended--(1) by redesignating section 596 as section 597; and(2) by inserting after section 595 the following:`Sec. 596. Office of Government Information Services`(aN GENERAL- Section 552 of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(h) There is established the Office of Government Ilnformation Services within the Administrative Conference of the United States.`(b)National Archives and Records Administration. The Office of Government Information Services shall --`(1)review policies and procedures of administrative agencies under section 552 and compliance with that section by administrative agencies;`(2) conduct audits of, shall review compliance with section 552 by administrative agencies on such policies and compliance and issue reports detailing the results of such audits;`(3), and shall recommend policy changes to Congress and the President to improve the administration of section 552, including whether agencies are receiving and expending adequate funds to ensure compliance with that section; and`(4). The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under section 552 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





'.(b) Technical and Conforming Amendment- The table of sections for chapter 5 of title 5, United States Code, is amended by striking the item relating to section 596 and inserting the following:`596. Office of`(i) The Government Information ServicAccountability Office shall conduct audits of administrative agencies on the implementation of section 552 and issue reports detailing the results of such audits.CommentsClose CommentsPermalink





`(j) Each agency shall--CommentsClose CommentsPermalink





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





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





`(A) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;CommentsClose CommentsPermalink





`(B) monitor FOIA implementation 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 the FOIA;CommentsClose CommentsPermalink





`(C) 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 the FOIA;CommentsClose CommentsPermalink





`(D) 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 the FOIA; andCommentsClose CommentsPermalink





`(E) facilitate public understanding of the purposes of the FOIA's statutory exemptions by including concise descriptions of the exemptions in both the agency's FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency's annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.CommentsClose CommentsPermalink





`(2) Designate one or more FOIA Public Liaisons who shall be appointed by the Chief FOIA Officer.CommentsClose CommentsPermalink





`(b) GENERAL DUTIES- FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA 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





`597. Authorization of appropriations.'.(c) Effective DateFFECTIVE DATE- The amendments made by this section shall take effect 1 year afteron the date of enactment of this Act.'.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--(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;(2) the number of requests for access to records granted or denied under this section;(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; and(4) an examination of whether the nondisclosure of such information has led to the increased protection of critical infrastructure.(b) Form- The report shall be submitted in unclassified form, but may include a classified annex.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; 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

Calendar No. 127 Passed the Senate August 3, 2007. CommentsClose CommentsPermalink

110th CONGRESS 1st Session S. 849

[Report No. 110-59] A BILL

AN ACT

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.

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April 30, 2007Reported without amendmentCommentsClose CommentsPermalink