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EFOIA Legislative History, House Committee Report, H. Rept. 795, Sept. 17, 1996

 

104th Congress

Report

HOUSE OF REPRESENTATIVES

2d Session

104 795


ELECTRONIC FREEDOM OF INFORMATION AMENDMENTS OF 1996

 

September 17, 1996.--Committed to the Committee of the Whole House on
 the State of the Union and ordered to be printed

Mr. Clinger, from the Committee on Government Reform and Oversight;
submitted the following REPORT

 [To accompany H.R. 3802; Including cost estimate of the Congressional Budget Office]


he Committee on Government Reform and Oversight, to whom was        
referred the bill (H.R. 3802) to amend section 552 of title 5, United   
States Code, popularly known as the Freedom of Information Act, to      
provide for public access to information in an electronic format, and   
for other purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do pass.      

                                 CONTENTS
                                                                         
  Background and Need for the Legislation                                          6
  Legislative Hearings and Committee Action                                     14
  Committee Hearings and Written Testimony                                     15
  Explanation of the Bill                                                                        18
  Compliance with Rule XI                                                                    30
  Budget Analysis and Projections                                                       31
  Cost Estimate of the Congressional Budget Office                            31
  Inflationary Impact Statement                                                             32
  Changes in Existing Law;;32
  Committee Recommendation
  Congressional Accountability Act; Public Law 104 140

 

The amendment is as follows:;

Strike out all after the enacting clause and insert in lieu thereof
the following:


          SECTION 1. SHORT TITLE.                                                

This Act may be cited as the ``Electronic Freedom of Information Amendments of 1996''.                                                  
          SEC. 2. FINDINGS AND PURPOSES;

Findings.--The Congress finds that--

(1) the purpose of section 552 of title 5, United States Code,
popularly known as the Freedom of Information Act, is to require
agencies of the Federal Government to make certain agency information  
available for public inspection and copying and to establish and enable
enforcement of the right of any person to obtain access to the records
of such agencies, subject to statutory exemptions, for any public
private purpose
(2) since the enactment of the Freedom of Information Act in 1966, 
and the amendments enacted in 1974 and 1986, the Freedom of Information
Act has been a valuable means through which any person can learn how the
Federal Government operates;&
(3) the Freedom of Information Act has led to the disclosure of    
waste, fraud, abuse, and wrongdoing in the Federal Government;         
(4) the Freedom of Information Act has led to the identification of
unsafe consumer products, harmful drugs, and serious health hazards;   
5) Government agencies increasingly use computers to conduct agency
business and to store publicly valuable agency records and information;
and
(6) Government agencies should use new technology to enhance public
access to agency records and information.
(b) Purposes.--The purposes of this Act are to;

(1) foster democracy by ensuring public access to agency records and
information
(2) improve public access to agency records and information;
(3) ensure agency compliance with statutory time limits; and;
4) maximize the usefulness of agency records and information      
maintained, used, retained, and disseminated by the Federal 
Government;

SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.  

Section 552(f) of title 5, United States Code, is amended to read as
follows (f) For purposes of this section, the term-

1) `agency' as defined in section 551(1) of this title includes 
any executive department, military department, Government corporation, 
Government controlled corporation, or other establishment in the       
executive branch of the Government (including the Executive Office of  
the President), or any independent regulatory agency; and
``(2) `record' and any other term used in this section in reference
to information includes 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.''

SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND  INDEXATION OF RECORDS.
Section 552(a)(2) of title 5, United States Code, is amended--

(1) in the second sentence, by striking ``or staff manual or
instruction'' and inserting ``staff manual, instruction, or copies of  
records referred to in subparagraph (D)'';
(2) by inserting before the period at the end of the 3rd sentence  
the following: ``, and the extent of such deletion shall be indicated on
the portion of the record which is made available or published'';
(3) by inserting after the 3rd sentence the following: ``If         
technically feasible, the extent of the deletion shall be indicated at 
the place in the record where the deletion was made.'';                
(4) in subparagraph (B), by striking ``and'' after the semicolon;     
(5) by inserting after subparagraph (C) the following:                

(D) copies of all records, regardless of form or format, which   
have been released to any person under paragraph (3) and which, because
of the nature of their subject matter, the agency determines have become
or are likely to become the subject of subsequent requests for         
substantially the same records; and                                    
(E) a general index of the records referred to under subparagraph
(D);''br /> (6) by inserting after the 5th sentence the following: ``Each agency
shall make the index referred to in subparagraph (E) available by       
computer telecommunication by December 31, 1999.''; and                 
(7) by inserting after the 1st sentence the following: ``For records
created on or after November 1, 1996, within one year after such date,  
each agency shall make such records available by computer               
telecommunications or, if computer telecommunications means have not    
been established by the agency, by other electronic means.''.          

          SEC. 5. HONORING FORM OR FORMAT REQUESTS.                              

Section 552(a)(3) of title 5, United States Code, is amended--        

(1) by inserting ``(A)'' after ``(3)'';                               

(2) by striking ``(A)'' and inserting ``(i)'';                        

(3) by striking ``(B)'' and inserting ``(ii)''; and                   

(4) by adding at the end the following new subparagraphs:             


(B) In making any record available to a person under this          
paragraph, an agency shall provide the record in any form or format     
requested by the person if the record is readily reproducible by the    
agency in that form or format. Each agency shall make reasonable efforts
to maintain its records in forms or formats that are reproducible for   
purposes of this section.                                               
(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in       
electronic form or format.                                              
(D) For purposes of this paragraph, the term `search' means to     
review, manually or by automated means, agency records for the purpose  
of locating those records which are responsive to a request.''.        

SEC. 6. STANDARD FOR JUDICIAL REVIEW.                                  

Section 552(a)(4)(B) of title 5, United States Code, is amended by   
adding at the end the following new sentence: ``In addition to any other
matters to which a court accords substantial weight, a court shall      
accord substantial weight to an affidavit of an agency concerning the   
agency's determination as to technical feasibility under paragraph      
(2)(C) and subsection (b) and reproducibility under paragraph (3)(B).''.

          SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.                          

(a) Multitrack Processing.--Section 552(a)(6) of title 5, United     
States Code, is amended by adding at the end the following new          
subparagraph:                                                           
(D)(i) Each agency may promulgate regulations, pursuant to notice  
and receipt of public comment, providing for multitrack processing of   
requests for records based on the amount of work or time (or both)      
involved in processing requests.                                        
(ii) Regulations under this subparagraph may provide a person      
making a request that does not qualify for the fastest multitrack       
processing an opportunity to limit the scope of the request in order to 
qualify for faster processing.                                          
(iii) This subparagraph shall not be considered to affect the      
requirement under subparagraph (C) to exercise due diligence.''.        
(b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United  
States Code, is amended to read as follows:                             
(B)(i) In unusual circumstances as specified in this subparagraph,
  the time limits prescribed in either clause (i) or clause (ii) of      
  subparagraph (A) may be extended by written notice to the person making
  such request setting forth the unusual circumstances for such extension
  and the date on which a determination is expected to be dispatched. No 
  such notice shall specify a date that would result in an extension for 
  more than ten working days, except as provided in clause (ii) of this  
  subparagraph.                                                          
     ``(ii) With respect to a request for which a written notice under   
  clause (i) extends the time limits prescribed under clause (i) of      
  subparagraph (A), the agency shall notify the person making the request
  if the request cannot be processed within the time limit specified in  
  that clause and shall provide the person an opportunity to limit the   
  scope of the request so that it may be processed within that time limit
  or an opportunity to arrange with the agency an alternative time frame 
  for processing the request or a modified request. Refusal by the person
  to reasonably modify the request or arrange such an alternative time   
  frame shall be exceptional circumstances for purposes of subparagraph  
  (C).                                                                   
     ``(iii) As used in this subparagraph, `unusual circumstances' means,
  but only to the extent reasonably necessary to the proper processing of
  the particular requests--                                              
       ``(I) the need to search for and collect the requested records from
   field facilities or other establishments that are separate from the    
   office processing the request;                                         
       ``(II) the need to search for, collect, and appropriately examine a
   voluminous amount of separate and distinct records which are demanded in
   a single request; or                                                   
       ``(III) the need for consultation, which shall be conducted with all
   practicable speed, with another agency having a substantial interest in
   the determination of the request or among two or more components of the
   agency having substantial subject-matter interest therein.''.          
     (c) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5,    
  United States Code, is amended by inserting ``(i)'' after ``(C)'', and 
  by adding at the end the following new clauses:                        
     ``(ii) For purposes of this subparagraph, the term `exceptional     
  circumstances' does not include a delay that results from a predictable
  agency workload of requests under this section.                        
     ``(iii) Refusal by a person to reasonably modify the scope of a     
  request or to arrange an alternative time frame for processing a request
  (or a modified request) under this section after being requested to do 
  so by the agency to whom the person made the request shall be          
  exceptional circumstances for purposes of this subparagraph.           
     ``(iv) In determining whether exceptional circumstances exist, a    
  court shall consider the efforts by an agency to reduce the number of  
  pending requests under this section.''.                                

          SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.              

     (a) Expedited Processing.--Section 552(a)(6) of title 5, United     
  States Code (as amended by section 7(a) of this Act), is further amended
  by adding at the end the following new subparagraph:                   
     ``(E)(i) Each agency shall promulgate regulations, pursuant to notice
  and receipt of public comment, providing for expedited processing of   
  requests for records--                                                 
       ``(I) in cases in which the person requesting the records          
   demonstrates a compelling need; and                                    
    ``(II) in other cases determined by the agency.                       
     ``(ii) Notwithstanding subparagraph (A)(i), regulations under this  
  subparagraph must ensure--                                             
       ``(I) that a determination of whether to provide expedited         
   processing shall be made, and notice of the determination shall be     
   provided to the person making the request, within 10 days after the date
   of the request; and                                                    
       ``(II) expeditious consideration of administrative appeals of such 
   determinations of whether to provide expedited processing.             
     ``(iii) An agency shall process as soon as practicable any request  
  for records to which the agency has granted expedited processing under 
  this subparagraph. Agency action to deny or affirm denial of a request 
  for expedited processing pursuant to this subparagraph, and failure by 
  an agency to respond timely to such a request shall be subject to      
  judicial review under paragraph (4), except that the judicial review   
  shall be based on the record before the agency at the time of the      
  determination.                                                         
     ``(iv) A district court of the United States shall not have         
  jurisdiction to review an agency denial of expedited processing of a   
  request for records after the agency has provided a complete response to
  the request.                                                           
     ``(v) For purposes of this subparagraph, the term `compelling need' 
  means--                                                                
       ``(I) that a failure to obtain requested records on an expedited   
   basis under this paragraph could reasonably be expected to pose an     
   imminent threat to the life or physical safety of an individual; or    
       ``(II) with respect to a request made by a person primarily engaged
   in disseminating information, urgency to inform the public concerning  
   actual or alleged Federal Government activity.''.                      
     (b) Extension of General Period for Determining Whether To Comply   
  With a Request.--Section 552(a)(6)(A)(i) of title 5, United States Code,
  is amended by striking ``ten days'' and inserting ``20 days''.         
     (c) Estimation of Matter Denied.--Section 552(a)(6) of title 5,     
  United States Code (as amended by section 7 of this Act and subsection 
  (a) of this section), is further amended by adding at the end the      
  following new subparagraph:                                            
     ``(F) In denying a request for records, in whole or in part, an     
  agency shall make a reasonable effort to estimate the volume of any    
  requested matter the provision of which is denied, and shall provide any
  such estimate to the person making the request, unless providing such  
  estimate would harm an interest protected by an exemption under        
  subsection (b) under which the denial is made.''.                      

          SEC. 9. COMPUTER REDACTION.                                            

     Section 552(b) of title 5, United States Code, is amended in the    
  matter following paragraph (9) by adding at the end the following: ``The
  amount of information deleted shall be indicated on the released portion
  of the record, unless including that indication would harm an interest 
  protected by an exemption under this subsection under which the deletion
  is made.''.                                                            

          SEC. 10. REPORT TO THE CONGRESS.                                       

     Section 552(e) of title 5, United States Code, is amended to read as
  follows:                                                               
     ``(e)(1) On or before February 1 of each year, each agency shall    
  submit to the Attorney General a report which shall cover the preceding
  fiscal year and which shall include--                                  
       ``(A) the number of determinations made by the agency not to comply
   with requests for records made to such agency under subsection (a) and 
   the reasons for each such determination;                               
       ``(B)(i) the number of appeals made by persons under subsection    
   (a)(6), the result of such appeals, and the reason for the action upon 
   each appeal that results in a denial of information; and               
       ``(ii) a complete list of all statutes that the agency relies upon 
   to authorize the agency to withhold information under subsection (b)(3),
   a description of whether a court has upheld the decision of the agency 
   to withhold information under each such statute, and a concise         
   description of the scope of any information withheld;                  
       ``(C) the number of requests for records pending before the agency 
   as of September 30 of the preceding year, and the median number of days
   that such requests had been pending before the agency as of that date; 
       ``(D) the number of requests for records received by the agency and
   the number of requests which the agency processed;                     
       ``(E) the median number of days taken by the agency to process     
   different types of requests;                                           
       ``(F) the total amount of fees collected by the agency for         
   processing requests;                                                   
       ``(G) the average amount of time that the agency estimates as      
   necessary, based on the past experience of the agency, to comply with  
   different types of requests; and                                       
       ``(H) the number of full-time staff of the agency devoted to       
   processing requests for records under this section, and the total amount
   expended by the agency for processing such requests.                   
     ``(2) Each agency shall make each such report available to the public
  through a computer network, or if computer network means have not been 
  established by the agency, by other electronic means.                  
     ``(3) The Attorney General shall make each report which has been made
  available by electronic means available at a single electronic access  
  point. The Attorney General shall notify the Chairman and ranking      
  minority member of the Committee on Government Reform and Oversight of 
  the House of Representatives and the Chairman and ranking minority     
  member of the Committees on Governmental Affairs and the Judiciary of  
  the Senate, no later than April 1 of the year in which each such report
  is issued, that such reports are available by electronic means.        
     ``(4) The Attorney General, in consultation with the Director of the
  Office of Management and Budget, shall develop reporting and performance
  guidelines in connection with reports required by this subsection by   
  October 1, 1997, and may establish additional requirements for such    
  reports as the Attorney General determines may be useful.              
     ``(5) The Attorney General shall submit an annual report on or before
  April 1 of each calendar year which shall include for the prior calendar
  year a listing of the number of cases arising under this section, the  
  exemption involved in each case, the disposition of such case, and the 
  cost, fees, and penalties assessed under subparagraphs (E), (F), and (G)
  of subsection (a)(4). Such report shall also include a description of  
  the efforts undertaken by the Department of Justice to encourage agency
  compliance with this section.''.                                       

          SEC. 11. REFERENCE MATERIALS AND GUIDES.                               

     Section 552 of title 5, United States Code, is further amended by   
  adding after subsection (f) the following new subsection:              
     ``(g) The head of each agency shall prepare and make publicly       
  available upon request, reference material or a guide for requesting   
  records or information from the agency, including--                    
    ``(1) an index of all major information systems of the agency;        

       ``(2) a description of major information and record locator systems
   maintained by the agency; and                                          
       ``(3) a handbook for obtaining various types and categories of     
   public information from the agency pursuant to chapter 35 of title 44, 
   and under this section.''.                                             
          SEC. 12. EFFECTIVE DATE.                                               

     (a) In General.--Except as provided in subsection (b), this Act shall
  take effect 180 days after the date of the enactment of this Act.      
     (b) Provisions Effective on Enactment.--Sections 7 and 8 shall take 
  effect one year after the date of the enactment of this Act.           

                         I. BACKGROUND AND NEED FOR THE LEGISLATION              

                    A. The Freedom of Information Act                   

      With the enactment of the Freedom of Information Act (``FOIA'' or the
   ``Act'') thirty years ago, the Federal Government established a policy 
   of openness toward information within its control. The FOIA establishes
   a presumptive right for the public to obtain identifiable, existing    
   records of Federal departments and agencies. Any member of the public  
   may use the FOIA to request access to government information. Requestors
   do not have to show a need or reason for seeking information. Requestors
   use the FOIA for a variety of purposes. Private vendors with the       
   government, for example, use the FOIA requests as part of the          
   procurement process for competitive purposes. Journalists use the FOIA 
   to obtain details about government actions to broader dissemination to 
   the public. Individual citizens use it to learn more about government  
   activities that have affected them personally.                         
      The burden of proof for withholding requested material rests with the
   department or agency that seeks to deny the request. Agencies may deny 
   access to records, or portions of records which fall within an         
   enumerated exemption. Agency employees responsible for responding to   
   requests screen requested records to remove or redact exempted material
   from release. The nine exemption categories are listed below:          
       Information that is classified for national defense or foreign     
   policy purposes;                                                       
       Information that relates solely to an agency's internal personnel  
   rules and practices;                                                   
    Information that has been clearly exempted under other laws.          

    Confidential business information, such as trade secrets;             

       Internal government deliberative communications about a decision   
   before an announcement;                                                
       Information about an individual that, if disclosed, would cause a  
   clearly unwarranted invasion of personal privacy;                      
    Law enforcement records, particularly of ongoing investigations;      

    Information concerning bank supervision;                              

    Geological and geophysical information, such as maps.                 

      The Office of Information and Regulatory Affairs within the Office of
   Management and Budget exercises under various statutes, including the  
   Paperwork Reduction Act, 1                                             
    broad authority for coordinating and administering various aspects of 
   government-wide information policy. The Department of Justice, in turn,
   provides policy guidance and oversees the agencies' compliance with    
   FOIA.                                                                  
   \1\The Paperwork Reduction Act consists of (P.L. 96 511, 94 Stat. 2812)
   as amended by the Paperwork Reduction Act of 1986 (section 101 (m)     
   [Title VIII, Part A] of P.L. 99 500 and P.L. 99 591, 100 Stat. 1783) and
   The Paperwork Reduction Act of 1995 (P.L. 104 13, 109 Stat. 163). The  
   Paperwork Reduction Act is codified at Chapter 35 of Title 44 of the   
   United States Code.                                                    
      Individual departments and agencies generally have established      
   specific offices for processing FOIA requests. Nevertheless, lack of   
   sufficient agency resources has constrained the effectiveness of the   
   FOIA. At some agencies failure to allocate sufficient staff to comply  
   with the Act has resulted in lengthy backlogs measured in years. Efforts
   at improving FOIA response time have centered on better prioritization 
   of requests and more efficient administrative practices.               
      FOIA access to unpublished agency records has resulted in many      
   disclosures of waste and fraud in the Federal Government. The Act      
   reflects the view that the full disclosure of information to the public
   about government wrongdoing and other mistakes will ultimately generate
   appropriate corrective responses. Such revelations may have a certain  
   degree of preventive effect, prompting a higher degree of probity and  
   conscientiousness in the performance of government operations. Exposures
   resulting from FOIA disclosures, and the reactions they produce, are   
   critical to maintaining an open and free society.                      

            B. The Evolution of the Freedom of Information Act          

      Initially enacted in 1966, the Act resulted from years of           
   congressional examination of executive department and agency impediments
   to public access to information. 2                                     
    The prevailing public access law, Section 3 of the Administrative     
   Procedure Act of 1946, was being interpreted to restrict information   
   availability. 3                                                        
    This so-called ``housekeeping'' law originated from the earliest days 
   of the Republic. It directed department heads to prescribe regulations 
   for the custody, use, and preservation of department records, papers and
   property. 4                                                            
                                                                          

   \2\House Committee on Government Operations, Availability of Information
   From Federal Departments and Agencies: Hearings before the House       
   Committee on Government Operations, 84th-86th Congresses.              
   \3\60 Stat. 237 at 238. Francis E. Rourke. ``Secrecy and Publicity:    
   Dilemmas of Democracy.'' Baltimore: The Johns Hopkins Press, 1961, pp. 
   57 58.                                                                 
   \4\See 1 Stat. 28, 49, 65; these and similar provisions were           
   consolidated in the Revised Statutes of the United States (1878) at    
   Section 161, which is presently located in the United States Code at 5 
   U.S.C. 301 (1994). Rourke, ``Secrecy and Publicity: Dilemmas of        
   Democracy,'' pp. 47 49.                                                
      The origins of the original Freedom of Information Act can be traced
   to a predecessor subcommittee to the House Subcommittee on Government  
   Management, Information and Technology. In 1955 the House Committee on 
   Government Operations established the Special Subcommittee on Government
   Information. In chartering the Subcommittee, full Committee Chairman   
   William L. Dawson directed it:                                         

                     To study the operation of agencies and officials in
          the executive branch of the Government at all levels with a  
          view to determining the efficiency and economy of such       
          operation in the field of operation. * * * With this purpose 
          your subcommittee will ascertain the trend in the availability
          of Government information and will scrutinize the information
          practices of executive agencies and officials in the light of
          their propriety, fitness and legality. 5                     
                                                                          

   \5\House Committee on Government Operations, Amending Section 552 of   
   Title 5, United States Code, Known as the Freedom of Information Act,  
   93rd Congress, 2nd Session, House Report 93 876, p. 3.                 


      The efforts of this subcommittee expanded the people's right to know.
   Congress, in 1958, amended this ``housekeeping'' law to state that it  
   ``does not authorize withholding information from the public or limiting
   the availability of records to the public.'' 6                         
                                                                          

    672 Stat. 547. Rourke, ``Secrecy and Publicity,'' pp. 59 60.          

      The author of one of the earliest and most thorough studies of this 
   protective bulwark stated the resulting dilemma dramatically and       
   concisely:                                                             

                     Public business is the public's business. The     
          people have the right to know. Freedom of information is their
          just heritage. Without that the citizens of a democracy have 
          but changed their kings. 7                                   
                                                                          

    7Harold L. Cross. ``The People's Right to Know.'' New York City:      
   Columbia University Press, 1953, p. xiii.                              

      The Freedom of Information Act evolved from the 1958 Administrative 
   Procedure Act disclosure requirement. An early attempt at a freedom of 
   information bill was considered and approved in the Senate during the  
   88th Congress. 8                                                       
    However, the House took no action on such a measure before sine die   
   adjournment. Again, in the 89th Congress, the Senate returned to the   
   measure and adopted a revised and refined version of the earlier bill on
   October 23, 1965. The House subsequently passed this bill on June 20,  
   1966.                                                                  
    8For the legislative history of the Freedom of Information Act of 1966,
   see Senate Committee on the Judiciary, Freedom of Information Act Source
   Book: Legislative Materials, Cases, Articles, S. Doc. No. 93 82, 93rd  
   Congress, 2d Session (1974).                                           
   Signing the FOIA into law on July 4, 1966, 9                           

    President Johnson declared:                                           

    980 Stat. 250.                                                        


                    This legislation springs from one of our most      
          essential principles: A democracy works best when the people 
          have all the information that the security of the Nation     
          permits. No one should be able to pull curtains of secrecy   
          around decisions which can be revealed without injury to the 
          public interest. 10                                          
                                                                          

    10Public Papers of the Presidents of the United States: Lyndon B.     
   Johnson, 1966. Book 2. Washington, U. S. Govt. Print. Off., 1967, p.   
   699.                                                                   

      The FOIA became operative on July 4, 1967. It became codified as    
   section 552 of Title 5, United States Code. 11                         
                                                                          

    115 U.S.C. 552 (1970).                                                

      During House and Senate committee consideration of legislation      
   leading to the FOIA, no executive department or agency representative  
   had testified in support of the proposals. Subsequent congressional    
   oversight of the Act revealed that this distaste for the legislation   
   transformed into hostility toward the statute during its initial       
   implementation. A 1972 report by the House Committee on Government     
   Operations characterized the situation as follows:                     

                     The efficient operation of the Freedom of         
          Information Act has been hindered by five years of           
          foot-dragging by the Federal bureaucracy. The widespread     
          reluctance of the bureaucracy to honor the public's legal    
          right to know has been obvious in parts of two               
          administrations. This reluctance has been overcome in a few  
          agencies by continued pressure from appointed officials at the
          policy making level and in some other agencies through public
          hearings and other oversight activities by the Congress. 12  
                                                                          

    12House Committee on Government Operations, Administration of the     
   Freedom of Information Act, House Report 92 1419, 92nd Congress, 2d    
   Session, 1972, pp. 8 9.                                                

      Officials sometimes argue that the FOIA was not a primary program of
   a particular department and agency. This contention, however, ignores  
   the importance of government information accessibility for the citizens
   of a democracy. Unfortunately, over time administration of the FOIA has
   suffered from a lack of resources. Consequently many requests          
   languished, awaiting a response, because agencies failed to provide    
   necessary resources. FOIA has also suffered from weak administrative   
   support in its implementation.                                         
      Amendments strengthening FOIA were introduced in the House in early 
   1973 and legislative hearings were held in May of that year. No        
   department or agency witness expressed any support for the proposed    
   amendments. By the end of 1973, the House bill was refined, reported   
   from the House Government Operations Committee in February 1974, and   
   adopted by the House in March. Shortly thereafter, in May, a Senate    
   counterpart bill was reported, strengthened during floor debate, and   
   adopted. 13                                                            
                                                                          

    13For the legislative history of the 1974 amendments to the Freedom of
   Information Act, see House Committee on Government Operations and Senate
   Committee on the Judiciary. Freedom of Information Act and Amendments of
   1974 (P.L. 93 502). Source Book: Legislative History, Texts, and Other 
   Documents. Joint Committee print, 94th Congress, 1st Session, 1975.    
      During the twenty months that the FOIA amendments moved through the 
   two Houses of Congress, various congressional committees and a Special 
   Prosecutor were engaged in pursuing inquiries related to the Watergate 
   scandal. Against this backdrop of concern about the accountability of  
   public officials, the availability of Government information became an 
   important issue for Congress and the public.                           
      Though the FOIA amendments of 1974 were not developed in response to
   the Watergate incident, they gained legislative momentum as            
   congressional investigators probed Watergate and related matters.      
   President Nixon resigned shortly after the conferees on the FOIA       
   amendments began their deliberations in August. The new President,     
   Gerald Ford, sent a letter to the conferees expressing his reservations
   about some specific amendments. After resolving their differences, the 
   conferees placed their report before their respective chambers. Approval
   by the Senate came on October 1, 1974 and the House voted acceptance on
   October 7, 1974.                                                       
      On October 17, 1974 the President vetoed and characterized the      
   legislation as ``unconstitutional and unworkable.'' 14                 
    On November 20, 1974 the House voted 371 31 to reject the presidential
   veto. The next day, the Senate completed action on the legislation,    
   voting 65 27 to override the President's objections. The amendments    
   became law, taking effect on February 19, 1975. 15                     
                                                                          

    14``Public Papers of the Presidents of the United States: Gerald R.   
   Ford, 1974.'' Washington, U. S. Govt. Print. Off., 1975, pp. 374 376.  
    1588 Stat. 1561.                                                      

      Perhaps the most significant change under the FOIA amendments was   
   that requestors needed only to ``reasonably describe'' the requested   
   records. Additionally, agencies were directed to furnish documents     
   without charge or at a reduced cost if it determined that such an action
   would be in the public interest. Courts could conduct an in camera     
   review of contested materials to decide if any materials were being    
   properly withheld. Agencies received specific response deadlines for   
   agency action. The Federal courts were given authority to award attorney
   fees and litigation costs where a private complainant had              
   ``substantially prevailed'' in seeking records from an agency; they were
   authorized to take notice of the ``arbitrary and capricious''          
   withholding of documents. In addition the amendments expanded and      
   clarified the definition of agencies covered by the FOIA. They also    
   specified that records containing segregable portions of withholdable  
   information be released with the necessary deletions.                  
      Additionally the exemptions in the Act concerning classified        
   information and law enforcement materials were narrowed and made more  
   specific. The amendments, and their manner of adoption, also displayed 
   Congress's strong support for and commitment to the FOIA and its proper
   administration.                                                        

      In 1976, when adopting another open government law--the Government in
   the Sunshine Act--in fulfillment of the people's right to know, Congress
   again amended the FOIA. 16                                             
    This change was a limited one, prompted by a 1975 Supreme Court case. 
   The court's decision expanded the interpretation of the types of       
   information covered by the third exemption of the FOIA. 17             
    Consequently, the FOIA amendment modified the exemption covering      
   information specifically excepted from disclosure by other statutes. The
   amendment mandated that protection only applied if the statute ``left no
   discretion on the issue,'' or referred to particular types of          
   information to be withheld. 18                                         
                                                                          

    16For the legislative history of the Government in the Sunshine Act and
   its amendment to the FOIA, see Senate Committee on Government Operations
   and House Committee on Government Operations. Government in the Sunshine
   Act'--S. 5 (Public Law 94 409). Source Book: Legislative History, Texts,
   and Other Documents. Joint committee print, 94th Congress, 2d Session, 
   1976.                                                                  
    17Administrator, Federal Aviation Administration v. Robertson , 422   
   U.S. 255 (1975).                                                       
    1890 Stat. 1241, at 1247.                                             

      Further Senate FOIA amendment initiatives ended unsuccessfully during
   the 97th and 98th Congresses. In the closing days of the 99th Congress,
   however, during Senate debate of an omnibus anti-drug abuse bill, FOIA 
   amendments were attached to the measure. 19                            
    They strengthened the protection for law enforcement records and      
   created new fee and fee waiver arrangements. They set a structure of   
   three fee categories for FOIA users. The fees covered commercial users;
   scholars, scientific researchers, journalists; and all other requestors.
   However, fees could not be charged if the costs of routine collection  
   were likely to be equal or greater than the amount of the fee itself.  
   Also, the first two hours of search time or the first 100 pages of     
   document duplication were free, except for commercial users. In        
   addition, if the disclosure of the information was in the public       
   interest because it was likely to contribute significantly to public   
   understanding of the operations or activities of the Government and    
   otherwise was not primarily in the commercial interest of the requestor,
   there would be a reduced fee or no charge. These amendments remained in
   the anti-drug abuse bill signed by the President on October 27, 1986. 20
                                                                          

    19See Harold C. Relyea. ``U.S. Freedom of Information Act             
   Reforms--1986,'' 9 Journal of Media Law and Practice--12 (March 1988). 
    20100 Stat. 3207, at 3207 48.                                         

      The FOIA has become a popular tool used by various quarters of      
   American society--the press, business, scholars, attorneys, consumers, 
   and environmentalists, among others. Recent agency annual reports on the
   administration of the Act, covering 1992 operations, show an annual    
   volume of almost 600,000 requests. The response to a request may involve
   a few sheets of paper, several linear feet of records, or, increasingly,
   information in an electronic format.                                   
                   C. The Effect of Electronic Records                  

      Today, the FOIA faces a new challenge. The volume of Federal agency 
   records created and retained in electronic formats is growing at a rapid
   pace. Agency records are now created not just on pieces of paper and   
   placed in filing cabinets. Personal computers and digital storage media,
   such as CD ROMs (compact disk read-only memory), are becoming more     
   commonplace at Federal agencies. Information technology makes the      
   management of the information collected, stored, and used by the       
   Government more efficient.                                             
      When the FOIA was enacted agency records were primarily produced on 
   paper. FOIA's efficient operation requires that its provisions make    
   clear that the form or format of an agency record constitutes no       
   impediment to public accessibility. Furthermore, the information       
   technology currently being used by executive departments and agencies  
   should be used in promoting greater efficiency in responding to FOIA   
   requests. This objective includes using technology to let requestors   
   obtain information in the form most useful to them. Existing           
   technologies for searching electronic records can often review materials
   more quickly than is possible via a paper review. Harnessing these tools
   for FOIA can enhance the operation of the Act.                         
      The public is increasingly using networked computers and broadly    
   accessible data networks such as the Internet. Agencies need to fulfill
   their responsibilities under the FOIA in a manner that keeps pace with 
   these developments. An underlying goal of H.R. 3802 is to encourage    
   on-line access to Government information available under the FOIA,     
   including requests ordinarily made pursuant to section 552(a)(3). As a 
   result, the public can more directly obtain and use Government         
   information. This can result in fewer FOIA requests, thus enabling FOIA
   resources to be more efficiently used in responding to complex requests.
   H.R. 3802, the Electronic Freedom of Information Amendments Act of 1996,
   amends the FOIA to address these considerations and other information  
   access issues prompted by the electronic information phenomenon.       
      In 1955, when congressional hearings laying the groundwork for the  
   FOIA were held on the availability of information from Federal         
   departments and agencies, the Federal Government had 45 computers. Ten 
   years later, when the Senate passed its version of the FOIA, the       
   inventory had risen to 1,826 computers. Only five years elapsed before 
   the Government's holdings jumped to 5,277 computers, resulting in      
   hundreds of thousands of automated files and many data banks of agency 
   information. 21                                                        
                                                                          

    21Alan F. Westin and Michael A. Baker. ``Data Banks in a Free         
   Society''. New York: Quadrangle Books, 1972, pp. 29 30.                
      In succeeding years, the proportion of agency records produced and  
   retained in electronic formats has grown at an expansive rate. The     
   Government's use of personal computers and digital storage media, such 
   as CD ROMs, also became more widespread. 22                            
    In fiscal year 1994, the Federal Government used almost 25,250 small  
   computers (costing $10,000 to $100,000 each), 8,500 medium computers   
   (costing $100,000 to $1,000,000 each), and 890 large computers (costing
   more than $1,000,000 each). Personal computers have proliferated       
   throughout the Federal executive establishment. In a related           
   development, during the past three years, more than 800 Federal sites  
   have been set up on the World Wide Web. 23                             
                                                                          

    22See House Committee on Government Operations. Electronic Collection 
   and Dissemination of Information by Federal Agencies: A Policy Overview,
   H.R. Rep. No. 99 560, 99th Congress, 2d Session. (1986); U. S. Office of
   Technology Assessment. ``Informing the Nation: Federal Information     
   Dissemination in an Electronic Age''. Washington, D. C., October 1988. 
    23Lisa Corbin, ``Cyberocracy,'' Government Executive. p. 28 (January  
   1996).                                                                 
      The FOIA must stay abreast of these developments in order to ensure 
   continued public access to Government information. The FOIA must promote
   uniformity among agencies, reduce uncertainty among FOIA requestors, and
   avoid potential disagreements between the two. These are the central   
   purposes of H.R. 3802, the Electronic Freedom of Information Amendments
   of 1996.                                                               
      Many evolving technological innovations promote the greater         
   availability of Government information through the electronic          
   information ``superhighway.'' 24                                       
    For example, the 104th Congress created the ``Thomas'' on-line service
   of the Library of Congress, providing access to many legislative       
   resources, including the text of legislation and the Congressional     
   Record. Individual agencies have published data on the World Wide Web  
   through home pages. Agencies, such as the Government Printing Office,  
   have broadly expanded electronic access to government information at   
   other agencies. Computer links let users reach information maintained by
   other agencies in a matter of key strokes.                             
    24See U. S. Information Infrastructure Task Force, ``The National     
   Information Infrastructure: Agenda for Action''. Washington, D. C.,    
   September 15, 1993; U.S. Information Infrastructure Task Force's       
   Committee on Applications and Technology. ``Putting the Information    
   Infrastructure to Work''. Washington, D.C., May 1994; U.S. Information 
   Infrastructure Task Force's Committee on Applications and Technology,  
   ``The Information Infrastructure: Reaching Society's Goals''.          
   Washington, D.C., September 1994; U.S. Advisory Council on the National
   Infrastructure. ``A Nation of Opportunity: Realizing the Promise of the
   Information Superhighway'', Washington, D.C., January 1996.            

      The Paperwork Reduction Act of 1995 reflects congressional intent to
   encourage wider use of electronic distribution as an integral part of  
   the management of Government information. It acknowledges that private,
   non-governmental information providers perform an essential public     
   service in expanding the availability of information to the public.    
   Government agencies cannot be expected to match the dynamism and       
   creativity of information providers in transforming Government         
   information into valuable consumer information products, especially    
   given the robust nature of information technology developments.        
   Consequently, nongovernment information distributors play a valuable   
   role in advancing information policy objectives.                       
      The FOIA, by contrast, provides access to specifically requested    
   Government information sought at the initiative of a requestor. The    
   Paperwork Reduction Act provides the administrative framework for      
   agencies to more affirmatively disclose information to the public. With
   more affirmative disclosure, agencies can better use their resources.  
   Making more information available to the public can divert simple      
   requests away from FOIA. This will enable agencies to more efficiently 
   use their limited resources to complete requests on time.              

             D. Processing of Freedom of Information Requests           

      A principal constraint to the full effectiveness of the FOIA has been
   the lack of adequate agency resources. As a result, many agencies have 
   failed to process FOIA requests within the deadlines required by the   
   law. These delays in responding to FOIA requests continue as one of the
   most significant FOIA problems.                                        
      A 1986 House report cited inadequate resources, unnecessary         
   bureaucratic complexity, political interference with the disclosure    
   process, poor organization of agency records, and a lack of commitment 
   by agencies to disclosure as reasons for the delays. 25                
     These delays have persisted.                                         

    25House Committee on Government Operations. Freedom of Information Act
   Amendment of 1986. pp. 11 12, House Report 9 832, 99th Cong. 2d.       
   Session, 1986.                                                         
      In a memorandum dated October 4, 1993, to all heads of departments  
   and agencies, President Clinton stated:                                

                     The use of the Act by ordinary citizens is not    
          complicated, nor should it be. The existence of unnecessary  
          bureaucratic hurdles has no place in its implementation. I   
          therefore call upon all Federal departments and agencies to  
          renew their commitment to the Freedom of Information Act, and
          to its underlying principles of government oneness, and to its
          sound administration. This is the appropriate time for all   
          agencies to take a fresh look at their administration of the 
          Act, to reduce backlogs of Freedom of Information requests.* *
          * 26                                                         
                                                                          

    26Clinton, William J., President of the United States, Memorandum for 
   Heads of Departments and Agencies, October 4, 1993, ``The Freedom of   
   Information Act.''                                                     

    In an October 1993 memorandum that accompanied the President's       
  memorandum, Attorney General Janet Reno acknowledged the delay problem 
  and the cause for FOIA backlogs, stating:                              

                     Many Federal departments and agencies are often   
          unable to meet the Act's ten-day time limit for processing   
          FOIA requests, and some agencies--especially those           
          experiencing a high-volume of demands for sensitive          
          records--maintain large FOIA backlogs greatly exceeding the  
          mandated deadlines. The reasons for this may vary, but       
          principally it is a matter of limited resources for the heavy
          workload. This is a serious problem--one of growing concern  
          and frustration to both FOIA requesters and Congress, and to 
          agency FOIA officers as well. 27                             
                                                                          

    27Reno, Janet, Attorney General, Memorandum for Heads of Departments  
   and Agencies, October 4, 1993, ``The Freedom of Information Act.'      

      Out of a total of 75 agencies responding to a Department of Justice 
   request for backlog information in February 1994, only 28 agencies     
   reported no backlog.                                                   
   In  Open America  v.  Watergate Special Prosecution Force, 28          

    the District of Columbia Circuit Court of Appeals held that exceptional
   circumstances exist when the agency can show it has inadequate resources
   to process FOIA requests within statutory time limits. Also, an agency 
   may show that it is exercising due diligence by processing requests on a
   ``first-in, first-out'' basis. Relying upon overly broad dictum in this
   case, agencies have employed the exceptional circumstances-due diligence
   exception to obtain judicial approval for lengthy delays whenever they 
   have a backlog.                                                        
    28547 F.2d 605 (D.C. Cir. 1976)                                       

      Backlogs of requests for records under the FOIA should not give     
   agencies an automatic excuse to ignore the time limits. The development
   of agency administrative processes to respond to specific types of     
   requests on an expedited basis and for encouraging agencies to cooperate
   with requestors to frame more targeted requests is critical to using   
   agency FOIA resources in the most efficient manner possible.           

                       II. LEGISLATIVE HEARINGS AND COMMITTEE ACTION             

                             A. House Action                            

      Representative Tate introduced H.R. 3802 on July 12, 1996, with     
   Chairman Horn, of the Subcommittee on Government Management, Information
   and Technology; Representative Maloney, the ranking member; and        
   Representative Peterson, a member of the Subcommittee, as original     
   co-sponsors. The Subcommittee had previously held a legislative hearing
   on June 14, 1996 on S. 1090, the bill's Senate counterpart.            
      H.R. 3802 was marked up on July 12, 1996, by the Subcommittee on    
   Government Management, Information Technology. No amendments were      
   offered and the legislation passed the Subcommittee unanimously by voice
   vote.                                                                  
      Representative Maloney introduced H.R. 3885, concerning certain     
   reporting requirements, on July 24, 1996. Representative Tate, and     
   Chairman Horn supported the bill as original co-sponsors.              
      The House Committee on Government Reform and Oversight considered the
   measure on July 25, 1996. Chairman Horn offered an amendment in the    
   nature of a substitute and Representative Maloney offered an amendment 
   to it reflecting the substance of H.R. 3885. Both were adopted         
   unanimously by voice vote. The bill was favorably reported unanimously 
   to the House of Representatives by voice vote without further amendment.

                             B. Senate Action                           

      On November 7, 1991 Senator Patrick Leahy introduced S. 1040, a bill
   to clarify the application of the FOIA to agency records in electronic 
   forms or formats. Senator Brown co-sponsored the bill. ``The Electronic
   Freedom of Information Improvement Act of 1991'' was referred to the   
   Senate Committee on the Judiciary, and a hearing on it was held by the 
   Subcommittee on Technology and the Law on April 30, 1992.              
      Testifying before the Subcommittee was Steven R. Schlesinger,       
   Director, Office of Policy Development, Department of Justice,         
   accompanied by Daniel Metcalfe, Co-director, Office of Information and 
   Privacy, Department of Justice. The Subcommittee also received testimony
   from a panel of witnesses. These included Peter Richard, Editor, USA   
   Today, appearing on behalf of the American Newspaper Publishers        
   Association, American Society of Newspaper Editors, Society of         
   Professional Journalists/Sigma Delta Chi, National Newspaper           
   Association, National Association of Broadcasters, Radio-Television News
   Directors Association, and Reporters Committee for Freedom of the Press;
   Scott Marshall, Director, Governmental Relations Department, American  
   Foundation for the Blind; Sybil McShane, Director of Library and       
   Information Services, Vermont State Department of Libraries; and Thomas
   M. Susan, a practicing attorney with Ropes & Gray, appearing on behalf 
   of the American Bar Association. 29                                    
    The Subcommittee took no further action on S. 1940 before the final   
   adjournment of the 102d Congress.                                      
    29The Electronic Freedom of Information Improvement Act: Hearing before
   the Subcommittee on Technology and the Law of the Committee on the     
   Judiciary, 102d Cong., 2d Sess. (1992).                                
      Senator Leahy introduced a related bill, S. 1939, ``The Freedom of  
   Information Improvement Act of 1991,'' on November 7, 1991. This bill  
   contained amendments to the FOIA concerning matters other than agency  
   records in electronic forms or formats. S. 1939 was also referred to the
   Senate Committee on the Judiciary, but no action was taken on it during
   the 102d Congress.                                                     
      Senator Leahy introduced a modified version of S. 1940 on November  
   22, 1993, as S. 1782, ``The Electronic Freedom of Information          
   Improvement Act of 1993,'' with Senator Brown as a cosponsor. It was   
   referred to the Committee on the Judiciary. Senator John Kerry of      
   Massachusetts co-sponsored the bill on April 11, 1994.                 
      During 1994 and 1995, staff of the Subcommittee on Technology and the
   Law conferred with representatives of the Office of Management and     
   Budget, the Department of Justice, FOIA officers from various Federal  
   agencies, and interest groups using the FOIA concerning further        
   development of the provisions of S. 1782. Because of these and other   
   consultations, a revised version of S. 1782 was unanimously approved by
   the Subcommittee on Technology and the Law on June 29, 1994, and by the
   Committee on the Judiciary on August 11, 1994. The bill then passed the
   Senate by unanimous consent on August 25, 1994. No further action on the
   bill was taken in the 103rd Congress.                                  
      On July 28, 1995, Senators Leahy, Brown, and Kerry introduced S.    
   1090, ``The Electronic Freedom of Information Improvement Act of 1995.''
   It was modified from the version passed by the Senate in the 103rd     
   Congress. S. 1090 was referred to the Committee on the Judiciary and, on
   October 6, 1995, to the Subcommittee on Terrorism, Technology and      
   Government Information. The Subcommittee favorably reported the bill on
   March 14, 1996. Following consultation with the Office of Management and
   Budget, revisions were made to S. 1090 in the form of a substitute     
   amendment.                                                             
      On April 25, 1996, by voice vote, the Committee on the Judiciary    
   unanimously ordered the Committee substitute to S. 1090 favorably      
   reported.                                                              

                       III. COMMITTEE HEARINGS AND WRITTEN TESTIMONY             


      On June 13 and 14, 1996, the Subcommittee on Government Management, 
   Information and Technology of the Committee on Government Reform and   
   Oversight, held hearings on Federal information policy. The first day of
   hearings was devoted to oversight of information policy. The second day
   was a legislative hearing that considered related amendments to the    
   Freedom of Information Act: H.R. 1281; ``The War Crimes Disclosure     
   Act''; and S. 1090, ``The Electronic Freedom of Information Improvement
   Act of 1995.''                                                         
      In his opening statement, Chairman Horn expressed his frustration at
   learning that the Federal Bureau of Investigation has a four-year      
   backlog for responding to FOIA requests. In noting the significance that
   the Committee attaches to the Freedom of Information Act, he observed  
   that the first report issued by the House Committee on Government Reform
   and Oversight had been an updated version of ``A Citizen's Guide on    
   Using the Freedom of Information and Privacy Act of 1974 to Request    
   Government Records.'' 30                                               
                                                                          

    30House Committee on Government Reform and Oversight, A Citizen's Guide
   on Using the Freedom of Information Act and the Privacy Act of 1974 to 
   Request Government Records, House Report, 104-156, 1st Session, 1995.  
      The Subcommittee's ranking member, Representative Maloney noted the 
   interrelation between the Freedom of Information Act and the Paperwork 
   Reduction Act in establishing the presumption that all government      
   documents be available to the public. She noted that: ``Information    
   policy is the bedrock of an open and accessible government. The        
   Paperwork Reduction Act codifies one of the fundamental principles of  
   democracy--government information belongs to the public. Information   
   created by government officials and paid for by the public should be   
   available to the public at the lowest possible cost.''                 
      Representative Tate commented that: ``Opening the work of the Federal
   Government to the watchful and vigilant eyes of the American public is 
   an effort that both parties and the Administration should embrace      
   wholeheartedly.'' Representative Peterson observed that: ``One of the  
   biggest frustrations with the Freedom of Information Act is that       
   deadlines are rarely met.'' Representative Flanagan noted with         
   displeasure that citizens who requested their own FBI files could wait 
   years before receiving them in order to correct errors contained       
   therein.                                                               
      The Subcommittee received testimony from Senator Patrick Leahy on S.
   1090 during the June 13th oversight hearing. The Senator noted the role
   that FOIA requests had in uncovering information about various         
   government actions. He noted that the law needed to be updated to      
   reflect the advancing use of information technology in government to   
   maintain records, adding ``access should be the same whether they are on
   a piece of paper or a computer hard drive.'' The Senator also criticized
   the failure of agencies to comply with the statutory time limits for   
   responding to requests:                                                

                     Long delays in access can mean no access at all.  
          The current time limits in the FOIA are a joke. Few agencies 
          actually respond to FOIA requests within the 10-day limit    
          required by law. Such routine failure to comply with the     
          statutory time limits is bad for morale in the agencies and  
          breeds contempt by citizens who expect government officials to
          abide by, not routinely break, the law.                      

      Also testifying at the June 13th hearing were Ms. Roslyn A. Mazer,  
   Deputy Assistant Attorney General, Office of Policy Development,       
   Department of Justice; Mr. Kevin O'Brien, Section Chief, Freedom of    
   Information/Privacy Acts Section, Federal Bureau of Investigation, and 
   Mr. Anthony H. Passarella, Director, Directorate for Freedom of        
   Information and Security Review, Office of the Assistant Secretary of  
   Defense (Public Affairs). These three witnesses explained how their    
   agencies processed public requests for information under the Freedom of
   Information Act and related statutes.                                  
      Four representatives of the ``requestor'' community related their   
   experiences in seeking government information: Ms. Eileen Welsom, on   
   behalf of Society of Professional Journalists, American Society of     
   Newspaper Editors, and the Newspaper Association of America; Mr. Larry 
   Klayman, Chairman, Judicial Watch, Inc., Ms. Jane E. Kirtley, Executive
   Director, The Reporters Committee for the Freedom of the Press and Mr. 
   Byron York, reporter, The American Spectator. Each drew upon their     
   professional experiences in recounting difficulties experienced in     
   obtaining information on time. They noted that the Federal Bureau of   
   Investigation, in particular, failed to respond to FOIA requests on    
   time.                                                                  
      Ms. Kirtley expressed concern that S. 1090 seemed to require that to
   be a candidate for expedited access, a news story had to be ``already  
   the subject of fervent media attention.'' She suggested that agencies  
   ought to speed up access to records for the media ``whenever records are
   requested that would enlighten the public on matters where public      
   concern is strong.''                                                   
      Mr. Klayman noted that agencies ought to be penalized when they fail
   to comply with the law, such as applying criminal penalties for willful
   failure to abide by the requirements of the FOIA and related laws. He  
   proposed the awarding of attorney fees and costs to successful FOIA    
   plaintiffs be made mandatory, rather than discretionary.               
      At the June 14th hearing, the Subcommittee heard testimony from Mr. 
   Robert Gellman, an attorney and a privacy and information policy       
   consultant. Mr. Gellman had previously been chief counsel in the 103rd 
   Congress for the congressional predecessor to the Subcommittee on      
   Government Management, Information and Technology and has written      
   extensively on FOIA issues. He was critical of the definitions used in 
   S. 1090. He criticized the standard used in S. 1090 that media receipt 
   of expedited access involve ``widespread media coverage'' as lacking any
   clear meaning.                                                         
      Mr. Gellman praised the principle in S.1090 requiring agencies to   
   respond to requestor format requests for electronic records, but       
   suggested that S. 1090 might go too far in allowing the requestor to   
   unreasonably require disclosure in seldom used formats. He further     
   suggested that a requirement that agencies identify redacted material on
   electronic records should be subject to a standard of technical        
   feasibility. He criticized the Department of Justice for its handling of
   FOIA litigation for agencies, stating that: ``the Department of Justice
   defends unreasonable agency denials in court and will make an argument,
   without regard to the purpose of FOIA or the policies of the President,
   department litigators bear substantial responsibility for much of the  
   bad FOIA case law in recent years.''                                   

      Mr. Alan Adler, an attorney familiar with the experience of reporters
   making FOIA requests, recounted the barriers that journalists face when
   they request production of records in an electronic format. Based upon 
   his participation in the development of the Leahy bill, he discussed the
   manner in which the drafters had addressed various administration      
   concerns. In recounting the evolution of Senator Leahy's initiatives   
   toward an electronic Freedom of Information bill, Mr. Adler stressed   
   that the legislation was intended to help agencies to reduce request   
   backlogs and to more effectively use scarce resources. He noted that the
   legislation had evolved in response to agency concerns.                
      Mr. James Lucier, Director of Economic Research at Americans for Tax
   Reform, testified in support of S. 1090. He observed that the public was
   now more eager to obtain government information than it was when the   
   FOIA was first enacted in 1966. He suggested that increasing public    
   access to Government information through electronic means was essential
   if the government were to approach the pace of private sector          
   developments. He argued that government needed to keep pace in its use 
   of communication technologies that made information about private      
   institutions more accessible. Lucier testified that Government needs to
   meet the expectations for responsiveness that consumers insist upon from
   private institutions.                                                  
                                IV. EXPLANATION OF THE BILL                      

                               A. Overview                              

      The highlights of the Electronic Freedom of Information Amendments  
   include:                                                               
       Electronic records.-- Records which are subject to the FOIA shall be
   made available under the FOIA when the records are maintained in       
   electronic format. This clarifies existing practice by making the      
   statute explicit on this point.                                        
       Format Requests.-- Requestors may request records in any form or   
   format in which the agency maintains those records. Agencies must make a
   ``reasonable effort'' to comply with requests to furnish records in    
   other formats.                                                         
       Redaction.-- Agencies redacting electronic records (deleting part of
   a record to prevent disclosure of material covered by an exemption) must
   note the location and the extent of any deletions made on a record. This
   provision, however, applies only if the agencies have the technology to
   comply with it.                                                        
       Expedited Processing.-- Certain categories of requestors would     
   receive priority treatment of their requests if failure to obtain      
   information in a timely manner would pose a significant harm. The first
   category of requestors entitled to this special processing includes    
   those who could reasonably expect that delay could pose an imminent    
   threat to the life or physical safety of an individual. The second     
   category includes requests, made by a person primarily engaged in the  
   dissemination of information to the public, and involving compelling   
   urgency to inform the public.                                          
       Multitrack processing.-- Agencies will be able to establish        
   processes for processing requests of various sizes on different tracks.
   Because of this procedure, larger numbers of requests for smaller      
   amounts of material will be completed more quickly. Requestors will also
   have an incentive to frame narrower requests.                          
       Agency Backlogs.-- Agencies can no longer delay responding to FOIA 
   requests because of ``exceptional circumstances'' simply as a result   
   from a predictable agency request workload. This strengthens the       
   requirement that agencies respond to requests on time.                 
       Deadlines.-- The deadline for responding to FOIA is extended to 20 
   workdays from the current 10 workday requirement for initial           
   determinations.                                                        
       Reporting requirements.-- The legislation expands certain reporting
   requirements, and requires agencies to make more information available 
   through electronic means.                                              

                          B. Section by Section                         

           Section 1.  Short title                                                

      The Act should be cited as the ``Electronic Freedom of Information  
   Act Amendments of 1996.''                                              

           Section 2.  Findings and purposes                                      

      The findings make clear that Congress enacted the FOIA to require   
   Federal agencies to make records available to the public through public
   inspection and at the request of any person for any public or private  
   use. They further acknowledge the increase in the Government's use of  
   computers and encourages agencies to use new technology to enhance     
   public access to Government information.                               

           Section 3. Application of requirements to electronic format information

      The section explicitly states that a ``record'' under the FOIA      
   includes electronically stored information. This articulates the       
   existing general policy under the FOIA that all Government records are 
   subject to the Act, regardless of the form in which they are stored by 
   the agency. The Department of Justice agrees that computer database    
   records are agency records subject to the FOIA.\31\                    
    The bill defines ``record'' to ``include any information that would be
   an agency record subject to the requirements of this section if        
   maintained by an agency in any format, including an electronic format.''
   \31\See ``Department of Justice Report on `Electronic Record' Issues   
   Under the Freedom of Information Act,'' Senate Hearing 102 1098, 102d  
   Cong., 2d Sess. P. 33, 1992.                                           
      This section clarifies the meaning of the term ``record'' and similar
   terminology used in the FOIA. Several important points are worth making.

       Breadth of Policy .--First, the FOIA usually uses the term         
   ``record,'' but other terms are also used occasionally, including      
   ``information'' and ``matter.'' The terms are used interchangeable. The
   section makes clear a comprehensive policy that records in electronic  
   formats are agency records subject to the Act. The language of the     
   section should leave no doubt about the breadth of the policy. As noted
   previously, a number of statutes set Federal Government information    
   policy. This bill is not intended to be dispositive of all aspects of  
   those policies. For example, matter not previously subject to FOIA when
   maintained in a non-electronic format is not made subject to FOIA by   
   this bill.                                                             
       Storage Media .--Second, the section clarifies that a record in    
   electronic format can be requested just like a record on paper or any  
   other format, and within enumerated exceptions, can potentially be fully
   disclosed under the law. The format in which data is maintained is not 
   relevant under the FOIA. Computer tapes, computer disks, CD ROMs, and  
   all other digital or electronic media are records. Microfiche and      
   microforms are records. When other, yet-to-be invented technologies are
   developed to store, maintain, produce, or otherwise record information,
   these will be records as well. When determining whether information is 
   subject to the FOIA, the form or format in which it is maintained is not
   relevant to the decision.                                              
      The requirements for the disclosure of information exist elsewhere in
   the Act. No matter how it is preserved, information that passes the    
   threshold test of being an agency record, remains a record. This       
   provision should restrain agencies from evading the clear intent of the
   FOIA by deeming some forms of data as not being agency records and not 
   subject to the law. The primary focus should always be on whether      
   information is subject to disclosure or is exempt, rather than the form
   or format it is stored in. This provision, however, does not broaden the
   concept of agency record. The information maintained on a computer is a
   record, but the computer is not.                                       
       Rejected Definitions .--Third, the Committee rejects the definition
   of record in the substitute to S. 90, as reported by the Senate        
   Committee on the Judiciary on April 25, 1996. The Senate bill had      
   incorporated a definition of record drawn from the Records Disposal Act.
   32                                                                     
                                                                          

    3244 U.S.C. *3301 (1994).                                             

      A case in point comes from the decision in SDC Development Corp. v. 
   Mathews. 33                                                            
    The decision has previously been sharply criticized by this Committee 
   and its holding is inconsistent with the policies expressed in this    
   legislation. 34                                                        
    The Court found that an agency-created computer database of research  
   abstracts was not an agency record because it was library material. The
   court used the library material exclusion in the Records Disposal Act as
   an excuse to place these records beyond the reach of the FOIA. H.R. 3802
   makes clear, contrary to SDC v. Mathews, that information an agency has
   created and is directly or indirectly disseminating remains subject to 
   the FOIA in any of its forms or formats. 35                            
                                                                          

    33542 F.2d 1116 (9th Cir. 1976).                                      

    34See House Committee on Government Operations, Electronic Collection 
   and Dissemination of Information by Federal Agencies: A Policy Overview,
   99th Cong., 2d Sess. 32 36 (1986).                                     
    35A recent scholarly article examines the background and policy of the
   Records Disposal Act and the FOIA. It provides a more extensive        
   discussion of the Court's misreading of the FOIA, the Records Disposal 
   Act and the Copyright Act. See Robert Gellman, Twin Evils: Government  
   Copyright and Copyright-Like Controls Over Government Information, 45  
   Syracuse Law Review 999, 1036 1046 (1995).                             

                      Section 4. Information made available in electronic format  
           and indexation of records                                              
      This section of the bill requires that materials, such as agency    
   opinions and policy statements, which an agency must ``make available  
   for public inspection and copying,'' pursuant to Section 552(a)(2), and
   which are created on or after November 1, 1996, be made available by   
   computer telecommunications, and in hard copy, within one year after the
   date of enactment. If an agency does not have the means established to 
   make these materials available on-line, then the information should be 
   made available in another electronic form, e.g., CD ROM or disc. The   
   bill would thus treat (a)(2) materials in the same manner as it treats 
   (a)(1) materials, which under the Government Printing Office Electronic
   Information Access Enhancement Act of 1993 36                          
    are required, via the Federal Register, to be made available on-line. 

    3644 U.S.C. 4101 (1993).                                              

      This section would also increase the information made available under
   Section 552(a)(2). Specifically, agencies would be required to make    
   available for public inspection and copying, in the same manner as other
   materials made available under Section 552(a)(2), copies of records    
   released in response to FOIA requests that the agency determines have  
   been or will likely be the subject of additional requests. In addition,
   they would be required to make available a general index of these      
   previously-released records. By December 31, 1999, this index should be
   made available by computer telecommunications. Since not all individuals
   have access to computer networks or are near agency public reading     
   rooms, requestors would still be able to access previously-released FOIA
   records through the normal FOIA process.                               
      As a practical matter, this would mean that copies of               
   previously-released records on a popular topic, such as the            
   assassinations of public figures, would subsequently be treated as     
   (a)(2) materials, made available for public inspection and copying. This
   would help to reduce the number of multiple FOIA requests for the same 
   records requiring separate agency responses. Likewise, the general index
   would help requestors in determining which records have been the subject
   of prior FOIA requests. By diverting some potential FOIA requests for  
   previously-released records with this index, agencies can better use   
   their FOIA resources to fulfill new requests.                          

      This section also makes clear that to prevent a clearly unwarranted 
   invasion of personal privacy, an agency may delete identifying details 
   when it makes available or publishes the index and copies of           
   previously-released records.                                           
      Finally, this section would require an agency to indicate the extent
   of any deletion from the previously-released records. This provision is
   consistent with the ``Computer Redaction'' section of the bill. Both   
   provisions similarly temper this requirement by giving agencies the    
   flexibility to show that marking the place on the record where the     
   deletion was made was not technically feasible. Agencies need not reveal
   information about deletions if such disclosure would harm an interest  
   protected by an exemption.                                             

           Section 5. Honoring form or format requests                            

      This section requires agencies to help requestors by providing      
   information in the form requested, including requests for the electronic
   form of records, if the agency can readily reproduce it in that form.  
   The section would overrule Dismukes v. Department of the Interior, which
   held that an agency ``has no obligation under the FOIA to accommodate  
   plaintiff's preference [but] need only provide responsive, nonexempt   
   information in a reasonably accessible form.'' 37                      
                                                                          

    37603 F. Supp. 760, 763 (D.D.C. 1984)                                 

      This section also requires agencies to make reasonable efforts to   
   search for records kept in an electronic format. An unreasonable effort
   would significantly interfere with the operations of the agency or the 
   agency's use of its computers. Electronic searches should not result in
   any greater expenditure of agency resources than would have occurred   
   with a conventional paper-based search for documents.                  
      The bill defines ``search'' as a ``review, manually or by automated 
   means,'' of ``agency records for the purpose of locating those records 
   responsive to a request.'' Under the FOIA, an agency need not create   
   documents that do not exist. Computer records found in a database rather
   than in a file cabinet may require the application of codes or some form
   of programming to retrieve the information. Under the definition of    
   ``search'' in the bill, the review of computerized records would not   
   amount to the creation of records. Otherwise, it would be virtually    
   impossible to get records maintained completely in an electronic format,
   like computer database information, because some manipulation of the   
   information likely would be necessary to search the records.           
      Current law provides that most requestors receive the first two hours
   of search time for free. Ten years ago, computer time was expensive and
   carefully metered. Today, computer time is generally no longer a scarce
   resource. Except in unusual cases, the cost of computer time should not
   be a factor in calculating the two free hours of search time. Often,   
   searching by computer will reduce costs because computer searches are  
   generally faster, more thorough and more accurate, than manual searches.
   In those unusual cases, where the cost of conducting a computerized    
   search significantly detracts from the agencies'' ordinary operations, 
   no more than the dollar equivalent of two hours manual search time shall
   be allowed for two hours free search time. For any searches conducted  
   beyond the first two hours, an agency shall only charge the direct costs
   of conducting such searches.                                           

           Section 6. Standard for judicial review                                

      Section 5 requires a court to accord substantial weight to an       
   agency's determination as to both the technical feasibility of redacting
   non-releasable material at the place on the record where the deletion  
   was made, under paragraphs (2)(C) and subsection (b), as amended by this
   Act, and the reproducibility of the requested form or format of records,
   under paragraph (3)(B), as amended by this Act. This deference is      
   warranted because agencies are the most familiar with the availability 
   of their own technical resources to process, redact, and reproduce     
   records.                                                               
      This section does not affect the extent of judicial deference that a
   court may or may not extend to an agency on any other matter. There is 
   no intent with this provision, either expressly or by implication, to  
   affect the deference or weight which a court may extend to an agency   
   determination or an agency affidavit on any other matter. The provision
   applies narrowly to agency determinations with regard to technical     
   feasibility.                                                           

           Section 7. Ensuring timely response to requests                        

      The bill addresses the single most frequent complaint about the     
   operation of the FOIA: agency delays in responding to FOIA requests.   
   This section encourages agencies to employ better records management   
   systems and to set priorities for using their FOIA resources.          
      In underscoring the requirement that agencies respond to requests in
   a timely manner, the Committee does not intend to weaken any interests 
   protected by the FOIA exemptions. Agencies processing some requests may
   need additional time to adequately review requested material to protect
   those exemption interests. For example, processing some requests may   
   require additional time in order to properly screen material against the
   inadvertent disclosure of material covered by the national security    
   exemption.                                                             
       Multitrack First-In First-Out Processing .--An agency commitment to
   process requests on a first-in, first-out basis has been held to satisfy
   the requirement that an agency exercise due diligence in dealing with  
   backlogs of FOIA requests. Processing requests solely on a FIFO basis, 
   however, may result in lengthy delays for simple requests. The prior   
   receipt and processing of complex requests delays other requests,      
   increasing agency backlogs. The bill would permit agencies to promulgate
   regulations starting multitrack processing systems, and makes clear that
   agencies should exercise due diligence within each track. Agencies would
   also be required to give requestors the opportunity to limit the scope 
   of their requests to qualify for processing under a faster track.      
       Unusual Circumstances .--The FOIA currently permits an agency in   
   ``unusual circumstances'' to extend for a maximum of ten working days  
   the statutory time limit for responding to a FOIA request, upon written
   notice to the requestor setting forth the reason for such extension. The
   FOIA enumerates various reasons for such an extension. These reasons   
   include the need to search for and collect requested records from      
   multiple offices, the volume of records requested, and the need for    
   consultation with other components within the agency.                  
      An extra ten days may still provide an insufficient time for an     
   agency to respond to unusually burdensome FOIA requests. The bill      
   provides a mechanism to deal with such requests, which an agency would 
   not be able to process even with an extra ten days. For such requests, 
   the bill requires an agency to inform the requestor that the request   
   cannot be processed within the statutory time limits and provide an    
   opportunity for the requestor to limit the scope of the request so that
   it may be processed within statutory time limits, and/or arrange with  
   the agency a negotiated deadline for processing the request. In the    
   event that the requestor refuses to reasonably limit the request's scope
   or agree upon a time frame and then seeks judicial review, that refusal
   shall be considered as a factor in determining whether ``exceptional   
   circumstances'' exist under subparagraph (6)(C).                       

      The Committee believes that the FOIA works best when requestors and 
   agencies work together to define and fulfill reasonable requests. When a
   requestor can modify a request to make it easier for the agency to     
   process it, this benefits everyone. Still, there will be circumstances 
   in which a requestor and an agency cannot agree upon a modification that
   will speed processing. As long as a request meets the legal standards of
   the FOIA, each requestor has the right to frame his or her own request.
   If an agency determines by an objective standard that a requestor has  
   unreasonably refused to modify a request, and a court concurs, then the
   court shall consider that refusal when determining whether exceptional 
   circumstances exist.                                                   
      However, if an agency determines on its own that a requestor has    
   unreasonably refused to modify a request, the agency may not otherwise 
   discriminate against that request or requestor. The request must be    
   processed as it would have been had no modification been sought. An    
   agency may not maintain a separate queue of ``unreasonable'' requests, 
   nor may an agency constantly move ``unreasonable'' requests to the back
   of the queue. The Committee cautions agencies against using this limited
   test of ``reasonableness'' in any way other than the narrow way that the
   statute provides.                                                      
      This provision does not relieve an agency of the responsibility of  
   making a diligent, good-faith effort to complete its review of an      
   initial request within the statutory time frame. An agency should seek 
   an extension beyond the additional ten days already provided in        
   ``unusual circumstances'' only in rare instances. This procedure will  
   achieve one of the bill's important goals of encouraging a dialogue    
   between an agency and a requestor. This enhances the opportunity of a  
   requestor to obtain at least some of the records sought in a timely    
   fashion, and could alleviate some of the agency's burden in responding 
   to a request that could not otherwise be processed within the statutory
   time limits. In addition, it could provide a requestor with some       
   certainty as to a time frame for processing his or her request.        
       Exceptional Circumstances. --The Freedom of Information Act provides
   that, in ``exceptional circumstances,'' a court may extend the statutory
   time limits for an agency to respond to a FOIA request, but does not   
   specify what those circumstances are. The bill would clarify that      
   routine, predictable agency backlogs for FOIA requests do not constitute
   exceptional circumstances for purposes of the Act. This is consistent  
   with the holding in Open America v. Watergate Special Prosecution Force
   , 38                                                                   
    where the court held that an unforeseen 3,000 percent increase in FOIA
   requests in one year, which created a massive backlog in an agency with
   insufficient resources to process those requests in a timely manner, can
   constitute ``exceptional circumstances.'' Routine backlogs of requests 
   for records under the FOIA should not give agencies an automatic excuse
   to ignore the time limits, since this provides a disincentive for      
   agencies to clear up those backlogs. Nevertheless, the bill makes clear
   that a court shall consider an agency's efforts to reduce the number of
   pending requests in determining whether exceptional circumstances exist.
   Agencies may also make a showing of exceptional circumstances based on 
   the amount of material classified, based on the size and complexity of 
   other requests processed by the agency, based on the resources being   
   devoted to the declassification of classified material of public       
   interest, or based on the number of requests for records by courts or  
   administrative tribunals.                                              
    38547 F.2d 605 (D.C. Cir. 1976)                                       

       Aggregation of Requests. --The amendments reported out of Committee
   had reflected an implicit assumption that agency regulations may permit
   the aggregation of requests by the same requestor, or requestors that an
   agency reasonably believes are acting in concert. An amendment         
   clarifying this point is anticipated to be considered on the House     
   floor.                                                                 
      Any aggregation must involve such clearly related material that     
   should be considered as a single request. Multiple requests involving  
   unrelated matters should not be aggregated. Existing agency procedures 
   regarding entitlement for fee waivers already permit agencies to       
   aggregate some multiple requests.                                      
      The purpose of this aggregation is to ensure the equitable treatment
   of similarly situated requestors. Aggregation would depend upon the    
   factual circumstances of the requests, and particularly whether multiple
   requests were being used primarily to obtain a procedural advantage over
   other requests or requestors. Multiple or related requests could also be
   aggregated with requests seeking similar information for the purposes of
   negotiating the scope of the request and schedule. Where multiple      
   requestors have not acted in concert, such aggregation must be with    
   their consent. Applying the same principles, agencies should not       
   aggregate groups of requests simply to delay responding to requests. For
   example, the filing of a subsequent request should not affect the      
   processing of an initial request by the same requestor.                
           Section 8. Time period for agency consideration of requests            

      The bill contains provisions designed to address the needs of both  
   agencies and requestors for more workable deadlines for processing FOIA
   requests.                                                              

       Expedited Processing. --The bill would require agencies to         
   promulgate regulations authorizing expedited access to requesters who  
   show a ``compelling need'' for a speedy response. The agency would be  
   required to decide whether to grant the request for expedited access   
   within ten days and then notify the requestor of the decision. The     
   requestor would bear the burden of showing that expedition is          
   appropriate. This section limits judicial review to the same record    
   before the agency on the determination of whether to grant expedited   
   access. Moreover, the section provides that the Federal courts will not
   have jurisdiction to review an agency's denial of an expedited access  
   request if the agency has already provided a complete response to the  
   request for records. The latter provision does not limit a court's     
   ability to consider a requestor's application for the award of         
   attorney's fees.                                                       
      A ``compelling need'' warranting faster FOIA processing would exist 
   in two categories of circumstances. In the first category, the failure 
   to obtain the records within an expedited deadline poses an imminent   
   threat to an individual's life or physical safety. The second category 
   requires a request by someone ``primarily engaged in disseminating     
   information'' and ``urgency to inform the public concerning actual or  
   alleged Federal government activity.'' The section also permits agencies
   to elect to offer expedited processing in other circumstances.         
      The agencies are directed to establish rules and regulations for    
   processing requests for expedited access. By requiring a ``compelling  
   need,'' the expedited access procedure is intended to be limited to    
   circumstances in which a delay in obtaining information can reasonably 
   be foreseen to cause a significant adverse consequence to a recognized 
   interest.                                                              
      Agency officials will be required to make factual and subjective    
   judgments about the circumstances cited by requestors to qualify them  
   for ``expedited processing.'' To do so the requestors will need to     
   explain in detail their basis for seeking such treatment. Agency       
   discretion should be exercised with fairness and diligence. The        
   credibility of a requestor who makes repeated claims for expedited     
   processing that are determined to lack factual foundation may be taken 
   into account when the same requestor makes additional requests.        
      The specified categories for compelling need are intended to be     
   narrowly applied. A threat to an individual's life or physical safety  
   qualifying for expedited access should be imminent. A reasonable person
   should be able to appreciate that a delay in obtaining the requested   
   information poses such a threat. A person ``primarily engaged'' in the 
   dissemination of information should not include individuals who are    
   engaged only incidentally in the dissemination of information. The     
   standard of ``primarily engaged'' requires that information            
   dissemination be the main activity of the requestor, although it need  
   not be their sole occupation. A requestor who only incidentally engages
   in information dissemination, besides other activities, would not      
   satisfy this requirement.                                              
      The standard of ``urgency to inform'' requires that the information 
   requested should pertain to a matter of a current exigency to the      
   American public and that a reasonable person might conclude that the   
   consequences of delaying a response to a FOIA request would compromise a
   significant recognized interest. The public's right to know, although a
   significant and important value, would not by itself be sufficient to  
   satisfy this standard.                                                 
      Some agencies, such as the Department of Justice, already employ    
   expedited access procedures that, in some respects, have a broader     
   criteria for expedited access than contained in Section 7. 39          
    Agencies are given latitude to expand the criteria for expedited      
   access, ``in other cases determined by the agency.'' However, the      
   expedited processing procedure should be invoked in the circumstances as
   enumerated in the bill. Given the finite resources generally available 
   for fulfilling FOIA requests, unduly generous use of the expedited     
   processing procedure would unfairly disadvantage other requestors who do
   not qualify for its treatment.                                         
    39The Department of Justice's procedures for expedited access permits 
   it if a delay would result in the loss of substantial due process rights
   and the information sought is not otherwise available in a timely      
   manner.                                                                
       Expansion of Agency Response Time. --To help Federal agencies in   
   reducing their backlog of FOIA requests, the bill would double the time
   limit for an agency to respond to FOIA requests from ten days to twenty
   days. Attorney General Janet Reno has acknowledged the inability of most
   Federal agencies to comply with the ten-day rule ``as a serious        
   problem'' stemming principally from ``too few resources in the face of 
   too heavy a workload.'' 40                                             
                                                                          

    40Reno, Janet, Attorney General, Memorandum for Heads of Departments  
   and Agencies, October 4, 1993, ``The Freedom of Information Act.''     
       Estimation of Matter Denied. --The bill would require agencies when
   denying a FOIA request to try to estimate the volume of any denied     
   material and provide that estimate to the requestor, unless doing so   
   would harm an interest protected by an exemption.                      

           Section 9. Computer redaction                                          

      The ease with which information on the computer may be redacted makes
   the determination of whether a few words or 30 pages have been withheld
   by an agency at times impossible. The amendments require agencies to   
   identify the location of deletions in the released portion of the record
   and, where technologically feasible, to show the deletion at the place 
   on the record where they made the deletion, unless including that      
   indication would harm an interest protected by an exemption.           

           Section 10. Report to the Congress                                     

      This section would add to the information an agency is already      
   required to publish as part of its annual report. Specifically, agencies
   would be required to publish in their annual reports information       
   regarding denials of requested records, appeals, a complete list of    
   statutes upon which the agency relies to withhold information under    
   Section 552 (b)(3), which exempts information that is specifically     
   exempted from disclosure by other statutes, the number of backlogged   
   FOIA requests, the number of days taken to process requests, the amount
   of fees collected, and the number of staff devoted to processing FOIA  
   requests. The annual reports would be required to be made available to 
   the public, including by computer telecommunications means. If an agency
   does not have the means established to make the report available       
   on-line, then the report should be made available in another electronic
   form. The Attorney General is required to make each report available at
   a single electronic access point, and advise the Chairmen and ranking  
   members of the Senate Committee on the Judiciary and the House Committee
   on Government Reform and Oversight that such reports are available.    
      Congress has undertaken several recent initiatives focused on       
   streamlining government, making government processes more efficient, and
   improving the availability of government information. The Government   
   Performance and Results Act requires a system of evaluation measures   
   based on performance and results. The Paperwork Reduction Act of 1995  
   reexamines government information in the light of recent technological 
   developments. Also, the Reports Elimination Act eliminates hundreds of 
   reports to Congress required in a statute. Other pending legislation is
   likely to eliminate more than 200 statutorily required reports to      
   Congress from the General Accounting Office.                           
      In the spirit of these reforms, the Committee considered the        
   reporting requirements of the Freedom of Information Act. Some new     
   requirements were added to make the reports more useful to the public  
   and to Congress. For the public, the FOIA reports should answer certain
   common questions, such as: How does one request documents? How does the
   Government respond to those requests, including an explanation of the  
   reasons for not honoring a request? And, how long does it usually take 
   for a request to be processed? For Congress, these reports should      
   furnish a view of the agency workload and any backlog. The reports     
   should identify the progress the agency is making toward eliminating   
   that backlog. They should report on the resources devoted to answering 
   FOIA requests, allowing for meaningful comparisons among agencies about
   performance. Someone unfamiliar with the FOIA process should be able to
   understand a report without resorting to reading the statute. Jargon   
   such as ``(b)(3) exemptions'' should be replaced with more             
   understandable language substituted. Guidance should be given to the   
   agencies so that all reports contain terms with identical meanings.    
      Besides revising the contents of the reports to make them more      
   useful, the Committee changed the timing and reporting period of the   
   reports. Both changes were done to reduce the burden on the agencies,  
   though it meant a delay in providing information and descriptive       
   language to the public and Congress. FOIA reports have previously      
   reported on a calendar year and have been due on March 1st of the      
   following year. This bill changes the reporting period to a fiscal year
   to make it easier for agencies to compile the budget and staffing      
   information required. This bill also gives agencies more time to prepare
   the reports from two to four months. Of course, agencies should strive 
   to make their reports available sooner. In addition, the Committee has 
   provided an additional two months to the Department of Justice to      
   coordinate electronic access to these reports.                         
      This bill also requires the availability of all FOIA reports by     
   electronic means. The Committee anticipates that the Department of     
   Justice will establish a home page for reaching all agency reports     
   through a single site. Until a single site of electronic access is     
   available for all reports, the Committee expects the Attorney General  
   will forward to Congress print copies of all reports not available     
   electronically. Agencies that do not provide electronic access should  
   also make print reports available to the public, including distribution
   to Depository Libraries.                                               
      In drafting this legislation, the Committee rewrote the entire      
   reporting section of the Freedom of Information Act. This was done to  
   make it easier for the public to understand the new reporting          
   requirements, without constant reference to existing law.              
      Three reporting requirements were added to aid the public and       
   Congress to understand the work flow in each agency. Beginning in 1998,
   agencies will be required to report:                                   
       How many requests have not been resolved to the requestors'        
   satisfaction at the end of the reporting period? What is the median    
   number of days those appeals have been pending?                        
       What is the number of requests received during the year, and the   
   number of requests processed during the year?                          
       What is the median number of days taken to process requests of     
   different types? What is the volume of requests coming into the agency 
   annually, and the number of requests processed by the agency that year?
   These requirements will give the public and Congress clear measures of 
   any backlog that exists. This will allow Congress to monitor progress in
   responding to FOIA requests across time. It will help the public       
   understand how long it takes an agency to respond to a request.        
      The Committee has requested that agencies provide the median number 
   of days requests have been in the backlog queue, and the median number 
   of days necessary to complete the processing of requests. The Committee
   elected to use medians as a statistical measure because of their       
   appropriateness when the measure being summarized does not have a normal
   distribution, or when a few cases of extreme value would skew an       
   average. For example, a few requests for excessively large numbers of  
   documents could artificially inflate the average time taken to fill a  
   request. Of course, if agencies determine that the average time is a   
   better measure of their performance, they can include that in the report
   along with the median. Medians are simple to calculate, simply requiring
   a distribution of the number of days each request has been pending, and
   do not increase the reporting burden on agencies. The Committee        
   appreciates that some agencies with decentralized FOIA operations may  
   have trouble in calculating a precise agency-wide median. In such      
   circumstances reasonable estimates may be used. Finally, this bill     
   requires that agencies report the number of staff assigned to processing
   FOIA requests, and their budget for processing FOIA requests.          

      Much comment is made of the adequacy of agency resources to comply  
   with the statutory requirements of the FOIA. Effective future          
   congressional oversight of the FOIA requires more detailed information 
   about the level of resources that agencies devote to FOIA, the         
   effectiveness of their utilization and the level of resources that might
   be required for agencies to fully comply with the FOIA. Agencies should
   inform Congress of the additional resources needed to fully comply with
   the FOIA. In the absence of such information on budget requests and    
   management initiatives, the complaint by agencies that Congress has    
   denied the resources necessary to comply with the statutory deadlines is
   unsupportable.                                                         
      The Committee has rewritten the FOIA reporting requirements to make 
   them more useful to the public and to Congress, and to make the        
   information in them more accessible. With those goals in mind, we expect
   that the Department of Justice, in consultation with the Office of     
   Management and Budget, will provide guidelines to the agencies so that 
   all reports use common terminology and follow a similar format. The    
   Attorney General and the Director of the Office of Management and Budget
   are required to develop reporting guidelines for the annual reports by 
   October 1, 1997.                                                       

           Section 11. Reference materials and guides                             

      This section requires agencies to make publicly available, upon     
   request, reference material or a guide for requesting records or       
   information from an agency. This guide would include an index and      
   description of all major information systems of an agency, and a       
   handbook for obtaining various types and categories of public          
   information from an agency.                                            
      The guide is intended to be a short and simple explanation for the  
   public of what the Freedom of Information Act is designed to do, and how
   a member of the public can use it to access government records. Each   
   agency should explain in clear and simple language, the types of records
   that can be obtained from the agency through FOIA requests, why some   
   records cannot, by law, be made available, and how the agency makes the
   determination of whether or not a record can be released.              
      Each agency guide should explain how to make a FOIA request, and how
   long a requestor can expect to wait for a reply from the agency. In    
   addition, the guide should explain the requestor's rights under the law
   to appeal to the courts to rectify agency action. The guide should give
   a brief history of recent litigation it has been involved in, and the  
   resolution of those cases. If an agency requires that certain requests,
   such as applications for expedited access, be completed on agency forms,
   then the forms should be part of the guide.                            
      The guide is intended to supplement other information locator       
   systems, like the Government Information Locator System (GILS) called  
   for in the Paperwork Reduction Act of 1995. 41                         
    Thus, the guide should reference those systems and explain how a      
   requestor can obtain more information about them. Of course, any agency
   specific locator systems should be similarly referenced in the guide.  
    41The Paperwork Reduction Act consists of (P.L. 96 511, 94 Stat. 2812)
   as amended by the Paperwork Reduction Act of 1986 (section 101(m) [Title
   VIII, Part A] of P.L. 99 500 and P.L. 99 591, 100 Stat. 1783) and The  
   Paperwork Reduction Act of 1995 (P.L. 104 13, 109 Stat. 163). The      
   Paperwork Reduction Act is codified at Chapter 35 of Title 44 of the   
   United States Code.                                                    
      It is expected that OMB will assist the agencies in assuring that all
   guides follow a common format so that a requestor picking up guides from
   two or more agencies can easily find the information they are seeking. 
   Similarly, OMB should assure that all agencies use common terminology in
   describing record systems, how to file a FOIA request, and in describing
   other locator systems.                                                 
      All guides should be available through electronic means, and should 
   be linked to the annual reports. A citizen picking up a FOIA guide     
   should learn how to access the annual reports. Similarly, any potential
   requestor reading an annual report should learn about the guide, and how
   to access it.                                                          

           Section 12. Effective date                                             

      To provide agencies with time to implement new requirements under the
   Act, sections 7 and 8 shall become effective one year after the date of
   enactment. These sections concern multitrack and expedited processing, 
   unusual and exceptional circumstances, the doubling of the statutory   
   time period for responding to FOIA requests, and estimating the amount 
   of material to which access is denied. The remainder of the bill will  
   take effect 180 days after enactment.                                  

                                 V. COMPLIANCE WITH RULE XI                      

      Pursuant to rule XI, clause 2l(3)(A) of the rules of the House of   
   Representatives, under the authority of rule X, clause 2(b)(1) and     
   clause 3(f), the results and findings for those oversight activities are
   incorporated in the recommendations found in the bill and in this      
   report.                                                                
                            VI. BUDGET ANALYSIS AND PROJECTIONS                  

      This Act provides for no new authorizations or budget authority or  
   tax expenditures. Consequently, the provisions of section 308(a)(1) of 
   the Congressional Budget Act are not applicable.                       

                   VII.  COST ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE        

      The Committee was provided with the following estimate of the cost of
   H.R. 3802, as prepared by the Congressional Budget Office.             


       U.S. Congress,                                                         

       Congressional Budget Office,                                           

       Washington, DC August 30, 1996.                                        

 

          Hon.  William F. Clinger,  Jr.,                Chairman, Committee on Government Reform and Oversight, House of Representatives, Washington, DC.

       Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R.
   3802, the Electronic Freedom of Information Amendments of 1996, as     
   ordered reported by the House Committee on Government Reform and       
   Oversight on July 25, 1996. CBO estimates that enacting this bill would
   not significantly affect spending by the federal government. Because the
   bill would not affect direct spending or receipts, pay-as-you-go       
   procedures would not apply.                                            
       Bill Purpose. --H.R. 3802 would amend the Freedom of Information Act
   (FOIA) to:                                                             
       Require that agencies make available for public inspection and     
   reproduction copies of any records that, because of the nature of their
   subject matter, are likely to elicit additional requests;              
       Require that agencies provide information in the form requested (for
   example, paper or computer disk), if the information is readily        
   reproducible in that form;                                             
       Authorize agencies to implement a multitrack system for processing 
   requests under FOIA;                                                   
       Expand the amount of time an agency has to respond to a FOIA request
   from 10 days to 20 days; and                                           
       Require agencies to file an annual report with the Attorney General
   that documents statistics related to the processing and the denial of  
   FOIA requests.                                                         
       Federal Budgetary Impact. --Many of the bill's provisions are      
   similar to those already required by the Office of Management and Budget
   (OMB Circular No. A 130), and therefore are not expected to affect     
   agencies' budgets. Some provisions, however, could change the way      
   certain agencies respond to FOIA requests. For instance, the bill would
   require that agencies make available for public inspection and         
   reproduction copies of any records that--because of the nature of their
   subject matter--are likely to elicit additional requests. The bill also
   would require that agencies provide information in the form requested, 
   if the information is readily reproducible in that form. The first     
   provision could reduce agencies' costs, while the second provision might
   increase agencies' costs, but CBO cannot estimate the extent of these  
   impacts. The bill's provisions would likely have the greatest impact on
   the departments of Defense and Health and Human Services, which        
   historically receive about one-half of all FOIA requests. Any change in
   spending from either provision would be subject to appropriation       
   actions.                                                               
      The bill could also alleviate current agency backlogs in filling FOIA
   requests by doubling the amount of time an agency has to respond to a  
   FOIA request and by allowing agencies to classify and process requests 
   according to level of effort rather than on a strict first-in, first-out
   basis. In a 1994 Department of Justice survey of agency backlogs under 
   FOIA, almost two-thirds of the 75 agencies included in the survey      
   reported average response times to new FOIA requests of more than 15   
   days. While these provisions should help agencies better comply with   
   statutory response times, it is unclear whether they would significantly
   affect agency costs for completing such response.                      
      Finally, H.R. 3802 would require that agencies annually report a    
   number of statistics concerning FOIA activities to the Attorney General.
   Under current law, agencies already submit much of this information to 
   the Congress each year. Thus, we expect the new reporting requirement  
   would not significantly increase agency costs.                         
       Mandates Statement. --H.R. 3802 contains no intergovernmental or   
   private-sector mandates as defined in the Unfunded Mandates Reform Act 
   of 1995 (Public Law 104 4) and would not have a significant impact on  
   the budgets of state, local or tribal governments.                     
      If you wish further details on this estimate, we will be pleased to 
   provide them. The staff contact is John R. Righter.                    
   Sincerely,                                                             

        ------ ------                                                          

         (For June E. O'Neill,  Director ).                                    

                            VIII. INFLATIONARY IMPACT STATEMENT                  

      In accordance with rule XI, clause 2(l)(4) of the Rules of the House
   of Representative , this legislation is assessed to have no inflationary
   effect on prices and costs in the operation of the national economy.   

                   CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED         

     In compliance with clause 3 of rule XIII of the Rules of the House of
  Representatives, changes in existing law made by the bill, as reported,
  are shown as follows (existing law proposed to be omitted is enclosed in
  black brackets, new matter is printed in italic, existing law in which 
  no change is proposed is shown in roman):                              
                                 TITLE 5, UNITED STATES CODE                     

         * * * * * * *                                                          

          PART I--THE AGENCIES GENERALLY                                         

         * * * * * * *                                                          

                             CHAPTER 5--ADMINISTRATIVE PROCEDURE                 

         * * * * * * *                                                          

                          SUBCHAPTER II--ADMINISTRATIVE PROCEDURE                

         * * * * * * *                                                          

                    552. Public information; agency rules, opinions, orders,     
          records, and proceedings                                               
     (a) Each agency shall make available to the public information as   
  follows:                                                               
   (1)  * * *                                                            

     (2) Each agency, in accordance with published rules, shall make     
  available for public inspection and copying--                          
       (A) final opinions, including concurring and dissenting opinions, as
   well as orders, made in the adjudication of cases;                     
       (B) those statements of policy and interpretations which have been 
   adopted by the agency and are not published in the Federal Register; and
       (C) administrative staff manuals and instructions to staff that    
   affect a member of the public;                                         

       (D) copies of all records, regardless of form or format, which have
   been released to any person under paragraph (3) and which, because of  
   the nature of their subject matter, the agency determines have become or
   are likely to become the subject of subsequent requests for            
   substantially the same records; and                                    
    (E) a general index of the records referred to under subparagraph (D);
  unless the materials are promptly published and copies offered for   
  sale. For records created on or after November 1, 1996, within one year
  after such date, each agency shall make such records available by      
  computer telecommunications or, if computer telecommunications means   
  have not been established by the agency, by other electronic means. To 
  the extent required to prevent a clearly unwarranted invasion of       
  personal privacy, an agency may delete identifying details when it makes
  available or publishes an opinion, statement of policy, interpretation,
  or staff manual or instruction staff manual, instruction, or copies of 
  records referred to in subparagraph (D). However, in each case the     
  justification for the deletion shall be explained fully in writing , and
  the extent of such deletion shall be indicated on the portion of the   
  record which is made available or published. If technically feasible,  
  the extent of the deletion shall be indicated at the place in the record
  where the deletion was made. Each agency shall also maintain and make  
  available for public inspection and copying current indexes providing  
  identifying information for the public as to any matter issued, adopted,
  or promulgated after July 4, 1967, and required by this paragraph to be
  made available or published. Each agency shall promptly publish,       
  quarterly or more frequently, and distribute (by sale or otherwise)    
  copies of each index or supplements thereto unless it determines by    
  order published in the Federal Register that the publication would be  
  unnecessary and impracticable, in which case the agency shall          
  nonetheless provide copies of such index on request at a cost not to   
  exceed the direct cost of duplication. Each agency shall make the index
  referred to in subparagraph (E) available by computer telecommunication
  by December 31, 1999. A final order, opinion, statement of policy,     
  interpretation, or staff manual or instruction that affects a member of
  the public may be relied on, used, or cited as precedent by an agency  
  against a party other than an agency only if--                         
       (i) it has been indexed and either made available or published as  
   provided by this paragraph; or                                         
    (ii) the party has actual and timely notice of the terms thereof.     

     (3) (A) Except with respect to the records made available under     
  paragraphs (1) and (2) of this subsection, each agency, upon any request
  for records which (A) (i) reasonably describes such records and (B) (ii)
  is made in accordance with published rules stating the time, place, fees
  (if any), and procedures to be followed, shall make the records promptly
  available to any person.                                               

     (B) In making any record available to a person under this paragraph,
  an agency shall provide the record in any form or format requested by  
  the person if the record is readily reproducible by the agency in that 
  form or format. Each agency shall make reasonable efforts to maintain  
  its records in forms or formats that are reproducible for purposes of  
  this section.                                                          
     (C) In responding under this paragraph to a request for records, an 
  agency shall make reasonable efforts to search for the records in      
  electronic form or format.                                             
     (D) For purposes of this paragraph, the term ``search'' means to    
  review, manually or by automated means, agency records for the purpose 
  of locating those records which are responsive to a request.           

   (4)(A) * * *                                                          

     (B) On complaint, the district court of the United States in the    
  district in which the complainant resides, or has his principal place of
  business, or in which the agency records are situated, or in the       
  District of Columbia, has jurisdiction to enjoin the agency from       
  withholding agency records and to order the production of any agency   
  records improperly withheld from the complainant. In such a case the   
  court shall determine the matter de novo, and may examine the contents 
  of such agency records in camera to determine whether such records or  
  any part thereof shall be withheld under any of the exemptions set forth
  in subsection (b) of this section, and the burden is on the agency to  
  sustain its action. In addition to any other matters to which a court  
  accords substantial weight, a court shall accord substantial weight to 
  an affidavit of an agency concerning the agency's determination as to  
  technical feasibility under paragraph (2)(C) and subsection (b) and    
  reproducibility under paragraph (3)(B).                                
         * * * * * * *                                                          

     (6)(A) Each agency, upon any request for records made under paragraph
  (1), (2), or (3) of this subsection, shall--                           
       (i) determine within ten days 20 days (excepting Saturdays, Sundays,
   and legal public holidays) after the receipt of any such request whether
   to comply with such request and shall immediately notify the person    
   making such request of such determination and the reasons therefor, and
   of the right of such person to appeal to the head of the agency any    
   adverse determination; and                                             
       (ii) make a determination with respect to any appeal within twenty 
   days (excepting Saturdays, Sundays, and legal public holidays) after the
   receipt of such appeal. If on appeal the denial of the request for     
   records is in whole or in part upheld, the agency shall notify the     
   person making such request of the provisions for judicial review of that
   determination under paragraph (4) of this subsection.                  
     (B) In unusual circumstances as specified in this subparagraph, the 
  time limits prescribed in either clause (i) or clause (ii) of          
  subparagraph (A) may be extended by written notice to the person making
  such request setting forth the reasons for such extension and the date 
  on which a determination is expected to be dispatched. No such notice  
  shall specify a date that would result in an extension for more than ten
  working days. As used in this subparagraph, ``unusual circumstances''  
  means, but only to the extent reasonably necessary to the proper       
  processing of the particular request--                                 
       (i) the need to search for and collect the requested records from  
   field facilities or other establishments that are separate from the    
   office processing the request;                                         
       (ii) the need to search for, collect, and appropriately examine a  
   voluminous amount of separate and distinct records which are demanded in
   a single request; or                                                   
       (iii) the need for consultation, which shall be conducted with all 
   practicable speed, with another agency having a substantial interest in
   the determination of the request or among two or more components of the
   agency having substantial subject-matter interest therein.             

     (B)(i) In unusual circumstances as specified in this subparagraph,  
  the time limits prescribed in either clause (i) or clause (ii) of      
  subparagraph (A) may be extended by written notice to the person making
  such request setting forth the unusual circumstances for such extension
  and the date on which a determination is expected to be dispatched. No 
  such notice shall specify a date that would result in an extension for 
  more than ten working days, except as provided in clause (ii) of this  
  subparagraph.                                                          
     (ii) With respect to a request for which a written notice under     
  clause (i) extends the time limits prescribed under clause (i) of      
  subparagraph (A), the agency shall notify the person making the request
  if the request cannot be processed within the time limit specified in  
  that clause and shall provide the person an opportunity to limit the   
  scope of the request so that it may be processed within that time limit
  or an opportunity to arrange with the agency an alternative time frame 
  for processing the request or a modified request. Refusal by the person
  to reasonably modify the request or arrange such an alternative time   
  frame shall be exceptional circumstances for purposes of subparagraph  
  (C).                                                                   
     (iii) As used in this subparagraph, `unusual circumstances' means,  
  but only to the extent reasonably necessary to the proper processing of
  the particular requests--                                              
       (I) the need to search for and collect the requested records from  
   field facilities or other establishments that are separate from the    
   office processing the request;                                         
       (II) the need to search for, collect, and appropriately examine a  
   voluminous amount of separate and distinct records which are demanded in
   a single request; or                                                   
       (III) the need for consultation, which shall be conducted with all 
   practicable speed, with another agency having a substantial interest in
   the determination of the request or among two or more components of the
   agency having substantial subject-matter interest therein.             

     (C) (i) Any person making a request to any agency for records under 
  paragraph (1), (2), or (3) of this subsection shall be deemed to have  
  exhausted his administrative remedies with respect to such request if  
  the agency fails to comply with the applicable time limit provisions of
  this paragraph. If the Government can show exceptional circumstances   
  exist and that the agency is exercising due diligence in responding to 
  the request, the court may retain jurisdiction and allow the agency    
  additional time to complete its review of the records. Upon any        
  determination by an agency to comply with a request for records, the   
  records shall be made promptly available to such person making such    
  request. Any notification of denial of any request for records under   
  this subsection shall set forth the names and titles or positions of   
  each person responsible for the denial of such request.                

     (ii) For purposes of this subparagraph, the term ``exceptional      
  circumstances'' does not include a delay that results from a predictable
  agency workload of requests under this section.                        
     (iii) Refusal by a person to reasonably modify the scope of a request
  or to arrange an alternative time frame for processing a request (or a 
  modified request) under this section after being requested to do so by 
  the agency to whom the person made the request shall be exceptional    
  circumstances for purposes of this subparagraph.                       
     (iv) In determining whether exceptional circumstances exist, a court
  shall consider the efforts by an agency to reduce the number of pending
  requests under this section.                                           
     (D)(i) Each agency may promulgate regulations, pursuant to notice and
  receipt of public comment, providing for multitrack processing of      
  requests for records based on the amount of work or time (or both)     
  involved in processing requests.                                       
     (ii) Regulations under this subparagraph may provide a person making
  a request that does not qualify for the fastest multitrack processing an
  opportunity to limit the scope of the request in order to qualify for  
  faster processing.                                                     
     (iii) This subparagraph shall not be considered to affect the       
  requirement under subparagraph (C) to exercise due diligence.          
     (E)(i) Each agency shall promulgate regulations, pursuant to notice 
  and receipt of public comment, providing for expedited processing of   
  requests for records--                                                 
       (I) in cases in which the person requesting the records demonstrates
   a compelling need; and                                                 
    (II) in other cases determined by the agency.                         

     (ii) Notwithstanding subparagraph (A)(i), regulations under this    
  subparagraph must ensure--                                             
       (I) that a determination of whether to provide expedited processing
   shall be made, and notice of the determination shall be provided to the
   person making the request, within 10 days after the date of the request;
   and                                                                    
       (II) expeditious consideration of administrative appeals of such   
   determinations of whether to provide expedited processing.             
     (iii) An agency shall process as soon as practicable any request for
  records to which the agency has granted expedited processing under this
  subparagraph. Agency action to deny or affirm denial of a request for  
  expedited processing pursuant to this subparagraph, and failure by an  
  agency to respond timely to such a request shall be subject to judicial
  review under paragraph (4), except that the judicial review shall be   
  based on the record before the agency at the time of the determination.
     (iv) A district court of the United States shall not have           
  jurisdiction to review an agency denial of expedited processing of a   
  request for records after the agency has provided a complete response to
  the request.                                                           
     (v) For purposes of this subparagraph, the term ``compelling need'' 
  means--                                                                
       (I) that a failure to obtain requested records on an expedited basis
   under this paragraph could reasonably be expected to pose an imminent  
   threat to the life or physical safety of an individual; or             
       (II) with respect to a request made by a person primarily engaged in
   disseminating information, urgency to inform the public concerning     
   actual or alleged Federal Government activity.                         
     (F) In denying a request for records, in whole or in part, an agency
  shall make a reasonable effort to estimate the volume of any requested 
  matter the provision of which is denied, and shall provide any such    
  estimate to the person making the request, unless providing such       
  estimate would harm an interest protected by an exemption under        
  subsection (b) under which the denial is made.                         

   (b) This section does not apply to matters that are--                 


    (1) * * *                                                             

         * * * * * * *                                                          

       (9) geological and geophysical information and data, including maps,
   concerning wells.                                                      
    Any reasonably segregable portion of a record shall be provided to any
  person requesting such record after deletion of the portions which are 
  exempt under this subsection. The amount of information deleted shall be
  indicated on the released portion of the record, unless including that 
  indication would harm an interest protected by an exemption under this 
  subsection under which the deletion is made.                           
         * * * * * * *                                                          

     (e) On or before March 1 of each calendar year, each agency shall   
  submit a report covering the preceding calendar year to the Speaker of 
  the House of Representatives and President of the Senate for referral to
  the appropriate committees of the Congress. The report shall include-- 
       (1) the number of determinations made by such agency not to comply 
   with requests for records made to such agency under subsection (a) and 
   the reasons for each such determination;                               
       (2) the number of appeals made by persons under subsection (a)(6), 
   the result of such appeals, and the reason for the action upon each    
   appeal that results in a denial of information;                        
       (3) the names and titles or positions of each person responsible for
   the denial of records requested under this section, and the number of  
   instances of participation for each;                                   
       (4) the results of each proceeding conducted pursuant to subsection
   (a)(4)(F), including a report of the disciplinary action taken against 
   the officer or employee who was primarily responsible for improperly   
   withholding records or an explanation of why disciplinary action was not
   taken;                                                                 
    (5) a copy of every rule made by such agency regarding this section;  

       (6) a copy of the fee schedule and the total amount of fees        
   collected by the agency for making records available under this section;
   and                                                                    
       (7) such other information as indicates efforts to administer fully
   this section.                                                          
    The Attorney General shall submit an annual report on or before March
  1 of each calendar year which shall include for the prior calendar year
  a listing of the number of cases arising under this section, the       
  exemption involved in each case, the disposition of such case, and the 
  cost, fees, and penalties assessed under subsections (a)(4)(E), (F), and
  (G). Such report shall also include a description of the efforts       
  undertaken by the Department of Justice to encourage agency compliance 
  with this section.                                                     

     (e)(1) On or before February 1 of each year, each agency shall submit
  to the Attorney General a report which shall cover the preceding fiscal
  year and which shall include--                                         
       (A) the number of determinations made by the agency not to comply  
   with requests for records made to such agency under subsection (a) and 
   the reasons for each such determination;                               
       (B)(i) the number of appeals made by persons under subsection      
   (a)(6), the result of such appeals, and the reason for the action upon 
   each appeal that results in a denial of information; and               
       (ii) a complete list of all statutes that the agency relies upon to
   authorize the agency to withhold information under subsection (b)(3), a
   description of whether a court has upheld the decision of the agency to
   withhold information under each such statute, and a concise description
   of the scope of any information withheld;                              
       (C) the number of requests for records pending before the agency as
   of September 30 of the preceding year, and the median number of days   
   that such requests had been pending before the agency as of that date; 
       (D) the number of requests for records received by the agency and  
   the number of requests which the agency processed;                     
       (E) the median number of days taken by the agency to process       
   different types of requests;                                           
       (F) the total amount of fees collected by the agency for processing
   requests;                                                              
       (G) the average amount of time that the agency estimates as        
   necessary, based on the past experience of the agency, to comply with  
   different types of requests; and                                       
       (H) the number of full-time staff of the agency devoted to         
   processing requests for records under this section, and the total amount
   expended by the agency for processing such requests.                   
     (2) Each agency shall make each such report available to the public 
  through a computer network, or if computer network means have not been 
  established by the agency, by other electronic means.                  
     (3) The Attorney General shall make each report which has been made 
  available by electronic means available at a single electronic access  
  point. The Attorney General shall notify the Chairman and ranking      
  minority member of the Committee on Government Reform and Oversight of 
  the House of Representatives and the Chairman and ranking minority     
  member of the Committees on Governmental Affairs and the Judiciary of  
  the Senate, no later than April 1 of the year in which each such report
  is issued, that such reports are available by electronic means.        
     (4) The Attorney General, in consultation with the Director of the  
  Office of Management and Budget, shall develop reporting and performance
  guidelines in connection with reports required by this subsection by   
  October 1, 1997, and may establish additional requirements for such    
  reports as the Attorney General determines may be useful.              
     (5) The Attorney General shall submit an annual report on or before 
  April 1 of each calendar year which shall include for the prior calendar
  year a listing of the number of cases arising under this section, the  
  exemption involved in each case, the disposition of such case, and the 
  cost, fees, and penalties assessed under subparagraphs (E), (F), and (G)
  of subsection (a)(4). Such report shall also include a description of  
  the efforts undertaken by the Department of Justice to encourage agency
  compliance with this section.                                          

   (f) For purposes of this section, the term--                          

       (1) ``agency'' as defined in section 551(1) of this title includes 
   any executive department, military department, Government corporation, 
   Government controlled corporation, or other establishment in the       
   executive branch of the Government (including the Executive Office of  
   the President), or any independent regulatory agency; and              
       (2) ``record'' and any other term used in this section in reference
   to information includes 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.                         
     (g) The head of each agency shall prepare and make publicly available
  upon request, reference material or a guide for requesting records or  
  information from the agency, including--                               
    (1) an index of all major information systems of the agency;          

       (2) a description of major information and record locator systems  
   maintained by the agency; and                                          
       (3) a handbook for obtaining various types and categories of public
   information from the agency pursuant to chapter 35 of title 44, and    
   under this section.                                                    

                                X. COMMITTEE RECOMMENDATIONS                     

      On July 25, 1996, a quorum being present, the Committee ordered the 
   bill, as amended, favorably reported.                                  
      Date: July 25, 1996; final passage of H.R. 3802; offered by: Mr.    
   Horn; voice vote: Ayes.                                                
     

       XI. CONGRESSIONAL ACCOUNTABILITY ACT; PUBLIC LAW 104 1; SECTION    
                                    102(B)(3)                                    
      This provision applies to the legislative branch in that the        
   Comptroller General is required to review laws and regulations to      
   determine that they do not conflict with the provisions of this bill. It
   does not relate to any terms or condition of employment or access to   
   public services or accommodations.                              

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