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EFOIA Legislative History, Senate Committee Report 272, May 15, 1996

29 010                                 
Calendar No. 406                            

104 th Congress                             
Report                                 
                                                                         
                                                                         

SENATE                                

2d Session                              

104 272                                

ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT OF 1995                                                                   

May  15, 1996.--Ordered to be printed                 

Mr. Hatch , from the Committee on the Judiciary, submitted the following REPORT                                

together with                             

ADDITIONAL VIEWS                           

[To accompany S. 1090]                        


      The Committee on the Judiciary, to which was referred the bill (S.  
   1090) to amend title 5, United States Code, section 552, commonly called
   the Freedom of Information Act, to provide for public access to        
   information in an electronic format, and for other purposes, having    
   considered the same, reports favorably thereon and recommends that the 
   bill, as amended, do pass.                                             

                               CONTENTS            Page                       
                                                                        
  Explanation of amendment                  4
  Purpose                                               5              
  Legislative history                               5                       
  Vote of the committee                         6                           
  Discussion                                          6                     
  Detailed discussion of the bill             9                            
  Regulatory impact statement               20                              
  Cost estimate                                      20                     
  Additional views of Senator Leahy    23                                   
  Changes in existing law                      33                          

 

   The amendment is as follows:                                           

   Strike all after the enacting clause and insert the following:         


          SECTION 1. SHORT TITLE.                                                

      This Act may be cited as the ``Electronic Freedom of Information    
   Improvement Act of 1996''.                                             

          SEC. 2. FINDINGS AND PURPOSES.                                         

   (a)  Findings.--The Congress finds that--                              

       (1) the purpose of 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 or   
   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      
   collected, maintained, used, retained, and disseminated by the Federal 
   Government.                                                            

          SEC. 3. PUBLIC INFORMATION AVAILABILITY.                               

   Section 552(a)(1) of title 5, United States Code, is amended--        

       (1) in the matter before subparagraph (A) by inserting ``including 
   by computer telecommunications, or if computer telecommunications means
   are not available, by other electronic means,'' after ``Federal        
   Register'';                                                            
    (2) by striking out ``and'' at the end of subparagraph (D);           

    (3) by redesignating subparagraph (E) as subparagraph (F); and        

    (4) by inserting after subparagraph (D) the following new subparagraph:

       ``(E) a complete list of all statutes that the agency head or      
   general counsel relies upon to authorize the agency to withhold        
   information under subsection (b)(3) of this section, together with a   
   specific description of the scope of the information covered; and''.   
                    SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT AND    
          INDEX OF RECORDS MADE AVAILABLE TO THE PUBLIC.                         
   Section 552(a)(2) of title 5, United States Code, is amended--        

       (1) in the matter before subparagraph (A) by inserting ``,         
   including, within 1 year after the date of the enactment of the        
   Electronic Freedom of Information Improvement Act of 1996, by computer 
   telecommunications, or if computer telecommunications means are not    
   available, by other electronic means,'' after ``copying'';             
    (2) in subparagraph (B) by striking out ``and'' after the semicolon;  

    (3) by adding after subparagraph (C) the following new subparagraphs: 

       ``(D) an index of all major information systems containing agency  
   records regardless of form or format unless such an index is provided as
   otherwise required by law;                                             
       ``(E) a description of any new major information system with a     
   statement of how such system shall enhance agency operations under this
   section;                                                               
       ``(F) an index of all records which are made available to any person
   under paragraph (3) of this subsection; and                            
       ``(G) copies of all records, regardless of form or format, which   
   because of the nature of their subject matter, have become or are likely
   to become the subject of subsequent requests for substantially the same
   records under paragraph (3) of this subsection;'';                     
       (4) in the second sentence by striking out ``or staff manual or    
   instruction'' and inserting in lieu thereof ``staff manual, instruction,
   or index or copies of records, which are made available under paragraph
   (3) of this subsection''; and                                          
       (5) in the third sentence by inserting ``and the extent of such    
   deletion shall be indicated on the portion of the record which is made 
   available or published at the place in the record where such deletion  
   was made'' after ``explained fully in writing''.                       

          SEC. 5. HONORING FORMAT REQUESTS.                                      

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

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

    (2) inserting ``(A) through (F)'' after ``under paragraphs (1) and 
   (2)'';                                                                 
    (3) striking out ``(A) reasonably'' and inserting in lieu thereof  
   ``(i) reasonably'';                                                    
    (4) striking out ``(B)'' and inserting in lieu thereof ``(ii)''; and  

    (5) adding at the end thereof the following new subparagraphs:        

       ``(B) An agency shall, as requested by any person, provide records 
   in any form or format in which such records are maintained by that     
   agency.                                                                
       ``(C) An agency shall make reasonable efforts to search for records
   in electronic form or format and provide records in the form or format 
   requested by any person, including in an electronic form or format, even
   where such records are not usually maintained but are available in such
   form or format.''.                                                     

          SEC. 6. DELAYS.                                                        

     (a) Fees.--Section 552(a)(4)(A) of title 5, United States Code, is  
  amended by adding at the end thereof the following new clause:         

     ``(viii) If at an agency's request, the Comptroller General         
  determines that the agency annually has either provided responsive     
  documents or denied requests in substantial compliance with the        
  requirements of paragraph (6)(A), one-half of the fees collected under 
  this section shall be credited to the collecting agency and expended to
  offset the costs of complying with this section through staff          
  development and acquisition of additional request processing resources.
  The remaining fees collected under this section shall be remitted to the
  Treasury as general funds or miscellaneous receipts.''.                
     (b) Demonstration of Circumstances for Delay.--Section 552(a)(4)(E) 
  of title 5, United States Code, is amended--                           
    (1) by inserting ``(i)'' after ``(E)''; and                           

    (2) by adding at the end thereof the following new clause:            

       ``(ii) Any agency not in compliance with the time limits set forth 
   in this subsection shall demonstrate to a court that the delay is      
   warranted under the circumstances set forth under paragraph (6) (B) or 
   (C) of this subsection.''.                                             
     (c) Period for Agency Decision To Comply With Request.--Section     
  552(a)(6)(A)(i) is amended by striking out ``ten days'' and inserting in
  lieu thereof ``twenty days''.                                          
     (d) Agency Backlogs.--Section 552(a)(6)(C) of title 5, United States
  Code, is amended by inserting after the second sentence the following: 
  ``As used in this subparagraph, for requests submitted pursuant to     
  paragraph (3) after the date of the enactment of the Electronic Freedom
  of Information Improvement Act of 1996, the term `exceptional          
  circumstances' means circumstances that are unforeseen and shall not   
  include delays that result from a predictable workload, including any  
  ongoing agency backlog, in the ordinary course of processing requests  
  for records.''.                                                        
     (e) Notification of Denial.--The last sentence of section           
  552(a)(6)(C) of title 5, United States Code, is amended to read: ``Any 
  notification of any full or partial 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 and the total
  number of denied records and pages considered by the agency to have been
  responsive to the request.''.                                          
     (f) Multitrack FIFO Processing and Expedited Access.--Section       
  552(a)(6) of title 5, United States Code, is amended by adding at the  
  end thereof the following new subparagraphs:                           

       ``(D)(i) Each agency shall adopt a first-in, first-out (hereafter in
   this subparagraph referred to as FIFO) processing policy in determining
   the order in which requests are processed. The agency may establish    
   separate processing tracks for simple and complex requests using FIFO  
   processing within each track.                                          
    ``(ii) For purposes of such a multitrack system--                     

       ``(I) a simple request shall be a request requiring 10 days or less
   to make a determination on whether to comply with such a request; and  
       ``(II) a complex request shall be a request requiring more than 10 
   days to make a determination on whether to comply with such a request. 
       ``(iii) A multitrack system shall not negate a claim of due        
   diligence under subparagraph (C), if FIFO processing within each track 
   is maintained and the agency can show that it has reasonably allocated 
   resources to handle the processing for each track.                     
       ``(E)(i) Each agency shall promulgate regulations, pursuant to     
   notice and receipt of public comment, providing that upon receipt of a 
   request for expedited access to records and a showing by the person    
   making such request of a compelling need for expedited access to       
   records, the agency determine within 10 days (excepting Saturdays,     
   Sundays, and legal public holidays) after the receipt of such a request,
   whether to comply with such request. A request for records to which the
   agency has granted expedited access shall be processed as soon as      
   practicable. A request for records to which the agency has denied      
   expedited access shall be processed within the time limits under       
   paragraph (6) of this subsection.                                      
       ``(ii) A person whose request for expedited access has not been    
   decided within 10 days of its receipt by the agency or has been denied 
   shall be required to exhaust administrative remedies. A request for    
   expedited access which has not been decided may be appealed to the head
   of the agency within 15 days (excepting Saturdays, Sundays, and legal  
   public holidays) after its receipt by the agency. A request for        
   expedited access that has been denied by the agency may be appealed to 
   the head of the agency within 5 days (excepting Saturdays, Sundays, and
   legal public holidays) after the person making such request receives   
   notice of the agency's denial. If an agency head has denied, affirmed a
   denial, or failed to respond to a timely appeal of a request for       
   expedited access, a court which would have jurisdiction of an action   
   under paragraph (4)(B) of this subsection may, upon complaint, require 
   the agency to show cause why the request for expedited access should not
   be granted, except that such review shall be limited to the record     
   before the agency.                                                     
       ``(iii) The burden of demonstrating a compelling need by a person  
   making a request for expedited access may be met by a showing, which   
   such person certifies under penalty of perjury to be true and correct to
   the best of such person's knowledge and belief, that failure to obtain 
   the requested records within the timeframe for expedited access under  
   this paragraph would--                                                 
    ``(I) threaten an individual's life or safety;                        

       ``(II) result in the loss of substantial due process rights and the
   information sought is not otherwise available in a timely fashion; or  
       ``(III) affect public assessment of the nature and propriety of    
   actual or alleged governmental actions that are the subject of         
   widespread, contemporaneous media coverage.''.                         

          SEC. 7. COMPUTER REDACTION.                                            

     Section 552(b) of title 5, United States Code, is amended by        
  inserting before the period in the sentence following paragraph (9) the
  following: ``, and the extent of such deletion shall be indicated on the
  released portion of the record at the place in the record where such   
  deletion was made''.                                                   

          SEC. 8. DEFINITIONS.                                                   

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

       ``(1) the term `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;        
       ``(2) the term `record' means all books, papers, maps, photographs,
   machine-readable materials, or other information or documentary        
   materials, regardless of physical form or characteristics, but does not
   include--                                                              
       ``(A) library and museum material acquired or received and preserved
   solely for reference or exhibition purposes;                           
       ``(B) extra copies of documents preserved solely for convenience of
   reference;                                                             
    ``(C) stocks of publications and of processed documents; or           

       ``(D) computer software which is obtained by an agency under a     
   licensing agreement prohibiting its replication or distribution; and   
       ``(3) the term `search' means a manual or automated review of agency
   records that is conducted for the purpose of locating those records    
   which are responsive to a request under subsection (a)(3)(A) of this   
   section.''.                                                            

                                I.  EXPLANATION OF AMENDMENT                     

      Inasmuch as all of the text of S. 1090 after the enacting clause was
   stricken and new language was incorporated as a single amendment, the  
   contents of this report constitute an explanation of the amendment made
   by the Committee on the Judiciary.                                     
                                        II.  PURPOSE                             

      The Freedom of Information Act (FOIA) makes Government information  
   available, with certain exceptions, to anyone who requests it. The     
   statute is consistent with our democratic form of government by        
   furthering the interests of citizens in knowing what their Government is
   doing.                                                                 
      Over the 30 years of its existence, the FOIA has led to numerous    
   disclosures of waste and fraud in the Government. Today, the FOIA is in
   the midst of a new challenge. The phenomenon of Federal executive      
   department and agency records being produced and retained in electronic
   formats has grown at a fast rate during the past several years as      
   Government use of personal computers and digital storage media, such as
   CD ROM's (compact disk read-only memory), has become more widespread.  
   Agency records are no longer created exclusively on pieces of paper and
   placed in filing cabinets. Computers make it easier and more efficient 
   to manage the tremendous amount of information collected, stored, and  
   used by the Government.                                                
      The FOIA was created at a time when agency records were predominantly
   produced on paper. The efficient operation of the FOIA requires that the
   form or format of an agency record constitutes no impediment to the    
   public accessibility of requested information. Furthermore, the        
   electronic information technology currently being used by executive    
   departments and agencies should be applied in a manner that promotes   
   efficiency in responding to FOIA requests. This objective includes using
   technology to provide requesters with information in the form most     
   useful to them.                                                        
      An underlying goal of S. 1090 is to encourage electronic access to  
   Government information available under the FOIA, including requests made
   pursuant to section 552(a)(3). This shall make it easier for citizens to
   access Government information on a timely basis, and shall further     
   efficient Government agency compliance with the FOIA.                  
      S. 1090, the Electronic Freedom of Information Improvement Act of   
   1996, amends the FOIA to address these considerations and other        
   information access issues prompted by the electronic information       
   phenomenon.                                                            
                                 III.  LEGISLATIVE HISTORY                       

      A bill to clarify the application of the FOIA to agency records in  
   electronic forms or formats, S. 1940, the Electronic Freedom of        
   Information Improvement Act of 1991, was introduced by Senator Patrick 
   Leahy for himself and Senator Hank Brown on November 7, 1991. It was   
   referred to the Committee on the Judiciary, and a hearing on the bill  
   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, which included Peter Prichard, 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. Susman, a practicing attorney with Ropes & Gray, appearing on behalf
   of the American Bar Association.\1\                                    
    The Subcommittee took no further action on S. 1940 prior to the final 
   adjournment of the 102d Congress.                                      
   \1\ The 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) (hereafter ``1992 Hearing'').
      A related bill, S. 1939, the Freedom of Information Improvement Act 
   of 1991, was also introduced by Senator Leahy 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 Committee on the Judiciary, but no action was taken on it during
   the 102d Congress.                                                     
      A slightly modified version of S. 1940 was introduced by Senator    
   Leahy for himself and Senator Brown on November 22, 1993, as S. 1782,  
   the Electronic Freedom of Information Improvement Act of 1993. It was  
   referred to the Committee on the Judiciary. Senator John Kerry of      
   Massachusetts cosponsored the bill on April 11, 1994. 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, 1995. 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,   
   which varied slightly from the version passed by the Senate in the 103d
   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.                                                             

                                 IV. VOTE OF THE COMMITTEE                       

      On April 25, 1996, with a quorum present, by voice vote, the        
   Committee on the Judiciary unanimously ordered the Committee substitute
   to S. 1090 favorably reported.                                         
                                       V. DISCUSSION                             

      The FOIA was initially enacted in 1966 after many years of          
   congressional committee examination of impediments to public access to 
   information from the executive departments and agencies of the Federal 
   Government. 2                                                          
    The FOIA was first amended in 1974. The changes made by the amendments
   included requiring that a requester only ``reasonably describe'' the   
   records being sought; allowing an agency to furnish documents without  
   charge or at a reduced cost if it determined that such an action would 
   be in the public interest; allowing a court to conduct an in camera    
   review of contested materials to determine if they were being properly 
   withheld; establishing specific response times for agency action;      
   allowing a judge to award attorney fees and litigation costs where a   
   private complainant had ``substantially prevailed'' in seeking records 
   from an agency; prescribing that a court may take notice of ``arbitrary
   and capricious'' withholding of agency documents and require that a    
   civil service investigation take place in order to determine if        
   disciplinary action is warranted; expanding and clarifying the         
   definition of agencies covered by the FOIA; and specifying that any    
   record containing segregable portions of withholdable information shall
   be released with the necessary deletions. In addition, exemptions in the
   Act pertaining to classified information and law enforcement materials 
   were narrowed and made more specific in terms of their application.    
    2House. Availability of Information From Federal Departments and      
   Agencies: Hearings before the House Committee on Government Operations,
   84th 86th Congresses, U.S. Govt. Print. Off., 1956 1959.               
      In 1976, when adopting another open government law--the Government in
   the Sunshine Act--Congress once again amended the FOIA. 3              
    The change was a limited one, prompted by a 1975 decision of the      
   Supreme Court, which broadly interpreted the types of information      
   falling within the ambit of the third exemption of the FOIA. 4         
    The FOIA amendment contained in the Sunshine Act modified the third   
   exemption to limit its application to information specifically excepted
   from disclosure by statutes mandating protection ``in such a manner as 
   to leave no discretion on the issue'' or establishing particular       
   criteria or referring to particular types of information to be withheld.
   5                                                                      
                                                                          

    3For the legislative history of the Government in the Sunshine Act and
   its amendment to the FOI Act, 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 ses. Washington, U.S. Govt. Print. Off., 1976.            
    4 Administrator, Federal Aviation Administration v. Robertson, 422 U.S.
   255 (1975).                                                            
    590 Stat. 1241, at 1247.                                              

      Senate attempts to further amend the FOIA were unsuccessful during  
   the 97th and 98th Congresses. In the closing days of the 99th Congress,
   however, FOIA amendments were attached to an omnibus anti-drug abuse   
   bill during Senate debate on the measure. 6                            
    These amendments strengthened protection for law enforcement records  
   and created new fee and fee waiver arrangements. Three categories of   
   fees were established: for commercial users of the Act, for scholarly or
   scientific researchers and news media representatives, and for all other
   users. No fees were to be charged if the costs of routine collection and
   processing of the fee were likely to equal or exceed the amount of the 
   fee or, in the case of requesters other than commercial users of the   
   Act, for the first 2 hours of search time or for the first 100 pages of
   document duplication. In addition, records were to be furnished without
   charge or at a reduced charge if 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      
   requester.                                                             
    6See Harold C. Relyea. ``U.S. Freedom of Information Act              
   Reforms--1986,'' 9 Journal of Media Law and Practice, 6 12 (March 1988).
      The FOIA has become a popular tool used by various quarters of      
   American society--the press, business, scholars, attorneys, consumers, 
   and others. Recent agency annual reports on the administration of the  
   Act, covering 1992 operations, indicate an annual volume of almost     
   600,000 requests. The response to a request may involve paper or,      
   increasingly, information in an electronic format.                     
      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 5 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 records. 7
                                                                          

    7Alan F. Westin and Michael A. Baker. Data banks in a Free Society. New
   York: Quadrangle Books, 1972, pp. 29 30.                               

      In succeeding years, the phenomenon of agency records being produced
   and retained in electronic formats grew at a highly expansive rate as  
   Government use of personal computers and digital storage media, such as
   CD ROMs (compact disk read-only memory), became more and more          
   widespread. 8                                                          
    In fiscal year 1994, the Federal Government reportedly counted 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) in use. Personal computers had     
   proliferated throughout the Federal executive establishment. In 1995,  
   the General Services Administration had more than 19,300 PCS in its    
   inventory, but only 16,700 employees. 9                                
    The Social Security Administration was preparing to upgrade computer  
   systems in 1,300 offices nationwide, installing 2,700 local area       
   networks (LANs) and 90,000 new desktop computers. 10                   
    In a related development, during the past 3 years, more than 800      
   Federal sites have been set up on the World Wide Web. 11               
                                                                          

    8See House Committee on Government Operations. Electronic Collection  
   and Dissemination of Information by Federal Agencies: A Policy Overview,
   H.R. Rept. No. 99 560, 99th Cong., 2d sess. (1986); U.S. Office of     
   Technology Assessment. Informing the Nation: Federal Information       
   Dissemination in an Electronic Age. Washington, DC. October 1988.      
    9Kevin Pwer, ``GSA Calls for Halt in Buying New PCS,'' 14 Government  
   Computer News. 1 (Apr. 3, 1995).                                       
    10Ted Bunker, ``Reinventing Government,'' LAN Magazine . 158 (October 
   1995).                                                                 
    11Lisa Corbin, ``Cyberocracy,'' 28 Government Executive . 12 ( January
   1996).                                                                 
      The FOIA should stay abreast of these developments to promote       
   uniformity among agencies, minimize uncertainty among FOIA requesters, 
   and avoid potential disagreements between the two. That is the principal
   purpose of S. 1090, the Electronic Freedom of Information Improvement  
   Act of 1996.                                                           
      Certainly, innovations are underway to promote greater dissemination
   of Government information through an electronic information            
   ``superhighway.'' 12                                                   
    For example, the 104th Congress created the ``Thomas'' on-line service,
   providing access to numerous legislative resources, including the text 
   of legislation and the Congressional Record. The U.S. Geological Survey
   has published data on the World Wide Web about rising rivers and       
   potential flood conditions; the White House provides daily briefings and
   speeches on-line; and the Security and Exchange Commission's EDGAR     
   system provides electronic access to corporate and financial data on   
   American companies. Such laudable dissemination occurs on the initiative
   of Government officials, and the Paperwork Reduction Act of 1995       
   reflects congressional understanding that wider use of electronic      
   dissemination has become an integral part of Government information    
   activity. The FOIA provides access to Government information sought at 
   the initiative of individuals. Government dissemination of more        
   varieties and greater amounts of its information holdings via a        
   ``superhighway'' may reduce the volume of FOIA requests, but in no way 
   diminishes the need for the FOIA to embrace agency records regardless of
   their form or format.                                                  
    12See U. S. Information Infrastructure Task Force, The National       
   Information Infrastructure: Agenda for Action. Washington, DC. Sept. 15,
   1993; U.S. Information Infrastructure Task Force's Committee on        
   Applications and Technology. Putting the Information Infrastructure to 
   Work. Washington, DC, May 1994; U.S. Information Infrastructure Task   
   Force's Committee on Applications and Technology, The Information      
   Infrastructure: Reaching Society's Goals. Washington, DC, September    
   1994; U.S. Advisory Council on the National Infrastructure. A Nation of
   Opportunity: Realizing the Promise of the Information Superhighway,    
   Washington, DC, January 1996.                                          

                        VI.  DETAILED DISCUSSION OF THE BILL                 

      The FOIA requires agencies to make different types of information   
   available to the public through publication in the Federal Register, in
   public reading rooms, and in response to specific requests. The        
   Electronic Freedom of Information Improvement Act of 1996, S. 1090 as  
   amended, would enhance electronic access to, and expand the information
   forms or formats used in making each category of information available 
   under the FOIA. The new requirements of these amendments are intended to
   apply prospectively from the date of enactment.                        

                               1. Findings                              

      Section 2, setting forth the findings and purposes of the bill, makes
   clear that the purpose of the FOIA is to require agencies of the Federal
   Government to make records available to the public through public      
   inspection and upon the request of any person for any public or private
   use. The findings also cite the role of the FOIA in leading to the     
   disclosure of information about Government operations and consumer     
   health and safety. For example, in 1993, the FOIA was used to uncover  
   human radiation experiments conducted under Government auspices in the 
   decades after World War II. Press reports on these experiments prompted
   the Department of Energy to conduct a review for purposes of           
   declassifying millions of pages of secret documents on the Government's
   past activities in this area.                                          
      Finally, the findings acknowledge the increased use of computers by 
   Federal agencies, and exhort agencies to use this technology to enhance
   public access.                                                         

                               2. Purposes                              

      The purposes of the bill are to ensure and improve public access to 
   agency records and information, and maximize the usefulness of those   
   records and information to the public.                                 
      The bill is also intended to promote agency compliance with statutory
   time limits. Chronic delays in receiving responses to FOIA requests are
   the largest single complaint of persons using the FOIA to obtain Federal
   agency records and information.                                        

                    3. Public Information Availability                  

      Section 3 of the bill amends 5 U.S.C. 552(a)(1) to require that the 
   Federal Register be available not only in paper form, but also ``by    
   computer telecommunications means,'' and, if such means are not        
   available, the Federal Register must be available by alternative       
   ``electronic means,'' such as CD ROM or on disk. Agencies should strive
   to meet their responsibilities under 5 U.S.C. 552(a)(1),and, to the    
   maximum extent practicable, under 5 U.S.C. 552(a)(2) as well, through  
   electronic means.                                                      

      The Government Printing Office Electronic Information Access        
   Enhancement Act of 1993 13                                             
    (hereafter referred to as the ``GPO Access Act'') already requires the
   Superintendent of Documents to provide ``on-line access'' to the       
   Congressional Record, the Federal Register, and certain other          
   publications to the public.                                            
    13Public Law 103 40; 107 Stat. 112.                                   

      The term ``computer telecommunications'' is meant to be synonymous  
   with on-line access. This term was used by Congress in describing the  
   obligations of the Environmental Protection Agency (EPA) to make its   
   Toxic Release Inventory publicly available pursuant to the Emergency   
   Planning and Community Right-to-Know Act, Title III of the Superfund   
   Amendments Reauthorization Act of 1986. 14                             
    Although neither that Act nor its legislative history defines the term,
   the Environmental Protection Agency has understood and implemented its 
   duty in terms of providing public on-line access to its database. The  
   Paperwork Reduction Act of 1995 reflects congressional intent generally
   that wider use of electronic dissemination is an integral part of      
   Government information activity.                                       
    14Public Law 99 499; 100 Stat. 1728.                                  

      The FOIA currently requires that each agency publish in the Federal 
   Register, ``for the guidance of the public,'' such information as      
   descriptions of its organization, from whom, and methods whereby, the  
   public may obtain information, and statements of general policy. The   
   bill would require agencies also to publish in the Federal Register a  
   complete list of statutes which require the agency to withhold         
   information under 5 U.S.C. 552(b)(3), along with a specific description
   of the scope of the information covered.                               
      This section 3 requirement would serve an informational and notice  
   function for the public regarding claimed agency withholding           
   authorities. In addition, this provision would assist congressional    
   oversight to insure that (b)(3) withholding exemptions are not abused. 
   This provision in no way prohibits an agency from relying on a statute,
   where appropriate, to withhold records or information. Nor would this  
   provision prevent an agency from relying on an unlisted statute to deny
   information in appropriate cases.                                      

             4. Materials Made Available In Electronic Format           

      Section 4 of the bill would make it easier to identify and locate   
   agency records and would enhance electronic access to the information  
   which an agency must ``make available for public inspection and        
   copying'' under 5 U.S.C. 552(a)(2). Agencies are already encouraged to 
   establish public reading rooms to facilitate the availability of       
   materials to the public. Agencies should strive to make information    
   available through electronic means wherever practicable, and the bill  
   promotes this goal for those records subject to the FOIA. Public access
   to agency records and information should be enhanced through electronic
   means.                                                                 
      Under section 4 of the bill, materials required to be publicly      
   available under 552(a)(2) must be made available, within 1 year of     
   enactment, ``by computer telecommunications,'' as well as in hard copy.
   If an agency cannot make these materials available by computer         
   telecommunications, then the materials should be made available in some
   other electronic form, such as CD ROM or on disk. The bill thus treats 
   materials required to be disclosed pursuant to 5 U.S.C. 552 (a)(2) in  
   the same manner as it treats (a)(1) materials, which are required to be
   published in the Federal Register and, under the GPO Access Act, to be 
   made available to the public electronically.                           
      The implementation of the electronic access requirements for        
   552(a)(2) material is deferred for 1 year to allow agencies time to    
   arrange compliance. Deferred implementation is not provided in section 3
   of the bill for materials required to be disclosed pursuant to 5 U.S.C.
   552(a)(1), since agencies already have an obligation to make this      
   information available electronically on-line under the GPO Access Act. 

         5. Indices and Descriptions of Major Information Systems       

      Three categories of materials are currently required to be made     
   available under 5 U.S.C. 552(a)(2): final opinions and orders made in  
   adjudicated cases, agency policies and interpretations which are not   
   published in the Federal Register, and administrative staff manuals and
   instructions to staff that affect a member of the public.              
      Section 4 of the bill would expand these categories of materials and
   require agencies to make available for public inspection and copying, in
   the same manner as other materials made available under 5 U.S.C.       
   552(a)(2), an index of all major information systems containing agency 
   records, unless such an index is already made publicly available as    
   otherwise required by law. Such an index shall help the public locate  
   and access information held by particular agencies.                    
      Requiring on-line access to an index of major information systems is
   fully consistent with the requirement of the Paperwork Reduction Act of
   1995 and revised guidelines in OMB Circular A-130, which provide uniform
   government-wide information management policies. Specifically, 44 U.S.C.
   S.3506 and section 8a(5)(d)(iv) of the Circular A-130, July 15, 1994,  
   direct agencies to assist the public in finding Government information.
   Agencies may accomplish this by specifying and disseminating ``locator''
   information about the content, format, uses, limitations, location and 
   means of access associated with particular records.                    
      This requirement would also supplement the Government Information   
   Locator Service (GILS) identifying public information resources        
   throughout the Federal Government, describing the information available
   in those resources, and providing assistance in obtaining the          
   information. 15                                                        
    Access to GILS contents would be available through each agency through
   public and private information services on-line, and by other electronic
   media.                                                                 
    1544 U.S.C. 3511, 109 Stat. 180.                                      

      Section 4 of the bill would also require agencies to make publicly  
   available a description of any new major information system, together  
   with a statement of how the system shall enhance agency operations under
   the FOIA. The purpose of this provision is to require agencies to use  
   the development of new major information systems as opportunities to   
   enhance FOIA administration. Agencies should make use of electronic    
   information technology in order to administer their responsibilities   
   under the FOIA most efficiently. Indeed, at the time of ``major        
   information system'' establishment, agencies should consider both the  
   potential FOIA availability of the information involved as well as the 
   affirmative availability of the information apart from the FOIA.       

      Agencies are subject to a similar requirement under 44 U.S.C. 3506  
   and section 8a(1) of OMB Circular A 130, which direct agencies to plan 
   from the outset for each step in the information life cycle. Such      
   planning includes providing for public access to records where required
   or appropriate.                                                        
      The term ``major information system'' is familiar to Federal agencies
   since it is defined in OMB Circular A 130. As defined in OMB Circular A
   130, `` 7E 7E`major information system' means an information system that
   requires special management attention because of its importance to an  
   agency mission; its high development, operating, or maintenance costs; 
   or its significant role in the administration of agency programs,      
   finances, property, or other resources.'' In accordance with OMB       
   Circular A 130, agencies should already be establishing inventories of 
   their ``major information systems.'' 16                                
    This new requirement under S. 1090 is not overlapping but, instead, is
   a consistent and coordinated legislative requirement to support        
   administrative efforts already underway.                               
    16OMB Circular No. A 130, sec. 9a(5), p. 15 (July 15, 1994).          

      Certain kinds of records identified in nine exemptions may be       
   excluded from disclosure under the FOIA. These exemptions would        
   therefore apply to the index, which is required to be made publicly    
   available under the bill. Thus, an agency is not required to identify  
   the existence of a particular database or electronic system in the     
   exceptional circumstance in which its existence is itself a sensitive, 
   exempt fact. For example, a new investigatory database, the existence of
   which necessarily reflects the existence of an ongoing law enforcement 
   investigation protected under Exemption 7(a), would be exempt from     
   disclosure on the index.                                               

             6. index of records made available to the public           

      Section 4 of the bill would require that an index of any records    
   released as the result of requests for records pursuant to 5 U.S.C.    
   552(a)(3) must be made available for public inspection and copying under
   552(a)(2). This provision shall assist requesters in determining which 
   records have been the subject of prior FOIA requests. Since requests for
   records provided in response to prior requests are more readily        
   identified by the agency without the need for new searches, this list  
   may assist agencies in complying with the FOIA time limits. This should
   also reduce costs to agencies in preparing responses. This does not,   
   however, relieve agencies of their obligations to conduct an adequate  
   search for, or justify withholding of, responsive records as required by
   the FOIA.                                                              
      In addition, copies of records, which, because of the nature of their
   subject matter, an agency determines have been or shall likely be the  
   subject of subsequent FOIA requests, must be made available for public 
   inspection and copying in the same manner as the materials required to 
   made available under paragraph (a)(2).                                 
      As a practical matter, this would mean that copies of records       
   released in response to FOIA requests on a subject of popular interest,
   such as the assassinations of Martin Luther King, Jr., and President   
   Kennedy, or on human radiation experiments conducted by the Government,
   must subsequently be treated as materials subject to release under 5   
   U.S.C. 552(a)(2) and made available for public inspection and copying, 
   including by computer telecommunications or other electronic means. This
   would reduce the number of duplicative FOIA requests for the same      
   records requiring separate agency responses.                           
      The General Accounting Office has found that certain Federal        
   agencies, including the International Trade Administration at the      
   Department of Commerce and the State Department, are already taking    
   steps to make available for public inspection and copying in their     
   reading rooms materials released in response to specific requests under
   the FOIA. ``The State Department, for example, places previously       
   released material in the reading room when it believes the documents   
   shall be of topical or recurrent public interest. Such documents include
   information relating to the Jonestown massacre, the Grenada invasion,  
   and the Cuban missile crisis.'' 17                                     
                                                                          

    17U.S. General Accounting Office, ``Freedom of Information Act: Agency
   Reading Rooms'', GAO/GGD 89 84BR, May 1989, at p. 6.                   
      The purpose of this provision in the bill is to prompt agencies to  
   make information available affirmatively on their own initiative in    
   order to meet anticipated public demand for it. In other words, FOIA   
   processes should not be incumbered by requests for routinely available 
   records or information that can more efficiently be made available to  
   the public through affirmative dissemination means.                    
      We recognize that an agency's practical ability to make records and 
   information affirmatively available to the public apart from the FOIA is
   far greater as to nonexempt records than to any record or information  
   that is partially exempt and requires redaction. Nevertheless, once    
   released in response to a specific request under the FOIA, complying   
   with the new requirement of making the previously released material,   
   even in a redacted form, available for public inspection and copying   
   should not be a burdensome undertaking.                                
      Requiring, as a standard practice among all Federal agencies, that  
   popular, previously released FOIA records be made available for public 
   inspection and copying, including by computer telecommunications, would
   take a significant step toward on-line FOIA requests and responses. This
   shall increase agency efficiency and reduce workload. Of course, not all
   individuals have access to computers or the computer networks, such as 
   the Internet, or are near public reading rooms. Thus, requesters shall 
   still be able to access previously released FOIA records through the   
   normal FOIA process.                                                   
      Current law permits an agency to delete identifying details from    
   material made available under 5 U.S.C. 552(a)(2), ``[t]o the extent    
   required to prevent a clearly unwarranted invasion of personal         
   privacy.'' Section 4 would make clear that agencies retain the same    
   discretion to delete identifying details from the index and copies of  
   records released in response to FOIA requests and made available under 
   this section of the bill, to prevent a clearly unwarranted invasion of 
   personal privacy.                                                      
      The final part of section 4 would, consistent with the ``Computer   
   Redaction'' requirement in section 7 of the bill, require that any     
   withholding deletions made in electronic records prior to their public 
   disclosure must be indicated within the disclosed records at the       
   place(s) and to the extent of their occurrence.                        
      Nothing in this section precludes an agency from classifying        
   information previously released under a FOIA request.                  

                       7. honoring format requests                      

      Section 5 of the bill directs agencies to provide records to        
   requesters in any form or format in which the agency maintains those   
   records. At the same time, the bill also directs agencies to make      
   reasonable efforts to honor the format requests of requesters.         
      The amendments to section 552(a)(3) contained in section 5 of the   
   bill, as amended, override the holding in Dismukes v. Department of the
   Interior , 18                                                          
    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.'' This precedent, which has
   been followed in at least one subsequent case, see Baizer v. U.S.      
   Department of the Air Force, 887 F. Supp. 225, 229 (N.D. Cal. 1995),   
   presents a reason for Congress to enact legislation to clarify the     
   rights of requesters with respect to the form and format of the released
   record.                                                                
    18603 F. Supp. 760, 763 (D.D.C. 1984).                                


      The bill's requirement to make records available in the form or     
   format requested by any person where such records are not usually      
   maintained in the requested form or format, is subject to a ``reasonable
   efforts'' qualification. In some cases, this could relieve the agency of
   the requirement if it would prove onerous. To clarify the meaning of   
   ``reasonable,'' the bill makes clear that requests for an electronic   
   version of records should be honored, even for records that are not    
   normally maintained or stored in electronic form, if they are,         
   nevertheless, available in the requested electronic version.           
      This requirement applies to choices between conventional record forms
   (e.g., paper, microfiche, or electronic) as well as to choices between 
   existing electronic formats. As a general rule, the decision whether to
   disclose requested records or information in a new requested form,     
   whether electronic or other form, is a matter of administrative        
   discretion. In exercising that discretion, agencies should consider    
   administrative efficiency and the existence of identified public demands
   for the information. Consistent with current practice, a FOIA requester
   generally should be entitled to obtain a paper printout of any nonexempt
   electronic records--or any readily retrievable nonexempt part of such  
   records--if the requester prefers.                                     
      The ``reasonable efforts'' qualification would apply to any situation
   in which the original form of a record cannot readily be handled without
   damage to it, such as may be the case with archival records, where an  
   existing copy form is used instead. Likewise, the ``reasonable efforts''
   qualification could relieve agencies of the obligation of releasing the
   original form of partially exempt records in circumstances where       
   agencies need to handle the records in a certain form for purposes of  
   redaction and, therefore, cannot readily disclose them, as redacted, in
   a previously existing form.                                            
      This section also directs agencies to make ``reasonable efforts to  
   search for records in electronic form or format.'' What constitutes a  
   ``reasonable effort'' shall vary with the circumstances under which the
   records are held. We recognize that both agency computer program       
   development resources and agency computer system operation resources are
   highly valuable and finite. Both of these categories of agency resources
   shall be impinged upon by the level of new search activity required    
   under the amendments. Agencies should search for and retrieve data     
   according to new specifications where such retrieval activity does not 
   disrupt agency functions.                                              
      The Office of Management and Budget has suggested 2 hours as the    
   amount of time an agency should reasonably spend on computer program   
   development time to accommodate a requester's request for a particular 
   form or format. In certain circumstances, and for certain agencies, 2  
   hours of computer development time may be the maximum amount of time   
   that is reasonable. Other agencies may determine that significantly more
   or less than 2 hours is reasonable under the circumstances.            
      Agencies may, as permitted by 5 U.S.C. 552 (a)(4)(A), charge        
   appropriate fees to recover copying costs, regardless of what medium is
   used for duplication. Thus, if an agency is requested to produce       
   duplicate CD ROM's and has the capability to do so, it may assess an   
   appropriate fee to recover the reasonable costs for copying the record 
   in that form. ``Copying costs'' include the costs to agencies when they
   do not maintain the records in the requested format and must put the   
   records in that format. A requester's refusal to pay the direct costs of
   copying in the requested form or format would be a factor in determining
   whether it is reasonable for the agency to comply with the format      
   request.                                                               
                                8. delays                               

      Section 6 of the bill addresses the single most frequent complaint  
   about the operation of the FOIA, namely, agency delays in responding to
   FOIA requests. A 1986 House report cited a number of reasons for the   
   delays, including inadequate resources, unnecessary bureaucratic       
   complexity, poor organization of agency records, and lack of interest by
   agencies in disclosure.\19\                                            
                                                                          

   \19\House Committee on Government Operations. Freedom of Information Act
   Amendment of 1986 . pp.11 12, H.R. 99 832, 99th Cong., 2d sess.        
      These delays have persisted. In an October 1993 memorandum to all   
   Heads of Departments and Agencies, 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 dealing with high-volume demands for        
   particularly sensitive records--maintain large FOIA backlogs greatly   
   exceeding the mandated time period. The reasons for this may vary, but 
   principally it appears to be a problem of too few resources in the face
   of too heavy a 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.                                          
      Indeed, 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.                                          
      The bill contains provisions intended to help agencies comply with  
   statutory time limits by doubling the time allowed for a determination 
   on requests for records, providing financial incentives for compliance,
   directing agencies to make more information available on-line and to use
   better record management techniques, such as multi-track processing,   
   publishing prior requests to avoid new searches, and making available in
   public reading rooms those records likely to be the subject of         
   duplicative FOIA requests.                                             
      (a) Retention of Half the FOIA Fees .--The bill would permit agencies
   that comply with statutory time limits to retain one-half of the FOIA  
   fees they collect and direct them to use those fees to enhance the FOIA
   request processing function. While the purpose of this provision is to 
   give agencies an incentive to comply with the time limits, the Committee
   recognizes that FOIA fees do not cover the cost of compliance.         
      (b) Demonstration of Circumstances for Delay .--This section would  
   require agencies not in compliance with the statutory time limits to   
   demonstrate that the delay is warranted under the standards for        
   ``unusual'' or ``exceptional'' circumstances set forth in 5 U.S.C.     
   552(a)(6)(B) and (C) of the FOIA, the only circumstances that excuse   
   compliance with the time limits.                                       
      (c) Doubling of Statutory Time Limit. --Currently, the FOIA allows  
   agencies 10 working days to make initial determinations on requests for
   information possessed by the Government. Compliance with the 10-day rule
   is a practical impossibility for the majority of agencies. The bill,   
   therefore, doubles the allowable time period for making an initial     
   determination to 20 working days, while leaving intact the current     
   10-working day statutory extension for cases involving ``unusual       
   circumstances.''                                                       
      (d) Agency Backlogs. --Under the FOIA, a court may grant an agency  
   additional time to respond to FOIA requests beyond the statutory time  
   limit, if the agency can show that ``exceptional circumstances exist and
   that the agency is exercising due diligence in responding to the       
   request.'' The FOIA does not limit the additional time permitted. The  
   Committee encourages agencies to reduce backlogs. The bill would clarify
   that ``exceptional circumstances'' should be demonstrated by more than 
   the usual backlog of pending requests, but good faith efforts to address
   and reduce an unusually large backlog may be relevant to a determination
   of whether ``exceptional circumstances'' exist.                        
      (e) Notification of Denial. --Currently, the FOIA requires agencies 
   to provide requesters with the names and titles or positions of any    
   person responsible for denial of a request for records. The bill would 
   amend this requirement to also require disclosure to requesters of the 
   total number of records and pages that the agency considered responsive
   to the request, but nevertheless withheld.                             
      (f) Multi-track FIFO Processing. --An agency commitment to process  
   requests on a first-come, first-served basis has been held to satisfy  
   the requirement that an agency exercise due diligence in dealing with  
   backlogs of FOIA requests. 20                                          
    Some agencies have taken the position that they must process requests 
   on an FIFO basis, even if this procedure may result in lengthy delays  
   for simple requests due to the prior receipt and processing of complex 
   requests. This section encourages agencies to implement multi-track    
   processing systems for FOIA requests to reduce backlog.                
    20 Open America v. Watergate Special Prosecution Force, 547 F.2d 605  
   (D.C. Cir. 1976).                                                      
      Simple requests are those requiring 10 days or less to process. Such
   requests may include requests for only a few specific documents that are
   easily accessed or which, by their nature would not normally be exempt 
   from the requester (e.g., request for a copy of one's own birth        
   certificate or naturalization certificate). Complex requests are those 
   for which it is estimated that the records sought would take more than 
   10 days to locate, review, and prepare for disclosure. Such requests may
   include requests from files requiring line-by-line review of numerous  
   pages of personal information, classified information, or investigative
   files, particularly those that are of current or of recent             
   investigations, that require careful coordination with investigative   
   personnel.                                                             
      Under a two-track system some simple requests shall be processed    
   ahead of more complex ones which may have been received earlier.       
   Agencies may have more than two tracks, for example, in the event that 
   they receive requests for expedited access, which may be processed on  
   their own track.                                                       
      (g) Expedited Access. --The bill provides for a requester to obtain 
   expedited access to records where the requester demonstrates a         
   compelling need, as defined by the bill. Once such a need is           
   demonstrated, and the request for expedited access is granted, the     
   agency must then proceed to process that request ``as soon as          
   practicable.'' No specific number of days for compliance is imposed by 
   the bill since, depending upon the complexity of the request, the time 
   needed for compliance may vary. The goal is not to get the request for 
   expedited access processed within a specific time frame, but to give the
   request priority for processing more quickly than otherwise would occur.
      In the event the agency uses a single-track FIFO procedure, the     
   expedited request should be processed first. If more than one expedited
   access request is granted and pending, the agency should have a separate
   track to process them on a FIFO basis. A FOIA request to which expedited
   access has been denied should be processed in the order it was received
   relative to other FOIA requests. S. 1090, as amended, would permit a   
   requester to seek limited judicial review based on the same record     
   before the agency of an agency's denial of an expedited access request,
   but only when the requester has complied with the strict time limits   
   under paragraph (4)(E)(ii).                                            
      This section adds statutory substance to the term ``compelling need''
   for purposes of obtaining expedited access. The first two criteria, in 
   which an individual's life or safety would be threatened, embody bases 
   for expedited access which have been accepted by some courts and       
   acknowledged by the Justice Department at least since 1983. The third  
   basis for expedited access would arise when failure to obtain such     
   access would affect public assessment of the nature and propriety of   
   actual or alleged governmental actions that are the subject of         
   widespread, contemporaneous media coverage. This is a reworking of the 
   new ``Discretion to Promote Public Accountability'' standard for       
   expedited access which the Department of Justice, Office of Information
   and Privacy, distributed to all agencies in a February 1, 1994,        
   memorandum. Media coverage is not in itself sufficient for expedition. 
   In order to ensure that this shall not become a routine incantation    
   among requesters, this ground for expedition requires ``widespread,    
   contemporaneous media coverage'' to be shown in support of a request   
   asserting its applicability. FOIA is not a substitute for a means of   
   civil discovery. FOIA requests related to ongoing civil litigation do  
   not receive expedited access under the criteria established in the bill
   simply because parties may need information for use in civil litigation.
      The requester would be required to declare, under penalty of perjury,
   the truth and correctness of the requester's statements of compelling  
   need in support of a request for expedited access. This is the same    
   requirement generally used to certify the correctness of information   
   provided to the government on documents ranging from income tax returns
   to applications for fishing licenses.                                  

                          9. Computer Redaction                         

      Section 7 of the bill would require that any withholding deletions  
   made in electronic records prior to their public disclosure must be    
   indicated within the disclosed records at the place(s) and to the extent
   of their occurrence. This would ensure that the requester receives     
   notice of the amount of material deleted and the location of the       
   deletion when records are provided to a requester in electronic form or
   as a hard copy print of electronic information.                        
      Agencies are not required to aggregate, compact, or modify electronic
   data in any way in order to release it to FOIA requesters in nonexempt 
   form. Agencies may do so as a matter of administrative discretion, just
   as FOIA requesters may modify their requests in order to encompass only
   nonexempt data.                                                        
                             10. Definitions                            

      The FOIA already defines the term ``agency'' and section 8 of S 1090,
   as amended, would add definitions of ``record'' and ``search'' to the  
   FOIA.                                                                  
      (a) Record .--The FOIA currently does not define ``record.'' A      
   determination of what constitutes an ``agency record'' in particular   
   instances shall depend upon a number of factors identified by the      
   Supreme Court in Department of Justice v. Tax Analysts . 21            
    Any item containing information that is in the possession and control 
   of an agency is usually considered to be an agency record under FOIA.  
    21492 U.S. 136, 144 45 (1989).                                        

      At the outset, it is important to note that the FOIA is not an      
   independent basis for requiring agencies to maintain records or        
   information; other statutes and regulations establish such requirements.
   For example, the FOIA does not dictate the records an agency must      
   preserve under the Federal Records Act, but only those subject to      
   release. At the same time, agencies should not convert any information 
   into a form not required to be preserved for the purpose of altering its
   status under the FOIA.                                                 
      As defined in the bill, ``record'' refers to all books, papers, maps,
   photographs, machine-readable materials, or other information or       
   documentary materials, regardless of physical form or characteristics. 
   The term expressly does not include library and museum material acquired
   or received and preserved solely for reference or exhibition purposes, 
   extra copies of documents preserved only for convenience of reference, 
   stocks of publications and of processed documents, or computer software
   which is obtained by an agency under a licensing agreement prohibiting 
   its replication or distribution.                                       
      This definition is a modified version of the definition of ``record''
   in the Federal Records Act (``FRA''). 22                               
    The new definition in the FOIA is not necessarily tied to any         
   definition of ``record'' that is used for purposes of other statutes,  
   including the Federal Records Act. Similar to that in the FRA, the     
   proposed definition of ``record'' under the FOIA expressly excludes    
   reference items that have been acquired or received by the Government  
   solely for reference purposes. This is consistent with current law that,
   for example, library reference materials are not subject to the FOIA. 23
                                                                          

    2244 U.S.C.A. 3301.                                                   

    23 See Dept. Of Justice  v.  Tax Analysts , 492 U.S. 136 (1988).      

      (b) Search .--The bill makes it clear that a search of computerized 
   records that requires application of codes or some form of programming 
   to retrieve information would not amount to the creation of a new      
   record.                                                                
      As defined in the Act, ```search' means a manual or automated review
   of agency records that is conducted for the purpose of locating those  
   records which are responsive to a request under subsection (a)(3)(A) of
   this section.'' Under FOIA, an agency is not required to create        
   documents that do not exist. Because computer records may be located in
   a database rather than in a file cabinet, the question is whether a    
   computer search is analogous to a search for paper records. Computerized
   records may require the application of codes or some form of programming
   to retrieve the information. Any other interpretation would make it    
   virtually impossible to get records that are maintained completely in an
   electronic form because some manipulation of the information likely    
   would be necessary to search for the record.                           
      This definition further clarifies that a search for records is only 
   made with regard to FOIA requests under 5 U.S.C. 552(a)(3)(A).         

                             VII.  REGULATORY IMPACT STATEMENT                   

      In compliance with paragraph 11(b), Rule XXVI of the Standing Rules 
   of the Senate, the Committee, after due consideration, concludes that no
   significant additional regulatory impact or impact on personal privacy 
   would be incurred in carrying out the provisions of this legislation.  

                                    VIII.  COST ESTIMATE                         

      The Committee accepts the cost estimate of the Congressional Budget 
   Office.                                                                
   The Congressional Budget Office estimate follows:                      


       U.S. Congress,                                                         

       Congressional Budget Office,                                           

       Washington, DC, May 13, 1996.                                          

 

          Hon.  Orrin G. Hatch,                Chairman, Committee on the Judiciary,

       U.S. Senate, Washington, DC                                            

       Dear Mr. Chairman: The Congressional Budget Office has reviewed S. 
   1090, the Electronic Freedom of Information Improvement Act of 1996, as
   ordered reported by the Senate Committee on the Judiciary on April 25, 
   1996. CBO estimates that enacting this bill would allow agencies to    
   spend between $4 million and $5 million over the 1997 2002 period out of
   fee income expected under current law. Such expenditures would         
   constitute new direct spending; therefore, pay-as-you-go procedures    
   would apply.                                                           
      Bill purpose. S. 1090 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 already        
   available in that form;                                                
       Authorize agencies to retain and spend one-half of any fees        
   collected under FOIA, provided that they comply with the statutory tie 
   limits for responding to such requests; and                            
       Expand the amount of time an agency has to respond to a FOIA request
   from 10 days to 20 days.                                               
      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 already available 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.  
   Any change in spending from either provision would be subject to       
   appropriation actions.                                                 
      To provide an incentive to reduce delays, S. 1090 would allow       
   eligible agencies to keep half of the fees currently charged for       
   processing FOIA requests and to spend those funds on resources used to 
   comply with FOIA's time limits. In 1992 (the most recent year for which
   complete tabulations of agencies' annual reports on FOIA activities are
   available), agencies spent about $108 million processing FOIA requests,
   while charging about $8 million in fees. Under current law, these fees 
   are deposited in the Treasury. Because the bill would expand the amount
   of time agencies have to respond to requests from 10 days to 20 days, we
   estimate that about 45 out of the 75 agencies included in the Department
   of Justice's 1994 report on agency backlogs under FOIA would meet the  
   bill's requirement for ``substantial compliance'' and would thus be    
   eligible to retain half of any fees they charge. These agencies,       
   however, account for only about 10 percent of the total fees collected.
   Thus, if this provision had been in effect for 1992, they would have   
   retained only about $0.4 million. By contrast, four agencies--all with 
   large backlogs--accounted for almost 75 percent of the total fees      
   collected in 1992.                                                     
      Assuming that costs for processing FOIA requests continue to grow at
   historical rates and that fees as a proportion of those costs also     
   remain at their historical rates, CBO estimates that agencies would be 
   eligible to retain about $0.6 million of fees collected during fiscal  
   year 1996. Under the bill, however, spending of these funds would not  
   occur until fiscal year 1997. Estimated outlays would rise gradually to
   about $1 million by 2002, and we estimate that direct spending from this
   provision would total between $4 million and $5 million over the 1997  
   2002 period. The following table summarizes the estimated budgetary    
   impact of the bill.                                                    

                           CHANGES IN DIRECT SPENDING                         
                    [By fiscal year, in millions of dollars]                  

                                 1997    1998    1999    2000    2001    2002 

Estimated Budget Authority          1       1       1       1       1       1 
Estimated Outlays                   1       1       1       1       1       1 

      This estimate assumes that S. 1090 would be enacted by the end of   
   fiscal year 1996.                                                      
      Pay-as-you-go statement. Section 252 of the Balanced Budget and     
   Emergency Deficit Control Act of 1985 sets up pay-as-you-go procedures 
   for legislation affecting direct spending or receipts through 1998. S. 
   1090 would affect direct spending by authorizing eligible agencies to  
   retain and spend on-half of any fees collected under FOIA. As a result,
   CBO estimates that outlays would increase by about $1 million in 1997  
   and $1 million in 1998.                                                
      Mandates statement. S. 1090 contains no intergovernmental or private
   sector mandates as defined in Public Law 104 4 and would impose no     
   direct costs on 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,                                                             

         June E. O'Neill,  Director.                                           


                           IX. ADDITIONAL VIEWS OF SENATOR LEAHY                 

      A number of points were not addressed in the Committee's report that
   would be helpful to provide additional guidance to agencies on         
   implementing the Electronic Freedom of Information Act. As one of the  
   authors of this legislation, I submit these additional views to        
   supplement the report of the Committee.                                

                                      I. INTRODUCTION                            

      The emerging National Information Infrastructure (NII) consists of  
   interconnected computer networks and databases that can put vast amounts
   of information at users' fingertips. Such an information infrastructure
   can be used to give the public easy access to the immense volumes of   
   information generated and held by the Government. Individual Federal   
   agencies are already contributing to the development of the NII by using
   technology to make Government information more easily accessible to our
   citizens. For example, FedWorld, a bulletin board available on the     
   Internet, provides a gateway to more than 60 Federal agencies.         
      The Electronic Freedom of Information Improvement Act would         
   contribute to that information flow by increasing on-line access to    
   Government information, including agency regulations, opinions, and    
   policy statements, and agency records that have been previously released
   in response to FOIA requests and that are the subject of repeated      
   requests. This electronic FOIA bill is an important step forward in    
   using technology to make government more accessible and accountable to 
   our citizens.                                                          

                            II. LEGISLATIVE HISTORY OF THE FOIA                  

      The Committee report notes, without elaboration, that the FOIA was  
   enacted in 1966 after many years of examination of the impediments to  
   providing the public with access to Government records. Prior to 1966, 
   the prevailing public access law, section 3 of the Administrative      
   Procedure Act of 1946, was being interpreted in ways to restrict the   
   availability of information.\1\                                        
    The so-called ``housekeeping'' law, dating from the earliest days of  
   the Republic and authorizing a department head to prescribe regulations
   for the custody, use, and preservation of department records, papers,  
   and property, was also being used to restrict information sought by the
   public.\2\                                                             
    Indeed, a considerable number of laws, regulations, and rules         
   restraining legal access to public records were identified.            
   \1\60 Stat. 237, at 238. Francis E. Rourke. Secrecy and Publicity:     
   Dilemmas of Democracy. Baltimore: The Johns Hopkins Press, 1961, pp. 57
   58.                                                                    
   \2\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 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.\3\                                  
                                                                          

   \3\Harold L. Cross. The People's Right to Know. Morningside Heights:   
   Columbia University Press, 1953, p. xiii.                              

      An initial effort in support of the people's right to know came to  
   fruition in 1958 when Congress enacted an amendment to the             
   ``housekeeping'' law stating that it ``does not authorize withholding  
   information from the public or limiting the availability of records to 
   the public.''\4\                                                       
                                                                          

   \4\72 Stat. 547.  Rourke,  Secrecy and Publicity,  pp. 59 60.          

      Shortly thereafter, work was begun on drafting legislation to amend 
   section 3 of the Administrative Procedure Act with a general statute   
   requiring the disclosure of unpublished agency records requested by the
   public. Such a bill was introduced, considered, and approved in the    
   Senate during the 88th Congress, when the movement for what would become
   the Freedom of Information Act began in earnest.\5\                    
    The House, however, took no action on such a measure before sine die  
   adjournment. The Senate turned to such legislation again in the 89th   
   Congress, 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.                                                                  
   \5\For 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,
   93d Cong., 2d sess. (1974).                                            
   Signing the FOIA into law on July 4, 1966,\6\                          

    President Johnson declared:                                           

   \6\80 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.\7\                                          
                                                                          

   \7\ Public Papers of the Presidents of the United States: Lyndon B.    
   Johnson, 1966. Book 2. Washington, U.S. Govt. Print. Off., 1967, p. 699.

      In accordance with the provisions of the Act, the FOIA became       
   operative on July 4, 1967, by which time it had been codified as section
   552 of title 5, United States Code.\8\                                 
                                                                          

   \8\81 Stat. 54; 5 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. Congressional oversight of  
   the administration and operation of the Act would reveal that this     
   distaste for the legislation had transformed into hostility toward the 
   statute during its initial implementation.                             

      A 1972 report by the House Committee on Government Operations, based
   upon oversight proceedings conducted by one of its subcommittees earlier
   in the year, characterized the situation in the following words:       

                     The efficient operation of the Freedom of         
          Information Act has been hindered by 5 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.\9\                               
                                                                          


   \9\House Committee on Government Operations, Administration of the     
   Freedom of Information Act, H. Rept. 92 1419, 92d Cong., 2d sess.      
   (1972), pp. 8 9.                                                       

      Curiously, it was often argued that the FOIA was not a primary      
   program of the departments and agencies, a contention that sadly ignored
   the importance of Government information accessibility for the citizens
   of a democracy. Consequently, FOIA administration suffered from a lack 
   of resources and a lack of immediacy so that requests languished,      
   awaiting a response.                                                   
      A reform bill to strengthen the FOIA was introduced in the House at 
   the outset of the 93d Congress in early 1973.\10\                      
    A companion proposal was offered in the Senate in March, and the House
   legislation received a committee hearing in May. No department or agency
   witness expressed any support for the proposed amendments. By the end of
   1973, the House bill had been refined, was reported from committee in  
   February 1974, and was adopted by the House in March. Shortly          
   thereafter, in May, a Senate counterpart bill was reported, strengthened
   during floor debate, and adopted. Conferees were then named to reconcile
   the differences between the two measures amending the FOIA.            
   \10\For the legislative history of the 1974 amendments to the FOIA Act,
   see House Committee on Government Operations and Senate Committee on the
   Judiciary. Freedom of Information Act and Amendments of 1974 (Public Law
   93 502). Source Book: Legislative History, Texts, and Other Documents. 
   Joint committee print, 94th Cong., 1st sess. Washington, U.S. Govt.    
   Print. Off., 1975.                                                     
      These were tumultuous times in the Federal Government and the Nation.
   During the 20 months that the FOIA amendments moved through the two    
   Houses of Congress, various congressional committees and a Special     
   Prosecutor were pursuing inquiries into a burglary at the Democratic   
   National Committee headquarters in the Watergate apartment complex in  
   Washington, DC. By the end of 1973, the involvement of current and     
   former high-level officials of the Nixon administration in this and    
   related matters had been revealed.                                     
      The following year, articles of impeachment against President Nixon 
   were under development in the House. Accountability and the availability
   of Government information became issues of mounting importance for     
   Congress and the public. A crux point was reached when the President   
   refused to provide certain Oval Office tape recordings subpoenaed by the
   Special Prosecutor. The dispute came before the Supreme Court, which, in
   a unanimous opinion of July 24, 1974, affirmed a district court order  
   requiring the President to provide the subpoenaed tapes.\11\           
    A week later, the House Committee on the Judiciary approved three     
   articles of impeachment of President Nixon. Ten days later, he resigned.
   \11\ United States  v.  Nixon , 418 U.S. 683 (1974).                   

      The FOIA amendments of 1974, which are summarized in the Committee's
   report, were not developed in response to the Watergate incident.      
   However, 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 
   indicating his reservations about some of the amendments. The conferees
   pressed on, resolved their differences, and placed their report before 
   their respective chambers. The Senate gave approval on October 1; the  
   House voted acceptance on October 7; and the compromise legislation was
   sent to President Ford the next day.                                   
      On October 17, the President returned the bill to the House without 
   his approval and characterized the legislation as ``unconstitutional and
   unworkable.''\12\                                                      
    However, he had underestimated congressional support for the          
   amendments. On November 20, 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  
   1974 amendments then became law, taking effect on February 19, 1975.\13                                                                          

   \12\ Public Papers of the Presidents of the United States: Gerald R.   
   Ford, 1974. Washington, U.S. Govt. Print. Off., 1975, pp. 374 376.     
   \13\88 Stat. 1561.                                                     

      These amendments and their manner of adoption, as well as subsequent
   amendments to the FOIA detailed in the Committee report, provide a clear
   indication of congressional support for and commitment to the FOIA and 
   its proper administration.                                             

                          III. SUPPLEMENTAL DISCUSSION OF THE BILL               

                               1. Findings                              

      The findings set forth in section 2 of the bill makes clear that the
   FOIA requires Federal agencies to make records available to the public 
   in specified ways, including upon the request of any person for any    
   public or private use. As Justice Ginsburg commented, ``the identity and
   particular purpose of the requester is irrelevant under FOIA. * * * This
   main rule serves as a check against selection among requesters, by     
   agencies and reviewing courts, according to idiosyncratic estimations of
   the request's or requester's worthiness.'' 14                          
                                                                          

    14 U.S. Department of Defense v. Federal Labor Relations Authority,   
   ---- U.S. ----, 114 S. Ct. 1006, 1019 (1994)(Ginsburg, J., concurring).
      This finding is intended to address concerns that the reasoning of  
   the Supreme Court in Department of Justice v. Reporters Committee 15   
    and the U.S. Department of Defense v. Federal Labor Relations Authority
   16                                                                     
    analyzed the purpose of the FOIA too narrowly. The purpose of the FOIA
   is not limited to making agency records and information available to the
   public only in cases where such material would shed light on the       
   activities and operations of Government. Effort by the courts to       
   articulate a ``core purpose'' for which information should be released 
   imposes a limitation on the FOIA which Congress did not intend and which
   cannot be found in its language, 17                                    
    and distorts the broader import of the Act in effectuating Government 
   openness.                                                              
    15489 U.S. 749 (1989).                                                

    16114 S.Ct. 1006, 773 775, 1012 13 (1994).                            

    17 U.S. Department of Defense v. FCRA, supra, 114 S.Ct. at 1018 1019  
   (Ginsburg, J., concurring).                                            
      While the intended use of the records by the requester is normally  
   irrelevant in determining whether to grant access to the requested     
   records, it may properly be considered in assessing the potential      
   consequences of disclosure where the public interest in disclosure must
   be balanced against an asserted privacy interest in denying access to  
   such records.                                                          

                 2. Records Made Available to the Public                

      The Congress has indicated its intent through laws, such as the     
   Paperwork Reduction Act of 1995, that wider use of electronic          
   dissemination is an integral part of Government information activity.  
   Such dissemination occurs on the initiative of Government officials. The
   FOIA, by contrast, also provides access to Government information sought
   on the initiative of the people.                                       
      The Committee report correctly notes that the Government Information
   Locator Service (GILS) is a helpful tool for providing access to public
   information resources in the Federal Government. Significantly, many   
   Federal agencies are also establishing sites on the World Wide Web to  
   educate the public about their mission and facilitate access to        
   information about the agency. Agencies should be encouraged to establish
   a FOIA requester section on their Web site homepage to facilitate      
   on-line access to 552(a)(1), (a)(2), and (a)(3) materials. For example,
   by accessing an agency's Web site, requesters in the future may be able
   to browse through an index of major computer systems maintained by the 
   agency, an index of records made availably to the public, and copies of
   records previously released pursuant to FOIA requests.                 
      In short, these World Wide Web sites could be used to provide on-line
   access to the materials that agencies are disseminating both           
   electronically and in more conventional form to the public. In fact, the
   Department of Defense has specified that all homepages must be         
   accompanied by a GILS record that tells the public how to access other 
   DOD material. We urge Federal agencies to continue progress in this    
   area.                                                                  

                       3.  Honoring Format Requests                     


      Section 5 of the bill requires that Federal agencies provide records
   to requesters in any form or format in which the agency maintains those
   records, and that Federal agencies make reasonable efforts to search for
   and honor the format requests of requesters. In many cases, the vast   
   amounts of information held in Government databases would only be usable
   if disclosed in an electronic form. Such information disclosed in paper
   form would be unmanageable. Nevertheless, a FOIA requester should be   
   entitled to obtain a paper ``printout'' of any nonexempt electronic    
   records--or any readily retrievable nonexempt part of such records--if 
   the requester so prefers, consistent with current practice.            
      The Committee report points out that what constitutes a ``reasonable
   effort'' to search for records in electronic form or format will vary  
   with the circumstances under which the records are held. In responding 
   to FOIA requests seeking only specified portions of databases, agencies
   should search for and retrieve data in the same manner used in the     
   ordinary course of agency business with their existing                 
   retrieval-programming capability for the database involved. When       
   requesters seek to have data retrieved according to specifications other
   than those ordinarily used by agencies for data retrieval from the     
   database system involved, agencies should comply with such requests    
   where they can reasonably and efficiently do so. We recognize that this
   requirement, in tandem with the ``record'' status of agency software,  
   holds some potential for compelled software creation.                  
      Agencies should be required to search for and retrieve data according
   to new specifications where such retrieval activity does not disrupt   
   agency functions.                                                      
      Agencies should make use of the capability to redact exempt         
   information through electronic means, including through the acquisition
   of software packages for those purposes, wherever it is more efficient 
   to do so. Where redactions are made by electronic means, the requirement
   in section 7 of the bill remains that the requester should be notified 
   of the extent and location of the redactions. This principle should    
   apply to redaction in conventional record form, in which case the extent
   of redactions ordinarily can be shown on the face of partially disclosed
   records.                                                               

                        4. Delays: Agency Backlogs                      

      The bill would clarify the meaning of ``exceptional circumstances'' 
   warranting an extension of the statutory time limit for responding to  
   requests under the FOIA. Specifically, under the bill, the term        
   ``exceptional circumstances'' would mean ``circumstances that are      
   unforeseen and shall not include delays that result from a predictable 
   workload, including any ongoing agency backlog, in the ordinary course 
   of processing requests for records.''                                  
   In  Open America  v.  Watergate Special Prosecution Force , 18         

    the court held that exceptional circumstances exist when the agency can
   show it has inadequate resources to process FOIA requests within       
   statutory time limits and the agency 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.                           
    18547 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. This is exactly
   the wrong incentive to clear up such backlogs.                         
      The bill would not overturn Open America, but would clarify its     
   holding. In Open America, the court granted additional time because the
   agency had a truly exceptional, 3000-percent increase in FOIA requests 
   in 1 year. The bill would not change the outcome in Open America       
   --exceptional, unforeseen workload increases would still warrant       
   additional time to respond to FOIA requests.                           
      Consistent with Judge Leventhal's concurring opinion in Open America,
   the bill would clarify that ``exceptional circumstances'' must be      
   demonstrated by more than the mere number or backlog of pending        
   requests. This clarification would apply prospectively to requests for 
   agency records submitted after the date of enactment of this Act.      
      The agency must show the extraordinary size or complexity of the    
   requested records at issue; affirmative steps the agency is taking to  
   reduce the backlog (such as applying for additional funding, training or
   reassigning additional personnel, or implementing new processing       
   procedures); efforts to expedite release of the requested records,     
   including by the partial release of records expressly covered by the   
   FOIA and plainly outside the scope of any exemption; and concrete      
   obstacles to locating or otherwise processing the requested records,   
   including cases in which a substantial proportion of the requested     
   records can reasonably be expected to involve information that may be  
   exempt under 5 U.S.C. 552(b) (1), (6), or (7). The mere fact that the  
   requested records are those of an agency with law enforcement or       
   national security missions, such as the Federal Bureau of Investigation
   or Central Intelligence Agency, should not be sufficient in itself to  
   demonstrate that the records can reasonably be expected to fall within 
   the scope of those exemptions.                                         

                          5. Definitions: Record                        


      The new definition of ``record'' in the bill includes               
   ``machine-readable materials or other information or documentary       
   materials, regardless of physical form or characteristics.'' As a      
   general rule, information maintained in electronic form should be no   
   less subject to the FOIA than information maintained in conventional   
   paper record form. Indeed, among Federal agencies, there is little     
   disagreement that FOIA covers all Government records, regardless of the
   form in which they are maintained or stored by the agency. The         
   Department of Justice agrees that computer database records are agency 
   records subject to the FOIA.\19\                                       
                                                                          

    191992 Hearing, at 33.                                                

      However, a question may arise as to what, exactly, constitutes a    
   ``record'' when public records are in an electronic format. For example,
   most Government agencies maintain large databases comprising millions of
   pieces of information. A specific ``record'' may not be created until a
   query is formed and the software associated with the database          
   manipulates the information, which in turn compiles the record         
   formulated by the query. Because the database itself is a public record,
   then any record created from information stored in that database is also
   a public record.                                                       
      The process of retrieving the information, however, may result in the
   creation of a new document when the data is printed out on paper or    
   written on computer tape or disk. This may be the only way computerized
   data is retrievable, even if it means a new document must be created.  
      Moreover, material in a database that is constantly being updated or
   modified is dynamic and continuously changing. It should, nonetheless, 
   be subject to the FOIA. Agencies may have to develop special procedures
   to accommodate FOIA applicability to such data on a ``snapshot'' basis,
   while at the same time duly impairing the operation of the electronic  
   system involved. Any such nonexempt data for which there is an         
   anticipated public demand is likely to be made available affirmatively 
   under section 4 of S. 1090, thereby removing any potential FOIA        
   complications for that data.                                           
      The proposed definition of ``record'' in the bill would cover       
   electronic mail, in accordance with current case law and regulations.  
   Recognizing that ``the widespread and easy use of e-mail has made it an
   important tool for the conduct of Government business'' and that       
   ``nearly all Federal agencies now use e-mail to transact Government    
   business,'' the National Archives and Records Administration issued    
   regulations, effective on September 27, 1995, setting forth regulations
   for the identification and preservation of e-mail messages that        
   constitute Federal records.                                            
       Electronic mail has also been held subject to the FOIA by courts   
   that have considered this issue. In Armstrong v. Executive Office of   
   President, 20                                                          
    the court based its definition of ``records'' on the language contained
   in 44 U.S.C.A. 3301, and concluded that, if a document qualifies as a  
   record, then the FRA prohibits an agency from discarding it by fiat.   
   Communications stored in electronic communications systems constituted 
   Federal records because the FRA's definition of ``records'' includes   
   material ``regardless of physical form or characteristics.'' The court 
   concluded that substantive communications otherwise meeting the        
   definition of Federal ``records'' that had been saved on electronic mail
   came within the FRA's purview. Thus, the court held the mere existence 
   of paper printouts of electronic communications for Government agencies
   does not affect the record status of electronic material unless paper  
   versions include all significant material contained in the electronic  
   records. Electronic documents retain their status as Federal records   
   after the creation of paper printouts and all FRA obligations concerning
   management and preservations of records apply.                         
    201 F.3d 1274, 1278 (D.C. Cir. 1993).                                 

      Electronic mail is used not just by Federal employees to conduct    
   official business, but also in circumstances where the employees may   
   have an expectation of privacy or confidentiality. This expectation may
   be compromised if the messages are preserved as records and released to
   the public under the FOIA. What constitutes an appropriate use of e-mail
   systems by Federal employees and what legitimate expectations of privacy
   those employees may have in particular e-mail messages are important   
   questions, but not policy determinations to be made under the FOIA.    
   Indeed, the National Archive and Records Administration has concluded  
   that ``E-mail records are no more and no less important than other     
   records. Agency personnel must apply the same decision making process to
   e-mail that they apply to other documentary materials regardless of the
   media used to create them.'' 21                                        
                                                                          

    2160 Fed. Reg. 44634, 44635 (Aug. 28, 1995).                          

      Electronic information or material maintained outside of the        
   Government that is accessed electronically by an agency, but merely    
   viewed by agency employees, should not be deemed to come into the      
   agency's possession and control by virtue of such electronic access. Any
   such data on a networked computer, however, that is retrieved into an  
   agency database by an agency employee or agent, or is printed out in   
   paper form, becomes subject to the Act. Rules governing the            
   circumstances under which agencies may merely view, and not preserve,  
   data distributed over networked computers in the performance of their  
   functions should be established through legal and policy mechanisms    
   other than the FOIA.                                                   

      As a general rule, computer software should also be treated as a    
   ``record'' subject to the FOIA. ``Computer software'' may be regarded as
   the computer programs, routines, and symbolic languages that control the
   functioning and direct the operation of computer hardware. Software that
   is generated totally at Government expense, and in which there exists no
   private proprietary interest, should be subject to the FOIA and        
   disclosed if not covered by a FOIA exemption (e.g., Exemption 2 which  
   can protect against circumvention of computer-system security). 22     
    Such software should be made available at direct cost under the FOIA, 
   absent any specific congressional authorization for the charging of a  
   greater fee.                                                           
    22 See Cleary, Gottlieb, Steen & Hamilton v. Dept. of Health and Human
   Services, 844 F. Supp. 770 (D.D.C. 1993) (computer program created by  
   agency employee is an agency ``record'' under the FOIA but under the   
   circumstances were exempt from disclosure under the deliberative process
   privilege in Exemption 5).                                             
      Any software that is generated by an outside party under a Government
   contract, in which the Government has retained all proprietary interest,
   should likewise be subject to the FOIA. Any software that is generated 
   by an agency and furnished to an outside party ``exclusively'' under a 
   cooperative agreement should be treated under the Act in accordance with
   the provisions of any specific congressional enactment pertaining to   
   such agreement.                                                        
      Any software that is generated by an outside party under a Government
   contract, in which the party retains some or all of the proprietary    
   interest, should be subject to disclosure under the FOIA only insofar as
   is compatible with that proprietary interest, as well as the interests 
   protected by any other applicable FOIA exemption, such as Exemption 2 or
   3.                                                                     
      Any computer software that has been acquired by the Government, and 
   from an outside proprietary interest holder under a licensing agreement
   that prohibits the software's copying or distribution is excluded by the
   definition of a ``record'' under the bill. The most effective handling 
   of an FOIA request for such software would be for the agency simply to 
   identify the software as commercially available.                       
      In circumstances where acquired software is not made commercially   
   available by the outside proprietary interest holder, or the software  
   has been customized and is therefore not commercially available in the 
   exact form in which it is requested, both the circumstances of the     
   acquisition and of the proprietary interest shall have to be examined in
   order to determine the software's status under the FOIA. Specifically, a
   determination shall have to be made whether release is permitted under 
   the licensing agreement under which the agency obtained the software,  
   and whether such release is consistent with the copyright or patent    
   laws.                                                                  
      If the licensing agreement or other legal impediment bars release of
   the requested computer software, agencies should make efforts to       
   segregate proprietary from nonproprietary information in order to comply
   with the FOIA.                                                         
      If an agency maintains an electronic information system in such a way
   that objectively understandable access to any nonexempt information in 
   it is dependent upon a computer program or software that is unavailable
   to the public, then the agency must upon request, pursuant to the new  
   requirement in section 5 of the bill, take all reasonable steps to     
   convert the data in order to afford FOIA access to it in a requested   
   electronic form.                                                       
      Agencies should make efforts to avoid this situation and seek instead
   to obtain computer programs or software that are available to the public
   either commercially or by release under the FOIA. Agencies certainly   
   should not use licensing agreements to circumvent public access to     
   electronic information under the FOIA. Efforts to do so would be       
   short-sighted given the additional time, expense, and efforts that must
   be undertaken by agencies to convert information from an unreleasable  
   electronic form to a releasable electronic form.                       

                                       IV. CONCLUSION                            

      Making Government information readily available electronically can  
   help to revitalize citizens' interest in learning what their Government
   is doing and better their understanding of the reasons underlying      
   Government actions. The Electronic Freedom of Information Improvement  
   Act of 1996 is an important step forward in using technology to make   
   Government more accessible and accountable to our citizens.            
      In addition, this bill takes steps to cure the lengthy delays in    
   obtaining responses to requests for agency records under the FOIA. The 
   American taxpayer has paid for the collection and maintenance of these 
   records and should get prompt access to it upon request. That is what  
   the law requires and that is the standard of service Government agencies
   should meet. Long delays in access can mean no access at all.          
         Patrick Leahy.                                                        


                  X. CHANGES IN EXISTING LAW MADE BY THE BILL, AS AMENDED        

      In compliance with paragraph 12, rule XXVI of the Standing Rules of 
   the Senate, 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):                              
          UNITED STATES CODE                                                     

         * * * * * * *                                                          

          TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES                         

         * * * * * * *                                                          

                             CHAPTER 5--ADMINISTRATIVE PROCEDURE                 

                              SUBCHAPTER I--GENERAL PROVISIONS                   

         * * * * * * *                                                          

                    552. Public information; agency rules, opinions, orders,     
          records, and proceedings                                               
      (a) Each agency shall make available to the public information as   
   follows:                                                               
       (1) Each agency shall separately state and currently publish in the
   Federal Register including by computer telecommunications, or if       
   computer telecommunications means are not available, by other electronic
   means, for the guidance of the public--                                
       (A) descriptions of its central and field organization and the     
   established places at which, the employees (and in the case of a       
   uniformed service, the members) from whom, and the methods whereby, the
   public may obtain information, make submittals or requests, or obtain  
   decisions;                                                             
       (B) statements of the general course and method by which its       
   functions are channeled and determined, including the nature and       
   requirements of all formal and informal procedures available;          
       (C) rules of procedure, descriptions of forms available or the     
   places at which forms may be obtained, and instructions as to the scope
   and contents of all papers, reports or examinations;                   
       (D) substantive rules of general applicability adopted as authorized
   by law, and statements of general policy or interpretations of general 
   applicability formulated and adopted by the agency; and                
       (E) a complete list of all statutes that the agency head or general
   counsel relies upon to authorize the agency to withhold information    
   under subsection (b)(3) of this section, together with a specific      
   description of the scope of the information covered; and               
    ( F ) each amendment, revision, or repeal of the foregoing.           

    Except to the extent that a person has actual and timely notice of the
  terms thereof, a person may not in any manner be required to resort to,
  or be adversely affected by, a matter required to be published in the  
  Federal Register and not so published. For the purpose of this         
  paragraph, matter reasonably available to the class of persons affected
  thereby is deemed published in the Federal Register when incorporated by
  reference therein with the approval of the Director of the Federal     
  Register.                                                              
       (2) Each agency, in accordance with published rules, shall make    
   available for public inspection and copying, including, within 1 year  
   after the date of the enactment of the Electronic Freedom of Information
   Improvement Act of 1996, by computer telecommunications, or if computer
   telecommunications means are not available, by other electronic means --

       (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) an index of all major information systems containing agency    
   records regardless of form or format unless such an index is provided as
   otherwise required by law;                                             
       (E) a description of any new major information system with a       
   statement of how such system shall enhance agency operations under this
   section;                                                               
       (F) an index of all records which are made available to any person 
   under paragraph (3) of this subsection; and                            
       (G) copies of all records, regardless of form or format, which     
   because of the nature of their subject matter, have become or are likely
   to become the subject of subsequent requests for substantially the same
   records under paragraph (3) of this subsection;                        

      unless the materials are promptly published and copies offered for  
   sale. 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, statements of policy,         
   interpretation, or staff manual or instruction staff manual,           
   instruction, or index or copies of records, which are made available   
   under paragraph (3) of this subsection . 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 at the place where such    
   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. A final order, opinion,         
   statements 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)(A) through (F) of this subsection, each agency, 
   upon any request for records which (A) reasonably ( 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) An agency shall, as requested by any person, provide records in
   any form or format in which such records are maintained by that agency.
       (C) An agency shall make reasonable efforts to search for records in
   electronic form or format and provide records in the form or format    
   requested by any person, including in an electronic form or format, even
   where such records are not usually maintained but are available in such
   form or format.                                                        
       (4)(A)(i) In order to carry out the provisions of this section, each
   agency shall promulgate regulations, pursuant to notice and receipt of 
   public comment, specifying the schedule of fees applicable to the      
   processing of requests under this section and establishing procedures  
   and guidelines for determining when such fees should be waived or      
   reduced. Such schedule shall conform to the guidelines which shall be  
   promulgated, pursuant to notice and receipt of public comment, by the  
   Director of the Office of Management and Budget and which shall provide
   for a uniform schedule of fees for all agencies.                       
         * * * * * * *                                                          

       (vii) In any action by a requester regarding the waiver of fees    
   under this section, the court shall determine the matter de novo :     
   Provided, that the court's review of the matter shall be limited to the
   record before the agency.                                              
       (viii) If at an agency's request, the Comptroller General determines
   that the agency annually has either provided responsive documents or   
   denied requests in substantial compliance with the requirements of     
   paragraph (6)(A), one-half of the fees collected under this section    
   shall be credited to the collecting agency and expended to offset the  
   costs of complying with this section through staff development and     
   acquisition of additional request processing resources. The remaining  
   fees collected under this section shall be remitted to the Treasury as 
   general funds or miscellaneous receipts.                               
         * * * * * * *                                                          


    (D) Repealed.                                                         

       (E) (i) The court may assess against the United States reasonable  
   attorney fees and other litigation costs reasonably incurred in any case
   under this section in which the complainant has substantially prevailed.
       (ii) Any agency not in compliance with the time limits set forth in
   this subsection shall demonstrate to a court that the delay is warranted
   under the circumstances set forth under paragraph (6) (B) or (C) of this
   subsection.                                                            
         * * * * * * *                                                          

       (5) Each agency having more than one member shall maintain and make
   available for public inspection a record of the final votes of each    
   member in every agency proceeding.                                     
       (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 twenty days (excepting Saturdays,    
   Sundays, and legal public holidays) after the receipt of any such      
   request whether to comply with such a 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 the 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.                  
         * * * * * * *                                                          

       (C) 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. As used in this 
   subparagraph, for requests submitted pursuant to paragraph (3) after the
   date of the enactment of the Electronic Freedom of Information         
   Improvement Act of 1996, the term ``exceptional circumstances'' means  
   circumstances that are unforeseen and shall not include delays that    
   result from a predictable workload, including any ongoing agency       
   backlog, in the ordinary course of processing requests for 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 requests for records under  
   this subsection shall set forth the names and titles or positions of   
   each person responsible for the denial of such request. Any notification
   of any full or partial 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 and the total number 
   of denied records and pages considered by the agency to have been      
   responsive to the request.                                             

       (D)(i) Each agency shall adopt a first-in, first-out (hereafter in 
   this subparagraph referred to as FIFO) processing policy in determining
   the order in which requests are processed. The agency may establish    
   separate processing tracks for simple and complex requests using FIFO  
   processing within each track.                                          
    (ii) For purposes of such a multi-track system-                       

       (I) a simple request shall be a request requiring 10 days or less to
   make a determination on whether to comply with such a request; and     
       (II) a complex request shall be a request requiring more than 10   
   days to make a determination on whether to comply with such a request. 
       (iii) A multitrack system shall not negate a claim of due diligence
   under subparagraph (C), if FIFO processing within each track is        
   maintained and the agency can show that it has reasonably allocated    
   resources to handle the processing for each track.                     
       (E)(i) Each agency shall promulgate regulations, pursuant to notice
   and receipt of public comment, providing that upon receipt of a request
   for expedited access to records and a showing by the person making such
   request of a compelling need for expedited access to records, the agency
   determine within 10 days (excepting Saturdays, Sundays, and legal public
   holidays) after the receipt of such a request, whether to comply with  
   such request. A request for records to which the agency has granted    
   expedited access shall be processed as soon as practicable. A request  
   for records to which the agency has denied expedited access shall be   
   processed within the time limits under paragraph (6) of this subsection.
       (ii) A person whose request for expedited access has not been      
   decided within 10 days of its receipt by the agency or has been denied 
   shall be required to exhaust administrative remedies. A request for    
   expedited access which has not been decided may be appealed to the head
   of the agency within 15 days (excepting Saturdays, Sundays, and legal  
   public holidays) after its receipt by the agency. A request for        
   expedited access that has been denied by the agency may be appealed to 
   the head of the agency within 5 days (excepting Saturdays, Sundays, and
   legal public holidays) after the person making such request receives   
   notice of the agency's denial. If an agency head has denied, affirmed a
   denial, or failed to respond to a timely appeal of a request for       
   expedited access, a court which would have jurisdiction of an action   
   under paragraph 4(B) of this subsection may, upon complaint, require the
   agency to show cause why the request for expedited access should not be
   granted, except that such review shall be limited to the record before 
   the agency.                                                            
       (iii) The burden of demonstrating a compelling need by a person    
   making a request for expedited access may be met by a showing, which   
   such person certifies under penalty of perjury to be true and correct to
   the best of such person's knowledge and belief, that failure to obtain 
   the requested records within the timeframe for expedited access under  
   this paragraph would--                                                 
    (I)  threaten an individual's life or safety;                         

       (II) result in the loss of substantial due process rights and the  
   information sought is not otherwise available in a timely fashion; or  
       (III) affect public assessment of the nature and propriety of actual
   or alleged governmental actions that are the subject of widespread,    
   contemporaneous media coverage.                                        

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

       (1) (A) specifically authorized under criteria established by an   
   Executive order to be kept secret in the interest of national defense or
   foreign policy and (B) are in fact properly classified pursuant to such
   Executive order;                                                       
          * * * * * * *                                                         

       (9) geological and geophysical information and data, including maps,
   concerning wells.                                                      
    Any reasonable 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, and the extent of such deletion shall be 
  indicated on the released portion of the record at the place in the    
  record where such deletion was made.                                   
          * * * * * * *                                                         


      (f) For purposes of this section, the term ``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.                                                     

    (f) For purposes of this section--                                    

       (1) the term ``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.        
       (2) the term ``record'' means all books, papers, maps, photographs,
   machine-readable materials, or other information or documentary        
   materials, regardless of physical form or characteristics, but does not
   include--                                                              
       (A) library and museum material acquired or received and preserved 
   solely for reference or exhibition purposes;                           
       (B) extra copies of documents preserved solely for convenience of  
   reference;                                                             
     (C) stocks of publications and of processed documents; or            

       (D) computer software which is obtained by an agency under a       
   licensing agreement prohibiting its replications or distributions; and 
       (3) the term ``search'' means a manual or automated review of agency
   records that is conducted for the purpose of locating those records    
   which are responsive to a request under subsection (a)(3)(A) of this   
   section.                                                                               

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