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.