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  EFOIA Legislative History, House Committee Report, H. Rept. 795, Sept. 17, 1996
29 006
104 th Congress
Report
HOUSE OF REPRESENTATIVES
2d Session
104 795
ELECTRONIC FREEDOM OF INFORMATION AMENDMENTS OF 1996
September 17, 1996.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
R E P O R T
[To accompany H.R. 3802]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform and Oversight, to whom was
referred the bill (H.R. 3802) to amend section 552 of title 5, United
States Code, popularly known as the Freedom of Information Act, to
provide for public access to information in an electronic format, and
for other purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do pass.
CONTENTS
Page
Background and Need for the Legislation 6
Legislative Hearings and Committee Action 14
Committee Hearings and Written Testimony 15
Explanation of the Bill 18
Compliance with Rule XI 30
Budget Analysis and Projections 31
Cost Estimate of the Congressional Budget Office 31
Inflationary Impact Statement 32
Changes in Existing Law 32
Committee Recommendation 39
Congressional Accountability Act; Public Law 104 1 40
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Freedom of Information
Amendments of 1996''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) the purpose of section 552 of title 5, United States Code,
popularly known as the Freedom of Information Act, is to require
agencies of the Federal Government to make certain agency information
available for public inspection and copying and to establish and enable
enforcement of the right of any person to obtain access to the records
of such agencies, subject to statutory exemptions, for any public 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. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.
Section 552(f) of title 5, United States Code, is amended to read as
follows:
``(f) For purposes of this section, the term--
``(1) `agency' as defined in section 551(1) of this title includes
any executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office of
the President), or any independent regulatory agency; and
``(2) `record' and any other term used in this section in reference
to information includes any information that would be an agency record
subject to the requirements of this section when maintained by an agency
in any format, including an electronic format.''.
SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND
INDEXATION OF RECORDS.
Section 552(a)(2) of title 5, United States Code, is amended--
(1) in the second sentence, by striking ``or staff manual or
instruction'' and inserting ``staff manual, instruction, or copies of
records referred to in subparagraph (D)'';
(2) by inserting before the period at the end of the 3rd sentence
the following: ``, and the extent of such deletion shall be indicated on
the portion of the record which is made available or published'';
(3) by inserting after the 3rd sentence the following: ``If
technically feasible, the extent of the deletion shall be indicated at
the place in the record where the deletion was made.'';
(4) in subparagraph (B), by striking ``and'' after the semicolon;
(5) by inserting after subparagraph (C) the following:
``(D) copies of all records, regardless of form or format, which
have been released to any person under paragraph (3) and which, because
of the nature of their subject matter, the agency determines have become
or are likely to become the subject of subsequent requests for
substantially the same records; and
``(E) a general index of the records referred to under subparagraph
(D);'';
(6) by inserting after the 5th sentence the following: ``Each agency
shall make the index referred to in subparagraph (E) available by
computer telecommunication by December 31, 1999.''; and
(7) by inserting after the 1st sentence the following: ``For records
created on or after November 1, 1996, within one year after such date,
each agency shall make such records available by computer
telecommunications or, if computer telecommunications means have not
been established by the agency, by other electronic means.''.
SEC. 5. HONORING FORM OR FORMAT REQUESTS.
Section 552(a)(3) of title 5, United States Code, is amended--
(1) by inserting ``(A)'' after ``(3)'';
(2) by striking ``(A)'' and inserting ``(i)'';
(3) by striking ``(B)'' and inserting ``(ii)''; and
(4) by adding at the end the following new subparagraphs:
``(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by the
agency in that form or format. Each agency shall make reasonable efforts
to maintain its records in forms or formats that are reproducible for
purposes of this section.
``(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in
electronic form or format.
``(D) For purposes of this paragraph, the term `search' means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.''.
SEC. 6. STANDARD FOR JUDICIAL REVIEW.
Section 552(a)(4)(B) of title 5, United States Code, is amended by
adding at the end the following new sentence: ``In addition to any other
matters to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency concerning the
agency's determination as to technical feasibility under paragraph
(2)(C) and subsection (b) and reproducibility under paragraph (3)(B).''.
SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.
(a) Multitrack Processing.--Section 552(a)(6) of title 5, United
States Code, is amended by adding at the end the following new
subparagraph:
``(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
``(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in order to
qualify for faster processing.
``(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.''.
(b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United
States Code, is amended to read as follows:
``(B)(i) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the unusual circumstances for such extension
and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for
more than ten working days, except as provided in clause (ii) of this
subparagraph.
``(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the request
if the request cannot be processed within the time limit specified in
that clause and shall provide the person an opportunity to limit the
scope of the request so that it may be processed within that time limit
or an opportunity to arrange with the agency an alternative time frame
for processing the request or a modified request. Refusal by the person
to reasonably modify the request or arrange such an alternative time
frame shall be exceptional circumstances for purposes of subparagraph
(C).
``(iii) As used in this subparagraph, `unusual circumstances' means,
but only to the extent reasonably necessary to the proper processing of
the particular requests--
``(I) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
``(II) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
``(III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.''.
(c) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5,
United States Code, is amended by inserting ``(i)'' after ``(C)'', and
by adding at the end the following new clauses:
``(ii) For purposes of this subparagraph, the term `exceptional
circumstances' does not include a delay that results from a predictable
agency workload of requests under this section.
``(iii) Refusal by a person to reasonably modify the scope of a
request or to arrange an alternative time frame for processing a request
(or a modified request) under this section after being requested to do
so by the agency to whom the person made the request shall be
exceptional circumstances for purposes of this subparagraph.
``(iv) In determining whether exceptional circumstances exist, a
court shall consider the efforts by an agency to reduce the number of
pending requests under this section.''.
SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.
(a) Expedited Processing.--Section 552(a)(6) of title 5, United
States Code (as amended by section 7(a) of this Act), is further amended
by adding at the end the following new subparagraph:
``(E)(i) Each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, providing for expedited processing of
requests for records--
``(I) in cases in which the person requesting the records
demonstrates a compelling need; and
``(II) in other cases determined by the agency.
``(ii) Notwithstanding subparagraph (A)(i), regulations under this
subparagraph must ensure--
``(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall be
provided to the person making the request, within 10 days after the date
of the request; and
``(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
``(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing under
this subparagraph. Agency action to deny or affirm denial of a request
for expedited processing pursuant to this subparagraph, and failure by
an agency to respond timely to such a request shall be subject to
judicial review under paragraph (4), except that the judicial review
shall be based on the record before the agency at the time of the
determination.
``(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a
request for records after the agency has provided a complete response to
the request.
``(v) For purposes of this subparagraph, the term `compelling need'
means--
``(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual; or
``(II) with respect to a request made by a person primarily engaged
in disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.''.
(b) Extension of General Period for Determining Whether To Comply
With a Request.--Section 552(a)(6)(A)(i) of title 5, United States Code,
is amended by striking ``ten days'' and inserting ``20 days''.
(c) Estimation of Matter Denied.--Section 552(a)(6) of title 5,
United States Code (as amended by section 7 of this Act and subsection
(a) of this section), is further amended by adding at the end the
following new subparagraph:
``(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of any
requested matter the provision of which is denied, and shall provide any
such estimate to the person making the request, unless providing such
estimate would harm an interest protected by an exemption under
subsection (b) under which the denial is made.''.
SEC. 9. COMPUTER REDACTION.
Section 552(b) of title 5, United States Code, is amended in the
matter following paragraph (9) by adding at the end the following: ``The
amount of information deleted shall be indicated on the released portion
of the record, unless including that indication would harm an interest
protected by an exemption under this subsection under which the deletion
is made.''.
SEC. 10. REPORT TO THE CONGRESS.
Section 552(e) of title 5, United States Code, is amended to read as
follows:
``(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General a report which shall cover the preceding
fiscal year and which shall include--
``(A) the number of determinations made by the agency not to comply
with requests for records made to such agency under subsection (a) and
the reasons for each such determination;
``(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action upon
each appeal that results in a denial of information; and
``(ii) a complete list of all statutes that the agency relies upon
to authorize the agency to withhold information under subsection (b)(3),
a description of whether a court has upheld the decision of the agency
to withhold information under each such statute, and a concise
description of the scope of any information withheld;
``(C) the number of requests for records pending before the agency
as of September 30 of the preceding year, and the median number of days
that such requests had been pending before the agency as of that date;
``(D) the number of requests for records received by the agency and
the number of requests which the agency processed;
``(E) the median number of days taken by the agency to process
different types of requests;
``(F) the total amount of fees collected by the agency for
processing requests;
``(G) the average amount of time that the agency estimates as
necessary, based on the past experience of the agency, to comply with
different types of requests; and
``(H) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total amount
expended by the agency for processing such requests.
``(2) Each agency shall make each such report available to the public
through a computer network, or if computer network means have not been
established by the agency, by other electronic means.
``(3) The Attorney General shall make each report which has been made
available by electronic means available at a single electronic access
point. The Attorney General shall notify the Chairman and ranking
minority member of the Committee on Government Reform and Oversight of
the House of Representatives and the Chairman and ranking minority
member of the Committees on Governmental Affairs and the Judiciary of
the Senate, no later than April 1 of the year in which each such report
is issued, that such reports are available by electronic means.
``(4) The Attorney General, in consultation with the Director of the
Office of Management and Budget, shall develop reporting and performance
guidelines in connection with reports required by this subsection by
October 1, 1997, and may establish additional requirements for such
reports as the Attorney General determines may be useful.
``(5) The Attorney General shall submit an annual report on or before
April 1 of each calendar year which shall include for the prior calendar
year a listing of the number of cases arising under this section, the
exemption involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subparagraphs (E), (F), and (G)
of subsection (a)(4). Such report shall also include a description of
the efforts undertaken by the Department of Justice to encourage agency
compliance with this section.''.
SEC. 11. REFERENCE MATERIALS AND GUIDES.
Section 552 of title 5, United States Code, is further amended by
adding after subsection (f) the following new subsection:
``(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for requesting
records or information from the agency, including--
``(1) an index of all major information systems of the agency;
``(2) a description of major information and record locator systems
maintained by the agency; and
``(3) a handbook for obtaining various types and categories of
public information from the agency pursuant to chapter 35 of title 44,
and under this section.''.
SEC. 12. EFFECTIVE DATE.
(a) In General.--Except as provided in subsection (b), this Act shall
take effect 180 days after the date of the enactment of this Act.
(b) Provisions Effective on Enactment.--Sections 7 and 8 shall take
effect one year after the date of the enactment of this Act.
I. BACKGROUND AND NEED FOR THE LEGISLATION
A. The Freedom of Information Act
With the enactment of the Freedom of Information Act (``FOIA'' or the
``Act'') thirty years ago, the Federal Government established a policy
of openness toward information within its control. The FOIA establishes
a presumptive right for the public to obtain identifiable, existing
records of Federal departments and agencies. Any member of the public
may use the FOIA to request access to government information. Requestors
do not have to show a need or reason for seeking information. Requestors
use the FOIA for a variety of purposes. Private vendors with the
government, for example, use the FOIA requests as part of the
procurement process for competitive purposes. Journalists use the FOIA
to obtain details about government actions to broader dissemination to
the public. Individual citizens use it to learn more about government
activities that have affected them personally.
The burden of proof for withholding requested material rests with the
department or agency that seeks to deny the request. Agencies may deny
access to records, or portions of records which fall within an
enumerated exemption. Agency employees responsible for responding to
requests screen requested records to remove or redact exempted material
from release. The nine exemption categories are listed below:
Information that is classified for national defense or foreign
policy purposes;
Information that relates solely to an agency's internal personnel
rules and practices;
Information that has been clearly exempted under other laws.
Confidential business information, such as trade secrets;
Internal government deliberative communications about a decision
before an announcement;
Information about an individual that, if disclosed, would cause a
clearly unwarranted invasion of personal privacy;
Law enforcement records, particularly of ongoing investigations;
Information concerning bank supervision;
Geological and geophysical information, such as maps.
The Office of Information and Regulatory Affairs within the Office of
Management and Budget exercises under various statutes, including the
Paperwork Reduction Act, 1
broad authority for coordinating and administering various aspects of
government-wide information policy. The Department of Justice, in turn,
provides policy guidance and oversees the agencies' compliance with
FOIA.
\1\The Paperwork Reduction Act consists of (P.L. 96 511, 94 Stat. 2812)
as amended by the Paperwork Reduction Act of 1986 (section 101 (m)
[Title VIII, Part A] of P.L. 99 500 and P.L. 99 591, 100 Stat. 1783) and
The Paperwork Reduction Act of 1995 (P.L. 104 13, 109 Stat. 163). The
Paperwork Reduction Act is codified at Chapter 35 of Title 44 of the
United States Code.
Individual departments and agencies generally have established
specific offices for processing FOIA requests. Nevertheless, lack of
sufficient agency resources has constrained the effectiveness of the
FOIA. At some agencies failure to allocate sufficient staff to comply
with the Act has resulted in lengthy backlogs measured in years. Efforts
at improving FOIA response time have centered on better prioritization
of requests and more efficient administrative practices.
FOIA access to unpublished agency records has resulted in many
disclosures of waste and fraud in the Federal Government. The Act
reflects the view that the full disclosure of information to the public
about government wrongdoing and other mistakes will ultimately generate
appropriate corrective responses. Such revelations may have a certain
degree of preventive effect, prompting a higher degree of probity and
conscientiousness in the performance of government operations. Exposures
resulting from FOIA disclosures, and the reactions they produce, are
critical to maintaining an open and free society.
B. The Evolution of the Freedom of Information Act
Initially enacted in 1966, the Act resulted from years of
congressional examination of executive department and agency impediments
to public access to information. 2
The prevailing public access law, Section 3 of the Administrative
Procedure Act of 1946, was being interpreted to restrict information
availability. 3
This so-called ``housekeeping'' law originated from the earliest days
of the Republic. It directed department heads to prescribe regulations
for the custody, use, and preservation of department records, papers and
property. 4
\2\House Committee on Government Operations, Availability of Information
From Federal Departments and Agencies: Hearings before the House
Committee on Government Operations, 84th-86th Congresses.
\3\60 Stat. 237 at 238. Francis E. Rourke. ``Secrecy and Publicity:
Dilemmas of Democracy.'' Baltimore: The Johns Hopkins Press, 1961, pp.
57 58.
\4\See 1 Stat. 28, 49, 65; these and similar provisions were
consolidated in the Revised Statutes of the United States (1878) at
Section 161, which is presently located in the United States Code at 5
U.S.C. 301 (1994). Rourke, ``Secrecy and Publicity: Dilemmas of
Democracy,'' pp. 47 49.
The origins of the original Freedom of Information Act can be traced
to a predecessor subcommittee to the House Subcommittee on Government
Management, Information and Technology. In 1955 the House Committee on
Government Operations established the Special Subcommittee on Government
Information. In chartering the Subcommittee, full Committee Chairman
William L. Dawson directed it:
To study the operation of agencies and officials in
the executive branch of the Government at all levels with a
view to determining the efficiency and economy of such
operation in the field of operation. * * * With this purpose
your subcommittee will ascertain the trend in the availability
of Government information and will scrutinize the information
practices of executive agencies and officials in the light of
their propriety, fitness and legality. 5
\5\House Committee on Government Operations, Amending Section 552 of
Title 5, United States Code, Known as the Freedom of Information Act,
93rd Congress, 2nd Session, House Report 93 876, p. 3.
The efforts of this subcommittee expanded the people's right to know.
Congress, in 1958, amended this ``housekeeping'' law to state that it
``does not authorize withholding information from the public or limiting
the availability of records to the public.'' 6
672 Stat. 547. Rourke, ``Secrecy and Publicity,'' pp. 59 60.
The author of one of the earliest and most thorough studies of this
protective bulwark stated the resulting dilemma dramatically and
concisely:
Public business is the public's business. The
people have the right to know. Freedom of information is their
just heritage. Without that the citizens of a democracy have
but changed their kings. 7
7Harold L. Cross. ``The People's Right to Know.'' New York City:
Columbia University Press, 1953, p. xiii.
The Freedom of Information Act evolved from the 1958 Administrative
Procedure Act disclosure requirement. An early attempt at a freedom of
information bill was considered and approved in the Senate during the
88th Congress. 8
However, the House took no action on such a measure before sine die
adjournment. Again, in the 89th Congress, the Senate returned to the
measure and adopted a revised and refined version of the earlier bill on
October 23, 1965. The House subsequently passed this bill on June 20,
1966.
8For the legislative history of the Freedom of Information Act of 1966,
see Senate Committee on the Judiciary, Freedom of Information Act Source
Book: Legislative Materials, Cases, Articles, S. Doc. No. 93 82, 93rd
Congress, 2d Session (1974).
Signing the FOIA into law on July 4, 1966, 9
President Johnson declared:
980 Stat. 250.
This legislation springs from one of our most
essential principles: A democracy works best when the people
have all the information that the security of the Nation
permits. No one should be able to pull curtains of secrecy
around decisions which can be revealed without injury to the
public interest. 10
10Public Papers of the Presidents of the United States: Lyndon B.
Johnson, 1966. Book 2. Washington, U. S. Govt. Print. Off., 1967, p.
699.
The FOIA became operative on July 4, 1967. It became codified as
section 552 of Title 5, United States Code. 11
115 U.S.C. 552 (1970).
During House and Senate committee consideration of legislation
leading to the FOIA, no executive department or agency representative
had testified in support of the proposals. Subsequent congressional
oversight of the Act revealed that this distaste for the legislation
transformed into hostility toward the statute during its initial
implementation. A 1972 report by the House Committee on Government
Operations characterized the situation as follows:
The efficient operation of the Freedom of
Information Act has been hindered by five years of
foot-dragging by the Federal bureaucracy. The widespread
reluctance of the bureaucracy to honor the public's legal
right to know has been obvious in parts of two
administrations. This reluctance has been overcome in a few
agencies by continued pressure from appointed officials at the
policy making level and in some other agencies through public
hearings and other oversight activities by the Congress. 12
12House Committee on Government Operations, Administration of the
Freedom of Information Act, House Report 92 1419, 92nd Congress, 2d
Session, 1972, pp. 8 9.
Officials sometimes argue that the FOIA was not a primary program of
a particular department and agency. This contention, however, ignores
the importance of government information accessibility for the citizens
of a democracy. Unfortunately, over time administration of the FOIA has
suffered from a lack of resources. Consequently many requests
languished, awaiting a response, because agencies failed to provide
necessary resources. FOIA has also suffered from weak administrative
support in its implementation.
Amendments strengthening FOIA were introduced in the House in early
1973 and legislative hearings were held in May of that year. No
department or agency witness expressed any support for the proposed
amendments. By the end of 1973, the House bill was refined, reported
from the House Government Operations Committee in February 1974, and
adopted by the House in March. Shortly thereafter, in May, a Senate
counterpart bill was reported, strengthened during floor debate, and
adopted. 13
13For the legislative history of the 1974 amendments to the Freedom of
Information Act, see House Committee on Government Operations and Senate
Committee on the Judiciary. Freedom of Information Act and Amendments of
1974 (P.L. 93 502). Source Book: Legislative History, Texts, and Other
Documents. Joint Committee print, 94th Congress, 1st Session, 1975.
During the twenty months that the FOIA amendments moved through the
two Houses of Congress, various congressional committees and a Special
Prosecutor were engaged in pursuing inquiries related to the Watergate
scandal. Against this backdrop of concern about the accountability of
public officials, the availability of Government information became an
important issue for Congress and the public.
Though the FOIA amendments of 1974 were not developed in response to
the Watergate incident, they gained legislative momentum as
congressional investigators probed Watergate and related matters.
President Nixon resigned shortly after the conferees on the FOIA
amendments began their deliberations in August. The new President,
Gerald Ford, sent a letter to the conferees expressing his reservations
about some specific amendments. After resolving their differences, the
conferees placed their report before their respective chambers. Approval
by the Senate came on October 1, 1974 and the House voted acceptance on
October 7, 1974.
On October 17, 1974 the President vetoed and characterized the
legislation as ``unconstitutional and unworkable.'' 14
On November 20, 1974 the House voted 371 31 to reject the presidential
veto. The next day, the Senate completed action on the legislation,
voting 65 27 to override the President's objections. The amendments
became law, taking effect on February 19, 1975. 15
14``Public Papers of the Presidents of the United States: Gerald R.
Ford, 1974.'' Washington, U. S. Govt. Print. Off., 1975, pp. 374 376.
1588 Stat. 1561.
Perhaps the most significant change under the FOIA amendments was
that requestors needed only to ``reasonably describe'' the requested
records. Additionally, agencies were directed to furnish documents
without charge or at a reduced cost if it determined that such an action
would be in the public interest. Courts could conduct an in camera
review of contested materials to decide if any materials were being
properly withheld. Agencies received specific response deadlines for
agency action. The Federal courts were given authority to award attorney
fees and litigation costs where a private complainant had
``substantially prevailed'' in seeking records from an agency; they were
authorized to take notice of the ``arbitrary and capricious''
withholding of documents. In addition the amendments expanded and
clarified the definition of agencies covered by the FOIA. They also
specified that records containing segregable portions of withholdable
information be released with the necessary deletions.
Additionally the exemptions in the Act concerning classified
information and law enforcement materials were narrowed and made more
specific. The amendments, and their manner of adoption, also displayed
Congress's strong support for and commitment to the FOIA and its proper
administration.
In 1976, when adopting another open government law--the Government in
the Sunshine Act--in fulfillment of the people's right to know, Congress
again amended the FOIA. 16
This change was a limited one, prompted by a 1975 Supreme Court case.
The court's decision expanded the interpretation of the types of
information covered by the third exemption of the FOIA. 17
Consequently, the FOIA amendment modified the exemption covering
information specifically excepted from disclosure by other statutes. The
amendment mandated that protection only applied if the statute ``left no
discretion on the issue,'' or referred to particular types of
information to be withheld. 18
16For the legislative history of the Government in the Sunshine Act and
its amendment to the FOIA, see Senate Committee on Government Operations
and House Committee on Government Operations. Government in the Sunshine
Act'--S. 5 (Public Law 94 409). Source Book: Legislative History, Texts,
and Other Documents. Joint committee print, 94th Congress, 2d Session,
1976.
17Administrator, Federal Aviation Administration v. Robertson , 422
U.S. 255 (1975).
1890 Stat. 1241, at 1247.
Further Senate FOIA amendment initiatives ended unsuccessfully during
the 97th and 98th Congresses. In the closing days of the 99th Congress,
however, during Senate debate of an omnibus anti-drug abuse bill, FOIA
amendments were attached to the measure. 19
They strengthened the protection for law enforcement records and
created new fee and fee waiver arrangements. They set a structure of
three fee categories for FOIA users. The fees covered commercial users;
scholars, scientific researchers, journalists; and all other requestors.
However, fees could not be charged if the costs of routine collection
were likely to be equal or greater than the amount of the fee itself.
Also, the first two hours of search time or the first 100 pages of
document duplication were free, except for commercial users. In
addition, if the disclosure of the information was in the public
interest because it was likely to contribute significantly to public
understanding of the operations or activities of the Government and
otherwise was not primarily in the commercial interest of the requestor,
there would be a reduced fee or no charge. These amendments remained in
the anti-drug abuse bill signed by the President on October 27, 1986. 20
19See Harold C. Relyea. ``U.S. Freedom of Information Act
Reforms--1986,'' 9 Journal of Media Law and Practice--12 (March 1988).
20100 Stat. 3207, at 3207 48.
The FOIA has become a popular tool used by various quarters of
American society--the press, business, scholars, attorneys, consumers,
and environmentalists, among others. Recent agency annual reports on the
administration of the Act, covering 1992 operations, show an annual
volume of almost 600,000 requests. The response to a request may involve
a few sheets of paper, several linear feet of records, or, increasingly,
information in an electronic format.
C. The Effect of Electronic Records
Today, the FOIA faces a new challenge. The volume of Federal agency
records created and retained in electronic formats is growing at a rapid
pace. Agency records are now created not just on pieces of paper and
placed in filing cabinets. Personal computers and digital storage media,
such as CD ROMs (compact disk read-only memory), are becoming more
commonplace at Federal agencies. Information technology makes the
management of the information collected, stored, and used by the
Government more efficient.
When the FOIA was enacted agency records were primarily produced on
paper. FOIA's efficient operation requires that its provisions make
clear that the form or format of an agency record constitutes no
impediment to public accessibility. Furthermore, the information
technology currently being used by executive departments and agencies
should be used in promoting greater efficiency in responding to FOIA
requests. This objective includes using technology to let requestors
obtain information in the form most useful to them. Existing
technologies for searching electronic records can often review materials
more quickly than is possible via a paper review. Harnessing these tools
for FOIA can enhance the operation of the Act.
The public is increasingly using networked computers and broadly
accessible data networks such as the Internet. Agencies need to fulfill
their responsibilities under the FOIA in a manner that keeps pace with
these developments. An underlying goal of H.R. 3802 is to encourage
on-line access to Government information available under the FOIA,
including requests ordinarily made pursuant to section 552(a)(3). As a
result, the public can more directly obtain and use Government
information. This can result in fewer FOIA requests, thus enabling FOIA
resources to be more efficiently used in responding to complex requests.
H.R. 3802, the Electronic Freedom of Information Amendments Act of 1996,
amends the FOIA to address these considerations and other information
access issues prompted by the electronic information phenomenon.
In 1955, when congressional hearings laying the groundwork for the
FOIA were held on the availability of information from Federal
departments and agencies, the Federal Government had 45 computers. Ten
years later, when the Senate passed its version of the FOIA, the
inventory had risen to 1,826 computers. Only five years elapsed before
the Government's holdings jumped to 5,277 computers, resulting in
hundreds of thousands of automated files and many data banks of agency
information. 21
21Alan F. Westin and Michael A. Baker. ``Data Banks in a Free
Society''. New York: Quadrangle Books, 1972, pp. 29 30.
In succeeding years, the proportion of agency records produced and
retained in electronic formats has grown at an expansive rate. The
Government's use of personal computers and digital storage media, such
as CD ROMs, also became more widespread. 22
In fiscal year 1994, the Federal Government used almost 25,250 small
computers (costing $10,000 to $100,000 each), 8,500 medium computers
(costing $100,000 to $1,000,000 each), and 890 large computers (costing
more than $1,000,000 each). Personal computers have proliferated
throughout the Federal executive establishment. In a related
development, during the past three years, more than 800 Federal sites
have been set up on the World Wide Web. 23
22See House Committee on Government Operations. Electronic Collection
and Dissemination of Information by Federal Agencies: A Policy Overview,
H.R. Rep. No. 99 560, 99th Congress, 2d Session. (1986); U. S. Office of
Technology Assessment. ``Informing the Nation: Federal Information
Dissemination in an Electronic Age''. Washington, D. C., October 1988.
23Lisa Corbin, ``Cyberocracy,'' Government Executive. p. 28 (January
1996).
The FOIA must stay abreast of these developments in order to ensure
continued public access to Government information. The FOIA must promote
uniformity among agencies, reduce uncertainty among FOIA requestors, and
avoid potential disagreements between the two. These are the central
purposes of H.R. 3802, the Electronic Freedom of Information Amendments
of 1996.
Many evolving technological innovations promote the greater
availability of Government information through the electronic
information ``superhighway.'' 24
For example, the 104th Congress created the ``Thomas'' on-line service
of the Library of Congress, providing access to many legislative
resources, including the text of legislation and the Congressional
Record. Individual agencies have published data on the World Wide Web
through home pages. Agencies, such as the Government Printing Office,
have broadly expanded electronic access to government information at
other agencies. Computer links let users reach information maintained by
other agencies in a matter of key strokes.
24See U. S. Information Infrastructure Task Force, ``The National
Information Infrastructure: Agenda for Action''. Washington, D. C.,
September 15, 1993; U.S. Information Infrastructure Task Force's
Committee on Applications and Technology. ``Putting the Information
Infrastructure to Work''. Washington, D.C., May 1994; U.S. Information
Infrastructure Task Force's Committee on Applications and Technology,
``The Information Infrastructure: Reaching Society's Goals''.
Washington, D.C., September 1994; U.S. Advisory Council on the National
Infrastructure. ``A Nation of Opportunity: Realizing the Promise of the
Information Superhighway'', Washington, D.C., January 1996.
The Paperwork Reduction Act of 1995 reflects congressional intent to
encourage wider use of electronic distribution as an integral part of
the management of Government information. It acknowledges that private,
non-governmental information providers perform an essential public
service in expanding the availability of information to the public.
Government agencies cannot be expected to match the dynamism and
creativity of information providers in transforming Government
information into valuable consumer information products, especially
given the robust nature of information technology developments.
Consequently, nongovernment information distributors play a valuable
role in advancing information policy objectives.
The FOIA, by contrast, provides access to specifically requested
Government information sought at the initiative of a requestor. The
Paperwork Reduction Act provides the administrative framework for
agencies to more affirmatively disclose information to the public. With
more affirmative disclosure, agencies can better use their resources.
Making more information available to the public can divert simple
requests away from FOIA. This will enable agencies to more efficiently
use their limited resources to complete requests on time.
D. Processing of Freedom of Information Requests
A principal constraint to the full effectiveness of the FOIA has been
the lack of adequate agency resources. As a result, many agencies have
failed to process FOIA requests within the deadlines required by the
law. These delays in responding to FOIA requests continue as one of the
most significant FOIA problems.
A 1986 House report cited inadequate resources, unnecessary
bureaucratic complexity, political interference with the disclosure
process, poor organization of agency records, and a lack of commitment
by agencies to disclosure as reasons for the delays. 25
These delays have persisted.
25House Committee on Government Operations. Freedom of Information Act
Amendment of 1986. pp. 11 12, House Report 9 832, 99th Cong. 2d.
Session, 1986.
In a memorandum dated October 4, 1993, to all heads of departments
and agencies, President Clinton stated:
The use of the Act by ordinary citizens is not
complicated, nor should it be. The existence of unnecessary
bureaucratic hurdles has no place in its implementation. I
therefore call upon all Federal departments and agencies to
renew their commitment to the Freedom of Information Act, and
to its underlying principles of government oneness, and to its
sound administration. This is the appropriate time for all
agencies to take a fresh look at their administration of the
Act, to reduce backlogs of Freedom of Information requests.* *
* 26
26Clinton, William J., President of the United States, Memorandum for
Heads of Departments and Agencies, October 4, 1993, ``The Freedom of
Information Act.''
In an October 1993 memorandum that accompanied the President's
memorandum, Attorney General Janet Reno acknowledged the delay problem
and the cause for FOIA backlogs, stating:
Many Federal departments and agencies are often
unable to meet the Act's ten-day time limit for processing
FOIA requests, and some agencies--especially those
experiencing a high-volume of demands for sensitive
records--maintain large FOIA backlogs greatly exceeding the
mandated deadlines. The reasons for this may vary, but
principally it is a matter of limited resources for the heavy
workload. This is a serious problem--one of growing concern
and frustration to both FOIA requesters and Congress, and to
agency FOIA officers as well. 27
27Reno, Janet, Attorney General, Memorandum for Heads of Departments
and Agencies, October 4, 1993, ``The Freedom of Information Act.'
Out of a total of 75 agencies responding to a Department of Justice
request for backlog information in February 1994, only 28 agencies
reported no backlog.
In Open America v. Watergate Special Prosecution Force, 28
the District of Columbia Circuit Court of Appeals held that exceptional
circumstances exist when the agency can show it has inadequate resources
to process FOIA requests within statutory time limits. Also, an agency
may show that it is exercising due diligence by processing requests on a
``first-in, first-out'' basis. Relying upon overly broad dictum in this
case, agencies have employed the exceptional circumstances-due diligence
exception to obtain judicial approval for lengthy delays whenever they
have a backlog.
28547 F.2d 605 (D.C. Cir. 1976)
Backlogs of requests for records under the FOIA should not give
agencies an automatic excuse to ignore the time limits. The development
of agency administrative processes to respond to specific types of
requests on an expedited basis and for encouraging agencies to cooperate
with requestors to frame more targeted requests is critical to using
agency FOIA resources in the most efficient manner possible.
II. LEGISLATIVE HEARINGS AND COMMITTEE ACTION
A. House Action
Representative Tate introduced H.R. 3802 on July 12, 1996, with
Chairman Horn, of the Subcommittee on Government Management, Information
and Technology; Representative Maloney, the ranking member; and
Representative Peterson, a member of the Subcommittee, as original
co-sponsors. The Subcommittee had previously held a legislative hearing
on June 14, 1996 on S. 1090, the bill's Senate counterpart.
H.R. 3802 was marked up on July 12, 1996, by the Subcommittee on
Government Management, Information Technology. No amendments were
offered and the legislation passed the Subcommittee unanimously by voice
vote.
Representative Maloney introduced H.R. 3885, concerning certain
reporting requirements, on July 24, 1996. Representative Tate, and
Chairman Horn supported the bill as original co-sponsors.
The House Committee on Government Reform and Oversight considered the
measure on July 25, 1996. Chairman Horn offered an amendment in the
nature of a substitute and Representative Maloney offered an amendment
to it reflecting the substance of H.R. 3885. Both were adopted
unanimously by voice vote. The bill was favorably reported unanimously
to the House of Representatives by voice vote without further amendment.
B. Senate Action
On November 7, 1991 Senator Patrick Leahy introduced S. 1040, a bill
to clarify the application of the FOIA to agency records in electronic
forms or formats. Senator Brown co-sponsored the bill. ``The Electronic
Freedom of Information Improvement Act of 1991'' was referred to the
Senate Committee on the Judiciary, and a hearing on it was held by the
Subcommittee on Technology and the Law on April 30, 1992.
Testifying before the Subcommittee was Steven R. Schlesinger,
Director, Office of Policy Development, Department of Justice,
accompanied by Daniel Metcalfe, Co-director, Office of Information and
Privacy, Department of Justice. The Subcommittee also received testimony
from a panel of witnesses. These included Peter Richard, Editor, USA
Today, appearing on behalf of the American Newspaper Publishers
Association, American Society of Newspaper Editors, Society of
Professional Journalists/Sigma Delta Chi, National Newspaper
Association, National Association of Broadcasters, Radio-Television News
Directors Association, and Reporters Committee for Freedom of the Press;
Scott Marshall, Director, Governmental Relations Department, American
Foundation for the Blind; Sybil McShane, Director of Library and
Information Services, Vermont State Department of Libraries; and Thomas
M. Susan, a practicing attorney with Ropes & Gray, appearing on behalf
of the American Bar Association. 29
The Subcommittee took no further action on S. 1940 before the final
adjournment of the 102d Congress.
29The Electronic Freedom of Information Improvement Act: Hearing before
the Subcommittee on Technology and the Law of the Committee on the
Judiciary, 102d Cong., 2d Sess. (1992).
Senator Leahy introduced a related bill, S. 1939, ``The Freedom of
Information Improvement Act of 1991,'' on November 7, 1991. This bill
contained amendments to the FOIA concerning matters other than agency
records in electronic forms or formats. S. 1939 was also referred to the
Senate Committee on the Judiciary, but no action was taken on it during
the 102d Congress.
Senator Leahy introduced a modified version of S. 1940 on November
22, 1993, as S. 1782, ``The Electronic Freedom of Information
Improvement Act of 1993,'' with Senator Brown as a cosponsor. It was
referred to the Committee on the Judiciary. Senator John Kerry of
Massachusetts co-sponsored the bill on April 11, 1994.
During 1994 and 1995, staff of the Subcommittee on Technology and the
Law conferred with representatives of the Office of Management and
Budget, the Department of Justice, FOIA officers from various Federal
agencies, and interest groups using the FOIA concerning further
development of the provisions of S. 1782. Because of these and other
consultations, a revised version of S. 1782 was unanimously approved by
the Subcommittee on Technology and the Law on June 29, 1994, and by the
Committee on the Judiciary on August 11, 1994. The bill then passed the
Senate by unanimous consent on August 25, 1994. No further action on the
bill was taken in the 103rd Congress.
On July 28, 1995, Senators Leahy, Brown, and Kerry introduced S.
1090, ``The Electronic Freedom of Information Improvement Act of 1995.''
It was modified from the version passed by the Senate in the 103rd
Congress. S. 1090 was referred to the Committee on the Judiciary and, on
October 6, 1995, to the Subcommittee on Terrorism, Technology and
Government Information. The Subcommittee favorably reported the bill on
March 14, 1996. Following consultation with the Office of Management and
Budget, revisions were made to S. 1090 in the form of a substitute
amendment.
On April 25, 1996, by voice vote, the Committee on the Judiciary
unanimously ordered the Committee substitute to S. 1090 favorably
reported.
III. COMMITTEE HEARINGS AND WRITTEN TESTIMONY
On June 13 and 14, 1996, the Subcommittee on Government Management,
Information and Technology of the Committee on Government Reform and
Oversight, held hearings on Federal information policy. The first day of
hearings was devoted to oversight of information policy. The second day
was a legislative hearing that considered related amendments to the
Freedom of Information Act: H.R. 1281; ``The War Crimes Disclosure
Act''; and S. 1090, ``The Electronic Freedom of Information Improvement
Act of 1995.''
In his opening statement, Chairman Horn expressed his frustration at
learning that the Federal Bureau of Investigation has a four-year
backlog for responding to FOIA requests. In noting the significance that
the Committee attaches to the Freedom of Information Act, he observed
that the first report issued by the House Committee on Government Reform
and Oversight had been an updated version of ``A Citizen's Guide on
Using the Freedom of Information and Privacy Act of 1974 to Request
Government Records.'' 30
30House Committee on Government Reform and Oversight, A Citizen's Guide
on Using the Freedom of Information Act and the Privacy Act of 1974 to
Request Government Records, House Report, 104-156, 1st Session, 1995.
The Subcommittee's ranking member, Representative Maloney noted the
interrelation between the Freedom of Information Act and the Paperwork
Reduction Act in establishing the presumption that all government
documents be available to the public. She noted that: ``Information
policy is the bedrock of an open and accessible government. The
Paperwork Reduction Act codifies one of the fundamental principles of
democracy--government information belongs to the public. Information
created by government officials and paid for by the public should be
available to the public at the lowest possible cost.''
Representative Tate commented that: ``Opening the work of the Federal
Government to the watchful and vigilant eyes of the American public is
an effort that both parties and the Administration should embrace
wholeheartedly.'' Representative Peterson observed that: ``One of the
biggest frustrations with the Freedom of Information Act is that
deadlines are rarely met.'' Representative Flanagan noted with
displeasure that citizens who requested their own FBI files could wait
years before receiving them in order to correct errors contained
therein.
The Subcommittee received testimony from Senator Patrick Leahy on S.
1090 during the June 13th oversight hearing. The Senator noted the role
that FOIA requests had in uncovering information about various
government actions. He noted that the law needed to be updated to
reflect the advancing use of information technology in government to
maintain records, adding ``access should be the same whether they are on
a piece of paper or a computer hard drive.'' The Senator also criticized
the failure of agencies to comply with the statutory time limits for
responding to requests:
Long delays in access can mean no access at all.
The current time limits in the FOIA are a joke. Few agencies
actually respond to FOIA requests within the 10-day limit
required by law. Such routine failure to comply with the
statutory time limits is bad for morale in the agencies and
breeds contempt by citizens who expect government officials to
abide by, not routinely break, the law.
Also testifying at the June 13th hearing were Ms. Roslyn A. Mazer,
Deputy Assistant Attorney General, Office of Policy Development,
Department of Justice; Mr. Kevin O'Brien, Section Chief, Freedom of
Information/Privacy Acts Section, Federal Bureau of Investigation, and
Mr. Anthony H. Passarella, Director, Directorate for Freedom of
Information and Security Review, Office of the Assistant Secretary of
Defense (Public Affairs). These three witnesses explained how their
agencies processed public requests for information under the Freedom of
Information Act and related statutes.
Four representatives of the ``requestor'' community related their
experiences in seeking government information: Ms. Eileen Welsom, on
behalf of Society of Professional Journalists, American Society of
Newspaper Editors, and the Newspaper Association of America; Mr. Larry
Klayman, Chairman, Judicial Watch, Inc., Ms. Jane E. Kirtley, Executive
Director, The Reporters Committee for the Freedom of the Press and Mr.
Byron York, reporter, The American Spectator. Each drew upon their
professional experiences in recounting difficulties experienced in
obtaining information on time. They noted that the Federal Bureau of
Investigation, in particular, failed to respond to FOIA requests on
time.
Ms. Kirtley expressed concern that S. 1090 seemed to require that to
be a candidate for expedited access, a news story had to be ``already
the subject of fervent media attention.'' She suggested that agencies
ought to speed up access to records for the media ``whenever records are
requested that would enlighten the public on matters where public
concern is strong.''
Mr. Klayman noted that agencies ought to be penalized when they fail
to comply with the law, such as applying criminal penalties for willful
failure to abide by the requirements of the FOIA and related laws. He
proposed the awarding of attorney fees and costs to successful FOIA
plaintiffs be made mandatory, rather than discretionary.
At the June 14th hearing, the Subcommittee heard testimony from Mr.
Robert Gellman, an attorney and a privacy and information policy
consultant. Mr. Gellman had previously been chief counsel in the 103rd
Congress for the congressional predecessor to the Subcommittee on
Government Management, Information and Technology and has written
extensively on FOIA issues. He was critical of the definitions used in
S. 1090. He criticized the standard used in S. 1090 that media receipt
of expedited access involve ``widespread media coverage'' as lacking any
clear meaning.
Mr. Gellman praised the principle in S.1090 requiring agencies to
respond to requestor format requests for electronic records, but
suggested that S. 1090 might go too far in allowing the requestor to
unreasonably require disclosure in seldom used formats. He further
suggested that a requirement that agencies identify redacted material on
electronic records should be subject to a standard of technical
feasibility. He criticized the Department of Justice for its handling of
FOIA litigation for agencies, stating that: ``the Department of Justice
defends unreasonable agency denials in court and will make an argument,
without regard to the purpose of FOIA or the policies of the President,
department litigators bear substantial responsibility for much of the
bad FOIA case law in recent years.''
Mr. Alan Adler, an attorney familiar with the experience of reporters
making FOIA requests, recounted the barriers that journalists face when
they request production of records in an electronic format. Based upon
his participation in the development of the Leahy bill, he discussed the
manner in which the drafters had addressed various administration
concerns. In recounting the evolution of Senator Leahy's initiatives
toward an electronic Freedom of Information bill, Mr. Adler stressed
that the legislation was intended to help agencies to reduce request
backlogs and to more effectively use scarce resources. He noted that the
legislation had evolved in response to agency concerns.
Mr. James Lucier, Director of Economic Research at Americans for Tax
Reform, testified in support of S. 1090. He observed that the public was
now more eager to obtain government information than it was when the
FOIA was first enacted in 1966. He suggested that increasing public
access to Government information through electronic means was essential
if the government were to approach the pace of private sector
developments. He argued that government needed to keep pace in its use
of communication technologies that made information about private
institutions more accessible. Lucier testified that Government needs to
meet the expectations for responsiveness that consumers insist upon from
private institutions.
IV. EXPLANATION OF THE BILL
A. Overview
The highlights of the Electronic Freedom of Information Amendments
include:
Electronic records.-- Records which are subject to the FOIA shall be
made available under the FOIA when the records are maintained in
electronic format. This clarifies existing practice by making the
statute explicit on this point.
Format Requests.-- Requestors may request records in any form or
format in which the agency maintains those records. Agencies must make a
``reasonable effort'' to comply with requests to furnish records in
other formats.
Redaction.-- Agencies redacting electronic records (deleting part of
a record to prevent disclosure of material covered by an exemption) must
note the location and the extent of any deletions made on a record. This
provision, however, applies only if the agencies have the technology to
comply with it.
Expedited Processing.-- Certain categories of requestors would
receive priority treatment of their requests if failure to obtain
information in a timely manner would pose a significant harm. The first
category of requestors entitled to this special processing includes
those who could reasonably expect that delay could pose an imminent
threat to the life or physical safety of an individual. The second
category includes requests, made by a person primarily engaged in the
dissemination of information to the public, and involving compelling
urgency to inform the public.
Multitrack processing.-- Agencies will be able to establish
processes for processing requests of various sizes on different tracks.
Because of this procedure, larger numbers of requests for smaller
amounts of material will be completed more quickly. Requestors will also
have an incentive to frame narrower requests.
Agency Backlogs.-- Agencies can no longer delay responding to FOIA
requests because of ``exceptional circumstances'' simply as a result
from a predictable agency request workload. This strengthens the
requirement that agencies respond to requests on time.
Deadlines.-- The deadline for responding to FOIA is extended to 20
workdays from the current 10 workday requirement for initial
determinations.
Reporting requirements.-- The legislation expands certain reporting
requirements, and requires agencies to make more information available
through electronic means.
B. Section by Section
Section 1. Short title
The Act should be cited as the ``Electronic Freedom of Information
Act Amendments of 1996.''
Section 2. Findings and purposes
The findings make clear that Congress enacted the FOIA to require
Federal agencies to make records available to the public through public
inspection and at the request of any person for any public or private
use. They further acknowledge the increase in the Government's use of
computers and encourages agencies to use new technology to enhance
public access to Government information.
Section 3. Application of requirements to electronic format information
The section explicitly states that a ``record'' under the FOIA
includes electronically stored information. This articulates the
existing general policy under the FOIA that all Government records are
subject to the Act, regardless of the form in which they are stored by
the agency. The Department of Justice agrees that computer database
records are agency records subject to the FOIA.\31\
The bill defines ``record'' to ``include any information that would be
an agency record subject to the requirements of this section if
maintained by an agency in any format, including an electronic format.''
\31\See ``Department of Justice Report on `Electronic Record' Issues
Under the Freedom of Information Act,'' Senate Hearing 102 1098, 102d
Cong., 2d Sess. P. 33, 1992.
This section clarifies the meaning of the term ``record'' and similar
terminology used in the FOIA. Several important points are worth making.
Breadth of Policy .--First, the FOIA usually uses the term
``record,'' but other terms are also used occasionally, including
``information'' and ``matter.'' The terms are used interchangeable. The
section makes clear a comprehensive policy that records in electronic
formats are agency records subject to the Act. The language of the
section should leave no doubt about the breadth of the policy. As noted
previously, a number of statutes set Federal Government information
policy. This bill is not intended to be dispositive of all aspects of
those policies. For example, matter not previously subject to FOIA when
maintained in a non-electronic format is not made subject to FOIA by
this bill.
Storage Media .--Second, the section clarifies that a record in
electronic format can be requested just like a record on paper or any
other format, and within enumerated exceptions, can potentially be fully
disclosed under the law. The format in which data is maintained is not
relevant under the FOIA. Computer tapes, computer disks, CD ROMs, and
all other digital or electronic media are records. Microfiche and
microforms are records. When other, yet-to-be invented technologies are
developed to store, maintain, produce, or otherwise record information,
these will be records as well. When determining whether information is
subject to the FOIA, the form or format in which it is maintained is not
relevant to the decision.
The requirements for the disclosure of information exist elsewhere in
the Act. No matter how it is preserved, information that passes the
threshold test of being an agency record, remains a record. This
provision should restrain agencies from evading the clear intent of the
FOIA by deeming some forms of data as not being agency records and not
subject to the law. The primary focus should always be on whether
information is subject to disclosure or is exempt, rather than the form
or format it is stored in. This provision, however, does not broaden the
concept of agency record. The information maintained on a computer is a
record, but the computer is not.
Rejected Definitions .--Third, the Committee rejects the definition
of record in the substitute to S. 90, as reported by the Senate
Committee on the Judiciary on April 25, 1996. The Senate bill had
incorporated a definition of record drawn from the Records Disposal Act.
32
3244 U.S.C. *3301 (1994).
A case in point comes from the decision in SDC Development Corp. v.
Mathews. 33
The decision has previously been sharply criticized by this Committee
and its holding is inconsistent with the policies expressed in this
legislation. 34
The Court found that an agency-created computer database of research
abstracts was not an agency record because it was library material. The
court used the library material exclusion in the Records Disposal Act as
an excuse to place these records beyond the reach of the FOIA. H.R. 3802
makes clear, contrary to SDC v. Mathews, that information an agency has
created and is directly or indirectly disseminating remains subject to
the FOIA in any of its forms or formats. 35
33542 F.2d 1116 (9th Cir. 1976).
34See House Committee on Government Operations, Electronic Collection
and Dissemination of Information by Federal Agencies: A Policy Overview,
99th Cong., 2d Sess. 32 36 (1986).
35A recent scholarly article examines the background and policy of the
Records Disposal Act and the FOIA. It provides a more extensive
discussion of the Court's misreading of the FOIA, the Records Disposal
Act and the Copyright Act. See Robert Gellman, Twin Evils: Government
Copyright and Copyright-Like Controls Over Government Information, 45
Syracuse Law Review 999, 1036 1046 (1995).
Section 4. Information made available in electronic format
and indexation of records
This section of the bill requires that materials, such as agency
opinions and policy statements, which an agency must ``make available
for public inspection and copying,'' pursuant to Section 552(a)(2), and
which are created on or after November 1, 1996, be made available by
computer telecommunications, and in hard copy, within one year after the
date of enactment. If an agency does not have the means established to
make these materials available on-line, then the information should be
made available in another electronic form, e.g., CD ROM or disc. The
bill would thus treat (a)(2) materials in the same manner as it treats
(a)(1) materials, which under the Government Printing Office Electronic
Information Access Enhancement Act of 1993 36
are required, via the Federal Register, to be made available on-line.
3644 U.S.C. 4101 (1993).
This section would also increase the information made available under
Section 552(a)(2). Specifically, agencies would be required to make
available for public inspection and copying, in the same manner as other
materials made available under Section 552(a)(2), copies of records
released in response to FOIA requests that the agency determines have
been or will likely be the subject of additional requests. In addition,
they would be required to make available a general index of these
previously-released records. By December 31, 1999, this index should be
made available by computer telecommunications. Since not all individuals
have access to computer networks or are near agency public reading
rooms, requestors would still be able to access previously-released FOIA
records through the normal FOIA process.
As a practical matter, this would mean that copies of
previously-released records on a popular topic, such as the
assassinations of public figures, would subsequently be treated as
(a)(2) materials, made available for public inspection and copying. This
would help to reduce the number of multiple FOIA requests for the same
records requiring separate agency responses. Likewise, the general index
would help requestors in determining which records have been the subject
of prior FOIA requests. By diverting some potential FOIA requests for
previously-released records with this index, agencies can better use
their FOIA resources to fulfill new requests.
This section also makes clear that to prevent a clearly unwarranted
invasion of personal privacy, an agency may delete identifying details
when it makes available or publishes the index and copies of
previously-released records.
Finally, this section would require an agency to indicate the extent
of any deletion from the previously-released records. This provision is
consistent with the ``Computer Redaction'' section of the bill. Both
provisions similarly temper this requirement by giving agencies the
flexibility to show that marking the place on the record where the
deletion was made was not technically feasible. Agencies need not reveal
information about deletions if such disclosure would harm an interest
protected by an exemption.
Section 5. Honoring form or format requests
This section requires agencies to help requestors by providing
information in the form requested, including requests for the electronic
form of records, if the agency can readily reproduce it in that form.
The section would overrule Dismukes v. Department of the Interior, which
held that an agency ``has no obligation under the FOIA to accommodate
plaintiff's preference [but] need only provide responsive, nonexempt
information in a reasonably accessible form.'' 37
37603 F. Supp. 760, 763 (D.D.C. 1984)
This section also requires agencies to make reasonable efforts to
search for records kept in an electronic format. An unreasonable effort
would significantly interfere with the operations of the agency or the
agency's use of its computers. Electronic searches should not result in
any greater expenditure of agency resources than would have occurred
with a conventional paper-based search for documents.
The bill defines ``search'' as a ``review, manually or by automated
means,'' of ``agency records for the purpose of locating those records
responsive to a request.'' Under the FOIA, an agency need not create
documents that do not exist. Computer records found in a database rather
than in a file cabinet may require the application of codes or some form
of programming to retrieve the information. Under the definition of
``search'' in the bill, the review of computerized records would not
amount to the creation of records. Otherwise, it would be virtually
impossible to get records maintained completely in an electronic format,
like computer database information, because some manipulation of the
information likely would be necessary to search the records.
Current law provides that most requestors receive the first two hours
of search time for free. Ten years ago, computer time was expensive and
carefully metered. Today, computer time is generally no longer a scarce
resource. Except in unusual cases, the cost of computer time should not
be a factor in calculating the two free hours of search time. Often,
searching by computer will reduce costs because computer searches are
generally faster, more thorough and more accurate, than manual searches.
In those unusual cases, where the cost of conducting a computerized
search significantly detracts from the agencies'' ordinary operations,
no more than the dollar equivalent of two hours manual search time shall
be allowed for two hours free search time. For any searches conducted
beyond the first two hours, an agency shall only charge the direct costs
of conducting such searches.
Section 6. Standard for judicial review
Section 5 requires a court to accord substantial weight to an
agency's determination as to both the technical feasibility of redacting
non-releasable material at the place on the record where the deletion
was made, under paragraphs (2)(C) and subsection (b), as amended by this
Act, and the reproducibility of the requested form or format of records,
under paragraph (3)(B), as amended by this Act. This deference is
warranted because agencies are the most familiar with the availability
of their own technical resources to process, redact, and reproduce
records.
This section does not affect the extent of judicial deference that a
court may or may not extend to an agency on any other matter. There is
no intent with this provision, either expressly or by implication, to
affect the deference or weight which a court may extend to an agency
determination or an agency affidavit on any other matter. The provision
applies narrowly to agency determinations with regard to technical
feasibility.
Section 7. Ensuring timely response to requests
The bill addresses the single most frequent complaint about the
operation of the FOIA: agency delays in responding to FOIA requests.
This section encourages agencies to employ better records management
systems and to set priorities for using their FOIA resources.
In underscoring the requirement that agencies respond to requests in
a timely manner, the Committee does not intend to weaken any interests
protected by the FOIA exemptions. Agencies processing some requests may
need additional time to adequately review requested material to protect
those exemption interests. For example, processing some requests may
require additional time in order to properly screen material against the
inadvertent disclosure of material covered by the national security
exemption.
Multitrack First-In First-Out Processing .--An agency commitment to
process requests on a first-in, first-out basis has been held to satisfy
the requirement that an agency exercise due diligence in dealing with
backlogs of FOIA requests. Processing requests solely on a FIFO basis,
however, may result in lengthy delays for simple requests. The prior
receipt and processing of complex requests delays other requests,
increasing agency backlogs. The bill would permit agencies to promulgate
regulations starting multitrack processing systems, and makes clear that
agencies should exercise due diligence within each track. Agencies would
also be required to give requestors the opportunity to limit the scope
of their requests to qualify for processing under a faster track.
Unusual Circumstances .--The FOIA currently permits an agency in
``unusual circumstances'' to extend for a maximum of ten working days
the statutory time limit for responding to a FOIA request, upon written
notice to the requestor setting forth the reason for such extension. The
FOIA enumerates various reasons for such an extension. These reasons
include the need to search for and collect requested records from
multiple offices, the volume of records requested, and the need for
consultation with other components within the agency.
An extra ten days may still provide an insufficient time for an
agency to respond to unusually burdensome FOIA requests. The bill
provides a mechanism to deal with such requests, which an agency would
not be able to process even with an extra ten days. For such requests,
the bill requires an agency to inform the requestor that the request
cannot be processed within the statutory time limits and provide an
opportunity for the requestor to limit the scope of the request so that
it may be processed within statutory time limits, and/or arrange with
the agency a negotiated deadline for processing the request. In the
event that the requestor refuses to reasonably limit the request's scope
or agree upon a time frame and then seeks judicial review, that refusal
shall be considered as a factor in determining whether ``exceptional
circumstances'' exist under subparagraph (6)(C).
The Committee believes that the FOIA works best when requestors and
agencies work together to define and fulfill reasonable requests. When a
requestor can modify a request to make it easier for the agency to
process it, this benefits everyone. Still, there will be circumstances
in which a requestor and an agency cannot agree upon a modification that
will speed processing. As long as a request meets the legal standards of
the FOIA, each requestor has the right to frame his or her own request.
If an agency determines by an objective standard that a requestor has
unreasonably refused to modify a request, and a court concurs, then the
court shall consider that refusal when determining whether exceptional
circumstances exist.
However, if an agency determines on its own that a requestor has
unreasonably refused to modify a request, the agency may not otherwise
discriminate against that request or requestor. The request must be
processed as it would have been had no modification been sought. An
agency may not maintain a separate queue of ``unreasonable'' requests,
nor may an agency constantly move ``unreasonable'' requests to the back
of the queue. The Committee cautions agencies against using this limited
test of ``reasonableness'' in any way other than the narrow way that the
statute provides.
This provision does not relieve an agency of the responsibility of
making a diligent, good-faith effort to complete its review of an
initial request within the statutory time frame. An agency should seek
an extension beyond the additional ten days already provided in
``unusual circumstances'' only in rare instances. This procedure will
achieve one of the bill's important goals of encouraging a dialogue
between an agency and a requestor. This enhances the opportunity of a
requestor to obtain at least some of the records sought in a timely
fashion, and could alleviate some of the agency's burden in responding
to a request that could not otherwise be processed within the statutory
time limits. In addition, it could provide a requestor with some
certainty as to a time frame for processing his or her request.
Exceptional Circumstances. --The Freedom of Information Act provides
that, in ``exceptional circumstances,'' a court may extend the statutory
time limits for an agency to respond to a FOIA request, but does not
specify what those circumstances are. The bill would clarify that
routine, predictable agency backlogs for FOIA requests do not constitute
exceptional circumstances for purposes of the Act. This is consistent
with the holding in Open America v. Watergate Special Prosecution Force
, 38
where the court held that an unforeseen 3,000 percent increase in FOIA
requests in one year, which created a massive backlog in an agency with
insufficient resources to process those requests in a timely manner, can
constitute ``exceptional circumstances.'' Routine backlogs of requests
for records under the FOIA should not give agencies an automatic excuse
to ignore the time limits, since this provides a disincentive for
agencies to clear up those backlogs. Nevertheless, the bill makes clear
that a court shall consider an agency's efforts to reduce the number of
pending requests in determining whether exceptional circumstances exist.
Agencies may also make a showing of exceptional circumstances based on
the amount of material classified, based on the size and complexity of
other requests processed by the agency, based on the resources being
devoted to the declassification of classified material of public
interest, or based on the number of requests for records by courts or
administrative tribunals.
38547 F.2d 605 (D.C. Cir. 1976)
Aggregation of Requests. --The amendments reported out of Committee
had reflected an implicit assumption that agency regulations may permit
the aggregation of requests by the same requestor, or requestors that an
agency reasonably believes are acting in concert. An amendment
clarifying this point is anticipated to be considered on the House
floor.
Any aggregation must involve such clearly related material that
should be considered as a single request. Multiple requests involving
unrelated matters should not be aggregated. Existing agency procedures
regarding entitlement for fee waivers already permit agencies to
aggregate some multiple requests.
The purpose of this aggregation is to ensure the equitable treatment
of similarly situated requestors. Aggregation would depend upon the
factual circumstances of the requests, and particularly whether multiple
requests were being used primarily to obtain a procedural advantage over
other requests or requestors. Multiple or related requests could also be
aggregated with requests seeking similar information for the purposes of
negotiating the scope of the request and schedule. Where multiple
requestors have not acted in concert, such aggregation must be with
their consent. Applying the same principles, agencies should not
aggregate groups of requests simply to delay responding to requests. For
example, the filing of a subsequent request should not affect the
processing of an initial request by the same requestor.
Section 8. Time period for agency consideration of requests
The bill contains provisions designed to address the needs of both
agencies and requestors for more workable deadlines for processing FOIA
requests.
Expedited Processing. --The bill would require agencies to
promulgate regulations authorizing expedited access to requesters who
show a ``compelling need'' for a speedy response. The agency would be
required to decide whether to grant the request for expedited access
within ten days and then notify the requestor of the decision. The
requestor would bear the burden of showing that expedition is
appropriate. This section limits judicial review to the same record
before the agency on the determination of whether to grant expedited
access. Moreover, the section provides that the Federal courts will not
have jurisdiction to review an agency's denial of an expedited access
request if the agency has already provided a complete response to the
request for records. The latter provision does not limit a court's
ability to consider a requestor's application for the award of
attorney's fees.
A ``compelling need'' warranting faster FOIA processing would exist
in two categories of circumstances. In the first category, the failure
to obtain the records within an expedited deadline poses an imminent
threat to an individual's life or physical safety. The second category
requires a request by someone ``primarily engaged in disseminating
information'' and ``urgency to inform the public concerning actual or
alleged Federal government activity.'' The section also permits agencies
to elect to offer expedited processing in other circumstances.
The agencies are directed to establish rules and regulations for
processing requests for expedited access. By requiring a ``compelling
need,'' the expedited access procedure is intended to be limited to
circumstances in which a delay in obtaining information can reasonably
be foreseen to cause a significant adverse consequence to a recognized
interest.
Agency officials will be required to make factual and subjective
judgments about the circumstances cited by requestors to qualify them
for ``expedited processing.'' To do so the requestors will need to
explain in detail their basis for seeking such treatment. Agency
discretion should be exercised with fairness and diligence. The
credibility of a requestor who makes repeated claims for expedited
processing that are determined to lack factual foundation may be taken
into account when the same requestor makes additional requests.
The specified categories for compelling need are intended to be
narrowly applied. A threat to an individual's life or physical safety
qualifying for expedited access should be imminent. A reasonable person
should be able to appreciate that a delay in obtaining the requested
information poses such a threat. A person ``primarily engaged'' in the
dissemination of information should not include individuals who are
engaged only incidentally in the dissemination of information. The
standard of ``primarily engaged'' requires that information
dissemination be the main activity of the requestor, although it need
not be their sole occupation. A requestor who only incidentally engages
in information dissemination, besides other activities, would not
satisfy this requirement.
The standard of ``urgency to inform'' requires that the information
requested should pertain to a matter of a current exigency to the
American public and that a reasonable person might conclude that the
consequences of delaying a response to a FOIA request would compromise a
significant recognized interest. The public's right to know, although a
significant and important value, would not by itself be sufficient to
satisfy this standard.
Some agencies, such as the Department of Justice, already employ
expedited access procedures that, in some respects, have a broader
criteria for expedited access than contained in Section 7. 39
Agencies are given latitude to expand the criteria for expedited
access, ``in other cases determined by the agency.'' However, the
expedited processing procedure should be invoked in the circumstances as
enumerated in the bill. Given the finite resources generally available
for fulfilling FOIA requests, unduly generous use of the expedited
processing procedure would unfairly disadvantage other requestors who do
not qualify for its treatment.
39The Department of Justice's procedures for expedited access permits
it if a delay would result in the loss of substantial due process rights
and the information sought is not otherwise available in a timely
manner.
Expansion of Agency Response Time. --To help Federal agencies in
reducing their backlog of FOIA requests, the bill would double the time
limit for an agency to respond to FOIA requests from ten days to twenty
days. Attorney General Janet Reno has acknowledged the inability of most
Federal agencies to comply with the ten-day rule ``as a serious
problem'' stemming principally from ``too few resources in the face of
too heavy a workload.'' 40
40Reno, Janet, Attorney General, Memorandum for Heads of Departments
and Agencies, October 4, 1993, ``The Freedom of Information Act.''
Estimation of Matter Denied. --The bill would require agencies when
denying a FOIA request to try to estimate the volume of any denied
material and provide that estimate to the requestor, unless doing so
would harm an interest protected by an exemption.
Section 9. Computer redaction
The ease with which information on the computer may be redacted makes
the determination of whether a few words or 30 pages have been withheld
by an agency at times impossible. The amendments require agencies to
identify the location of deletions in the released portion of the record
and, where technologically feasible, to show the deletion at the place
on the record where they made the deletion, unless including that
indication would harm an interest protected by an exemption.
Section 10. Report to the Congress
This section would add to the information an agency is already
required to publish as part of its annual report. Specifically, agencies
would be required to publish in their annual reports information
regarding denials of requested records, appeals, a complete list of
statutes upon which the agency relies to withhold information under
Section 552 (b)(3), which exempts information that is specifically
exempted from disclosure by other statutes, the number of backlogged
FOIA requests, the number of days taken to process requests, the amount
of fees collected, and the number of staff devoted to processing FOIA
requests. The annual reports would be required to be made available to
the public, including by computer telecommunications means. If an agency
does not have the means established to make the report available
on-line, then the report should be made available in another electronic
form. The Attorney General is required to make each report available at
a single electronic access point, and advise the Chairmen and ranking
members of the Senate Committee on the Judiciary and the House Committee
on Government Reform and Oversight that such reports are available.
Congress has undertaken several recent initiatives focused on
streamlining government, making government processes more efficient, and
improving the availability of government information. The Government
Performance and Results Act requires a system of evaluation measures
based on performance and results. The Paperwork Reduction Act of 1995
reexamines government information in the light of recent technological
developments. Also, the Reports Elimination Act eliminates hundreds of
reports to Congress required in a statute. Other pending legislation is
likely to eliminate more than 200 statutorily required reports to
Congress from the General Accounting Office.
In the spirit of these reforms, the Committee considered the
reporting requirements of the Freedom of Information Act. Some new
requirements were added to make the reports more useful to the public
and to Congress. For the public, the FOIA reports should answer certain
common questions, such as: How does one request documents? How does the
Government respond to those requests, including an explanation of the
reasons for not honoring a request? And, how long does it usually take
for a request to be processed? For Congress, these reports should
furnish a view of the agency workload and any backlog. The reports
should identify the progress the agency is making toward eliminating
that backlog. They should report on the resources devoted to answering
FOIA requests, allowing for meaningful comparisons among agencies about
performance. Someone unfamiliar with the FOIA process should be able to
understand a report without resorting to reading the statute. Jargon
such as ``(b)(3) exemptions'' should be replaced with more
understandable language substituted. Guidance should be given to the
agencies so that all reports contain terms with identical meanings.
Besides revising the contents of the reports to make them more
useful, the Committee changed the timing and reporting period of the
reports. Both changes were done to reduce the burden on the agencies,
though it meant a delay in providing information and descriptive
language to the public and Congress. FOIA reports have previously
reported on a calendar year and have been due on March 1st of the
following year. This bill changes the reporting period to a fiscal year
to make it easier for agencies to compile the budget and staffing
information required. This bill also gives agencies more time to prepare
the reports from two to four months. Of course, agencies should strive
to make their reports available sooner. In addition, the Committee has
provided an additional two months to the Department of Justice to
coordinate electronic access to these reports.
This bill also requires the availability of all FOIA reports by
electronic means. The Committee anticipates that the Department of
Justice will establish a home page for reaching all agency reports
through a single site. Until a single site of electronic access is
available for all reports, the Committee expects the Attorney General
will forward to Congress print copies of all reports not available
electronically. Agencies that do not provide electronic access should
also make print reports available to the public, including distribution
to Depository Libraries.
In drafting this legislation, the Committee rewrote the entire
reporting section of the Freedom of Information Act. This was done to
make it easier for the public to understand the new reporting
requirements, without constant reference to existing law.
Three reporting requirements were added to aid the public and
Congress to understand the work flow in each agency. Beginning in 1998,
agencies will be required to report:
How many requests have not been resolved to the requestors'
satisfaction at the end of the reporting period? What is the median
number of days those appeals have been pending?
What is the number of requests received during the year, and the
number of requests processed during the year?
What is the median number of days taken to process requests of
different types? What is the volume of requests coming into the agency
annually, and the number of requests processed by the agency that year?
These requirements will give the public and Congress clear measures of
any backlog that exists. This will allow Congress to monitor progress in
responding to FOIA requests across time. It will help the public
understand how long it takes an agency to respond to a request.
The Committee has requested that agencies provide the median number
of days requests have been in the backlog queue, and the median number
of days necessary to complete the processing of requests. The Committee
elected to use medians as a statistical measure because of their
appropriateness when the measure being summarized does not have a normal
distribution, or when a few cases of extreme value would skew an
average. For example, a few requests for excessively large numbers of
documents could artificially inflate the average time taken to fill a
request. Of course, if agencies determine that the average time is a
better measure of their performance, they can include that in the report
along with the median. Medians are simple to calculate, simply requiring
a distribution of the number of days each request has been pending, and
do not increase the reporting burden on agencies. The Committee
appreciates that some agencies with decentralized FOIA operations may
have trouble in calculating a precise agency-wide median. In such
circumstances reasonable estimates may be used. Finally, this bill
requires that agencies report the number of staff assigned to processing
FOIA requests, and their budget for processing FOIA requests.
Much comment is made of the adequacy of agency resources to comply
with the statutory requirements of the FOIA. Effective future
congressional oversight of the FOIA requires more detailed information
about the level of resources that agencies devote to FOIA, the
effectiveness of their utilization and the level of resources that might
be required for agencies to fully comply with the FOIA. Agencies should
inform Congress of the additional resources needed to fully comply with
the FOIA. In the absence of such information on budget requests and
management initiatives, the complaint by agencies that Congress has
denied the resources necessary to comply with the statutory deadlines is
unsupportable.
The Committee has rewritten the FOIA reporting requirements to make
them more useful to the public and to Congress, and to make the
information in them more accessible. With those goals in mind, we expect
that the Department of Justice, in consultation with the Office of
Management and Budget, will provide guidelines to the agencies so that
all reports use common terminology and follow a similar format. The
Attorney General and the Director of the Office of Management and Budget
are required to develop reporting guidelines for the annual reports by
October 1, 1997.
Section 11. Reference materials and guides
This section requires agencies to make publicly available, upon
request, reference material or a guide for requesting records or
information from an agency. This guide would include an index and
description of all major information systems of an agency, and a
handbook for obtaining various types and categories of public
information from an agency.
The guide is intended to be a short and simple explanation for the
public of what the Freedom of Information Act is designed to do, and how
a member of the public can use it to access government records. Each
agency should explain in clear and simple language, the types of records
that can be obtained from the agency through FOIA requests, why some
records cannot, by law, be made available, and how the agency makes the
determination of whether or not a record can be released.
Each agency guide should explain how to make a FOIA request, and how
long a requestor can expect to wait for a reply from the agency. In
addition, the guide should explain the requestor's rights under the law
to appeal to the courts to rectify agency action. The guide should give
a brief history of recent litigation it has been involved in, and the
resolution of those cases. If an agency requires that certain requests,
such as applications for expedited access, be completed on agency forms,
then the forms should be part of the guide.
The guide is intended to supplement other information locator
systems, like the Government Information Locator System (GILS) called
for in the Paperwork Reduction Act of 1995. 41
Thus, the guide should reference those systems and explain how a
requestor can obtain more information about them. Of course, any agency
specific locator systems should be similarly referenced in the guide.
41The Paperwork Reduction Act consists of (P.L. 96 511, 94 Stat. 2812)
as amended by the Paperwork Reduction Act of 1986 (section 101(m) [Title
VIII, Part A] of P.L. 99 500 and P.L. 99 591, 100 Stat. 1783) and The
Paperwork Reduction Act of 1995 (P.L. 104 13, 109 Stat. 163). The
Paperwork Reduction Act is codified at Chapter 35 of Title 44 of the
United States Code.
It is expected that OMB will assist the agencies in assuring that all
guides follow a common format so that a requestor picking up guides from
two or more agencies can easily find the information they are seeking.
Similarly, OMB should assure that all agencies use common terminology in
describing record systems, how to file a FOIA request, and in describing
other locator systems.
All guides should be available through electronic means, and should
be linked to the annual reports. A citizen picking up a FOIA guide
should learn how to access the annual reports. Similarly, any potential
requestor reading an annual report should learn about the guide, and how
to access it.
Section 12. Effective date
To provide agencies with time to implement new requirements under the
Act, sections 7 and 8 shall become effective one year after the date of
enactment. These sections concern multitrack and expedited processing,
unusual and exceptional circumstances, the doubling of the statutory
time period for responding to FOIA requests, and estimating the amount
of material to which access is denied. The remainder of the bill will
take effect 180 days after enactment.
V. COMPLIANCE WITH RULE XI
Pursuant to rule XI, clause 2l(3)(A) of the rules of the House of
Representatives, under the authority of rule X, clause 2(b)(1) and
clause 3(f), the results and findings for those oversight activities are
incorporated in the recommendations found in the bill and in this
report.
VI. BUDGET ANALYSIS AND PROJECTIONS
This Act provides for no new authorizations or budget authority or
tax expenditures. Consequently, the provisions of section 308(a)(1) of
the Congressional Budget Act are not applicable.
VII. COST ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE
The Committee was provided with the following estimate of the cost of
H.R. 3802, as prepared by the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC August 30, 1996.
Hon. William F. Clinger, Jr., Chairman, Committee on Government Reform and Oversight, House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R.
3802, the Electronic Freedom of Information Amendments of 1996, as
ordered reported by the House Committee on Government Reform and
Oversight on July 25, 1996. CBO estimates that enacting this bill would
not significantly affect spending by the federal government. Because the
bill would not affect direct spending or receipts, pay-as-you-go
procedures would not apply.
Bill Purpose. --H.R. 3802 would amend the Freedom of Information Act
(FOIA) to:
Require that agencies make available for public inspection and
reproduction copies of any records that, because of the nature of their
subject matter, are likely to elicit additional requests;
Require that agencies provide information in the form requested (for
example, paper or computer disk), if the information is readily
reproducible in that form;
Authorize agencies to implement a multitrack system for processing
requests under FOIA;
Expand the amount of time an agency has to respond to a FOIA request
from 10 days to 20 days; and
Require agencies to file an annual report with the Attorney General
that documents statistics related to the processing and the denial of
FOIA requests.
Federal Budgetary Impact. --Many of the bill's provisions are
similar to those already required by the Office of Management and Budget
(OMB Circular No. A 130), and therefore are not expected to affect
agencies' budgets. Some provisions, however, could change the way
certain agencies respond to FOIA requests. For instance, the bill would
require that agencies make available for public inspection and
reproduction copies of any records that--because of the nature of their
subject matter--are likely to elicit additional requests. The bill also
would require that agencies provide information in the form requested,
if the information is readily reproducible in that form. The first
provision could reduce agencies' costs, while the second provision might
increase agencies' costs, but CBO cannot estimate the extent of these
impacts. The bill's provisions would likely have the greatest impact on
the departments of Defense and Health and Human Services, which
historically receive about one-half of all FOIA requests. Any change in
spending from either provision would be subject to appropriation
actions.
The bill could also alleviate current agency backlogs in filling FOIA
requests by doubling the amount of time an agency has to respond to a
FOIA request and by allowing agencies to classify and process requests
according to level of effort rather than on a strict first-in, first-out
basis. In a 1994 Department of Justice survey of agency backlogs under
FOIA, almost two-thirds of the 75 agencies included in the survey
reported average response times to new FOIA requests of more than 15
days. While these provisions should help agencies better comply with
statutory response times, it is unclear whether they would significantly
affect agency costs for completing such response.
Finally, H.R. 3802 would require that agencies annually report a
number of statistics concerning FOIA activities to the Attorney General.
Under current law, agencies already submit much of this information to
the Congress each year. Thus, we expect the new reporting requirement
would not significantly increase agency costs.
Mandates Statement. --H.R. 3802 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates Reform Act
of 1995 (Public Law 104 4) and would not have a significant impact on
the budgets of state, local or tribal governments.
If you wish further details on this estimate, we will be pleased to
provide them. The staff contact is John R. Righter.
Sincerely,
------ ------
(For June E. O'Neill, Director ).
VIII. INFLATIONARY IMPACT STATEMENT
In accordance with rule XI, clause 2(l)(4) of the Rules of the House
of Representative , this legislation is assessed to have no inflationary
effect on prices and costs in the operation of the national economy.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House of
Representatives, changes in existing law made by the bill, as reported,
are shown as follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law in which
no change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
* * * * * * *
552. Public information; agency rules, opinions, orders,
records, and proceedings
(a) Each agency shall make available to the public information as
follows:
(1) * * *
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying--
(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register; and
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
(D) copies of all records, regardless of form or format, which have
been released to any person under paragraph (3) and which, because of
the nature of their subject matter, the agency determines have become or
are likely to become the subject of subsequent requests for
substantially the same records; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for
sale. For records created on or after November 1, 1996, within one year
after such date, each agency shall make such records available by
computer telecommunications or, if computer telecommunications means
have not been established by the agency, by other electronic means. To
the extent required to prevent a clearly unwarranted invasion of
personal privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy, interpretation,
or staff manual or instruction staff manual, instruction, or copies of
records referred to in subparagraph (D). However, in each case the
justification for the deletion shall be explained fully in writing , and
the extent of such deletion shall be indicated on the portion of the
record which is made available or published. If technically feasible,
the extent of the deletion shall be indicated at the place in the record
where the deletion was made. Each agency shall also maintain and make
available for public inspection and copying current indexes providing
identifying information for the public as to any matter issued, adopted,
or promulgated after July 4, 1967, and required by this paragraph to be
made available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by
order published in the Federal Register that the publication would be
unnecessary and impracticable, in which case the agency shall
nonetheless provide copies of such index on request at a cost not to
exceed the direct cost of duplication. Each agency shall make the index
referred to in subparagraph (E) available by computer telecommunication
by December 31, 1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a member of
the public may be relied on, used, or cited as precedent by an agency
against a party other than an agency only if--
(i) it has been indexed and either made available or published as
provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3) (A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any request
for records which (A) (i) reasonably describes such records and (B) (ii)
is made in accordance with published rules stating the time, place, fees
(if any), and procedures to be followed, shall make the records promptly
available to any person.
(B) In making any record available to a person under this paragraph,
an agency shall provide the record in any form or format requested by
the person if the record is readily reproducible by the agency in that
form or format. Each agency shall make reasonable efforts to maintain
its records in forms or formats that are reproducible for purposes of
this section.
(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in
electronic form or format.
(D) For purposes of this paragraph, the term ``search'' means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.
(4)(A) * * *
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case the
court shall determine the matter de novo, and may examine the contents
of such agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the agency to
sustain its action. In addition to any other matters to which a court
accords substantial weight, a court shall accord substantial weight to
an affidavit of an agency concerning the agency's determination as to
technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
* * * * * * *
(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall--
(i) determine within ten days 20 days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request whether
to comply with such request and shall immediately notify the person
making such request of such determination and the reasons therefor, and
of the right of such person to appeal to the head of the agency any
adverse determination; and
(ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(B) In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the reasons for such extension and the date
on which a determination is expected to be dispatched. No such notice
shall specify a date that would result in an extension for more than ten
working days. As used in this subparagraph, ``unusual circumstances''
means, but only to the extent reasonably necessary to the proper
processing of the particular request--
(i) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(B)(i) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the unusual circumstances for such extension
and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for
more than ten working days, except as provided in clause (ii) of this
subparagraph.
(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the request
if the request cannot be processed within the time limit specified in
that clause and shall provide the person an opportunity to limit the
scope of the request so that it may be processed within that time limit
or an opportunity to arrange with the agency an alternative time frame
for processing the request or a modified request. Refusal by the person
to reasonably modify the request or arrange such an alternative time
frame shall be exceptional circumstances for purposes of subparagraph
(C).
(iii) As used in this subparagraph, `unusual circumstances' means,
but only to the extent reasonably necessary to the proper processing of
the particular requests--
(I) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(II) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(C) (i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if
the agency fails to comply with the applicable time limit provisions of
this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any
determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such
request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term ``exceptional
circumstances'' does not include a delay that results from a predictable
agency workload of requests under this section.
(iii) Refusal by a person to reasonably modify the scope of a request
or to arrange an alternative time frame for processing a request (or a
modified request) under this section after being requested to do so by
the agency to whom the person made the request shall be exceptional
circumstances for purposes of this subparagraph.
(iv) In determining whether exceptional circumstances exist, a court
shall consider the efforts by an agency to reduce the number of pending
requests under this section.
(D)(i) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making
a request that does not qualify for the fastest multitrack processing an
opportunity to limit the scope of the request in order to qualify for
faster processing.
(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, providing for expedited processing of
requests for records--
(I) in cases in which the person requesting the records demonstrates
a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding subparagraph (A)(i), regulations under this
subparagraph must ensure--
(I) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided to the
person making the request, within 10 days after the date of the request;
and
(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for
records to which the agency has granted expedited processing under this
subparagraph. Agency action to deny or affirm denial of a request for
expedited processing pursuant to this subparagraph, and failure by an
agency to respond timely to such a request shall be subject to judicial
review under paragraph (4), except that the judicial review shall be
based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a
request for records after the agency has provided a complete response to
the request.
(v) For purposes of this subparagraph, the term ``compelling need''
means--
(I) that a failure to obtain requested records on an expedited basis
under this paragraph could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(F) In denying a request for records, in whole or in part, an agency
shall make a reasonable effort to estimate the volume of any requested
matter the provision of which is denied, and shall provide any such
estimate to the person making the request, unless providing such
estimate would harm an interest protected by an exemption under
subsection (b) under which the denial is made.
(b) This section does not apply to matters that are--
(1) * * *
* * * * * * *
(9) geological and geophysical information and data, including maps,
concerning wells.
Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are
exempt under this subsection. The amount of information deleted shall be
indicated on the released portion of the record, unless including that
indication would harm an interest protected by an exemption under this
subsection under which the deletion is made.
* * * * * * *
(e) On or before March 1 of each calendar year, each agency shall
submit a report covering the preceding calendar year to the Speaker of
the House of Representatives and President of the Senate for referral to
the appropriate committees of the Congress. The report shall include--
(1) the number of determinations made by such agency not to comply
with requests for records made to such agency under subsection (a) and
the reasons for each such determination;
(2) the number of appeals made by persons under subsection (a)(6),
the result of such appeals, and the reason for the action upon each
appeal that results in a denial of information;
(3) the names and titles or positions of each person responsible for
the denial of records requested under this section, and the number of
instances of participation for each;
(4) the results of each proceeding conducted pursuant to subsection
(a)(4)(F), including a report of the disciplinary action taken against
the officer or employee who was primarily responsible for improperly
withholding records or an explanation of why disciplinary action was not
taken;
(5) a copy of every rule made by such agency regarding this section;
(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this section;
and
(7) such other information as indicates efforts to administer fully
this section.
The Attorney General shall submit an annual report on or before March
1 of each calendar year which shall include for the prior calendar year
a listing of the number of cases arising under this section, the
exemption involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subsections (a)(4)(E), (F), and
(G). Such report shall also include a description of the efforts
undertaken by the Department of Justice to encourage agency compliance
with this section.
(e)(1) On or before February 1 of each year, each agency shall submit
to the Attorney General a report which shall cover the preceding fiscal
year and which shall include--
(A) the number of determinations made by the agency not to comply
with requests for records made to such agency under subsection (a) and
the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action upon
each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under subsection (b)(3), a
description of whether a court has upheld the decision of the agency to
withhold information under each such statute, and a concise description
of the scope of any information withheld;
(C) the number of requests for records pending before the agency as
of September 30 of the preceding year, and the median number of days
that such requests had been pending before the agency as of that date;
(D) the number of requests for records received by the agency and
the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for processing
requests;
(G) the average amount of time that the agency estimates as
necessary, based on the past experience of the agency, to comply with
different types of requests; and
(H) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total amount
expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the public
through a computer network, or if computer network means have not been
established by the agency, by other electronic means.
(3) The Attorney General shall make each report which has been made
available by electronic means available at a single electronic access
point. The Attorney General shall notify the Chairman and ranking
minority member of the Committee on Government Reform and Oversight of
the House of Representatives and the Chairman and ranking minority
member of the Committees on Governmental Affairs and the Judiciary of
the Senate, no later than April 1 of the year in which each such report
is issued, that such reports are available by electronic means.
(4) The Attorney General, in consultation with the Director of the
Office of Management and Budget, shall develop reporting and performance
guidelines in connection with reports required by this subsection by
October 1, 1997, and may establish additional requirements for such
reports as the Attorney General determines may be useful.
(5) The Attorney General shall submit an annual report on or before
April 1 of each calendar year which shall include for the prior calendar
year a listing of the number of cases arising under this section, the
exemption involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subparagraphs (E), (F), and (G)
of subsection (a)(4). Such report shall also include a description of
the efforts undertaken by the Department of Justice to encourage agency
compliance with this section.
(f) For purposes of this section, the term--
(1) ``agency'' as defined in section 551(1) of this title includes
any executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office of
the President), or any independent regulatory agency; and
(2) ``record'' and any other term used in this section in reference
to information includes any information that would be an agency record
subject to the requirements of this section when maintained by an agency
in any format, including an electronic format.
(g) The head of each agency shall prepare and make publicly available
upon request, reference material or a guide for requesting records or
information from the agency, including--
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems
maintained by the agency; and
(3) a handbook for obtaining various types and categories of public
information from the agency pursuant to chapter 35 of title 44, and
under this section.
X. COMMITTEE RECOMMENDATIONS
On July 25, 1996, a quorum being present, the Committee ordered the
bill, as amended, favorably reported.
Date: July 25, 1996; final passage of H.R. 3802; offered by: Mr.
Horn; voice vote: Ayes.
XI. CONGRESSIONAL ACCOUNTABILITY ACT; PUBLIC LAW 104 1; SECTION
102(B)(3)
This provision applies to the legislative branch in that the
Comptroller General is required to review laws and regulations to
determine that they do not conflict with the provisions of this bill. It
does not relate to any terms or condition of employment or access to
public services or accommodations.
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