[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3394 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 3394

    To amend title 5, United States Code, to require disclosure of 
                      information by the Congress.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 27, 1993

    Mr. Klug (for himself, Mr. Boehner, Mr. Bonilla, Mr. Grams, Mr. 
Greenwood, Mr. Gilchrest, Mrs. Johnson of Connecticut, Mr. Ramstad, Mr. 
 Roberts, Mr. Santorum, Mr. Shays, Mr. Smith of Texas, and Mr. Zimmer) 
   introduced the following bill; which was referred jointly to the 
      Committee on House Administration and Government Operations

_______________________________________________________________________

                                 A BILL


 
    To amend title 5, United States Code, to require disclosure of 
                      information by the Congress.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. APPLICATION OF INFORMATION DISCLOSURE REQUIREMENTS TO 
              CONGRESS.

    (a) In General.--Notwithstanding any other provision of law, and 
subject to the amendments made by this Act, the provisions of section 
552 of title 5, United States Code (popularly known as the ``Freedom of 
Information Act''), shall apply to the legislative branch.
    (b) Conforming Amendment.--Section 551(1)(A) of title 5, United 
States Code (relating to the exclusion of the Congress from, among 
other matters, laws requiring the disclosure of public information), is 
amended to read as follows:
                    ``(A) except as that term is used in section 552, 
                the Congress;''.

SEC. 2. SPECIAL RULES REGARDING APPLICATION OF INFORMATION DISCLOSURE 
              REQUIREMENTS TO LEGISLATIVE BRANCH.

    (a) Authority to Decide Complaints.--Section 552(a)(4) of title 5, 
United States Code, is amended--
            (1) in subparagraph (B) in the first sentence by inserting 
        before the period the following: ``, except that in the case of 
        a complaint against an agency in the legislative branch a 
        member of the Disclosure Review Board selected under subsection 
        (g)(2) shall have that jurisdiction'';
            (2) in subparagraph (E) by striking ``The court'' and 
        inserting ``The court or member of the Disclosure Review 
        Board''; and
            (3) by striking ``the court'' each place it appears and 
        inserting ``the court or member of the Disclosure Review 
        Board''.
    (b) Procedures for Deciding Complaints.--Section 552 of title 5, 
United States Code (relating to the disclosure of public information), 
is amended by adding at the end the following new subsections:
    ``(g)(1) There is established in the legislative branch of the 
Federal Government a board to be known as the Disclosure Review Board. 
Each member of the Board shall have the jurisdiction to hear and 
determine claims certified under subsection (i)(4)(B) to the Board and 
referred to such member, in accordance with rules issued under 
subsection (m), for hearing and determination.
    ``(2)(A) Members of the Board shall be appointed from among 
individuals who are retired from Federal service as administrative law 
judges appointed under section 3105, as follows:
            ``(i) 3 members shall be appointed by the Speaker of the 
        House of Representatives.
            ``(ii) 3 members shall be appointed by the minority leader 
        of the House of Representatives.
            ``(iii) 3 members shall be appointed by the majority leader 
        of the Senate.
            ``(iv) 3 members shall be appointed by the minority leader 
        of the Senate.
    ``(B) Any individual so appointed shall serve on the Board for a 
term of 2 years and may be reappointed to the Board. Any member of the 
board who is hearing and determining any claim under this section at 
the time the term of such member expires may continue to serve as a 
member of the Board until such individual concludes the determination 
of such claim.
    ``(3)(A) For any claim in a complaint under subsection (b)(4)(B) 
filed with the Disclosure Review Board alleging a failure by a Member 
of Congress or any individual on the personal staff of a Member of 
Congress to make available information, records, or other material 
required by this section to be made available, one of the members of 
the Board shall be selected as follows to hear and determine the claims 
alleged in such complaint which are certified under subsection 
(i)(4)(B):
            ``(i) If such Member of Congress belongs to the majority 
        party of the House of Congress to which such Member belongs, 
        then the minority leader of such House of Congress shall select 
        the member of the Board to hear and determine such claim.
            ``(ii) If such Member of Congress belongs to the minority 
        party of the House of Congress to which such Member belongs, 
        then the Speaker of the House of Representatives (if such 
        Member belongs to the House of Representatives) or the majority 
        leader of the Senate (if such Member belongs to the Senate) 
        shall select the member of the Board to hear and determine such 
        claim.
    ``(B) If a claim in a complaint filed under subsection (b) alleges 
that a committee of Congress (other than a joint committee), an agency 
established in a House of Congress, or any individual on the staff of 
such committee or agency has failed to make available information, 
records, or other material required by this section to be made 
available, then one of the members of the Board shall be selected as 
follows to hear and determine the claims alleged in such complaint 
which are certified under subsection (i)(4)(B):
            ``(i) If such committee or agency is established in the 
        House of Representatives, then the Speaker of the House of 
        Representatives shall select the member of the Board to hear 
        and determine such claim.
            ``(ii) If such committee or agency is established in the 
        Senate, then the majority leader of the Senate shall select a 
        member of the Board to hear and determine such claim.
    ``(C) If a claim in a complaint filed under subsection (b) alleges 
that a joint committee of Congress, an agency established in the 
legislative branch of the Federal Government (other than an agency 
established in a House of Congress), or any individual on the staff of 
such committee or agency has failed to make available information, 
records, or other material required by this section to be made 
available, then the Speaker of the House of Representatives shall 
select a member of the Board to hear and determine such claim.
    ``(4) The offices of the Board shall be in the District of 
Columbia. There shall be detailed to the Board such employees of the 
Congress as the Board may require to carry out its duties under this 
section.
    ``(h)(1) The Board shall designate one of its members (other than 
any Special Hearing Member) to serve for a term of 1 year as the 
Complaint Referral Officer. The Complaint Referral Officer may not hear 
or determine any claim in a complaint referred under paragraph (2) to 
such Officer.
    ``(2) Except as provided in subparagraph (B), each complaint filed 
with the Board in accordance with subsection (b) shall be referred 
immediately to the Complaint Referral Officer.
    ``(3) Not later than 15 days after a complaint filed in accordance 
with subsection (b)(4) is received by the Board, the Complaint Referral 
Officer shall appoint an individual (other than a member of the Board) 
to serve as the Investigating Counsel with respect to such complaint 
and shall refer such complaint to such Investigating Counsel.
    ``(i)(1) Each individual appointed under subsection (d)(3) as 
Investigating Counsel shall meet the qualifications for appointment as 
a United States magistrate specified in subsections (b), (c), and (d) 
of section 631 of title 28.
    ``(2)(A) An Investigating Counsel shall comply with the 
requirements for service applicable to part-time United States 
magistrates specified in section 632(b) of title 28.
    ``(B) If the appointment of an Investigating Counsel is terminated 
by reason of resignation, death, or removal from office, the Complaint 
Referral Officer shall appoint another individual as Investigating 
Counsel to complete the work of the Investigating Counsel who so 
resigned, died, or was removed.
    ``(C) An Investigating Counsel may be removed from office only by 
the Complaint Referral Officer and only for good cause, physical 
disability, mental incapacity, or any other condition that 
substantially impairs the performance of such Investigating Counsel's 
duties.
    ``(3) Not earlier than 45 days, and not later than 90 days, after 
receiving a complaint referred under paragraph (2), the Investigating 
Counsel involved shall conduct a thorough investigation of each 
unresolved claim therein alleging a failure to make available material 
required by this section to be made available and shall determine 
whether there is reasonable cause to believe any such claim is true. 
For purposes of conducting such investigation, such Investigating 
Counsel shall have investigative powers of the types vested in the 
Equal Employment Opportunity Commission by section 709(a) of the Civil 
Rights Act of 1964.
    ``(4)(A) If such Investigating Counsel determines that there is 
reasonable cause to believe any such claim is true, then such 
Investigating Counsel shall attempt to secure from the defendant and 
the person that filed the complaint making the claim, during the 30-day 
period beginning on the date of such determination, an agreement to 
make available the material that is the subject of the complaint.
    ``(B) If such Investigating Counsel is unable to secure such 
agreement with respect to any such claim, then such Investigating 
Counsel shall certify to the Board for hearing and determination each 
claim with respect to which such reasonable cause is found.
    ``(5)(A) Each Investigating Counsel appointed under this subsection 
shall be paid at the daily equivalent of the annual rate of basic pay 
payable from time to time for level IV of the Executive Schedule under 
section 5315 for each day (including traveltime) during which such 
Investigating Counsel is engaged in the actual performance of duties 
under this subsection.
    ``(B)(i) If the complaint with respect to which an Investigating 
Counsel is appointed is based on an alleged failure by the Congress to 
make available material, then the Investigating Counsel shall be paid 
compensation in connection with such complaint from the contingent fund 
of the House of Congress (upon vouchers approved by the Clerk of the 
House of Representatives or the Secretary of the Senate in which the 
failure occurred.
    ``(ii) If the complaint with respect to which an Investigating 
Counsel is appointed is based on an alleged failure to make available 
material by an agency or unit of the legislative branch of the Federal 
Government (other than the Congress), then the Investigating Counsel 
shall be paid compensation in connection with such complaint by such 
agency or unit from funds available to such agency or unit.
    ``(j)(1) The member of the Board, to whom a claim is referred under 
subsection (g) for hearing and determination shall make such 
determination as promptly as possible and, insofar as practicable, not 
later than 180 days after the date the Board received the complaint 
involved.
    ``(2)(A) Each determination made by the Board or a member of the 
Board shall be in writing. In the case of a determination made by a 
member of the Board to dispose of any claim in such complaint, such 
member shall file with the Board a written report containing such 
member's findings of fact and conclusions of law with respect to such 
claim.
    ``(B) If such member finds that the defendant has failed to make 
available material that is required by this section to be made 
available, then such member shall submit to the Board, and the Board 
shall issue, an order for relief which compels the defendant to do one 
or more of the following, as appropriate, for the benefit of the person 
that filed the complaint:
            ``(i) Make available the information, record, or other 
        material that is the subject of the complaint, on such terms 
        and conditions as determined to be appropriate.
            ``(ii) Pay compensatory damages.
            ``(iii) Pay the fees and allowances of witnesses in the 
        same manner as is provided in section 1821 of title 28, and pay 
        a reasonable attorney's fee.
    ``(C) Any payment ordered under subparagraph (B) with respect to a 
violation of this section by a Member of Congress, a committee of 
Congress, or an officer or employee of Congress shall be paid from the 
contingent fund of the appropriate House of Congress, upon vouchers 
approved by the Clerk of the House of Representatives or the Secretary 
of the Senate, as the case may be.
    ``(3)(A) Any member of the Board may issue subpoenas requiring the 
attendance and testimony of witnesses and the production of any 
evidence that relates to a complaint pending before the Board. Such 
attendance of witnesses and production of evidence may be required from 
any place within the United States. Any member of the Board may 
administer oaths and affirmations.
    ``(B) If a person issued a subpoena under subparagraph (A) refuses 
to obey such subpoena or is guilty of contumacy, the district court of 
the United States for the District of Columbia or the district court of 
the United States for the judicial district within which such person is 
found or resides, or transacts business may, upon application by the 
Board, order such person to appear before the appropriate member of the 
Board to produce evidence or to give testimony relating to such 
complaint. Any failure to obey such order of the court may be punished 
by such court as a contempt thereof.
    ``(C) Subpoenas issued by members of the Board shall be served in 
the manner provided for subpoenas issued by a United States district 
courts under the Federal Rules of Civil Procedure.
    ``(D) All process of any court to which application may be made 
under this subsection may be served in the judicial district in which 
the person required to be served resides, is found, or transacts 
business.
    ``(E) For purposes of sections 6002 and 6004 of title 18, the Board 
shall be considered to be an agency of the United States.
    ``(4)(A) Except as otherwise provided in this section, rules 7, 8, 
9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 
30, 31, 32, 34, 35, 36, 37, 43, and 50 of the Federal Rules of Civil 
Procedure shall apply with respect to complaints filed under subsection 
(b)(1).
    ``(B) The Federal Rules of Evidence shall apply with respect to the 
hearing and determination of claims by the Board.
    ``(5)(A) Notwithstanding any other provision of law, none of the 
records of the Board relating to a complaint filed under subsection 
(b)(1) may be disclosed to the public by the Board or by any court or 
agency of the United States until the conclusion of any judicial review 
of the order issued by the Board disposing of such complaint or the 
expiration of any period allowed by law to seek such review, whichever 
occurs later.
    ``(B) No determination made by the Supreme Court of the United 
States, the Court of Appeals for the District of Columbia Circuit, the 
Board (or any member of the Board), or the Investigating Counsel with 
respect to any claim alleging a violation of this section is admissible 
in evidence in any administrative or judicial proceeding other than a 
proceeding authorized by law to review a determination made under this 
section by the Board (or any member of the Board) or the Court of 
Appeals for the District of Columbia Circuit.
    ``(6)(A) Any person who files a complaint under subsection 
(b)(4)(B) may attend, and may be represented by an attorney at, any 
hearing conducted under this subsection with respect to such complaint.
    ``(B)(i) Except as provided in clause (ii), if such individual 
resides more than 100 miles from the place where such hearing is held, 
then such individual shall be reimbursed by the defendant for any 
actual and reasonable costs incurred by such individual to attend such 
hearing.
    ``(ii) If such complaint is filed with respect to a failure by the 
Congress to make available materials, then such reimbursement shall be 
paid from the contingent fund of the appropriate House of Congress, 
upon vouchers approved by the Clerk of the House of Representatives or 
the Secretary of the Senate, as the case may be.
    ``(k)(1) Chapter 7 shall apply with respect to judicial review of 
orders of the Board.
    ``(2) The United States Court of Appeals for the District of 
Columbia Circuit shall have jurisdiction to review and to enjoin, set 
aside, suspend, modify, and enforce the orders of the Board.
    ``(3) Any person who is a party to a proceeding in which the Board 
issues an order may seek review of such order by filing in the United 
States Court of Appeals for the District of Columbia Circuit 
(hereinafter in this subsection referred to as the `court'), not later 
than 60 days after the date such order is entered by the Board, a 
written petition for review. A copy of the petition shall be 
transmitted by the clerk of the court to the Board, and, upon receipt 
of such copy the Board shall file with the court the record in the 
proceeding, in the manner provided in section 2112 of title 28.
    ``(4)(A) In any judicial proceeding to review an order of the 
Board, if any party--
            ``(i) applies to the court for leave to adduce additional 
        evidence; and
            ``(ii) shows to the satisfaction of the court that--
                    ``(I) such additional evidence is material; and
                    ``(II) reasonable grounds exist for the failure to 
                adduce such evidence in the proceeding before the 
                Board;
the court may order such additional evidence (and evidence in rebuttal 
thereof) to be taken before the Board, in such manner and upon such 
terms as the court considers to be appropriate.
    ``(B) The Board may modify its findings of fact, or make new 
findings of fact, by reason of the additional evidence so taken, and 
shall file any such modified or new findings, together with any 
recommendations for the modification or setting aside of the original 
order of the Board.
    ``(C) The findings of fact of the Board may be set aside only if 
not supported by substantial evidence.
    ``(5) In any judicial proceeding to review an order of the Board, 
the court may remand, on its own motion, the case to the Board for such 
further action as the court may require.
    ``(6) In any action or proceeding under this section the court, in 
its discretion, may allow the prevailing party, a reasonable attorney's 
fee as part of the costs, and the United States shall be liable for 
costs the same as a private person.
    ``(l) Each member of the Board appointed under this section shall 
submit written reports at least annually to the Committee on Standards 
of Official Conduct of the House of Representatives and to the Senate 
Select Committee on Ethics describing the pending complaints referred 
to such member for determination and any determinations made by such 
member disposing of complaints during the reporting period involved.
    ``(m) The Board may issue rules of practice and procedure to carry 
out this section.
    ``(n)(1) Any right to relief under this section shall be in 
addition to, and not in lieu of, any right to relief under any other 
law.
    ``(2) No claim arising with respect to conduct which if true would 
constitute a violation of this section may proceed in any court of the 
United States if with respect to such conduct a claim by the same 
claimant then is pending before the Board.''.

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HR 3394 IH----2