[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3802 Received in Senate (RDS)]







104th CONGRESS
  2d Session
                                H. R. 3802


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 18, 1996

                                Received

_______________________________________________________________________

                                 AN ACT


 
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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Electronic Freedom of Information 
Act 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 third 
        sentence the following: ``, and the extent of such deletion 
        shall be indicated on the portion of the record which is made 
        available or published, unless including that indication would 
        harm an interest protected by the exemption in subsection (b) 
        under which the deletion is made'';
            (3) by inserting after the third 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 fifth sentence the following: 
        ``Each agency shall make the index referred to in subparagraph 
        (E) available by computer telecommunications by December 31, 
        1999.''; and
            (7) by inserting after the first 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, including 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)'' the second place it appears 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, except when such efforts would significantly 
interfere with the operation of the agency's automated information 
system.
    ``(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 considered as a factor in determining whether 
exceptional circumstances exist 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.
    ``(iv) Each agency may promulgate regulations, pursuant to notice 
and receipt of public comment, providing for the aggregation of certain 
requests by the same requestor, or by a group of requestors acting in 
concert, if the agency reasonably believes that such requests actually 
constitute a single request, which would otherwise satisfy the unusual 
circumstances specified in this subparagraph, and the requests involve 
clearly related matters. Multiple requests involving unrelated matters 
shall not be aggregated.''.
    (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, unless the agency 
demonstrates reasonable progress in reducing its backlog of pending 
requests.
    ``(iii) Refusal by a person to reasonably modify the scope of a 
request or arrange an alternative time frame for processing a request 
(or a modified request) under clause (ii) after being given an 
opportunity to do so by the agency to whom the person made the request 
shall be considered as a factor in determining whether exceptional 
circumstances exist for purposes of this subparagraph.''.

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 clause (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 in a timely manner 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.
    ``(vi) A demonstration of a compelling need by a person making a 
request for expedited processing shall be made by a statement certified 
by such person to be true and correct to the best of such person's 
knowledge and belief.''.
    (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 the exemption in 
subsection (b) pursuant to 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 inserting after the period 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 the exemption in this subsection 
under which the deletion is made. If technically feasible, the amount 
of the information deleted shall be indicated at the place in the 
record where such 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 of the United States 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; and
            ``(G) 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 including by computer telecommunications, or if computer 
telecommunications means have not been established by the agency, by 
other electronic means.
    ``(3) The Attorney General of the United States shall make each 
report which has been made available by electronic means available at a 
single electronic access point. The Attorney General of the United 
States 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 of the United States, 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 of the United States 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 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, subject to the exemptions in 
subsection (b), 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.

            Passed the House of Representatives September 17, 1996.

            Attest:

                                                ROBIN H. CARLE,

                                                                 Clerk.