Short title

This Act may be cited as the

Restore Open Government Act of 2005

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title

Sec. 2. Table of contents

Sec. 3. Promotion of public disclosure

Sec. 4. Revocation of the Ashcroft and Card Memoranda that encourage the withholding of information

Sec. 5. Elimination of unnecessary pseudo-classification

Sec. 6. Restoration of public access to presidential records

Sec. 7. Prohibition on secret advisory committees

Sec. 8. Promotion of timely declassification of Government documents

Sec. 9. Improvements to operation of Freedom of Information Act

Promotion of public disclosure

(a)

Findings

Congress finds the following: (1)Public access to information held by the Federal Government is vitally important to the functioning of a democratic society. (2)The Freedom of Information Act was enacted to ensure such public access to information. (3)The Freedom of Information Act specifies limited exemptions to the general requirement for disclosure, where disclosure could potentially threaten other important public policy goals. (4)In establishing the categories of exempt information under the Freedom of Information Act, Congress allowed agencies to withhold information in those categories, but did not in any way mandate or encourage such withholding. (b)

Policy

The policy of the Federal Government is to release information to the public in response to a request under the Freedom of Information Act— (1)if such release is required by law; or (2)if such release is allowed by law and the agency concerned does not reasonably foresee that disclosure would be harmful to an interest protected by an applicable exemption. (c)

Guidance

All guidance provided to Federal Government employees responsible for carrying out the Freedom of Information Act shall be consistent with the policy set forth in subsection (b).

Revocation of the Ashcroft and Card Memoranda that encourage the withholding of information

The Memorandum for Heads of all Federal Departments and Agencies” on “The Freedom of Information Act” issued by Attorney General John Ashcroft on October 12, 2001, and the “Memorandum for the Heads of Executive Department and Agencies on Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security issued by Andrew H. Card, Jr., Assistant to the President and Chief of Staff, on March 19, 2002, shall have no force or effect.

Elimination of unnecessary pseudo-classification

(a)

Report on the proliferating use of pseudo-classification designations

(1)

Report requirement

Not later than nine months after the date of the enactment of this Act, the Archivist of the United States shall submit to the congressional committees described in subsection (d) a report describing the use of pseudo-classification designations. (2)

Matters covered

The Archivist shall report on, at a minimum, the following: (A)The number of pseudo-classification designation policies used by Federal agencies, and a list of each of the pseudo-classification designations that includes the agency or agencies that use the designation. (B)Any existing guidance, instruction, directive, or regulations regarding each agency’s use of the pseudo-classification designations. (C)The number of documents categorized by each agency in each of the previous three fiscal years under each designation. (D)The number and level of experience and training of Federal agency, office, and contractor personnel authorized to make pseudo-classification designations. (E)The cost of placing and maintaining information under each pseudo-classification designation. (F)The extent to which information placed under pseudo-classification designations has subsequently been released under section 552 of title 5, United States Code (popularly known as the Freedom of Information Act). (G)The extent to which pseudo-classification designations have been used to withhold from the public information that is not authorized to be withheld by Federal statute, or by an Executive order relating to the classification of national security information. (H)The statutory provisions described in subsection (c). (3)

Input from other Federal agencies

In order to report on the use of pseudo-classification designations, the Archivist shall solicit and consider input from Federal agencies, offices, and contractors, and all federal agencies, offices, and contractors shall cooperate fully and promptly with all requests by the Archivist in the fulfillment of this section. (4)

Notice and comment

The Archivist shall provide notice and an opportunity for public comment on the report. (b)

Elimination of unnecessary pseudo-classification designations

(1)

Regulations

Not later than 15 months after the date of the enactment of this Act, the Archivist of the United States shall promulgate regulations banning the use of unnecessary pseudo-classification designations. (2)

Standards for information control designations

If the Archivist determines that there is a need for some agencies to use information control designations to safeguard information prior to review for disclosure, beyond those designations established by statute or by an Executive Order relating to the classification of national security information, the regulations under paragraph (1) shall establish standards for the use of those designations by agencies. Such standards shall address, at a minimum, the following issues: (A)Standards for utilizing the information control designations in a manner that is narrowly tailored to maximize public access to information. (B)Procedures for providing specified Federal officials with authority to utilize the information control designations, including training and certification requirements. (C)Categories of information that may be assigned the information control designations. (D)The duration of the information control designations and the process by which they will be removed. (E)Procedures for identifying, marking, dating, and tracking information assigned the information control designations, including the identity of officials making the designations. (F)Specific limitations and prohibitions against using the information control designations. (G)Procedures for members of the public to challenge the use of the information control designations. (H)The manner in which the use of the information control designations relates to the procedures of each agency or office under section 552 of title 5, United States Code. (3)

Regulation to constitute sole authority

A regulation promulgated pursuant to this subsection shall constitute the sole authority by which Federal agencies, offices, or contractors are permitted to control information for the purposes of safeguarding information prior to review for disclosure, other than authority granted by Federal statute or by an Executive order relating to the classification of national security information. (c)

Review of statutory barriers to public access to information

(1)

Review of statutes

As part of the report required under subsection (a), the Archivist shall examine existing Federal statutes that allow Federal agencies, offices, or contractors to control, protect, or otherwise withhold information based on security concerns. (2)

Recommendations

The report shall make recommendations on potential changes to the Federal statutes examined under paragraph (1) that would improve public access to information governed by such statutes. (d)

Definitions

In this section: (1)The term congressional committees means the Committees on Government Reform, Judiciary, Homeland Security, and Appropriations of the House of Representatives and the Committees on Homeland Security and Governmental Affairs, Judiciary, and Appropriations of the Senate. (2)The term pseudo-classification designations means information control designations, including sensitive but unclassified and for official use only, that are not defined by Federal statute, or by an Executive order relating to the classification of national security information, but that are used to manage, direct, or route Government information, or control the accessibility of Government information, regardless of its form or format.

Restoration of public access to presidential records

Executive Order number 13233, dated November 1, 2001 (66 Fed. Reg. 56025), shall have no force or effect, and Executive Order number 12667, dated January 18, 1989 (54 Fed. Reg. 3403), shall apply by its terms.

Prohibition on secret advisory committees

(a)

Definition

The term Presidential inter-agency advisory committee is any committee or task force that— (1)is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government; (2)includes officers or employees of at least two separate Federal agencies; (3)is established or utilized to provide advice, ideas, or recommendations to the President or Vice President on a specified topic or topics; and (4)has at least one officer or employee assigned full-time as a staff member of the committee to support the functions of the committee. (b)

Requirements

(1) The President shall ensure that the names of the members of the committee are published in the Federal Register. (2)The committee must make public each substantive contact between the advisory committee, or individual members of the advisory committee acting on the committee’s behalf, and any person who is not a full-time or permanent part-time officer or employee of the Federal Government, including— (A)the date of the contact; (B)the form of the contact (in person, by telephone, by e-mail, or in writing); (C)the names and affiliations of the parties involved; and (D)the substance of the communication and the communication itself, if in electronic or written form. (3)For purposes of this subsection, a contact shall be considered substantive if the information conveyed influenced or was reflected in any way in the committee’s advice, recommendations, or report to the President or Vice President. (c)

Applicability

The requirements of this section do not apply to substantive contacts exclusively with the President or the Vice President or their immediate personal staff.

Promotion of timely declassification of Government documents

(a)

Funding

Section 708 of the Public Interest Declassification Act of 2000 (title VII of Public Law 106–567; 50 U.S.C. 435 note; 114 stat. 2856) is amended by adding at the end the following new subsection:

(c)

Funding

For any fiscal year in which funds appropriated pursuant to the authorization in subsection (a) are insufficient, as determined by the Archivist of the United States, to support the activities of the Board, the Archivist shall levy from each agency, and may retain, a fee of not more than $0.005 per page classified by each agency. The Archivist shall use the fees retained under this section to fund the activities of the Board. Fees received in a fiscal year and retained under this section shall remain available for obligation until expended.

(b)

Sunset

Subsection (b) of section 710 of such Act is amended to read as follows:

(b)

Sunset

The provisions of this title shall expire 8 years after the date of the enactment of the Restore Open Government Act of 2005.

Improvements to operation of Freedom of Information Act

(a)

Restoration of the integrity of the Freedom of Information Act by limiting the broad exemption for critical infrastructure information under the Homeland Security Act of 2002

(1)

In general

Title II of the Homeland Security Act of 2002 (Public Law 107–296) is amended by striking subtitle B and inserting the following:

Protection of Voluntarily Furnished Confidential Information

211.

Protection of voluntarily furnished confidential information

(a)

Definitions

In this section: (1)

Critical infrastructure

The term critical infrastructure has the meaning given that term in section 1016(e) of the USA PATRIOT ACT of 2001 (42 U.S.C. 5195c(e)). (2)

Furnished voluntarily

(A)

Definition

The term furnished voluntarily means a submission of a record that— (i)is made to the Department in the absence of authority of the Department requiring that record to be submitted; and (ii)is not submitted or used to satisfy any legal requirement or obligation or to obtain any grant, permit, benefit (such as agency forbearance, loans, or reduction or modifications of agency penalties or rulings), or other approval from the Government. (B)

Benefit

In this paragraph, the term benefit does not include any warning, alert, or other risk analysis by the Department. (b)

In general

Notwithstanding any other provision of law, a record pertaining to the vulnerability of and threats to critical infrastructure (such as attacks, response, and recovery efforts) that is furnished voluntarily to the Department shall not be made available under section 552 of title 5, United States Code, if— (1)the provider would not customarily make the record available to the public; and (2)the record is designated and certified by the provider, in a manner specified by the Department, as confidential and not customarily made available to the public. (c)

Records shared with other agencies

(1)

In general

(A)

Response to request

An agency in receipt of a record that was furnished voluntarily to the Department and subsequently shared with the agency shall, upon receipt of a request under section 552 of title 5, United States Code, for the record— (i)not make the record available; and (ii)refer the request to the Department for processing and response in accordance with this section. (B)

Segregable portion of record

Any reasonably segregable portion of a record shall be provided to the person requesting the record after deletion of any portion which is exempt under this section. (2)

Disclosure of independently furnished records

Notwithstanding paragraph (1), nothing in this section shall prohibit an agency from making available under section 552 of title 5, United States Code, any record that the agency receives independently of the Department, regardless of whether or not the Department has a similar or identical record. (d)

Withdrawal of confidential designation

The provider of a record that is furnished voluntarily to the Department under subsection (b) may at any time withdraw, in a manner specified by the Department, the confidential designation. (e)

Procedures

The Secretary shall prescribe procedures for— (1)the acknowledgement of receipt of records furnished voluntarily; (2)the designation, certification, and marking of records furnished voluntarily as confidential and not customarily made available to the public; (3)the care and storage of records furnished voluntarily; (4)the protection and maintenance of the confidentiality of records furnished voluntarily; and (5)the withdrawal of the confidential designation of records under subsection (d). (f)

Effect on State and local law

Nothing in this section shall be construed as preempting or otherwise modifying State or local law concerning the disclosure of any information that a State or local government receives independently of the Department. (g)

Report

(1)

Requirement

Not later than 18 months after the date of the enactment of the Restore Open Government Act of 2005, the Comptroller General of the United States shall submit to the committees of Congress specified in paragraph (2) a report on the implementation and use of this section, including— (A)the number of persons in the private sector, and the number of State and local agencies, that furnished voluntarily records to the Department under this section; (B)the number of requests for access to records granted or denied under this section; and (C)such recommendations as the Comptroller General considers appropriate regarding improvements in the collection and analysis of sensitive information held by persons in the private sector, or by State and local agencies, relating to vulnerabilities of and threats to critical infrastructure, including the response to such vulnerabilities and threats. (2)

Committees of Congress

The committees of Congress specified in this paragraph are— (A)the Committees on the Judiciary and Homeland Security and Governmental Affairs of the Senate; and (B)the Committees on the Judiciary and Government Reform of the House of Representatives. (3)

Form

The report shall be submitted in unclassified form, but may include a classified annex.

(2)

Technical and conforming amendment

The table of contents for the Homeland Security Act of 2002 (Public Law 107–296) is amended by striking the items relating to subtitle B of title II and sections 211 through 215 and inserting the following:

Subtitle B—Protection of Voluntarily Furnished Confidential Information

Sec. 211. Protection of voluntarily furnished confidential information

(b)

Creation of transparency in agency compliance with the Freedom of Information Act

(1)

Additional matters covered by report

Section 552(e)(1) of title 5, United States Code, is amended— (A)by striking fiscal year and which and inserting fiscal year. Information in the report shall be expressed in terms of each principal component of the agency and; (B)in subparagraph (E), by inserting before the semicolon , based on the date on which the requests were originally filed with the agency; and (C)by redesignating subparagraphs (F) and (G) as subparagraphs (L) and (M), respectively, and inserting after subparagraph (E) the following new subparagraphs:

(F)based on the number of business days that have elapsed since each request was originally filed with the agency— (i)the number of requests for records for which the agency has responded with a determination up to and including 20 days, and in 20 day increments up to and including 200 days; (ii)the number of requests for records for which the agency has responded with a determination greater than 200 days and less than 301 days; (iii)the number of requests for records for which the agency has responded with a determination greater than 300 days and less than 401 days; (iv)the number of requests for records for which the agency has responded with a determination greater than 400 days; (v)the average number of days for the agency to respond to a request; (G)data on the 10 requests for records with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since each of the requests was originally filed with the agency; (H)data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally filed with the agency; (I)the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were filed with the agency; the highest number of business days taken by the agency to respond to an administrative appeal; and the lowest number of business days taken by the agency to respond to an administrative appeal; (J)the number of fee status requests that are granted and denied, and the average number of days for adjudicating fee status determinations; (K)the number of expedited review requests that are granted and denied, and the average number of days for adjudicating expedited review requests;

(2)

No aggregation of reports

Section 552(e) of such title is further amended by adding at the end the following new paragraph:

(6)The reports required by this section shall not aggregate requests for records to the agency made under subsection (a) with requests for records to the agency made by first parties under section 552a of this title.

(c)

Increased feasibility of citizen group challenges to improper withholding of Government information

Section 552(a)(4)(E) of title 5, United States Code, is amended— (1)by inserting , or in any case seeking information from a Federal agency or official under any other Federal law, after case under this section; and (2)by adding at the end the following: For purposes of this section, a complainant has substantially prevailed if the complainant has obtained some of its requested relief through a judicial or administrative order or an enforceable written agreement, or if the complainant’s pursuit of a nonfrivolous claim or defense has been a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought..