[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 394 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 394

To promote accessibility, accountability, and openness in Government by 
  strengthening section 552 of title 5, United States Code (commonly 
referred to as the Freedom of Information Act), and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 16, 2005

 Mr. Cornyn (for himself and Mr. Leahy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To promote accessibility, accountability, and openness in Government by 
  strengthening section 552 of title 5, United States Code (commonly 
referred to as the Freedom of Information Act), 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 ``Openness Promotes Effectiveness in 
our National Government Act of 2005'' or the ``OPEN Government Act of 
2005''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the Freedom of Information Act was signed into law on 
        July 4, 1966, because the American people believe that--
                    (A) our constitutional democracy, our system of 
                self-government, and our commitment to popular 
                sovereignty depends upon the consent of the governed;
                    (B) such consent is not meaningful unless it is 
                informed consent; and
                    (C) as Justice Black noted in his concurring 
                opinion in Barr v. Matteo (360 U.S. 564 (1959)), ``The 
                effective functioning of a free government like ours 
                depends largely on the force of an informed public 
                opinion. This calls for the widest possible 
                understanding of the quality of government service 
                rendered by all elective or appointed public officials 
                or employees.'';
            (2) the American people firmly believe that our system of 
        government must itself be governed by a presumption of 
        openness;
            (3) the Freedom of Information Act establishes a ``strong 
        presumption in favor of disclosure'' as noted by the United 
        States Supreme Court in United States Department of State v. 
        Ray (502 U.S. 164 (1991)), a presumption that applies to all 
        agencies governed by that Act;
            (4) ``disclosure, not secrecy, is the dominant objective of 
        the Act,'' as noted by the United States Supreme Court in 
        Department of Air Force v. Rose (425 U.S. 352 (1976));
            (5) in practice, the Freedom of Information Act has not 
        always lived up to the ideals of that Act; and
            (6) Congress should regularly review section 552 of title 
        5, United States Code (commonly referred to as the Freedom of 
        Information Act), in order to determine whether further changes 
        and improvements are necessary to ensure that the Government 
        remains open and accessible to the American people and is 
        always based not upon the ``need to know'' but upon the 
        fundamental ``right to know''.

SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.

    Section 552(a)(4)(A)(ii) of title 5, United States Code, is amended 
by adding at the end the following:
``In making a determination of a representative of the news media under 
subclause (II), an agency may not deny that status solely on the basis 
of the absence of institutional associations of the requester, but 
shall consider the prior publication history of the requester. Prior 
publication history shall include books, magazine and newspaper 
articles, newsletters, television and radio broadcasts, and Internet 
publications. If the requestor has no prior publication history or 
current affiliation, the agency shall consider the requestor's stated 
intent at the time the request is made to distribute information to a 
reasonably broad audience.''.

SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.

    Section 552(a)(4)(E) of title 5, United States Code, is amended by 
adding at the end the following: ``For purposes of this section, a 
complainant has `substantially prevailed' if the complainant has 
obtained a substantial part 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 a substantial part of the requested 
relief.''.

SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS REJECTIONS OF 
              REQUESTS.

    Section 552(a)(4)(F) of title 5, United States Code, is amended--
            (1) by inserting ``(i)'' after ``(F)''; and
            (2) by adding at the end the following:
    ``(ii) The Attorney General shall--
            ``(I) notify the Special Counsel of each civil action 
        described under the first sentence of clause (i); and
            ``(II) annually submit a report to Congress on the number 
        of such civil actions in the preceding year.
    ``(iii) The Special Counsel shall annually submit a report to 
Congress on the actions taken by the Special Counsel under clause 
(i).''.

SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.

    (a) Time Limits.--
            (1) In general.--Section 552(a)(6)(A)(i) of title 5, United 
        States Code, is amended by inserting ``, and the 20-day period 
        shall commence on the date on which the request is first 
        received by the agency, and shall not be tolled without the 
        consent of the party filing the request'' after ``adverse 
        determination''.
            (2) Effective date.--The amendment made by this subsection 
        shall take effect 1 year after the date of enactment of this 
        Act.
    (b) Availability of Agency Exemptions.--
            (1) In general.--Section 552(a)(6) of title 5, United 
        States Code, is amended by adding at the end the following:
    ``(G)(i) If an agency fails to comply with the applicable time 
limit provisions of this paragraph with respect to a request, the 
agency may not assert any exemption under subsection (b) to that 
request, unless disclosure--
            ``(I) would endanger the national security of the United 
        States;
            ``(II) would disclose personal private information 
        protected by section 552a or proprietary information; or
            ``(III) is otherwise prohibited by law.
    ``(ii) A court may waive the application of clause (i) if the 
agency demonstrates by clear and convincing evidence that there was 
good cause for the failure to comply with the applicable time limit 
provisions.''.
            (2) Effective date and application.--The amendment made by 
        this subsection shall take effect 1 year after the date of 
        enactment of this Act and apply to requests for information 
        under section 552 of title 5, United States Code, filed on or 
        after that effective date.

SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND STATUS 
              INFORMATION.

    (a) In General.--Section 552(a) of title 5, United States Code, is 
amended by adding at the end the following:
    ``(7) Each agency shall--
            ``(A) establish a system to assign an individualized 
        tracking number for each request for information under this 
        section;
            ``(B) not later than 10 days after receiving a request, 
        provide each person making a request with the tracking number 
        assigned to the request; and
            ``(C) establish a telephone line or Internet service that 
        provides information about the status of a request to the 
        person making the request using the assigned tracking number, 
        including--
                    ``(i) the date on which the agency originally 
                received the request; and
                    ``(ii) an estimated date on which the agency will 
                complete action on the request.''.
    (b) Effective Date and Application.--The amendment made by this 
section shall take effect 1 year after the date of enactment of this 
Act and apply to requests for information under section 552 of title 5, 
United States Code, filed on or after that effective date.

SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS.

    Section 552(b) of title 5, United States Code, is amended by 
striking paragraph (3) and inserting the following:
            ``(3) specifically exempted from disclosure by statute 
        (other than section 552b of this title), provided that such 
        statute--
                    ``(A) if enacted after the date of enactment of the 
                Openness Promotes Effectiveness in our National 
                Government Act of 2005, specifically cites to this 
                section; and
                    ``(B)(i) requires that the matters be withheld from 
                the public in such a manner as to leave no discretion 
                on the issue; or
                    ``(ii) establishes particular criteria for 
                withholding or refers to particular types of matters to 
                be withheld;''.

SEC. 9. REPORTING REQUIREMENTS.

    Section 552(e)(1) of title 5, United States Code, is amended--
            (1) in subparagraph (F), by striking ``and'' after the 
        semicolon;
            (2) in subparagraph (G), by striking the period and 
        inserting a semicolon; and
            (3) by adding at the end the following:
            ``(H) data on the 10 active requests with the earliest 
        filing dates pending at each agency, including the amount of 
        time that has elapsed since each request was originally filed;
            ``(I) the average number of days for the agency to respond 
        to a request beginning the date on which the request was 
        originally filed, the median number of days for the agency to 
        respond to such requests, and the range in number of days for 
        the agency to respond to such requests; and
            ``(J) the number of fee status requests that are granted 
        and denied, and the average number of days for adjudicating fee 
        status determinations.
When reporting the total number of requests filed, agencies shall 
distinguish between first person requests for personal records and 
other kinds of requests, and shall provide a total number for each 
category of requests.''.

SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE ENTITY.

    Section 552(f) of title 5, United States Code, is amended by 
striking paragraph (2) and inserting the following:
            ``(2) `record' and any other term used in this section in 
        reference to information includes--
                    ``(A) 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; and
                    ``(B) any information described under subparagraph 
                (A) that is maintained for an agency by an entity under 
                a contract between the agency and the entity.''.

SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.

    (a) In General.--Chapter 5 of title 5, United States Code, is 
amended--
            (1) by redesignating section 596 as section 597; and
            (2) by inserting after section 595 the following:
``Sec. 596. Office of Government Information Services
    ``(a) There is established the Office of Government Information 
Services within the Administrative Conference of the United States.
    ``(b) The Office of Government Information Services shall--
            ``(1) review policies and procedures of administrative 
        agencies under section 552 and compliance with that section by 
        administrative agencies;
            ``(2) conduct audits of administrative agencies on such 
        policies and compliance and issue reports detailing the results 
        of such audits;
            ``(3) recommend policy changes to Congress and the 
        President to improve the administration of section 552, 
including whether agencies are receiving and expending adequate funds 
to ensure compliance with that section; and
            ``(4) offer mediation services between persons making 
        requests under section 552 and administrative agencies as a 
        non-exclusive alternative to litigation and, at the discretion 
        of the Office, issue advisory opinions if mediation has not 
        resolved the dispute.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 5, United States Code, is amended by striking the 
item relating to section 596 and inserting the following:

``596. Office of Government Information Services.
``597. Authorization of appropriations.''.
    (c) Effective Date.--The amendments made by this section shall take 
effect 1 year after the date of enactment of this Act.

SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE INFORMATION.

    (a) In General.--Not later than January 1 of each of the 3 years 
following the date of the enactment of this Act, the Comptroller 
General of the United States shall submit to Congress a report on the 
implementation and use of section 214 of the Homeland Security Act of 
2002 (6 U.S.C. 133), including--
            (1) the number of persons in the private sector, and the 
        number of State and local agencies, that voluntarily furnished 
        records to the Department under this section;
            (2) the number of requests for access to records granted or 
        denied under this section;
            (3) 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; and
            (4) an examination of whether the nondisclosure of such 
        information has led to the increased protection of critical 
        infrastructure.
    (b) Form.--The report shall be submitted in unclassified form, but 
may include a classified annex.

SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.

    Not later than 1 year after the date of enactment of this Act, the 
Office of Personnel Management shall submit to Congress a report that 
examines--
            (1) whether changes to executive branch personnel policies 
        could be made that would--
                    (A) provide greater encouragement to all Federal 
                employees to fulfill their duties under section 552 of 
                title 5, United States Code; and
                    (B) enhance the stature of officials administering 
                that section within the executive branch;
            (2) whether performance of compliance with section 552 of 
        title 5, United States Code, should be included as a factor in 
        personnel performance evaluations for any or all categories of 
        Federal employees and officers;
            (3) whether an employment classification series specific to 
        compliance with sections 552 and 552a of title 5, United States 
        Code, should be established;
            (4) whether the highest level officials in particular 
        agencies administering such sections should be paid at a rate 
        of pay equal to or greater than a particular minimum rate;
            (5) whether other changes to personnel policies can be made 
        to ensure that there is a clear career advancement track for 
        individuals interested in devoting themselves to a career in 
        compliance with such sections; and
            (6) whether the executive branch should require any or all 
        categories of Federal employees to undertake awareness training 
        of such sections.
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