[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1326 Introduced in House (IH)]







110th CONGRESS
  1st Session
                                H. R. 1326

To promote 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 HOUSE OF REPRESENTATIVES

                             March 5, 2007

Mr. Smith of Texas introduced the following bill; which was referred to 
            the Committee on Oversight and Government Reform

_______________________________________________________________________

                                 A BILL


 
To promote 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Openness Promotes 
Effectiveness in our National Government Act of 2007'' or the ``OPEN 
Government Act of 2007''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Protection of fee status for news media.
Sec. 4. Recovery of attorney fees and litigation costs.
Sec. 5. Disciplinary actions for arbitrary and capricious rejections of 
                            requests.
Sec. 6. Time limits for agencies to act on requests.
Sec. 7. Individualized tracking numbers for requests and status 
                            information.
Sec. 8. Specific citations in exemptions.
Sec. 9. Reporting requirements.
Sec. 10. Openness of agency records maintained by a private entity.
Sec. 11. Office of Government Information Services.
Sec. 12. Accessibility of critical infrastructure information.
Sec. 13. Report on personnel policies related to FOIA.

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 State Code, is amended by 
adding at the end the following: ``For purposes of this section only, a 
complainant has substantially prevailed if the complainant has obtained 
relief through either--
                    ``(i) a judicial order, administrative action, or 
                an enforceable written agreement or consent decree; or
                    ``(ii) a voluntary or unilateral change in position 
                by the opposing party, in a case in which the 
                complainant's claim or defense was not frivolous.''.

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 striking ``determine within 20 days 
        (excepting Saturdays, Sundays, and legal public holidays) after 
        the receipt of any such request'' and inserting ``within the 
        20-day period commencing on the date on which the request is 
        first received by the agency (excepting Saturdays, Sundays, and 
        legal public holidays), which shall not be tolled without the 
        consent of the party filing the request, determine''.
            (2) Effective date.--The amendment made by this subsection 
        shall take effect 1 year after the date of enactment of this 
        Act.
    (b) Applicability of Agency Fees.--
            (1) Limitation.--Section 552(a)(4)(A) of title 5, United 
        States Code, is amended by adding at the end the following:
                            ``(vii) An agency may not charge any fees 
                        under this subparagraph if the agency fails to 
                        comply with any time limit that applies under 
                        paragraph (6).''.
            (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 shall 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 2007, 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.

    (a) Annual Report Requirements.--Section 552(e)(1) of title 5, 
United States Code, is amended--
            (1) in the matter preceding subparagraph (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 for the agency overall, 
        and'';
            (2) in subparagraph (B)(ii), by inserting after the first 
        comma the following, ``the number of occasions on which each 
        statute was relied upon,'';
            (3) in subparagraph (C), by inserting after ``median'' the 
        following: ``and average'';
            (4) in subparagraph (E), by inserting before the semicolon 
        the following: ``, based on the date on which each request was 
        initially received by the agency''; and
            (5) by redesignating subparagraphs (F) and (G) as 
        subparagraphs (N) and (O), respectively, and inserting after 
        subparagraph (E) the following new subparagraphs:
                    ``(F) the average number of days for the agency to 
                respond to requests beginning on the date on which each 
                request was initially received by the agency, 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;
                    ``(G) based on the number of business days that 
                have elapsed since each request was initially received 
                by the agency--
                            ``(i) the number of requests for records to 
                        which the agency has responded with a 
                        determination within a period greater than 1 
                        day and less than 201 days, stated in 20-day 
                        increments;
                            ``(ii) the number of requests for records 
                        to which the agency has responded with a 
                        determination within a period greater than 200 
                        days and less than 301 days;
                            ``(iii) the number of requests for records 
                        to which the agency has responded with a 
                        determination within a period greater than 300 
                        days and less than 401 days; and
                            ``(iv) the number of requests for records 
                        to which the agency has responded with a 
                        determination within a period greater than 400 
                        days;
                    ``(H) the average number of days for the agency to 
                provide the granted information beginning on the date 
                on which each request was initially received by the 
                agency, the median number of days for the agency to 
                provide the granted information, and the range in 
                number of days for the agency to provide the granted 
                information;
                    ``(I) the median and average number of days for the 
                agency to respond with a determination to 
                administrative appeals based on the date on which each 
                appeal was initially received by 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) data on the 10 active requests with the 
                earliest filing dates pending at the agency, including 
                the amount of time that has elapsed since each request 
                was initially received by the agency;
                    ``(K) data on the 10 active administrative appeals 
                with the earliest filing dates pending at the agency as 
                of September 30 of the preceding year, including the 
                number of business days that have elapsed since each 
                request was initially received by the agency;
                    ``(L) the number of expedited review requests 
                received by the agency, the number that were granted 
                and the number that were denied, the average and median 
                number of days for adjudicating expedited review 
                requests, and the number of requests that adjudicated 
                within the required 10 days;
                    ``(M) the number of fee waiver requests that were 
                granted and the number that were denied, and the 
                average and median number of days for adjudicating fee 
                waiver determinations;''.
    (b) Availability of Raw Statistical Data.--Section 552(e)(2) of 
title 5, United States Code, is amended by adding after the period the 
following: ``In addition, each agency shall make the raw statistical 
data used in its reports available electronically to the public upon 
request.''.

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 21 of title 5, United States Code, is 
amended by inserting after section 2119 the following new section:
``Sec. 2120. Office of Government Information Services
    ``(a) In General.--There is established in the National Archives an 
office to be known as the `Office of Government Information Services'.
    ``(b) National Information Advocate.--
            ``(1) In general.--The Office of Government Information 
        Services shall be under the supervision and direction of an 
        official to be known as the `National Information Advocate' who 
        shall report directly to the Archivist of the United States.
            ``(2) Functions of office.--
                    ``(A) Guidance for requesters.--
                            ``(i) In general.--The Office of Government 
                        Information Services shall provide, as a non-
                        exclusive alternative to litigation, guidance 
                        to FOIA requesters.
                            ``(ii) Types of guidance.--In providing 
                        such guidance, the Office shall provide 
                        informal guidance to requesters and may provide 
                        fact-finding reviews and opinions to 
                        requesters. All reviews and opinions shall be 
                        non-binding and shall be initiated only on the 
                        request of FOIA requesters.
                            ``(iii) Availability.--Any written opinion 
                        issued pursuant to this section shall be 
                        available on the Internet in an indexed, 
                        readily accessible format.
                            ``(iv) FOIA requesters.--In this paragraph, 
                        the term `FOIA requester' or `requester' means 
                        a person who has made a request under section 
                        552 of this title and who has been denied 
                        records or has not received a timely response 
                        to the request or to an administrative appeal.
                    ``(B) Analyses of agency operations.--The Office of 
                Government Information Services shall--
                            ``(i) review polices and procedures of 
                        administrative agencies under section 552 of 
                        this title and compliance with that section by 
                        administrative agencies; and
                            ``(ii) recommend policy changes to Congress 
                        and the President to improve the administration 
                        of section 552 of this title, including whether 
                        agencies are receiving and expending adequate 
                        funds to ensure compliance with that section.
            ``(3) Impact on requester access to litigation.--Nothing in 
        this section shall affect the right of requesters to seek 
        judicial review as described in section 552 of this title.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 21 of title 5, United States Code, is amended by inserting 
after the item relating to section 2119 the following:

``2120. Office of Government Information Services.''.

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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