[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2427 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 2427

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

                            December 6, 2007

 Mr. Leahy (for himself and Mr. Cornyn) 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 2007'' or the ``OPEN Government Act of 
2007''.

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:
    ``The term `a representative of the news media' means any person or 
entity that gathers information of potential interest to a segment of 
the public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term 
`news' means information that is about current events or that would be 
of current interest to the public. Examples of news-media entities are 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only if such entities qualify as 
disseminators of `news') who make their products available for purchase 
by or subscription by or free distribution to the general public. These 
examples are not all-inclusive. Moreover, as methods of news delivery 
evolve (for example, the adoption of the electronic dissemination of 
newspapers through telecommunications services), such alternative media 
shall be considered to be news-media entities. A freelance journalist 
shall be regarded as working for a news-media entity if the journalist 
can demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; the Government may also consider the past publication 
record of the requester in making such a determination.''.

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

    (a) In General.--Section 552(a)(4)(E) of title 5, United States 
Code, is amended--
            (1) by inserting ``(i)'' after ``(E)''; and
            (2) by adding at the end the following:
                            ``(ii) For purposes of this section, a 
                        complainant has substantially prevailed if the 
                        complainant has obtained relief through 
                        either--
                    ``(I) a judicial order, or an enforceable written 
                agreement or consent decree; or
                    ``(II) a voluntary or unilateral change in position 
                by the agency, provided that the complainant's claim is 
                not insubstantial.''.
    (b) Limitation.--Notwithstanding section 1304 of title 31, United 
States Code, no amounts may be obligated or expended from the Claims 
and Judgment Fund of the United States Treasury to pay the costs 
resulting from fees assessed under section 552(a)(4)(E) of title 5, 
United States Code. Any such amounts shall be paid only from funds 
annually appropriated for the Federal agency against which a claim or 
judgment has been rendered.

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 ``determination;'' and 
        inserting ``determination. The 20-day period shall commence on 
        the date on which the request is first received by the 
        appropriate component of the agency, but in any event no later 
        than ten days after the request is first received by any 
        component of the agency that is designated in the agency's FOIA 
        regulations to receive FOIA requests. The 20-day period shall 
        not be tolled by the agency except--
            ``(I) that the agency may make one request to the requester 
        for information and toll the 20-day period while it is awaiting 
        such information that it has reasonably requested from the FOIA 
        requester; or
            ``(II) if necessary to clarify with the requester issues 
        regarding fee assessment. In either case, the agency's receipt 
        of the requester's response to the agency's request for 
        information or clarification ends the tolling period;''.
            (2) Effective date.--The amendment made by this subsection 
        shall take effect 1 year after the date of enactment of this 
        Act.
    (b) Compliance With Time Limits.--
            (1) In general.--
                    (A) Search fees.--Section 552(a)(4)(A) of title 5, 
                United States Code, is amended by adding at the end the 
                following:
                            ``(viii) an agency shall refund search fees 
                        under this subparagraph if the agency fails to 
                        comply with any time limit under paragraph (6), 
                        provided that--
                                    ``(I) no unusual or exceptional 
                                circumstances (as those terms are 
                                defined for purposes of paragraphs 
                                (6)(B) and (C), respectively) apply to 
                                the processing of the request; and
                                    ``(II) such refunds shall be paid 
                                from annual appropriations provided to 
                                that agency.''.
                    (B) Public liaison.--Section 552(a)(6)(B)(ii) of 
                title 5, United States Code, is amended by inserting 
                between the first and second sentences the following: 
                ``To aid the requester, each agency shall make 
                available its FOIA Public Liaison, who shall assist in 
                the resolution of any disputes between the requester 
                and the agency.''.
            (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 received that will take longer 
        than ten days to process and provide to each person making a 
        request the tracking number assigned to the request; and
            ``(B) 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. REPORTING REQUIREMENTS.

    (a) In General.--Section 552(e)(1) of title 5, United States Code, 
is amended--
            (1) in subparagraph (B)(ii), by inserting after the first 
        comma ``the number of occasions on which each statute was 
        relied upon,'';
            (2) in subparagraph (C), by inserting ``and average'' after 
        ``median'';
            (3) in subparagraph (E), by inserting before the semicolon 
        ``, based on the date on which the requests were received by 
        the agency'';
            (4) by redesignating subparagraphs (F) and (G) as 
        subparagraphs (N) and (O), respectively; and
            (5) by inserting after subparagraph (E) the following:
                    ``(F) the average number of days for the agency to 
                respond to a request beginning on the date on which the 
                request was 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 originally received 
                by the agency--
                            ``(i) the number of requests for records to 
                        which the agency has responded with a 
                        determination within a period up to and 
                        including 20 days, and in 20-day increments up 
                        to and including 200 days;
                            ``(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 the request was originally filed, 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 to administrative appeals based on 
                the date on which the appeals originally were 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 each agency, including 
                the amount of time that has elapsed since each request 
                was originally received by the agency;
                    ``(K) 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 received by the 
                agency;
                    ``(L) the number of expedited review requests that 
                are granted and denied, the average and median number 
                of days for adjudicating expedited review requests, and 
                the number adjudicated within the required 10 days;
                    ``(M) the number of fee waiver requests that are 
                granted and denied, and the average and median number 
                of days for adjudicating fee waiver determinations;''.
    (b) Applicability to Agency and Each Principal Component of the 
Agency.--Section 552(e) of title 5, United States Code, is amended--
            (1) by redesignating paragraphs (2) through (5) as 
        paragraphs (3) through (6), respectively; and
            (2) by inserting after paragraph (1) the following:
            ``(2) Information in each report submitted under paragraph 
        (1) shall be expressed in terms of each principal component of 
        the agency and for the agency overall.''.
    (c) Public Availability of Data.--Section 552(e)(3) of title 5, 
United States Code, (as redesignated by subsection (b) of this section) 
is amended by adding after the period ``In addition, each agency shall 
make the raw statistical data used in its reports available 
electronically to the public upon request.''.

SEC. 9. 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 
                Government contract, for the purposes of records 
                management.''.

SEC. 10. OFFICE OF GOVERNMENT INFORMATION SERVICES.

    (a) In General.--Section 552 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(h) There is established the Office of Government lnformation 
Services within the National Archives and Records Administration. The 
Office of Government Information Services shall review policies and 
procedures of administrative agencies under section 552, shall review 
compliance with section 552 by administrative agencies, and shall 
recommend policy changes to Congress and the President to improve the 
administration of section 552. The Office of Government Information 
Services shall offer mediation services to resolve disputes between 
persons making requests under section 552 and administrative agencies 
as a non-exclusive alternative to litigation and, at the discretion of 
the Office, may issue advisory opinions if mediation has not resolved 
the dispute.
    ``(i) The Government Accountability Office shall conduct audits of 
administrative agencies on the implementation of section 552 and issue 
reports detailing the results of such audits.
    ``(j) Each agency shall--
            ``(1) Designate a Chief FOIA Officer who shall be a senior 
        official of such agency (at the Assistant Secretary or 
        equivalent level).
    ``(a) General Duties.--The Chief FOIA Officer of each agency shall, 
subject to the authority of the head of the agency--
            ``(A) have agency-wide responsibility for efficient and 
        appropriate compliance with the FOIA;
                    ``(B) monitor FOIA implementation throughout the 
                agency and keep the head of the agency, the chief legal 
                officer of the agency, and the Attorney General 
                appropriately informed of the agency's performance in 
                implementing the FOIA;
                    ``(C) recommend to the head of the agency such 
                adjustments to agency practices, policies, personnel, 
                and funding as may be necessary to improve its 
                implementation of the FOIA;
                    ``(D) review and report to the Attorney General, 
                through the head of the agency, at such times and in 
                such formats as the Attorney General may direct, on the 
                agency's performance in implementing the FOIA; and
                    ``(E) facilitate public understanding of the 
                purposes of the FOIA's statutory exemptions by 
                including concise descriptions of the exemptions in 
                both the agency's FOIA handbook issued under section 
                552(g) of title 5, United States Code, and the agency's 
                annual FOIA report, and by providing an overview, where 
                appropriate, of certain general categories of agency 
                records to which those exemptions apply.
            ``(2) Designate one or more FOIA Public Liaisons who shall 
        be appointed by the Chief FOIA Officer.
    ``(b) General Duties.--FOIA Public Liaisons shall report to the 
agency Chief FOIA Officer and shall serve as supervisory officials to 
whom a FOIA requester can raise concerns about the service the FOIA 
requester has received from the FOIA Requester Center, following an 
initial response from the FOIA Requester Center Staff. FOIA Public 
Liaisons shall be responsible for assisting in reducing delays, 
increasing transparency and understanding of the status of requests, 
and assisting in the resolution of disputes.
    ``(c) Effective Date.--The amendments made by this section shall 
take effect on the date of enactment of this Act.''.

SEC. 11. 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.
                                 <all>