[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2488 Considered and Passed Senate (CPS)]







110th CONGRESS
  1st Session
                                S. 2488

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 14, 2007

 Mr. Leahy (for himself, Mr. Cornyn, Mr. Kyl, Mr. Specter, Mr. Kerry, 
  Mrs. Boxer, Mr. Feingold, Mr. Durbin, Ms. Landrieu, Mr. Smith, Mr. 
Alexander, Mr. Coburn, Mr. Isakson, Mr. Obama, Mr. Cardin, Mr. Sanders, 
Mr. Brown, and Mrs. McCaskill) introduced the following bill; which was 
        read twice, considered, read the third time, and passed

_______________________________________________________________________

                                 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:
    ``In this clause, 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. In this clause, 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 subparagraph, 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, if 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 any authorized purpose 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) of title 5, United 
        States Code, is amended by inserting after clause (ii) the 
        following:
            ``The 20-day period under clause (i) shall commence on the 
        date on which the request is first received by the appropriate 
        component of the agency, but in any event not later than ten 
        days after the request is first received by any component of 
        the agency that is designated in the agency's regulations under 
        this section to receive requests under this section. 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 requester under this section; 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 not assess search 
                        fees (or in the case of a requester described 
                        under clause (ii)(II), duplication fees) under 
                        this subparagraph if the agency fails to comply 
                        with any time limit under paragraph (6), if 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.''.
                    (B) Public liaison.--Section 552(a)(6)(B)(ii) of 
                title 5, United States Code, is amended by inserting 
                after the first sentence 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 at the end ``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)(1) There is established the Office of Government Information 
Services within the National Archives and Records Administration.
    ``(2) The Office of Government Information Services shall--
            ``(A) review policies and procedures of administrative 
        agencies under this section;
            ``(B) review compliance with this section by administrative 
        agencies; and
            ``(C) recommend policy changes to Congress and the 
        President to improve the administration of this section.
    ``(3) The Office of Government Information Services shall offer 
mediation services to resolve disputes between persons making requests 
under this section 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 this section and issue 
reports detailing the results of such audits.
    ``(j) Each agency shall designate a Chief FOIA Officer who shall be 
a senior official of such agency (at the Assistant Secretary or 
equivalent level).
    ``(k) The Chief FOIA Officer of each agency shall, subject to the 
authority of the head of the agency--
            ``(1) have agency-wide responsibility for efficient and 
        appropriate compliance with this section;
            ``(2) monitor implementation of this section 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 this section;
            ``(3) 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 this section;
            ``(4) 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 this section;
            ``(5) facilitate public understanding of the purposes of 
        the statutory exemptions of this section by including concise 
        descriptions of the exemptions in both the agency's handbook 
        issued under subsection (g), and the agency's annual report on 
        this section, and by providing an overview, where appropriate, 
        of certain general categories of agency records to which those 
        exemptions apply; and
            ``(6) designate one or more FOIA Public Liaisons.
    ``(l) FOIA Public Liaisons shall report to the agency Chief FOIA 
Officer and shall serve as supervisory officials to whom a requester 
under this section can raise concerns about the service the 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.''.
    (b) 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; and
            (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.

SEC. 12. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING DELETIONS OF 
              MATERIAL PROVIDED UNDER FOIA.

    Section 552(b) of title 5, United States Code, is amended in the 
matter after paragraph (9)--
            (1) in the second sentence, by inserting after ``amount of 
        information deleted'' the following: ``, and the exemption 
        under which the deletion is made,''; and
            (2) in the third sentence, by inserting after ``amount of 
        the information deleted'' the following: ``, and the exemption 
        under which the deletion is made,''.
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