[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2488 Referred in House (RFH)]
110th CONGRESS
1st Session
S. 2488
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 17, 2007
Referred to the Committee on Oversight and Government Reform
_______________________________________________________________________
AN ACT
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,''.
Passed the Senate December 14, 2007.
Attest:
NANCY ERICKSON,
Secretary.