[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 849 Reported in Senate (RS)]






                                                       Calendar No. 127
110th CONGRESS
  1st Session
                                 S. 849

                          [Report No. 110-59]

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

                             March 13, 2007

  Mr. Leahy (for himself, Mr. Cornyn, Mr. Specter, Mr. Feingold, Mr. 
Kerry, Mr. Isakson, Mr. Brown, Mr. Cardin, and Ms. Landrieu) introduced 
the following bill; which was read twice and referred to the Committee 
                            on the Judiciary

                             April 30, 2007

                Reported by Mr. Leahy, without amendment

_______________________________________________________________________

                                 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 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--
            (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, an 
                                administrative action, or an 
                                enforceable written agreement or 
                                consent decree; or
                                    ``(II) a voluntary or unilateral 
                                change in position by the opposing 
                                party, where the complaintant'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 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.

    (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. 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; 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.
                                                       Calendar No. 127

110th CONGRESS

  1st Session

                                 S. 849

                          [Report No. 110-59]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             April 30, 2007

                       Reported without amendment