[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 337 Enrolled Bill (ENR)]
S.337
One Hundred Fourteenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the fourth day of January, two thousand and sixteen
An Act
To improve the Freedom of Information Act.
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 ``FOIA Improvement Act of 2016''.
SEC. 2. AMENDMENTS TO FOIA.
Section 552 of title 5, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) in the matter preceding subparagraph (A), by
striking ``for public inspection and copying'' and
inserting ``for public inspection in an electronic
format'';
(ii) by striking subparagraph (D) and inserting the
following:
``(D) copies of all records, regardless of form or format--
``(i) that have been released to any person under paragraph
(3); and
``(ii)(I) that because of the nature of their subject
matter, the agency determines have become or are likely to
become the subject of subsequent requests for substantially the
same records; or
``(II) that have been requested 3 or more times; and''; and
(iii) in the undesignated matter following subparagraph
(E), by striking ``public inspection and copying current''
and inserting ``public inspection in an electronic format
current'';
(B) in paragraph (4)(A), by striking clause (viii) and
inserting the following:
``(viii)(I) Except as provided in subclause (II), an agency
shall not assess any search fees (or in the case of a requester
described under clause (ii)(II) of this subparagraph,
duplication fees) under this subparagraph if the agency has
failed to comply with any time limit under paragraph (6).
``(II)(aa) If an agency has determined that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provided a timely written notice to the
requester in accordance with paragraph (6)(B), a failure
described in subclause (I) is excused for an additional 10
days. If the agency fails to comply with the extended time
limit, the agency may not assess any search fees (or in the
case of a requester described under clause (ii)(II) of this
subparagraph, duplication fees).
``(bb) If an agency has determined that unusual
circumstances apply and more than 5,000 pages are necessary to
respond to the request, an agency may charge search fees (or in
the case of a requester described under clause (ii)(II) of this
subparagraph, duplication fees) if the agency has provided a
timely written notice to the requester in accordance with
paragraph (6)(B) and the agency has discussed with the
requester via written mail, electronic mail, or telephone (or
made not less than 3 good-faith attempts to do so) how the
requester could effectively limit the scope of the request in
accordance with paragraph (6)(B)(ii).
``(cc) If a court has determined that exceptional
circumstances exist (as that term is defined in paragraph
(6)(C)), a failure described in subclause (I) shall be excused
for the length of time provided by the court order.'';
(C) in paragraph (6)--
(i) in subparagraph (A)(i), by striking ``making such
request'' and all that follows through ``determination;
and'' and inserting the following: ``making such request
of--
``(I) such determination and the reasons therefor;
``(II) the right of such person to seek assistance from
the FOIA Public Liaison of the agency; and
``(III) in the case of an adverse determination--
``(aa) the right of such person to appeal to the
head of the agency, within a period determined by the
head of the agency that is not less than 90 days after
the date of such adverse determination; and
``(bb) the right of such person to seek dispute
resolution services from the FOIA Public Liaison of the
agency or the Office of Government Information
Services; and''; and
(ii) in subparagraph (B)(ii), by striking ``the
agency.'' and inserting ``the agency, and notify the
requester of the right of the requester to seek dispute
resolution services from the Office of Government
Information Services.''; and
(D) by adding at the end the following:
``(8)(A) An agency shall--
``(i) withhold information under this section only if--
``(I) the agency reasonably foresees that disclosure would
harm an interest protected by an exemption described in
subsection (b); or
``(II) disclosure is prohibited by law; and
``(ii)(I) consider whether partial disclosure of information is
possible whenever the agency determines that a full disclosure of a
requested record is not possible; and
``(II) take reasonable steps necessary to segregate and release
nonexempt information; and
``(B) Nothing in this paragraph requires disclosure of information
that is otherwise prohibited from disclosure by law, or otherwise
exempted from disclosure under subsection (b)(3).'';
(2) in subsection (b), by amending paragraph (5) to read as
follows:
``(5) inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in
litigation with the agency, provided that the deliberative process
privilege shall not apply to records created 25 years or more
before the date on which the records were requested;''; and
(3) in subsection (e)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A), by
inserting ``and to the Director of the Office of Government
Information Services'' after ``United States'';
(ii) in subparagraph (N), by striking ``and'' at the
end;
(iii) in subparagraph (O), by striking the period at
the end and inserting a semicolon; and
(iv) by adding at the end the following:
``(P) the number of times the agency denied a request for
records under subsection (c); and
``(Q) the number of records that were made available for public
inspection in an electronic format under subsection (a)(2).'';
(B) by striking paragraph (3) and inserting the following:
``(3) Each agency shall make each such report available for public
inspection in an electronic format. In addition, each agency shall make
the raw statistical data used in each report available in a timely
manner for public inspection in an electronic format, which shall be
made available--
``(A) without charge, license, or registration requirement;
``(B) in an aggregated, searchable format; and
``(C) in a format that may be downloaded in bulk.'';
(C) in paragraph (4)--
(i) by striking ``Government Reform and Oversight'' and
inserting ``Oversight and Government Reform'';
(ii) by inserting ``Homeland Security and'' before
``Governmental Affairs''; and
(iii) by striking ``April'' and inserting ``March'';
and
(D) by striking paragraph (6) and inserting the following:
``(6)(A) The Attorney General of the United States shall submit to
the Committee on Oversight and Government Reform of the House of
Representatives, the Committee on the Judiciary of the Senate, and the
President a report on or before March 1 of each calendar year, which
shall include for the prior calendar year--
``(i) a listing of the number of cases arising under this
section;
``(ii) a listing of--
``(I) each subsection, and any exemption, if applicable,
involved in each case arising under this section;
``(II) the disposition of each case arising under this
section; and
``(III) the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4); and
``(iii) a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this
section.
``(B) The Attorney General of the United States shall make--
``(i) each report submitted under subparagraph (A) available
for public inspection in an electronic format; and
``(ii) the raw statistical data used in each report submitted
under subparagraph (A) available for public inspection in an
electronic format, which shall be made available--
``(I) without charge, license, or registration requirement;
``(II) in an aggregated, searchable format; and
``(III) in a format that may be downloaded in bulk.'';
(4) in subsection (g), in the matter preceding paragraph (1),
by striking ``publicly available upon request'' and inserting
``available for public inspection in an electronic format'';
(5) in subsection (h)--
(A) in paragraph (1), by adding at the end the following:
``The head of the Office shall be the Director of the Office of
Government Information Services.'';
(B) in paragraph (2), by striking subparagraph (C) and
inserting the following:
``(C) identify procedures and methods for improving compliance
under this section.'';
(C) by striking paragraph (3) and inserting the following:
``(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 nonexclusive
alternative to litigation and may issue advisory opinions at the
discretion of the Office or upon request of any party to a dispute.'';
and
(D) by adding at the end the following:
``(4)(A) Not less frequently than annually, the Director of the
Office of Government Information Services shall submit to the Committee
on Oversight and Government Reform of the House of Representatives, the
Committee on the Judiciary of the Senate, and the President--
``(i) a report on the findings of the information reviewed and
identified under paragraph (2);
``(ii) a summary of the activities of the Office of Government
Information Services under paragraph (3), including--
``(I) any advisory opinions issued; and
``(II) the number of times each agency engaged in dispute
resolution with the assistance of the Office of Government
Information Services or the FOIA Public Liaison; and
``(iii) legislative and regulatory recommendations, if any, to
improve the administration of this section.
``(B) The Director of the Office of Government Information Services
shall make each report submitted under subparagraph (A) available for
public inspection in an electronic format.
``(C) The Director of the Office of Government Information Services
shall not be required to obtain the prior approval, comment, or review
of any officer or agency of the United States, including the Department
of Justice, the Archivist of the United States, or the Office of
Management and Budget before submitting to Congress, or any committee
or subcommittee thereof, any reports, recommendations, testimony, or
comments, if such submissions include a statement indicating that the
views expressed therein are those of the Director and do not
necessarily represent the views of the President.
``(5) The Director of the Office of Government Information Services
may directly submit additional information to Congress and the
President as the Director determines to be appropriate.
``(6) Not less frequently than annually, the Office of Government
Information Services shall conduct a meeting that is open to the public
on the review and reports by the Office and shall allow interested
persons to appear and present oral or written statements at the
meeting.'';
(6) by striking subsections (j) and (k), and inserting the
following:
``(j)(1) Each agency shall designate a Chief FOIA Officer who shall
be a senior official of such agency (at the Assistant Secretary or
equivalent level).
``(2) 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 this section;
``(B) 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;
``(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 this section;
``(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 this section;
``(E) 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;
``(F) offer training to agency staff regarding their
responsibilities under this section;
``(G) serve as the primary agency liaison with the Office of
Government Information Services and the Office of Information
Policy; and
``(H) designate 1 or more FOIA Public Liaisons.
``(3) The Chief FOIA Officer of each agency shall review, not less
frequently than annually, all aspects of the administration of this
section by the agency to ensure compliance with the requirements of
this section, including--
``(A) agency regulations;
``(B) disclosure of records required under paragraphs (2) and
(8) of subsection (a);
``(C) assessment of fees and determination of eligibility for
fee waivers;
``(D) the timely processing of requests for information under
this section;
``(E) the use of exemptions under subsection (b); and
``(F) dispute resolution services with the assistance of the
Office of Government Information Services or the FOIA Public
Liaison.
``(k)(1) There is established in the executive branch the Chief
FOIA Officers Council (referred to in this subsection as the
`Council').
``(2) The Council shall be comprised of the following members:
``(A) The Deputy Director for Management of the Office of
Management and Budget.
``(B) The Director of the Office of Information Policy at the
Department of Justice.
``(C) The Director of the Office of Government Information
Services.
``(D) The Chief FOIA Officer of each agency.
``(E) Any other officer or employee of the United States as
designated by the Co-Chairs.
``(3) The Director of the Office of Information Policy at the
Department of Justice and the Director of the Office of Government
Information Services shall be the Co-Chairs of the Council.
``(4) The Administrator of General Services shall provide
administrative and other support for the Council.
``(5)(A) The duties of the Council shall include the following:
``(i) Develop recommendations for increasing compliance and
efficiency under this section.
``(ii) Disseminate information about agency experiences, ideas,
best practices, and innovative approaches related to this section.
``(iii) Identify, develop, and coordinate initiatives to
increase transparency and compliance with this section.
``(iv) Promote the development and use of common performance
measures for agency compliance with this section.
``(B) In performing the duties described in subparagraph (A), the
Council shall consult on a regular basis with members of the public who
make requests under this section.
``(6)(A) The Council shall meet regularly and such meetings shall
be open to the public unless the Council determines to close the
meeting for reasons of national security or to discuss information
exempt under subsection (b).
``(B) Not less frequently than annually, the Council shall hold a
meeting that shall be open to the public and permit interested persons
to appear and present oral and written statements to the Council.
``(C) Not later than 10 business days before a meeting of the
Council, notice of such meeting shall be published in the Federal
Register.
``(D) Except as provided in subsection (b), the records, reports,
transcripts, minutes, appendices, working papers, drafts, studies,
agenda, or other documents that were made available to or prepared for
or by the Council shall be made publicly available.
``(E) Detailed minutes of each meeting of the Council shall be kept
and shall contain a record of the persons present, a complete and
accurate description of matters discussed and conclusions reached, and
copies of all reports received, issued, or approved by the Council. The
minutes shall be redacted as necessary and made publicly available.'';
and
(7) by adding at the end the following:
``(m)(1) The Director of the Office of Management and Budget, in
consultation with the Attorney General, shall ensure the operation of a
consolidated online request portal that allows a member of the public
to submit a request for records under subsection (a) to any agency from
a single website. The portal may include any additional tools the
Director of the Office of Management and Budget finds will improve the
implementation of this section.
``(2) This subsection shall not be construed to alter the power of
any other agency to create or maintain an independent online portal for
the submission of a request for records under this section. The
Director of the Office of Management and Budget shall establish
standards for interoperability between the portal required under
paragraph (1) and other request processing software used by agencies
subject to this section.''.
SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the head of each agency (as defined in section
551 of title 5, United States Code) shall review the regulations of
such agency and shall issue regulations on procedures for the
disclosure of records under section 552 of title 5, United States Code,
in accordance with the amendments made by section 2.
(b) Requirements.--The regulations of each agency shall include
procedures for engaging in dispute resolution through the FOIA Public
Liaison and the Office of Government Information Services.
SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.
Section 3102 of title 44, United States Code, is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs (3)
and (4); and
(2) by inserting after paragraph (1) the following:
``(2) procedures for identifying records of general interest or
use to the public that are appropriate for public disclosure, and
for posting such records in a publicly accessible electronic
format;''.
SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the requirements of
this Act or the amendments made by this Act. The requirements of this
Act and the amendments made by this Act shall be carried out using
amounts otherwise authorized or appropriated.
SEC. 6. APPLICABILITY.
This Act, and the amendments made by this Act, shall take effect on
the date of enactment of this Act and shall apply to any request for
records under section 552 of title 5, United States Code, made after
the date of enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.