[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 337 Engrossed in Senate (ES)]
<DOC>
114th CONGRESS
2d Session
S. 337
_______________________________________________________________________
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.
Passed the Senate March 15, 2016.
Attest:
Secretary.
114th CONGRESS
2d Session
S. 337
_______________________________________________________________________
AN ACT
To improve the Freedom of Information Act.