[Congressional Record Volume 140, Number 126 (Monday, September 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT

  The text of the bill (S. 1782) to amend title 5, United States Code, 
to provide for public access to information in an electronic format, to 
amend the Freedom of Information Act, and for other purposes, as passed 
by the Senate on August 25, 1994, is as follows:

                                S. 1782

       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 ``Electronic Freedom of 
     Information Improvement Act of 1994''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--The Congress finds that--
       (1) the purpose of the Freedom of Information Act is to 
     require agencies of the Federal Government to make certain 
     agency information available for public inspection and 
     copying and to establish and enable enforcement of the right 
     of any person to obtain access to the records of such 
     agencies (subject to statutory exemptions) for any public or 
     private purpose;
       (2) since the enactment of the Freedom of Information Act 
     in 1966, and the amendments enacted in 1974 and 1986, the 
     Freedom of Information Act has been a valuable means through 
     which any person can learn how the Federal Government 
     operates;
       (3) the Freedom of Information Act has led to the 
     disclosure of waste, fraud, abuse, and wrongdoing in the 
     Federal Government;
       (4) the Freedom of Information Act has led to the 
     identification of unsafe consumer products, harmful drugs, 
     and serious health hazards;
       (5) Government agencies increasingly use computers to 
     conduct agency business and to store publicly valuable agency 
     records and information; and
       (6) Government agencies should use new technology to 
     enhance public access to agency records and information.
       (b) Purposes.--The purposes of this Act are to--
       (1) foster democracy by ensuring public access to agency 
     records and information;
       (2) improve public access to agency records and 
     information;
       (3) ensure agency compliance with statutory time limits; 
     and
       (4) maximize the usefulness of agency records and 
     information collected, maintained, used, retained, and 
     disseminated by the Federal Government.

     SEC. 3. PUBLIC INFORMATION AVAILABILITY.

       Section 552(a)(1) of title 5, United States Code, is 
     amended--
       (1) in the first sentence by inserting ``by computer 
     telecommunications, or if computer telecommunications means 
     are not available, by other electronic means,'' after 
     ``Federal Register'';
       (2) by striking out ``and'' at the end of subparagraph (D);
       (3) by redesignating subparagraph (E) as subparagraph (F); 
     and
       (4) by inserting after subparagraph (D) the following new 
     subparagraph:
       ``(E) a complete list of all statutes that the agency head 
     or general counsel relies upon to authorize the agency to 
     withhold information under subsection (b)(3) of this section, 
     together with a specific description of the scope of the 
     information covered; and''.

     SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT.

       Section 552(a)(2) of title 5, United States Code, is 
     amended--
       (1) in the first sentence by inserting ``including, within 
     1 year after the date of the enactment of the Electronic 
     Freedom of Information Improvement Act of 1994, by computer 
     telecommunications, or if computer telecommunications means 
     are not available, by other electronic means,'' after 
     ``copying'';
       (2) in subparagraph (B) by striking out ``and'' after the 
     semicolon;
       (3) in subparagraph (C) by inserting ``and'' after the 
     semicolon;
       (4) by adding after subparagraph (C) the following new 
     subparagraphs:
       ``(D) an index of all major information systems containing 
     agency records regardless of form or format unless such an 
     index is provided as otherwise required by law; and
       ``(E) a description of any new major information system 
     with a statement of how such system shall enhance agency 
     operations under this section;''; and
       (5) in the third sentence by inserting ``and the extent of 
     such deletion shall be indicated on the portion of the record 
     which is made available or published at the place in the 
     record where such deletion was made'' after ``explained fully 
     in writing''.

     SEC. 5. LIST OF RECORDS MADE AVAILABLE TO THE PUBLIC AND 
                   HONORING FORMAT REQUESTS.

       Section 552(a)(3) of title 5, United States Code, is 
     amended by--
       (1) inserting ``(A)'' after ``(3)'';
       (2) striking out ``(A) reasonably'' and inserting in lieu 
     thereof ``(i) reasonably'';
       (3) striking out ``(B)'' and inserting in lieu thereof 
     ``(ii)''; and
       (4) adding at the end thereof the following new 
     subparagraphs:
       ``(B) A list of all records which are made available to any 
     person under this paragraph shall be made available for 
     public inspection and copying as provided under paragraph (2) 
     of this subsection. Copies of all such records, regardless of 
     form or format, which because of the nature of their subject 
     matter, have become or are likely to become the subject of 
     subsequent requests under this paragraph for substantially 
     the same records, shall be made available for inspection and 
     copying as provided under paragraph (2) of this subsection.
       ``(C) An agency shall, as requested by any person, provide 
     records in any form or format in which such records are 
     maintained by that agency.
       ``(D) An agency shall make reasonable efforts to provide 
     records in the form or format requested by any person, 
     including in an electronic form or format, even where such 
     records are not usually maintained but are available in such 
     form or format.''.

     SEC. 6. DELAYS.

       (a) Fees.--Section 552(a)(4)(A) of title 5, United States 
     Code, is amended by adding at the end thereof the following 
     new clause:
       ``(viii) If at an agency's request, the Comptroller General 
     determines that the agency annually has either provided 
     responsive documents or denied requests in substantial 
     compliance with the requirements of paragraph (6)(A), one-
     half of the fees collected under this section shall be 
     credited to the collecting agency and expended to offset the 
     costs of complying with this section through staff 
     development and acquisition of additional request processing 
     resources. The remaining fees collected under this section 
     shall be remitted to the Treasury as general funds or 
     miscellaneous receipts.''.
       (b) Payment of the Expenses of the Person Making a 
     Request.--Section 552(a)(4)(E) of title 5, United States 
     Code, is amended by adding at the end thereof the following 
     new sentence: ``The court may assess against the United 
     States all out-of-pocket expenses incurred by the person 
     making a request, and reasonable attorney fees incurred in 
     the administrative process, in any case in which the agency 
     has failed to comply with the time limit provisions of 
     paragraph (6) of this subsection.''.
       (c) Demonstration of Circumstances for Delay.--Section 
     552(a)(4)(E) of title 5, United States Code, is further 
     amended--
       (1) by inserting ``(i)'' after ``(E)''; and
       (2) by adding at the end thereof the following new clause:
       ``(ii) Any agency not in compliance with the time limits 
     set forth in this subsection shall demonstrate to a court 
     that the delay is warranted under the circumstances set forth 
     under paragraph (6) (B) or (C) of this subsection.''.
       (d) Period for Agency Decision To Comply With Request.--
     Section 552(a)(6)(A)(i) is amended by striking out ``ten 
     days'' and inserting in lieu thereof ``twenty days''.
       (e) Agency Backlogs.--Section 552(a)(6)(C) of title 5, 
     United States Code, is amended by inserting after the second 
     sentence the following: ``As used in this subparagraph, 
     `exceptional circumstances' shall be unforeseen and shall not 
     include delays that result from a predictable workload, 
     including any ongoing agency backlog, in the ordinary course 
     of processing requests for records.''.
       (f) Notification of Denial.--The fourth sentence of section 
     552(a)(6)(C) of title 5, United States Code, is amended to 
     read: ``Any notification of any full or partial denial of any 
     request for records under this subsection shall set forth the 
     names and titles or positions of each person responsible for 
     the denial of such request and the total number of denied 
     records and pages considered by the agency to have been 
     responsive to the request.''.
       (g) Multitrack FIFO Processing and Expedited Access.--
     Section 552(a)(6) of title 5, United States Code, is amended 
     by adding at the end thereof the following new subparagraphs:
       ``(D)(i) Each agency shall adopt a first-in, first-out 
     (hereafter in this subparagraph referred to as FIFO) 
     processing policy in determining the order in which requests 
     are processed. The agency may establish separate processing 
     tracks for simple and complex requests using FIFO processing 
     within each track.
       ``(ii) For purposes of such a multitrack system--
       ``(I) a simple request shall be a request requiring 10 days 
     or less to make a determination on whether to comply with 
     such a request; and
       ``(II) a complex request shall be a request requiring more 
     than 10 days to make a determination on whether to comply 
     with such a request.
       ``(iii) A multitrack system shall not negate a claim of due 
     diligence under subparagraph (C), if FIFO processing within 
     each track is maintained and the agency can show that it has 
     reasonably allocated resources to handle the processing for 
     each track.
       ``(E)(i) Each agency shall promulgate regulations, pursuant 
     to notice and receipt of public comment, providing that upon 
     receipt of a request for expedited access to records and a 
     showing by the person making such request of a compelling 
     need for expedited access to records, the agency shall 
     determine within 5 days (excepting Saturdays, Sundays, and 
     legal public holidays) after the receipt of such a request, 
     whether to comply with such request. No more than one day 
     after making such determination the agency shall notify the 
     person making a request for expedited access of such 
     determination, the reasons therefor, and of the right to 
     appeal to the head of the agency. A request for records to 
     which the agency has granted expedited access shall be 
     processed as soon as practicable. A request for records to 
     which the agency has denied expedited access shall be 
     processed within the time limits under paragraph (6) of this 
     subsection.
       ``(ii) A person whose request for expedited access has not 
     been decided within 5 days of its receipt by the agency or 
     has been denied shall be required to exhaust administrative 
     remedies. A request for expedited access which has not been 
     decided may be appealed to the head of the agency within 7 
     days (excepting Saturdays, Sundays, and legal public 
     holidays) after its receipt by the agency. A request for 
     expedited access that has been denied by the agency may be 
     appealed to the head of the agency within 2 days (excepting 
     Saturdays, Sundays, and legal public holidays) after the 
     person making such request receives notice of the agency's 
     denial. If an agency head has denied, affirmed a denial, or 
     failed to respond to a timely appeal of a request for 
     expedited access, a court which would have jurisdiction of an 
     action under paragraph (4)(B) of this subsection may, upon 
     complaint, require the agency to show cause why the request 
     for expedited access should not be granted, except that such 
     review shall be limited to the record before the agency.
       ``(iii) The burden of demonstrating a compelling need by a 
     person making a request for expedited access may be met by a 
     showing, which such person certifies under penalty of perjury 
     to be true and correct to the best of such person's knowledge 
     and belief, that failure to obtain the requested records 
     within the timeframe for expedited access under this 
     paragraph would--
       ``(I) threaten an individual's life or safety;
       ``(II) result in the loss of substantial due process rights 
     and the information sought is not otherwise available in a 
     timely fashion; or
       ``(III) affect public assessment of the nature and 
     propriety of actual or alleged governmental actions that are 
     the subject of widespread, contemporaneous media coverage.''.

     SEC. 7. COMPUTER REDACTION.

       Section 552(b) of title 5, United States Code, is amended 
     by inserting before the period in the sentence following 
     paragraph (9): ``, and the extent of such deletion shall be 
     indicated on the released portion of the record at the place 
     in the record where such deletion was made''.

     SEC. 8. DEFINITIONS.

       Section 552(f) of title 5, United States Code, is amended 
     to read as follows:
       ``(f) For purposes of this section--
       ``(1) the term `agency' as defined in section 551(1) of 
     this title includes any executive department, military 
     department, Government corporation, Government controlled 
     corporation, or other establishment in the executive branch 
     of the Government (including the Executive Office of the 
     President), or any independent regulatory agency;
       ``(2) the term `record' means all books, papers, maps, 
     photographs, machine-readable materials, or other information 
     or documentary materials, regardless of physical form or 
     characteristics; and
       ``(3) the term `search' means a manual or automated review 
     of agency records that is conducted for the purpose of 
     locating those records which are responsive to a request 
     under subsection (a)(3)(A) of this section.''.

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