[Congressional Record Volume 142, Number 128 (Tuesday, September 17, 1996)]
[Senate]
[Pages S10713-S10717]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT OF 1996

  Mr. McCAIN. Mr. President, I ask unanimous consent that the Senate 
now proceed to the consideration of Calendar No. 406, S. 1090.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1090) to amend section 552 of title 5, U.S. Code 
     (commonly known as the Freedom of Information Act), to 
     provide for public access to information in an electronic 
     format, and for other purposes.


[[Page S10714]]


  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Electronic Freedom of 
     Information Improvement Act of 1996''.

     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 matter before subparagraph (A) by inserting 
     ``including 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 AND 
                   INDEX OF RECORDS MADE AVAILABLE TO THE PUBLIC.

       Section 552(a)(2) of title 5, United States Code, is 
     amended--
       (1) in the matter before subparagraph (A) by inserting ``, 
     including, within 1 year after the date of the enactment of 
     the Electronic Freedom of Information Improvement Act of 
     1996, 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) 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;
       ``(E) a description of any new major information system 
     with a statement of how such system shall enhance agency 
     operations under this section;
       ``(F) an index of all records which are made available to 
     any person under paragraph (3) of this subsection; and
       ``(G) copies of all 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 for substantially the same records under paragraph 
     (3) of this subsection;'';
       (4) in the second sentence by striking out ``or staff 
     manual or instruction'' and inserting in lieu thereof ``staff 
     manual, instruction, or index or copies of records, which are 
     made available under paragraph (3) of this subsection''; 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. HONORING FORMAT REQUESTS.

       Section 552(a)(3) of title 5, United States Code, is 
     amended by--
       (1) inserting ``(A)'' after ``(3)'';
       (2) inserting ``(A) through (F)'' after ``under paragraphs 
     (1) and (2)'';
       (3) striking out ``(A) reasonably'' and inserting in lieu 
     thereof ``(i) reasonably'';
       (4) striking out ``(B)'' and inserting in lieu thereof 
     ``(ii)''; and
       (5) adding at the end thereof the following new 
     subparagraphs:
       ``(B) An agency shall, as requested by any person, provide 
     records in any form or format in which such records are 
     maintained by that agency.
       ``(C) An agency shall make reasonable efforts to search for 
     records in electronic form or format and 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) Demonstration of Circumstances for Delay.--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 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.''.
       (c) 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''.
       (d) 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, for 
     requests submitted pursuant to paragraph (3) after the date 
     of the enactment of the Electronic Freedom of Information 
     Improvement Act of 1996, the term `exceptional circumstances' 
     means circumstances that are 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.''.
       (e) Notification of Denial.--The last 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.''.
       (f) 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 determine 
     within 10 days (excepting Saturdays, Sundays, and legal 
     public holidays) after the receipt of such a request, whether 
     to comply with such request. 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 10 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 15 
     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 5 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.

[[Page S10715]]

       ``(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) the following: ``, 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, but does not include--
       ``(A) library and museum material acquired or received and 
     preserved solely for reference or exhibition purposes;
       ``(B) extra copies of documents preserved solely for 
     convenience of reference;
       ``(C) stocks of publications and of processed documents; or
       ``(D) computer software which is obtained by an agency 
     under a licensing agreement prohibiting its replication or 
     distribution; 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.''.

  Mr. McCAIN. Mr. President, I ask unanimous consent that the committee 
amendment be agreed to, the bill be deemed read the third time, and 
passed, the motion to reconsider be laid upon the table, and that any 
statements relating to the bill appear at this point in the Record.
  The committee amendment was agreed to.
  The bill (S. 1090), as amended, was deemed read the third time, and 
passed.
  Mr. LEAHY. Mr. President: I am delighted that the Senate has today 
passed important amendments to the Freedom of Information Act that will 
bring this statute into the electronic age. Passage of these amendments 
are a tremendous way to mark the 30th anniversary of the Freedom of 
Information Act.
  The FOIA has served the country well in maintaining the right of 
Americans to know what their government is doing--or not doing. As 
President Johnson said in 1966, when he signed the Freedom of 
Information Act into law:

       This legislation springs from one of our most essential 
     principles: A democracy works best when the people have all 
     the information that the security of the Nation permits.

  Just over the past few months, records released under the FOIA have 
revealed FAA actions against Valuejet before the May 11 crash in the 
Everglades, the government's treatment of South Vietnamese commandos 
who fought in a CIA-sponsored army in the early 1960's, the high 
salaries paid to independent counsels, the unsafe lead content of D.C. 
tap water, and the types of tax cases that the IRS recommends for 
criminal prosecution.
  In the 30 years since the Freedom of Information Act became law, 
technology has dramatically altered the way government handles and 
stores information. Gone are the days when agency records were solely 
on paper stuffed into file cabinets. Instead, agencies depend on 
personal computers, computer databases and electronic storage media, 
such as CD-ROM's, to carry out their mission.
  The time is long overdue to update this law to address new issues 
related to the increased use of computers by federal agencies. 
Computers are just as ubiquitous in Federal agency offices as in the 
private sector. We need to make clear that the FOIA is not just a right 
to know what's on paper law, but that it applies equally to electronic 
records.
  That is why Senator Brown, Senator Kerry, and I, with the strong 
support of many library, press, civil liberties, consumer and research 
groups, have pushed for passage of the Electronic FOIA bill. The Senate 
recognized the need to update the FOIA in the last Congress by passing 
an earlier version of this bill.
  This legislation takes steps so that agencies use technology to make 
government more accessible and accountable to its citizens. Storing 
government information on computers should actually make it easier to 
provide public access to information in more meaningful formats. For 
example, people with sight or hearing impairments can use special 
computer programs to translate electronic information into braille or 
large print or synthetic speech output.

  Electronic records also make it possible to provide dial-up access to 
any citizen who can use computer networks, such as the Internet. Those 
Americans living in the remotest rural area in Vermont, or in a distant 
State far from Federal agencies' public reading rooms here in 
Washington, DC, should be able to use computer networks to get direct 
access to the warehouse of unclassified information stored in 
government computer banks. The explosion of the Internet adds 
enormously to the need for clarification of the status of electronic 
government records under the FOIA and the significance of this 
legislation for citizen access. These amendments to the FOIA will 
encourage federal agencies to use the Internet to increase access to 
government records for all Americans.
  Ensuring public access to electronic government records is not just 
important for broader citizen access. Information is a valuable 
commodity and the Federal Government is probably the largest single 
producer and repository of accurate information. This government 
information is a national resource that commercial companies pay for 
under the FOIA, add value to, and then sell--creating jobs and 
generating revenue in the process. It is important for our economy and 
for American competitiveness that fast, easy access to that resource in 
electronic form be available. The electronic FOIA bill would contribute 
to our information economy.
  I would like to highlight some of what this bill would accomplish. 
First, it would require agencies to provide records in a requested 
format whenever possible.
  Second, the bill would encourage agencies to increase on-line access 
to government records that agencies currently put in their public 
reading rooms. These records would include copies of records that are 
the subject of repeated FOIA requests.
  Finally, the bill would address the biggest single complaint of 
people making FOIA requests: delays in getting a response. I understand 
that at the FBI, the delays can stretch to over four years. Because of 
these delays, writers, students and teachers and others working under 
time deadlines, have been frustrated in using FOIA to meet their 
research needs. Long delays in access can mean no access at all.
  The current time limits in the FOIA are a joke. Few agencies actually 
respond to FOIA requests within the 10-day limit required in the law. 
Such routine failure to comply with the statutory time limits is bad 
for morale in the agencies and breeds contempt by citizens who expect 
government officials to abide by, not routinely break, the law.

  I appreciate the budget and resource constraints under which agencies 
are operating. We have made every effort in this bill to make sure it 
works for both agencies and requestors. Some agencies, particularly 
those with huge backlogs of FOIA requests resulting in delays of up to 
four years for an agency response, are concerned that the bill removes 
backlogs as an automatic excuse to ignore the time limits. We should 
not give agencies an incentive to create backlogs. Agencies will have 
to show that they are taking steps to reduce their backlogs before they 
qualify for additional time to respond to a FOIA request.
  While increased computer access to government records may necessitate 
an initial outlay of money and effort, as more information is made 
available on-line, the labor intensive task of physically searching and 
producing documents should be reduced. The net result should be 
increased efficiency in

[[Page S10716]]

satisfying agency FOIA obligations, reduced paperwork burdens, reduced 
errors and better service to the public.
  The Electronic FOIA bill should help agencies comply with the law's 
time limits by doubling the ten-day time limit to give agencies a more 
realistic time period for responding to FOIA requests, making more 
information available on-line, requiring the use of better record 
management techniques, such as multi-track processing, and providing 
expedited access to requestors who demonstrate a compelling need for a 
speedy response.
  All these steps, and others in the bill, may not provide a total cure 
but should help reduce the endemic delay problems.
  This has generally been a very partisan Congress. I commend members 
of the House Government Reform and Oversight Subcommittee on Government 
Management, Information and Technology, and, in particular, Chairman 
Stephen Horn, ranking member Carolyn Maloney, and Representatives Randy 
Tate and Collin Peterson, for rising above the partisan fray and moving 
this legislation in the House. They saw this bill for what it is: a 
good government issue, not a partisan one. We have worked diligently to 
sort out any differences in the House and Senate bills, and we can all 
be proud of the final product reflected in both the Substitute 
amendment to S. 1090 and the final version of the bill passed by the 
House.
  Even as we have worked on this legislation, new issues about the 
coverage of the FOIA have surfaced. I refer specifically to the D.C. 
Court of Appeals case, decided on August 2, 1996, that the National 
Security Council is not an ``agency'' subject to the FOIA, despite the 
fact that the NSC has complied with the FOIA for years under both 
Republican and Democratic Presidents. Litigation on this matter 
continues and the case may now go to the U.S. Supreme Court. 
Clarification of which offices within the White House are ``agencies'' 
subject to the FOIA may be a matter requiring congressional attention 
in the next Congress.
  As the Federal Government increasingly maintains its records in 
electronic form, we need to make sure that this information is 
available to citizens on the same basis as information in paper files. 
Doing so will fulfill the promise first made thirty years ago in the 
FOIA that citizens have a right to know and a right to see the records 
the government collects with their tax dollars.
  I ask unanimous consent that a section-by-section analysis of that 
amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Summary of Substitute to Leahy-Brown-Kerry Electronic FOIA Improvement 
                             Act (S. 1090)

       Section 1. Short Title. The Act may be cited as the 
     ``Electronic Freedom of Information Act Amendments of 1996.''
       Section 2. Findings and Purposes. The findings make clear 
     that Congress enacted the FOIA to require Federal agencies to 
     make records available to the public through public 
     inspection and upon the request of any person for any public 
     or private use. The findings also acknowledge the increase in 
     the government's use of computers and exhorts agencies to use 
     new technology to enhance public access to government 
     information.
       The purposes of the bill include improving public access to 
     government information and records, and reducing the delays 
     in agencies' responses to requests for records under the 
     Freedom of Information Act.
       Section 3. Application of Requirements to Electronic Format 
     Information. The bill would add a definition of ``record'' to 
     the FOIA to address electronically stored information. There 
     is little disagreement that the FOIA covers all government 
     records, regardless of the form in which they are stored by 
     the agency. The Department of Justice agrees that computer 
     database records are agency records subject to the FOIA. See 
     ``Department of Justice Report on `Electronic Record' Issues 
     Under the Freedom of Information Act,'' S. Hrg. 102-1098, 
     102d Cong., 2d Sess. 33 (1992). The bill would define 
     ``record'' to ``include 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.''
       Section 4. Information Made Available in Electronic Format 
     and Indexation of Records. The Office of Management and 
     Budget has directed agencies to use electronic media and 
     formats, including public networks, to make government 
     information more easily accessible and useful to the public. 
     This bill will help effectuate this goal.
       This section of the bill would require that materials, such 
     as agency opinions and policy statements, which an agency 
     must ``make available for public inspection and copying,'' 
     pursuant to Section 552(a)(2), and which are created on or 
     after November 1, 1996, be made available by computer 
     telecommunications, as well as in hard copy, within 1 year 
     after the date of enactment. If an agency does not have the 
     means established to make these materials available on-line, 
     then the information should be made available in some other 
     electronic form, e.g., CD-ROM or disc. The bill would thus 
     treat (a)(2) materials in the same manner as it treats (a)(1) 
     materials, which under the Government Printing Office 
     Electronic Information Access Enhancement Act of 1993 (``GPO 
     Access Act''), Pub. Law 103-40, are required, via the Federal 
     Register, to be made available on-line.
       This section would also increase the information made 
     available under Section 552(a)(2). Specifically, agencies 
     would be required to make available for public inspection and 
     copying, in the same manner as other materials required to be 
     made available under Section 552(a)(2), copies of records 
     released in response to FOIA requests that the agency 
     determines have been or will likely be the subject of 
     additional requests. In addition, they would be required 
     to make available a general index of these prior-released 
     records. By December 31, 1999, this index should be made 
     available by computer telecommunications. Since not all 
     individuals have access to computer networks or are near 
     agency public reading rooms, however, requesters would 
     still be able to access previously-released FOIA records 
     through the normal FOIA process.
       As a practical matter, this would mean that copies of 
     prior-released records on a popular topic, such as the 
     assassinations of public figures, would subsequently be 
     treated as (a)(2) materials, which are made available for 
     public inspection and copying. This would help to reduce the 
     number of multiple FOIA requests for the same records 
     requiring separate agency responses. Likewise, the general 
     index would assist requesters in determining which records 
     have been the subject of prior FOIA requests. Since requests 
     for prior-released records are more readily identified by the 
     agency without the need for new searches, this index would 
     assist agencies in complying with the FOIA time limits.
       This section would make clear that to prevent a clearly 
     unwarranted invasion of personal privacy, an agency may 
     delete identifying details when it makes available or 
     publishes the index and copies of prior-released records.
       Finally, this section would require, consistent with the 
     ``Computer Redaction'' requirement in Section 9 of the bill, 
     an agency to indicate the extent of any deletion from the 
     prior-released records and, where technically feasible, to 
     indicate the deletion at the place on the record where the 
     deletion was made. Such indication need not be included when 
     doing so would harm an interest protected by the exemption in 
     subsection (b) under which the deletion was made.
       Section 5. Honoring Form or Format Requests. Section 5 
     would require agencies to assist requesters by providing 
     information in the form requested, including requests for the 
     electronic form of records, if the agency is able to 
     reproduce it in that form. This section would overrule 
     Dismukes v. Department of the Interior, 603 F. Supp. 760, 763 
     (D.D.C. 1984), which held that an agency ``has no obligation 
     under the FOIA to accommodate plaintiff's preference [but] 
     need only provide responsive, nonexempt information in a 
     reasonably accessible form.''
       This section would also require agencies to make reasonable 
     efforts to search for records that are maintained in 
     electronic form or format, unless such search efforts would 
     significantly interfere with the operation of the agency's 
     automated information systems.
       The bill defines ``search'' as a ``review, manually or by 
     automated means,'' of ``agency records for the purpose of 
     locating those records responsive to a request.'' Under the 
     FOIA, an agency is not required to create documents that do 
     not exist. Computer records located in a database rather than 
     in a file cabinet may require the application of codes or 
     some form of programming to retrieve the information. 
     Under the definition of ``search'' in the bill, the search 
     of computerized records would not amount to the creation 
     of records. Otherwise, it would be virtually impossible to 
     get records that are maintained completely in an 
     electronic form, like computer database information, 
     because some manipulation of the information likely would 
     be necessary to search the records.
       Section 6. Standard for Judicial Review. Section 6 would 
     require a court to accord substantial weight to an agency's 
     determination as to both the technical feasibility of 
     redacting nonreleasable material at the place on the record 
     where the deletion was made, under paragraphs (2)(C) and 
     subsection (b), as amended by this Act, and the 
     reproducibility of the requested form or format of records, 
     under paragraph (3)(B), as amended by this Act. Such 
     deference is warranted since an agency is familiar with the 
     availability of technical resources within the agency to 
     process, redact and reproduce records.
       Section 7. Ensuring Timely Response to Requests. The bill 
     addresses the single most frequent complaint about the 
     operation of the FOIA, namely, agency delays in responding to 
     FOIA requests by encouraging agencies to employ better 
     records management systems.

[[Page S10717]]

       Multitrack Processing.--An agency commitment to process 
     requests on a first-come, first-served basis has been held to 
     satisfy the requirement that an agency exercise due diligence 
     in dealing with backlogs of FOIA requests. Processing 
     requests solely on a FIFO basis, however, may result in 
     lengthy delays for simple requested due to the prior receipt 
     and processing of complex requests, and in increased agency 
     backlogs. The bill would permit agencies to promulgate 
     regulations implementing multitrack processing systems, and 
     make clear that agencies should exercise due diligence within 
     each track. Agencies would also be permitted to provide 
     requesters with the opportunity to limit the scope of their 
     requests in order to qualify for processing under a faster 
     track.
       Unusual Circumstances.--The FOIA currently permits an 
     agency in ``unusual circumstances'' to extend for a maximum 
     of 10 working days the statutory time limit for responding to 
     a FOIA request, upon written notice to the requester setting 
     forth the reason for such extension. The FOIA enumerates 
     various reasons for such an extension, including the need to 
     search for and collect requested records from multiple 
     offices, the volume of records requested, and the need for 
     consultation among components of an agency.
       For unusually burdensome FOIA requests, an extra ten days 
     still provides insufficient time for an agency to respond. 
     The bill would provide a mechanism to deal with such 
     requests, which an agency would not be able to process even 
     with an extra ten days. For such requests, the bill would 
     require an agency to inform the requester that the request 
     cannot be processed within statutory time limits and provide 
     an opportunity for the requester to limit the scope of the 
     request so that it may be processed within statutory time 
     limits, or arrange with the agency an agreed upon time frame 
     for processing the request. In the event that the requester 
     refuses to reasonably limit the request's scope or agree upon 
     a time frame and then seeks judicial review, that refusal 
     shall be considered as a factor in determining whether 
     ``exceptional circumstances'' exist under subparagraph 
     (6)(C).
       Requesters should not be able to make multiple requests 
     merely to avoid the procedures otherwise applicable in 
     unusual circumstances. To avoid the potential problem of 
     multiple requests for purely circumvention purposes, the bill 
     would permit agencies to promulgate regulations to aggregate 
     requests made by the same requester, or group of requesters 
     acting in concert, if the agency reasonably believes that 
     such requests actually constitute a single request, which 
     would otherwise satisfy the unusual circumstances specified 
     in subparagraph (6)(B)(iii) of the bill. The aggregated 
     requests must involve clearly related matters. Agencies are 
     directed not to aggregate multiple requests involving 
     unrelated matters.
       Exceptional Circumstances.--The FOIA provides that in 
     ``exceptional circumstances,'' a court may extend the 
     statutory time limits for an agency to respond to a FOIA 
     request, but does not specify what those circumstances are. 
     The bill would clarify that routine, predictable agency 
     backlogs for FOIA requests do not constitute exceptional 
     circumstances for purposes of the Act, unless the agency 
     demonstrates reasonable progress in reducing its backlog of 
     pending requests. This is consistent with the holding in Open 
     America v. Watergate Special Prosecution Force, 547 F.2d 605 
     (D.C. Cir. 1976), where the court held that an unforeseen 
     3,000 percent increase in FOIA requests in one year, which 
     created a massive backlog in an agency with insufficient 
     resources to process those requests in a timely manner, can 
     constitute ``exceptional circumstances.'' Routine backlogs of 
     requests for records under the FOIA should not give agencies 
     an automatic excuse to ignore the time limits, since this 
     provides a disincentive for agencies to clear up those 
     backlogs. The bill also makes clear that those agencies with 
     backlogs must make efforts to reduce that backlog before 
     exceptional circumstances will be found to exist.
       Section 8. Time Period for Agency Consideration of 
     Requests. The bill contains provisions designed to address 
     the needs of both agencies and requesters for more workable 
     time periods for the processing of FOIA requests.
       Expedited Access.--The bill would require agencies to 
     promulgate regulations authorizing expedited access to 
     requesters who demonstrate a ``compelling need'' for a speedy 
     response. The agency would be required to make a 
     determination whether or not to grant the request for 
     expedited access within ten days and then notify the 
     requester of the decision. The requester would bear the 
     burden of showing that expedition is appropriate by 
     certifying in a statement that the demonstration of 
     compelling need is true and correct to the best of the 
     requester's knowledge and belief. The bill would permit only 
     limited judicial review based on the same record before the 
     agency of the determination whether to grant expedited 
     access. Moreover, federal courts will not have jurisdiction 
     to review an agency's denial of an expedited access request 
     if the agency has already provided a complete response to the 
     request for records.
       A ``compelling need'' warranting expedited access would be 
     demonstrated by showing that failure to obtain the records 
     within an expedited time frame would: (I) pose an imminent 
     threat to an individual's life or physical safety; or, 
     (II) ``with respect to a request made by a person 
     primarily engaged in disseminating information, urgency to 
     inform the public concerning actual or alleged federal 
     government activity.'' Agencies are also permitted to 
     provide for expedited processing in other cases as they 
     may determine.
       Expansion of Agency Response Time.--To assist federal 
     agencies in reducing their backlog of FOIA requests, the bill 
     would double the time limit for an agency to respond to FOIA 
     requests from ten days to twenty days. Attorney General Janet 
     Reno has acknowledged the inability of most federal agencies 
     to comply with the ten-day rule ``as a serious problem'' 
     stemming principally from ``too few resources in the face of 
     too heavy a workload.''
       Estimation of Matter Denied.--The bill would require 
     agencies when denying a FOIA request to make reasonable 
     efforts to estimate the volume of any denied material and 
     provide that estimate to the requester, unless doing so would 
     harm an interest protected by an exemption pursuant to which 
     the denial is made.
       Section 9. Computer Redaction. The ease with which 
     information on the computer may be redacted makes the 
     determination of whether a few words or 30 pages have been 
     withheld by an agency at times impossible. The bill would 
     require agencies to indicate deletions of the released 
     portion of the record and, where technically feasible, to 
     indicate the deletion at the place on the record where the 
     deletion was made, unless including that indication would 
     harm an interest protected by an exemption pursuant to which 
     the deletion is made.
       Section 10. Report to the Congress. This section would add 
     to the information an agency is already required to publish 
     as part of its annual report. Specifically, agencies would be 
     required to publish in its annual reports information 
     regarding denials of requested records, appeals, a complete 
     list of statutes upon which the agency relies to withhold 
     information under Section 552(b)(3), which exempts 
     information that is specifically exempted from disclosure by 
     other statutes, the number of backlogged FOIA requests, the 
     number of days taken to process requests, the amount of fees 
     collected, and staff devoted to processing FOIA requests. The 
     annual reports would be required to be made available to the 
     public, including by computer telecommunications means. If an 
     agency does not have the means established to make the report 
     available on-line, then the report should be made available 
     in some other electronic form. The Attorney General is 
     required to make each report available at a single electronic 
     access point, and advise certain Members of Congress that 
     such reports are available.
       The Attorney General and the Director of the Office of 
     Management and Budget are required to develop reporting 
     guidelines for the annual reports by October 1, 1997.
       Section 11. Reference Materials and Guides. The bill would 
     require agencies to make publicly available, upon request, 
     reference material or a grade for requesting records or 
     information from an agency. This guide would include an index 
     and description of all major information systems of an 
     agency, and a handbook for obtaining various types and 
     categories of public information from an agency.
       Section 12. Effective Date. To provide agencies time to 
     implement new requirements under the Act, Sections 7 and 8 of 
     the bill concerning multitrack and expedited processing, 
     unusual and exceptional circumstances, the doubling of the 
     statutory time period for responding to FOIA requests, and 
     estimating the amount of material to which access is denied, 
     will take effect 180 days after the date of enactment, and 
     the remainder of the Act will become effective one year after 
     the date of enactment.

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