[Congressional Record Volume 153, Number 186 (Thursday, December 6, 2007)]
[Senate]
[Pages S14853-S14855]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Cornyn):
  S. 2427. A bill to promote accessibility, accountability, and 
openness in Government by strengthening section 552 of title 5, United 
States Code (commonly referred to as the Freedom of Information Act), 
and for other purposes; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I have joined with Senator Cornyn to 
reintroduce the ``Openness Promotes Effectiveness in our National 
Government Act--or the OPEN Government Act--the first major reform to 
the Freedom of Information Act, FOIA, in more than a decade. The Senate 
passed this historic FOIA reform legislation, S. 849, before adjourning 
for the August recess. But, sadly, this measure has been stalled in the 
House Oversight and Government Reform Committee for several months, 
preventing these long-overdue FOIA reforms from being enacted into law.
  Despite the unfortunate delay of this bill, I remain deeply committed 
to enacting FOIA reform legislation this year. Because time is of the 
essence, I am requesting that this legislation be immediately placed on 
the Senate Calendar and that the Senate promptly take up and pass this 
bill by unanimous consent, so that it can be sent to the House.
  The version of the bill introduced today includes ``pay/go'' language 
that has been requested by the House and eliminates the provision on 
citations to FOIA exemptions. After needlessly delaying the enactment 
of this bill for several months, I hope that the House Oversight and 
Government Reform Committee will promptly take up this important 
measure, so that the House can enact this legislation and send it to 
the President before the end of the year.
  As the first major reform to FOIA in more than a decade, the OPEN 
Government Act will help to reverse the troubling trends of excessive 
delays and lax FOIA compliance in our government and help to restore 
the public's trust in their government. This bill will also improve 
transparency in the Federal Government's FOIA process by: restoring 
meaningful deadlines for agency action under FOIA; imposing real 
consequences on federal agencies for missing FOIA's 20-day statutory 
deadline; clarifying that FOIA applies to Government records held by 
outside private contractors; establishing a FOIA hotline service for 
all Federal agencies; and creating a FOIA Ombudsman to provide FOIA 
requesters and Federal agencies with a meaningful alternative to costly 
litigation.
  Specifically, the OPEN Government Act will protect the public's right 
to know, by ensuring that anyone who gathers information to inform the 
public, including freelance journalists and bloggers, may seek a fee 
waiver when they request information under FOIA. The bill ensures that 
Federal agencies will not automatically exclude Internet blogs and 
other Web-based forms of media when deciding whether to waive FOIA 
fees. In addition, the bill also clarifies that the definition of news 
media, for purposes of FOIA fee waivers, includes free newspapers and 
individuals performing a media function who do not necessarily have a 
prior history of publication.
  The bill also restores meaningful deadlines for agency action, by 
ensuring that the 20-day statutory clock under FOIA starts when a 
request is received by the appropriate component of the agency and 
requiring that agency FOIA offices get FOIA requests to the appropriate 
agency component within 10 days of the receipt of such requests. The 
bill allows Federal agencies to toll the 20-day clock while they are 
awaiting a response to a reasonable request for information from a FOIA 
requester on one occasion, or while the agency is awaiting 
clarification regarding a FOIA fee assessment. In addition, to 
encourage agencies to meet the 20-day time limit, the bill requires 
that an agency refund FOIA search fees if it fails to meet the 20-day 
deadline, except in the case of exceptional circumstances as defined by 
the FOIA statute. To address pay/go concerns, the bill requires that 
these refunds come from annual agency appropriations.
  The bill also addresses a relatively new concern that, under current 
law, Federal agencies have an incentive to delay compliance with FOIA 
requests until just before a court decision is made that is favorable 
to a FOIA requester. The Supreme Court's decision in Buckhannon Board 
and Care Home, Inc. v. West Virginia Dep't of Health and Human 
Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for 
attorneys' fees recovery under certain Federal civil rights laws. When 
applied to FOIA cases, Buckhannon precludes FOIA requesters from ever 
being eligible to recover attorneys' fees under circumstances where an 
agency provides the records requested in the litigation just prior to a 
court decision that would have been favorable to the FOIA requestor. 
The bill clarifies that Buckhannon does not apply to FOIA cases. Under 
the bill, a FOIA requester can obtain attorneys' fees when he or she 
files a lawsuit to obtain records from the Government and the 
Government releases those records before the court orders them to do 
so. But this provision would not allow the requester to recover 
attorneys' fees if the requester's claim is wholly insubstantial. To 
address pay/go concerns, the bill also requires that any attorneys' 
fees assessed under this provision be paid from annually appropriated 
agency funds.
  To address concerns about the growing costs of FOIA litigation, the 
bill also creates an Office of Government Information Services in the 
National Archives and creates an ombudsman to mediate agency-level FOIA 
disputes. In addition the bill ensures that each Federal agency will 
appoint a Chief FOIA Officer, who will monitor the agency's compliance 
with FOIA requests, and a FOIA Public Liaison who will be available to 
resolve FOIA-related disputes.
  Finally, the bill does several things to enhance the agency reporting 
and tracking requirements under FOIA. Tracking numbers are not required 
for FOIA requests that are anticipated to take 10 days or less to 
process. The bill creates a tracking system for FOIA requests to assist 
members of the public and the media. The bill also establishes a FOIA 
hotline service for all federal agencies, either by telephone or on the 
Internet, to enable requestors to track the status of their FOIA 
requests. The bill also clarifies that FOIA applies to agency records 
that are held by outside private contractors, no matter where these 
records are located.
  The Freedom of Information Act is critical to ensuring that all 
American citizens can access information about the workings of their 
government. But, after four decades, this open government law needs to 
be strengthened. I am pleased that the reforms contained in the OPEN 
Government Act will ensure that FOIA is reinvigorated so that it works 
more effectively for the American people.
  I commend the bill's chief Republican cosponsor, Senator John Cornyn, 
for his commitment and dedication to passing FOIA reform legislation 
this year. I also thank the many cosponsors of this legislation for 
their dedication to open government and I thank the Majority Leader for 
his strong support of this legislation. I am also appreciative of the 
efforts of Senator Kyl in helping us to reach a compromise on this 
legislation, so that the Senate could consider and pass meaningful FOIA 
reform legislation.
  But, most importantly, I especially want to thank the many concerned 
citizens who, knowing the importance of this measure to the American 
people's right to know, have demanded action on this bill. This bill is 
endorsed by more than 115 business, public interest, and news 
organizations from across the political and ideological spectrum, 
including the American Library Association, the U.S. Chamber of 
Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty 
Caucus, the Sunshine in Government Initiative and the Vermont Press 
Association. The invaluable support of these and many other 
organizations is what led the opponents of this bill to come around and 
support this legislation.
  I hope that by once again passing this important FOIA reform 
legislation, the Senate will reaffirm the principle that open 
government is not a Democratic issue or a Republican issue. But, 
rather, it is an American issue and an American value. I encourage all 
of my Senate colleagues, on

[[Page S14854]]

both sides of the aisle, to unanimously pass this historic bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2427

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Openness Promotes 
     Effectiveness in our National Government Act of 2007'' or the 
     ``OPEN Government Act of 2007''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Freedom of Information Act was signed into law on 
     July 4, 1966, because the American people believe that--
       (A) our constitutional democracy, our system of self-
     government, and our commitment to popular sovereignty depends 
     upon the consent of the governed;
       (B) such consent is not meaningful unless it is informed 
     consent; and
       (C) as Justice Black noted in his concurring opinion in 
     Barr v. Matteo (360 U.S. 564 (1959)), ``The effective 
     functioning of a free government like ours depends largely on 
     the force of an informed public opinion. This calls for the 
     widest possible understanding of the quality of government 
     service rendered by all elective or appointed public 
     officials or employees.'';
       (2) the American people firmly believe that our system of 
     government must itself be governed by a presumption of 
     openness;
       (3) the Freedom of Information Act establishes a ``strong 
     presumption in favor of disclosure'' as noted by the United 
     States Supreme Court in United States Department of State v. 
     Ray (502 U.S. 164 (1991)), a presumption that applies to all 
     agencies governed by that Act;
       (4) ``disclosure, not secrecy, is the dominant objective of 
     the Act,'' as noted by the United States Supreme Court in 
     Department of Air Force v. Rose (425 U.S. 352 (1976));
       (5) in practice, the Freedom of Information Act has not 
     always lived up to the ideals of that Act; and
       (6) Congress should regularly review section 552 of title 
     5, United States Code (commonly referred to as the Freedom of 
     Information Act), in order to determine whether further 
     changes and improvements are necessary to ensure that the 
     Government remains open and accessible to the American people 
     and is always based not upon the ``need to know'' but upon 
     the fundamental ``right to know''.

     SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.

       Section 552(a)(4)(A)(ii) of title 5, United States Code, is 
     amended by adding at the end the following:
       ``The term `a representative of the news media' means any 
     person or entity that gathers information of potential 
     interest to a segment of the public, uses its editorial 
     skills to turn the raw materials into a distinct work, and 
     distributes that work to an audience. The term `news' means 
     information that is about current events or that would be of 
     current interest to the public. Examples of news-media 
     entities are television or radio stations broadcasting to the 
     public at large and publishers of periodicals (but only if 
     such entities qualify as disseminators of `news') who make 
     their products available for purchase by or subscription by 
     or free distribution to the general public. These examples 
     are not all-inclusive. Moreover, as methods of news delivery 
     evolve (for example, the adoption of the electronic 
     dissemination of newspapers through telecommunications 
     services), such alternative media shall be considered to be 
     news-media entities. A freelance journalist shall be regarded 
     as working for a news-media entity if the journalist can 
     demonstrate a solid basis for expecting publication through 
     that entity, whether or not the journalist is actually 
     employed by the entity. A publication contract would present 
     a solid basis for such an expectation; the Government may 
     also consider the past publication record of the requester in 
     making such a determination.''.

     SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.

       (a) In General.--Section 552(a)(4)(E) of title 5, United 
     States Code, is amended--
       (1) by inserting ``(i)'' after ``(E)''; and
       (2) by adding at the end the following:
       ``(ii) For purposes of this section, a complainant has 
     substantially prevailed if the complainant has obtained 
     relief through either--
       ``(I) a judicial order, or an enforceable written agreement 
     or consent decree; or
       ``(II) a voluntary or unilateral change in position by the 
     agency, provided that the complainant's claim is not 
     insubstantial.''.
       (b) Limitation.--Notwithstanding section 1304 of title 31, 
     United States Code, no amounts may be obligated or expended 
     from the Claims and Judgment Fund of the United States 
     Treasury to pay the costs resulting from fees assessed under 
     section 552(a)(4)(E) of title 5, United States Code. Any such 
     amounts shall be paid only from funds annually appropriated 
     for the Federal agency against which a claim or judgment has 
     been rendered.

     SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS 
                   REJECTIONS OF REQUESTS.

       Section 552(a)(4)(F) of title 5, United States Code, is 
     amended--
       (1) by inserting ``(i)'' after ``(F)''; and
       (2) by adding at the end the following:
       ``(ii) The Attorney General shall--
       ``(I) notify the Special Counsel of each civil action 
     described under the first sentence of clause (i); and
       ``(II) annually submit a report to Congress on the number 
     of such civil actions in the preceding year.
       ``(iii) The Special Counsel shall annually submit a report 
     to Congress on the actions taken by the Special Counsel under 
     clause (i).''.

     SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.

       (a) Time Limits.--
       (1) In general.--Section 552(a)(6)(A)(i) of title 5, United 
     States Code, is amended by striking ``determination;'' and 
     inserting ``determination. The 20-day period shall commence 
     on the date on which the request is first received by the 
     appropriate component of the agency, but in any event no 
     later than ten days after the request is first received by 
     any component of the agency that is designated in the 
     agency's FOIA regulations to receive FOIA requests. The 20-
     day period shall not be tolled by the agency except--
       ``(I) that the agency may make one request to the requester 
     for information and toll the 20-day period while it is 
     awaiting such information that it has reasonably requested 
     from the FOIA requester; or
       ``(II) if necessary to clarify with the requester issues 
     regarding fee assessment. In either case, the agency's 
     receipt of the requester's response to the agency's request 
     for information or clarification ends the tolling period;''.
       (2) Effective date.--The amendment made by this subsection 
     shall take effect 1 year after the date of enactment of this 
     Act.
       (b) Compliance With Time Limits.--
       (1) In general.--
       (A) Search fees.--Section 552(a)(4)(A) of title 5, United 
     States Code, is amended by adding at the end the following:
       ``(viii) an agency shall refund search fees under this 
     subparagraph if the agency fails to comply with any time 
     limit under paragraph (6), provided that--

       ``(I) no unusual or exceptional circumstances (as those 
     terms are defined for purposes of paragraphs (6)(B) and (C), 
     respectively) apply to the processing of the request; and
       ``(II) such refunds shall be paid from annual 
     appropriations provided to that agency.''.

       (B) Public liaison.--Section 552(a)(6)(B)(ii) of title 5, 
     United States Code, is amended by inserting between the first 
     and second sentences the following: ``To aid the requester, 
     each agency shall make available its FOIA Public Liaison, who 
     shall assist in the resolution of any disputes between the 
     requester and the agency.''.
       (2) Effective date and application.--The amendment made by 
     this subsection shall take effect 1 year after the date of 
     enactment of this Act and apply to requests for information 
     under section 552 of title 5, United States Code, filed on or 
     after that effective date.

     SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND 
                   STATUS INFORMATION.

       (a) In General.--Section 552(a) of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(7) Each agency shall--
       ``(A) establish a system to assign an individualized 
     tracking number for each request received that will take 
     longer than ten days to process and provide to each person 
     making a request the tracking number assigned to the request; 
     and
       ``(B) establish a telephone line or Internet service that 
     provides information about the status of a request to the 
     person making the request using the assigned tracking number, 
     including--
       ``(i) the date on which the agency originally received the 
     request; and
       ``(ii) an estimated date on which the agency will complete 
     action on the request.''.
       (b) Effective Date and Application.--The amendment made by 
     this section shall take effect 1 year after the date of 
     enactment of this Act and apply to requests for information 
     under section 552 of title 5, United States Code, filed on or 
     after that effective date.

     SEC. 8. REPORTING REQUIREMENTS.

       (a) In General.--Section 552(e)(1) of title 5, United 
     States Code, is amended--
       (1) in subparagraph (B)(ii), by inserting after the first 
     comma ``the number of occasions on which each statute was 
     relied upon,'';
       (2) in subparagraph (C), by inserting ``and average'' after 
     ``median'';
       (3) in subparagraph (E), by inserting before the semicolon 
     ``, based on the date on which the requests were received by 
     the agency'';
       (4) by redesignating subparagraphs (F) and (G) as 
     subparagraphs (N) and (O), respectively; and
       (5) by inserting after subparagraph (E) the following:
       ``(F) the average number of days for the agency to respond 
     to a request beginning on the date on which the request was 
     received by the agency, the median number of days for the 
     agency to respond to such requests, and the range in number 
     of days for the agency to respond to such requests;
       ``(G) based on the number of business days that have 
     elapsed since each request was originally received by the 
     agency--

[[Page S14855]]

       ``(i) the number of requests for records to which the 
     agency has responded with a determination within a period up 
     to and including 20 days, and in 20-day increments up to and 
     including 200 days;
       ``(ii) the number of requests for records to which the 
     agency has responded with a determination within a period 
     greater than 200 days and less than 301 days;
       ``(iii) the number of requests for records to which the 
     agency has responded with a determination within a period 
     greater than 300 days and less than 401 days; and
       ``(iv) the number of requests for records to which the 
     agency has responded with a determination within a period 
     greater than 400 days;
       ``(H) the average number of days for the agency to provide 
     the granted information beginning on the date on which the 
     request was originally filed, the median number of days for 
     the agency to provide the granted information, and the range 
     in number of days for the agency to provide the granted 
     information;
       ``(I) the median and average number of days for the agency 
     to respond to administrative appeals based on the date on 
     which the appeals originally were received by the agency, the 
     highest number of business days taken by the agency to 
     respond to an administrative appeal, and the lowest number of 
     business days taken by the agency to respond to an 
     administrative appeal;
       ``(J) data on the 10 active requests with the earliest 
     filing dates pending at each agency, including the amount of 
     time that has elapsed since each request was originally 
     received by the agency;
       ``(K) data on the 10 active administrative appeals with the 
     earliest filing dates pending before the agency as of 
     September 30 of the preceding year, including the number of 
     business days that have elapsed since the requests were 
     originally received by the agency;
       ``(L) the number of expedited review requests that are 
     granted and denied, the average and median number of days for 
     adjudicating expedited review requests, and the number 
     adjudicated within the required 10 days;
       ``(M) the number of fee waiver requests that are granted 
     and denied, and the average and median number of days for 
     adjudicating fee waiver determinations;''.
       (b) Applicability to Agency and Each Principal Component of 
     the Agency.--Section 552(e) of title 5, United States Code, 
     is amended--
       (1) by redesignating paragraphs (2) through (5) as 
     paragraphs (3) through (6), respectively; and
       (2) by inserting after paragraph (1) the following:
       ``(2) Information in each report submitted under paragraph 
     (1) shall be expressed in terms of each principal component 
     of the agency and for the agency overall.''.
       (c) Public Availability of Data.--Section 552(e)(3) of 
     title 5, United States Code, (as redesignated by subsection 
     (b) of this section) is amended by adding after the period 
     ``In addition, each agency shall make the raw statistical 
     data used in its reports available electronically to the 
     public upon request.''.

     SEC. 9. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE 
                   ENTITY.

       Section 552(f) of title 5, United States Code, is amended 
     by striking paragraph (2) and inserting the following:
       ``(2) `record' and any other term used in this section in 
     reference to information includes--
       ``(A) any information that would be an agency record 
     subject to the requirements of this section when maintained 
     by an agency in any format, including an electronic format; 
     and
       ``(B) any information described under subparagraph (A) that 
     is maintained for an agency by an entity under Government 
     contract, for the purposes of records management.''.

     SEC. 10. OFFICE OF GOVERNMENT INFORMATION SERVICES.

       (a) In General.--Section 552 of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(h) There is established the Office of Government 
     lnformation Services within the National Archives and Records 
     Administration. The Office of Government Information Services 
     shall review policies and procedures of administrative 
     agencies under section 552, shall review compliance with 
     section 552 by administrative agencies, and shall recommend 
     policy changes to Congress and the President to improve the 
     administration of section 552. The Office of Government 
     Information Services shall offer mediation services to 
     resolve disputes between persons making requests under 
     section 552 and administrative agencies as a non-exclusive 
     alternative to litigation and, at the discretion of the 
     Office, may issue advisory opinions if mediation has not 
     resolved the dispute.
       ``(i) The Government Accountability Office shall conduct 
     audits of administrative agencies on the implementation of 
     section 552 and issue reports detailing the results of such 
     audits.
       ``(j) Each agency shall--
       ``(1) Designate a Chief FOIA Officer who shall be a senior 
     official of such agency (at the Assistant Secretary or 
     equivalent level).
       ``(a) General Duties.--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 the FOIA;
       ``(B) monitor FOIA implementation 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 the FOIA;
       ``(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 the FOIA;
       ``(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 the FOIA; and
       ``(E) facilitate public understanding of the purposes of 
     the FOIA's statutory exemptions by including concise 
     descriptions of the exemptions in both the agency's FOIA 
     handbook issued under section 552(g) of title 5, United 
     States Code, and the agency's annual FOIA report, and by 
     providing an overview, where appropriate, of certain general 
     categories of agency records to which those exemptions apply.
       ``(2) Designate one or more FOIA Public Liaisons who shall 
     be appointed by the Chief FOIA Officer.
       ``(b) General Duties.--FOIA Public Liaisons shall report to 
     the agency Chief FOIA Officer and shall serve as supervisory 
     officials to whom a FOIA requester can raise concerns about 
     the service the FOIA requester has received from the FOIA 
     Requester Center, following an initial response from the FOIA 
     Requester Center Staff. FOIA Public Liaisons shall be 
     responsible for assisting in reducing delays, increasing 
     transparency and understanding of the status of requests, and 
     assisting in the resolution of disputes.
       ``(c) Effective Date.--The amendments made by this section 
     shall take effect on the date of enactment of this Act.''.

     SEC. 11. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.

       Not later than 1 year after the date of enactment of this 
     Act, the Office of Personnel Management shall submit to 
     Congress a report that examines--
       (1) whether changes to executive branch personnel policies 
     could be made that would--
       (A) provide greater encouragement to all Federal employees 
     to fulfill their duties under section 552 of title 5, United 
     States Code; and
       (B) enhance the stature of officials administering that 
     section within the executive branch;
       (2) whether performance of compliance with section 552 of 
     title 5, United States Code, should be included as a factor 
     in personnel performance evaluations for any or all 
     categories of Federal employees and officers;
       (3) whether an employment classification series specific to 
     compliance with sections 552 and 552a of title 5, United 
     States Code, should be established;
       (4) whether the highest level officials in particular 
     agencies administering such sections should be paid at a rate 
     of pay equal to or greater than a particular minimum rate; 
     and
       (5) whether other changes to personnel policies can be made 
     to ensure that there is a clear career advancement track for 
     individuals interested in devoting themselves to a career in 
     compliance with such sections; and
       (6) whether the executive branch should require any or all 
     categories of Federal employees to undertake awareness 
     training of such sections.
                                 ______