[Congressional Record Volume 153, Number 192 (Friday, December 14, 2007)]
[Senate]
[Pages S15701-S15704]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 OPENNESS PROMOTES EFFECTIVENESS IN OUR NATIONAL GOVERNMENT ACT OF 2007

  Mr. REID. Madam President, I ask unanimous consent that the Senate 
proceed to the consideration S. 2488.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 2488) 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.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. REID. Madam President, I ask unanimous consent that the bill be 
read three times, passed, the motion to reconsider be laid upon the 
table, with no intervening action or debate, and that any statements 
relating to this bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 2488) was ordered to be engrossed for a third reading, 
was read the third time, and passed, as follows:

                                S. 2488

       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

[[Page S15702]]

     ``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:
       ``In this clause, 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. In this 
     clause, 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 subparagraph, 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, if 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 any authorized purpose 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) of title 5, United 
     States Code, is amended by inserting after clause (ii) the 
     following:
       ``The 20-day period under clause (i) shall commence on the 
     date on which the request is first received by the 
     appropriate component of the agency, but in any event not 
     later than ten days after the request is first received by 
     any component of the agency that is designated in the 
     agency's regulations under this section to receive requests 
     under this section. 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 requester under this section; 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 not assess search fees (or in the 
     case of a requester described under clause (ii)(II), 
     duplication fees) under this subparagraph if the agency fails 
     to comply with any time limit under paragraph (6), if 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.''.
       (B) Public liaison.--Section 552(a)(6)(B)(ii) of title 5, 
     United States Code, is amended by inserting after the first 
     sentence 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--
       ``(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

[[Page S15703]]

       (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 at the end ``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)(1) There is established the Office of Government 
     Information Services within the National Archives and Records 
     Administration.
       ``(2) The Office of Government Information Services shall--
       ``(A) review policies and procedures of administrative 
     agencies under this section;
       ``(B) review compliance with this section by administrative 
     agencies; and
       ``(C) recommend policy changes to Congress and the 
     President to improve the administration of this section.
       ``(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 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 
     this section and issue reports detailing the results of such 
     audits.
       ``(j) Each agency shall designate a Chief FOIA Officer who 
     shall be a senior official of such agency (at the Assistant 
     Secretary or equivalent level).
       ``(k) The Chief FOIA Officer of each agency shall, subject 
     to the authority of the head of the agency--
       ``(1) have agency-wide responsibility for efficient and 
     appropriate compliance with this section;
       ``(2) 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;
       ``(3) 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;
       ``(4) 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;
       ``(5) 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; and
       ``(6) designate one or more FOIA Public Liaisons.
       ``(l) FOIA Public Liaisons shall report to the agency Chief 
     FOIA Officer and shall serve as supervisory officials to whom 
     a requester under this section can raise concerns about the 
     service the 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.''.
       (b) 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.

     SEC. 12. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING 
                   DELETIONS OF MATERIAL PROVIDED UNDER FOIA.

       Section 552(b) of title 5, United States Code, is amended 
     in the matter after paragraph (9)--
       (1) in the second sentence, by inserting after ``amount of 
     information deleted'' the following: ``, and the exemption 
     under which the deletion is made,''; and
       (2) in the third sentence, by inserting after ``amount of 
     the information deleted'' the following: ``, and the 
     exemption under which the deletion is made,''.

  Mr. LEAHY. Madam President, I am pleased that, once again, the Senate 
has reaffirmed its bipartisan commitment to open and transparent 
government by unanimously passing the Openness Promotes Effectiveness 
in our National Government Act, the ``OPEN Government Act--the first 
major reform to the Freedom of Information Act, ``FOIA'', in more than 
a decade. I commend the bill's chief Republican cosponsor, Senator John 
Cornyn, for his commitment and dedication to passing FOIA reform 
legislation this year. I am also appreciative of the efforts of Senator 
Jon Kyl for cosponsoring this bill and helping us to reach a compromise 
on this legislation, so that the Senate could consider and pass 
meaningful FOIA reform legislation this year.
  Earlier this year, the Senate passed this historic FOIA reform 
legislation, S. 849, before adjourning for the August recess. Now that 
the Senate has unanimously passed a modified bill, to ensure that 
``pay/go'' and other concerns of the House are adequately addressed, I 
hope that the House will promptly enact this bill and send it to the 
President without further delay.
  I have worked very hard to address the concerns of the House 
Oversight and Government Reform Committee, to ensure that the Congress 
can enact meaningful FOIA reform legislation this year. I commend 
Congressman Waxman, the distinguished Chairman of that Committee, for 
his commitment to FOIA reform and I thank him and his staff for all of 
their hard work on this legislation.
  The bill that the Senate passed today includes ``pay/go'' language 
that has been requested by the House and it also eliminates a provision 
on citations to FOIA exemptions in legislation that was in the previous 
bill. To accommodate other concerns of the House, the bill also 
includes a new provision that requires Federal agencies to disclose the 
FOIA exemptions that they rely upon when redacting information from 
documents released under FOIA. In addition, the bill adds FOIA 
duplication fees for noncommercial requesters, including the media, to 
the fee waiver penalty that will be imposed when an agency fails to 
meet the 20-day statutory clock under FOIA. While I will continue to 
work with the House and others to further strengthen this critical open 
government law, I hope that the House will promptly take up the 
bipartisan FOIA compromise bill that we have been able to pass so that 
it may be signed into law 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

[[Page S15704]]

contractors; establishing a FOIA hotline service for all Federal 
agencies; and creating a FOIA Ombudsman to provide FOIA requestors 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. To 
ensure accuracy in FOIA responses, 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--and duplication fees for noncommercial requestors--if it fails to 
meet the 20-day deadline, except in the case of exceptional 
circumstances as defined by the FOIA statute.
  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 requestor. 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 House ``pay/go'' concerns, the bill also requires that any 
attorneys'' fees assessed under this provision be paid from any 
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. 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 an essential tool to ensure that 
all Americans 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.
  Again, I commend Senators Cornyn and Kyl and the many other 
cosponsors of this legislation for their dedication to open government. 
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, OpenTheGovemment.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.
  By passing this important FOIA reform legislation, the Senate has 
reaffirmed 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 strongly encourage the House of Representatives, 
which overwhelmingly passed a similar measure earlier this year, to 
promptly take up and enact this bill before adjourning for the year.

                          ____________________