[Congressional Record Volume 161, Number 17 (Monday, February 2, 2015)]
[Senate]
[Pages S699-S702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself, Mr. Leahy, and Mr. Grassley):
  S. 337. A bill to improve the Freedom of Information Act; to the 
Committee on the Judiciary.
  Mr. CORNYN. 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. 337

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FOIA Improvement Act of 
     2015''.

     SEC. 2. AMENDMENTS TO FOIA.

       Section 552 of title 5, United States Code, is amended--
       (1) in subsection (a)--
       (A) in paragraph (2)--
       (i) in the matter preceding subparagraph (A), by striking 
     ``for public inspection and copying'' and inserting ``for 
     public inspection in an electronic format'';
       (ii) by striking subparagraph (D) and inserting the 
     following:
       ``(D) copies of all records, regardless of form or format--
       ``(i) that have been released to any person under paragraph 
     (3); and
       ``(ii)(I) that because of the nature of their subject 
     matter, the agency determines have become or are likely to 
     become the subject of subsequent requests for substantially 
     the same records; or
       ``(II) that have been requested 3 or more times; and''; and
       (iii) in the undesignated matter following subparagraph 
     (E), by striking ``public inspection and copying current'' 
     and inserting ``public inspection in an electronic format 
     current'';
       (B) in paragraph (4)(A), by striking clause (viii) and 
     inserting the following:
       ``(viii)(I) Except as provided in subclause (II), an agency 
     shall not assess any search fees (or in the case of a 
     requester described under clause (ii)(II) of this 
     subparagraph, duplication fees) under this subparagraph if 
     the agency has failed to comply with any time limit under 
     paragraph (6).
       ``(II)(aa) If an agency has determined that unusual 
     circumstances apply (as the term is defined in paragraph 
     (6)(B)) and the agency provided a timely written notice to 
     the requester in accordance with paragraph (6)(B), a failure 
     described in subclause (I) is excused for an additional 10 
     days. If the agency fails to comply with the extended time 
     limit, the agency may not assess any search fees (or in the 
     case of a requester described under clause (ii)(II) of this 
     subparagraph, duplication fees).
       ``(bb) If an agency has determined that unusual 
     circumstances apply and more than 50,000 pages are necessary 
     to respond to the request, an agency may charge search fees 
     (or in the case of a requester described under clause 
     (ii)(II) of this subparagraph, duplication fees) if the 
     agency has provided a timely written notice to the requester 
     in accordance with paragraph (6)(B) and the agency has 
     discussed with the requester via written mail, electronic 
     mail, or telephone (or made not less than 3 good-faith 
     attempts to do so) how the requester could effectively limit 
     the scope of the request in accordance with paragraph 
     (6)(B)(ii).
       ``(cc) If a court has determined that exceptional 
     circumstances exist (as that term is defined in paragraph 
     (6)(C)), a failure described in subclause (I) shall be 
     excused for the length of time provided by the court 
     order.'';
       (C) in paragraph (6)--
       (i) in subparagraph (A)(i), by striking ``making such 
     request'' and all that follows through ``determination; and'' 
     and inserting the following: ``making such request of--''
       ``(I) such determination and the reasons therefor;
       ``(II) the right of such person to seek assistance from the 
     FOIA Public Liaison of the agency; and
       ``(III) in the case of an adverse determination--

       ``(aa) the right of such person to appeal to the head of 
     the agency, within a period determined by the head of the 
     agency that is not less than 90 days after the date of such 
     adverse determination; and
       ``(bb) the right of such person to seek dispute resolution 
     services from the FOIA Public Liaison of the agency or the 
     Office of Government Information Services; and''; and

       (ii) in subparagraph (B)(ii), by striking ``the agency.'' 
     and inserting ``the agency, and notify the requester of the 
     right of the

[[Page S700]]

     requester to seek dispute resolution services from the Office 
     of Government Information Services.''; and
       (D) by adding at the end the following:
       ``(8)(A) An agency--
       ``(i) shall--
       ``(I) withhold information under this section only if--
       ``(aa) the agency reasonably foresees that disclosure would 
     harm an interest protected by an exemption described in 
     subsection (b) or other provision of law; or
       ``(bb) disclosure is prohibited by law; and
       ``(II)(aa) consider whether partial disclosure of 
     information is possible whenever the agency determines that a 
     full disclosure of a requested record is not possible; and
       ``(bb) take reasonable steps necessary to segregate and 
     release nonexempt information; and
       ``(ii) may not--
       ``(I) withhold information requested under this section 
     merely because the agency can demonstrate, as a technical 
     matter, that the records fall within the scope of an 
     exemption described in subsection (b); or
       ``(II) withhold information requested under this section 
     merely because disclosure of the information may be 
     embarrassing to the agency or because of speculative or 
     abstract concerns.
       ``(B) Nothing in this paragraph requires disclosure of 
     information that is otherwise prohibited from disclosure by 
     law, or otherwise exempted from disclosure under subsection 
     (b)(3).'';
       (2) in subsection (b), by amending paragraph (5) to read as 
     follows:
       ``(5) inter-agency or intra-agency memorandums or letters 
     that would not be available by law to a party other than an 
     agency in litigation with the agency, if the requested record 
     or information was created less than 25 years before the date 
     on which the request was made;'';
       (3) in subsection (e)
       (A) in paragraph (1)--
       (i) in the matter preceding subparagraph (A), by inserting 
     ``and to the Director of the Office of Government Information 
     Services'' after ``United States'';
       (ii) in subparagraph (N), by striking ``and'' at the end;
       (iii) in subparagraph (O), by striking the period at the 
     end and inserting a semicolon; and
       (iv) by adding at the end the following:
       ``(P) the number of times the agency denied a request for 
     records under subsection (c); and
       ``(Q) the number of records that were made available for 
     public inspection in an electronic format under subsection 
     (a)(2).'';
       (B) by striking paragraph (3) and inserting the following:
       ``(3) Each agency shall make each such report available for 
     public inspection in an electronic format. In addition, each 
     agency shall make the raw statistical data used in each 
     report available in a timely manner for public inspection in 
     an electronic format, which shall be made available--
       ``(A) without charge, license, or registration requirement;
       ``(B) in an aggregated, searchable format; and
       ``(C) in a format that may be downloaded in bulk.'';
       (C) in paragraph (4)--
       (i) by striking ``Government Reform and Oversight'' and 
     inserting ``Oversight and Government Reform'';
       (ii) by inserting ``Homeland Security and'' before 
     ``Governmental Affairs''; and
       (iii) by striking ``April'' and inserting ``March''; and
       (D) by striking paragraph (6) and inserting the following:
       ``(6)(A) The Attorney General of the United States shall 
     submit to the Committee on Oversight and Government Reform of 
     the House of Representatives, the Committee on Judiciary of 
     the Senate, and the President a report on or before March 1 
     of each calendar year, which shall include for the prior 
     calendar year--
       ``(i) a listing of the number of cases arising under this 
     section;
       ``(ii) a listing of--
       ``(I) each subsection, and any exemption, if applicable, 
     involved in each case arising under this section;
       ``(II) the disposition of each case arising under this 
     section; and
       ``(III) the cost, fees, and penalties assessed under 
     subparagraphs (E), (F), and (G) of subsection (a)(4); and
       ``(iii) a description of the efforts undertaken by the 
     Department of Justice to encourage agency compliance with 
     this section.
       ``(B) The Attorney General of the United States shall 
     make--
       ``(i) each report submitted under subparagraph (A) 
     available for public inspection in an electronic format; and
       ``(ii) the raw statistical data used in each report 
     submitted under subparagraph (A) available for public 
     inspection in an electronic format, which shall be made 
     available--
       ``(I) without charge, license, or registration requirement;
       ``(II) in an aggregated, searchable format; and
       ``(III) in a format that may be downloaded in bulk.'';
       (4) in subsection (g), in the matter preceding paragraph 
     (1), by striking ``publicly available upon request'' and 
     inserting ``available for public inspection in an electronic 
     format'';
       (5) in subsection (h)--
       (A) in paragraph (1), by adding at the end the following: 
     ``The head of the Office shall be the Director of the Office 
     of Government Information Services.'';
       (B) in paragraph (2), by striking subparagraph (C) and 
     inserting the following:
       ``(C) identify procedures and methods for improving 
     compliance under this section.'';
       (C) by striking paragraph (3) and inserting the following:
       ``(3) The Office of Government Information Services shall 
     offer mediation services to resolve disputes between persons 
     making requests under this section and administrative 
     agencies as a non-exclusive alternative to litigation and may 
     issue advisory opinions at the discretion of the Office or 
     upon request of any party to a dispute.''; and
       (D) by adding at the end the following:
       ``(4)(A) Not less frequently than annually, the Director of 
     the Office of Government Information Services shall submit to 
     the Committee on Oversight and Government Reform of the House 
     of Representatives, the Committee on the Judiciary of the 
     Senate, and the President--
       ``(i) a report on the findings of the information reviewed 
     and identified under paragraph (2);
       ``(ii) a summary of the activities of the Office of 
     Government Information Services under paragraph (3), 
     including--
       ``(I) any advisory opinions issued; and
       ``(II) the number of times each agency engaged in dispute 
     resolution with the assistance of the Office of Government 
     Information Services or the FOIA Public Liaison; and
       ``(iii) legislative and regulatory recommendations, if any, 
     to improve the administration of this section.
       ``(B) The Director of the Office of Government Information 
     Services shall make each report submitted under subparagraph 
     (A) available for public inspection in an electronic format.
       ``(C) The Director of the Office of Government Information 
     Services shall not be required to obtain the prior approval, 
     comment, or review of any officer or agency of the United 
     States, including the Department of Justice, the Archivist of 
     the United States, or the Office of Management and Budget 
     before submitting to Congress, or any committee or 
     subcommittee thereof, any reports, recommendations, 
     testimony, or comments, if such submissions include a 
     statement indicating that the views expressed therein are 
     those of the Director and do not necessarily represent the 
     views of the President.
       ``(5) The Director of the Office of Government Information 
     Services may directly submit additional information to 
     Congress and the President as the Director determines to be 
     appropriate.
       ``(6) Not less frequently than annually, the Office of 
     Government Information Services shall conduct a meeting that 
     is open to the public on the review and reports by the Office 
     and shall allow interested persons to appear and present oral 
     or written statements at the meeting.'';
       (6) by striking subsections (i), (j), and (k), and 
     inserting the following:
       ``(i) The Government Accountability Office shall--
       ``(1) not later than 1 year after the date of enactment of 
     the FOIA Improvement Act of 2015 and every 2 years 
     thereafter, conduct audits of 3 or more administrative 
     agencies on compliance with and implementation of the 
     requirements of this section and issue reports detailing the 
     results of such audits;
       ``(2) not later than 1 year after the date of enactment of 
     the FOIA Improvement Act of 2015 and every 2 years 
     thereafter, issue a report cataloging the number of 
     exemptions described in paragraphs (3) and (5) of subsection 
     (b) and the use of such exemptions by each agency;
       ``(3) not later than 1 year after the date of enactment of 
     the FOIA Improvement Act of 2015, conduct a study on the 
     methods Federal agencies use to reduce the backlog of 
     requests under this section and issue a report on the 
     effectiveness of those methods; and
       ``(4) submit copies of all reports and audits described in 
     this subsection to the Committee on Oversight and Government 
     Reform of the House of Representatives and the Committee on 
     the Judiciary of the Senate.
       ``(j)(1) Each agency shall designate a Chief FOIA Officer 
     who shall be a senior official of such agency (at the 
     Assistant Secretary or equivalent level).
       ``(2) The Chief FOIA Officer of each agency shall, subject 
     to the authority of the head of the agency--
       ``(A) have agency-wide responsibility for efficient and 
     appropriate compliance with this section;
       ``(B) monitor implementation of this section throughout the 
     agency and keep the head of the agency, the chief legal 
     officer of the agency, and the Attorney General appropriately 
     informed of the agency's performance in implementing this 
     section;
       ``(C) recommend to the head of the agency such adjustments 
     to agency practices, policies, personnel, and funding as may 
     be necessary to improve its implementation of this section;
       ``(D) review and report to the Attorney General, through 
     the head of the agency, at such times and in such formats as 
     the Attorney General may direct, on the agency's performance 
     in implementing this section;
       ``(E) facilitate public understanding of the purposes of 
     the statutory exemptions of this section by including concise 
     descriptions of

[[Page S701]]

     the exemptions in both the agency's handbook issued under 
     subsection (g), and the agency's annual report on this 
     section, and by providing an overview, where appropriate, of 
     certain general categories of agency records to which those 
     exemptions apply;
       ``(F) offer training to agency staff regarding their 
     responsibilities under this section;
       ``(G) serve as the primary agency liaison with the Office 
     of Government Information Services and the Office of 
     Information Policy; and
       ``(H) designate 1 or more FOIA Public Liaisons.
       ``(3) The Chief FOIA Officer of each agency shall review, 
     not less frequently than annually, all aspects of the 
     administration of this section by the agency to ensure 
     compliance with the requirements of this section, including--
       ``(A) agency regulations;
       ``(B) disclosure of records required under paragraphs (2) 
     and (8) of subsection (a);
       ``(C) assessment of fees and determination of eligibility 
     for fee waivers;
       ``(D) the timely processing of requests for information 
     under this section;
       ``(E) the use of exemptions under subsection (b); and
       ``(F) dispute resolution services with the assistance of 
     the Office of Government Information Services or the FOIA 
     Public Liaison.
       ``(k)(1) There is established in the executive branch the 
     Chief FOIA Officers Council (referred to in this subsection 
     as the `Council').
       ``(2) The Council shall be comprised of the following 
     members:
       ``(A) The Deputy Director for Management of the Office of 
     Management and Budget.
       ``(B) The Director of the Office of Information Policy at 
     the Department of Justice.
       ``(C) The Director of the Office of Government Information 
     Services.
       ``(D) The Chief FOIA Officer of each agency.
       ``(E) Any other officer or employee of the United States as 
     designated by the Co-Chairs.
       ``(3) The Director of the Office of Information Policy at 
     the Department of Justice and the Director of the Office of 
     Government Information Services shall be the Co-Chairs of the 
     Council.
       ``(4) The Administrator of General Services shall provide 
     administrative and other support for the Council.
       ``(5)(A) The duties of the Council shall include the 
     following:
       ``(i) Develop recommendations for increasing compliance and 
     efficiency under this section.
       ``(ii) Disseminate information about agency experiences, 
     ideas, best practices, and innovative approaches related to 
     this section.
       ``(iii) Identify, develop, and coordinate initiatives to 
     increase transparency and compliance with this section.
       ``(iv) Promote the development and use of common 
     performance measures for agency compliance with this section.
       ``(B) In performing the duties described in subparagraph 
     (A), the Council shall consult on a regular basis with 
     members of the public who make requests under this section.
       ``(6)(A) The Council shall meet regularly and such meetings 
     shall be open to the public unless the Council determines to 
     close the meeting for reasons of national security or to 
     discuss information exempt under subsection (b).
       ``(B) Not less frequently than annually, the Council shall 
     hold a meeting that shall be open to the public and permit 
     interested persons to appear and present oral and written 
     statements to the Council.
       ``(C) Not later than 10 business days before a meeting of 
     the Council, notice of such meeting shall be published in the 
     Federal Register.
       ``(D) Except as provided in subsection (b), the records, 
     reports, transcripts, minutes, appendices, working papers, 
     drafts, studies, agenda, or other documents that were made 
     available to or prepared for or by the Council shall be made 
     publicly available.
       ``(E) Detailed minutes of each meeting of the Council shall 
     be kept and shall contain a record of the persons present, a 
     complete and accurate description of matters discussed and 
     conclusions reached, and copies of all reports received, 
     issued, or approved by the Council. The minutes shall be 
     redacted as necessary and made publicly available.''; and
       (7) by adding at the end the following:
       ``(m)(1) The Director of the Office of Management and 
     Budget, in consultation with the Attorney General, shall 
     ensure the operation of a consolidated online request portal 
     that allows a member of the public to submit a request for 
     records under subsection (a) to any agency from a single 
     website. The portal may include any additional tools the 
     Director of the Office of Management and Budget finds will 
     improve the implementation of this section.
       ``(2) This subsection shall not be construed to alter the 
     power of any other agency to create or maintain an 
     independent online portal for the submission of a request for 
     records under this section. The Director of the Office of 
     Management and Budget shall establish standards for 
     interoperability between the portal required under paragraph 
     (1) and other request processing software used by agencies 
     subject to this section.''.

     SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS.

       (a) In General.--Not later than 180 days after the date of 
     enactment of this Act, the head of each agency (as defined in 
     section 551 of title 5, United States Code) shall review the 
     regulations of such agency and shall issue regulations on 
     procedures for the disclosure of records under section 552 of 
     title 5, United States Code, in accordance with the 
     amendments made by section 2.
       (b) Requirements.--The regulations of each agency shall 
     include procedures for engaging in dispute resolution through 
     the FOIA Public Liaison and the Office of Government 
     Information Services.

     SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.

       Section 3102 of title 44, United States Code, is amended--
       (1) by redesignating paragraphs (2) and (3) as paragraphs 
     (3) and (4); and
       (2) by inserting after paragraph (1) the following:
       ``(2) procedures for identifying records of general 
     interest or use to the public that are appropriate for public 
     disclosure, and for posting such records in a publicly 
     accessible electronic format;''.

     SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.

       No additional funds are authorized to carry out the 
     requirements of this Act or the amendments made by this Act. 
     The requirements of this Act and the amendments made by this 
     Act shall be carried out using amounts otherwise authorized 
     or appropriated.

  Mr. LEAHY. Mr. President, I am proud to once again join with Senator 
Cornyn to introduce the FOIA Improvement Act, a bipartisan bill that 
will make our Federal government more accountable to all Americans by 
strengthening the Freedom of Information Act, FOIA.
  Senator Cornyn and I introduced an almost identical bill last year, 
and despite it passing the Senate unanimously, the House failed to act. 
This was deeply disappointing, and was a missed opportunity for 
Congress. But Senator Cornyn and I have worked together for more than a 
decade to make our government more open, through Democratic and 
Republican administrations and Republican and Democratic-led 
Congresses. We have a strong partnership, and we will not quit. We are 
determined to make progress on creating a more open and transparent 
government for all Americans.
  The FOIA Improvement Act of 2015 codifies what President Obama laid 
out in his historic 2009 memorandum by requiring Federal agencies to 
adopt a ``Presumption of Openness'' when considering the release of 
government information under FOIA. Under this bill, when considering 
FOIA requests Federal agencies must find a reasonable foreseeable harm 
in order to invoke a discretionary exemption and withhold information 
from the public. The government should always err on the side of 
disclosure. Our legislation also provides additional independence to 
the Office of Government Information Services, OGIS, an office created 
by the Leahy-Cornyn OPEN Government Act in 2007 that helps mediate 
disputes between the Federal Government and FOIA requesters. Finally, 
our legislation will limit the use of Exemption 5 by placing a 25 year 
limitation on information covered by the exemption.
  I have fought for years to make our government more open and 
transparent. Senator Cornyn has been an important partner in these 
efforts, and our collaboration has resulted in the enactment of several 
improvements to FOIA including the OPEN Government Act, the first major 
reform to FOIA in more than a decade; the OPEN FOIA Act, which 
increased the transparency of legislative exemptions to FOIA; and the 
Faster FOIA Act, which responded to the concerns of FOIA requestors and 
addressed agency delays in processing requests.
  After four decades in the Senate, I appreciate that legislating 
requires compromise. The FOIA Improvement Act of 2015 reflects the 
input of both sides of the aisle, the open government community, the 
administration, and many other stakeholders. It is the product of 
nearly a year of careful negotiations on behalf of Senator Cornyn and 
me. It is supported by more than 70 public interest groups that 
advocate for government transparency and it had the unanimous support 
of the Judiciary Committee and the full Senate last year. Above all, it 
marks an historic step forward in our continued effort to open the 
government by codifying what President Obama set out to achieve in 2009 
when he said ``In the face of doubt, openness prevails.'' This is 
common sense, and so I urge the Senate to quickly take up and pass this 
bill and for the House to follow suit so we can show the American 
people, in a bipartisan fashion, that we are committed to advancing 
their interests

[[Page S702]]

above special interests, no matter who holds control of Congress or the 
White House.

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