[Congressional Record (Bound Edition), Volume 153 (2007), Part 5]
[House]
[Pages 6343-6351]
[From the U.S. Government Publishing Office, www.gpo.gov]




             FREEDOM OF INFORMATION ACT AMENDMENTS OF 2007

  Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1309) to promote 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, as amended.
  The Clerk read as follows:

                               H.R. 1309

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Freedom of 
     Information Act Amendments of 2007''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Protection of fee status for news media.
Sec. 4. Recovery of attorney fees and litigation costs.
Sec. 5. Disciplinary actions for arbitrary and capricious rejections of 
              requests.
Sec. 6. Time limits for agencies to act on requests.
Sec. 7. Individualized tracking numbers for requests and status 
              information.
Sec. 8. Specific citations in exemptions.
Sec. 9. Reporting requirements.
Sec. 10. Openness of agency records maintained by a private entity.
Sec. 11. Office of Government Information Services.
Sec. 12. Accessibility of critical infrastructure information.
Sec. 13. Report on personnel policies related to FOIA.
Sec. 14. Promotion of public disclosure.
Sec. 15. Requirement to describe exemptions authorizing deletions of 
              material provided under FOIA.

     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:
     ``In making a determination of a representative of the news 
     media under subclause (II), an agency may not deny that 
     status solely on the basis of the absence of institutional

[[Page 6344]]

     associations of the requester, but shall consider the prior 
     publication history of the requester. Prior publication 
     history shall include books, magazine and newspaper articles, 
     newsletters, television and radio broadcasts, and Internet 
     publications. If the requestor has no prior publication 
     history or current affiliation, the agency shall consider the 
     requestor's stated intent at the time the request is made to 
     distribute information to a reasonably broad audience.''.

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

       (a) In General.--Section 552(a)(4)(E) of title 5, United 
     State Code, is amended by adding at the end the following: 
     ``For purposes of this section only, a complainant has 
     substantially prevailed if the complainant has obtained 
     relief through either--
       ``(i) a judicial order, administrative action, or an 
     enforceable written agreement or consent decree; or
       ``(ii) a voluntary or unilateral change in position by the 
     opposing party, in a case in which the complainant's claim or 
     defense was not frivolous.''.
       (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 the amendments made 
     by this section. 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 ``determine within 20 
     days (excepting Saturdays, Sundays, and legal public 
     holidays) after the receipt of any such request'' and 
     inserting ``within the 20-day period commencing on the date 
     on which the request is first received by the agency 
     (excepting Saturdays, Sundays, and legal public holidays), 
     which shall not be tolled without the consent of the party 
     filing the request, determine''.
       (2) Effective date.--The amendment made by this subsection 
     shall take effect 1 year after the date of enactment of this 
     Act.
       (b) Applicability of Agency Fees.--
       (1) Limitation.--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 any fees collected under 
     this subparagraph if the agency fails to comply with any time 
     limit that applies under paragraph (6). Such refunds shall be 
     paid from annual appropriations provided to that 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 shall 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 for information under this 
     section;
       ``(B) not later than 10 days after receiving a request, 
     provide each person making a request with the tracking number 
     assigned to the request; and
       ``(C) 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. SPECIFIC CITATIONS IN EXEMPTIONS.

       Section 552(b) of title 5, United States Code, is amended 
     by striking paragraph (3) and inserting the following:
       ``(3) specifically exempted from disclosure by statute 
     (other than section 552b of this title), provided that such 
     statute--
       ``(A) if enacted after the date of enactment of the Freedom 
     of Information Act Amendments of 2007, specifically cites to 
     this section; and
       ``(B)(i) requires that the matters be withheld from the 
     public in such a manner as to leave no discretion on the 
     issue; or
       ``(ii) establishes particular criteria for withholding or 
     refers to particular types of matters to be withheld;''.

     SEC. 9. REPORTING REQUIREMENTS.

       (a) Annual Report Requirements.--Section 552(e)(1) of title 
     5, United States Code, is amended--
       (1) in the matter preceding subparagraph (A) by striking 
     ``fiscal year and which'' and inserting ``fiscal year. 
     Information in the report shall be expressed in terms of each 
     principal component of the agency and for the agency overall, 
     and'';
       (2) in subparagraph (B)(ii), by inserting after the first 
     comma the following, ``the number of occasions on which each 
     statute was relied upon,'';
       (3) in subparagraph (C), by inserting after ``median'' the 
     following: ``and average'';
       (4) in subparagraph (E), by inserting before the semicolon 
     the following: ``, based on the date on which each request 
     was initially received by the agency''; and
       (5) by redesignating subparagraphs (F) and (G) as 
     subparagraphs (N) and (O), respectively, and inserting after 
     subparagraph (E) the following new subparagraphs:
       ``(F) the average number of days for the agency to respond 
     to requests beginning on the date on which each request was 
     initially 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 initially received by the 
     agency--
       ``(i) the number of requests for records to which the 
     agency has responded with a determination within a period 
     greater than 1 day and less than 201 days, stated in 20-day 
     increments;
       ``(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 each 
     request was initially received by the agency, 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 with a determination to administrative appeals 
     based on the date on which each appeal was initially 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 the agency, including the amount of 
     time that has elapsed since each request was initially 
     received by the agency;
       ``(K) data on the 10 active administrative appeals with the 
     earliest filing dates pending at the agency as of September 
     30 of the preceding year, including the number of business 
     days that have elapsed since each request was initially 
     received by the agency;
       ``(L) the number of expedited review requests received by 
     the agency, the number that were granted and the number that 
     were denied, the average and median number of days for 
     adjudicating expedited review requests, and the number of 
     requests that adjudicated within the required 10 days;
       ``(M) the number of fee waiver requests that were granted 
     and the number that were denied, and the average and median 
     number of days for adjudicating fee waiver determinations;''.
       (b) Availability of Raw Statistical Data.--Section 
     552(e)(2) of title 5, United States Code, is amended by 
     adding after the period the following: ``In addition, each 
     agency shall make the raw statistical data used in its 
     reports available electronically to the public upon 
     request.''.

     SEC. 10. 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 a contract 
     between the agency and the entity.''.

[[Page 6345]]



     SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.

       (a) In General.--Chapter 21 of title 44, United States 
     Code, is amended by inserting after section 2119 the 
     following new section:

     ``Sec. 2120. Office of Government Information Services

       ``(a) In General.--There is established in the National 
     Archives an office to be known as the `Office of Government 
     Information Services'.
       ``(b) National Information Advocate.--
       ``(1) In general.--The Office of Government Information 
     Services shall be under the supervision and direction of an 
     official to be known as the `National Information Advocate' 
     who shall report directly to the Archivist of the United 
     States.
       ``(2) Functions of office.--
       ``(A) Guidance for requesters.--
       ``(i) In general.--The Office of Government Information 
     Services shall provide, as a non-exclusive alternative to 
     litigation, guidance to FOIA requesters.
       ``(ii) Types of guidance.--In providing such guidance, the 
     Office shall provide informal guidance to requesters and may 
     provide fact-finding reviews and opinions to requesters. All 
     reviews and opinions shall be non-binding and shall be 
     initiated only on the request of FOIA requesters.
       ``(iii) Availability.--Any written opinion issued pursuant 
     to this section shall be available on the Internet in an 
     indexed, readily accessible format.
       ``(iv) FOIA requesters.--In this paragraph, the term `FOIA 
     requester' or `requester' means a person who has made a 
     request under section 552 of this title and who has been 
     denied records or has not received a timely response to the 
     request or to an administrative appeal.
       ``(B) Analyses of agency operations.--The Office of 
     Government Information Services shall--
       ``(i) review polices and procedures of administrative 
     agencies under section 552 of this title and compliance with 
     that section by administrative agencies; and
       ``(ii) recommend policy changes to Congress and the 
     President to improve the administration of section 552 of 
     this title, including whether agencies are receiving and 
     expending adequate funds to ensure compliance with that 
     section.
       ``(3) Impact on requester access to litigation.--Nothing in 
     this section shall affect the right of requesters to seek 
     judicial review as described in section 552 of this title.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 21 of title 44, United States Code, is 
     amended by inserting after the item relating to section 2119 
     the following:

``2120. Office of Government Information Services.''.

     SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 
                   INFORMATION.

       (a) In General.--Not later than January 1 of each of the 3 
     years following the date of the enactment of this Act, the 
     Comptroller General of the United States shall submit to 
     Congress a report on the implementation and use of section 
     214 of the Homeland Security Act of 2002 (6 U.S.C. 133), 
     including--
       (1) the number of persons in the private sector, and the 
     number of State and local agencies, that voluntarily 
     furnished records to the Department under this section;
       (2) the number of requests for access to records granted or 
     denied under this section;
       (3) such recommendations as the Comptroller General 
     considers appropriate regarding improvements in the 
     collection and analysis of sensitive information held by 
     persons in the private sector, or by State and local 
     agencies, relating to vulnerabilities of and threats to 
     critical infrastructure, including the response to such 
     vulnerabilities and threats; and
       (4) an examination of whether the nondisclosure of such 
     information has led to the increased protection of critical 
     infrastructure.
       (b) Form.--The report shall be submitted in unclassified 
     form, but may include a classified annex.

     SEC. 13. 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;
       (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. 14. PROMOTION OF PUBLIC DISCLOSURE.

       Section 552 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``(h)(1) The policy of the Federal Government is to release 
     information to the public in response to a request under this 
     section--
       ``(A) if such release is required by law; or
       ``(B) if such release is allowed by law and the agency 
     concerned does not reasonably foresee that disclosure would 
     be harmful to an interest protected by an applicable 
     exemption.
       ``(2) All guidance provided to Federal Government employees 
     responsible for carrying out this section shall be consistent 
     with the policy set forth in paragraph (1).''.

     SEC. 15. 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 appearing 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,''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri (Mr. Clay) and the gentleman from Ohio (Mr. Turner) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Missouri.


                             General Leave

  Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?
  There was no objection.
  Mr. CLAY. Mr. Speaker, as chairman of the Oversight Subcommittee on 
Information Policy, Census and National Archives, and lead sponsor of 
the Freedom of Information Act Amendments of 2007, I strongly urge my 
colleagues to support H.R. 1309.
  H.R. 1309 champions the values of transparency and open government 
that we celebrate during Sunshine Week and that are embodied in the 
Freedom of Information Act, or FOIA, as it is referred to.
  Introduced with my colleagues Representative Waxman, chairman of the 
full Committee on Oversight and Government Reform, and Representative 
Platts, this bipartisan legislation is necessary to strengthen FOIA as 
a tool for enabling public access to government records.
  During a hearing in February, the subcommittee heard extensive 
testimony concerning long delays and bureaucratic obstacles experienced 
by requesters when trying to obtain government records under FOIA.
  According to testimony from GAO, most agencies throughout the 
government are failing to keep pace with the volume of requests they 
are receiving, the number of pending requests carried over from year to 
year has been steadily increasing, and the rate of increase is growing.
  A report released on Monday by the nonprofit National Security 
Archive further highlights the failure of agencies to make information 
available to the public in a timely way. According to the report, just 
22 percent of agencies are complying with the 1996 ``e-FOIA law,'' 
which requires agencies to post frequently requested information on 
their Web sites.
  An insufficient level of resources available for FOIA processing is 
one reason requesters are being forced to wait long periods of time for 
responses from agency FOIA offices. Another factor is the current 
administration's policy of withholding government information that 
would have been released under previous administrations. Government 
secrecy has increased as the volume of requests has gone up 
dramatically.
  Building on the OPEN Government Act introduced in the last Congress 
by

[[Page 6346]]

Senators Cornyn and Leahy and Representative Lamar Smith, H.R. 1309 
contains 13 substantive provisions aimed at removing obstacles to 
complete and timely government responses to FOIA requests.
  The bill would re-establish the policy of the Clinton administration, 
under which agencies were directed to disclose requested information 
unless the disclosure would result in some harm. The current 
administration has encouraged agencies to be more aggressive in 
asserting statutory exemptions to deny FOIA requests.
  In addition, the bill proposes a government-wide ombudsman to mediate 
disputes between agencies and requesters. This would help to reduce the 
number of disputes resolved through costly and time consuming 
litigation.
  Other key provisions include: A requirement that agencies respond to 
FOIA requests within 20 business days or face meaningful administrative 
penalties; the establishment of a publicly accessible tracking system 
for pending FOIA requests; and new reporting requirements to allow 
Congress to evaluate agency compliance with FOIA laws and regulation.
  In conclusion, Mr. Speaker, H.R. 1309 provides a strong, reasonable 
and bipartisan approach to streamlining the FOIA process and increasing 
transparency in government. It has the vigorous support of every major 
organization representing the media industry, journalists, historians, 
archivists and the public interest in government openness and 
accountability.
  We owe it to our constituents to pass this legislation and ensure 
that the Freedom of Information Act provides actual access to 
government information to which the American people are entitled.
  I urge all of my colleagues to support the bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. TURNER. Mr. Speaker, I yield myself as much as I may consume.
  Mr. Speaker, we have a bit of irony in play here on the House floor. 
This week the Democratic leadership has declared it Open Government 
Week, Open Government Week as we take up amendments to the Freedom of 
Information Act, an act that is incredibly important as a tool for us 
to hold our government accountable because it gives people the 
opportunity to access information that can be reviewed by people to 
determine what action needs to be taken.
  But, unfortunately, in the middle of this Open Government Week we 
have a bill that is coming to the floor, not the bill that went to the 
committee, not the bill that went through the subcommittee hearings, 
but an amended bill that has not been reviewed, and was handed to us 10 
minutes ago.
  Now, the reason why bills come on the Suspension Calendar where we 
agree to suspend the rules is because they are bills that have been 
fully vetted, that have openness to them, and that people are aware of 
what they are and have the opportunity to review them when we have an 
understanding that more than a majority of this House supports what is 
in that bill.
  But today, without prior notice, and 10-minute amendments to the 
bill, we have a bill that we are currently reviewing to determine what 
changes have been made and what the implications would be.
  Some of the speakers on the other side of the aisle talked about in 
Open Government Week that we wanted to make certain that there weren't 
backroom deals that were being made. Well, clearly the bill, 
unfortunately, that comes before us on the Freedom of Information Act 
is the product of a backroom deal where the majority of this House is 
going to be left with reviewing it to determine what is in it after it 
had come through our committee and subcommittee.
  So my comments about this bill will be about the one that came from 
the committee and the subcommittee that the subcommittee Chair and the 
chairman worked so hard in a bipartisan way to bring to this floor.
  I know others on this side of the aisle will be reserving their 
comments for the areas of the bill where it has been modified, where 
the backroom deals have been made. And we are all unaware of its 
impact.
  The Freedom of Information Act is a popular tool for inquiry for the 
press, researchers, business, attorneys, activists. But most 
importantly, it remains a tool for the citizen. Improving the 
procedural aspects of the act is certainly a worthy goal.
  Legislation designed to streamline and improve the Freedom of 
Information Act process was introduced last Congress by the gentleman 
from Texas (Mr. Smith). His bill, H.R. 867, has moved through 
subcommittee to the full committee. This was a solid bipartisanship 
bill that Republicans introduced and guided through the legislative 
process. This year the majority took that bipartisanship bill and made 
a few changes.
  Republicans offered two amendments that were not included in the 
reported bill. First, the attorneys' fee provision appears to 
significantly lower the bar for the recovery of fees, making it easier 
for those seeking information from the Federal Government to recover 
legal fees.
  The language in this bill differs from that in H.R. 867. The Supreme 
Court has ruled on this matter in the Buckhannon case, and now some 
fear the effect of this decision, what it might have on their ability 
to get attorneys' fees.
  The language of section 4 of this bill would make plaintiffs eligible 
for attorneys' fees in almost any case, so long as they can show that 
the defending government agency somehow changed its position once the 
case had commenced. I hope we can closely consider the rationale behind 
this provision, and its implications for the numerous Federal statutes 
providing for attorneys' fee awards where the United States or a 
Federal agency or official is a party. You have to assume that if this 
is the provision that passes, everyone litigating under any private 
right of action will clamor for the same favorable legislative 
treatment.
  An amendment was offered in committee to strike section 4 to preserve 
settled judicial precedent regarding attorneys' fees and highlight this 
issue. I hope my colleagues in the House and the other body will take a 
close look at this section as the legislation moves forward.
  Second, the majority has taken to heart various groups' concerns 
about the so-called Ashcroft memo. During President Clinton's 
administration, Attorney General Janet Reno issued a memorandum 
establishing a presumption of disclosure if no foreseeable harm would 
result from the release of information.
  Shortly after 9/11, and recognizing the challenges of the standard 
and the challenges that we face in the global war on terror, Attorney 
General Ashcroft issued a memorandum that encouraged agencies to 
carefully consider the protection of the values of interest embodied in 
the statutory exemptions to FOIA when making disclosure determinations.
  I understand that there are serious concerns with this section, and I 
understand the gentleman from Texas (Mr. Smith) will speak on this bill 
and this provision.
  Nevertheless, I hope that we continue to balance the need for open 
government with the need to protect information vital to national 
security and homeland security, and I hope we keep in mind the 
importance of individual privacy throughout this debate.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, at this time I yield 5 minutes to the 
distinguished chairman from California, Mr. Waxman.
  Mr. WAXMAN. Thank you very much, Mr. Clay, the chairman of the 
subcommittee, and I thank the gentleman from Ohio, the ranking member 
of the subcommittee.
  Mr. Speaker, I first of all have to express my regret in response to 
the complaint that, while we have openness in government, we had an 
amendment to this bill suddenly presented to the minority.

                              {time}  1130

  And let me explain why that happened. The legislation before us was

[[Page 6347]]

completely bipartisan in committee. I don't think anybody voted against 
the bill passing out of our committee, for all the reasons that both 
the Chair of the subcommittee and the ranking member described, and I 
would like to get into those substantive issues as well, because this 
is the best known and most important of the freedom of information that 
people look to when they want to be able to find out what government is 
doing. It is called the Freedom of Information Act for that reason.
  But we did not have presented to us in committee any objection to the 
fact that there is a score on this bill of $7 million. But because 
there is a score, we found out last night that there might be an 
objection to the bill; and we didn't want to have an objection to the 
bill, possibly cause people to come to the floor and vote against 
something as important as the Freedom of Information Act. So we added 
an amendment to the bill that simply provided that the $7 million, 
which, by the way, is only expended if the government is sued and loses 
and has to pay the penalty owed to people for withholding the 
information. But because there is a $7 million score, we added to this 
bill that there would be nothing paid unless there is an appropriation 
of that money. So the bill would not be scored as costing any money at 
all.
  I wish we had more time to bring this to everyone's attention, but no 
one brought to our attention in the committee that there was concern 
about this score.
  Nevertheless, this bill goes to the heart of the public's access to 
find out information about what its government is doing. And as we look 
at what we have designated ``Sunshine Week,'' we are considering this 
legislation to improve and strengthen this vital law.
  H.R. 1309 has been in effect for 40 years, but yet we have a dozen 
provisions that will increase public access to information under FOIA. 
These provisions will help FOIA requesters obtain timely responses to 
their requests, reduce the backlogs at agencies, increase transparency 
in agency compliance, and provide an alternative to litigation for 
requesters who are facing delays or denials.
  In addition, this bill will restore an important element of the 
Freedom of Information Act, the presumption of disclosure. Through 
memoranda issued in 2001 and 2002, the Bush administration discouraged 
agencies from releasing any document if they could find a technical 
reason for withholding it. This bill before us today reverses this 
policy by codifying the presumption of disclosure. Under this bill, 
agencies will revert to their former policies that emphasized public 
disclosure and supported the withholding of information only when the 
agency could foresee a harm from disclosure. This is an important 
change that will ensure continued public access to government 
information.
  The bill is a bipartisan bill, it is an important bill for openness 
in government, and I urge my colleagues to support the legislation.
  Mr. TURNER. Mr. Speaker, I appreciate the chairman's description of 
that. I do want to note that my understanding of the applicable dates 
are that the markup of our bill occurred on March 8 and the CBO cost 
estimate I believe is dated March 12, which would explain perhaps why 
there were no objections in the committee.
  Mr. Speaker, I yield 4 minutes to the gentleman from Wisconsin (Mr. 
Ryan).
  Mr. RYAN of Wisconsin. Mr. Speaker, I came to the floor to oppose the 
bill not on the merits of the FOIA policy, but on the grounds that this 
bill had a budget section 303 point of order against it and that it 
violated the new PAYGO rules we have before us.
  This bill that we just now got 10 minutes ago, as we read it, we 
believe does not violate section 303 of the Budget Act or the PAYGO 
rules. But I think the point I would like to make is this: 10 minutes 
ago this bill did have a section 303 violation against it; 10 minutes 
ago this bill did violate the majority's own PAYGO rules they put in 
place less than 10 months ago. And it scores not just a $7 million, but 
a $63 million increase over 10 years. So $63 million over 10 years is a 
lot of money. And given the fact that this new amended bill, as it 
appears as we read it, does have the required language, subject to 
appropriations, that it is not out of order, it doesn't waive the PAYGO 
rules because it does pay for itself subject to appropriations.
  I will withhold my objection, but I simply want to say to the 
majority this place would run a lot better if, when we put bills on the 
calendar and bring them to the floor, that they comply with the rules 
that the majority themselves put in place just 2 months ago with 
respect to PAYGO and with respect to the Budget Act. I just think the 
whole place would work a lot better if we do that. Then we get on to 
debating the merits of this legislation.
  I think FOIA is an important tool. It needs to work better. I think 
there is a lot of merit to that point. But let's make sure that as we 
take a look at our budget problems, and they are enormous, our budget 
problems, if we can't make sure that bills that spend $63 million over 
10 years can't comply with the Budget Act, can't comply with PAYGO, who 
is to say that bills that spend $2.9 trillion like our Federal budget 
can comply with it? So if we can't get the rules right on small bills, 
who is to say we are going to get the budget discipline rules right on 
the big bills?
  Fiscal discipline starts one step at a time, starts one bill at a 
time. We have got to get fiscal discipline rules in place and right on 
small business, especially if this Congress is going to get our arms 
around our larger fiscal problems.
  That is simply the point I want to make to the chairman.
  Mr. WAXMAN. Mr. Speaker, will the gentleman yield?
  Mr. RYAN of Wisconsin. I yield to the gentleman from California.
  Mr. WAXMAN. I thank the gentleman for yielding to me, and I just want 
to say what is seldom said on the House floor, that I agree with you. 
And we tried to correct the problems so that we didn't make the error 
that would have violated our PAYGO principles. And I thank the 
gentleman for pointing it out, and I think you have raised a very good 
point and we should all be mindful of it, including the points about 
the deficit, which I strongly think we need to deal with. So we will 
have differences about that, but I do want to show my agreement with 
your basic statement.
  Mr. RYAN of Wisconsin. I appreciate the gentleman.
  Mr. CLAY. Mr. Speaker, I reserve the balance of my time.
  Mr. TURNER. Mr. Speaker, I yield 4 minutes to the gentleman from 
Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Speaker, I appreciate my colleague from Ohio 
yielding me time, and I also want to thank Ranking Member Tom Davis and 
Chairman Henry Waxman for their hard work on this issue. I know how 
strongly they feel about the need for more open government, and I and 
many others appreciate their efforts.
  The process for obtaining government information is overly 
burdensome, and Federal agencies have become less and less responsive 
to requests for information. This deters citizens from obtaining 
information to which they are entitled.
  H.R. 1309, the Freedom of Information Act Amendments of 2007, has 
much to recommend it, but it contains at least one fatal flaw, the 
statutory presumption of disclosure. For that reason, I oppose this 
legislation.
  The presumption of disclosure would reverse the FOIA guidelines set 
out by former Attorney General John Ashcroft. Shortly after September 
11, 2001, then-Attorney General John Ashcroft directed that FOIA be 
used to ensure an open and accountable system of government while at 
the same time protecting national security and personal privacy.
  The directive encouraged agencies, when making a decision on 
discretionary disclosure, to carefully consider whether national 
security, privacy, and government's interest would be jeopardized.
  Unfortunately, this bill only exacerbates national security and 
personal privacy concerns. Instead of allowing

[[Page 6348]]

agency discretion regarding national security concerns, this statutory 
language would mandate the release of information if the information 
does not blatantly fall under an existing exemption.
  For instance, under the bill's language there is no discretion to 
determine whether the information requested will invade personal 
privacy. Also, if information requested is required by FOIA to be 
released, under this language it could tip off a terrorist to an 
investigation that is being conducted. So the bill could set in motion 
events that could compromise our national security.
  Last year, neither the House nor Senate bipartisan legislation 
included this questionable presumption of disclosure language. It is my 
understanding that this year's bipartisan Senate version also will not 
include this questionable language. And, furthermore, Mr. Speaker, the 
administration opposes this provision, too.
  There is no good reason to support a flawed bill, and I encourage my 
colleagues to oppose it.
  Mr. Speaker, I would ask unanimous consent to have the statement of 
opposition by the administration be made a part of the Record.

 Statement of Administration Policy--H.R. 1309--Freedom of Information 
  Act Amendments of 2007--(Rep. Clay (D) Missouri and two cosponsors)

       The Administration shares the goals of H.R. 1309 of 
     increasing the timeliness of Freedom of Information Act, 
     FOIA, responses and ensuring a customer-oriented approach to 
     FOIA processing. The Administration has been pursuing these 
     goals, and will be continuing to pursue them, through the 
     strong management review and reforms that the President 
     directed 15 months ago in the first-ever Executive Order on 
     FOIA--Executive Order 13392, ``Improving Agency Disclosure of 
     Information''--which he signed on December 14, 2005.
       However, the Administration cannot support H.R. 1309. The 
     Administration believes it would be premature and 
     counterproductive to the goals of increasing timeliness and 
     improving customer service to amend FOIA before agencies have 
     had sufficient time to implement the FOIA improvements that 
     the President directed them to develop, put into place, 
     monitor, and report on during FYs 2006 and 2007. For example, 
     as explained below, several of the bill's provisions would 
     impose substantial administrative and financial burdens on 
     the Executive Branch. These provisions could result in 
     slower, not faster, agency processing of FOIA requests, and 
     the personnel and funds needed to implement them would have 
     to come from existing agency resources. Moreover, the agency 
     reports that were issued last summer, and the improvement 
     plans that are being implemented, illustrate that the 
     challenges that agencies face in responding to FOIA requests 
     are often unique to each agency and, therefore, require 
     agency-tailored reforms, not a government-wide, one-size-
     fits-all legislative approach.
       The Administration's specific concerns with the bill 
     include the following.
       The Administration strongly opposes expanding the 
     definition of ``representative of the news media.'' The bill 
     would exempt a larger class of requesters from the obligation 
     to pay fees assessed for searching for responsive documents. 
     Expanding the definition would have serious fiscal 
     consequences for the Executive Branch. Moreover, with no 
     requirement that requesters pay search fees, they have no 
     incentive to tailor their requests and will likely make 
     overly broad requests, which, in turn, will stretch agency 
     resources and increase the time it takes to process all 
     requests. Further, under current law, agencies have authority 
     to waive or reduce fees upon a determination that disclosure 
     of information will contribute significantly to public 
     understanding.
       The Administration also strongly opposes reinstating the 
     so-called ``catalyst theory'' for the reimbursement of FOIA 
     litigation fees. The Administration is concerned that its 
     reinstatement would serve as a disincentive to an agency's 
     voluntarily revisiting decisions and improving procedures 
     with respect to FOIA requests, because doing so could make 
     the agency liable for a complainant's legal fees. 
     Furthermore, the bill could be interpreted to include an 
     ``administrative action'' through the FOIA appeals process as 
     a possible means by which a requester can obtain ``relief'' 
     that would justify attorneys fees. Such an interpretation 
     would be a major departure from long-standing administrative 
     law practice and would severely undercut the traditional 
     function of the administrative appeal process, which is 
     designed to provide the requester with an avenue of further 
     review at the agency, thereby reducing the likelihood of a 
     lawsuit. If this provision covers relief provided at the 
     administrative appeal stage, this could increase the FOIA 
     program costs dramatically and would serve as a disincentive 
     to release records at the administrative appeal stage.
       The Administration strongly opposes commencing the 20-day 
     time limit for processing FOIA requests on the date that the 
     request ``is first received by the agency,'' and preventing 
     the collection of search fees if the timeline is not met. 
     This provision represents a very significant change from 
     current practice in which the 20-day clock begins once the 
     appropriate element of an agency has received the request in 
     accordance with the agency's FOIA regulations. The provision 
     fails to take into account the complexity of many requests, 
     the need to consult with other Executive Branch entities, or 
     the need to search for records in multiple locations, 
     including at Federal records centers. As noted above, the 
     Executive Order requires agencies to implement improvement 
     plans specifically focused on eliminating or reducing any 
     backlog of FOIA requests, and the Justice Department's 
     preliminary review of the agencies' annual reports indicates 
     that some agencies have already realized meaningful backlog 
     reductions.
       The Administration is opposed to the creation of an 
     ``Office of Government Information Services'' within the 
     National Archives and any intent that the proposed Office 
     would be given any sort of policymaking role with respect to 
     FOIA compliance. The FOIA compliance function remains 
     appropriately placed with the Department of Justice, the lead 
     agency in implementing Executive Order 13392.
       Finally, the Administration strongly opposes the provision 
     in the bill that appears to be an attempt to repeal Attorney 
     General Ashcroft's FOIA Memorandum and return to Attorney 
     General Reno's pre-9/11 FOIA guidance. The Administration 
     believes that the structure of the FOIA reflects the 
     appropriate balance between the public's right to know how 
     the government is operating and the equally important need to 
     safeguard certain information, such as that pertaining to 
     personal privacy or homeland security.
  Mr. CLAY. Mr. Speaker, at this time I yield 4 minutes to my 
distinguished colleague from New York (Mrs. Maloney).
  Mrs. MALONEY of New York. I thank the gentleman for yielding and for 
his leadership, along with Mr. Waxman, on working on so many sunshine 
bills to make government more open and accountable to the citizens, to 
our taxpayers, to the American public. And an important part of 
sunshine is the Freedom of Information Act Amendments, it is a 
tremendously important bill, H.R. 1309, of 2007.
  Since coming to Congress, I have been working on this committee, and 
improved FOIA processes which are critical to an open government and 
making our government more transparent is very fundamental to our 
democracy.
  We have made improvement over the years, and I am pleased to have 
been one of the authors of the Electronic Freedom of Information Act of 
1996. This important law was intended to make FOIA more efficient by 
providing public access to information, including in an electronic 
format.
  The Oversight and Government Reform Committee, of which I am a 
member, has held many hearings on FOIA over the past few years, and we 
have learned that it has not progressed as well as we had hoped. Some 
agencies and Departments are doing a better job of fulfilling freedom 
of information requests, while some continue to have terrible records 
and lag far, far behind. Requesters often wait months or years to find 
out the status of their requests or to obtain the information. And I am 
pleased that we have report language that clarifies that they have to 
get back quickly on requests and at least let them know where they are.
  As a result, the backlogs at agencies and Departments continue to 
grow, and frequently the only recourse for the denial of requested 
information is to file lawsuits. But many people, many Americans cannot 
afford the high costs associated with court costs. So by not moving in 
a timely manner, you are depriving them of this information.
  H.R. 1309 includes many important provisions that my colleagues have 
spoken about and that I hope will improve the process and eliminate the 
problems that exist in today's system, including an amendment that I 
offered in committee that would provide for greater disclosure to the 
FOIA requester about the exemption under which a deletion has been made 
from requested material.
  I often hear from constituents, they come to my office with piles of 
FOIA requests and like the whole thing is redacted and there is 
absolutely no explanation why. This is really not fair,

[[Page 6349]]

and we hope that this amendment will improve the process.
  I am pleased that it was accepted in a bipartisan way by Ranking 
Member Davis and Ranking Member Turner. I really feel this legislation 
is long overdue, and I commend Chairman Waxman and Ranking Member Davis 
and Chairman Clay and Ranking Member Turner for bringing this 
bipartisan legislation to the floor with the many other very important 
sunshine bills to make our government more open and accountable to the 
American public.
  Mr. TURNER. Mr. Speaker, I yield 3 minutes to the gentleman from 
Pennsylvania (Mr. Platts).
  Mr. PLATTS. Mr. Speaker, I rise in support of H.R. 1309, the Freedom 
of Information Act Amendments of 2007.
  Open and accountable government make up the cornerstones of good 
government. This legislation before us today seeks to strengthen these 
cornerstones.
  The Freedom of Information Act was signed into law over 40 years ago, 
in July 1966, enacted after 11 years of debate. FOIA established a 
statutory right of public access to executive branch information.
  FOIA provides that any person has the right to obtain Federal agency 
records. Originally, the act included nine categories of information 
protected from disclosure, and Congress has added additional exemptions 
over time.
  Balancing the need for open government with the needs to protect 
information vital to national security and personal privacy is a 
constant struggle. Federal Departments and agencies are operating in 
the post-9/11 information age and face 21st century security, 
information management, and resource challenges.
  As we seek to achieve this balance we must remember the words of 
Thomas Jefferson who said, ``Information is the currency of 
democracy.'' FOIA is an essential tool to ensure that the citizens of 
our great Nation have access to information in the way that Thomas 
Jefferson envisioned.
  Over the past several years, the Government Reform Subcommittee on 
Government Management, Finance, and Accountability, on which I had the 
privilege to serve as Chair, conducted multiple hearings on FOIA 
implementation.

                              {time}  1145

  In response to legislative proposals introduced last session in the 
House and Senate, as well as the oversight conducted by the 
subcommittee, President Bush issued Executive Order 13392, entitled 
Improving Agency Disclosure of Information, on December 14, 2005. This 
document sought to improve the overall processing of FOIA requests, 
creating a more citizen-centered and results-oriented approach to 
information policy. And I certainly commend the administration for 
their efforts.
  In response to that effort, though, we believed further work was 
needed. On September 27, 2006, the subcommittee marked up legislation 
very similar to that legislation before us here today. Specifically, 
the OPEN Government Act, introduced by my colleague from Texas, Lamar 
Smith, like the bill before us today, would close loopholes in FOIA, 
help requesters obtain more timely response, and provide FOIA officials 
with the tools they need to ensure that the Federal Government remains 
open and accessible.
  While the legislation before us today includes provisions not 
included in Representative Smith's legislation from last session and to 
which he is currently opposed, I certainly want to commend 
Representative Smith for his leadership and dedicated efforts to 
improve the Freedom of Information Act and to make government more open 
and accountable.
  I also want to thank Chairman Waxman of the full committee and 
subcommittee Chairman Clay for their efforts in moving this legislation 
forward quickly and, as well, recognize Ranking Member Davis of the 
full committee and Ranking Member Turner at the subcommittee for their 
efforts.
  This legislation is about open and accountable government. I urge a 
``yes'' vote.
  Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
  In closing, I would like to thank my colleagues on both sides of the 
aisle for working together on this bill to open up our government to 
the people of the United States. And I also want to thank Mr. Smith, 
who has reservations about the bill, but I want to thank him for his 
leadership in championing the cause of freedom of information in this 
country.
  I want to also thank my friend from Wisconsin for agreeing with us 
that the bill was modified since it came out of committee, and that 
modification was in order to eliminate the costs associated with the 
bill.
  Let me say that H.R. 1309 champions the values of transparency and 
open government that we celebrate during Sunshine Week and that are 
embodied in the Freedom of Information Act. The bill does several 
things: It would reestablish the policy of previous administrations 
under which agencies were directed to disclose requested information 
unless the disclosure could result in harm. In addition, the bill 
proposes a government-wide ombudsman to mediate disputes between 
agencies and requesters. This would help to reduce the number of 
disputes resolved through costly and time-consuming litigation.
  It does several other things: There is a requirement that agencies 
respond to FOIA requests within 20 business days or face meaningful 
administrative penalties. It establishes a publicly accessible tracking 
system for pending FOIA requests.
  Mr. Speaker, in conclusion, H.R. 1309 provides a strong, reasonable, 
and bipartisan approach to streamlining FOIA and increasing 
transparency in government. I urge all of my colleagues to support this 
bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. TURNER. Mr. Speaker, I yield 3 minutes to the gentleman from 
Idaho and a member of our subcommittee (Mr. Sali).
  Mr. SALI. Mr. Speaker, I rise today because of my serious concerns 
with section 4 of H.R. 1309.
  As I begin, let me emphasize that I support the intent of H.R. 1309. 
Transparency in government is an important priority. I campaigned on it 
and voted for the new ethics package that came before this House in 
early January with the hope that Congress might be more openly 
accountable to those who elected us.
  This is a government of, by, and for the people, and the people 
deserve to know what their government is doing. Except for critical 
issues of national security policy, there must be a much better level 
of openness in the conduct of the Federal Government and the access of 
the American people to information about it.
  However, section 4 of the bill before us, as it is currently drafted, 
appears to authorize Federal courts to award attorneys' fees to a 
plaintiff even when the opposing parties mutually reach and execute a 
settlement agreement.
  The policy of FOIA is, and should be, to expedite and streamline 
production of documents falling within the statute. My concern is that 
when a Federal statute provides attorneys' fees after the parties 
mutually reach a voluntary settlement, it runs contrary to that very 
goal. Resolution short of protracted litigation should be encouraged, 
not discouraged. The current proposed language of section 4 of H.R. 
1309 may have a devastating, perverse effect.
  Second, the statute may further allow plaintiffs to receive 
attorneys' fees in almost any case they file so long as they can show 
that the defending government agency, for any reason, changed its 
position once the case had been commenced.
  While it is true that FOIA complainants often face an uphill battle 
when they deal with a Federal agency, the language, as proposed, 
invites litigation instead of resolving it. Additionally, the 
legislation, as drafted, may actually undermine the stated ``dominant 
objective'' of the act by giving an incentive by Federal Departments to 
avoid disclosure.
  The question this raises in my mind, Mr. Speaker, is that given the 
provisions of section 4 of the bill, why would

[[Page 6350]]

any agency settle? As I read the bill, once a lawsuit is commenced, any 
change in position by a Federal Department or agency would be 
tantamount to an admission of liability for attorneys' fees. This would 
only encourage the filing of a myriad of lawsuits. If lawyers know they 
will make money no matter what the outcome, they will see this as a 
great opportunity to file, file, and file again. We will likely see a 
cottage industry for litigants who may not even care about the 
underlying documents.
  Because of the concerns I have that the current proposal provides 
incentives to prolong litigation, I cannot support this measure in its 
current form. I regret that because I want to vote for any bill that 
prudently opens the door of government to those whom government 
represents, our fellow citizens. But the law of unintended consequences 
is at play here, and unless we strike section 4, we will see massive 
new litigation that will only clog the Federal docket, hamstring 
legitimate functions of government, and cost taxpayers potentially 
untold millions of dollars.
  Mr. TURNER. Mr. Speaker, I yield myself such time as I may consume.
  I want to commend the Chair of our subcommittee, Mr. Clay, for his 
thoughtful approach to hearings on this matter and his leadership in 
shepherding this bill. I want to thank Chairman Waxman for his efforts 
in having a very bipartisan discussion in the committee on the bill. He 
was very welcoming of the input from all of the committee members.
  Unfortunately, though, here, right in the middle of Open Government 
Week, we have the irony that this is not the bill that both of these 
gentlemen worked so diligently on a bipartisan basis for in the 
committee and subcommittee. It has been amended, unfortunately, as the 
other side of the aisle decried, in a back room by Democratic 
leadership in order to make the bill conform to the rules of the House 
for it to be able to move forward.
  In the middle of Open Government Week, what does that mean? Well, it 
means that while we all stand up here and talk about the importance of 
freedom of information, and freedom of information is important because 
it gives people the ability to hold their government accountable; but 
as we all discuss that, we have a bill that is going to be moving 
forward and come before this House that the members of the committee 
did not see, the members of the subcommittee did not see, that each of 
them is going to have to review and have to have their staff review, 
that members of the public at large who may have been following this 
bill in the professional community or average citizens who had an 
interest in it will go to a Web site and look at a bill that was 
approved by the committee and approved by the subcommittee, but 
unfortunately, is not the bill that is before us.
  And it is not before us because in the middle of Open Government 
Week, the bill that was placed before us was amended without the 
participation of the committee, without the participation of the 
subcommittee, and without the participation of this body. We will all 
come to vote on a bill that has been amended in a back room by 
Democratic leadership.
  You have heard that there are a number of concerns that people on 
this side of the aisle have about the bill. As you are aware, this bill 
began as a Republican bill offered by Mr. Smith of Texas, H.R. 867. It 
has been modified in several ways about which individuals do have 
concern. But the underlying principle, freedom of information, that 
encourages effective government and encourages government to be 
responsive, is one that we all support and hold dear and certainly we 
should continue to support the Freedom of Information Act.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in strong support 
of H.R. 1309, the ``Freedom of Information Act Amendments of 2007.'' 
This legislation contains a dozen substantive provisions that will 
increase public access to Government information by strengthening the 
Freedom of Information Act (FOIA).
  Mr. Speaker, the principles embodied by FOIA are intended to make the 
Government, in President Lyndon B. Johnson's words, ``as open as the 
security of the Nation permits.'' But in recent years, Federal agencies 
have come to look on FOIA requests as something to be prevented and 
obstructed, rather than welcomed and facilitated. The bill before us 
will help end that way of doing business.
  Mr. Speaker, H.R. 1309 restores the presumption of disclosure to FOIA 
by making it clear that records should be released to the public if 
disclosure is allowable under law and the agency cannot reasonably 
foresee any harm from such a disclosure.
  Mr. Speaker, under current law, agencies are required to respond to a 
request for information filed under the FOIA within 20 days but as we 
all know, delays and backlogs are all too common. H.R. 1309 makes this 
deadline meaningful by ensuring that the 20-day statutory clock runs 
immediately upon an agency's receipt of a request. The bill imposes 
consequences on Federal agencies for missing the deadline. For example, 
agencies are prevented from charging processing fees whenever they 
failed to meet the 20-working day response deadline.
  The bill also requires agencies to provide requesters individualized 
tracking numbers for each request and access to a telephone or internet 
hotline with information about the status of requests.
  Another important feature of the bill is that it strengthens agency 
reporting requirements to identify excessive delays and requires each 
agency to make the raw data used to compile its annual reports publicly 
available. Also, the bill requires the Government Accountability Office 
to report annually on the Department of Homeland Security's use of the 
broad disclosure exemption for ``critical infrastructure information.''
  I also commend to Members another feature of H.R. 1309 that should 
reduce the need to resort to litigation. The bill creates the new 
position of FOIA Ombudsman to help FOIA requesters resolve problems 
without having to turn to the courts. The FOIA ombudsman will be 
located at the National Archives and will help requesters by providing 
informal guidance and nonbinding opinions regarding rejected or delayed 
FOIA requests. The FOIA ombudsman will also review agency compliance 
with FOIA.
  Last, Mr. Speaker, H.R. 1309 makes it more feasible for citizen 
groups to challenge the improper withholding of Government information 
by expanding access to attorneys' fees for FOIA requesters who 
successfully challenge an agency's denial of information. The bill also 
holds agencies accountable for their decisions by enhancing the 
authority of the Office of Special Counsel to take disciplinary action 
against Government officials who arbitrarily and capriciously deny 
disclosure.
  Mr. Speaker, I strongly support H.R. 1309 and urge all my colleagues 
to join me in supporting this legislation that will restore public 
confidence in the administration of the executive branch of the Federal 
Government.
  Mr. UDALL of Colorado. Mr. Speaker, I strongly support this bill, 
which will increase the transparency and accountability of the Federal 
Government by making a number of long-overdue revisions to the Freedom 
of Information Act, or FOIA.
  The bill will reemphasize that disclosure is to be the rule, secrecy 
the exception. It will help people seeking documents to get timely 
responses, and improve transparency in agency compliance. It will 
reduce the need for people seeking documents to go to court, and 
provide accountability for agency decisions on whether to release 
requested information.
  Mr. Speaker, the enactment of FOIA in 1966 was a watershed. It 
established as fundamental policy the principle that information within 
the government's control should be available and established a 
presumptive right for the public to obtain identifiable, existing 
records of Federal agencies. Anyone can use FOIA to request access to 
Government information. Requesters do not have to show a need or reason 
for seeking information, and the burden of proof for withholding 
requested material rests with the department or agency that seeks to 
deny the request. Agencies may deny access only to records, or portions 
of records, that fall within certain specific categories.
  FOIA has been used effectively by journalists, public interest 
organizations, corporations, and individuals to access Government 
information. But the process could be better--because of delays and 
backlogs, requesters often have found it hard to learn about the status 
of their requests, and a recent Supreme Court decision has hampered 
requesters' ability to litigate their claims.
  H.R. 1309 would address these and other concerns about the 
implementation of FOIA. It is a modest measure, but an important one 
that deserves the approval of the House.

[[Page 6351]]

  That's especially true because, as the Rocky Mountain News noted in a 
recent editorial, ``The Bush administration may have been the most 
openly contemptuous of FOIA's mission since the act first passed. . . . 
President Bush will leave office in 2009, but it's not enough to trust 
that future administrations will abide by the promise of openness that 
FOIA represents. The law needs specific measures to ensure 
accountability, and the amendments within H.R. 1309 mark a large stride 
forward.''
  For the information of our colleagues, I attach the complete text of 
that editorial:

             [From the Rocky Mountain News, Mar. 13, 2007]

                          Open Records Upgrade


              Congress has chance to improve critical law

       We welcome bipartisan efforts in Congress to beef up the 
     Freedom of Information Act--the four-decade-old law that 
     affords citizens access to the inner workings of the 
     executive branch.
       FOIA could certainly stand a little love, as open 
     Government has been attacked many times since Lyndon Johnson 
     signed the act into law July 4, 1966.
       The revisions to FOIA in H.R. 1309, which could come before 
     the full House as early as today, would both shine more light 
     on the nooks and crannies of federal bureaucracies and force 
     agencies to better respect the spirit of the law.
       Here are a few of the improvements:
       The Government would have to act on FOIA requests more 
     quickly. Agencies that did not respond to a request within 20 
     business days would forfeit any copying and research fees; 
     agencies are now supposed to respond within that period, but 
     there are no penalties.
       Federal departments would have to set up FOIA hotlines and 
     individual tracking numbers so that people and organizations 
     that file FOIA requests can easily follow the process.
       Citizen journalists and freelancers would gain new 
     credibility. An agency could no longer summarily deny FOIA 
     requests from journalists who are not employed or under 
     contract with established media organizations or watchdog 
     groups. Such requests from unaffiliated individuals can now 
     be rejected.
       The amended law would force agencies to consider any 
     request to disseminate information to a broad audience as 
     legitimate, particularly if the party making the request has 
     any record of publication (including bloggers).
       The Government would have to reimburse the legal fees of 
     more parties that sue under FOIA. Currently, there's only one 
     way a party that has filed suit to enforce a FOIA request can 
     get repaid: The Government has to lose in court. The 
     amendments would force agencies to repay attorney fees if the 
     government turns over records before a final ruling is 
     issued. This would prevent agencies from sticking media 
     groups with attorney fees by surrendering records just before 
     a judge rules.
       The Bush administration may have been the most openly 
     contemptuous of FOIA's mission since the act first passed. 
     Former Attorney General John Ashcroft urged Federal agencies 
     to fight FOIA requests and not presume that the public has a 
     right to know what goes on inside the executive branch. The 
     administration also placed gratuitous limits on requests to 
     the Department of Homeland Security.
       President Bush will leave office in 2009, but it's not 
     enough to trust that future administrations will abide by the 
     promise of openness that FOIA represents. The law needs 
     specific measures to ensure accountability, and the 
     amendments within H.R. 1309 mark a large stride forward.

  Mr. TOM DAVIS of Virginia. Mr. Speaker, for 40 years, the Freedom of 
Information Act (FOIA) has ensured the public's access to Government 
records. The 1966 act replaced the old ``need to know'' standard with 
today's ``right to know'' practice, placing the burden on the 
government to justify any need for secrecy. However, the FOIA process 
has recently struggled to keep up with the public's demand for 
documents. Since 2002, FOIA requests have increased 71 percent. This 
additional volume has delayed the processing of some requests.
  Not long ago, President Bush signed an Executive Order to make FOIA 
operations more citizen-centric and results-oriented by requiring every 
agency to name a Chief FOIA Officer, establish a FOIA Requester Service 
Center, identify underperforming areas, and formulate a plan to 
implement improvements.
  Legislation designed to streamline and improve the FOIA process was 
introduced last Congress by the gentleman from Texas, Mr. Smith. His 
bill had moved through subcommittee to the full committee, with the 
assistance of the gentleman from Pennsylvania, Mr. Platts. The 
Executive Order adopted many of the process improvements contained in 
that bill.
  The Majority took this bill and made additional changes, moving 
beyond process reforms.
  First, the attorney's fee provision appears to lower the bar 
attorney's fees eligibility. The Supreme Court has ruled on this 
matter, and it appears some want to codify old, more lucrative, law. We 
should take a close look at this provision. There is a great deal of 
talk about freedom of information, and open Government, and the public 
right to know. But I hope when we scratch the surface of this bill, it 
is not about money.
  Second, the Majority has listened to vocal special interest 
complaints about the so-called Ashcroft memo, and is attempting to 
codify the policies of former Attorney General Reno. I hope we can come 
to real bipartisan agreement on this provision as we move forward.
  Improving the procedural aspects of FOIA should be our goal here 
today. It is something we all agree on. Although the debate on the 
appropriate balance between open access and protected records will 
continue, I trust we will find a way to balance National Security with 
the vital principles of open Government.
  Mr. TURNER. Mr. Speaker, I yield back the balance of my time
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Missouri (Mr. Clay) that the House suspend the rules and 
pass the bill, H.R. 1309, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. TURNER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

                          ____________________