[House Report 104-795]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-795
_______________________________________________________________________


 
          ELECTRONIC FREEDOM OF INFORMATION AMENDMENTS OF 1996

_______________________________________________________________________


 September 17, 1996.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Clinger,  from the Committee on Government Reform and Oversight, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 3802]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Government Reform and Oversight, to whom was 
referred the bill (H.R. 3802) to amend section 552 of title 5, 
United States Code, popularly known as the Freedom of 
Information Act, to provide for public access to information in 
an electronic format, and for other purposes, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
  I. Background and Need for the Legislation..........................6
 II. Legislative Hearings and Committee Action.......................14
III. Committee Hearings and Written Testimony........................15
 IV. Explanation of the Bill.........................................18
  V. Compliance with Rule XI.........................................30
 VI. Budget Analysis and Projections.................................31
VII. Cost Estimate of the Congressional Budget Office................31
VIII.Inflationary Impact Statement...................................32

 IX. Changes in Existing Law.........................................32
  X. Committee Recommendation........................................39
 XI. Congressional Accountability Act; Public Law 104-1..............40

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS AND PURPOSES.

  (a) Findings.--The Congress finds that--
          (1) the purpose of section 552 of title 5, United States 
        Code, popularly known as the Freedom of Information Act, is to 
        require agencies of the Federal Government to make certain 
        agency information available for public inspection and copying 
        and to establish and enable enforcement of the right of any 
        person to obtain access to the records of such agencies, 
        subject to statutory exemptions, for any public or private 
        purpose;
          (2) since the enactment of the Freedom of Information Act in 
        1966, and the amendments enacted in 1974 and 1986, the Freedom 
        of Information Act has been a valuable means through which any 
        person can learn how the Federal Government operates;
          (3) the Freedom of Information Act has led to the disclosure 
        of waste, fraud, abuse, and wrongdoing in the Federal 
        Government;
          (4) the Freedom of Information Act has led to the 
        identification of unsafe consumer products, harmful drugs, and 
        serious health hazards;
          (5) Government agencies increasingly use computers to conduct 
        agency business and to store publicly valuable agency records 
        and information; and
          (6) Government agencies should use new technology to enhance 
        public access to agency records and information.
  (b) Purposes.--The purposes of this Act are to--
          (1) foster democracy by ensuring public access to agency 
        records and information;
          (2) improve public access to agency records and information;
          (3) ensure agency compliance with statutory time limits; and
          (4) maximize the usefulness of agency records and information 
        collected, maintained, used, retained, and disseminated by the 
        Federal Government.

SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.

  Section 552(f) of title 5, United States Code, is amended to read as 
follows:
  ``(f) For purposes of this section, the term--
          ``(1) `agency' as defined in section 551(1) of this title 
        includes any executive department, military department, 
        Government corporation, Government controlled corporation, or 
        other establishment in the executive branch of the Government 
        (including the Executive Office of the President), or any 
        independent regulatory agency; and
          ``(2) `record' and any other term used in this section in 
        reference to information includes 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.''.

SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEXATION 
                    OF RECORDS.

  Section 552(a)(2) of title 5, United States Code, is amended--
          (1) in the second sentence, by striking ``or staff manual or 
        instruction'' and inserting ``staff manual, instruction, or 
        copies of records referred to in subparagraph (D)'';
          (2) by inserting before the period at the end of the 3rd 
        sentence the following: ``, and the extent of such deletion 
        shall be indicated on the portion of the record which is made 
        available or published'';
          (3) by inserting after the 3rd sentence the following: ``If 
        technically feasible, the extent of the deletion shall be 
        indicated at the place in the record where the deletion was 
        made.'';
          (4) in subparagraph (B), by striking ``and'' after the 
        semicolon;
          (5) by inserting after subparagraph (C) the following:
          ``(D) copies of all records, regardless of form or format, 
        which have been released to any person under paragraph (3) and 
        which, 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; and
          ``(E) a general index of the records referred to under 
        subparagraph (D);'';
          (6) by inserting after the 5th sentence the following: ``Each 
        agency shall make the index referred to in subparagraph (E) 
        available by computer telecommunication by December 31, 
        1999.''; and
          (7) by inserting after the 1st sentence the following: ``For 
        records created on or after November 1, 1996, within one year 
        after such date, each agency shall make such records available 
        by computer telecommunications or, if computer 
        telecommunications means have not been established by the 
        agency, by other electronic means.''.

SEC. 5. HONORING FORM OR FORMAT REQUESTS.

  Section 552(a)(3) of title 5, United States Code, is amended--
          (1) by inserting ``(A)'' after ``(3)'';
          (2) by striking ``(A)'' and inserting ``(i)'';
          (3) by striking ``(B)'' and inserting ``(ii)''; and
          (4) by adding at the end the following new subparagraphs:
  ``(B) In making any record available to a person under this 
paragraph, an agency shall provide the record in any form or format 
requested by the person if the record is readily reproducible by the 
agency in that form or format. Each agency shall make reasonable 
efforts to maintain its records in forms or formats that are 
reproducible for purposes of this section.
  ``(C) In responding under this paragraph to a request for records, an 
agency shall make reasonable efforts to search for the records in 
electronic form or format.
  ``(D) For purposes of this paragraph, the term `search' means to 
review, manually or by automated means, agency records for the purpose 
of locating those records which are responsive to a request.''.

SEC. 6. STANDARD FOR JUDICIAL REVIEW.

  Section 552(a)(4)(B) of title 5, United States Code, is amended by 
adding at the end the following new sentence: ``In addition to any 
other matters to which a court accords substantial weight, a court 
shall accord substantial weight to an affidavit of an agency concerning 
the agency's determination as to technical feasibility under paragraph 
(2)(C) and subsection (b) and reproducibility under paragraph 
(3)(B).''.

SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.

  (a) Multitrack Processing.--Section 552(a)(6) of title 5, United 
States Code, is amended by adding at the end the following new 
subparagraph:
  ``(D)(i) Each agency may promulgate regulations, pursuant to notice 
and receipt of public comment, providing for multitrack processing of 
requests for records based on the amount of work or time (or both) 
involved in processing requests.
  ``(ii) Regulations under this subparagraph may provide a person 
making a request that does not qualify for the fastest multitrack 
processing an opportunity to limit the scope of the request in order to 
qualify for faster processing.
  ``(iii) This subparagraph shall not be considered to affect the 
requirement under subparagraph (C) to exercise due diligence.''.
  (b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United 
States Code, is amended to read as follows:
  ``(B)(i) In unusual circumstances as specified in this subparagraph, 
the time limits prescribed in either clause (i) or clause (ii) of 
subparagraph (A) may be extended by written notice to the person making 
such request setting forth the unusual circumstances for such extension 
and the date on which a determination is expected to be dispatched. No 
such notice shall specify a date that would result in an extension for 
more than ten working days, except as provided in clause (ii) of this 
subparagraph.
  ``(ii) With respect to a request for which a written notice under 
clause (i) extends the time limits prescribed under clause (i) of 
subparagraph (A), the agency shall notify the person making the request 
if the request cannot be processed within the time limit specified in 
that clause and shall provide the person an opportunity to limit the 
scope of the request so that it may be processed within that time limit 
or an opportunity to arrange with the agency an alternative time frame 
for processing the request or a modified request. Refusal by the person 
to reasonably modify the request or arrange such an alternative time 
frame shall be exceptional circumstances for purposes of subparagraph 
(C).
  ``(iii) As used in this subparagraph, `unusual circumstances' means, 
but only to the extent reasonably necessary to the proper processing of 
the particular requests--
          ``(I) the need to search for and collect the requested 
        records from field facilities or other establishments that are 
        separate from the office processing the request;
          ``(II) the need to search for, collect, and appropriately 
        examine a voluminous amount of separate and distinct records 
        which are demanded in a single request; or
          ``(III) the need for consultation, which shall be conducted 
        with all practicable speed, with another agency having a 
        substantial interest in the determination of the request or 
        among two or more components of the agency having substantial 
        subject-matter interest therein.''.
  (c) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5, 
United States Code, is amended by inserting ``(i)'' after ``(C)'', and 
by adding at the end the following new clauses:
  ``(ii) For purposes of this subparagraph, the term `exceptional 
circumstances' does not include a delay that results from a predictable 
agency workload of requests under this section.
  ``(iii) Refusal by a person to reasonably modify the scope of a 
request or to arrange an alternative time frame for processing a 
request (or a modified request) under this section after being 
requested to do so by the agency to whom the person made the request 
shall be exceptional circumstances for purposes of this subparagraph.
  ``(iv) In determining whether exceptional circumstances exist, a 
court shall consider the efforts by an agency to reduce the number of 
pending requests under this section.''.

SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.

  (a) Expedited Processing.--Section 552(a)(6) of title 5, United 
States Code (as amended by section 7(a) of this Act), is further 
amended by adding at the end the following new subparagraph:
  ``(E)(i) Each agency shall promulgate regulations, pursuant to notice 
and receipt of public comment, providing for expedited processing of 
requests for records--
          ``(I) in cases in which the person requesting the records 
        demonstrates a compelling need; and
          ``(II) in other cases determined by the agency.
  ``(ii) Notwithstanding subparagraph (A)(i), regulations under this 
subparagraph must ensure--
          ``(I) that a determination of whether to provide expedited 
        processing shall be made, and notice of the determination shall 
        be provided to the person making the request, within 10 days 
        after the date of the request; and
          ``(II) expeditious consideration of administrative appeals of 
        such determinations of whether to provide expedited processing.
  ``(iii) An agency shall process as soon as practicable any request 
for records to which the agency has granted expedited processing under 
this subparagraph. Agency action to deny or affirm denial of a request 
for expedited processing pursuant to this subparagraph, and failure by 
an agency to respond timely to such a request shall be subject to 
judicial review under paragraph (4), except that the judicial review 
shall be based on the record before the agency at the time of the 
determination.
  ``(iv) A district court of the United States shall not have 
jurisdiction to review an agency denial of expedited processing of a 
request for records after the agency has provided a complete response 
to the request.
  ``(v) For purposes of this subparagraph, the term `compelling need' 
means--
          ``(I) that a failure to obtain requested records on an 
        expedited basis under this paragraph could reasonably be 
        expected to pose an imminent threat to the life or physical 
        safety of an individual; or
          ``(II) with respect to a request made by a person primarily 
        engaged in disseminating information, urgency to inform the 
        public concerning actual or alleged Federal Government 
        activity.''.
  (b) Extension of General Period for Determining Whether To Comply 
With a Request.--Section 552(a)(6)(A)(i) of title 5, United States 
Code, is amended by striking ``ten days'' and inserting ``20 days''.
  (c) Estimation of Matter Denied.--Section 552(a)(6) of title 5, 
United States Code (as amended by section 7 of this Act and subsection 
(a) of this section), is further amended by adding at the end the 
following new subparagraph:
  ``(F) In denying a request for records, in whole or in part, an 
agency shall make a reasonable effort to estimate the volume of any 
requested matter the provision of which is denied, and shall provide 
any such estimate to the person making the request, unless providing 
such estimate would harm an interest protected by an exemption under 
subsection (b) under which the denial is made.''.

SEC. 9. COMPUTER REDACTION.

  Section 552(b) of title 5, United States Code, is amended in the 
matter following paragraph (9) by adding at the end the following: 
``The amount of information deleted shall be indicated on the released 
portion of the record, unless including that indication would harm an 
interest protected by an exemption under this subsection under which 
the deletion is made.''.

SEC. 10. REPORT TO THE CONGRESS.

  Section 552(e) of title 5, United States Code, is amended to read as 
follows:
  ``(e)(1) On or before February 1 of each year, each agency shall 
submit to the Attorney General a report which shall cover the preceding 
fiscal year and which shall include--
          ``(A) the number of determinations made by the agency not to 
        comply with requests for records made to such agency under 
        subsection (a) and the reasons for each such determination;
          ``(B)(i) the number of appeals made by persons under 
        subsection (a)(6), the result of such appeals, and the reason 
        for the action upon each appeal that results in a denial of 
        information; and
          ``(ii) a complete list of all statutes that the agency relies 
        upon to authorize the agency to withhold information under 
        subsection (b)(3), a description of whether a court has upheld 
        the decision of the agency to withhold information under each 
        such statute, and a concise description of the scope of any 
        information withheld;
          ``(C) the number of requests for records pending before the 
        agency as of September 30 of the preceding year, and the median 
        number of days that such requests had been pending before the 
        agency as of that date;
          ``(D) the number of requests for records received by the 
        agency and the number of requests which the agency processed;
          ``(E) the median number of days taken by the agency to 
        process different types of requests;
          ``(F) the total amount of fees collected by the agency for 
        processing requests;
          ``(G) the average amount of time that the agency estimates as 
        necessary, based on the past experience of the agency, to 
        comply with different types of requests; and
          ``(H) the number of full-time staff of the agency devoted to 
        processing requests for records under this section, and the 
        total amount expended by the agency for processing such 
        requests.
  ``(2) Each agency shall make each such report available to the public 
through a computer network, or if computer network means have not been 
established by the agency, by other electronic means.
  ``(3) The Attorney General shall make each report which has been made 
available by electronic means available at a single electronic access 
point. The Attorney General shall notify the Chairman and ranking 
minority member of the Committee on Government Reform and Oversight of 
the House of Representatives and the Chairman and ranking minority 
member of the Committees on Governmental Affairs and the Judiciary of 
the Senate, no later than April 1 of the year in which each such report 
is issued, that such reports are available by electronic means.
  ``(4) The Attorney General, in consultation with the Director of the 
Office of Management and Budget, shall develop reporting and 
performance guidelines in connection with reports required by this 
subsection by October 1, 1997, and may establish additional 
requirements for such reports as the Attorney General determines may be 
useful.
  ``(5) The Attorney General shall submit an annual report on or before 
April 1 of each calendar year which shall include for the prior 
calendar year a listing of the number of cases arising under this 
section, the exemption involved in each case, the disposition of such 
case, and the cost, fees, and penalties assessed under subparagraphs 
(E), (F), and (G) of subsection (a)(4). Such report shall also include 
a description of the efforts undertaken by the Department of Justice to 
encourage agency compliance with this section.''.

SEC. 11. REFERENCE MATERIALS AND GUIDES.

  Section 552 of title 5, United States Code, is further amended by 
adding after subsection (f) the following new subsection:
  ``(g) The head of each agency shall prepare and make publicly 
available upon request, reference material or a guide for requesting 
records or information from the agency, including--
          ``(1) an index of all major information systems of the 
        agency;
          ``(2) a description of major information and record locator 
        systems maintained by the agency; and
          ``(3) a handbook for obtaining various types and categories 
        of public information from the agency pursuant to chapter 35 of 
        title 44, and under this section.''.

SEC. 12. EFFECTIVE DATE.

  (a) In General.--Except as provided in subsection (b), this Act shall 
take effect 180 days after the date of the enactment of this Act.
  (b) Provisions Effective on Enactment.--Sections 7 and 8 shall take 
effect one year after the date of the enactment of this Act.

               I. Background and Need for the Legislation

                   A. The Freedom of Information Act

    With the enactment of the Freedom of Information Act 
(``FOIA'' or the ``Act'') thirty years ago, the Federal 
Government established a policy of openness toward information 
within its control. The FOIA establishes a presumptive right 
for the public to obtain identifiable, existing records of 
Federal departments and agencies. Any member of the public may 
use the FOIA to request access to government information. 
Requestors do not have to show a need or reason for seeking 
information. Requestors use the FOIA for a variety of purposes. 
Private vendors with the government, for example, use the FOIA 
requests as part of the procurement process for competitive 
purposes. Journalists use the FOIA to obtain details about 
government actions to broader dissemination to the public. 
Individual citizens use it to learn more about government 
activities that have affected them personally.
    The burden of proof for withholding requested material 
rests with the department or agency that seeks to deny the 
request. Agencies may deny access to records, or portions of 
records which fall within an enumerated exemption. Agency 
employees responsible for responding to requests screen 
requested records to remove or redact exempted material from 
release. The nine exemption categories are listed below:
         Information that is classified for national defense or 
        foreign policy purposes;
         Information that relates solely to an agency's 
        internal personnel rules and practices;
         Information that has been clearly exempted under other 
        laws.
         Confidential business information, such as trade 
        secrets;
         Internal government deliberative communications about 
        a decision before an announcement;
         Information about an individual that, if disclosed, 
        would cause a clearly unwarranted invasion of personal 
        privacy;
         Law enforcement records, particularly of ongoing 
        investigations;
         Information concerning bank supervision;
         Geological and geophysical information, such as maps.
    The Office of Information and Regulatory Affairs within the 
Office of Management and Budget exercises under various 
statutes, including the Paperwork Reduction Act, 1 broad 
authority for coordinating and administering various aspects of 
government-wide information policy. The Department of Justice, 
in turn, provides policy guidance and oversees the agencies' 
compliance with FOIA.
---------------------------------------------------------------------------
    \1\ The Paperwork Reduction Act consists of (P.L. 96-511, 94 Stat. 
2812) as amended by the Paperwork Reduction Act of 1986 (section 101 
(m) [Title VIII, Part A] of P.L. 99-500 and P.L. 99-591, 100 Stat. 
1783) and The Paperwork Reduction Act of 1995 (P.L. 104-13, 109 Stat. 
163). The Paperwork Reduction Act is codified at Chapter 35 of Title 44 
of the United States Code.
---------------------------------------------------------------------------
    Individual departments and agencies generally have 
established specific offices for processing FOIA requests. 
Nevertheless, lack of sufficient agency resources has 
constrained the effectiveness of the FOIA. At some agencies 
failure to allocate sufficient staff to comply with the Act has 
resulted in lengthy backlogs measured in years. Efforts at 
improving FOIA response time have centered on better 
prioritization of requests and more efficient administrative 
practices.
    FOIA access to unpublished agency records has resulted in 
many disclosures of waste and fraud in the Federal Government. 
The Act reflects the view that the full disclosure of 
information to the public about government wrongdoing and other 
mistakes will ultimately generate appropriate corrective 
responses. Such revelations may have a certain degree of 
preventive effect, prompting a higher degree of probity and 
conscientiousness in the performance of government operations. 
Exposures resulting from FOIA disclosures, and the reactions 
they produce, are critical to maintaining an open and free 
society.

           B. The Evolution of the Freedom of Information Act

    Initially enacted in 1966, the Act resulted from years of 
congressional examination of executive department and agency 
impediments to public access to information. 2 The 
prevailing public access law, Section 3 of the Administrative 
Procedure Act of 1946, was being interpreted to restrict 
information availability. 3 This so-called 
``housekeeping'' law originated from the earliest days of the 
Republic. It directed department heads to prescribe regulations 
for the custody, use, and preservation of department records, 
papers and property. 4
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    \2\ House Committee on Government Operations, Availability of 
Information From Federal Departments and Agencies: Hearings before the 
House Committee on Government Operations, 84th-86th Congresses.
    \3\ 60 Stat. 237 at 238. Francis E. Rourke. ``Secrecy and 
Publicity: Dilemmas of Democracy.'' Baltimore: The Johns Hopkins Press, 
1961, pp. 57-58.
    \4\ See 1 Stat. 28, 49, 65; these and similar provisions were 
consolidated in the Revised Statutes of the United States (1878) at 
Section 161, which is presently located in the United States Code at 5 
U.S.C. 301 (1994). Rourke, ``Secrecy and Publicity: Dilemmas of 
Democracy,'' pp. 47-49.
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    The origins of the original Freedom of Information Act can 
be traced to a predecessor subcommittee to the House 
Subcommittee on Government Management, Information and 
Technology. In 1955 the House Committee on Government 
Operations established the Special Subcommittee on Government 
Information. In chartering the Subcommittee, full Committee 
Chairman William L. Dawson directed it:

          To study the operation of agencies and officials in 
        the executive branch of the Government at all levels 
        with a view to determining the efficiency and economy 
        of such operation in the field of operation. * * * With 
        this purpose your subcommittee will ascertain the trend 
        in the availability of Government information and will 
        scrutinize the information practices of executive 
        agencies and officials in the light of their propriety, 
        fitness and legality. 5
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    \5\ House Committee on Government Operations, Amending Section 552 
of Title 5, United States Code, Known as the Freedom of Information 
Act, 93rd Congress, 2nd Session, House Report 93-876, p. 3.

    The efforts of this subcommittee expanded the people's 
right to know. Congress, in 1958, amended this ``housekeeping'' 
law to state that it ``does not authorize withholding 
information from the public or limiting the availability of 
records to the public.'' 6
---------------------------------------------------------------------------
    \6\ 72 Stat. 547. Rourke, ``Secrecy and Publicity,'' pp. 59-60.
---------------------------------------------------------------------------
    The author of one of the earliest and most thorough studies 
of this protective bulwark stated the resulting dilemma 
dramatically and concisely:

         Public business is the public's business. The people 
        have the right to know. Freedom of information is their 
        just heritage. Without that the citizens of a democracy 
        have but changed their kings. 7
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    \7\ Harold L. Cross. ``The People's Right to Know.'' New York City: 
Columbia University Press, 1953, p. xiii.

    The Freedom of Information Act evolved from the 1958 
Administrative Procedure Act disclosure requirement. An early 
attempt at a freedom of information bill was considered and 
approved in the Senate during the 88th Congress. 8 
However, the House took no action on such a measure before sine 
die adjournment. Again, in the 89th Congress, the Senate 
returned to the measure and adopted a revised and refined 
version of the earlier bill on October 23, 1965. The House 
subsequently passed this bill on June 20, 1966.
---------------------------------------------------------------------------
    \8\ For the legislative history of the Freedom of Information Act 
of 1966, see Senate Committee on the Judiciary, Freedom of Information 
Act Source Book: Legislative Materials, Cases, Articles, S. Doc. No. 
93-82, 93rd Congress, 2d Session (1974).
---------------------------------------------------------------------------
    Signing the FOIA into law on July 4, 1966, 9 President 
Johnson declared:
---------------------------------------------------------------------------
    \9\ 80 Stat. 250.

        This legislation springs from one of our most essential 
        principles: A democracy works best when the people have 
        all the information that the security of the Nation 
        permits. No one should be able to pull curtains of 
        secrecy around decisions which can be revealed without 
        injury to the public interest. 10
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    \10\ Public Papers of the Presidents of the United States: Lyndon 
B. Johnson, 1966. Book 2. Washington, U. S. Govt. Print. Off., 1967, p. 
699.

    The FOIA became operative on July 4, 1967. It became 
codified as section 552 of Title 5, United States Code. 11
---------------------------------------------------------------------------
    \11\ 5 U.S.C. 552 (1970).
---------------------------------------------------------------------------
    During House and Senate committee consideration of 
legislation leading to the FOIA, no executive department or 
agency representative had testified in support of the 
proposals. Subsequent congressional oversight of the Act 
revealed that this distaste for the legislation transformed 
into hostility toward the statute during its initial 
implementation. A 1972 report by the House Committee on 
Government Operations characterized the situation as follows:

         The efficient operation of the Freedom of Information 
        Act has been hindered by five years of foot-dragging by 
        the Federal bureaucracy. The widespread reluctance of 
        the bureaucracy to honor the public's legal right to 
        know has been obvious in parts of two administrations. 
        This reluctance has been overcome in a few agencies by 
        continued pressure from appointed officials at the 
        policy making level and in some other agencies through 
        public hearings and other oversight activities by the 
        Congress. 12
---------------------------------------------------------------------------
    \12\ House Committee on Government Operations, Administration of 
the Freedom of Information Act, House Report 92-1419, 92nd Congress, 2d 
Session, 1972, pp. 8-9.

    Officials sometimes argue that the FOIA was not a primary 
program of a particular department and agency. This contention, 
however, ignores the importance of government information 
accessibility for the citizens of a democracy. Unfortunately, 
over time administration of the FOIA has suffered from a lack 
of resources. Consequently many requests languished, awaiting a 
response, because agencies failed to provide necessary 
resources. FOIA has also suffered from weak administrative 
support in its implementation.
    Amendments strengthening FOIA were introduced in the House 
in early 1973 and legislative hearings were held in May of that 
year. No department or agency witness expressed any support for 
the proposed amendments. By the end of 1973, the House bill was 
refined, reported from the House Government Operations 
Committee in February 1974, and adopted by the House in March. 
Shortly thereafter, in May, a Senate counterpart bill was 
reported, strengthened during floor debate, and adopted. 
13
---------------------------------------------------------------------------
    \13\ For the legislative history of the 1974 amendments to the 
Freedom of Information Act, see House Committee on Government 
Operations and Senate Committee on the Judiciary. Freedom of 
Information Act and Amendments of 1974 (P.L. 93-502). Source Book: 
Legislative History, Texts, and Other Documents. Joint Committee print, 
94th Congress, 1st Session, 1975.
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    During the twenty months that the FOIA amendments moved 
through the two Houses of Congress, various congressional 
committees and a Special Prosecutor were engaged in pursuing 
inquiries related to the Watergate scandal. Against this 
backdrop of concern about the accountability of public 
officials, the availability of Government information became an 
important issue for Congress and the public.
    Though the FOIA amendments of 1974 were not developed in 
response to the Watergate incident, they gained legislative 
momentum as congressional investigators probed Watergate and 
related matters. President Nixon resigned shortly after the 
conferees on the FOIA amendments began their deliberations in 
August. The new President, Gerald Ford, sent a letter to the 
conferees expressing his reservations about some specific 
amendments. After resolving their differences, the conferees 
placed their report before their respective chambers. Approval 
by the Senate came on October 1, 1974 and the House voted 
acceptance on October 7, 1974.
    On October 17, 1974 the President vetoed and characterized 
the legislation as ``unconstitutional and unworkable.'' 14 
On November 20, 1974 the House voted 371-31 to reject the 
presidential veto. The next day, the Senate completed action on 
the legislation, voting 65-27 to override the President's 
objections. The amendments became law, taking effect on 
February 19, 1975. 15
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    \14\ ``Public Papers of the Presidents of the United States: Gerald 
R. Ford, 1974.'' Washington, U. S. Govt. Print. Off., 1975, pp. 374-
376.
    \15\ 88 Stat. 1561.
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    Perhaps the most significant change under the FOIA 
amendments was that requestors needed only to ``reasonably 
describe'' the requested records. Additionally, agencies were 
directed to furnish documents without charge or at a reduced 
cost if it determined that such an action would be in the 
public interest. Courts could conduct an in camera review of 
contested materials to decide if any materials were being 
properly withheld. Agencies received specific response 
deadlines for agency action. The Federal courts were given 
authority to award attorney fees and litigation costs where a 
private complainant had ``substantially prevailed'' in seeking 
records from an agency; they were authorized to take notice of 
the ``arbitrary and capricious'' withholding of documents. In 
addition the amendments expanded and clarified the definition 
of agencies covered by the FOIA. They also specified that 
records containing segregable portions of withholdable 
information be released with the necessary deletions.
    Additionally the exemptions in the Act concerning 
classified information and law enforcement materials were 
narrowed and made more specific. The amendments, and their 
manner of adoption, also displayed Congress's strong support 
for and commitment to the FOIA and its proper administration.
    In 1976, when adopting another open government law--the 
Government in the Sunshine Act--in fulfillment of the people's 
right to know, Congress again amended the FOIA. 16 This 
change was a limited one, prompted by a 1975 Supreme Court 
case. The court's decision expanded the interpretation of the 
types of information covered by the third exemption of the 
FOIA. 17 Consequently, the FOIA amendment modified the 
exemption covering information specifically excepted from 
disclosure by other statutes. The amendment mandated that 
protection only applied if the statute ``left no discretion on 
the issue,'' or referred to particular types of information to 
be withheld. 18
---------------------------------------------------------------------------
    \16\ For the legislative history of the Government in the Sunshine 
Act and its amendment to the FOIA, see Senate Committee on Government 
Operations and House Committee on Government Operations. Government in 
the Sunshine Act'--S. 5 (Public Law 94-409). Source Book: Legislative 
History, Texts, and Other Documents. Joint committee print, 94th 
Congress, 2d Session, 1976.
    \17\ Administrator, Federal Aviation Administration v. Robertson, 
422 U.S. 255 (1975).
    \18\ 90 Stat. 1241, at 1247.
---------------------------------------------------------------------------
    Further Senate FOIA amendment initiatives ended 
unsuccessfully during the 97th and 98th Congresses. In the 
closing days of the 99th Congress, however, during Senate 
debate of an omnibus anti-drug abuse bill, FOIA amendments were 
attached to the measure. 19 They strengthened the 
protection for law enforcement records and created new fee and 
fee waiver arrangements. They set a structure of three fee 
categories for FOIA users. The fees covered commercial users; 
scholars, scientific researchers, journalists; and all other 
requestors. However, fees could not be charged if the costs of 
routine collection were likely to be equal or greater than the 
amount of the fee itself. Also, the first two hours of search 
time or the first 100 pages of document duplication were free, 
except for commercial users. In addition, if the disclosure of 
the information was in the public interest because it was 
likely to contribute significantly to public understanding of 
the operations or activities of the Government and otherwise 
was not primarily in the commercial interest of the requestor, 
there would be a reduced fee or no charge. These amendments 
remained in the anti-drug abuse bill signed by the President on 
October 27, 1986. 20
---------------------------------------------------------------------------
    \19\ See Harold C. Relyea. ``U.S. Freedom of Information Act 
Reforms--1986,'' 9 Journal of Media Law and Practice--12 (March 1988).
    \20\ 100 Stat. 3207, at 3207-48.
---------------------------------------------------------------------------
    The FOIA has become a popular tool used by various quarters 
of American society--the press, business, scholars, attorneys, 
consumers, and environmentalists, among others. Recent agency 
annual reports on the administration of the Act, covering 1992 
operations, show an annual volume of almost 600,000 requests. 
The response to a request may involve a few sheets of paper, 
several linear feet of records, or, increasingly, information 
in an electronic format.

                  C. The Effect of Electronic Records

    Today, the FOIA faces a new challenge. The volume of 
Federal agency records created and retained in electronic 
formats is growing at a rapid pace. Agency records are now 
created not just on pieces of paper and placed in filing 
cabinets. Personal computers and digital storage media, such as 
CD-ROMs (compact disk read-only memory), are becoming more 
commonplace at Federal agencies. Information technology makes 
the management of the information collected, stored, and used 
by the Government more efficient.
    When the FOIA was enacted agency records were primarily 
produced on paper. FOIA's efficient operation requires that its 
provisions make clear that the form or format of an agency 
record constitutes no impediment to public accessibility. 
Furthermore, the information technology currently being used by 
executive departments and agencies should be used in promoting 
greater efficiency in responding to FOIA requests. This 
objective includes using technology to let requestors obtain 
information in the form most useful to them. Existing 
technologies for searching electronic records can often review 
materials more quickly than is possible via a paper review. 
Harnessing these tools for FOIA can enhance the operation of 
the Act.
    The public is increasingly using networked computers and 
broadly accessible data networks such as the Internet. Agencies 
need to fulfill their responsibilities under the FOIA in a 
manner that keeps pace with these developments. An underlying 
goal of H.R. 3802 is to encourage on-line access to Government 
information available under the FOIA, including requests 
ordinarily made pursuant to section 552(a)(3). As a result, the 
public can more directly obtain and use Government information. 
This can result in fewer FOIA requests, thus enabling FOIA 
resources to be more efficiently used in responding to complex 
requests. H.R. 3802, the Electronic Freedom of Information 
Amendments Act of 1996, amends the FOIA to address these 
considerations and other information access issues prompted by 
the electronic information phenomenon.
    In 1955, when congressional hearings laying the groundwork 
for the FOIA were held on the availability of information from 
Federal departments and agencies, the Federal Government had 45 
computers. Ten years later, when the Senate passed its version 
of the FOIA, the inventory had risen to 1,826 computers. Only 
five years elapsed before the Government's holdings jumped to 
5,277 computers, resulting in hundreds of thousands of 
automated files and many data banks of agency information. 
21
---------------------------------------------------------------------------
    \21\ Alan F. Westin and Michael A. Baker. ``Data Banks in a Free 
Society''. New York: Quadrangle Books, 1972, pp. 29-30.
---------------------------------------------------------------------------
    In succeeding years, the proportion of agency records 
produced and retained in electronic formats has grown at an 
expansive rate. The Government's use of personal computers and 
digital storage media, such as CD-ROMs, also became more 
widespread. 22 In fiscal year 1994, the Federal Government 
used almost 25,250 small computers (costing $10,000 to $100,000 
each), 8,500 medium computers (costing $100,000 to $1,000,000 
each), and 890 large computers (costing more than $1,000,000 
each). Personal computers have proliferated throughout the 
Federal executive establishment. In a related development, 
during the past three years, more than 800 Federal sites have 
been set up on the World Wide Web. 23
---------------------------------------------------------------------------
    \22\ See House Committee on Government Operations. Electronic 
Collection and Dissemination of Information by Federal Agencies: A 
Policy Overview, H.R. Rep. No. 99-560, 99th Congress, 2d Session. 
(1986); U. S. Office of Technology Assessment. ``Informing the Nation: 
Federal Information Dissemination in an Electronic Age''. Washington, 
D. C., October 1988.
    \23\ Lisa Corbin, ``Cyberocracy,'' Government Executive. p. 28 
(January 1996).
---------------------------------------------------------------------------
    The FOIA must stay abreast of these developments in order 
to ensure continued public access to Government information. 
The FOIA must promote uniformity among agencies, reduce 
uncertainty among FOIA requestors, and avoid potential 
disagreements between the two. These are the central purposes 
of H.R. 3802, the Electronic Freedom of Information Amendments 
of 1996.
    Many evolving technological innovations promote the greater 
availability of Government information through the electronic 
information ``superhighway.'' 24 For example, the 104th 
Congress created the ``Thomas'' on-line service of the Library 
of Congress, providing access to many legislative resources, 
including the text of legislation and the Congressional Record. 
Individual agencies have published data on the World Wide Web 
through home pages. Agencies, such as the Government Printing 
Office, have broadly expanded electronic access to government 
information at other agencies. Computer links let users reach 
information maintained by other agencies in a matter of key 
strokes.
---------------------------------------------------------------------------
    \24\ See U. S. Information Infrastructure Task Force, ``The 
National Information Infrastructure: Agenda for Action''. Washington, 
D. C., September 15, 1993; U.S. Information Infrastructure Task Force's 
Committee on Applications and Technology. ``Putting the Information 
Infrastructure to Work''. Washington, D.C., May 1994; U.S. Information 
Infrastructure Task Force's Committee on Applications and Technology, 
``The Information Infrastructure: Reaching Society's Goals''. 
Washington, D.C., September 1994; U.S. Advisory Council on the National 
Infrastructure. ``A Nation of Opportunity: Realizing the Promise of the 
Information Superhighway'', Washington, D.C., January 1996.
---------------------------------------------------------------------------
    The Paperwork Reduction Act of 1995 reflects congressional 
intent to encourage wider use of electronic distribution as an 
integral part of the management of Government information. It 
acknowledges that private, non-governmental information 
providers perform an essential public service in expanding the 
availability of information to the public. Government agencies 
cannot be expected to match the dynamism and creativity of 
information providers in transforming Government information 
into valuable consumer information products, especially given 
the robust nature of information technology developments. 
Consequently, nongovernment information distributors play a 
valuable role in advancing information policy objectives.
    The FOIA, by contrast, provides access to specifically 
requested Government information sought at the initiative of a 
requestor. The Paperwork Reduction Act provides the 
administrative framework for agencies to more affirmatively 
disclose information to the public. With more affirmative 
disclosure, agencies can better use their resources. Making 
more information available to the public can divert simple 
requests away from FOIA. This will enable agencies to more 
efficiently use their limited resources to complete requests on 
time.

            D. Processing of Freedom of Information Requests

    A principal constraint to the full effectiveness of the 
FOIA has been the lack of adequate agency resources. As a 
result, many agencies have failed to process FOIA requests 
within the deadlines required by the law. These delays in 
responding to FOIA requests continue as one of the most 
significant FOIA problems.
    A 1986 House report cited inadequate resources, unnecessary 
bureaucratic complexity, political interference with the 
disclosure process, poor organization of agency records, and a 
lack of commitment by agencies to disclosure as reasons for the 
delays.25 These delays have persisted.
---------------------------------------------------------------------------
    \25\ House Committee on Government Operations. Freedom of 
Information Act Amendment of 1986. pp. 11-12, House Report 9-832, 99th 
Cong. 2d. Session, 1986.
---------------------------------------------------------------------------
    In a memorandum dated October 4, 1993, to all heads of 
departments and agencies, President Clinton stated:

          The use of the Act by ordinary citizens is not 
        complicated, nor should it be. The existence of 
        unnecessary bureaucratic hurdles has no place in its 
        implementation. I therefore call upon all Federal 
        departments and agencies to renew their commitment to 
        the Freedom of Information Act, and to its underlying 
        principles of government oneness, and to its sound 
        administration. This is the appropriate time for all 
        agencies to take a fresh look at their administration 
        of the Act, to reduce backlogs of Freedom of 
        Information requests.* * * 26
---------------------------------------------------------------------------
    \26\ Clinton, William J., President of the United States, 
Memorandum for Heads of Departments and Agencies, October 4, 1993, 
``The Freedom of Information Act.''

In an October 1993 memorandum that accompanied the President's 
memorandum, Attorney General Janet Reno acknowledged the delay 
---------------------------------------------------------------------------
problem and the cause for FOIA backlogs, stating:

          Many Federal departments and agencies are often 
        unable to meet the Act's ten-day time limit for 
        processing FOIA requests, and some agencies--especially 
        those experiencing a high-volume of demands for 
        sensitive records--maintain large FOIA backlogs greatly 
        exceeding the mandated deadlines. The reasons for this 
        may vary, but principally it is a matter of limited 
        resources for the heavy workload. This is a serious 
        problem--one of growing concern and frustration to both 
        FOIA requesters and Congress, and to agency FOIA 
        officers as well.27
---------------------------------------------------------------------------
    \27\ Reno, Janet, Attorney General, Memorandum for Heads of 
Departments and Agencies, October 4, 1993, ``The Freedom of Information 
Act.'

    Out of a total of 75 agencies responding to a Department of 
Justice request for backlog information in February 1994, only 
28 agencies reported no backlog.
    In Open America v. Watergate Special Prosecution 
Force,28 the District of Columbia Circuit Court of Appeals 
held that exceptional circumstances exist when the agency can 
show it has inadequate resources to process FOIA requests 
within statutory time limits. Also, an agency may show that it 
is exercising due diligence by processing requests on a 
``first-in, first-out'' basis. Relying upon overly broad dictum 
in this case, agencies have employed the exceptional 
circumstances-due diligence exception to obtain judicial 
approval for lengthy delays whenever they have a backlog.
---------------------------------------------------------------------------
    \28\ 547 F.2d 605 (D.C. Cir. 1976)
---------------------------------------------------------------------------
    Backlogs of requests for records under the FOIA should not 
give agencies an automatic excuse to ignore the time limits. 
The development of agency administrative processes to respond 
to specific types of requests on an expedited basis and for 
encouraging agencies to cooperate with requestors to frame more 
targeted requests is critical to using agency FOIA resources in 
the most efficient manner possible.

             II. Legislative Hearings and Committee Action

                            A. House Action

    Representative Tate introduced H.R. 3802 on July 12, 1996, 
with Chairman Horn, of the Subcommittee on Government 
Management, Information and Technology; Representative Maloney, 
the ranking member; and Representative Peterson, a member of 
the Subcommittee, as original co-sponsors. The Subcommittee had 
previously held a legislative hearing on June 14, 1996 on S. 
1090, the bill's Senate counterpart.
    H.R. 3802 was marked up on July 12, 1996, by the 
Subcommittee on Government Management, Information Technology. 
No amendments were offered and the legislation passed the 
Subcommittee unanimously by voice vote.
    Representative Maloney introduced H.R. 3885, concerning 
certain reporting requirements, on July 24, 1996. 
Representative Tate, and Chairman Horn supported the bill as 
original co-sponsors.
    The House Committee on Government Reform and Oversight 
considered the measure on July 25, 1996. Chairman Horn offered 
an amendment in the nature of a substitute and Representative 
Maloney offered an amendment to it reflecting the substance of 
H.R. 3885. Both were adopted unanimously by voice vote. The 
bill was favorably reported unanimously to the House of 
Representatives by voice vote without further amendment.

                            B. Senate Action

    On November 7, 1991 Senator Patrick Leahy introduced S. 
1040, a bill to clarify the application of the FOIA to agency 
records in electronic forms or formats. Senator Brown co-
sponsored the bill. ``The Electronic Freedom of Information 
Improvement Act of 1991'' was referred to the Senate Committee 
on the Judiciary, and a hearing on it was held by the 
Subcommittee on Technology and the Law on April 30, 1992.
    Testifying before the Subcommittee was Steven R. 
Schlesinger, Director, Office of Policy Development, Department 
of Justice, accompanied by Daniel Metcalfe, Co-director, Office 
of Information and Privacy, Department of Justice. The 
Subcommittee also received testimony from a panel of witnesses. 
These included Peter Richard, Editor, USA Today, appearing on 
behalf of the American Newspaper Publishers Association, 
American Society of Newspaper Editors, Society of Professional 
Journalists/Sigma Delta Chi, National Newspaper Association, 
National Association of Broadcasters, Radio-Television News 
Directors Association, and Reporters Committee for Freedom of 
the Press; Scott Marshall, Director, Governmental Relations 
Department, American Foundation for the Blind; Sybil McShane, 
Director of Library and Information Services, Vermont State 
Department of Libraries; and Thomas M. Susan, a practicing 
attorney with Ropes & Gray, appearing on behalf of the American 
Bar Association.29 The Subcommittee took no further action 
on S. 1940 before the final adjournment of the 102d Congress.
---------------------------------------------------------------------------
    \29\ The Electronic Freedom of Information Improvement Act: Hearing 
before the Subcommittee on Technology and the Law of the Committee on 
the Judiciary, 102d Cong., 2d Sess. (1992).
---------------------------------------------------------------------------
    Senator Leahy introduced a related bill, S. 1939, ``The 
Freedom of Information Improvement Act of 1991,'' on November 
7, 1991. This bill contained amendments to the FOIA concerning 
matters other than agency records in electronic forms or 
formats. S. 1939 was also referred to the Senate Committee on 
the Judiciary, but no action was taken on it during the 102d 
Congress.
    Senator Leahy introduced a modified version of S. 1940 on 
November 22, 1993, as S. 1782, ``The Electronic Freedom of 
Information Improvement Act of 1993,'' with Senator Brown as a 
cosponsor. It was referred to the Committee on the Judiciary. 
Senator John Kerry of Massachusetts co-sponsored the bill on 
April 11, 1994.
    During 1994 and 1995, staff of the Subcommittee on 
Technology and the Law conferred with representatives of the 
Office of Management and Budget, the Department of Justice, 
FOIA officers from various Federal agencies, and interest 
groups using the FOIA concerning further development of the 
provisions of S. 1782. Because of these and other 
consultations, a revised version of S. 1782 was unanimously 
approved by the Subcommittee on Technology and the Law on June 
29, 1994, and by the Committee on the Judiciary on August 11, 
1994. The bill then passed the Senate by unanimous consent on 
August 25, 1994. No further action on the bill was taken in the 
103rd Congress.
    On July 28, 1995, Senators Leahy, Brown, and Kerry 
introduced S. 1090, ``The Electronic Freedom of Information 
Improvement Act of 1995.'' It was modified from the version 
passed by the Senate in the 103rd Congress. S. 1090 was 
referred to the Committee on the Judiciary and, on October 6, 
1995, to the Subcommittee on Terrorism, Technology and 
Government Information. The Subcommittee favorably reported the 
bill on March 14, 1996. Following consultation with the Office 
of Management and Budget, revisions were made to S. 1090 in the 
form of a substitute amendment.
    On April 25, 1996, by voice vote, the Committee on the 
Judiciary unanimously ordered the Committee substitute to S. 
1090 favorably reported.

             III. Committee Hearings and Written Testimony

    On June 13 and 14, 1996, the Subcommittee on Government 
Management, Information and Technology of the Committee on 
Government Reform and Oversight, held hearings on Federal 
information policy. The first day of hearings was devoted to 
oversight of information policy. The second day was a 
legislative hearing that considered related amendments to the 
Freedom of Information Act: H.R. 1281; ``The War Crimes 
Disclosure Act''; and S. 1090, ``The Electronic Freedom of 
Information Improvement Act of 1995.''
    In his opening statement, Chairman Horn expressed his 
frustration at learning that the Federal Bureau of 
Investigation has a four-year backlog for responding to FOIA 
requests. In noting the significance that the Committee 
attaches to the Freedom of Information Act, he observed that 
the first report issued by the House Committee on Government 
Reform and Oversight had been an updated version of ``A 
Citizen's Guide on Using the Freedom of Information and Privacy 
Act of 1974 to Request Government Records.'' 30
---------------------------------------------------------------------------
    \30\ House Committee on Government Reform and Oversight, A 
Citizen's Guide on Using the Freedom of Information Act and the Privacy 
Act of 1974 to Request Government Records, House Report, 104-156, 1st 
Session, 1995.
---------------------------------------------------------------------------
    The Subcommittee's ranking member, Representative Maloney 
noted the interrelation between the Freedom of Information Act 
and the Paperwork Reduction Act in establishing the presumption 
that all government documents be available to the public. She 
noted that: ``Information policy is the bedrock of an open and 
accessible government. The Paperwork Reduction Act codifies one 
of the fundamental principles of democracy--government 
information belongs to the public. Information created by 
government officials and paid for by the public should be 
available to the public at the lowest possible cost.''
    Representative Tate commented that: ``Opening the work of 
the Federal Government to the watchful and vigilant eyes of the 
American public is an effort that both parties and the 
Administration should embrace wholeheartedly.'' Representative 
Peterson observed that: ``One of the biggest frustrations with 
the Freedom of Information Act is that deadlines are rarely 
met.'' Representative Flanagan noted with displeasure that 
citizens who requested their own FBI files could wait years 
before receiving them in order to correct errors contained 
therein.
    The Subcommittee received testimony from Senator Patrick 
Leahy on S. 1090 during the June 13th oversight hearing. The 
Senator noted the role that FOIA requests had in uncovering 
information about various government actions. He noted that the 
law needed to be updated to reflect the advancing use of 
information technology in government to maintain records, 
adding ``access should be the same whether they are on a piece 
of paper or a computer hard drive.'' The Senator also 
criticized the failure of agencies to comply with the statutory 
time limits for responding to requests:

          Long delays in access can mean no access at all. The 
        current time limits in the FOIA are a joke. Few 
        agencies actually respond to FOIA requests within the 
        10-day limit required by law. Such routine failure to 
        comply with the statutory time limits is bad for morale 
        in the agencies and breeds contempt by citizens who 
        expect government officials to abide by, not routinely 
        break, the law.

    Also testifying at the June 13th hearing were Ms. Roslyn A. 
Mazer, Deputy Assistant Attorney General, Office of Policy 
Development, Department of Justice; Mr. Kevin O'Brien, Section 
Chief, Freedom of Information/Privacy Acts Section, Federal 
Bureau of Investigation, and Mr. Anthony H. Passarella, 
Director, Directorate for Freedom of Information and Security 
Review, Office of the Assistant Secretary of Defense (Public 
Affairs). These three witnesses explained how their agencies 
processed public requests for information under the Freedom of 
Information Act and related statutes.
    Four representatives of the ``requestor'' community related 
their experiences in seeking government information: Ms. Eileen 
Welsom, on behalf of Society of Professional Journalists, 
American Society of Newspaper Editors, and the Newspaper 
Association of America; Mr. Larry Klayman, Chairman, Judicial 
Watch, Inc., Ms. Jane E. Kirtley, Executive Director, The 
Reporters Committee for the Freedom of the Press and Mr. Byron 
York, reporter, The American Spectator. Each drew upon their 
professional experiences in recounting difficulties experienced 
in obtaining information on time. They noted that the Federal 
Bureau of Investigation, in particular, failed to respond to 
FOIA requests on time.
    Ms. Kirtley expressed concern that S. 1090 seemed to 
require that to be a candidate for expedited access, a news 
story had to be ``already the subject of fervent media 
attention.'' She suggested that agencies ought to speed up 
access to records for the media ``whenever records are 
requested that would enlighten the public on matters where 
public concern is strong.''
    Mr. Klayman noted that agencies ought to be penalized when 
they fail to comply with the law, such as applying criminal 
penalties for willful failure to abide by the requirements of 
the FOIA and related laws. He proposed the awarding of attorney 
fees and costs to successful FOIA plaintiffs be made mandatory, 
rather than discretionary.
    At the June 14th hearing, the Subcommittee heard testimony 
from Mr. Robert Gellman, an attorney and a privacy and 
information policy consultant. Mr. Gellman had previously been 
chief counsel in the 103rd Congress for the congressional 
predecessor to the Subcommittee on Government Management, 
Information and Technology and has written extensively on FOIA 
issues. He was critical of the definitions used in S. 1090. He 
criticized the standard used in S. 1090 that media receipt of 
expedited access involve ``widespread media coverage'' as 
lacking any clear meaning.
    Mr. Gellman praised the principle in S.1090 requiring 
agencies to respond to requestor format requests for electronic 
records, but suggested that S. 1090 might go too far in 
allowing the requestor to unreasonably require disclosure in 
seldom used formats. He further suggested that a requirement 
that agencies identify redacted material on electronic records 
should be subject to a standard of technical feasibility. He 
criticized the Department of Justice for its handling of FOIA 
litigation for agencies, stating that: ``the Department of 
Justice defends unreasonable agency denials in court and will 
make an argument, without regard to the purpose of FOIA or the 
policies of the President, department litigators bear 
substantial responsibility for much of the bad FOIA case law in 
recent years.''
    Mr. Alan Adler, an attorney familiar with the experience of 
reporters making FOIA requests, recounted the barriers that 
journalists face when they request production of records in an 
electronic format. Based upon his participation in the 
development of the Leahy bill, he discussed the manner in which 
the drafters had addressed various administration concerns. In 
recounting the evolution of Senator Leahy's initiatives toward 
an electronic Freedom of Information bill, Mr. Adler stressed 
that the legislation was intended to help agencies to reduce 
request backlogs and to more effectively use scarce resources. 
He noted that the legislation had evolved in response to agency 
concerns.
    Mr. James Lucier, Director of Economic Research at 
Americans for Tax Reform, testified in support of S. 1090. He 
observed that the public was now more eager to obtain 
government information than it was when the FOIA was first 
enacted in 1966. He suggested that increasing public access to 
Government information through electronic means was essential 
if the government were to approach the pace of private sector 
developments. He argued that government needed to keep pace in 
its use of communication technologies that made information 
about private institutions more accessible. Lucier testified 
that Government needs to meet the expectations for 
responsiveness that consumers insist upon from private 
institutions.

                      IV. Explanation of the Bill

                              A. Overview

    The highlights of the Electronic Freedom of Information 
Amendments include:
    Electronic records.--Records which are subject to the FOIA 
shall be made available under the FOIA when the records are 
maintained in electronic format. This clarifies existing 
practice by making the statute explicit on this point.
    Format Requests.--Requestors may request records in any 
form or format in which the agency maintains those records. 
Agencies must make a ``reasonable effort'' to comply with 
requests to furnish records in other formats.
    Redaction.--Agencies redacting electronic records (deleting 
part of a record to prevent disclosure of material covered by 
an exemption) must note the location and the extent of any 
deletions made on a record. This provision, however, applies 
only if the agencies have the technology to comply with it.
    Expedited Processing.--Certain categories of requestors 
would receive priority treatment of their requests if failure 
to obtain information in a timely manner would pose a 
significant harm. The first category of requestors entitled to 
this special processing includes those who could reasonably 
expect that delay could pose an imminent threat to the life or 
physical safety of an individual. The second category includes 
requests, made by a person primarily engaged in the 
dissemination of information to the public, and involving 
compelling urgency to inform the public.
    Multitrack processing.--Agencies will be able to establish 
processes for processing requests of various sizes on different 
tracks. Because of this procedure, larger numbers of requests 
for smaller amounts of material will be completed more quickly. 
Requestors will also have an incentive to frame narrower 
requests.
    Agency Backlogs.--Agencies can no longer delay responding 
to FOIA requests because of ``exceptional circumstances'' 
simply as a result from a predictable agency request workload. 
This strengthens the requirement that agencies respond to 
requests on time.
    Deadlines.--The deadline for responding to FOIA is extended 
to 20 workdays from the current 10 workday requirement for 
initial determinations.
    Reporting requirements.--The legislation expands certain 
reporting requirements, and requires agencies to make more 
information available through electronic means.

                         B. Section by Section

Section 1. Short title

    The Act should be cited as the ``Electronic Freedom of 
Information Act Amendments of 1996.''

Section 2. Findings and purposes

    The findings make clear that Congress enacted the FOIA to 
require Federal agencies to make records available to the 
public through public inspection and at the request of any 
person for any public or private use. They further acknowledge 
the increase in the Government's use of computers and 
encourages agencies to use new technology to enhance public 
access to Government information.

Section 3. Application of requirements to electronic format information

    The section explicitly states that a ``record'' under the 
FOIA includes electronically stored information. This 
articulates the existing general policy under the FOIA that all 
Government records are subject to the Act, regardless of the 
form in which they are stored by the agency. The Department of 
Justice agrees that computer database records are agency 
records subject to the FOIA. \31\ The bill defines ``record'' 
to ``include any information that would be an agency record 
subject to the requirements of this section if maintained by an 
agency in any format, including an electronic format.''
---------------------------------------------------------------------------
    \31\ See ``Department of Justice Report on `Electronic Record' 
Issues Under the Freedom of Information Act,'' Senate Hearing 102-1098, 
102d Cong., 2d Sess. P. 33, 1992.
---------------------------------------------------------------------------
    This section clarifies the meaning of the term ``record'' 
and similar terminology used in the FOIA. Several important 
points are worth making.
    Breadth of Policy.--First, the FOIA usually uses the term 
``record,'' but other terms are also used occasionally, 
including ``information'' and ``matter.'' The terms are used 
interchangeable. The section makes clear a comprehensive policy 
that records in electronic formats are agency records subject 
to the Act. The language of the section should leave no doubt 
about the breadth of the policy. As noted previously, a number 
of statutes set Federal Government information policy. This 
bill is not intended to be dispositive of all aspects of those 
policies. For example, matter not previously subject to FOIA 
when maintained in a non-electronic format is not made subject 
to FOIA by this bill.
    Storage Media.--Second, the section clarifies that a record 
in electronic format can be requested just like a record on 
paper or any other format, and within enumerated exceptions, 
can potentially be fully disclosed under the law. The format in 
which data is maintained is not relevant under the FOIA. 
Computer tapes, computer disks, CD-ROMs, and all other digital 
or electronic media are records. Microfiche and microforms are 
records. When other, yet-to-be invented technologies are 
developed to store, maintain, produce, or otherwise record 
information, these will be records as well. When determining 
whether information is subject to the FOIA, the form or format 
in which it is maintained is not relevant to the decision.
    The requirements for the disclosure of information exist 
elsewhere in the Act. No matter how it is preserved, 
information that passes the threshold test of being an agency 
record, remains a record. This provision should restrain 
agencies from evading the clear intent of the FOIA by deeming 
some forms of data as not being agency records and not subject 
to the law. The primary focus should always be on whether 
information is subject to disclosure or is exempt, rather than 
the form or format it is stored in. This provision, however, 
does not broaden the concept of agency record. The information 
maintained on a computer is a record, but the computer is not.
    Rejected Definitions.--Third, the Committee rejects the 
definition of record in the substitute to S. 90, as reported by 
the Senate Committee on the Judiciary on April 25, 1996. The 
Senate bill had incorporated a definition of record drawn from 
the Records Disposal Act.32
---------------------------------------------------------------------------
    \32\ 44 U.S.C. *3301 (1994).
---------------------------------------------------------------------------
    A case in point comes from the decision in SDC Development 
Corp. v. Mathews.33 The decision has previously been 
sharply criticized by this Committee and its holding is 
inconsistent with the policies expressed in this 
legislation.34 The Court found that an agency-created 
computer database of research abstracts was not an agency 
record because it was library material. The court used the 
library material exclusion in the Records Disposal Act as an 
excuse to place these records beyond the reach of the FOIA. 
H.R. 3802 makes clear, contrary to SDC v. Mathews, that 
information an agency has created and is directly or indirectly 
disseminating remains subject to the FOIA in any of its forms 
or formats.35
---------------------------------------------------------------------------
    \33\ 542 F.2d 1116 (9th Cir. 1976).
    \34\ See House Committee on Government Operations, Electronic 
Collection and Dissemination of Information by Federal Agencies: A 
Policy Overview, 99th Cong., 2d Sess. 32-36 (1986).
    \35\ A recent scholarly article examines the background and policy 
of the Records Disposal Act and the FOIA. It provides a more extensive 
discussion of the Court's misreading of the FOIA, the Records Disposal 
Act and the Copyright Act. See Robert Gellman, Twin Evils: Government 
Copyright and Copyright-Like Controls Over Government Information, 45 
Syracuse Law Review 999, 1036-1046 (1995).
---------------------------------------------------------------------------

Section 4. Information made available in electronic format and 
        indexation of records

    This section of the bill requires that materials, such as 
agency opinions and policy statements, which an agency must 
``make available for public inspection and copying,'' pursuant 
to Section 552(a)(2), and which are created on or after 
November 1, 1996, be made available by computer 
telecommunications, and in hard copy, within one year after the 
date of enactment. If an agency does not have the means 
established to make these materials available on-line, then the 
information should be made available in another electronic 
form, e.g., CD-ROM or disc. The bill would thus treat (a)(2) 
materials in the same manner as it treats (a)(1) materials, 
which under the Government Printing Office Electronic 
Information Access Enhancement Act of 1993 36 are 
required, via the Federal Register, to be made available on-
line.
---------------------------------------------------------------------------
    \36\ 44 U.S.C. 4101 (1993).
---------------------------------------------------------------------------
    This section would also increase the information made 
available under Section 552(a)(2). Specifically, agencies would 
be required to make available for public inspection and 
copying, in the same manner as other materials made available 
under Section 552(a)(2), copies of records released in response 
to FOIA requests that the agency determines have been or will 
likely be the subject of additional requests. In addition, they 
would be required to make available a general index of these 
previously-released records. By December 31, 1999, this index 
should be made available by computer telecommunications. Since 
not all individuals have access to computer networks or are 
near agency public reading rooms, requestors would still be 
able to access previously-released FOIA records through the 
normal FOIA process.
    As a practical matter, this would mean that copies of 
previously-released records on a popular topic, such as the 
assassinations of public figures, would subsequently be treated 
as (a)(2) materials, made available for public inspection and 
copying. This would help to reduce the number of multiple FOIA 
requests for the same records requiring separate agency 
responses. Likewise, the general index would help requestors in 
determining which records have been the subject of prior FOIA 
requests. By diverting some potential FOIA requests for 
previously-released records with this index, agencies can 
better use their FOIA resources to fulfill new requests.
    This section also makes clear that to prevent a clearly 
unwarranted invasion of personal privacy, an agency may delete 
identifying details when it makes available or publishes the 
index and copies of previously-released records.
    Finally, this section would require an agency to indicate 
the extent of any deletion from the previously-released 
records. This provision is consistent with the ``Computer 
Redaction'' section of the bill. Both provisions similarly 
temper this requirement by giving agencies the flexibility to 
show that marking the place on the record where the deletion 
was made was not technically feasible. Agencies need not reveal 
information about deletions if such disclosure would harm an 
interest protected by an exemption.

Section 5. Honoring form or format requests

    This section requires agencies to help requestors by 
providing information in the form requested, including requests 
for the electronic form of records, if the agency can readily 
reproduce it in that form. The section would overrule Dismukes 
v. Department of the Interior, which held that an agency ``has 
no obligation under the FOIA to accommodate plaintiff's 
preference [but] need only provide responsive, nonexempt 
information in a reasonably accessible form.'' 37
---------------------------------------------------------------------------
    \37\ 603 F. Supp. 760, 763 (D.D.C. 1984)
---------------------------------------------------------------------------
    This section also requires agencies to make reasonable 
efforts to search for records kept in an electronic format. An 
unreasonable effort would significantly interfere with the 
operations of the agency or the agency's use of its computers. 
Electronic searches should not result in any greater 
expenditure of agency resources than would have occurred with a 
conventional paper-based search for documents.
    The bill defines ``search'' as a ``review, manually or by 
automated means,'' of ``agency records for the purpose of 
locating those records responsive to a request.'' Under the 
FOIA, an agency need not create documents that do not exist. 
Computer records found in a database rather than in a file 
cabinet may require the application of codes or some form of 
programming to retrieve the information. Under the definition 
of ``search'' in the bill, the review of computerized records 
would not amount to the creation of records. Otherwise, it 
would be virtually impossible to get records maintained 
completely in an electronic format, like computer database 
information, because some manipulation of the information 
likely would be necessary to search the records.
    Current law provides that most requestors receive the first 
two hours of search time for free. Ten years ago, computer time 
was expensive and carefully metered. Today, computer time is 
generally no longer a scarce resource. Except in unusual cases, 
the cost of computer time should not be a factor in calculating 
the two free hours of search time. Often, searching by computer 
will reduce costs because computer searches are generally 
faster, more thorough and more accurate, than manual searches. 
In those unusual cases, where the cost of conducting a 
computerized search significantly detracts from the agencies'' 
ordinary operations, no more than the dollar equivalent of two 
hours manual search time shall be allowed for two hours free 
search time. For any searches conducted beyond the first two 
hours, an agency shall only charge the direct costs of 
conducting such searches.

Section 6. Standard for judicial review

    Section 5 requires a court to accord substantial weight to 
an agency's determination as to both the technical feasibility 
of redacting non-releasable material at the place on the record 
where the deletion was made, under paragraphs (2)(C) and 
subsection (b), as amended by this Act, and the reproducibility 
of the requested form or format of records, under paragraph 
(3)(B), as amended by this Act. This deference is warranted 
because agencies are the most familiar with the availability of 
their own technical resources to process, redact, and reproduce 
records.
    This section does not affect the extent of judicial 
deference that a court may or may not extend to an agency on 
any other matter. There is no intent with this provision, 
either expressly or by implication, to affect the deference or 
weight which a court may extend to an agency determination or 
an agency affidavit on any other matter. The provision applies 
narrowly to agency determinations with regard to technical 
feasibility.

Section 7. Ensuring timely response to requests

    The bill addresses the single most frequent complaint about 
the operation of the FOIA: agency delays in responding to FOIA 
requests. This section encourages agencies to employ better 
records management systems and to set priorities for using 
their FOIA resources.
    In underscoring the requirement that agencies respond to 
requests in a timely manner, the Committee does not intend to 
weaken any interests protected by the FOIA exemptions. Agencies 
processing some requests may need additional time to adequately 
review requested material to protect those exemption interests. 
For example, processing some requests may require additional 
time in order to properly screen material against the 
inadvertent disclosure of material covered by the national 
security exemption.
    Multitrack First-In First-Out Processing.--An agency 
commitment to process requests on a first-in, first-out basis 
has been held to satisfy the requirement that an agency 
exercise due diligence in dealing with backlogs of FOIA 
requests. Processing requests solely on a FIFO basis, however, 
may result in lengthy delays for simple requests. The prior 
receipt and processing of complex requests delays other 
requests, increasing agency backlogs. The bill would permit 
agencies to promulgate regulations starting multitrack 
processing systems, and makes clear that agencies should 
exercise due diligence within each track. Agencies would also 
be required to give requestors the opportunity to limit the 
scope of their requests to qualify for processing under a 
faster track.
    Unusual Circumstances.--The FOIA currently permits an 
agency in ``unusual circumstances'' to extend for a maximum of 
ten working days the statutory time limit for responding to a 
FOIA request, upon written notice to the requestor setting 
forth the reason for such extension. The FOIA enumerates 
various reasons for such an extension. These reasons include 
the need to search for and collect requested records from 
multiple offices, the volume of records requested, and the need 
for consultation with other components within the agency.
    An extra ten days may still provide an insufficient time 
for an agency to respond to unusually burdensome FOIA requests. 
The bill provides a mechanism to deal with such requests, which 
an agency would not be able to process even with an extra ten 
days. For such requests, the bill requires an agency to inform 
the requestor that the request cannot be processed within the 
statutory time limits and provide an opportunity for the 
requestor to limit the scope of the request so that it may be 
processed within statutory time limits, and/or arrange with the 
agency a negotiated deadline for processing the request. In the 
event that the requestor refuses to reasonably limit the 
request's scope or agree upon a time frame and then seeks 
judicial review, that refusal shall be considered as a factor 
in determining whether ``exceptional circumstances'' exist 
under subparagraph (6)(C).
    The Committee believes that the FOIA works best when 
requestors and agencies work together to define and fulfill 
reasonable requests. When a requestor can modify a request to 
make it easier for the agency to process it, this benefits 
everyone. Still, there will be circumstances in which a 
requestor and an agency cannot agree upon a modification that 
will speed processing. As long as a request meets the legal 
standards of the FOIA, each requestor has the right to frame 
his or her own request. If an agency determines by an objective 
standard that a requestor has unreasonably refused to modify a 
request, and a court concurs, then the court shall consider 
that refusal when determining whether exceptional circumstances 
exist.
    However, if an agency determines on its own that a 
requestor has unreasonably refused to modify a request, the 
agency may not otherwise discriminate against that request or 
requestor. The request must be processed as it would have been 
had no modification been sought. An agency may not maintain a 
separate queue of ``unreasonable'' requests, nor may an agency 
constantly move ``unreasonable'' requests to the back of the 
queue. The Committee cautions agencies against using this 
limited test of ``reasonableness'' in any way other than the 
narrow way that the statute provides.
    This provision does not relieve an agency of the 
responsibility of making a diligent, good-faith effort to 
complete its review of an initial request within the statutory 
time frame. An agency should seek an extension beyond the 
additional ten days already provided in ``unusual 
circumstances'' only in rare instances. This procedure will 
achieve one of the bill's important goals of encouraging a 
dialogue between an agency and a requestor. This enhances the 
opportunity of a requestor to obtain at least some of the 
records sought in a timely fashion, and could alleviate some of 
the agency's burden in responding to a request that could not 
otherwise be processed within the statutory time limits. In 
addition, it could provide a requestor with some certainty as 
to a time frame for processing his or her request.
    Exceptional Circumstances.--The Freedom of Information Act 
provides that, in ``exceptional circumstances,'' a court may 
extend the statutory time limits for an agency to respond to a 
FOIA request, but does not specify what those circumstances 
are. The bill would clarify that routine, predictable agency 
backlogs for FOIA requests do not constitute exceptional 
circumstances for purposes of the Act. This is consistent with 
the holding in Open America v. Watergate Special Prosecution 
Force, 38 where the court held that an unforeseen 3,000 
percent increase in FOIA requests in one year, which created a 
massive backlog in an agency with insufficient resources to 
process those requests in a timely manner, can constitute 
``exceptional circumstances.'' Routine backlogs of requests for 
records under the FOIA should not give agencies an automatic 
excuse to ignore the time limits, since this provides a 
disincentive for agencies to clear up those backlogs. 
Nevertheless, the bill makes clear that a court shall consider 
an agency's efforts to reduce the number of pending requests in 
determining whether exceptional circumstances exist. Agencies 
may also make a showing of exceptional circumstances based on 
the amount of material classified, based on the size and 
complexity of other requests processed by the agency, based on 
the resources being devoted to the declassification of 
classified material of public interest, or based on the number 
of requests for records by courts or administrative tribunals.
---------------------------------------------------------------------------
    \38\ 547 F.2d 605 (D.C. Cir. 1976)
---------------------------------------------------------------------------
    Aggregation of Requests.--The amendments reported out of 
Committee had reflected an implicit assumption that agency 
regulations may permit the aggregation of requests by the same 
requestor, or requestors that an agency reasonably believes are 
acting in concert. An amendment clarifying this point is 
anticipated to be considered on the House floor.
    Any aggregation must involve such clearly related material 
that should be considered as a single request. Multiple 
requests involving unrelated matters should not be aggregated. 
Existing agency procedures regarding entitlement for fee 
waivers already permit agencies to aggregate some multiple 
requests.
    The purpose of this aggregation is to ensure the equitable 
treatment of similarly situated requestors. Aggregation would 
depend upon the factual circumstances of the requests, and 
particularly whether multiple requests were being used 
primarily to obtain a procedural advantage over other requests 
or requestors. Multiple or related requests could also be 
aggregated with requests seeking similar information for the 
purposes of negotiating the scope of the request and schedule. 
Where multiple requestors have not acted in concert, such 
aggregation must be with their consent. Applying the same 
principles, agencies should not aggregate groups of requests 
simply to delay responding to requests. For example, the filing 
of a subsequent request should not affect the processing of an 
initial request by the same requestor.

Section 8. Time period for agency consideration of requests

    The bill contains provisions designed to address the needs 
of both agencies and requestors for more workable deadlines for 
processing FOIA requests.
    Expedited Processing.--The bill would require agencies to 
promulgate regulations authorizing expedited access to 
requesters who show a ``compelling need'' for a speedy 
response. The agency would be required to decide whether to 
grant the request for expedited access within ten days and then 
notify the requestor of the decision. The requestor would bear 
the burden of showing that expedition is appropriate. This 
section limits judicial review to the same record before the 
agency on the determination of whether to grant expedited 
access. Moreover, the section provides that the Federal courts 
will not have jurisdiction to review an agency's denial of an 
expedited access request if the agency has already provided a 
complete response to the request for records. The latter 
provision does not limit a court's ability to consider a 
requestor's application for the award of attorney's fees.
    A ``compelling need'' warranting faster FOIA processing 
would exist in two categories of circumstances. In the first 
category, the failure to obtain the records within an expedited 
deadline poses an imminent threat to an individual's life or 
physical safety. The second category requires a request by 
someone ``primarily engaged in disseminating information'' and 
``urgency to inform the public concerning actual or alleged 
Federal government activity.'' The section also permits 
agencies to elect to offer expedited processing in other 
circumstances.
    The agencies are directed to establish rules and 
regulations for processing requests for expedited access. By 
requiring a ``compelling need,'' the expedited access procedure 
is intended to be limited to circumstances in which a delay in 
obtaining information can reasonably be foreseen to cause a 
significant adverse consequence to a recognized interest.
    Agency officials will be required to make factual and 
subjective judgments about the circumstances cited by 
requestors to qualify them for ``expedited processing.'' To do 
so the requestors will need to explain in detail their basis 
for seeking such treatment. Agency discretion should be 
exercised with fairness and diligence. The credibility of a 
requestor who makes repeated claims for expedited processing 
that are determined to lack factual foundation may be taken 
into account when the same requestor makes additional requests.
    The specified categories for compelling need are intended 
to be narrowly applied. A threat to an individual's life or 
physical safety qualifying for expedited access should be 
imminent. A reasonable person should be able to appreciate that 
a delay in obtaining the requested information poses such a 
threat. A person ``primarily engaged'' in the dissemination of 
information should not include individuals who are engaged only 
incidentally in the dissemination of information. The standard 
of ``primarily engaged'' requires that information 
dissemination be the main activity of the requestor, although 
it need not be their sole occupation. A requestor who only 
incidentally engages in information dissemination, besides 
other activities, would not satisfy this requirement.
    The standard of ``urgency to inform'' requires that the 
information requested should pertain to a matter of a current 
exigency to the American public and that a reasonable person 
might conclude that the consequences of delaying a response to 
a FOIA request would compromise a significant recognized 
interest. The public's right to know, although a significant 
and important value, would not by itself be sufficient to 
satisfy this standard.
    Some agencies, such as the Department of Justice, already 
employ expedited access procedures that, in some respects, have 
a broader criteria for expedited access than contained in 
Section 7. 39 Agencies are given latitude to expand the 
criteria for expedited access, ``in other cases determined by 
the agency.'' However, the expedited processing procedure 
should be invoked in the circumstances as enumerated in the 
bill. Given the finite resources generally available for 
fulfilling FOIA requests, unduly generous use of the expedited 
processing procedure would unfairly disadvantage other 
requestors who do not qualify for its treatment.
---------------------------------------------------------------------------
    \39\ The Department of Justice's procedures for expedited access 
permits it if a delay would result in the loss of substantial due 
process rights and the information sought is not otherwise available in 
a timely manner.
---------------------------------------------------------------------------
    Expansion of Agency Response Time.--To help Federal 
agencies in reducing their backlog of FOIA requests, the bill 
would double the time limit for an agency to respond to FOIA 
requests from ten days to twenty days. Attorney General Janet 
Reno has acknowledged the inability of most Federal agencies to 
comply with the ten-day rule ``as a serious problem'' stemming 
principally from ``too few resources in the face of too heavy a 
workload.'' 40
---------------------------------------------------------------------------
    \40\ Reno, Janet, Attorney General, Memorandum for Heads of 
Departments and Agencies, October 4, 1993, ``The Freedom of Information 
Act.''
---------------------------------------------------------------------------
    Estimation of Matter Denied.--The bill would require 
agencies when denying a FOIA request to try to estimate the 
volume of any denied material and provide that estimate to the 
requestor, unless doing so would harm an interest protected by 
an exemption.

Section 9. Computer redaction

    The ease with which information on the computer may be 
redacted makes the determination of whether a few words or 30 
pages have been withheld by an agency at times impossible. The 
amendments require agencies to identify the location of 
deletions in the released portion of the record and, where 
technologically feasible, to show the deletion at the place on 
the record where they made the deletion, unless including that 
indication would harm an interest protected by an exemption.

Section 10. Report to the Congress

    This section would add to the information an agency is 
already required to publish as part of its annual report. 
Specifically, agencies would be required to publish in their 
annual reports information regarding denials of requested 
records, appeals, a complete list of statutes upon which the 
agency relies to withhold information under Section 552 (b)(3), 
which exempts information that is specifically exempted from 
disclosure by other statutes, the number of backlogged FOIA 
requests, the number of days taken to process requests, the 
amount of fees collected, and the number of staff devoted to 
processing FOIA requests. The annual reports would be required 
to be made available to the public, including by computer 
telecommunications means. If an agency does not have the means 
established to make the report available on-line, then the 
report should be made available in another electronic form. The 
Attorney General is required to make each report available at a 
single electronic access point, and advise the Chairmen and 
ranking members of the Senate Committee on the Judiciary and 
the House Committee on Government Reform and Oversight that 
such reports are available.
    Congress has undertaken several recent initiatives focused 
on streamlining government, making government processes more 
efficient, and improving the availability of government 
information. The Government Performance and Results Act 
requires a system of evaluation measures based on performance 
and results. The Paperwork Reduction Act of 1995 reexamines 
government information in the light of recent technological 
developments. Also, the Reports Elimination Act eliminates 
hundreds of reports to Congress required in a statute. Other 
pending legislation is likely to eliminate more than 200 
statutorily required reports to Congress from the General 
Accounting Office.
    In the spirit of these reforms, the Committee considered 
the reporting requirements of the Freedom of Information Act. 
Some new requirements were added to make the reports more 
useful to the public and to Congress. For the public, the FOIA 
reports should answer certain common questions, such as: How 
does one request documents? How does the Government respond to 
those requests, including an explanation of the reasons for not 
honoring a request? And, how long does it usually take for a 
request to be processed? For Congress, these reports should 
furnish a view of the agency workload and any backlog. The 
reports should identify the progress the agency is making 
toward eliminating that backlog. They should report on the 
resources devoted to answering FOIA requests, allowing for 
meaningful comparisons among agencies about performance. 
Someone unfamiliar with the FOIA process should be able to 
understand a report without resorting to reading the statute. 
Jargon such as ``(b)(3) exemptions'' should be replaced with 
more understandable language substituted. Guidance should be 
given to the agencies so that all reports contain terms with 
identical meanings.
    Besides revising the contents of the reports to make them 
more useful, the Committee changed the timing and reporting 
period of the reports. Both changes were done to reduce the 
burden on the agencies, though it meant a delay in providing 
information and descriptive language to the public and 
Congress. FOIA reports have previously reported on a calendar 
year and have been due on March 1st of the following year. This 
bill changes the reporting period to a fiscal year to make it 
easier for agencies to compile the budget and staffing 
information required. This bill also gives agencies more time 
to prepare the reports from two to four months. Of course, 
agencies should strive to make their reports available sooner. 
In addition, the Committee has provided an additional two 
months to the Department of Justice to coordinate electronic 
access to these reports.
    This bill also requires the availability of all FOIA 
reports by electronic means. The Committee anticipates that the 
Department of Justice will establish a home page for reaching 
all agency reports through a single site. Until a single site 
of electronic access is available for all reports, the 
Committee expects the Attorney General will forward to Congress 
print copies of all reports not available electronically. 
Agencies that do not provide electronic access should also make 
print reports available to the public, including distribution 
to Depository Libraries.
    In drafting this legislation, the Committee rewrote the 
entire reporting section of the Freedom of Information Act. 
This was done to make it easier for the public to understand 
the new reporting requirements, without constant reference to 
existing law.
    Three reporting requirements were added to aid the public 
and Congress to understand the work flow in each agency. 
Beginning in 1998, agencies will be required to report:
          How many requests have not been resolved to the 
        requestors' satisfaction at the end of the reporting 
        period? What is the median number of days those appeals 
        have been pending?
          What is the number of requests received during the 
        year, and the number of requests processed during the 
        year?
          What is the median number of days taken to process 
        requests of different types? What is the volume of 
        requests coming into the agency annually, and the 
        number of requests processed by the agency that year? 
        These requirements will give the public and Congress 
        clear measures of any backlog that exists. This will 
        allow Congress to monitor progress in responding to 
        FOIA requests across time. It will help the public 
        understand how long it takes an agency to respond to a 
        request.
    The Committee has requested that agencies provide the 
median number of days requests have been in the backlog queue, 
and the median number of days necessary to complete the 
processing of requests. The Committee elected to use medians as 
a statistical measure because of their appropriateness when the 
measure being summarized does not have a normal distribution, 
or when a few cases of extreme value would skew an average. For 
example, a few requests for excessively large numbers of 
documents could artificially inflate the average time taken to 
fill a request. Of course, if agencies determine that the 
average time is a better measure of their performance, they can 
include that in the report along with the median. Medians are 
simple to calculate, simply requiring a distribution of the 
number of days each request has been pending, and do not 
increase the reporting burden on agencies. The Committee 
appreciates that some agencies with decentralized FOIA 
operations may have trouble in calculating a precise agency-
wide median. In such circumstances reasonable estimates may be 
used. Finally, this bill requires that agencies report the 
number of staff assigned to processing FOIA requests, and their 
budget for processing FOIA requests.
    Much comment is made of the adequacy of agency resources to 
comply with the statutory requirements of the FOIA. Effective 
future congressional oversight of the FOIA requires more 
detailed information about the level of resources that agencies 
devote to FOIA, the effectiveness of their utilization and the 
level of resources that might be required for agencies to fully 
comply with the FOIA. Agencies should inform Congress of the 
additional resources needed to fully comply with the FOIA. In 
the absence of such information on budget requests and 
management initiatives, the complaint by agencies that Congress 
has denied the resources necessary to comply with the statutory 
deadlines is unsupportable.
    The Committee has rewritten the FOIA reporting requirements 
to make them more useful to the public and to Congress, and to 
make the information in them more accessible. With those goals 
in mind, we expect that the Department of Justice, in 
consultation with the Office of Management and Budget, will 
provide guidelines to the agencies so that all reports use 
common terminology and follow a similar format. The Attorney 
General and the Director of the Office of Management and Budget 
are required to develop reporting guidelines for the annual 
reports by October 1, 1997.

Section 11. Reference materials and guides

    This section requires agencies to make publicly available, 
upon request, reference material or a guide for requesting 
records or information from an agency. This guide would include 
an index and description of all major information systems of an 
agency, and a handbook for obtaining various types and 
categories of public information from an agency.
    The guide is intended to be a short and simple explanation 
for the public of what the Freedom of Information Act is 
designed to do, and how a member of the public can use it to 
access government records. Each agency should explain in clear 
and simple language, the types of records that can be obtained 
from the agency through FOIA requests, why some records cannot, 
by law, be made available, and how the agency makes the 
determination of whether or not a record can be released.
    Each agency guide should explain how to make a FOIA 
request, and how long a requestor can expect to wait for a 
reply from the agency. In addition, the guide should explain 
the requestor's rights under the law to appeal to the courts to 
rectify agency action. The guide should give a brief history of 
recent litigation it has been involved in, and the resolution 
of those cases. If an agency requires that certain requests, 
such as applications for expedited access, be completed on 
agency forms, then the forms should be part of the guide.
    The guide is intended to supplement other information 
locator systems, like the Government Information Locator System 
(GILS) called for in the Paperwork Reduction Act of 
1995.41 Thus, the guide should reference those systems and 
explain how a requestor can obtain more information about them. 
Of course, any agency specific locator systems should be 
similarly referenced in the guide.
---------------------------------------------------------------------------
    \41\ The Paperwork Reduction Act consists of (P.L. 96-511, 94 Stat. 
2812) as amended by the Paperwork Reduction Act of 1986 (section 101(m) 
[Title VIII, Part A] of P.L. 99-500 and P.L. 99-591, 100 Stat. 1783) 
and The Paperwork Reduction Act of 1995 (P.L. 104-13, 109 Stat. 163). 
The Paperwork Reduction Act is codified at Chapter 35 of Title 44 of 
the United States Code.
---------------------------------------------------------------------------
    It is expected that OMB will assist the agencies in 
assuring that all guides follow a common format so that a 
requestor picking up guides from two or more agencies can 
easily find the information they are seeking. Similarly, OMB 
should assure that all agencies use common terminology in 
describing record systems, how to file a FOIA request, and in 
describing other locator systems.
    All guides should be available through electronic means, 
and should be linked to the annual reports. A citizen picking 
up a FOIA guide should learn how to access the annual reports. 
Similarly, any potential requestor reading an annual report 
should learn about the guide, and how to access it.

Section 12. Effective date

    To provide agencies with time to implement new requirements 
under the Act, sections 7 and 8 shall become effective one year 
after the date of enactment. These sections concern multitrack 
and expedited processing, unusual and exceptional 
circumstances, the doubling of the statutory time period for 
responding to FOIA requests, and estimating the amount of 
material to which access is denied. The remainder of the bill 
will take effect 180 days after enactment.

                       V. Compliance With Rule XI

    Pursuant to rule XI, clause 2l(3)(A) of the rules of the 
House of Representatives, under the authority of rule X, clause 
2(b)(1) and clause 3(f), the results and findings for those 
oversight activities are incorporated in the recommendations 
found in the bill and in this report.

                  VI. Budget Analysis and Projections

    This Act provides for no new authorizations or budget 
authority or tax expenditures. Consequently, the provisions of 
section 308(a)(1) of the Congressional Budget Act are not 
applicable.

         VII. Cost Estimate of the Congressional Budget Office

    The Committee was provided with the following estimate of 
the cost of H.R. 3802, as prepared by the Congressional Budget 
Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC August 30, 1996.
Hon. William F. Clinger, Jr.,
Chairman, Committee on Government Reform and Oversight, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 3802, the Electronic Freedom of Information 
Amendments of 1996, as ordered reported by the House Committee 
on Government Reform and Oversight on July 25, 1996. CBO 
estimates that enacting this bill would not significantly 
affect spending by the federal government. Because the bill 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply.
    Bill Purpose.--H.R. 3802 would amend the Freedom of 
Information Act (FOIA) to:
          Require that agencies make available for public 
        inspection and reproduction copies of any records that, 
        because of the nature of their subject matter, are 
        likely to elicit additional requests;
          Require that agencies provide information in the form 
        requested (for example, paper or computer disk), if the 
        information is readily reproducible in that form;
          Authorize agencies to implement a multitrack system 
        for processing requests under FOIA;
          Expand the amount of time an agency has to respond to 
        a FOIA request from 10 days to 20 days; and
          Require agencies to file an annual report with the 
        Attorney General that documents statistics related to 
        the processing and the denial of FOIA requests.
    Federal Budgetary Impact.--Many of the bill's provisions 
are similar to those already required by the Office of 
Management and Budget (OMB Circular No. A-130), and therefore 
are not expected to affect agencies' budgets. Some provisions, 
however, could change the way certain agencies respond to FOIA 
requests. For instance, the bill would require that agencies 
make available for public inspection and reproduction copies of 
any records that--because of the nature of their subject 
matter--are likely to elicit additional requests. The bill also 
would require that agencies provide information in the form 
requested, if the information is readily reproducible in that 
form. The first provision could reduce agencies' costs, while 
the second provision might increase agencies' costs, but CBO 
cannot estimate the extent of these impacts. The bill's 
provisions would likely have the greatest impact on the 
departments of Defense and Health and Human Services, which 
historically receive about one-half of all FOIA requests. Any 
change in spending from either provision would be subject to 
appropriation actions.
    The bill could also alleviate current agency backlogs in 
filling FOIA requests by doubling the amount of time an agency 
has to respond to a FOIA request and by allowing agencies to 
classify and process requests according to level of effort 
rather than on a strict first-in, first-out basis. In a 1994 
Department of Justice survey of agency backlogs under FOIA, 
almost two-thirds of the 75 agencies included in the survey 
reported average response times to new FOIA requests of more 
than 15 days. While these provisions should help agencies 
better comply with statutory response times, it is unclear 
whether they would significantly affect agency costs for 
completing such response.
    Finally, H.R. 3802 would require that agencies annually 
report a number of statistics concerning FOIA activities to the 
Attorney General. Under current law, agencies already submit 
much of this information to the Congress each year. Thus, we 
expect the new reporting requirement would not significantly 
increase agency costs.
    Mandates Statement.--H.R. 3802 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) and 
would not have a significant impact on the budgets of state, 
local or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The staff contact is John R. Righter.
            Sincerely,
                                              ------ ------
                                   (For June E. O'Neill, Director).

                  VIII. Inflationary Impact Statement

    In accordance with rule XI, clause 2(l)(4) of the Rules of 
the House of Representative , this legislation is assessed to 
have no inflationary effect on prices and costs in the 
operation of the national economy.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                      TITLE 5, UNITED STATES CODE

          * * * * * * *

                     PART I--THE AGENCIES GENERALLY

          * * * * * * *

                  CHAPTER 5--ADMINISTRATIVE PROCEDURE

          * * * * * * *

                SUBCHAPTER II--ADMINISTRATIVE PROCEDURE

          * * * * * * *

Sec. 552. Public information; agency rules, opinions, orders, records, 
                    and proceedings

  (a) Each agency shall make available to the public 
information as follows:
  (1)  * * *
  (2) Each agency, in accordance with published rules, shall 
make available for public inspection and copying--
          (A) final opinions, including concurring and 
        dissenting opinions, as well as orders, made in the 
        adjudication of cases;
          (B) those statements of policy and interpretations 
        which have been adopted by the agency and are not 
        published in the Federal Register; [and]
          (C) administrative staff manuals and instructions to 
        staff that affect a member of the public;
          (D) copies of all records, regardless of form or 
        format, which have been released to any person under 
        paragraph (3) and which, 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; and
          (E) a general index of the records referred to under 
        subparagraph (D);
unless the materials are promptly published and copies offered 
for sale. For records created on or after November 1, 1996, 
within one year after such date, each agency shall make such 
records available by computer telecommunications or, if 
computer telecommunications means have not been established by 
the agency, by other electronic means. To the extent required 
to prevent a clearly unwarranted invasion of personal privacy, 
an agency may delete identifying details when it makes 
available or publishes an opinion, statement of policy, 
interpretation, [or staff manual or instruction] staff manual, 
instruction, or copies of records referred to in subparagraph 
(D). However, in each case the justification for the deletion 
shall be explained fully in writing, and the extent of such 
deletion shall be indicated on the portion of the record which 
is made available or published. If technically feasible, the 
extent of the deletion shall be indicated at the place in the 
record where the deletion was made. Each agency shall also 
maintain and make available for public inspection and copying 
current indexes providing identifying information for the 
public as to any matter issued, adopted, or promulgated after 
July 4, 1967, and required by this paragraph to be made 
available or published. Each agency shall promptly publish, 
quarterly or more frequently, and distribute (by sale or 
otherwise) copies of each index or supplements thereto unless 
it determines by order published in the Federal Register that 
the publication would be unnecessary and impracticable, in 
which case the agency shall nonetheless provide copies of such 
index on request at a cost not to exceed the direct cost of 
duplication. Each agency shall make the index referred to in 
subparagraph (E) available by computer telecommunication by 
December 31, 1999. A final order, opinion, statement of policy, 
interpretation, or staff manual or instruction that affects a 
member of the public may be relied on, used, or cited as 
precedent by an agency against a party other than an agency 
only if--
          (i) it has been indexed and either made available or 
        published as provided by this paragraph; or
          (ii) the party has actual and timely notice of the 
        terms thereof.
  (3)(A) Except with respect to the records made available 
under paragraphs (1) and (2) of this subsection, each agency, 
upon any request for records which [(A)] (i) reasonably 
describes such records and [(B)] (ii) is made in accordance 
with published rules stating the time, place, fees (if any), 
and procedures to be followed, shall make the records promptly 
available to any person.
  (B) In making any record available to a person under this 
paragraph, an agency shall provide the record in any form or 
format requested by the person if the record is readily 
reproducible by the agency in that form or format. Each agency 
shall make reasonable efforts to maintain its records in forms 
or formats that are reproducible for purposes of this section.
  (C) In responding under this paragraph to a request for 
records, an agency shall make reasonable efforts to search for 
the records in electronic form or format.
  (D) For purposes of this paragraph, the term ``search'' means 
to review, manually or by automated means, agency records for 
the purpose of locating those records which are responsive to a 
request.
  (4)(A) * * *
  (B) On complaint, the district court of the United States in 
the district in which the complainant resides, or has his 
principal place of business, or in which the agency records are 
situated, or in the District of Columbia, has jurisdiction to 
enjoin the agency from withholding agency records and to order 
the production of any agency records improperly withheld from 
the complainant. In such a case the court shall determine the 
matter de novo, and may examine the contents of such agency 
records in camera to determine whether such records or any part 
thereof shall be withheld under any of the exemptions set forth 
in subsection (b) of this section, and the burden is on the 
agency to sustain its action. In addition to any other matters 
to which a court accords substantial weight, a court shall 
accord substantial weight to an affidavit of an agency 
concerning the agency's determination as to technical 
feasibility under paragraph (2)(C) and subsection (b) and 
reproducibility under paragraph (3)(B).
          * * * * * * *
  (6)(A) Each agency, upon any request for records made under 
paragraph (1), (2), or (3) of this subsection, shall--
          (i) determine within [ten days] 20 days (excepting 
        Saturdays, Sundays, and legal public holidays) after 
        the receipt of any such request whether to comply with 
        such request and shall immediately notify the person 
        making such request of such determination and the 
        reasons therefor, and of the right of such person to 
        appeal to the head of the agency any adverse 
        determination; and
          (ii) make a determination with respect to any appeal 
        within twenty days (excepting Saturdays, Sundays, and 
        legal public holidays) after the receipt of such 
        appeal. If on appeal the denial of the request for 
        records is in whole or in part upheld, the agency shall 
        notify the person making such request of the provisions 
        for judicial review of that determination under 
        paragraph (4) of this subsection.
  [(B) In unusual circumstances as specified in this 
subparagraph, the time limits prescribed in either clause (i) 
or clause (ii) of subparagraph (A) may be extended by written 
notice to the person making such request setting forth the 
reasons for such extension and the date on which a 
determination is expected to be dispatched. No such notice 
shall specify a date that would result in an extension for more 
than ten working days. As used in this subparagraph, ``unusual 
circumstances'' means, but only to the extent reasonably 
necessary to the proper processing of the particular request--
          [(i) the need to search for and collect the requested 
        records from field facilities or other establishments 
        that are separate from the office processing the 
        request;
          [(ii) the need to search for, collect, and 
        appropriately examine a voluminous amount of separate 
        and distinct records which are demanded in a single 
        request; or
          [(iii) the need for consultation, which shall be 
        conducted with all practicable speed, with another 
        agency having a substantial interest in the 
        determination of the request or among two or more 
        components of the agency having substantial subject-
        matter interest therein.]
  (B)(i) In unusual circumstances as specified in this 
subparagraph, the time limits prescribed in either clause (i) 
or clause (ii) of subparagraph (A) may be extended by written 
notice to the person making such request setting forth the 
unusual circumstances for such extension and the date on which 
a determination is expected to be dispatched. No such notice 
shall specify a date that would result in an extension for more 
than ten working days, except as provided in clause (ii) of 
this subparagraph.
  (ii) With respect to a request for which a written notice 
under clause (i) extends the time limits prescribed under 
clause (i) of subparagraph (A), the agency shall notify the 
person making the request if the request cannot be processed 
within the time limit specified in that clause and shall 
provide the person an opportunity to limit the scope of the 
request so that it may be processed within that time limit or 
an opportunity to arrange with the agency an alternative time 
frame for processing the request or a modified request. Refusal 
by the person to reasonably modify the request or arrange such 
an alternative time frame shall be exceptional circumstances 
for purposes of subparagraph (C).
  (iii) As used in this subparagraph, `unusual circumstances' 
means, but only to the extent reasonably necessary to the 
proper processing of the particular requests--
          (I) the need to search for and collect the requested 
        records from field facilities or other establishments 
        that are separate from the office processing the 
        request;
          (II) the need to search for, collect, and 
        appropriately examine a voluminous amount of separate 
        and distinct records which are demanded in a single 
        request; or
          (III) the need for consultation, which shall be 
        conducted with all practicable speed, with another 
        agency having a substantial interest in the 
        determination of the request or among two or more 
        components of the agency having substantial subject-
        matter interest therein.
  (C)(i) Any person making a request to any agency for records 
under paragraph (1), (2), or (3) of this subsection shall be 
deemed to have exhausted his administrative remedies with 
respect to such request if the agency fails to comply with the 
applicable time limit provisions of this paragraph. If the 
Government can show exceptional circumstances exist and that 
the agency is exercising due diligence in responding to the 
request, the court may retain jurisdiction and allow the agency 
additional time to complete its review of the records. Upon any 
determination by an agency to comply with a request for 
records, the records shall be made promptly available to such 
person making such request. Any notification of denial of any 
request for records under this subsection shall set forth the 
names and titles or positions of each person responsible for 
the denial of such request.
  (ii) For purposes of this subparagraph, the term 
``exceptional circumstances'' does not include a delay that 
results from a predictable agency workload of requests under 
this section.
  (iii) Refusal by a person to reasonably modify the scope of a 
request or to arrange an alternative time frame for processing 
a request (or a modified request) under this section after 
being requested to do so by the agency to whom the person made 
the request shall be exceptional circumstances for purposes of 
this subparagraph.
  (iv) In determining whether exceptional circumstances exist, 
a court shall consider the efforts by an agency to reduce the 
number of pending requests under this section.
  (D)(i) Each agency may promulgate regulations, pursuant to 
notice and receipt of public comment, providing for multitrack 
processing of requests for records based on the amount of work 
or time (or both) involved in processing requests.
  (ii) Regulations under this subparagraph may provide a person 
making a request that does not qualify for the fastest 
multitrack processing an opportunity to limit the scope of the 
request in order to qualify for faster processing.
  (iii) This subparagraph shall not be considered to affect the 
requirement under subparagraph (C) to exercise due diligence.
  (E)(i) Each agency shall promulgate regulations, pursuant to 
notice and receipt of public comment, providing for expedited 
processing of requests for records--
          (I) in cases in which the person requesting the 
        records demonstrates a compelling need; and
          (II) in other cases determined by the agency.
  (ii) Notwithstanding subparagraph (A)(i), regulations under 
this subparagraph must ensure--
          (I) that a determination of whether to provide 
        expedited processing shall be made, and notice of the 
        determination shall be provided to the person making 
        the request, within 10 days after the date of the 
        request; and
          (II) expeditious consideration of administrative 
        appeals of such determinations of whether to provide 
        expedited processing.
  (iii) An agency shall process as soon as practicable any 
request for records to which the agency has granted expedited 
processing under this subparagraph. Agency action to deny or 
affirm denial of a request for expedited processing pursuant to 
this subparagraph, and failure by an agency to respond timely 
to such a request shall be subject to judicial review under 
paragraph (4), except that the judicial review shall be based 
on the record before the agency at the time of the 
determination.
  (iv) A district court of the United States shall not have 
jurisdiction to review an agency denial of expedited processing 
of a request for records after the agency has provided a 
complete response to the request.
  (v) For purposes of this subparagraph, the term ``compelling 
need'' means--
          (I) that a failure to obtain requested records on an 
        expedited basis under this paragraph could reasonably 
        be expected to pose an imminent threat to the life or 
        physical safety of an individual; or
          (II) with respect to a request made by a person 
        primarily engaged in disseminating information, urgency 
        to inform the public concerning actual or alleged 
        Federal Government activity.
  (F) In denying a request for records, in whole or in part, an 
agency shall make a reasonable effort to estimate the volume of 
any requested matter the provision of which is denied, and 
shall provide any such estimate to the person making the 
request, unless providing such estimate would harm an interest 
protected by an exemption under subsection (b) under which the 
denial is made.
  (b) This section does not apply to matters that are--
          (1) * * *
          * * * * * * *
          (9) geological and geophysical information and data, 
        including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the 
portions which are exempt under this subsection. The amount of 
information deleted shall be indicated on the released portion 
of the record, unless including that indication would harm an 
interest protected by an exemption under this subsection under 
which the deletion is made.
          * * * * * * *
  [(e) On or before March 1 of each calendar year, each agency 
shall submit a report covering the preceding calendar year to 
the Speaker of the House of Representatives and President of 
the Senate for referral to the appropriate committees of the 
Congress. The report shall include--
          [(1) the number of determinations made by such agency 
        not to comply with requests for records made to such 
        agency under subsection (a) and the reasons for each 
        such determination;
          [(2) the number of appeals made by persons under 
        subsection (a)(6), the result of such appeals, and the 
        reason for the action upon each appeal that results in 
        a denial of information;
          [(3) the names and titles or positions of each person 
        responsible for the denial of records requested under 
        this section, and the number of instances of 
        participation for each;
          [(4) the results of each proceeding conducted 
        pursuant to subsection (a)(4)(F), including a report of 
        the disciplinary action taken against the officer or 
        employee who was primarily responsible for improperly 
        withholding records or an explanation of why 
        disciplinary action was not taken;
          [(5) a copy of every rule made by such agency 
        regarding this section;
          [(6) a copy of the fee schedule and the total amount 
        of fees collected by the agency for making records 
        available under this section; and
          [(7) such other information as indicates efforts to 
        administer fully this section.
The Attorney General shall submit an annual report on or before 
March 1 of each calendar year which shall include for the prior 
calendar year a listing of the number of cases arising under 
this section, the exemption involved in each case, the 
disposition of such case, and the cost, fees, and penalties 
assessed under subsections (a)(4)(E), (F), and (G). Such report 
shall also include a description of the efforts undertaken by 
the Department of Justice to encourage agency compliance with 
this section.]
  (e)(1) On or before February 1 of each year, each agency 
shall submit to the Attorney General a report which shall cover 
the preceding fiscal year and which shall include--
          (A) the number of determinations made by the agency 
        not to comply with requests for records made to such 
        agency under subsection (a) and the reasons for each 
        such determination;
          (B)(i) the number of appeals made by persons under 
        subsection (a)(6), the result of such appeals, and the 
        reason for the action upon each appeal that results in 
        a denial of information; and
          (ii) a complete list of all statutes that the agency 
        relies upon to authorize the agency to withhold 
        information under subsection (b)(3), a description of 
        whether a court has upheld the decision of the agency 
        to withhold information under each such statute, and a 
        concise description of the scope of any information 
        withheld;
          (C) the number of requests for records pending before 
        the agency as of September 30 of the preceding year, 
        and the median number of days that such requests had 
        been pending before the agency as of that date;
          (D) the number of requests for records received by 
        the agency and the number of requests which the agency 
        processed;
          (E) the median number of days taken by the agency to 
        process different types of requests;
          (F) the total amount of fees collected by the agency 
        for processing requests;
          (G) the average amount of time that the agency 
        estimates as necessary, based on the past experience of 
        the agency, to comply with different types of requests; 
        and
          (H) the number of full-time staff of the agency 
        devoted to processing requests for records under this 
        section, and the total amount expended by the agency 
        for processing such requests.
  (2) Each agency shall make each such report available to the 
public through a computer network, or if computer network means 
have not been established by the agency, by other electronic 
means.
  (3) The Attorney General shall make each report which has 
been made available by electronic means available at a single 
electronic access point. The Attorney General shall notify the 
Chairman and ranking minority member of the Committee on 
Government Reform and Oversight of the House of Representatives 
and the Chairman and ranking minority member of the Committees 
on Governmental Affairs and the Judiciary of the Senate, no 
later than April 1 of the year in which each such report is 
issued, that such reports are available by electronic means.
  (4) The Attorney General, in consultation with the Director 
of the Office of Management and Budget, shall develop reporting 
and performance guidelines in connection with reports required 
by this subsection by October 1, 1997, and may establish 
additional requirements for such reports as the Attorney 
General determines may be useful.
  (5) The Attorney General shall submit an annual report on or 
before April 1 of each calendar year which shall include for 
the prior calendar year a listing of the number of cases 
arising under this section, the exemption involved in each 
case, the disposition of such case, and the cost, fees, and 
penalties assessed under subparagraphs (E), (F), and (G) of 
subsection (a)(4). Such report shall also include a description 
of the efforts undertaken by the Department of Justice to 
encourage agency compliance with this section.
  (f) For purposes of this section, the term--
          (1) ``agency'' as defined in section 551(1) of this 
        title includes any executive department, military 
        department, Government corporation, Government 
        controlled corporation, or other establishment in the 
        executive branch of the Government (including the 
        Executive Office of the President), or any independent 
        regulatory agency; and
          (2) ``record'' and any other term used in this 
        section in reference to information includes 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.
  (g) The head of each agency shall prepare and make publicly 
available upon request, reference material or a guide for 
requesting records or information from the agency, including--
          (1) an index of all major information systems of the 
        agency;
          (2) a description of major information and record 
        locator systems maintained by the agency; and
          (3) a handbook for obtaining various types and 
        categories of public information from the agency 
        pursuant to chapter 35 of title 44, and under this 
        section.

                      X. Committee Recommendations

    On July 25, 1996, a quorum being present, the Committee 
ordered the bill, as amended, favorably reported.
    Date: July 25, 1996; final passage of H.R. 3802; offered 
by: Mr. Horn; voice vote: Ayes.

    XI. Congressional Accountability Act; Public Law 104-1; Section 
                               102(b)(3)

    This provision applies to the legislative branch in that 
the Comptroller General is required to review laws and 
regulations to determine that they do not conflict with the 
provisions of this bill. It does not relate to any terms or 
condition of employment or access to public services or 
accommodations.