[House Report 114-391]
[From the U.S. Government Publishing Office]


114th Congress   }                                     {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                     {       114-391

======================================================================



 
             FOIA OVERSIGHT AND IMPLEMENTATION ACT OF 2015

                                _______
                                

January 7, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 653]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 653) to amend section 552 of title 
5, United States Code (commonly known as the Freedom of 
Information Act), to provide for greater public access to 
information, 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
Committee Statement and Views....................................     7
Section-by-Section...............................................    16
Explanation of Amendments........................................    17
Committee Consideration..........................................    18
Roll Call Votes..................................................    18
Application of Law to the Legislative Branch.....................    18
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    19
Statement of General Performance Goals and Objectives............    19
Duplication of Federal Programs..................................    19
Disclosure of Directed Rule Makings..............................    19
Federal Advisory Committee Act...................................    19
Unfunded Mandate Statement.......................................    19
Earmark Identification...........................................    19
Committee Estimate...............................................    19
Budget Authority and Congressional Budget Office Cost Estimate...    20
Changes in Existing Law Made by the Bill, as Reported............    22

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``FOIA Oversight and Implementation Act 
of 2015'' or the ``FOIA Act''.

SEC. 2. FREEDOM OF INFORMATION ACT AMENDMENTS.

  (a) Electronic Accessibility.--Section 552 of title 5, United States 
Code, is amended--
          (1) in subsection (a)--
                  (A) in paragraph (2)--
                          (i) by striking ``for public inspection and 
                        copying'' each place it appears and inserting 
                        ``in an electronic, publicly accessible 
                        format'';
                          (ii) by striking ``; and'' and inserting a 
                        semicolon;
                          (iii) by striking subparagraph (E) and 
                        inserting the following new subparagraphs:
          ``(E) copies of all releasable records, regardless of form or 
        format, that have been requested three or more times under 
        paragraph (3); and
          ``(F) a general index of the records referred to under 
        subparagraphs (D) and (E);''; and
                          (iv) in the matter following subparagraph (F) 
                        (as added by clause (iii) of this 
                        subparagraph)--
                                  (I) by striking ``subparagraph (D)'' 
                                and inserting ``subparagraphs (D) and 
                                (E)''; and
                                  (II) by striking ``subparagraph (E)'' 
                                and inserting ``subparagraph (F)''; and
                  (B) in paragraph (7)--
                          (i) in subparagraph (A), by striking ``that 
                        will take longer than ten days to process''; 
                        and
                          (ii) in subparagraph (B), by inserting 
                        ``automated'' after ``provides'';
          (2) in subsection (g), by striking ``make publicly available 
        upon request'' and inserting ``make available in an electronic, 
        publicly accessible format''; and
           (3) by adding at the end the following new subsection:
  ``(m) Electronic Submission of Requests.--
          ``(1) Consolidated online request portal.--The Director of 
        the Office of Management and Budget, in consultation with the 
        Attorney General, shall ensure the operation of a consolidated 
        online request portal that allows a member of the public to 
        submit a request for records under subsection (a) to any agency 
        from a single website. The portal may include any additional 
        tools the Director of the Office of Management and Budget finds 
        will improve the implementation of this section.
          ``(2) Rule of construction.--This subsection shall not be 
        construed to alter the power of any other agency to create or 
        maintain an independent online portal for the submission of a 
        request for records under this section. The Director of the 
        Office of Management and Budget shall establish standards for 
        interoperability between the portal required under paragraph 
        (1) and other request processing software used by agencies 
        subject to this section.
          ``(3) Email request required.--Each agency shall accept 
        requests for records under subsection (a) through an email 
        address and shall publish such email address on the website of 
        the agency.''.
  (b) Presumption of Openness.--Section 552(b) of title 5, United 
States Code, is amended--
          (1) in paragraph (5), by inserting after ``with the agency'' 
        the following: ``, excluding--
                  ``(A) opinions that are controlling interpretations 
                of law;
                  ``(B) final reports or memoranda created by an entity 
                other than the agency, including other Governmental 
                entities, at the request of the agency and used to make 
                a final policy decision;
                  ``(C) guidance documents used by the agency to 
                respond to the public; and
                  ``(D) records or information created 25 years or more 
                before the date on which a request is made under 
                subsection (a)(3)''; and
          (2) in the matter following paragraph (9), by inserting 
        before ``Any reasonably segregable portion'' the following: 
        ``An agency may not withhold information under this subsection 
        unless such agency reasonably foresees that disclosure would 
        cause specific identifiable harm to an interest protected by an 
        exemption, or if disclosure is prohibited by law.''.
  (c) Assessment of Attorney Fees and Other Litigation Costs.--Section 
552(a)(4)(E)(i) of title 5, United States Code, is amended by striking 
``The court may'' and inserting ``The court shall''.
  (d) The Office of Government Information Services.--Section 552 of 
title 5, United States Code, is amended--
          (1) in subsection (a)(4)(A)(i), by striking ``the Director of 
        the Office of Management and Budget'' and inserting ``the 
        Director of the Office of Management and Budget, in 
        consultation with the Director of the Office of Government 
        Information Services,''; and
          (2) by amending subsection (h) to read as follows:
  ``(h) The Office of Government Information Services.--
          ``(1) Establishment.--There is established the Office of 
        Government Information Services within the National Archives 
        and Records Administration. The head of the Office is the 
        Director of the Office of Government Information Services.
          ``(2) Review of foia policy, procedure, and compliance.--The 
        Office of Government Information Services shall--
                  ``(A) review policies and procedures of agencies 
                under this section;
                  ``(B) review compliance with this section by 
                agencies;
                  ``(C) identify methods that improve compliance under 
                this section that may include--
                          ``(i) the timely processing of requests 
                        submitted to agencies under this section;
                          ``(ii) the system for assessing fees and fee 
                        waivers under this section; and
                          ``(iii) the use of any exemption under 
                        subsection (b); and
                  ``(D) review and provide guidance to agencies on the 
                use of fees and fee waivers.
          ``(3) Mediation services.--The Office of Government 
        Information Services shall offer mediation services to resolve 
        disputes between persons making requests under this section and 
        agencies as a non-exclusive alternative to litigation and may 
        issue advisory opinions at the discretion of the Office or upon 
        request of any party to such mediation services.
          ``(4) Submission of report.--
                  ``(A) In general.--The Office of Government 
                Information Services shall not less than annually 
                submit to the committees described in subparagraph (C) 
                and the President a report on the findings from the 
                information reviewed and identified under paragraph 
                (2), a summary of the Office's activities under 
                paragraph (3) (including any advisory opinions issued), 
                and legislative and regulatory recommendations to 
                improve the administration of this section.
                  ``(B) Electronic availability of reports.--The Office 
                shall make available any report submitted under 
                paragraph (A) in a publicly accessible format.
                  ``(C) Congressional submission of report.--The 
                committees described in this subparagraph are the 
                following:
                          ``(i) The Committee on Oversight and 
                        Government Reform of the House of 
                        Representatives.
                          ``(ii) The Committees on Homeland Security 
                        and Governmental Affairs and the Judiciary of 
                        the Senate.
                  ``(D) Direct submission of reports and testimony.--
                Any report submitted under paragraph (A), any 
                testimony, or any other communication to Congress shall 
                be submitted directly to the committees and the 
                President, without any requirement that any officer or 
                employee outside of the Office of Government 
                Information Services, including the Archivist of the 
                United States and the Director of the Office of 
                Management and Budget, review such report, testimony, 
                or other communication.
          ``(5) Submission of additional information.--The Director of 
        the Office of Government Information Services may submit 
        additional information to Congress and the President that the 
        Director determines to be appropriate.
          ``(6) Annual meeting required.--Not less than once a year, 
        the Office of Government Information Services shall hold a 
        meeting that is open to the public on the review and reports by 
        the Office and permit interested persons to appear and present 
        oral or written statements at such meeting.''.
  (e) Public Resources.--Section 552(a)(6)(A) of title 5, United States 
Code, is amended--
          (1) in clause (i), by striking ``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'' and 
        inserting the following: ``of--
                  ``(I) such determination and the reasons therefor;
                  ``(II) the right of such person to seek assistance 
                from the agency FOIA Public Liaison; and
                  ``(III) the right of such person to appeal to the 
                head of the agency any adverse determination, within a 
                period determined by the agency that is not less than 
                90 days after the receipt of such adverse 
                determination; and''; and
          (2) in clause (ii), by striking the period at the end and 
        inserting the following: ``and the right of such person to seek 
        dispute resolution services from the agency FOIA Public Liaison 
        or the Office of Government Information Services.''
  (f) Additional Disclosure of Information Requirements.--Section 
552(a) of title 5, United States Code, is amended by adding at the end 
the following new paragraphs:
          ``(8) Disclosure of information for increased public 
        understanding of the government.--Each agency shall--
                  ``(A) review the records of such agency to determine 
                whether the release of the records would be in the 
                public interest because it is likely to contribute 
                significantly to public understanding of the operations 
                or activities of the Government;
                  ``(B) for records determined to be in the public 
                interest under subparagraph (A), reasonably segregate 
                and redact any information exempted from disclosure 
                under subsection (b); and
                  ``(C) make available in an electronic, publicly 
                accessible format, any records identified in 
                subparagraph (A), as modified pursuant to subparagraph 
                (B).
          ``(9) Increased disclosure of information.--Each agency 
        shall--
                  ``(A) make information public to the greatest extent 
                possible through modern technology to--
                          ``(i) inform the public of the operations and 
                        activities of the Government; and
                          ``(ii) ensure timely disclosure of 
                        information; and
                  ``(B) establish procedures for identifying categories 
                of records that may be disclosed regularly and 
                additional records of interest to the public that are 
                appropriate for public disclosure, and for posting such 
                records in an electronic, publicly accessible 
                format.''.
  (g) Report on Categories of Information for Disclosure.--Not later 
than one year after the date of the enactment of this Act, and every 
two years thereafter, the Director of the Office of Information Policy 
of the Department of Justice, after consultation with agencies selected 
by the Director, shall submit to the Committee on Oversight and 
Government Reform of the House of Representatives and the Committees on 
Homeland Security and Governmental Affairs and the Judiciary of the 
Senate a report that identifies categories of records that would be 
appropriate for proactive disclosure, and shall make such report 
available in an electronic, publicly accessible format.
  (h) Agency FOIA Report.--Section 552(e) of title 5, United States 
Code, is amended--
          (1) in paragraph (1)--
                  (A) by inserting ``and to the Director of the Office 
                of Government Information Services'' after ``the 
                Attorney General of the United States'';
                  (B) in subparagraph (N), by striking ``; and'' and 
                inserting a semicolon;
                  (C) in subparagraph (O), by striking the period and 
                inserting a semicolon; and
                  (D) by adding at the end the following new 
                subparagraphs:
          ``(P) the number of times the agency invoked a law 
        enforcement exclusion under subsection (c);
          ``(Q) the number of times the agency engaged in dispute 
        resolution with the assistance of the Office of Government 
        Information Services or the FOIA Public Liaison;
          ``(R) the number of records that were made available in an 
        electronic, publicly accessible format under subsection (a)(2); 
        and
          ``(S) the number of times the agency assessed a search or 
        duplication fee under subsection (a)(4)(A) and did not comply 
        with a time limit under subsection (a)(6).'';
          (2) by amending paragraph (3) to read as follows:
          ``(3) Electronic accessibility of reports.--Each agency shall 
        make each such report available in an electronic, publicly 
        accessible format. In addition, each agency shall make the raw 
        statistical data used in its reports available in a timely 
        manner in an electronic, publicly accessible format. Such data 
        shall be--
                  ``(A) made available without charge, license, or 
                registration requirement;
                  ``(B) capable of being searched and aggregated; and
                  ``(C) permitted to be downloaded and downloaded in 
                bulk.'';
          (3) in paragraph (4)--
                  (A) by striking ``Committee on Government Reform and 
                Oversight'' and inserting ``Committee on Oversight and 
                Government Reform'';
                  (B) by striking ``Governmental Affairs'' and 
                inserting ``Homeland Security and Governmental 
                Affairs''; and
                  (C) by striking ``April 1'' and inserting ``March 
                1'';
          (4) in paragraph (5)--
                  (A) by inserting ``and the Director of the Office of 
                Government Information Services'' after ``the Director 
                of the Office of Management and Budget''; and
                  (B) by striking ``by October 1, 1997''; and
          (5) by amending paragraph (6) to read as follows:
          ``(6) Attorney general foia report.--
                  ``(A) In general.--The Attorney General of the United 
                States shall submit to Congress and the President an 
                annual report on or before March 1 of each calendar 
                year which shall include for the prior calendar year--
                          ``(i) a listing of the number of cases 
                        arising under this section;
                          ``(ii) each subsection under this section, 
                        each paragraph of the subsection, and any 
                        exemption, if applicable, 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); and
                          ``(iii) a description of the efforts 
                        undertaken by the Department of Justice to 
                        encourage agency compliance with this section.
                  ``(B) Electronic availability.--The Attorney General 
                of the United States--
                          ``(i) shall make each report described under 
                        subparagraph (A) available in an electronic, 
                        publicly accessible format; and
                          ``(ii) shall make the raw statistical data 
                        used in each report available in an electronic, 
                        publicly accessible format, which shall be--
                                  ``(I) made available without charge, 
                                license, or registration requirement;
                                  ``(II) capable of being searched and 
                                aggregated; and
                                  ``(III) permitted to be downloaded, 
                                including downloaded in bulk.''.
  (i) Search or Duplication Fees.--Section 552(a)(4)(A)(viii) of title 
5, United States Code, is amended by adding at the end the following 
new sentence: ``Any agency that does assess search or duplication fees 
after failing to comply with a time limit under paragraph (6) shall 
provide written notice to the requester of the circumstance that 
justifies the fees. If an agency fails to provide such notice, the 
agency may not assess search or duplication fees.''.
  (j) Government Accountability Office.--Subsection (i) of section 552 
of title 5, United States Code, is amended to read as follows:
  ``(i) Government Accountability Office.--The Government 
Accountability Office shall--
          ``(1) conduct audits of administrative agencies on compliance 
        with and implementation of the requirements of this section and 
        issue reports detailing the results of such audits;
          ``(2) catalog the number of exemptions under subsection 
        (b)(3) and agency use of such exemptions; and
          ``(3) review and prepare a report on the processing of 
        requests by agencies for information pertaining to an entity 
        that has received assistance under title I of the Emergency 
        Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) 
        during any period in which the Government owns or owned more 
        than 50 percent of the stock of such entity.''.
  (k) Chief FOIA Officer Responsibilities; Council; Review.--Section 
552 of title 5, United States Code, is amended--
          (1) by striking subsections (j) and (k); and
          (2) by inserting after subsection (i), the following new 
        subsections:
  ``(j) Chief FOIA Officer.--
          ``(1) Designation.--Each agency shall designate a Chief FOIA 
        Officer who shall be a senior official of such agency (at the 
        Assistant Secretary or equivalent level).
          ``(2) Duties.--The Chief FOIA Officer of each agency shall, 
        subject to the authority of the head of the agency--
                  ``(A) have agency-wide responsibility for efficient 
                and appropriate compliance with this section;
                  ``(B) monitor implementation of this section 
                throughout the agency and keep the head of the agency, 
                the chief legal officer of the agency, and the Attorney 
                General appropriately informed of the agency's 
                performance in implementing this section;
                  ``(C) recommend to the head of the agency such 
                adjustments to agency practices, policies, personnel, 
                and funding as may be necessary to improve its 
                implementation of this section;
                  ``(D) review and report to the Attorney General, 
                through the head of the agency, at such times and in 
                such formats as the Attorney General may direct, on the 
                agency's performance in implementing this section;
                  ``(E) facilitate public understanding of the purposes 
                of the statutory exemptions of this section by 
                including concise descriptions of the exemptions in 
                both the agency's handbook issued under subsection (g), 
                and the agency's annual report on this section, and by 
                providing an overview, where appropriate, of certain 
                general categories of agency records to which those 
                exemptions apply;
                  ``(F) serve as the primary agency liaison with the 
                Office of Government Information Services and the 
                Office of Information Policy; and
                  ``(G) designate one or more FOIA Public Liaisons.
          ``(3) Compliance review required.--The Chief FOIA Officer of 
        each agency shall--
                  ``(A) review, not less than annually, all aspects of 
                the agency's administration of this section to ensure 
                compliance with the requirements of this section, 
                including--
                          ``(i) agency regulations;
                          ``(ii) disclosure of records required under 
                        paragraphs (2), (8), and (9) of subsection (a);
                          ``(iii) assessment of fees and determination 
                        of eligibility for fee waivers;
                          ``(iv) the timely processing of requests for 
                        information under this section;
                          ``(v) the use of exemptions under subsection 
                        (b); and
                          ``(vi) dispute resolution services with the 
                        assistance of the Office of Government 
                        Information Services or the FOIA Public 
                        Liaison; and
                  ``(B) make recommendations as necessary to improve 
                agency practices and compliance with this section.
  ``(k) Chief FOIA Officers Council.--
          ``(1) Establishment.--There is established in the executive 
        branch the Chief FOIA Officers Council (in this subsection, 
        referred to as the `Council').
          ``(2) Members.--The Council shall consist of the following 
        members:
                  ``(A) The Deputy Director for Management of the 
                Office of Management and Budget.
                  ``(B) The Director of the Office of Information 
                Policy at the Department of Justice.
                  ``(C) The Director of the Office of Government 
                Information Services at the National Archives and 
                Records Administration.
                  ``(D) The Chief FOIA Officer of each agency.
                  ``(E) Any other officer or employee of the United 
                States as designated by the Co-Chairs.
          ``(3) Co-chairs.--The Director of the Office of Information 
        Policy at the Department of Justice and the Director of the 
        Office of Government Information Services at the National 
        Archives and Records Administration shall be the Co-Chairs of 
        the Council.
          ``(4) Support services.--The Administrator of General 
        Services shall provide administrative and other support for the 
        Council.
          ``(5) Consultation.--In performing its duties, the Council 
        shall consult regularly with members of the public who make 
        requests under this section.
          ``(6) Duties.--The duties of the Council include the 
        following:
                  ``(A) Develop recommendations for increasing 
                compliance and efficiency under this section.
                  ``(B) Disseminate information about agency 
                experiences, ideas, best practices, and innovative 
                approaches related to this section.
                  ``(C) Identify, develop, and coordinate initiatives 
                to increase transparency and compliance with this 
                section.
                  ``(D) Promote the development and use of common 
                performance measures for agency compliance with this 
                section.
          ``(7) Meetings.--
                  ``(A) Regular meetings.--The Council shall meet 
                regularly and such meetings shall be open to the public 
                unless the Council determines to close the meeting for 
                reasons of national security or to discuss information 
                exempt under subsection (b).
                  ``(B) Annual meetings.--Not less than once a year, 
                the Council shall hold a meeting that shall be open to 
                the public and permit interested persons to appear and 
                present oral and written statements to the Council.
                  ``(C) Notice.--Not later than 10 business days before 
                a meeting of the Council, notice of such meeting shall 
                be published in the Federal Register.
                  ``(D) Public availability of council records.--Except 
                as provided in subsection (b), the records, reports, 
                transcripts, minutes, appendixes, working papers, 
                drafts, studies, agenda, or other documents that were 
                made available to or prepared for or by the Council 
                shall be made publicly available.
                  ``(E) Minutes.--Detailed minutes of each meeting of 
                the Council shall be kept and shall contain a record of 
                the persons present, a complete and accurate 
                description of matters discussed and conclusions 
                reached, and copies of all reports received, issued, or 
                approved by the Council.''.
  (l) Regulations.--
          (1) Revision of regulations.--Not later than 180 days after 
        the date of the enactment of this Act, the head of each agency 
        shall review the regulations of such agency and shall issue 
        regulations on procedures for the disclosure of records under 
        section 552 of title 5, United States Code, in accordance with 
        the amendments made by this section. The regulations of each 
        agency shall include--
                  (A) procedures for engaging in dispute resolution; 
                and
                  (B) procedures for engaging with the Office of 
                Government Information Services.
          (2) Office of government information services report.--Not 
        later than 270 days after the date of the enactment of this 
        Act, the Office of Government Information Services shall submit 
        to Congress a report on agency compliance with the requirements 
        of this subsection.
          (3) Report on noncompliance.--The head of any agency that 
        does not meet the requirements of paragraph (1) shall submit to 
        Congress a report on the reason for noncompliance not later 
        than 270 days after the date of the enactment of this Act.
          (4) Inspector general review for noncompliance.--Any agency 
        that fails to comply with the requirements of this subsection 
        shall be reviewed by the Office of Inspector General of such 
        agency for compliance with section 552 of title 5, United 
        States Code.
          (5) Agency defined.--In this section, the term ``agency'' has 
        the meaning given such term in section 552(f) of title 5, 
        United States Code.

SEC. 3. INSPECTOR GENERAL REVIEW; ADVERSE ACTIONS.

  (a) Inspector General Review.--
          (1) In general.--The Inspector General of each agency shall--
                  (A) periodically review compliance with the 
                requirements of section 552 of title 5, United States 
                Code, including the timely processing of requests, 
                assessment of fees and fee waivers, and the use of 
                exemptions under subsection (b) of such section; and
                  (B) make recommendations the Inspector General 
                determines to be necessary to the head of the agency, 
                including recommendations for disciplinary action.
          (2) Agency defined.--In this subsection, the term ``agency'' 
        has the meaning given that term under section 552(f) of title 
        5, United States Code.
  (b) Adverse Actions.--The withholding of information in a manner 
inconsistent with the requirements of section 552 of title 5, United 
States Code (including any rules, regulations, or other implementing 
guidelines), as determined by the appropriate supervisor, shall be a 
basis for disciplinary action in accordance with subchapter I, II, or V 
of chapter 75 of such title, as the case may be.

SEC. 4. NO ADDITIONAL FUNDS AUTHORIZED.

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

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 653, the FOIA Oversight and Implementation Act of 2015 
(FOIA Act), would strengthen the Freedom of Information Act 
(FOIA) to increase transparency and accountability in 
government, and improve access to government records for 
citizens. It amends FOIA to provide for more disclosure of 
records, through both proactive disclosure and limitations on 
the use of exemptions. H.R. 653 also encourages enhanced agency 
compliance with statutory requirements and improves the FOIA 
process for both agencies and requesters.

                  BACKGROUND AND NEED FOR LEGISLATION

    FOIA establishes a presumption that records in the 
possession of Executive Branch agencies and departments of the 
federal government are accessible to the people.\1\ Under FOIA, 
anyone may file a request for a copy of any existing record at 
any federal agency for any reason.\2\ Information requested 
under FOIA is required to be released unless it falls under any 
of nine narrow exemptions that protect certain information from 
disclosure.\3\
---------------------------------------------------------------------------
    \1\Congressional Research Service, ``The Freedom of Information Act 
(FOIA): Background, Legislation, and Policy Issues,'' Aug. 14, 2015.
    \2\Id.
    \3\Id.
---------------------------------------------------------------------------
    FOIA was a product of the former-Government Operations 
Committee's Special Subcommittee on Government Information, 
established in the 84th Congress.\4\ After eleven years of 
development in the House of Representatives and almost six 
years of consideration in the Senate, FOIA was enacted in 
1966.\5\ The House bill report to the 1966 Freedom of 
Information Act stated:
---------------------------------------------------------------------------
    \4\Sam Archibald, ``The Early Years of the Freedom of Information 
Act--1955 to 1974,'' PS: Political Science and Politics, vol. 26, no. 4 
(1993), pp. 726-731.
    \5\Congressional Research Service, ``The Freedom of Information Act 
(FOIA): Background, Legislation, and Policy Issues,'' Aug. 14, 2015.
---------------------------------------------------------------------------
          It is vital to our way of life to reach a workable 
        balance between the right of the public to know and the 
        need of the Government to keep information in 
        confidence to the extent necessary without permitting 
        indiscriminate secrecy. The right of the individual to 
        be able to find out how his Government is operating can 
        be just as important to him as his right to privacy and 
        his right to confide in his government. This bill 
        strikes a balance considering all these interests.\6\
---------------------------------------------------------------------------
    \6\H. Rep. No. 1497 (1966).
---------------------------------------------------------------------------
    Since FOIA's enactment, Congress has repeatedly revisited 
the law to better balance the public's right to know. FOIA has 
been amended multiple times in efforts to increase agency 
compliance with the requirements of the Act and to improve the 
process. FOIA was amended in 1974, 1976, 1986, 1996, 2007, and 
2010.\7\ Despite these amendments, barriers to the public's 
right to know persist. H.R. 653 will help to address many of 
these issues.
---------------------------------------------------------------------------
    \7\Congressional Research Service, ``The Freedom of Information Act 
(FOIA): Background, Legislation, and Policy Issues,'' Aug. 14, 2015.
---------------------------------------------------------------------------

FOIA's ``Right to Know'' Necessitates Increased Disclosure

    FOIA is often referred to as the embodiment of ``the 
people's right to know'' about the activities and operations of 
government.\8\ However, backlogs, exemptions, and other 
barriers to access interfere with this right. In fiscal year 
2014, Executive Branch agencies received 714,231 new FOIA 
requests.\9\ In the same period, the agencies processed 647,142 
new and existing requests, and agencies released records in 
full 28 percent of the processed requests.\10\
---------------------------------------------------------------------------
    \8\Id.
    \9\U.S. Department of Justice, ``Summary of Annual FOIA Reports for 
Fiscal Year 2014.''
    \10\Id.
---------------------------------------------------------------------------
    The FOIA statute includes nine exemptions, which allow for 
the withholding of records to protect sensitive information 
from disclosure.\11\ Unfortunately, there is concern that 
agencies are overusing these exemptions to protect records that 
should be releasable under the law.\12\ To help put their use 
in perspective, in FY2014 agencies invoked exemptions more than 
550,000 times.\13\
---------------------------------------------------------------------------
    \11\5 U.S.C. 552(b).
    \12\OpenTheGovernment.org ``Scoring the Third National Action 
Plan--November 17, 2015 Newsletter,'' available at: http://
www.openthegovernment.org/node/5051; AllGov.com ``Judge Orders CIA to 
Stop Abusing Freedom of Information Act Exemption,'' (Sept. 25, 2013), 
available at: http://www.allgov.com/news/controversies/judge-orders-
cia-to-stop-abusing-freedom-of-information-act-exemption-
130925?news=851226; Media Alert, Sunlight Foundation ``Editorial Memo: 
The Freedom Of Information Act Must Be Updated'' (Aug. 24, 2014), 
available at: http://sunlightfoundation.com/press/releases/2014/08/26/
editorial-memo-freedom-information-act-must-be-upd/; Unredacted, 
``Analysis of and Prospects for New House and Senate FOIA Bills'' (Feb. 
4, 2015) available at: https://nsarchive.wordpress.com/page/13/
?archives-list&archives-type=months.
    \13\U.S. Dept. of Justice, ``Data,'' available at http://
www.foia.gov/data.html (last accessed May 28, 2015).
---------------------------------------------------------------------------
            Effective transparency starts with a presumption of 
                    openness
    In January 2009, President Obama issued a memorandum which 
said: ``The Freedom of Information Act should be administered 
with a clear presumption: In the face of doubt, openness 
prevails. . . . All agencies should adopt a presumption in 
favor of disclosure, in order to renew their commitment to the 
principles embodied in FOIA, and to usher in a new era of open 
Government. The presumption of disclosure should be applied to 
all decisions involving FOIA.''\14\ In March 2009, Attorney 
General Eric Holder issued guidance which reasserted a 
presumption of disclosure and established a standard for 
litigation whereby the Department of Justice would defend FOIA 
request denials only if ``(1) the agency reasonably foresees 
that disclosure would harm an interest protected by one of the 
statutory exemptions, or (2) disclosure is prohibited by 
law.''\15\
---------------------------------------------------------------------------
    \14\Memorandum from President Barack Obama for the Heads of Exec. 
Departments & Agencies, Freedom of Information Act, (Jan. 21, 2009).
    \15\Memorandum from Att'ny Gen. Eric Holder for the Heads of Exec. 
Departments & Agencies, Freedom of Information Act, (Mar. 19, 2009), 74 
Fed. Reg. 51879 (Oct. 8, 2009).
---------------------------------------------------------------------------
    Building on the Administration's efforts, H.R. 653 would 
codify the presumption of openness, making it a permanent 
requirement for agencies, with respect to FOIA. Based on the 
Department of Justice's standard to defend a decision in 
litigation, H.R. 653 would prohibit agencies from withholding 
information unless the agency ``reasonably foresees that 
disclosure would cause a specific, identifiable harm to an 
interest protected by an exemption, or if disclosure is 
prohibited by law.'' An inquiry into whether an agency has 
reasonably foreseen a specific, identifiable harm that would be 
caused by a disclosure would require the ability to articulate 
both the nature of the harm and the link between the specified 
harm and specific information contained in the material 
withheld.
    The presumption as codified at 5 U.S.C. 552(b) would be 
applicable to discretionary exemptions, such as exemption two 
or exemption five, which cover internal personnel policy and 
legal privileges, respectively.\16\ The presumption would not 
require the release of information for which disclosure is 
legally prohibited. As an example, exemption one protects 
classified information.\17\ Agency officials do not have 
discretion to release properly classified information.\18\ The 
presumption of openness does not change that prohibition, as 
the specific, identifiable harm is that the release of the 
information would be a violation of the law.
---------------------------------------------------------------------------
    \16\Dept. of Justice, ``Discretionary Disclosure and Waiver,'' (May 
2004).
    \17\5 U.S.C. 552(b)(1).
    \18\E.O. 13526 (2009); 18 U.S.C. 798.
---------------------------------------------------------------------------
    Similarly, the presumption does not alter the scope of 
information that is covered under an exemption. Exemption 
eight, as an example, has traditionally been interpreted by 
courts as having a ```particularly broad, all-inclusive' 
scope.''\19\ The presumption does not narrow the broad scope of 
exemption eight. Nor should the presumption be interpreted so 
as to compromise the stability of any financial institution or 
financial system, disrupt the operations of financial markets 
or undermine consumer protection due to the release of private 
information about individuals.
---------------------------------------------------------------------------
    \19\Dept. of Justice ``Guide to the Freedom of Information Act,'' 
Exemption Eight (updated July 23, 2014).
---------------------------------------------------------------------------
            Some concerns about overuse of exemption five can be 
                    addressed by limiting the scope
    Exemption five has been singled out as a particularly 
problematic exemption. Some have taken to calling it the 
``withhold it because you want to'' exemption.\20\ Exemption 
five safeguards sensitive information contained in inter-agency 
or intra-agency memorandums or letters that would be withheld 
as privileged during litigation.\21\ The purpose of the 
exemption is so that agencies need not operate in a 
fishbowl.\22\
---------------------------------------------------------------------------
    \20\Nate Jones, ``The Next FOIA Fight: The B(5) `Withhold it 
because you want to' Exemption,'' National Security Archive blog 
``Unredacted'' (Mar. 27, 2014).
    \21\5 U.S.C. 552(b)(5).
    \22\H. Rep. No. 1497 (1966).
---------------------------------------------------------------------------
    Federal agencies most commonly invoke exemption five to 
withhold records protected by attorney client privilege, 
attorney work product privilege, and the deliberative process 
privilege.\23\ The deliberative process privilege is the most 
used privilege and the source of the most concern regarding 
overuse.\24\ The privilege is a relatively recent innovation by 
the judicial branch, first appearing in an American judicial 
decision in 1958.\25\
---------------------------------------------------------------------------
    \23\Dept. of Justice ``Guide to the Freedom of Information Act,'' 
Exemption Five, p13 (updated May 7, 2014).
    \24\Anne Weismann, ``New FOIA Legislation--the Good, the Bad, and 
the Ugly,'' Citizens for Responsibility and Ethics in Washington, (Feb. 
9, 2015).
    \25\Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 
939 (Ct. Cl. 1958). Gerald Wetlaufer, ``Justifying Secrecy: An 
Objection to the General Deliberative Privilege,'' 65 Ind. L.J. 843 
(Fall 1990).
---------------------------------------------------------------------------
    The deliberative process privilege has become the legal 
vehicle by which agencies continue to withhold information 
about government operations.\26\ The legislative history of 
FOIA describes how this was a central problem FOIA was trying 
to fix, namely abuse of statutory language that was intended to 
public access to information about the operations of the 
federal government. The 1966 House bill report found ``Improper 
denials occur again and again.''\27\ It went on:
---------------------------------------------------------------------------
    \26\Dept. of Justice ``Guide to the Freedom of Information Act,'' 
Exemption Five (updated May 7, 2014).
    \27\H. Rep. No. 1497 (1966).
---------------------------------------------------------------------------
          Matters which relate solely to ``internal 
        management'' and thus can be withheld under the 
        provisions of [current law] range from the important to 
        the insignificant. They range from a proposed spending 
        program, still being worked out in the agency for 
        future presentation to the Congress, to a routine 
        telephone book. . . . The statutory requirement that 
        information about routine administrative actions need 
        be given only to ``persons properly and directly 
        concerned'' has been relied upon almost daily to 
        withhold Government information from the public. . . . 
        If none of the other restrictive phrases of [current 
        law] applies to the official Government record which an 
        agency wishes to keep confidential, it can be hidden 
        behind the ``good cause found'' shield. Historically, 
        Government agencies whose mistakes cannot bear public 
        scrutiny have found `good cause' for secrecy.\28\
---------------------------------------------------------------------------
    \28\Id. (emphasis added).
---------------------------------------------------------------------------
    Congress has not yet identified language that will ensure 
that the Executive agencies administering FOIA will strike the 
appropriate balance between privacy that is absolutely 
necessary for candid conversations in the development of 
effective public policy and transparency that is necessary and 
expected in a government by the people and for the people. In 
an attempt to provide some transparency in this area, H.R. 653 
carves out a 25-year time limitation to exemption five.
    In addition to the presumption of openness, the FOIA Act 
would specifically limit exemption five by setting a time limit 
on use of the exemption. Agencies could only apply exemption 
five to records and information created within 25 years prior 
to the date of the request regardless of the underlying 
privilege relied upon.
            Proactive disclosure will further the development of a 
                    culture of openness
    Proactive disclosure will improve transparency of 
government operations and allow the public to better understand 
government activities and decisions. H.R. 653 would increase 
the amount of agency information made available through 
proactive disclosure. Records requested under FOIA more than 
three times would be posted online for public inspection and 
copying. Each agency would also be required to review its 
records to determine whether any records ought to be released 
because they are in the public interest, and establish 
procedures for identifying categories of records that can be 
proactively disclosed to the public on a regular basis. These 
provisions would increase the amount of information the public 
can access without even filing a FOIA request. As an added 
benefit, increased disclosure may reduce the drain on resources 
required to respond to repetitive requests.

H.R. 653 would improve FOIA processes

    Ensuring the public's right to know requires that the 
processing of FOIA requests is done efficiently and 
effectively. Transparency in FOIA processes allows requesters 
to feel confident that agencies are responding to those 
requests and that the agency takes their inquiry seriously. 
Increased accessibility ensures that everyone has the ability 
to exercise their rights and increased compliance means the 
agencies are effective in their responsibilities to uphold the 
public's right.
            H.R. 653 would ensure accessibility and transparency in 
                    FOIA processes
    To improve accessibility and transparency, H.R. 653 would 
establish a single website, accessible to the public at no 
cost, which will allow people to submit FOIA requests, file 
appeals, and receive automated information about the status of 
their requests in a single location. H.R. 653 also would 
require agencies to assign a tracking number to a request on 
day one, so that requesters may track the progress of their 
request as it moves through an agency's FOIA process. These 
provisions would improve public access to the FOIA request 
process and improve efficiency in federal FOIA offices.
    H.R. 653 clarifies the right of any individual to appeal an 
agency's determination regarding a FOIA request filed by that 
individual. Under the bill, agencies would be required to give 
requesters at least 90 days to appeal an adverse determination. 
A time limit for appeals is not currently codified, so this 
provision will strengthen requester rights to file appeals.
            H.R. 653 would ensure compliance with FOIA processes
    A 2014 survey found that seven years after enactment of the 
OPEN Government Act of 2007, more than half of agencies had not 
updated their FOIA regulations to comply with the law.\29\ To 
ensure statutory compliance, H.R. 653 would require agencies to 
update their FOIA regulations no later than 180 days after H.R. 
653 is enacted. The bill would require agency regulations to be 
reviewed by the Office of Government Information Services 
(OGIS) to ensure they are compliant and consistent with current 
FOIA law. Any agency that fails to comply would be required to 
submit a report to Congress to explain its noncompliance. 
Agencies that do not comply would also be reviewed by their 
Office of Inspector General to evaluate agency compliance with 
FOIA law.
---------------------------------------------------------------------------
    \29\National Security Archive, ``National Security Archive FOIA 
Audit highlights delinquent agencies; praises Congressional and White 
House plans for updated regulations,'' (Mar. 14, 2014).
---------------------------------------------------------------------------
    Fees and fee waivers are another problem that requires 
further legislation. FOIA does not allow agencies to charge 
search fees if the agency does not comply with specific 
statutory time limits to respond to requesters. Additionally, 
many requesters qualify for a waiver of fees. Some agencies 
have not fully complied with the statute and charge excessive 
fees, or engage in fee assessment practices designed to 
dissuade requesters.\30\ H.R. 653 would clarify the fee 
requirements to better prevent similar abuses in the future.
---------------------------------------------------------------------------
    \30\Washington Examiner, ``EPA Inspector General Investigating 
Claims Agency Used Fees to Block FOIA Requests,'' May 16, 2013. See 
also: ``Suit: Spy Agency Flouting FOIA,'' Politico, February 22, 2012.
---------------------------------------------------------------------------
    While there are no criminal penalties for violating FOIA, 
courts may assess attorney fees and court costs for violations, 
and bringing disciplinary action against an agency employee who 
acted arbitrarily or capriciously with respect to the 
withholding of information.\31\ H.R. 653 would expand upon the 
ability to impose disciplinary actions by allowing an agency to 
impose disciplinary actions when the Inspector General 
determines an employee has inappropriately withheld records 
that were releasable under FOIA.
---------------------------------------------------------------------------
    \31\5 U.S.C. 552(a)(4).
---------------------------------------------------------------------------

An effective OGIS is an independent OGIS

    FOIA implementation has been plagued by delays, resistance, 
and excuses for non-compliance from the beginning.\32\ Congress 
has been persistent in conducting oversight, drafting 
legislative solutions, and encouraging greater openness in the 
executive branch, with little to no avail. Eight years ago, in 
yet another attempt to improve FOIA processes, Congress enacted 
the OPEN Government Act of 2007.\33\ Among other things, the 
OPEN Government Act established OGIS to serve as a FOIA 
Ombudsman, to help requesters navigate the FOIA process and to 
remind agencies of statutory obligations.\34\
---------------------------------------------------------------------------
    \32\H.R. Rep No. 92-1419 (1974).
    \33\Pub. L. 110-175 (2007).
    \34\Id.
---------------------------------------------------------------------------
    OGIS was charged with providing a neutral source of FOIA 
compliance review, policy recommendations, and dispute 
resolution services for requesters and agencies as an 
alternative to litigation.\35\ OGIS first opened its doors in 
September 2009.\36\ One concern facing the agency is that the 
advice, recommendations, and reports regarding FOIA compliance 
are first filtered through the Office of Management and Budget, 
prior to reaching Congress.
---------------------------------------------------------------------------
    \35\Id.
    \36\``OGIS Timeline,'' available at https://ogis.archives.gov/news-
and-events/ogis-timeline.htm (last accessed Dec. 13, 2015).
---------------------------------------------------------------------------
    In February 2015, Ms. Miriam Nisbet, the first Executive 
Director of OGIS, testified before the Committee's Subcommittee 
on Government Operations. Ms. Nisbet served as the Executive 
Director of OIGS from 2009 through 2014. In no uncertain terms, 
Ms. Nisbet explained the need for greater independence: ``If 
you want recommendations, reports, and testimony that have not 
had to be reviewed, changed, and approved by the very agencies 
that might be affected, then you should change the law. . . . 
[T]he authority to report directly to Congress, as H.R. 653 
provides, would be an important reform for an office that hears 
complaints, resolves disputes, reviews compliance, and is 
expected to speak truth to power. I might add that, if I were 
still the Director, I could not say this.''\37\
---------------------------------------------------------------------------
    \37\H. Comm. on Oversight & Gov't Reform, Ensuring Government 
Transparency through FOIA Reform, 114th Cong. (Feb. 27, 2015) 
(Statement of Miriam Nisbet, former Exec. Dir., OGIS).
---------------------------------------------------------------------------
    H.R. 653 provides OGIS with direct reporting to Congress, 
without the need for interagency review. This increased 
independence would allow OGIS to give unfiltered 
recommendations and assessments. OGIS would also be tasked with 
increased review of compliance with FOIA, including the timely 
processing of requests, the proper handling of fees and fee 
waivers, and the correct use of exemptions. OGIS would be 
required to submit an annual report to Congress on its review 
and hold at least one public meeting per year to allow 
interested persons to appear and present oral or written 
statements.

H.R. 653 would increase oversight to address persistent backlogs and 
        other inefficiencies

    The backlog of FOIA requests has increased in recent years, 
and has led to significant delays in the processing of 
requests. The number of FOIA requests rose from 597,415 in FY 
2010 to 714,231 in FY2014, a 20 percent increase.\38\ During 
that same time frame, the government-wide backlog more than 
doubled. From FY2010 to FY2014, the total backlog of FOIA 
requests increased from 69,526 to 159,741.\39\ Agencies have 
made efforts to reduce FOIA backlogs, but backlogs are a 
persistent and growing problem.
---------------------------------------------------------------------------
    \38\Department of Justice, ``Summary of Annual FOIA Reports for 
Fiscal Year 2014.''
    \39\Id.
---------------------------------------------------------------------------
    Many agencies are failing to comply with FOIA requirements 
to make frequently requested records publicly available online. 
The Department of Justice issued guidance instructing agencies 
to release records that have been requested three or more 
times.\40\ The proactive disclosure of records in the public 
interest has been limited though. Proactive disclosure could 
reduce the number of FOIA requests, requiring less processing 
time for agencies.
---------------------------------------------------------------------------
    \40\Department of Justice, Office of Information Policy (previously 
Office of Information and Privacy), FOIA Post, ``FOIA Counselor Q&A: 
`Frequently Requested' Records,'' (2002).
---------------------------------------------------------------------------
    The current FOIA statute encourages the use of alternate 
dispute resolution to avoid lawsuits whenever possible. Each 
agency has a FOIA Public Liaison who is tasked with assisting 
``in the resolution of any disputes between the requester and 
the agency.''\41\ OGIS was also created to offer mediation 
services and work to resolve disputes. Despite these actions, 
the number of FOIA lawsuits continues to rise.\42\
---------------------------------------------------------------------------
    \41\P.L. 110-175 (2007).
    \42\The FOIA Project, ``FOIA Lawsuits,'' available at 
foiaproject.org/lawsuit/(last accessed Dec. 13, 2015).
---------------------------------------------------------------------------
    To increase the ability to oversee FOIA processes, H.R. 653 
would increase the amount of information reported by agencies 
in annual FOIA reports. The bill would require each agency to 
report how often it invoked law enforcement exclusions, how 
often it engaged in dispute resolution, how often it made 
information available to the public through proactive 
disclosure, and how often it assessed a search or duplication 
fee for a request when the agency did not comply with the 
statutory time limits for responding to that request. The 
reports would be sent to OGIS, as well as the Attorney General. 
Additionally, the raw data used by agencies to complete their 
annual FOIA reports would be made available online in a fully 
useable, bulk-downloadable and machine-readable format.
    The bill would require the Government Accountability Office 
(GAO) to conduct audits of agency compliance with FOIA and 
catalog the number of exemptions that have been created under 
exemption three of FOIA. GAO would also review and report on 
agency processing of FOIA requests seeking information about 
private entities that receive or received assistance under the 
Emergency Economic Stabilization Act of 2008 during any period 
in which the government owned or owns more than 50 percent of 
the stock of such entity. Nothing in H.R. 653 is intended to 
alter the policy issued pursuant to section 348 of the FY 2010 
Intelligence Authorization Act (P.L. 111-259).
    H.R. 653 increases the oversight responsibilities of agency 
Chief FOIA Officers, requiring each agency Chief FOIA Officer 
to annually review all aspects of FOIA compliance by the 
agency. The bill also would establish a Chief FOIA Officers 
Council to be chaired by the Director of the Office of 
Information Policy at the Department of Justice and the 
Director of OGIS.
    The Council would be tasked with: developing 
recommendations to increase FOIA compliance and efficiency; 
sharing information on ideas, best practices, and innovative 
approaches to improve FOIA; identifying ways to better 
coordinate initiatives to increase transparency; and promoting 
the development and use of performance measures for agency FOIA 
compliance. The Council would be required to meet regularly and 
hold annual meetings, open to the public and at which 
interested persons would be allowed to present oral and written 
statements. All Council records, except any records relating to 
national security, would be required to be made publicly 
available.

                          LEGISLATIVE HISTORY

    H.R. 653 was introduced by Congressman Darrell Issa (R-CA), 
with Ranking Member Elijah Cummings (D-MD) as an original 
cosponsor, on February 2, 2015 and referred to the Committee on 
Oversight and Government Reform. On March 25, 2015, the 
Committee on Oversight and Government Reform ordered H.R. 653 
favorably reported, with an amendment in the nature of a 
substitute by Congressman Mark Meadows (R-NC) and two 
amendments by Chairman Jason Chaffetz (R-UT).
    Similar legislation, S. 337 the ``FOIA Improvement Act of 
2015,'' was introduced in the Senate by Senator John Cornyn (R-
TX), with Senators Chuck Grassley (R-IA) and Patrick Leahy (D-
VT) as original cosponsors, on February 2, 2015 and referred to 
the Senate Committee on the Judiciary. On February 9, 2015, the 
Senate Committee on the Judiciary ordered S. 337 favorably 
reported. No further action has been taken.
    On February 27, 2015 the Committee on Oversight and 
Government Reform Subcommittee on Government Operations held a 
hearing entitled ``Ensuring Government Transparency Through 
FOIA Reform.'' The Subcommittee heard testimony from Ms. Miriam 
Nisbet, former Director of the Office of Government Information 
Services, Mr. Frederick Sadler, a former FOIA officer at the 
Food and Drug Administration, and Mr. Rick Blum, Director of 
the Sunshine in Government Initiative.
    During the 113th Congress, on March 13, 2013, the Committee 
on Oversight and Government Reform held a hearing on FOIA and 
related issues entitled, ``Addressing Transparency in the 
Federal Bureaucracy: Moving Toward A More Open Government.'' 
The Committee heard testimony from representatives of 
transparency watchdog groups, including Ms. Angela Canterbury, 
Director of Public Policy, Project on Government Oversight; Mr. 
Jim Harper, Director of Information Policy Studies, Cato 
Institute; Mr. Daniel Schuman, Policy Counsel, The Sunlight 
Foundation; and Ms. Celia Wexler, Senior Washington 
Representative, Center for Science and Democracy, Union of 
Concerned Scientists.
    Following this hearing, then-Chairman Issa and Ranking 
Member Cummings introduced the FOIA Oversight and 
Implementation Act of 2013, on March 15, 2013. That bill, H.R. 
1211, was ordered favorably reported by the Committee on 
Oversight and Government Reform on March 20, 2013 and passed 
the House 410-0 on February 25, 2014. In the Senate, it was 
referred to the Senate Committee on Judiciary and no further 
action was taken.
    Additionally, on June 24, 2014, Senator Leahy introduced S. 
2520 the ``FOIA Improvement Act of 2014.'' S. 2520 was ordered 
favorably reported by the Senate Committee on the Judiciary on 
November 20, 2014 and passed the Senate by unanimous consent on 
December 9, 2014. The bill was held at the desk in the House. 
No further action was taken in the three remaining days the 
House was in session in 2014.

                           Section-by-Section


Section 1. Short title

    Designates the short title of the bill, ``FOIA Oversight 
and Implementation Act of 2015,'' or the ``FOIA Act.''

Section 2. Freedom of Information Act amendments

    Amends the Freedom of Information Act (FOIA) by--
    (1) Increasing electronic accessibility by requiring 
agencies to post more information online in publicly accessible 
formats. Agencies would be required to post information 
requested three or more times online in a publicly accessible 
format, as well as other records that would contribute to 
public interest. Annual reports and the raw data of the reports 
would also be publicly accessible.
    (2) Requiring OMB, in consultation with the Attorney 
General, to create a consolidated online request portal for the 
public to submit FOIA requests and receive information about 
the status of requests.
    (3) Requiring agencies to provide an e-mail address at 
which the agency accepts FOIA requests and to post that e-mail 
address online.
    (4) Prohibiting agencies from collecting fees if they do 
not respond within 20 days, unless the agency provides a 
written notice to the requester that justifies the fees.
    (5) Requires agencies to pay litigation costs if the 
plaintiff prevails.
    (6) Limiting exemption five to 25 years after the creation 
of the record and to exclude: (i) opinions that are controlling 
interpretations of law, (ii) final reports or memoranda 
solicited and used to make policy, and (iii) guidance documents 
used to respond to the public.
    (7) Requiring agencies to identify a reasonably foreseeable 
harm that could be caused by disclosure before withholding 
information under discretionary exemptions, placing the burden 
on agencies to demonstrate why information may be withheld, 
instead of on the public to justify release.
    (8) Strengthening the Office of Government Information 
Services (OGIS) by giving it increased independence. OGIS would 
be required to report directly to Congress without interagency 
review or review by the Archivist or the Office of Management 
and Budget. OGIS would be required to review agency compliance 
with all aspects of FOIA, and report recommendations. OGIS 
would also be required to hold public meetings at least once a 
year.
    (9) Requiring agencies to report more information in their 
annual reports. Agencies would for the first time have to 
report the number of times they invoked law enforcement 
exclusions, engaged in dispute resolution, and the number of 
records made publicly available. Annual reports would need to 
be completed by March 1 of each year instead of April 1 in 
order to make information available for Sunshine Week.
    (10) Requiring the Government Accountability Office to 
catalog all uses of (b)(3) exemptions, which are FOIA 
exemptions created by other statutes. Currently, it is unknown 
how many (b)(3) exemptions exist.
    (11) Increasing responsibilities for OGIS, DOJ, and Chief 
FOIA Officers to review FOIA compliance and make 
recommendations. DOJ would be required to report more 
information about FOIA lawsuits. OGIS and Chief FOIA Officers 
would both review FOIA compliance and make recommendations to 
improve the process.
    (12) Creating a Chief FOIA Officers Council, based on the 
Chief Information Officers Council. It shall be run jointly by 
OGIS and DOJ's Office of Information Policy as co-chairs. All 
agency Chief FOIA Officers shall be members of the Council. The 
Council would be required to meet regularly to review FOIA 
compliance and discuss improvements. Records of the meetings 
would be mandated to be made publicly available, and all 
meetings would be required to be noticed in the Federal 
Register prior to the meeting. No less than once a year, the 
Council would be required to have a public meeting where 
interested persons may submit statements in writing or in 
person.
    (13) Requiring each agency to update its FOIA regulations 
within 180 days of enactment. OGIS would be required to review 
agency compliance. If agencies fail to update their regulations 
they would be required to report to Congress on their failure 
and would be subject to a review of their FOIA compliance by 
their Office of Inspector General.

Section 3. Inspector General review; adverse actions

    Section three would require Inspectors General to review 
compliance with FOIA and make recommendations, including 
recommendations for disciplinary action.
    Section three would also make the inappropriate withholding 
of information under FOIA the basis for a disciplinary action.

Section 4. No additional funds authorized

    Clarifies that no additional funds are authorized to 
implement the bill.

                       Explanation of Amendments

    Congressman Mark Meadows (R-NC) offered an amendment in the 
nature of a substitute that clarifies the Office of Government 
Information Services' authority to issue advisory opinions and 
requires agencies to accept FOIA requests by email. The Meadows 
amendment was adopted by voice vote.
    Chairman Jason Chaffetz (R-UT) offered two amendments: (1) 
an amendment to require agencies to pay for litigation fees 
when they do not substantially prevail in FOIA lawsuits, which 
will encourage greater compliance with statutory requirements 
by discouraging agencies from defending legally tenuous 
position, and (2) an amendment to restrict the use of exemption 
five by excluding three categories of information.
    The exemption five amendment creates greater transparency 
into agency decision making. The amendment does not, however, 
prevent an agency from relying upon other exemptions to 
withhold records, such as exemption one, which prohibits the 
release of properly classified information. The exemption five 
amendment limits exemption five for information which is 
integral to an agencys final policy decision, regardless of 
whether it was expressly adopted by the agency. The agency 
would not need to publicly state that the information served as 
a basis of the decision because the request for information is 
sufficient evidence to show that the information was considered 
in some way in the process of reaching the final policy 
decision. The amendment also limits the use of exemption five 
with regard to guidance used by agencies to respond to the 
public, which will allow the public greater insight into how to 
best interact with agencies.
    The exemption five amendment also limits the use of 
exemption five with regard to legal opinions that are likely 
the final interpretation of the law. On occasion, the Executive 
Branch considers legal issues of first impression which are 
unlikely to be resolved in courts.\43\ The Department of 
Justices Office of Legal Counsel (OLC), as an example, is 
responsible for providing controlling advice to the Executive 
Branch.\44\ Without judicial review, OLC's controlling advice 
is effectively ``the final word on the controlling law.''\45\ 
The exemption five amendment prohibits the use of exemption 
five to withhold from disclosure such final controlling 
interpretations.
---------------------------------------------------------------------------
    \43\Memorandum, Dept. of Justice Office of Legal Counsel, ``Best 
Practices for OLC Legal Advice and Written Opinions,'' (July 16, 2010).
    \44\Id.
    \45\Id.
---------------------------------------------------------------------------
    Both Chaffetz amendments were adopted by voice vote.
    Representative Carolyn Maloney (D-NY) offered an amendment 
to clarify that the presumption of openness language is not 
intended to lessen the protection provided by exemption 8 of 
FOIA. Representative Maloney withdrew her amendment.

                        Committee Consideration

    On March 25, 2015 the Committee met in open session and 
ordered reported favorably the bill, H.R. 653, as amended by 
voice vote, a quorum being present.

                            Roll Call Votes

    There were no recorded votes during consideration of H.R. 
653.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill provides for more proactive disclosure of records, 
encourages enhanced agency compliance, and improves the FOIA 
process for both agencies and requesters. Legislative branch 
employees and their families, to the extent that they are 
otherwise eligible for the benefits provided by this 
legislation, have equal access to its benefits.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report. The objective of the bill is FOIA Oversight and 
implementation of certain reforms.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The FOIA Oversight and Implementation Act will require 
agencies to promulgate new regulations on procedures for 
processing requests under FOIA. Agencies are already required 
to have regulations on FOIA, but this Act will ensure these 
regulations are current. Agencies will specifically have to 
create new regulations on interactions with the Office of 
Government Information Services, and procedures used for 
dispute resolution services.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

H.R. 653--FOIA Act

    Summary: H.R. 653 would amend the Freedom of Information 
Act (FOIA). FOIA generally allows any person to obtain records 
from federal agencies. Specifically, the legislation would: 
establish a single website for making FOIA requests; direct 
agencies to make records available in an electronic format; 
require courts to pay some attorney fees and other litigation 
costs related to FOIA disputes; reduce the number of exemptions 
agencies can use to withhold information from the public; 
clarify procedures for handling frequently requested documents 
and charging fees; establish the Chief FOIA Officers Council; 
and require agencies to prepare additional reports for the 
Congress.
    CEO estimates that implementing H.R. 653 would cost $22 
million over the 2016-2020 period, assuming appropriation of 
the necessary amounts. The bill would affect direct spending by 
agencies not funded through annual appropriations; therefore, 
pay as-you-go procedures apply. CEO estimates, however, that 
any net increase in spending by those agencies would not be 
significant. Enacting the bill would not affect revenues.
    H.R. 653 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of H.R. 653 is shown in the following table. 
The costs of this legislation fall within all budget functions 
that contain spending for salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2016     2017     2018     2019     2020   2016-2020
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION
 
Administrative Provisions:
    Estimated Authorization Level.......................        2        4        4        5        5        20
    Estimated Outlays...................................        1        3        4        5        5        20
Attorney Fees and Other Litigation Costs:
    Estimated Authorization Level.......................        *        *        *        *        *         2
    Estimated Outlays...................................        *        *        *        *        *         2
    Total Changes:
        Estimated Authorization Level...................        2        4        4        5        5        22
        Estimated Outlays...............................        2        4        4        5        5        22
----------------------------------------------------------------------------------------------------------------
Note: * less than $500,000.

    Basis of the estimate: For this estimate, CBO assumes that 
the bill will be enacted late in fiscal year 2015, that the 
necessary amounts will be appropriated for each year, and that 
spending will follow historical patterns for FOIA activities.
    Enacted in 1966, FOIA was designed to enable anyone to 
request, without explanation or justification, copies of 
existing, identifiable, and unpublished records from the 
executive branch. The Office of Management and Budget (OMB) 
issues guidelines to agencies on what fees to charge for 
providing information, while the Department of Justice (D0J) 
oversees agency compliance with FOIA. In 2013, federal agencies 
received more than 730,000 FOIA requests. In addition, DOJ 
reports that in fiscal year 2013, agencies employed about 4,200 
full-time staff to fulfill FOIA requests and spent $446 million 
on related activities.

Administrative provisions

    H.R. 653 would establish a Chief FOIA Officers Council to 
review and improve the FOIA process and to convene an annual 
FOIA meeting. In addition, the legislation would impose 
additional reporting and administrative requirements on 
agencies. Thus, CBO expects that the workload of most agencies 
would increase under the bill. Based on the costs of similar 
councils and related administrative requirements as well as a 
review of cost information in the annual reports submitted by 
15 major agencies over the past five 2 years, CBO estimates 
that implementing H.R. 653 would eventually cost $5 million 
annually--a 1 percent increase in the govemmentwide cost of 
administering FOIA. We expect that most federal agencies, 
however, would face additional costs of significantly less than 
$0.5 million per year.

Attorney fees and other litigation costs

    H.R. 653 would require courts to award attorney fees and 
related litigation costs to plaintiffs in all FOIA cases where 
the plaintiff has ``substantially prevailed.'' Under current 
law, the courts have more discretion in awarding attorney fees 
and related costs.
    CBO reviewed FOIA cases over the 2010-2014 period In those 
years agencies spent between a few hundred dollars to $1.5 
million per year on awards for plaintiffs' attorney fees and 
related costs. In addition, on average there were less than 20 
cases annually where attorney fees were not paid by the 
government when the plaintiff had prevailed on any part of the 
court's decision. Based on that information, CBO estimates that 
under H.R. 653 additional attorney fees and related costs would 
total about $300,000 per year, roughly $2 million over the 
2016-2020 period.
    Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. Enacting H.R. 653 could affect net direct spending by 
some agencies (such as the Tennessee Valley Authority) because 
their operating costs are covered by receipts from the sale of 
goods, fees, and other collections. Therefore, pay-as-you-go 
procedures apply. Because most of those agencies can make 
adjustments to the amounts collected, CBO estimates that any 
net changes in direct spending by those agencies would not be 
significant. Enacting the bill would not affect revenues.
    Intergovernmental and private-sector impact: H.R. 653 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO estimate: On February 17, 2015, CBO 
transmitted a cost estimate for S. 337, the FOIA Improvement 
Act of 2015, as ordered reported by the Senate Committee on the 
Judiciary on February 9, 2015. H.R. 653 would require courts to 
order agencies to pay attorney and other litigation costs in 
FOIA disputes when the plaintiff substantially prevails, while 
the Senate bill would not That difference is reflected in the 
cost estimates.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Jon Sperl; 
Impact on Private Sector: John Rodier.
    Estimate approved by: Theresa Gullo, Assistant Director for 
Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) 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, and 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) Each agency shall separately state and currently publish 
in the Federal Register for the guidance of the public--
          (A) descriptions of its central and field 
        organization and the established places at which, the 
        employees (and in the case of a uniformed service, the 
        members) from whom, and the methods whereby, the public 
        may obtain information, make submittals or requests, or 
        obtain decisions;
          (B) statements of the general course and method by 
        which its functions are channeled and determined, 
        including the nature and requirements of all formal and 
        informal procedures available;
          (C) rules of procedure, descriptions of forms 
        available or the places at which forms may be obtained, 
        and instructions as to the scope and contents of all 
        papers, reports, or examinations;
          (D) substantive rules of general applicability 
        adopted as authorized by law, and statements of general 
        policy or interpretations of general applicability 
        formulated and adopted by the agency; and
          (E) each amendment, revision, or repeal of the 
        foregoing.
Except to the extent that a person has actual and timely notice 
of the terms thereof, a person may not in any manner be 
required to resort to, or be adversely affected by, a matter 
required to be published in the Federal Register and not so 
published. For the purpose of this paragraph, matter reasonably 
available to the class of persons affected thereby is deemed 
published in the Federal Register when incorporated by 
reference therein with the approval of the Director of the 
Federal Register.
  (2) Each agency, in accordance with published rules, shall 
make available [for public inspection and copying] in an 
electronic, publicly accessible format--
          (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;
          (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);]
          (E) copies of all releasable records, regardless of 
        form or format, that have been requested three or more 
        times under paragraph (3); and
          (F) a general index of the records referred to under 
        subparagraphs (D) and (E);
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, including 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, staff manual, instruction, or copies of records 
referred to in [subparagraph (D)] subparagraphs (D) and (E). 
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, unless including that indication would 
harm an interest protected by the exemption in subsection (b) 
under which the deletion is made. 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] 
in an electronic, publicly accessible format 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)] subparagraph 
(F) available by computer telecommunications 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, and except as 
provided in subparagraph (E), each agency, upon any request for 
records which (i) reasonably describes such records and (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, except when such 
efforts would significantly interfere with the operation of the 
agency's automated information system.
  (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.
  (E) An agency, or part of an agency, that is an element of 
the intelligence community (as that term is defined in section 
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) 
shall not make any record available under this paragraph to--
          (i) any government entity, other than a State, 
        territory, commonwealth, or district of the United 
        States, or any subdivision thereof; or
          (ii) a representative of a government entity 
        described in clause (i).
  (4)(A)(i) In order to carry out the provisions of this 
section, each agency shall promulgate regulations, pursuant to 
notice and receipt of public comment, specifying the schedule 
of fees applicable to the processing of requests under this 
section and establishing procedures and guidelines for 
determining when such fees should be waived or reduced. Such 
schedule shall conform to the guidelines which shall be 
promulgated, pursuant to notice and receipt of public comment, 
by [the Director of the Office of Management and Budget] the 
Director of the Office of Management and Budget, in 
consultation with the Director of the Office of Government 
Information Services, and which shall provide for a uniform 
schedule of fees for all agencies.
  (ii) Such agency regulations shall provide that--
          (I) fees shall be limited to reasonable standard 
        charges for document search, duplication, and review, 
        when records are requested for commercial use;
          (II) fees shall be limited to reasonable standard 
        charges for document duplication when records are not 
        sought for commercial use and the request is made by an 
        educational or noncommercial scientific institution, 
        whose purpose is scholarly or scientific research; or a 
        representative of the news media; and
          (III) for any request not described in (I) or (II), 
        fees shall be limited to reasonable standard charges 
        for document search and duplication.
In this clause, the term ``a representative of the news media'' 
means any person or entity that gathers information of 
potential interest to a segment of the public, uses its 
editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. In this clause, 
the term ``news'' means information that is about current 
events or that would be of current interest to the public. 
Examples of news-media entities are television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators 
of ``news'') who make their products available for purchase by 
or subscription by or free distribution to the general public. 
These examples are not all-inclusive. Moreover, as methods of 
news delivery evolve (for example, the adoption of the 
electronic dissemination of newspapers through 
telecommunications services), such alternative media shall be 
considered to be news-media entities. A freelance journalist 
shall be regarded as working for a news-media entity if the 
journalist can demonstrate a solid basis for expecting 
publication through that entity, whether or not the journalist 
is actually employed by the entity. A publication contract 
would present a solid basis for such an expectation; the 
Government may also consider the past publication record of the 
requester in making such a determination.
  (iii) Documents shall be furnished without any charge or at a 
charge reduced below the fees established under clause (ii) if 
disclosure of the information is in the public interest because 
it is likely to contribute significantly to public 
understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the 
requester.
  (iv) Fee schedules shall provide for the recovery of only the 
direct costs of search, duplication, or review. Review costs 
shall include only the direct costs incurred during the initial 
examination of a document for the purposes of determining 
whether the documents must be disclosed under this section and 
for the purposes of withholding any portions exempt from 
disclosure under this section. Review costs may not include any 
costs incurred in resolving issues of law or policy that may be 
raised in the course of processing a request under this 
section. No fee may be charged by any agency under this 
section--
          (I) if the costs of routine collection and processing 
        of the fee are likely to equal or exceed the amount of 
        the fee; or
          (II) for any request described in clause (ii) (II) or 
        (III) of this subparagraph for the first two hours of 
        search time or for the first one hundred pages of 
        duplication.
  (v) No agency may require advance payment of any fee unless 
the requester has previously failed to pay fees in a timely 
fashion, or the agency has determined that the fee will exceed 
$250.
  (vi) Nothing in this subparagraph shall supersede fees 
chargeable under a statute specifically providing for setting 
the level of fees for particular types of records.
  (vii) In any action by a requester regarding the waiver of 
fees under this section, the court shall determine the matter 
de novo: Provided, That the court's review of the matter shall 
be limited to the record before the agency.
  (viii) An agency shall not assess search fees (or in the case 
of a requester described under clause (ii)(II), duplication 
fees) under this subparagraph if the agency fails to comply 
with any time limit under paragraph (6), if no unusual or 
exceptional circumstances (as those terms are defined for 
purposes of paragraphs (6)(B) and (C), respectively) apply to 
the processing of the request. Any agency that does assess 
search or duplication fees after failing to comply with a time 
limit under paragraph (6) shall provide written notice to the 
requester of the circumstance that justifies the fees. If an 
agency fails to provide such notice, the agency may not assess 
search or duplication fees.
  (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).
  (C) Notwithstanding any other provision of law, the defendant 
shall serve an answer or otherwise plead to any complaint made 
under this subsection within thirty days after service upon the 
defendant of the pleading in which such complaint is made, 
unless the court otherwise directs for good cause shown.
  (E)(i) [The court may] The court shall assess against the 
United States reasonable attorney fees and other litigation 
costs reasonably incurred in any case under this section in 
which the complainant has substantially prevailed.
  (ii) For purposes of this subparagraph, a complainant has 
substantially prevailed if the complainant has obtained relief 
through either--
          (I) a judicial order, or an enforceable written 
        agreement or consent decree; or
          (II) a voluntary or unilateral change in position by 
        the agency, if the complainant's claim is not 
        insubstantial.
  (F)(i) Whenever the court orders the production of any agency 
records improperly withheld from the complainant and assesses 
against the United States reasonable attorney fees and other 
litigation costs, and the court additionally issues a written 
finding that the circumstances surrounding the withholding 
raise questions whether agency personnel acted arbitrarily or 
capriciously with respect to the withholding, the Special 
Counsel shall promptly initiate a proceeding to determine 
whether disciplinary action is warranted against the officer or 
employee who was primarily responsible for the withholding. The 
Special Counsel, after investigation and consideration of the 
evidence submitted, shall submit his findings and 
recommendations to the administrative authority of the agency 
concerned and shall send copies of the findings and 
recommendations to the officer or employee or his 
representative. The administrative authority shall take the 
corrective action that the Special Counsel recommends.
  (ii) The Attorney General shall--
          (I) notify the Special Counsel of each civil action 
        described under the first sentence of clause (i); and
          (II) annually submit a report to Congress on the 
        number of such civil actions in the preceding year.
  (iii) The Special Counsel shall annually submit a report to 
Congress on the actions taken by the Special Counsel under 
clause (i).
  (G) In the event of noncompliance with the order of the 
court, the district court may punish for contempt the 
responsible employee, and in the case of a uniformed service, 
the responsible member.
  (5) Each agency having more than one member shall maintain 
and make available for public inspection a record of the final 
votes of each member in every agency proceeding.
  (6)(A) Each agency, upon any request for records made under 
paragraph (1), (2), or (3) of this subsection, shall--
          (i) determine within 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] 
        of--
                  (I) such determination and the reasons 
                therefor;
                  (II) the right of such person to seek 
                assistance from the agency FOIA Public Liaison; 
                and
                  (III) the right of such person to appeal to 
                the head of the agency any adverse 
                determination, within a period determined by 
                the agency that is not less than 90 days after 
                the receipt of such 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[.] and the right of 
        such person to seek dispute resolution services from 
        the agency FOIA Public Liaison or the Office of 
        Government Information Services.
The 20-day period under clause (i) shall commence on the date 
on which the request is first received by the appropriate 
component of the agency, but in any event not later than ten 
days after the request is first received by any component of 
the agency that is designated in the agency's regulations under 
this section to receive requests under this section. The 20-day 
period shall not be tolled by the agency except--
          (I) that the agency may make one request to the 
        requester for information and toll the 20-day period 
        while it is awaiting such information that it has 
        reasonably requested from the requester under this 
        section; or
          (II) if necessary to clarify with the requester 
        issues regarding fee assessment. In either case, the 
        agency's receipt of the requester's response to the 
        agency's request for information or clarification ends 
        the tolling period.
  (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 considered as a factor in 
determining whether exceptional circumstances exist for 
purposes of subparagraph (C). To aid the requester, each agency 
shall make available its FOIA Public Liaison, who shall assist 
in the resolution of any disputes between the requester and the 
agency.
  (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.
  (iv) Each agency may promulgate regulations, pursuant to 
notice and receipt of public comment, providing for the 
aggregation of certain requests by the same requestor, or by a 
group of requestors acting in concert, if the agency reasonably 
believes that such requests actually constitute a single 
request, which would otherwise satisfy the unusual 
circumstances specified in this subparagraph, and the requests 
involve clearly related matters. Multiple requests involving 
unrelated matters shall not be aggregated.
  (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, unless the agency demonstrates reasonable 
progress in reducing its backlog of pending requests.
  (iii) Refusal by a person to reasonably modify the scope of a 
request or arrange an alternative time frame for processing a 
request (or a modified request) under clause (ii) after being 
given an opportunity to do so by the agency to whom the person 
made the request shall be considered as a factor in determining 
whether exceptional circumstances exist for purposes of this 
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.
  (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 clause (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 in a 
timely manner 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.
  (vi) A demonstration of a compelling need by a person making 
a request for expedited processing shall be made by a statement 
certified by such person to be true and correct to the best of 
such person's knowledge and belief.
  (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 the exemption in subsection (b) pursuant to which 
the denial is made.
  (7) Each agency shall--
          (A) establish a system to assign an individualized 
        tracking number for each request received [that will 
        take longer than ten days to process] and provide to 
        each person making a request the tracking number 
        assigned to the request; and
          (B) establish a telephone line or Internet service 
        that provides automated information about the status of 
        a request to the person making the request using the 
        assigned tracking number, including--
                  (i) the date on which the agency originally 
                received the request; and
                  (ii) an estimated date on which the agency 
                will complete action on the request.
          (8) Disclosure of information for increased public 
        understanding of the government.--Each agency shall--
                  (A) review the records of such agency to 
                determine whether the release of the records 
                would be in the public interest because it is 
                likely to contribute significantly to public 
                understanding of the operations or activities 
                of the Government;
                  (B) for records determined to be in the 
                public interest under subparagraph (A), 
                reasonably segregate and redact any information 
                exempted from disclosure under subsection (b); 
                and
                  (C) make available in an electronic, publicly 
                accessible format, any records identified in 
                subparagraph (A), as modified pursuant to 
                subparagraph (B).
          (9) Increased disclosure of information.--Each agency 
        shall--
                  (A) make information public to the greatest 
                extent possible through modern technology to--
                          (i) inform the public of the 
                        operations and activities of the 
                        Government; and
                          (ii) ensure timely disclosure of 
                        information; and
                  (B) establish procedures for identifying 
                categories of records that may be disclosed 
                regularly and additional records of interest to 
                the public that are appropriate for public 
                disclosure, and for posting such records in an 
                electronic, publicly accessible format.
  (b) This section does not apply to matters that are--
          (1)(A) specifically authorized under criteria 
        established by an Executive order to be kept secret in 
        the interest of national defense or foreign policy and 
        (B) are in fact properly classified pursuant to such 
        Executive order;
          (2) related solely to the internal personnel rules 
        and practices of an agency;
          (3) specifically exempted from disclosure by statute 
        (other than section 552b of this title), if that 
        statute--
                  (A)(i) requires that the matters be withheld 
                from the public in such a manner as to leave no 
                discretion on the issue; or
                  (ii) establishes particular criteria for 
                withholding or refers to particular types of 
                matters to be withheld; and
                  (B) if enacted after the date of enactment of 
                the OPEN FOIA Act of 2009, specifically cites 
                to this paragraph.
          (4) trade secrets and commercial or financial 
        information obtained from a person and privileged or 
        confidential;
          (5) inter-agency or intra-agency memorandums or 
        letters which would not be available by law to a party 
        other than an agency in litigation with the agency, 
        excluding--
                  (A) opinions that are controlling 
                interpretations of law;
                  (B) final reports or memoranda created by an 
                entity other than the agency, including other 
                Governmental entities, at the request of the 
                agency and used to make a final policy 
                decision;
                  (C) guidance documents used by the agency to 
                respond to the public; and
                  (D) records or information created 25 years 
                or more before the date on which a request is 
                made under subsection (a)(3);
          (6) personnel and medical files and similar files the 
        disclosure of which would constitute a clearly 
        unwarranted invasion of personal privacy;
          (7) records or information compiled for law 
        enforcement purposes, but only to the extent that the 
        production of such law enforcement records or 
        information (A) could reasonably be expected to 
        interfere with enforcement proceedings, (B) would 
        deprive a person of a right to a fair trial or an 
        impartial adjudication, (C) could reasonably be 
        expected to constitute an unwarranted invasion of 
        personal privacy, (D) could reasonably be expected to 
        disclose the identity of a confidential source, 
        including a State, local, or foreign agency or 
        authority or any private institution which furnished 
        information on a confidential basis, and, in the case 
        of a record or information compiled by criminal law 
        enforcement authority in the course of a criminal 
        investigation or by an agency conducting a lawful 
        national security intelligence investigation, 
        information furnished by a confidential source, (E) 
        would disclose techniques and procedures for law 
        enforcement investigations or prosecutions, or would 
        disclose guidelines for law enforcement investigations 
        or prosecutions if such disclosure could reasonably be 
        expected to risk circumvention of the law, or (F) could 
        reasonably be expected to endanger the life or physical 
        safety of any individual;
          (8) contained in or related to examination, 
        operating, or condition reports prepared by, on behalf 
        of, or for the use of an agency responsible for the 
        regulation or supervision of financial institutions; or
          (9) geological and geophysical information and data, 
        including maps, concerning wells.
 An agency may not withhold information under this subsection 
unless such agency reasonably foresees that disclosure would 
cause specific identifiable harm to an interest protected by an 
exemption, or if disclosure is prohibited by law. 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, and the exemption under which the deletion 
is made, shall be indicated on the released portion of the 
record, unless including that indication would harm an interest 
protected by the exemption in this subsection under which the 
deletion is made. If technically feasible, the amount of the 
information deleted, and the exemption under which the deletion 
is made, shall be indicated at the place in the record where 
such deletion is made.
  (c)(1) Whenever a request is made which involves access to 
records described in subsection (b)(7)(A) and--
          (A) the investigation or proceeding involves a 
        possible violation of criminal law; and
          (B) there is reason to believe that (i) the subject 
        of the investigation or proceeding is not aware of its 
        pendency, and (ii) disclosure of the existence of the 
        records could reasonably be expected to interfere with 
        enforcement proceedings,
the agency may, during only such time as that circumstance 
continues, treat the records as not subject to the requirements 
of this section.
  (2) Whenever informant records maintained by a criminal law 
enforcement agency under an informant's name or personal 
identifier are requested by a third party according to the 
informant's name or personal identifier, the agency may treat 
the records as not subject to the requirements of this section 
unless the informant's status as an informant has been 
officially confirmed.
  (3) Whenever a request is made which involves access to 
records maintained by the Federal Bureau of Investigation 
pertaining to foreign intelligence or counterintelligence, or 
international terrorism, and the existence of the records is 
classified information as provided in subsection (b)(1), the 
Bureau may, as long as the existence of the records remains 
classified information, treat the records as not subject to the 
requirements of this section.
  (d) This section does not authorize withholding of 
information or limit the availability of records to the public, 
except as specifically stated in this section. This section is 
not authority to withhold information from Congress.
  (e)(1) On or before February 1 of each year, each agency 
shall submit to the Attorney General of the United States and 
to the Director of the Office of Government Information 
Services 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), the number of 
        occasions on which each statute was relied upon, 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 and average 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, based on the date 
        on which the requests were received by the agency;
          (F) the average number of days for the agency to 
        respond to a request beginning on the date on which the 
        request was received by the agency, the median number 
        of days for the agency to respond to such requests, and 
        the range in number of days for the agency to respond 
        to such requests;
          (G) based on the number of business days that have 
        elapsed since each request was originally received by 
        the agency--
                  (i) the number of requests for records to 
                which the agency has responded with a 
                determination within a period up to and 
                including 20 days, and in 20-day increments up 
                to and including 200 days;
                  (ii) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 200 
                days and less than 301 days;
                  (iii) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 300 
                days and less than 401 days; and
                  (iv) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 400 
                days;
          (H) the average number of days for the agency to 
        provide the granted information beginning on the date 
        on which the request was originally filed, the median 
        number of days for the agency to provide the granted 
        information, and the range in number of days for the 
        agency to provide the granted information;
          (I) the median and average number of days for the 
        agency to respond to administrative appeals based on 
        the date on which the appeals originally were received 
        by the agency, the highest number of business days 
        taken by the agency to respond to an administrative 
        appeal, and the lowest number of business days taken by 
        the agency to respond to an administrative appeal;
          (J) data on the 10 active requests with the earliest 
        filing dates pending at each agency, including the 
        amount of time that has elapsed since each request was 
        originally received by the agency;
          (K) data on the 10 active administrative appeals with 
        the earliest filing dates pending before the agency as 
        of September 30 of the preceding year, including the 
        number of business days that have elapsed since the 
        requests were originally received by the agency;
          (L) the number of expedited review requests that are 
        granted and denied, the average and median number of 
        days for adjudicating expedited review requests, and 
        the number adjudicated within the required 10 days;
          (M) the number of fee waiver requests that are 
        granted and denied, and the average and median number 
        of days for adjudicating fee waiver determinations;
          (N) the total amount of fees collected by the agency 
        for processing requests[; and];
          (O) 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[.];
          (P) the number of times the agency invoked a law 
        enforcement exclusion under subsection (c);
          (Q) the number of times the agency engaged in dispute 
        resolution with the assistance of the Office of 
        Government Information Services or the FOIA Public 
        Liaison;
          (R) the number of records that were made available in 
        an electronic, publicly accessible format under 
        subsection (a)(2); and
          (S) the number of times the agency assessed a search 
        or duplication fee under subsection (a)(4)(A) and did 
        not comply with a time limit under subsection (a)(6).
  (2) Information in each report submitted under paragraph (1) 
shall be expressed in terms of each principal component of the 
agency and for the agency overall.
  [(3) Each agency shall make each such report available to the 
public including by computer telecommunications, or if computer 
telecommunications means have not been established by the 
agency, by other electronic means. In addition, each agency 
shall make the raw statistical data used in its reports 
available electronically to the public upon request.]
          (3) Electronic accessibility of reports.--Each agency 
        shall make each such report available in an electronic, 
        publicly accessible format. In addition, each agency 
        shall make the raw statistical data used in its reports 
        available in a timely manner in an electronic, publicly 
        accessible format. Such data shall be--
                  (A) made available without charge, license, 
                or registration requirement;
                  (B) capable of being searched and aggregated; 
                and
                  (C) permitted to be downloaded and downloaded 
                in bulk.
  (4) The Attorney General of the United States shall make each 
report which has been made available by electronic means 
available at a single electronic access point. The Attorney 
General of the United States shall notify the Chairman and 
ranking minority member of the [Committee on Government Reform 
and Oversight] Committee on Oversight and Government Reform of 
the House of Representatives and the Chairman and ranking 
minority member of the Committees on [Governmental Affairs] 
Homeland Security and Governmental Affairs and the Judiciary of 
the Senate, no later than [April 1] March 1 of the year in 
which each such report is issued, that such reports are 
available by electronic means.
  (5) The Attorney General of the United States, in 
consultation with the Director of the Office of Management and 
Budget and the Director of the Office of Government Information 
Services, 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.
  [(6) The Attorney General of the United States 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.]
          (6) Attorney general foia report.--
                  (A) In general.--The Attorney General of the 
                United States shall submit to Congress and the 
                President an annual report on or before March 1 
                of each calendar year which shall include for 
                the prior calendar year--
                          (i) a listing of the number of cases 
                        arising under this section;
                          (ii) each subsection under this 
                        section, each paragraph of the 
                        subsection, and any exemption, if 
                        applicable, 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); and
                          (iii) a description of the efforts 
                        undertaken by the Department of Justice 
                        to encourage agency compliance with 
                        this section.
                  (B) Electronic availability.--The Attorney 
                General of the United States--
                          (i) shall make each report described 
                        under subparagraph (A) available in an 
                        electronic, publicly accessible format; 
                        and
                          (ii) shall make the raw statistical 
                        data used in each report available in 
                        an electronic, publicly accessible 
                        format, which shall be--
                                  (I) made available without 
                                charge, license, or 
                                registration requirement;
                                  (II) capable of being 
                                searched and aggregated; and
                                  (III) permitted to be 
                                downloaded, including 
                                downloaded in bulk.
  (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--
                  (A) any information that would be an agency 
                record subject to the requirements of this 
                section when maintained by an agency in any 
                format, including an electronic format; and
                  (B) any information described under 
                subparagraph (A) that is maintained for an 
                agency by an entity under Government contract, 
                for the purposes of records management.
  (g) The head of each agency shall prepare and [make publicly 
available upon request] make available in an electronic, 
publicly accessible format, reference material or a guide for 
requesting records or information from the agency, subject to 
the exemptions in subsection (b), 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.
  [(h)(1) There is established the Office of Government 
Information Services within the National Archives and Records 
Administration.
  [(2) The Office of Government Information Services shall--
          [(A) review policies and procedures of administrative 
        agencies under this section;
          [(B) review compliance with this section by 
        administrative agencies; and
          [(C) recommend policy changes to Congress and the 
        President to improve the administration of this 
        section.
  [(3) The Office of Government Information Services shall 
offer mediation services to resolve disputes between persons 
making requests under this section and administrative agencies 
as a non-exclusive alternative to litigation and, at the 
discretion of the Office, may issue advisory opinions if 
mediation has not resolved the dispute.
  [(i) The Government Accountability Office shall conduct 
audits of administrative agencies on the implementation of this 
section and issue reports detailing the results of such audits.
  [(j) Each agency shall designate a Chief FOIA Officer who 
shall be a senior official of such agency (at the Assistant 
Secretary or equivalent level).
  [(k) The Chief FOIA Officer of each agency shall, subject to 
the authority of the head of the agency--
          [(1) have agency-wide responsibility for efficient 
        and appropriate compliance with this section;
          [(2) monitor implementation of this section 
        throughout the agency and keep the head of the agency, 
        the chief legal officer of the agency, and the Attorney 
        General appropriately informed of the agency's 
        performance in implementing this section;
          [(3) recommend to the head of the agency such 
        adjustments to agency practices, policies, personnel, 
        and funding as may be necessary to improve its 
        implementation of this section;
          [(4) review and report to the Attorney General, 
        through the head of the agency, at such times and in 
        such formats as the Attorney General may direct, on the 
        agency's performance in implementing this section;
          [(5) facilitate public understanding of the purposes 
        of the statutory exemptions of this section by 
        including concise descriptions of the exemptions in 
        both the agency's handbook issued under subsection (g), 
        and the agency's annual report on this section, and by 
        providing an overview, where appropriate, of certain 
        general categories of agency records to which those 
        exemptions apply; and
          [(6) designate one or more FOIA Public Liaisons.]
  (h) The Office of Government Information Services.--
          (1) Establishment.--There is established the Office 
        of Government Information Services within the National 
        Archives and Records Administration. The head of the 
        Office is the Director of the Office of Government 
        Information Services.
          (2) Review of foia policy, procedure, and 
        compliance.--The Office of Government Information 
        Services shall--
                  (A) review policies and procedures of 
                agencies under this section;
                  (B) review compliance with this section by 
                agencies;
                  (C) identify methods that improve compliance 
                under this section that may include--
                          (i) the timely processing of requests 
                        submitted to agencies under this 
                        section;
                          (ii) the system for assessing fees 
                        and fee waivers under this section; and
                          (iii) the use of any exemption under 
                        subsection (b); and
                  (D) review and provide guidance to agencies 
                on the use of fees and fee waivers.
          (3) Mediation services.--The Office of Government 
        Information Services shall offer mediation services to 
        resolve disputes between persons making requests under 
        this section and agencies as a non-exclusive 
        alternative to litigation and may issue advisory 
        opinions at the discretion of the Office or upon 
        request of any party to such mediation services.
          (4) Submission of report.--
                  (A) In general.--The Office of Government 
                Information Services shall not less than 
                annually submit to the committees described in 
                subparagraph (C) and the President a report on 
                the findings from the information reviewed and 
                identified under paragraph (2), a summary of 
                the Office's activities under paragraph (3) 
                (including any advisory opinions issued), and 
                legislative and regulatory recommendations to 
                improve the administration of this section.
                  (B) Electronic availability of reports.--The 
                Office shall make available any report 
                submitted under paragraph (A) in a publicly 
                accessible format.
                  (C) Congressional submission of report.--The 
                committees described in this subparagraph are 
                the following:
                          (i) The Committee on Oversight and 
                        Government Reform of the House of 
                        Representatives.
                          (ii) The Committees on Homeland 
                        Security and Governmental Affairs and 
                        the Judiciary of the Senate.
                  (D) Direct submission of reports and 
                testimony.--Any report submitted under 
                paragraph (A), any testimony, or any other 
                communication to Congress shall be submitted 
                directly to the committees and the President, 
                without any requirement that any officer or 
                employee outside of the Office of Government 
                Information Services, including the Archivist 
                of the United States and the Director of the 
                Office of Management and Budget, review such 
                report, testimony, or other communication.
          (5) Submission of additional information.--The 
        Director of the Office of Government Information 
        Services may submit additional information to Congress 
        and the President that the Director determines to be 
        appropriate.
          (6) Annual meeting required.--Not less than once a 
        year, the Office of Government Information Services 
        shall hold a meeting that is open to the public on the 
        review and reports by the Office and permit interested 
        persons to appear and present oral or written 
        statements at such meeting.
  (i) Government Accountability Office.--The Government 
Accountability Office shall--
          (1) conduct audits of administrative agencies on 
        compliance with and implementation of the requirements 
        of this section and issue reports detailing the results 
        of such audits;
          (2) catalog the number of exemptions under subsection 
        (b)(3) and agency use of such exemptions; and
          (3) review and prepare a report on the processing of 
        requests by agencies for information pertaining to an 
        entity that has received assistance under title I of 
        the Emergency Economic Stabilization Act of 2008 (12 
        U.S.C. 5211 et seq.) during any period in which the 
        Government owns or owned more than 50 percent of the 
        stock of such entity.
  (j) Chief FOIA Officer.--
          (1) Designation.--Each agency shall designate a Chief 
        FOIA Officer who shall be a senior official of such 
        agency (at the Assistant Secretary or equivalent 
        level).
          (2) Duties.--The Chief FOIA Officer of each agency 
        shall, subject to the authority of the head of the 
        agency--
                  (A) have agency-wide responsibility for 
                efficient and appropriate compliance with this 
                section;
                  (B) monitor implementation of this section 
                throughout the agency and keep the head of the 
                agency, the chief legal officer of the agency, 
                and the Attorney General appropriately informed 
                of the agency's performance in implementing 
                this section;
                  (C) recommend to the head of the agency such 
                adjustments to agency practices, policies, 
                personnel, and funding as may be necessary to 
                improve its implementation of this section;
                  (D) review and report to the Attorney 
                General, through the head of the agency, at 
                such times and in such formats as the Attorney 
                General may direct, on the agency's performance 
                in implementing this section;
                  (E) facilitate public understanding of the 
                purposes of the statutory exemptions of this 
                section by including concise descriptions of 
                the exemptions in both the agency's handbook 
                issued under subsection (g), and the agency's 
                annual report on this section, and by providing 
                an overview, where appropriate, of certain 
                general categories of agency records to which 
                those exemptions apply;
                  (F) serve as the primary agency liaison with 
                the Office of Government Information Services 
                and the Office of Information Policy; and
                  (G) designate one or more FOIA Public 
                Liaisons.
          (3) Compliance review required.--The Chief FOIA 
        Officer of each agency shall--
                  (A) review, not less than annually, all 
                aspects of the agency's administration of this 
                section to ensure compliance with the 
                requirements of this section, including--
                          (i) agency regulations;
                          (ii) disclosure of records required 
                        under paragraphs (2), (8), and (9) of 
                        subsection (a);
                          (iii) assessment of fees and 
                        determination of eligibility for fee 
                        waivers;
                          (iv) the timely processing of 
                        requests for information under this 
                        section;
                          (v) the use of exemptions under 
                        subsection (b); and
                          (vi) dispute resolution services with 
                        the assistance of the Office of 
                        Government Information Services or the 
                        FOIA Public Liaison; and
                  (B) make recommendations as necessary to 
                improve agency practices and compliance with 
                this section.
  (k) Chief FOIA Officers Council.--
          (1) Establishment.--There is established in the 
        executive branch the Chief FOIA Officers Council (in 
        this subsection, referred to as the ``Council'').
          (2) Members.--The Council shall consist of the 
        following members:
                  (A) The Deputy Director for Management of the 
                Office of Management and Budget.
                  (B) The Director of the Office of Information 
                Policy at the Department of Justice.
                  (C) The Director of the Office of Government 
                Information Services at the National Archives 
                and Records Administration.
                  (D) The Chief FOIA Officer of each agency.
                  (E) Any other officer or employee of the 
                United States as designated by the Co-Chairs.
          (3) Co-chairs.--The Director of the Office of 
        Information Policy at the Department of Justice and the 
        Director of the Office of Government Information 
        Services at the National Archives and Records 
        Administration shall be the Co-Chairs of the Council.
          (4) Support services.--The Administrator of General 
        Services shall provide administrative and other support 
        for the Council.
          (5) Consultation.--In performing its duties, the 
        Council shall consult regularly with members of the 
        public who make requests under this section.
          (6) Duties.--The duties of the Council include the 
        following:
                  (A) Develop recommendations for increasing 
                compliance and efficiency under this section.
                  (B) Disseminate information about agency 
                experiences, ideas, best practices, and 
                innovative approaches related to this section.
                  (C) Identify, develop, and coordinate 
                initiatives to increase transparency and 
                compliance with this section.
                  (D) Promote the development and use of common 
                performance measures for agency compliance with 
                this section.
          (7) Meetings.--
                  (A) Regular meetings.--The Council shall meet 
                regularly and such meetings shall be open to 
                the public unless the Council determines to 
                close the meeting for reasons of national 
                security or to discuss information exempt under 
                subsection (b).
                  (B) Annual meetings.--Not less than once a 
                year, the Council shall hold a meeting that 
                shall be open to the public and permit 
                interested persons to appear and present oral 
                and written statements to the Council.
                  (C) Notice.--Not later than 10 business days 
                before a meeting of the Council, notice of such 
                meeting shall be published in the Federal 
                Register.
                  (D) Public availability of council records.--
                Except as provided in subsection (b), the 
                records, reports, transcripts, minutes, 
                appendixes, working papers, drafts, studies, 
                agenda, or other documents that were made 
                available to or prepared for or by the Council 
                shall be made publicly available.
                  (E) Minutes.--Detailed minutes of each 
                meeting of the Council shall be kept and shall 
                contain a record of the persons present, a 
                complete and accurate description of matters 
                discussed and conclusions reached, and copies 
                of all reports received, issued, or approved by 
                the Council.
  (l) FOIA Public Liaisons shall report to the agency Chief 
FOIA Officer and shall serve as supervisory officials to whom a 
requester under this section can raise concerns about the 
service the requester has received from the FOIA Requester 
Center, following an initial response from the FOIA Requester 
Center Staff. FOIA Public Liaisons shall be responsible for 
assisting in reducing delays, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes.
  (m) Electronic Submission of Requests.--
          (1) Consolidated online request portal.--The Director 
        of the Office of Management and Budget, in consultation 
        with the Attorney General, shall ensure the operation 
        of a consolidated online request portal that allows a 
        member of the public to submit a request for records 
        under subsection (a) to any agency from a single 
        website. The portal may include any additional tools 
        the Director of the Office of Management and Budget 
        finds will improve the implementation of this section.
          (2) Rule of construction.--This subsection shall not 
        be construed to alter the power of any other agency to 
        create or maintain an independent online portal for the 
        submission of a request for records under this section. 
        The Director of the Office of Management and Budget 
        shall establish standards for interoperability between 
        the portal required under paragraph (1) and other 
        request processing software used by agencies subject to 
        this section.
          (3) Email request required.--Each agency shall accept 
        requests for records under subsection (a) through an 
        email address and shall publish such email address on 
        the website of the agency.

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