Electronic Freedom of Information Improvement Act of 1994

Summary: Electronic Freedom of Information Improvement Act of 1994 - Amends the Freedom of Information Act (FOIA) to:  (1) direct agencies to publish by computer telecommunications, or other electronic means if such communications are not available, all information required to be published in the Federal Register; (2) include among such required information a list of all statutes authorizing the agency to withhold information under such Act; (3) require reasonable efforts by the agency to provide records in an electronic format even when such records are not usually maintained in such format; (4) credit to agencies which have been found to be responsive to FOIA requests a percentage of the fees collected from such requests to offset compliance costs, at an agency's request; (5) provide for Government payment of the requester's out-of-pocket expenses in any case in which the agency has failed to comply with the FOIA request within prescribed time limits; (6) require an agency which violates such time limits to demonstrate that delay was warranted; (7) preclude treatment of routine agency backlogs as unusual circumstances warranting extension of time limits; (8) require denial notifications to specify the total number of denied records and pages considered in responding to the FOIA request; (9) mandate an agency first-in, first-out (FIFO) processing policy to determine the order in which requests are processed, allowing separate processing tracks for simple and complex requests; (10) mandate agency regulations governing FOIA requests for expedited access; (11) require deletions to be indicated on the released portion of the record where they were made; and (12) define "record" to include electronic information and "search" to include an automated examination to locate records.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Electronic Freedom of Information 
Improvement Act of 1994''.

SEC. 2. FINDINGS AND PURPOSES.

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

SEC. 3. PUBLIC INFORMATION AVAILABILITY.

    Section 552(a)(1) of title 5, United States Code, is amended--
            (1) in the first sentence by inserting ``by computer 
        telecommunications, or if computer telecommunications means are 
        not available, by other electronic means,'' after ``Federal 
        Register'';
            (2) by striking out ``and'' at the end of subparagraph (D);
            (3) by redesignating subparagraph (E) as subparagraph (F); 
        and
            (4) by inserting after subparagraph (D) the following new 
        subparagraph:
            ``(E) a complete list of all statutes that the agency head 
        or general counsel relies upon to authorize the agency to 
        withhold information under subsection (b)(3) of this section, 
        together with a specific description of the scope of the 
        information covered; and''.

SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT.

    Section 552(a)(2) of title 5, United States Code, is amended--
            (1) in the first sentence by inserting ``including, within 
        1 year after the date of the enactment of the Electronic 
        Freedom of Information Improvement Act of 1994, by computer 
        telecommunications, or if computer telecommunications means are 
        not available, by other electronic means,'' after ``copying'';
            (2) in subparagraph (B) by striking out ``and'' after the 
        semicolon;
            (3) in subparagraph (C) by inserting ``and'' after the 
        semicolon;
            (4) by adding after subparagraph (C) the following new 
        subparagraphs:
            ``(D) an index of all major information systems containing 
        agency records regardless of form or format unless such an 
        index is provided as otherwise required by law; and
            ``(E) a description of any new major information system 
        with a statement of how such system shall enhance agency 
        operations under this section;''; and
            (5) in the third sentence by inserting ``and the extent of 
        such deletion shall be indicated on the portion of the record 
        which is made available or published at the place in the record 
        where such deletion was made'' after ``explained fully in 
        writing''.

SEC. 5. LIST OF RECORDS MADE AVAILABLE TO THE PUBLIC AND HONORING 
              FORMAT REQUESTS.

    Section 552(a)(3) of title 5, United States Code, is amended by--
            (1) inserting ``(A)'' after ``(3)'';
            (2) striking out ``(A) reasonably'' and inserting in lieu 
        thereof ``(i) reasonably'';
            (3) striking out ``(B)'' and inserting in lieu thereof 
        ``(ii)''; and
            (4) adding at the end thereof the following new 
        subparagraphs:
    ``(B) A list of all records which are made available to any person 
under this paragraph shall be made available for public inspection and 
copying as provided under paragraph (2) of this subsection. Copies of 
all such records, regardless of form or format, which because of the 
nature of their subject matter, have become or are likely to become the 
subject of subsequent requests under this paragraph for substantially 
the same records, shall be made available for inspection and copying as 
provided under paragraph (2) of this subsection.
    ``(C) An agency shall, as requested by any person, provide records 
in any form or format in which such records are maintained by that 
agency.
    ``(D) An agency shall make reasonable efforts to provide records in 
the form or format requested by any person, including in an electronic 
form or format, even where such records are not usually maintained but 
are available in such form or format.''.

SEC. 6. DELAYS.

    (a) Fees.--Section 552(a)(4)(A) of title 5, United States Code, is 
amended by adding at the end thereof the following new clause:
    ``(viii) If at an agency's request, the Comptroller General 
determines that the agency annually has either provided responsive 
documents or denied requests in substantial compliance with the 
requirements of paragraph (6)(A), one-half of the fees collected under 
this section shall be credited to the collecting agency and expended to 
offset the costs of complying with this section through staff 
development and acquisition of additional request processing resources. 
The remaining fees collected under this section shall be remitted to 
the Treasury as general funds or miscellaneous receipts.''.
    (b) Payment of the Expenses of the Person Making a Request.--
Section 552(a)(4)(E) of title 5, United States Code, is amended by 
adding at the end thereof the following new sentence: ``The court may 
assess against the United States all out-of-pocket expenses incurred by 
the person making a request, and reasonable attorney fees incurred in 
the administrative process, in any case in which the agency has failed 
to comply with the time limit provisions of paragraph (6) of this 
subsection.''.
    (c) Demonstration of Circumstances for Delay.--Section 552(a)(4)(E) 
of title 5, United States Code, is further amended--
            (1) by inserting ``(i)'' after ``(E)''; and
            (2) by adding at the end thereof the following new clause:
    ``(ii) Any agency not in compliance with the time limits set forth 
in this subsection shall demonstrate to a court that the delay is 
warranted under the circumstances set forth under paragraph (6) (B) or 
(C) of this subsection.''.
    (d) Period for Agency Decision To Comply With Request.--Section 
552(a)(6)(A)(i) is amended by striking out ``ten days'' and inserting 
in lieu thereof ``twenty days''.
    (e) Agency Backlogs.--Section 552(a)(6)(C) of title 5, United 
States Code, is amended by inserting after the second sentence the 
following: ``As used in this subparagraph, `exceptional circumstances' 
shall be unforeseen and shall not include delays that result from a 
predictable workload, including any ongoing agency backlog, in the 
ordinary course of processing requests for records.''.
    (f) Notification of Denial.--The fourth sentence of section 
552(a)(6)(C) of title 5, United States Code, is amended to read: ``Any 
notification of any full or partial 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 and the total 
number of denied records and pages considered by the agency to have 
been responsive to the request.''.
    (g) Multitrack FIFO Processing and Expedited Access.--Section 
552(a)(6) of title 5, United States Code, is amended by adding at the 
end thereof the following new subparagraphs:
    ``(D)(i) Each agency shall adopt a first-in, first-out (hereafter 
in this subparagraph referred to as FIFO) processing policy in 
determining the order in which requests are processed. The agency may 
establish separate processing tracks for simple and complex requests 
using FIFO processing within each track.
    ``(ii) For purposes of such a multitrack system--
            ``(I) a simple request shall be a request requiring 10 days 
        or less to make a determination on whether to comply with such 
        a request; and
            ``(II) a complex request shall be a request requiring more 
        than 10 days to make a determination on whether to comply with 
        such a request.
    ``(iii) A multitrack system shall not negate a claim of due 
diligence under subparagraph (C), if FIFO processing within each track 
is maintained and the agency can show that it has reasonably allocated 
resources to handle the processing for each track.
    ``(E)(i) Each agency shall promulgate regulations, pursuant to 
notice and receipt of public comment, providing that upon receipt of a 
request for expedited access to records and a showing by the person 
making such request of a compelling need for expedited access to 
records, the agency shall determine within 5 days (excepting Saturdays, 
Sundays, and legal public holidays) after the receipt of such a 
request, whether to comply with such request. No more than one day 
after making such determination the agency shall notify the person 
making a request for expedited access of such determination, the 
reasons therefor, and of the right to appeal to the head of the agency. 
A request for records to which the agency has granted expedited access 
shall be processed as soon as practicable. A request for records to 
which the agency has denied expedited access shall be processed within 
the time limits under paragraph (6) of this subsection.
    ``(ii) A person whose request for expedited access has not been 
decided within 5 days of its receipt by the agency or has been denied 
shall be required to exhaust administrative remedies. A request for 
expedited access which has not been decided may be appealed to the head 
of the agency within 7 days (excepting Saturdays, Sundays, and legal 
public holidays) after its receipt by the agency. A request for 
expedited access that has been denied by the agency may be appealed to 
the head of the agency within 2 days (excepting Saturdays, Sundays, and 
legal public holidays) after the person making such request receives 
notice of the agency's denial. If an agency head has denied, affirmed a 
denial, or failed to respond to a timely appeal of a request for 
expedited access, a court which would have jurisdiction of an action 
under paragraph (4)(B) of this subsection may, upon complaint, require 
the agency to show cause why the request for expedited access should 
not be granted, except that such review shall be limited to the record 
before the agency.
    ``(iii) The burden of demonstrating a compelling need by a person 
making a request for expedited access may be met by a showing, which 
such person certifies under penalty of perjury to be true and correct 
to the best of such person's knowledge and belief, that failure to 
obtain the requested records within the timeframe for expedited access 
under this paragraph would--
            ``(I) threaten an individual's life or safety;
            ``(II) result in the loss of substantial due process rights 
        and the information sought is not otherwise available in a 
        timely fashion; or
            ``(III) affect public assessment of the nature and 
        propriety of actual or alleged governmental actions that are 
        the subject of widespread, contemporaneous media coverage.''.

SEC. 7. COMPUTER REDACTION.

    Section 552(b) of title 5, United States Code, is amended by 
inserting before the period in the sentence following paragraph (9): 
``, and the extent of such deletion shall be indicated on the released 
portion of the record at the place in the record where such deletion 
was made''.

SEC. 8. DEFINITIONS.

    Section 552(f) of title 5, United States Code, is amended to read 
as follows:
    ``(f) For purposes of this section--
            ``(1) the term `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;
            ``(2) the term `record' means all books, papers, maps, 
        photographs, machine-readable materials, or other information 
        or documentary materials, regardless of physical form or 
        characteristics; and
            ``(3) the term `search' means a manual or automated review 
        of agency records that is conducted for the purpose of locating 
        those records which are responsive to a request under 
        subsection (a)(3)(A) of this section.''.

            Passed the Senate August 25 (legislative day, August 18), 
      1994.

            Attest:

                                                MARTHA S. POPE,

                                                             Secretary.