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[House Report 110-45]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     110-45

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

 
             FREEDOM OF INFORMATION ACT AMENDMENTS OF 2007

                                _______
                                

 March 12, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 1309]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Oversight and Government Reform, to whom was 
referred the bill (H.R. 1309) to promote openness in Government 
by strengthening section 552 of title 5, United States Code 
(commonly referred to as the Freedom of Information Act), and 
for other purposes, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Legislative History..............................................     4
Section-by-Section...............................................     5
Explanation of Amendments........................................     9
Committee Consideration..........................................     9
Rollcall Votes...................................................     9
Application of Law to the Legislative Branch.....................     9
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     9
Statement of General Performance Goals and Objectives............     9
Constitutional Authority Statement...............................     9
Federal Advisory Committee Act...................................     9
Unfunded Mandate Statement.......................................     9
Earmark Identification...........................................    10
Committee Estimate...............................................    10
Budget Authority and Congressional Budget Office Cost Estimate...    10
Changes in Existing Law Made by the Bill as Reported.............    14
Additional Views of Representative Tom Davis.....................    21

  The amendment is as follows:
  At the end of the bill, add the following new section (and 
conform the table of contents accordingly):

SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING DELETIONS OF 
                    MATERIAL PROVIDED UNDER FOIA.

  Section 552(b) of title 5, United States Code, is amended in 
the matter appearing after paragraph (9)--
          (1) in the second sentence, by inserting after 
        ``amount of information deleted'' the following: ``, 
        and the exemption under which the deletion is made,''; 
        and
          (2) in the third sentence, by inserting after 
        ``amount of the information deleted'' the following: 
        ``, and the exemption under which the deletion is 
        made,''

                          Purpose and Summary

    H.R. 1309, the Freedom of Information Act Amendments of 
2007, was introduced on March 5, 2007, by Reps. William Lacy 
Clay, Todd Russell Platts, and Henry A. Waxman. The legislation 
promotes and enhances public disclosure of government 
information pursuant to the Freedom of Information Act (FOIA). 
This bill will restore the presumption of disclosure, help 
requesters obtain timely responses from agencies, improve 
transparency in agency compliance with FOIA, provide an 
alternative to litigation for FOIA requesters, and provide 
accountability for agency decisions on whether to release 
information under FOIA requests.

                  Background and Need for Legislation

    With the enactment of FOIA in 1966, the federal government 
established a policy of openness toward information within its 
control. FOIA establishes a presumptive right for the public to 
obtain identifiable, existing records of federal agencies. Any 
member of the public may use FOIA to request access to 
government information. Requesters do not have to show a need 
or reason for seeking information.
    The burden of proof for withholding requested material 
rests with the department or agency that seeks to deny the 
request. Agencies may deny access only to records, or portions 
of records, that fall within nine exemptions. The exemptions 
include information that relates solely to an agency's internal 
personnel rules and practices; internal government deliberative 
communications about a decision before an announcement; 
information about an individual that, if disclosed, would cause 
an unwarranted invasion of personal privacy; and law 
enforcement records, particularly with regard to ongoing 
investigations.\1\
---------------------------------------------------------------------------
    \1\ The nine categories of information exempted from the 
presumption of access are: (1) certain national security or foreign 
policy information as authorized by an executive order; (2) personnel 
rules and practices of an agency; (3) information specifically exempted 
from disclosure by statute; (4) trade secrets and commercial or 
financial information; (5) inter-agency or intra-agency memoranda; (6) 
personnel and medical files; (7) certain records compiled for law 
enforcement purposes; (8) certain reports related to the regulation of 
financial institutions; and (9) geological and geophysical information 
and data.
---------------------------------------------------------------------------
    Access to information under FOIA has been impacted by 
memoranda issued by attorneys general. Under the Clinton 
Administration, the Attorney General instructed agencies to 
make discretionary disclosures to FOIA requesters, and to 
withhold records only if a foreseeable harm existed from that 
release. An October 1993 memorandum from Attorney General Janet 
Reno stated:

          In short, it shall be the policy of the Department of 
        Justice to defend the assertion of a FOIA exemption 
        only in those cases where the agency reasonably 
        foresees that disclosure would be harmful to an 
        interest protected by that exemption. Where an item of 
        information might technically or arguably fall within 
        an exemption, it ought not to be withheld from a FOIA 
        requester unless it need be.\2\
---------------------------------------------------------------------------
    \2\ Janet Reno, Attorney General, Memorandum for Heads of 
Departments and Agencies, Subject: The Freedom of Information Act (Oct. 
4, 1993).

    In 2001, the Bush Administration reversed this policy with 
a memorandum from Attorney General John Ashcroft that 
encouraged agencies to limit discretionary disclosures of 
information, calling on them to exercise ``full and deliberate 
consideration of the institutional, commercial, and personal 
privacy interests that could be implicated by disclosure of the 
information.'' Similarly, the memo stated that the Department 
of Justice would defend decisions to withhold information from 
requesters unless those decisions ``lack a sound legal basis.'' 
\3\
---------------------------------------------------------------------------
    \3\ John Ashcroft, Attorney General, Memorandum for Heads of All 
Federal Departments and Agencies, Subject: The Freedom of Information 
Act (Oct. 12, 2001).
---------------------------------------------------------------------------
    FOIA has been used effectively by journalists, public 
interest organizations, corporations, and individuals to access 
government information. However, its use has been plagued by 
delays and backlogs, requesters often have difficulty obtaining 
information about the status of their requests, and a recent 
Supreme Court decision has hampered requesters' ability to 
litigate their claims. H.R. 1309 would address these and other 
concerns about the implementation of FOIA.
    Executive agencies receive hundreds of thousands of FOIA 
requests annually. The response to a request may involve a 
single sheet of paper, thousands of documents, or information 
in electronic format. An oversight hearing held by the 
Subcommittee on Government Management, Finance, and 
Accountability in July 2006 indicated that the timeliness of 
agency response to FOIA requests is a significant and ongoing 
problem. Although the law requires that agencies respond to a 
FOIA request within 20 days, requesters often do not receive 
the requested information for much longer periods of time. 
During the July 2006 hearing, the Government Accountability 
Office (GAO) testified that the number of pending FOIA requests 
carried over from year to year--also known as the backlog--has 
been increasing significantly. In Fiscal Year 2005, for 
example, the backlog increased by approximately 200,000, a 24% 
increase from the previous year.
    H.R. 1309 addresses this backlog by ensuring that the 20-
day statutory clock runs immediately upon an agency's receipt 
of a request and by imposing consequences on federal agencies 
for missing the deadline. The bill also requires agencies to 
provide requesters with individualized tracking numbers for 
each request and access to a telephone or Internet hotline with 
information about the status of requests.
    Although GAO and other organizations use FOIA annual 
reports compiled by agencies to analyze compliance with FOIA, 
these reports do not contain the information needed to 
understand the extent of delays and compare across agencies. 
H.R. 1309 would improve transparency in agency compliance with 
FOIA by strengthening these reporting requirements to identify 
excessive delays. The bill also requires each agency to make 
the raw data used tocompile its annual reports publicly 
available. This change will enable analysts to better understand agency 
performance.
    Under FOIA, requesters who do not feel that an agency is 
being adequately responsive may sue for the information. 
However, requesters have argued that they would benefit from 
having access to an ombudsman for FOIA who could provide 
guidance to requesters before, or as an alternative to, 
litigation. As journalist Clark Hoyt described it in his 
testimony before the Information Policy Subcommittee in March 
2007, these requesters are looking for ``a champion for FOIA 
training and compliance, a place where individuals seeking to 
exercise their rights under FOIA can go for help short of 
filing a lawsuit.'' H.R. 1309 creates this ombudsman function 
within an Office of Government Information Services in the 
National Archives and Records Administration (NARA).
    A new concern has arisen in the last several years for FOIA 
requesters who litigate their claims. In 2001, the Supreme 
Court, in Buckhannon Board and Care Home, Inc. v. West Virginia 
Dep't of Health and Human Resources, 532 U.S. 598 (2001), 
eliminated the ``catalyst theory'' of attorney fee recovery 
under certain federal civil rights laws. The court decided that 
litigants are only eligible for recovery of attorney fees if 
they prevail through a court ruling. The application of 
Buckhannon to FOIA prevents requesters from any eligibility for 
recovery of attorney fees if an agency provides the requested 
records prior to a court decision. FOIA requesters have raised 
concerns that this system gives agencies the incentive to delay 
compliance with a FOIA request until just before a court 
decision. H.R. 1309 addresses this by clarifying Buckhannon 
does not apply to FOIA cases.

                          Legislative History

    H.R. 1309, the Freedom of Information Act Amendments of 
2007, was introduced by Reps. Wm. Lacy Clay, Todd Russell 
Platts, and Henry A. Waxman on March 5, 2007, and referred to 
the Committee on Oversight and Government Reform, and was 
subsequently referred to the Subcommittee on Information 
Policy, Census and National Archives.
    The legislation resembles legislation introduced in the 
House and Senate in 2005. Specifically, during the 109th 
Congress, Sens. John Cornyn and Patrick Leahy introduced S. 
394, and Rep. Lamar Smith introduced its companion bill, H.R. 
867. S. 394 was reported by the Senate Committee on the 
Judiciary by voice vote without amendment and without an 
accompanying report.
    On September 27, 2006, the Subcommittee on Government 
Management, Finance, and Accountability reported H.R. 867 to 
the full Committee on Government Reform, amending the bill to 
include two provisions offered by Rep. Waxman. The first 
provision of this amendment aimed to overturn both the 
``Ashcroft Memo'' (restricting release of information under 
FOIA) and the ``Card Memo'' (safeguarding information 
considered ``sensitive but unclassified''). The second 
provision increased transparency in agency reporting on FOIA 
implementation. It required agencies to provide more 
information about the time spent in responding to FOIA 
requests, their responsiveness to expedited review requests, 
and the time spent on administrative appeals in their annual 
reports. The bill was not considered by the full Committee. The 
substance of the two provisions offered by Rep. Waxman to H.R. 
867 is contained in H.R. 1309.
    On February 15, 2007, the Subcommittee on Information 
Policy, Census and National Archives held a hearing on FOIA and 
analyzed agency efforts to meet FOIA requirements. The 
witnesses were Linda Koontz, Director, Information Management, 
Government Accountability Office; Melanie Ann Pustay, Acting 
Director, Office of Information and Privacy; U.S. Department of 
Justice; Clarke Hoyt, McClatchy Newspapers, on behalf of the 
Sunshine in Government Initiative; Anthony Romero, Executive 
Director, American Civil Liberties Union; and Thomas Blanton, 
Director, National Security Archive at George Washington 
University.
    The Subcommittee on Information Policy, Census and National 
Archives held a markup to consider H.R. 1309 on March 6, 2007. 
The subcommittee approved the bill by voice vote, and reported 
it favorably to the full Committee.
    The Committee held a markup to consider H.R. 1309 on March 
8, 2007, and ordered the bill to be reported, as amended, by a 
voice vote.

                           Section-by-Section

Section 1. Short title

    This section provides the short title of H.R. 1309 as the 
``Freedom of Information Act Amendments of 2007.''

Section 2. Findings

    This section lists several findings articulating the 
sentiment that the effective functioning of a free government 
depends largely on the force of an informed public with the 
widest possible understanding regarding the quality of 
government service rendered by all elective or appointed public 
officials or employees. In addition, this section notes that 
the Freedom of Information Act establishes ``a strong 
presumption in favor of disclosure'' that applies to all 
agencies governed by the Act.
    Congress finds that in practice, FOIA has not always lived 
up its ideals of the Act and Congress should therefore 
regularly review FOIA in order to determine whether further 
changes and improvements are necessary to ensure that the 
government remains open and accessible to the American people, 
based upon a fundamental ``right to know.''

Section 3. Protection of fee status for news media

    This section clarifies that agencies may not deny fee 
waivers for legitimate journalists solely on the basis of an 
absence of institutional associations of the requester. 
Instead, agencies must consider the prior publication history 
of the requester, including books, articles, newsletters, 
television and radio broadcasts, and Internet publications. If 
the requester has no prior publication history or current 
affiliation, the agency must consider the requester's stated 
intent to distribute information to a reasonably broad 
audience.
    This provision is meant to ensure that fee waivers are also 
available to journalists associated with less traditional media 
outlets or distribution methods, particularly those that rely 
on the Internet to reach a broad audience.

Section 4. Recovery of attorney fees and litigation costs

    This section clarifies that, for the purpose of the 
recovery of attorney fees and other litigation costs, 
requesters have ``substantially prevailed'' in FOIA litigation 
when they have obtained relief from the agency through 
enforceable decisions or orders, as well as through voluntary 
or unilateral changes in position by the agency.
    The section responds to the Supreme Court's ruling in 
Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of 
Health and Human Resources, 532 U.S. 598 (2001), which 
eliminated the ``catalyst theory'' of attorney fee recovery 
under certain federal civil rights laws. This section makes 
clear that the Buckhannon decision does not apply to FOIA cases 
and ensures that requesters are eligible for attorney fees and 
other litigation costs if they obtain relief from the agency 
during the litigation.

Section 5. Disciplinary actions for arbitrary and capricious rejections 
        of requests

    This section enhances provisions in current law that 
authorize disciplinary action against government officials who 
arbitrarily and capriciously deny records to FOIA requesters. 
It directs the Attorney General to notify the Special Counsel 
of civil actions taken for arbitrary and capricious rejections 
of requests for agency records, and to annually submit reports 
to Congress on the number of these actions taken. The section 
further requires the Special Counsel to submit annual reports 
to Congress on the actions taken by the Special Counsel 
regarding these civil actions.

Section 6. Time limits for agencies to act on requests

    Under FOIA, agencies are required to respond to requesters 
with a determination within 20 days. Subsection (a) requires 
that the 20-day statutory clock run immediately upon agency 
receipt of a FOIA request. The agency must obtain the consent 
of the requesting party to toll the 20-day period.
    Subsection (b) states that an agency may not charge a 
requester fees for document search, duplication, or review if 
the agency fails to comply with the 20 day deadline for 
responding to that request with a determination. This provision 
would apply only to FOIA requests filed on or after the 
effective date of this amendment.

Section 7. Individualized tracking numbers for requests and status 
        information

    This section requires each agency to establish a system to 
assign an individualized tracking number for each request for 
information pursuant to FOIA. Under this provision, each agency 
would have 10 days after receiving a request to provide the 
requester with a tracking number. Each agency also would be 
required to establish a telephone line or Internet service that 
provides information about the status of requests, including 
the date on which the agency received the request and an 
estimated date on which the agency will complete action on the 
request.
    This provision will take effect one year after the date of 
enactment and apply only to requests for information filed on 
or after that effective date.

Section 8. Specific citations in exemptions

    This section of the bill provides that Congress may not 
create new statutory exemptions under FOIA unless it does so 
explicitly. Accordingly, for any new statutory exemption to 
have effect, the statute must cite directly to 5 U.S.C. 
552(b)(3), thereby conveying congressional intent to create a 
new (b)(3) exemption.

Section 9. Reporting requirements

    This section mandates that agencies provide additional 
information about their compliance with FOIA in annual reports 
to the Attorney General detailing compliance information for 
each principal component of the agency as well as the agency 
overall.
    This section calls on agencies to report on the number of 
occasions on which a particular statute was relied upon to deny 
a FOIA request and the average number of days FOIA requests 
have been pending before that agency, and to provide additional 
information about the number of days taken by an agency to 
process different types of requests.
    Subsection (a) adds several new requirements for data to be 
included in agency annual reports. The subsection calls for 
agencies to provide additional information about the timeframes 
for responding to requests with a determination, including the 
number of requests that the agency has responded to within the 
required 20 days; information about the timeframes for 
providing granted information to requesters; data regarding 
agency responsiveness to administrative appeals; data on the 10 
active requests and administrative appeals with the earliest 
filing dates pending at the agency; data regarding agency 
responsiveness to expedited review requests; and data regarding 
agency grants of fee waivers.
    Subsection (b) requires that each agency make the raw 
statistical data used in its compliance reports available 
electronically to the public upon request.

Section 10. Openness of agency records maintained by a private entity

    This section clarifies that agency records kept by private 
contractors licensed by the government to undertake 
recordkeeping functions remain subject to FOIA just as if those 
records were maintained by the relevant government agency.

Section 11. Office of government information services

    This section creates an Office of Government Information 
Services within the NARA. This office is to be headed by a 
National Information Advocate, who will report directly to the 
Archivist of the United States.
    The Office of Government Information Services will provide 
guidance to FOIA requesters as a non-exclusive alternative to 
litigation. Specifically, the office may provide nonbinding 
informal guidance, fact-finding reviews, and opinions to 
requesters who have been denied records or have not received a 
timely response to a FOIA request or administrative appeal. In 
addition, the office will review FOIA policies and procedures 
by federal agencies and recommend policy changes to Congress 
and the president designed to improve administration of FOIA.
    The Committee expects that the Office of Government 
Information Services will be responsive to requests for 
assistance and will, wherever possible, acknowledge these 
requests in a timely fashion.

Section 12. Accessibility of critical infrastructure information

    This Section requires reports on the implementation of the 
Critical Infrastructure Information Act of 2002. It requires 
the Comptroller General to report to Congress on the number of 
private sector, state, and local agency submissions of CII data 
to the Department of Homeland Security and the number of 
requests for access to records. The Comptroller General also 
will be required to report on whether the nondisclosure of CII 
material has led to increased protection of critical 
infrastructure.

Section 13. Report on personnel policies related to FOIA

    This Section adds a new provision requiring the Office of 
Personnel Management (OPM) to submit to Congress a report that 
examines whether certain changes to executive branch personnel 
polices might enhance agency compliance with FOIA. 
Specifically, this Section calls on OPM to examine whether FOIA 
compliance should be included as a factor in personnel 
performance evaluations; whether an employment classification 
series specific to compliance with FOIA should be established; 
whether employees doing FOIA related work should be paid 
differently; whether there is a clear career advancement track 
for individuals interested in devoting themselves to FOIA 
compliance; and whether the executive branch should require all 
federal employees to undertake awareness training regarding 
FOIA.

Section 14. Promotion of public disclosure

    This Section codifies a ``presumption of disclosure'' by 
reaffirming the presumption that records should be released to 
the public if disclosure is allowable under law and the agency 
cannot ``reasonably foresee'' a harm from such a disclosure. 
Subsection (h)(2) of this Section mandates that all guidance 
provided to federal employees be consistent with this 
presumption.

Section 15. Requirement to describe exemptions authorizing deletions of 
        material provided under FOIA

    This Section provides that agencies should note the 
exemption or exemptions used to withhold information on the 
partial records that are released, unless revealing that 
information would harm an interest protected by the exemption. 
It further provides that agencies should, wherever technically 
feasible, indicate the exemption used at the place in the 
record where the deletion is made.

                       Explanation of Amendments

    The following amendment was adopted in Committee:
    Rep. Carolyn Maloney offered an amendment creating a new 
Section 15, which was accepted by voice vote. The amendment 
calls on agencies to, whenever possible; indicate the exemption 
used to delete material at the place in a record where the 
deletion is made.

                        Committee Consideration

    On Thursday, March 8, 2007, the Committee ordered the bill 
reported to the House by a voice vote.

                             Rollcall Votes

    The Committee held no rollcall votes on this bill.

              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 enhanced transparency to the operations of 
the executive branch. As such this bill does not relate to 
employment or access to public services and accommodations.

  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.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 1309. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     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 whether 
the provisions of the reported bill include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office that is included 
herein.

                         Earmark Identification

    H.R. 1255 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) 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 
H.R. 1309. However, clause 3(d)(3)(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.

     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 H.R. 985 from the Director of 
Congressional Budget Office:

                                                    March 12, 2007.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1309, the OPEN 
Government Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 1309--OPEN Government Act of 2007

    Summary: H.R. 1309 would make several amendments to the 
Freedom of Information Act (FOIA), which generally allows any 
person the right to obtain federal agency records protected 
from disclosure. Specifically, the legislation would:
           Expand FOIA's definition of the news media;
           Require time limits for agencies to act upon 
        FOIA requests and not allow fees to be collected that 
        are for requests not completed within time limits;
           Allow greater recovery of attorney fees and 
        litigation costs by FOIA requestors if information is 
        withheld by the government;
           Require agencies to provide status 
        information for FOIA requests;
           Amend the types of information that are 
        exempt from disclosure under FOIA;
           Require federal agencies to prepare 
        additional reports to the Congress concerning FOIA 
        activities;
           Require new reports concerning agencies' 
        FOIA programs from the Government Accountability Office 
        (GAO), the Department of Justice (DOJ), the Office of 
        the Special Counsel (OSC), and the Office of Personnel 
        Management (OPM); and
           Establish an Office of Government 
        Information Services to provide policy guidance to 
        federal agencies and review FOIA policies and 
        procedures.
    CBO estimates that enacting this legislation would increase 
direct spending by $6 million in 2008 and $63 million over the 
2008-2017 period to reimburse citizens making FOIA requests for 
attorneys' fees and litigation cost payments. CBO also 
estimates that enacting H.R. 1309 would result in a loss of 
fees, which are recorded in the budget as revenues, of $10 
million over the 2008-2017 period.
    In addition, we estimate that implementing the bill would 
increase costs subject to appropriation by $9 million in 2008 
and $53 million over the 2008-2012 period to establish the OGIS 
and implement new agency reporting requirements. H.R. 1309 
would codify and expand Executive Order 13392 that requires 
agencies to improve their FOIA operations, including improving 
efficiency and customer services.
    H.R. 1309 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 impact of H.R. 1309 is shown in the following table. 
The costs of this legislation fall within budget function 800 
(general government) and all other budget functions that 
include federal salaries and expenses.
    Basis of estimate: For this estimate, CBO assumes that H.R. 
1309 will be enacted before the start of 2008, that the 
necessary funds will be provided for each year, and that 
spending will follow historical patterns for similar programs.
    Enacted in 1966, FOIA was designed to enable any person--
individual or corporate, regardless of citizenship status--to 
request, without explanation or justification, access to 
existing, identifiable, and unpublished executive branch 
records on any topic. The Office of Management and Budget 
issues guidelines to agencies on fees to charge for providing 
copies of information requested, while DOJ oversees agency 
compliance with FOIA. Based on information from GAO for fiscal 
year 2005, federal agencies (excluding the Social Security 
Administration) received more than 2.5 million FOIA requests. 
In addition, DOJ reports that in fiscal year 2005, agencies 
devoted about 5,000 employee-years to processing and litigating 
FOIA requests at a cost of over $300 million.

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                           ---------------------------------------------------------------------
                                             2008   2009   2010   2011   2012   2013   2014   2015   2016   2017
----------------------------------------------------------------------------------------------------------------
                                           CHANGES IN DIRECT SPENDING

Attorneys' Fees and Litigation Costs:
    Estimated Budget Authority............      6      6      6      6      7      7      7      7      7      7
    Estimated Outlays.....................      6      6      6      6      6      6      6      7      7      7

                                               CHANGES IN REVENUES

FOIA Fees:
    Estimated Revenues....................     -1     -1     -1     -1     -1     -1     -1     -1     -1     -1

                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Office of Government Information Services:
    Estimated Authorization Level.........      4      5      5      5      6      6      6      6      6      6
    Estimated Outlays.....................      3      4      5      5      6      6      6      6      6      6
FOIA Reporting Requirements:
    Estimated Authorization Level.........      4      5      5      5      6      6      6      6      6      7
    Estimated Outlays.....................      3      5      5      5      6      6      6      6      6      7
Other Reports:
    Estimated Authorization Level.........      3      2      1      *      *      *      *      *      *      *
    Estimated Outlays.....................      3      2      1      *      *      *      *      *      *      *
Total Changes:
    Estimated Authorization Level.........     11     12     11     10     12     12     12     12     12     13
    Estimated Outlays.....................      9     11     11     10     12     12     12     12     12     13
----------------------------------------------------------------------------------------------------------------
Note.--* = less than $500,000.

Direct spending and revenues

    Attorneys' Fees and Litigation Costs. Under the 
legislation, FOIA requestors would be entitled to recover any 
attorneys' fees and litigation costs incurred to receive 
requested information through a judicial or administrative 
order or because of a voluntary change in an agency's FOIA 
policies. Those payments would be made from the Judgment Fund 
(a permanent, indefinite appropriation for claims and judgments 
against the United States). The cost of implementing this 
section would depend on the number of successful challenges to 
FOIA requests that are either fully or partially denied and any 
changes in FOIA disclosure policies.
    Under current law, when a FOIA request is denied or 
partially granted, the requestor can administratively appeal 
the decision. If the administrative appeal is also denied, a 
requestor has the right to appeal the decision in federal 
court. Based on a review of FOIA decisions by federal courts 
over the 2001-2005 period, CBO estimates that about 350 FOIA 
cases are presented annually, and about 6 percent of 
complainants subsequently challenge agency decisions and are 
reimbursed for attorneys' fees and litigation costs. Those 
payments by the Judgment Fund cost about $3 million a year. In 
addition, based on information from 15 major agencies over the 
2001-2005 period, including the Departments of Veterans 
Affairs, Treasury, Defense, Labor, State, and Justice, CBO 
estimates that requestors successfully appeal about 1,000 FOIA 
cases each year.
    CBO estimates that the average cost of litigating a FOIA 
lawsuit or administrative appeal is about $6,000 per case. 
Assuming that agencies act on about 1,000 FOIA cases each year, 
CBO estimates that enacting this legislation would increase 
direct spending from the Judgment Fund by $30 million over the 
2008-2012 period, and $63 million over the 2008-2017 period.
    FOIA Fees. FOIA requests from researchers associated with 
academic institutions and the news media are charged fees for 
the duplication of records that are larger than 100 pages. All 
other requestors are charged fees for research time and 
duplication costs after the first two hours of research and 100 
pages of copying. Those fees are recorded on the budget as 
revenues and deposited into the general fund of the Treasury. 
Based on a review of annual FOIA reports from 15 major agencies 
over the fiscal year 2003-2005 period, CBO estimates that 
agencies collect about $4 million in FOIA fees annually.
    Section 3 would expand the definition of news media 
researchers to FOIA requestors who have no affiliation with a 
media outlet but have a publishing history. Section 6 would set 
a period of 20 days for agencies to respond to the initial FOIA 
request. If this deadline is missed, agencies could not charge 
fees. CBO expects that those changes would reduce the amount of 
fees currently collected for retrieval of information. Based on 
information from some of the 15 major agencies, CBO estimates 
that removing the fees for some requests would reduce the 
amount of FOIA fees collected by about $1 million annually.

Spending subject to appropriation

    Office of Government Information Services. Section 11 would 
establish an Office of Government Information Services under 
the direction of a National Information Advocate within the 
National Archives and Records Administration (NARA). The office 
would provide guidance to FOIA requestors, review FOIA policies 
and practices and make recommendations.
    Based on information from NARA and the cost of similar 
offices, CBO estimates that implementing this provision would 
cost about $5 million annually for additional staff to conduct 
audits of FOIA programs. CBO expects that the new agency would 
take about two years to reach that level of effort. We estimate 
that operations for the new office would cost $23 million over 
the 2008-2012 period, assuming appropriation of the necessary 
amounts.
    FOIA Reporting Requirements. Section 9 would add a number 
of additional reporting requirements to the annual FOIA reports 
submitted by all federal departments and agencies. This would 
include FOIA information on the time required to process 
requests, median and average processing time, expedited and 
appeal processing time, and the oldest pending requests. In 
addition, H.R. 1309 would require each agency to provide the 
raw data used to compile their annual FOIA report. Based on the 
costs of similar reports, a review of annual reports by 15 
major agencies over the 2001-2005 period, and information from 
some of those agencies, CBO estimates that adding additional 
reporting requirements would cost about $5 million annually and 
about $24 million over the 2008-2012 period, assuming the 
appropriation of the necessary amounts.
    Other Reports. H.R. 1309 would require new reports by a 
number of government agencies. GAO would be required to report 
on critical infrastructure information that is collected by the 
government from the private sector but is exempt from FOIA 
disclosure. DOJ and OSC would be required to report on legal 
actions related to the rejection of FOIA requests, and OPM 
would be required to produce a report on FOIA personnel 
policies. Based on the costs of similar reports, CBO estimates 
that implementing those provisions would cost $6 million over 
the 2008-2012 period, assuming the availability of appropriated 
funds.
    Other Provisions. Additional provisions would require 
providing tracking numbers for FOIA requests and would expand 
on the provisions of Executive Order 13392 issued on December 
14, 2005. That order calls upon all federal agencies to improve 
their FOIA operations, including customer service and 
assistance. Specifically, the order requires agencies to 
develop FOIA improvement plans, designate a Chief FOIA officer, 
and establish FOIA requestor centers. Based on information from 
DOJ and a review of annual reports by 15 major agencies over 
the 2001-2005 period, CBO estimates that those provisions would 
not significantly increase agencies' costs to implement FOIA.
    Intergovernmental and private-sector impact: H.R. 1309 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Pickford. 
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum. Impact on the Private-Sector: Amy Petz.
    Esimate approved by: Peter H. Fontaine, Deputy 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, 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)  * * *

           *       *       *       *       *       *       *

  (4)(A)(i)  * * *
  (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 making a determination of a representative of the news media 
under subclause (II), an agency may not deny that status solely 
on the basis of the absence of institutional associations of 
the requester, but shall consider the prior publication history 
of the requester. Prior publication history shall include 
books, magazine and newspaper articles, newsletters, television 
and radio broadcasts, and Internet publications. If the 
requestor has no prior publication history or current 
affiliation, the agency shall consider the requestor's stated 
intent at the time the request is made to distribute 
information to a reasonably broad audience.

           *       *       *       *       *       *       *

  (viii) An agency may not charge any fees under this 
subparagraph if the agency fails to comply with any time limit 
that applies under paragraph (6).

           *       *       *       *       *       *       *

  (E) The court may 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. For purposes of this section only, a 
complainant has substantially prevailed if the complainant has 
obtained relief through either--
          (i) a judicial order, administrative action, or an 
        enforceable written agreement or consent decree; or
          (ii) a voluntary or unilateral change in position by 
        the opposing party, in a case in which the 
        complainant's claim or defense was not frivolous.
  (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).

           *       *       *       *       *       *       *

  (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] within the 20-day period 
        commencing on the date on which the request is first 
        received by the agency (excepting Saturdays, Sundays, 
        and legal public holidays), which shall not be tolled 
        without the consent of the party filing the request, 
        determine 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

           *       *       *       *       *       *       *

  (7) Each agency shall--
          (A) establish a system to assign an individualized 
        tracking number for each request for information under 
        this section;
          (B) not later than 10 days after receiving a request, 
        provide each person making a request with the tracking 
        number assigned to the request; and
          (C) establish a telephone line or Internet service 
        that provides information about the status of a request 
        to the person making the request using the assigned 
        tracking number, including--
                  (i) the date on which the agency originally 
                received the request; and
                  (ii) an estimated date on which the agency 
                will complete action on the request.
  (b) This section does not apply to matters that are--
          (1)  * * *

           *       *       *       *       *       *       *

          [(3) specifically exempted from disclosure by statute 
        (other than section 552b of this title), provided that 
        such statute (A) requires that the matters be withheld 
        from the public in such a manner as to leave no 
        discretion on the issue, or (B) establishes particular 
        criteria for withholding or refers to particular types 
        of matters to be withheld;]
          (3) specifically exempted from disclosure by statute 
        (other than section 552b of this title), provided that 
        such statute--
                  (A) if enacted after the date of enactment of 
                the Freedom of Information Act Amendments of 
                2007, specifically cites to this section; and
                  (B)(i) requires that the matters be withheld 
                from the public in such a manner as to leave no 
                discretion on the issue; or
                  (ii) establishes particular criteria for 
                withholding or refers to particular types of 
                matters to be withheld;

           *       *       *       *       *       *       *

          (9) geological and geophysical information and data, 
        including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the 
portions which are exempt under this subsection. The amount of 
information deleted, 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.

           *       *       *       *       *       *       *

  (e)(1) On or before February 1 of each year, each agency 
shall submit to the Attorney General of the United States a 
report which shall cover the preceding [fiscal year and which] 
fiscal year. Information in the report shall be expressed in 
terms of each principal component of the agency and for the 
agency overall, and shall include--
          (A)  * * *
          (B)(i)  * * *
          (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;

           *       *       *       *       *       *       *

          (E) the median number of days taken by the agency to 
        process different types of requests, based on the date 
        on which each request was initially received by the 
        agency;
          (F) the average number of days for the agency to 
        respond to requests beginning on the date on which each 
        request was initially received by the agency, the 
        median number of days for the agency to respond to such 
        requests, and the range in number of days for the 
        agency to respond to such requests;
          (G) based on the number of business days that have 
        elapsed since each request was initially received by 
        the agency--
                  (i) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 1 
                day and less than 201 days, stated in 20-day 
                increments;
                  (ii) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 200 
                days and less than 301 days;
                  (iii) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 300 
                days and less than 401 days; and
                  (iv) the number of requests for records to 
                which the agency has responded with a 
                determination within a period greater than 400 
                days;
          (H) the average number of days for the agency to 
        provide the granted information beginning on the date 
        on which each request was initially received by the 
        agency, the median number of days for the agency to 
        provide the granted information, and the range in 
        number of days for the agency to provide the granted 
        information;
          (I) the median and average number of days for the 
        agency to respond with a determination to 
        administrative appeals based on the date on which each 
        appeal was initially received by the agency; the 
        highest number of business days taken by the agency to 
        respond to an administrative appeal; and the lowest 
        number of business days taken by the agency to respond 
        to an administrative appeal;
          (J) data on the 10 active requests with the earliest 
        filing dates pending at the agency, including the 
        amount of time that has elapsed since each request was 
        initially received by the agency;
          (K) data on the 10 active administrative appeals with 
        the earliest filing dates pending at the agency as of 
        September 30 of the preceding year, including the 
        number of business days that have elapsed since each 
        request was initially received by the agency;
          (L) the number of expedited review requests received 
        by the agency, the number that were granted and the 
        number that were denied, the average and median number 
        of days for adjudicating expedited review requests, and 
        the number of requests that adjudicated within the 
        required 10 days;
          (M) the number of fee waiver requests that were 
        granted and the number that were denied, and the 
        average and median number of days for adjudicating fee 
        waiver determinations;
          [(F)] (N) the total amount of fees collected by the 
        agency for processing requests; and
          [(G)] (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.
  (2) 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.

           *       *       *       *       *       *       *

  (f) For purposes of this section, the term--
          (1)  * * *
          [(2) ``record'' and any other term used in this 
        section in reference to information includes any 
        information that would be an agency record subject to 
        the requirements of this section when maintained by an 
        agency in any format, including an electronic format.]
          (2) ``record'' and any other term used in this 
        section in reference to information includes--
                  (A) any information that would be an agency 
                record subject to the requirements of this 
                section when maintained by an agency in any 
                format, including an electronic format; and
                  (B) any information described under 
                subparagraph (A) that is maintained for an 
                agency by an entity under a contract between 
                the agency and the entity.

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

                              ----------                              

               CHAPTER 21 OF TITLE 44, UNITED STATES CODE

Sec.
2101. Definitions.

           *       *       *       *       *       *       *

2120. Office of Government Information Services.

           *       *       *       *       *       *       *

Sec. 2120. Office of Government Information Services

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

           *       *       *       *       *       *       *

              ADDITIONAL VIEWS OF REPRESENTATIVE TOM DAVIS

    Legislation designed to streamline and improve the FOIA 
process was introduced in the 109th Congress by Rep. Lamar 
Smith. His bill (H.R. 867) had moved through subcommittee to 
the full committee. Although not perfect, this was a solid 
bipartisan bill that Republicans introduced and guided through 
the legislative process. This year, the Majority took his 
bipartisan bill and added a few of their own twists. We have 
additional suggestions as well, and Republicans offered two 
amendments to H.R. 1309 that were not included in the reported 
bill.
    First, the attorney's fee provision appears to 
significantly lower the bar for the recovery of fees. The 
language in this bill differs from that in H.R. 867. We should 
consider the wisdom of this provision, and its implications for 
the numerous federal statutes providing for attorney fee awards 
where the United States or a federal agency or official is a 
party.
    The Supreme Court has ruled on this matter, and now some 
want to codify old, more lucrative, law. There is a great deal 
of talk about freedom of information, open government, and the 
public right to know. But I hope when we scratch the surface, 
it's not about money. You have to assume that if this provision 
passes, everyone litigating under any private right of action 
statute will clamor for the same legislative treatment.
    The language in Section 4 of H.R. 1309 would allow 
plaintiffs to receive awards of attorney's fees in almost any 
case they file so long as they can show that the defending 
government agency somehow changed its position once the case 
had been commenced.
    Although it is true that FOIA complainants often face an 
uphill battle when they face off against an agency, the bar 
suggested in this statute is simply too low a standard. It may 
actually undermine the stated ``dominant objective'' of the act 
by incentivizing departments to avoid disclosure.
    Under Section 4 of this bill, once a lawsuit is commenced 
any change in position by the agency will be tantamount to an 
admission of liability for attorney's fees. Why settle? Why 
release the least controversial documents? Why do anything at 
all other than try to win the case? Isn't the whole point of 
FOIA to get the information to the public? We should encourage 
an agency or department to release all appropriate documents 
early, thus avoiding a long drawn out court battle. This 
supports the main purpose of the Act: minimizing secrecy and 
increasing information provided to the public.
    Rep. Bill Sali (R-ID) offered an amendment to strike 
Section 4 to preserve settled judicial precedent regarding 
attorney's fees and highlight this issue. I hope my colleagues 
in the House and Senate will take a close look at this section 
as this legislation moves forward.
    Second, the Majority has taken to heart various groups' 
concerns about the so-called Ashcroft memo. During the Clinton 
Administration, Attorney General Janet Reno issued a memorandum 
establishing a presumption of disclosure if no ``foreseeable 
harm'' would result from the release of information.
    Shortly after 9/11, and recognizing the challenges of that 
standard, Attorney General Ashcroft issued a memorandum that 
encouraged agencies to carefully consider the protection of the 
values and interests embodied in the statutory exemptions to 
FOIA (national security, privacy, governmental interests, etc.) 
when making disclosure determinations. It stated that DOJ would 
defend agency decisions unless they lack a ``sound legal 
basis.'' Mr. Ashcroft's memorandum superseded the Reno 
memorandum.
    Section 14, however, would codify Attorney General Reno's 
position. Keep in mind, these are guidance memos. Agency 
personnel still must follow the law. This appears to intrude on 
the discretion given to an Administration to implement the law.
    In addition, it requires agency officials to see the 
future. It is quite a burden to place on agency personnel to 
ascertain ``foreseeable harm'' when deciding whether or not to 
release a document.
    The exemptions embodied in FOIA are there for a reason. 
Attorney General Ashcroft did not establish a policy that 
government information should not be released if it was likely 
to threaten national security or invade personal privacy. 
Congress did. Mr. Ashcroft simply said: follow the law Congress 
passed and we will support you.
    I understand there are serious concerns with this Section. 
Last year, Rep. Smith was a champion of bipartisan FOIA 
legislation. I understand that Rep. Smith did not cosponsor 
this bill, but introduced his own measure, H.R. 1326, in part 
due to this provision.
    I hope we can come to real bipartisan agreement on this 
provision as we move forward. Clearly, improving the procedural 
aspects of FOIA is important. I trust we can find a way to 
balance national security with the vital principles of open 
government.

                                                         Tom Davis.

                                  
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