```

[Senate Report 114-4]
[From the U.S. Government Publishing Office]

                                              Calendar No. 17
                                                        
114th Congress        }                         (      Report
                                 SENATE
 1st Session          }                         {      114-4
====================================================================
 
                      FOIA IMPROVEMENT ACT OF 2015

                                _______
                                

               February 23, 2015.--Ordered to be printed

                                _______
                                

          Mr. Grassley, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 337]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 337), the FOIA Improvement Act of 2015, having 
considered the same, reports favorably thereon, without 
amendment, and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the FOIA Improvement Act of 2015.......1
 II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................7
 IV. Congressional Budget Office Cost Estimate.......................12
  V. Regulatory Impact Evaluation....................................14
 VI. Conclusion......................................................14
VII. Additional Views from Senator Sessions..........................15
VIII.Changes to Existing Law Made by the Bill, as Reported...........18

     I. Background and Purpose of the FOIA Improvement Act of 2015

               A. BACKGROUND AND THE NEED FOR LEGISLATION

    In 1966, the Federal Government established a policy of 
openness toward information within the control of the Executive 
Branch, and a presumption that such records should be 
accessible to the American public with the enactment of the 
Freedom of Information Act (FOIA). Under FOIA, any member of 
the public may request access to Government information, and 
FOIA requesters do not have to show a need or reason for 
seeking information. The Freedom of Information Act is used by 
researchers, historians, journalists, educators, and the public 
at large to gain access to Government-held information 
affecting public policy, consumer safety, the environment, and 
public health, among other things. It has become an 
indispensable tool for ensuring our Government remains 
transparent and accountable to the people. The Supreme Court 
aptly observed that the ``[p]urpose of the FOIA is to ensure an 
informed citizenry, vital to the functioning of a democratic 
society, needed to check against corruption.''\1\
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    \1\NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
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    The public's statutory right to access information held by 
the Executive Branch, however, is not absolute. The Freedom of 
Information Act defines which agency records are subject to 
disclosure and outlines mandatory disclosure procedures. The 
Freedom of Information Act also includes, however, nine 
exemptions to disclosure and three law enforcement record 
exclusions that protect some records from disclosure to the 
public.\2\
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    \2\5 U.S.C. Sec. 552 (2006), amended by OPEN Government Act of 
2007, Pub. L. No. 110-175, 121 Stat. 2524.
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    Since its enactment, FOIA has been amended multiple times 
in an effort to improve both transparency and efficiency. 
Notably, under the OPEN Government Act of 2007, Congress 
created the Office of Government Information Services (OGIS). 
OGIS was designed to serve as the FOIA ombudsman--a resource 
for information and assistance for FOIA requesters--and it was 
tasked with helping to resolve disputes between Federal 
agencies and FOIA requesters. OGIS was also charged with 
reviewing FOIA policies and procedures, monitoring agency 
compliance, and providing findings and recommendations to 
Congress with respect to improving the administration of FOIA.
    Notwithstanding the many improvements to the original 
legislation, more needs to be done to ensure that FOIA remains 
the nation's premier transparency law. In Fiscal Year 2013, the 
Federal Government received over 700,000 FOIA requests, an 8% 
increase from the previous fiscal year.\3\ As the number of 
requests grows, so does the backlog of agency responses. A 
response to a FOIA request is considered to be backlogged if it 
has been pending with a Federal agency longer than the 
statutorily prescribed deadline to respond. At the end of 
Fiscal Year 2013, more than 95,000 responses to FOIA requests 
were backlogged with a Federal agency--a 33% increase from 
Fiscal Year 2012.\4\
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    \3\U.S. Department of Justice, Office of Information Policy, 
Summary of Annual FOIA Reports for Fiscal Year 2013 at 2, July 23, 
2014, available at http://www.justice.gov/sites/default/files/oip/
legacy/2014/07/23/fy2013-annual-report-summary.pdf.
    \4\Id. at 8.
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    In addition to the growing backlog, there are concerns that 
some agencies are overusing FOIA exemptions that allow, but do 
not require, information to be withheld from disclosure. 
Pursuant to FOIA, Federal agencies may only withhold documents, 
or portions of documents, sought if they fall within one or 
more of nine categories of exemptions established by the 
statute. While some FOIA exemptions leave no discretion to an 
agency in determining whether or not the information may be 
disclosed, other exemptions allow for discretionary disclosures 
permitting agencies to release the requested information even 
if it meets the technical requirements of the exemption.\5\ 
There is a growing and troubling trend towards relying on these 
discretionary exemptions to withhold large swaths of Government 
information, even though no harm would result from disclosure. 
For example, according to the OpenTheGovernment.org 2013 
Secrecy Report, Federal agencies used Exemption 5, which 
permits nondisclosure of information covered by litigation 
privileges such as the attorney-client privilege, the attorney 
work product doctrine, and the deliberative process privilege, 
more than 79,000 times in 2012--a 41% increase from the 
previous year.
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    \5\U.S. Department of Justice, Guide to the Freedom of Information 
Act, 2009 Edition, at 686-692 (2009).
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    During the Clinton Administration, Attorney General Janet 
Reno instructed agencies to make discretionary disclosures to 
FOIA requesters, and to withhold records only if a reasonably 
foreseeable harm existed from that release.\6\ In 2001, the 
George W. Bush Administration reversed this policy with a 
memorandum from Attorney General John Ashcroft that encouraged 
agencies to limit discretionary disclosures of information, and 
stated that the Department of Justice (DOJ) would defend 
decisions to withhold information from requesters unless those 
decisions ``lack[ed] a sound legal basis.''\7\ When President 
Obama took office in 2009, agencies again were instructed to 
take a more open approach to FOIA, and to deny a FOIA request 
only if the agency reasonably foresees that disclosure would 
harm an interest protected by one of the statutory 
exemptions.\8\ This ever-changing guidance is undoubtedly 
confusing to FOIA processors and requesters alike, and agencies 
need clearer guidance regarding when to withhold information 
covered by a discretionary FOIA exemption. Codification of this 
policy also makes clear that FOIA, under any administration, 
should be approached with a presumption of openness.
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    \6\Attorney General Janet Reno, Attorney General, Memorandum for 
Heads of Departments and Agencies, Subject: The Freedom of Information 
Act (Oct. 4, 1993).
    \7\Attorney General John Ashcroft, Attorney General, Memorandum for 
Heads of All Federal Departments and Agencies, Subject: The Freedom of 
Information Act (Oct. 12, 2001).
    \8\Attorney General Eric Holder, Memorandum for Heads of Executive 
Departments and Agencies, Subject: Freedom of Information Act (March 
19, 2009).
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    Finally, while OGIS has been largely successful in carrying 
out its mission and serving as a bridge between Federal 
agencies and FOIA requesters, it is hampered in one of its most 
fundamental duties. Under the OPEN Government Act of 2007, OGIS 
is charged with reviewing agency compliance with FOIA, 
reviewing policies and procedures of administrative agencies 
under the FOIA, and recommending policy changes to Congress and 
the President to improve the administration of FOIA. Since its 
inception, however, DOJ has required OGIS to submit its 
findings and recommendations to several executive agencies for 
final approval before receiving permission to deliver its 
findings to Congress. This process runs contrary to Congress's 
intent in creating OGIS, and raises questions about its 
independence, as well as with the timeliness with which 
Congress and the President can expect to receive its findings 
and recommendations.

                  B. THE FOIA IMPROVEMENT ACT OF 2015

    The FOIA Improvement Act of 2015 (``the FOIA Improvement 
Act'') takes a bipartisan approach to building upon the 
successes of previous FOIA reforms and aims to further 
modernize the law. Most importantly, this measure codifies the 
policy established in January 2009 by President Obama for 
releasing Government information under FOIA. The bill mandates 
that an agency may withhold information only if it reasonably 
foresees a specific identifiable harm to an interest protected 
by an exemption, or if disclosure is prohibited by law. This is 
commonly referred to as the ``presumption of openness.'' As 
President Obama noted when he issued his guidance, information 
may not be withheld ``merely because public officials might be 
embarrassed by disclosure, because errors and failures might be 
revealed, or because of speculative or abstract fears.''\9\
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    \9\President Barack Obama, Memorandum for the Heads of Executive 
Departments and Agencies, Subject: Freedom of Information Act (Jan. 21, 
2009).
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    Further, the bill adds a sunset provision to limit the 
applicability to Exemption 5 to documents created less than 25 
years ago. This provision is consistent with the fundamental 
goals of FOIA: encouraging both transparency and 
accountability. Nevertheless, FOIA has long sought to strike 
the proper balance between achieving its goals and avoiding 
unintended consequences that might chill internal decision-
making between government employees. The sunset provision 
continues to strike the proper balance between these two 
concerns. The provision ensures government records be made 
available to the public for their educational and historic 
value, while providing sufficient time for agencies to protect 
against the disclosure of their deliberative processes. The 
world can change significantly over the span of 25 years, and 
the public benefits derived from access to historical records 
should continue to be given special consideration when weighted 
against the government's interest in withholding information.
    The FOIA Improvement Act also strengthens the role of the 
Office of Government Information Services. First, it restores 
Congress's original intent, contained in the OPEN Government 
Act of 2007, that OGIS not be required to obtain the prior 
approval or comment of any agency before submitting its 
findings and recommendations to Congress and the President. 
Second, the measure requires agencies to notify requesters of 
the right to seek dispute resolution services from OGIS or the 
agency's FOIA public liaison. This is designed to encourage 
alternative dispute resolution in lieu of expensive and time-
consuming litigation. Third, it provides OGIS with the 
authority to issue advisory opinions at its own discretion 
following the completion of mediation services, which will 
provide guidance for similar disputes going forward.
    The FOIA Improvement Act also enhances the public's ability 
to access information by requiring that certain records and 
reports be made available in an electronic format, as well as 
requiring the public posting of documents that have been 
released under FOIA on three or more occasions. It additionally 
mandates that agencies make proactive disclosure of documents 
of general interest or use to the public an ongoing component 
of their records management program. The legislation clarifies 
FOIA's fee structure by prohibiting agencies from charging 
search or duplication fees when the agency fails to meet the 
notice requirements and time limits set by existing law, unless 
a request is considered voluminous.
    The FOIA Improvement Act mandates the creation of a Chief 
FOIA Officers Council to develop recommendations for increasing 
agency FOIA compliance and efficiency, disseminate information 
about agency best practices, and coordinate initiatives to 
increase transparency and open government. The Council is 
modeled after the currently existing Chief Information Officers 
Council.
    The FOIA Improvement Act requires the Director of the 
Office of Management and Budget (OMB) to consult with the 
Attorney General to ensure the operation of a consolidated 
online request portal. This portal will allow the public to 
submit a FOIA request to any agency from a single website. 
Currently, most federal agencies will accept an electronic FOIA 
request via the web. However, requesters must either visit a 
particular agency's website to determine how to submit a 
request or access www.foia.gov and search for a specific 
agency's details when submitting an online request. A 
consolidated online request portal will remove this burden and 
confusion. Moreover, the legislation provides that the new 
consolidated online request portal does not prohibit any agency 
from creating or maintaining an independent online portal for 
receiving requests. Finally, the legislation ensures that 
agencies retain the flexibility needed to process requests once 
received from the consolidated online request portal. 
Specifically, the Director of OMB is required to establish 
standards for interoperability between the consolidated online 
request portal and the software agencies currently use to 
process requests. This requirement recognizes the different 
needs and resources of agencies in processing and responding to 
requests.
    Finally, the FOIA Improvement Act enhances agency reporting 
requirements under FOIA to ensure that Federal agencies provide 
data needed to understand the frequency of the use of 
exemptions. Under the legislation, Federal agencies must 
include in their reports to Congress the number of instances 
that an exemption was used to withhold documents, the number of 
instances the agency made voluntary disclosures, and the number 
of times the agency engaged in dispute resolution with the OGIS 
or with the FOIA public liaison.
    The FOIA Improvement Act is supported by more than 50 
organizations ranging from librarians to public interest 
organizations, including the American Association of Law 
Libraries, the American Civil Liberties Union, the American 
Library Association, the American Society of News Editors, the 
Association of Research Libraries, the Center for Effective 
Government, Government Accountability Project, the National 
Freedom of Information Coalition, the National Security 
Archive, the National Security Counselors, 
OpenTheGovernment.org, People for the American Way, Project On 
Government Oversight, Reporters Committee for Freedom of the 
Press, Society of Professional Journalists, the Sunlight 
Foundation, and the Sunshine in Government Initiative.

          II. History of the Bill and Committee Consideration

                               A. HEARING

    In the 113th Congress, Chairman Leahy convened on March 11, 
2014, an oversight hearing entitled ``Open Government and 
Freedom of Information: Reinvigorating the Freedom of 
Information Act for the Digital Age.'' During the hearing, 
witnesses from the FOIA and open government community testified 
about the numerous challenges facing the Government in 
fulfilling its promises of transparency under FOIA. Witnesses 
in attendance included Miriam Nesbit, Director, Office of 
Government Information Services, National Archives and Records 
Administration; Melanie Pustay, Director, the Office of 
Information Policy, Department of Justice; Amy Bennett, 
Assistant Director, OpenTheGovernment.org; Dr. David Cuillier, 
Director, Associate Professor, University of Arizona School of 
Journalism and President of the Society of Professional 
Journalists; and Daniel J. Metcalfe, Adjunct Professor of Law 
and Executive Director, Collaboration on Government Secrecy, 
American University Washington College of Law.
    The hearing examined legislative proposals that would 
reform FOIA and address impediments to the public's ability to 
obtain Government information under that law. Several witnesses 
raised concerns regarding the growing use of FOIA exemptions by 
Federal agencies to withhold information from the public, and 
that some Federal agencies had failed to promulgate FOIA 
regulations--even though the Attorney General issued guidelines 
instructing them to do so in 2009. The hearing also explored 
the question of making OGIS more independent and allowing it to 
make recommendations on improving the FOIA process directly to 
Congress rather than having to submit the findings to a review 
process through OMB and DOJ.

                      B. INTRODUCTION OF THE BILL

    After numerous stakeholder meetings and obtaining feedback 
from Government agencies, then-Chairman Leahy (D-VT) and 
Senator John Cornyn (R-TX) introduced the FOIA Improvement Act 
of 2014, S. 2520, on June 24, 2014, in the 113th Congress. The 
bill was referred to the Committee on the Judiciary. Senators 
Grassley (R-IA), Hirono (D-HI), Johanns (R-NE), Coons (D-DE), 
Markey (D-MA), Ayotte (R-NH) and Tester (D-MT) later joined as 
cosponsors of the legislation.
    The Committee reported S. 2520, as amended by a substitute 
amendment, favorably to the Senate by voice vote on November 
20, 2014. The substitute amendment, offered by then-Chairman 
Leahy and Senator Cornyn, eliminated the balancing test to 
Exemption 5 originally proposed in the bill as introduced; 
clarified that the ``presumption of openness'' applies only to 
the discretionary exemptions of FOIA; and provided that Federal 
agencies may not charge fees if they miss the statutory 
deadline for responding to a FOIA request, unless the request 
requires a response of more than 50,000 pages. The substitute 
amendment was accepted by unanimous consent.
    S. 2520 then passed the Senate by unanimous consent without 
amendment on December 8, 2014.
    The FOIA Improvement Act of 2015, S. 337, is a continuation 
of the efforts in the 113th Congress. It was introduced on 
February 2, 2015, by Senator Cornyn (R-TX), Chairman Grassley 
(R-IA), and Ranking Member Leahy (D-VT). Senators Fischer (R-
NE) and Coons (D-DE) were later added as cosponsors. S. 337 is 
nearly identical to S. 2520. One technical correction was made 
to Section 2(1)(A)(ii), which changed ``not less than 3 times'' 
to ``3 or more times'' for additional clarity. The language was 
otherwise unchanged from S. 2520.

                       C. COMMITTEE CONSIDERATION

    The Committee considered the FOIA Improvement Act of 2015 
on February 5, 2015, and voted to report the bill favorably to 
the Senate by voice vote. S. 337 was then reported to the full 
Senate on February 9, 2015.

              III. Section-by-Section Analysis of the Bill

Section 1. Short title

    This section provides that the legislation may be cited as 
the ``FOIA Improvement Act of 2015.''

Section 2. Amendments to FOIA

    This section details the changes made by the FOIA 
Improvement Act to 5 U.S.C. Sec.  552, the Freedom of 
Information Act (FOIA).
    Electronic Accessibility--The FOIA Improvement Act amends 
the existing requirements that certain records and reports be 
made available for public inspection to mandate that records 
available for public inspection be made available in an 
electronic format in order to ease public access.
    Frequently Requested Records--The current law requires that 
Federal agencies post ``frequently requested'' records sought 
under FOIA online. The FOIA Improvement Act clarifies that 
``frequently requested'' documents include any document that 
has been released under FOIA and has been requested three or 
more times.
    Fees Clarification--The FOIA Improvement Act clarifies that 
agencies may not charge search or duplications fees when the 
agency fails to meet the notice requirements and time limits 
set by existing law, unless a request is considered voluminous. 
Agencies have been prohibited from charging fees in cases where 
the agency failed to meet the notice requirement and time 
limits since the passage of the OPEN Government Act of 2007. 
However, ambiguity in the language allowed agencies to continue 
to charge fees in cases where they have not in fact met the 
notice requirements and time limits for responding to a FOIA 
request.
    The changes in this section remove that ambiguity and make 
clear that agencies may not charge search and duplication fees 
unless more than 50,000 pages are necessary to respond to a 
single request.
    Presumption of Openness--The FOIA Improvement Act codifies 
the policy established for releasing Government information 
under FOIA by President Obama when he took office in January 
2009 and confirmed by Attorney General Holder in a March 19, 
2009, Memorandum to all Executive Departments and Agencies. The 
standard mandates that an agency may withhold information only 
if it reasonably foresees a specific identifiable harm to an 
interest protected by an exemption, or if disclosure is 
prohibited by law. This standard is commonly referred to as the 
``Foreseeable Harm'' standard, or the ``Presumption of 
Openness.'' President Obama's guidance on this standard states:

          The Freedom of Information Act should be administered 
        with a clear presumption: In the face of doubt, 
        openness prevails. The Government should not keep 
        information confidential merely because public 
        officials might be embarrassed by disclosure, because 
        errors and failures might be revealed, or because of 
        speculative or abstract fears. Nondisclosure should 
        never be based on an effort to protect the personal 
        interests of Government officials at the expense of 
        those they are supposed to serve.\10\
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    \10\President Barack Obama, Memorandum for the Heads of Executive 
Departments and Agencies, Subject: Freedom of Information Act (Jan. 21, 
2009).

    Under this standard, the content of a particular record 
should be reviewed and a determination made as to whether the 
agency reasonably foresees that disclosing that particular 
document, given its age, content, and character, would harm an 
interest protected by the applicable exemption. Agencies should 
note that mere ``speculative or abstract fears,'' or fear of 
embarrassment, are an insufficient basis for withholding 
information.
    It is the intent of Congress that agency decisions to 
withhold information relating to current law enforcement 
actions under the foreseeable harm standard be subject to 
judicial review for abuse of discretion.
    The foreseeable harm standard applies only to those FOIA 
exemptions under which discretionary disclosures can be made. 
Several FOIA exemptions by their own existing terms cover 
information that is prohibited from disclosure or exempt from 
disclosure under a law outside the four corners of FOIA.\11\ 
Such information is not subject to discretionary disclosure and 
is therefore not subject to the foreseeable harm standard.
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    \11\See U.S. Department of Justice, Guide to the Freedom of 
Information Act, 2009 Edition, at 687-689 (2009) (explaining that 
classified information, information protected from disclosure by the 
Trade Secrets Act, information protected by the Privacy Act, and 
information protected from disclosure under an Exemption 3 statute are 
not appropriate subjects of discretionary disclosure). Exemption 3 
exempts from disclosure information that is ``specifically exempted 
from disclosure by statute (other than section 552b of this title), if 
that statute'' contains a non-discretionary disclosure prohibition or 
``establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.'' 5 U.S.C. 
Sec. 552(b)(3)(A). In addition, a statute enacted after the date of 
enactment of the OPEN FOIA Act of 2009 can only serve as an Exemption 3 
statute if it ``specifically cites'' to the Exemption 3 statute. Id. 
Sec. 552(b)(3)(B).
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    For example, classified information is protected from 
disclosure by Exemption 1, see 5 U.S.C. Sec. 552(b)(1), and 
Federal criminal statutes make it unlawful to disclose 
classified information, see e.g., 18 U.S.C. Sec. 798. Moreover, 
Exemption 6 was ``intended to cover detailed Government records 
on an individual which can be identified as applying to that 
individual.''\12\ Such information is protected if disclosure 
``would constitute a clearly unwarranted invasion of personal 
privacy.''\13\ And Exemption 7(C)--``the law enforcement 
counterpart to Exemption 6''\14\--protects information compiled 
for law enforcement purposes the disclosure of which ``could 
reasonably be expected to constitute an unwarranted invasion of 
personal privacy.''\15\ Much of the information covered by 
these privacy exemptions is subject to a disclosure prohibition 
in the Privacy Act.\16\
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    \12\See H.R. Rep. No. 89-1497, at 11, quoted in Dep't of State v. 
Wash. Post. Co., 456 U.S. 595, 602 (1982).
    \13\5 U.S.C. Sec. 552(b)(6).
    \14\U.S. Department of Justice, Guide to the Freedom of Information 
Act, 2009 Edition, at 561 (2009).
    \15\5 U.S.C. Sec. 552(b)(7)(C).
    \16\As the Supreme Court explained in Department of Defense v. 
Federal Labor Relations Auth., 510 U.S. 487, 494-95 (1994), information 
protected by the Privacy Act's disclosure prohibition (5 U.S.C. 
Sec. 552a(b)) cannot be disclosed unless an exemption under the Privacy 
Act applies. One of those exemptions is for disclosure that is 
``required under Section 552,'' referring to disclosure required by 
FOIA. 5 U.S.C. Sec. 552a(b)(2). Thus, unless another Privacy Act 
exemption applies, the Privacy Act itself prohibits disclosure of 
information that is both (a) protected by the Privacy Act, and (b) 
exempt from FOIA disclosure, such as under Exemptions 6 or 7(C). FLRA, 
510 U.S. at 494 (``[U]nless FOIA would require release of the 
addresses, their disclosure is `prohibited by law,' and the agencies 
may not reveal them.''); see also Dep't of Defense v. Federal Labor 
Relations Auth., 964 F.2d 26, 30-31 n.6 (D.C. Cir. 1992) (``[I]n 
responding to a FOIA request for personal information about its 
employees, a federal agency can only disclose information that it would 
be required to disclose under the FOIA. For an agency to do otherwise 
would violate the prohibition on disclosure in the Privacy Act.''). In 
addition, as with other subparts of Exemption 7, the texts of Exemption 
7(C) and 6 incorporate a reasonable harm standard that this legislation 
is not meant to displace.
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    Other narrowly-drawn exemptions for information compiled 
for law enforcement purposes within Exemption 7 already 
incorporate a reasonable foreseeability of harm standard within 
the text of the exemption. This legislation is not meant to 
displace these exemptions.\17\ Among other things, these 
exemptions protect against infringement of a defendant's right 
to a fair trial, circumvention of the law, and risks to 
confidential sources.\18\ As with the privacy exemptions, some 
such information may be subject to a disclosure prohibition or 
other exemption. These prohibitions or exemptions by their 
express terms apply a standard equal to, or greater than, 
reasonable foreseeability with respect to the harms they are 
meant to protect against.\19\
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    \17\5 U.S.C. Sec. 552(b)(7). Such exemptions are contained in 
subparagraphs of Exemption 7 other than subparagraph 7(C).
    \18\Exemption 7(D) is critically important for all levels of law 
enforcement. It is ``is meant to (1) protect confidential sources from 
retaliation that may result from the disclosure of their participation 
in law enforcement activities, and (2) ``encourage cooperation with law 
enforcement agencies by enabling the agencies to keep their informants' 
identities confidential.'' See Ortiz v. Dep't of Health and Human 
Servs., 70 F.3d 729, 732 (2d Cir. 1995) (citing Brant Construction Co. 
v. United States EPA, 778 F.2d 1258, 1262 (7th Cir. 1985), and United 
Technologies Corp. v. NLRB, 777 F.2d 90, 94 (2d Cir. 1985)).
    \19\Reasonable-foreseeability tests are imposed by Exemption 7(A) 
(``could reasonably be expected to interfere with enforcement 
proceedings''), 5 U.S.C. Sec. 552(b)(7)(A); Exemption 7(D) (``could 
reasonably be expected to disclose the identity of a confidential 
source . . . or information furnished by a confidential source''), id. 
Sec. 552(b)(7)(D); Exemption 7(E) (``if such disclosure could 
reasonably be expected to risk circumvention of the law''), id. 
Sec. 552(b)(7)(E); and Exemption 7(F) (``could reasonably be expected 
to endanger the life or physical safety of any individual''), id. 
Sec. 552(b)(7)(F). A higher threshold than reasonable-foreseeability is 
already imposed by Exemption (7)(B), which protects information the 
disclosure of which ``would deprive a person of a right to a fair trial 
or an impartial adjudication.'' Id. Sec. 552(b)(7)(B). As the Supreme 
Court explained prior to the 1986 amendments, ``[t]he enumeration of 
these categories of undesirable consequences indicates Congress 
believed the harm of disclosing this type of information would outweigh 
its benefits.'' FBI v. Abramson, 456 U.S. 615, 627-28 (1982).
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    Extreme care should be taken with respect to disclosure 
under Exemption 8 which protects matters that are ``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.''\20\ Currently, financial regulators rely on 
Exemption 8, and other relevant exemptions in Section 552(b), 
to protect sensitive information received from regulated 
entities, or prepared in connection with the regulation of such 
entities, in fulfilling their goals of ensuring safety and 
soundness of the financial system, compliance with federal 
consumer financial law, and promoting fair, orderly, and 
efficient financial markets. Exemption 8 was intended by 
Congress, and has been interpreted by the courts, to be very 
broadly construed to ensure the security of financial 
institutions and to safeguard the relationship between the 
banks and their supervising agencies.\21\ The D.C. Circuit has 
gone so far as to state that in Exemption 8 Congress has 
provided ``absolute protection regardless of the circumstances 
underlying the regulatory agency's receipt or preparation of 
examination, operating or condition reports.''\22\ Nothing in 
this legislation shall be interpreted to compromise the 
stability of any financial institution or the financial system, 
disrupt the operation of financial markets or undermine 
consumer protection efforts due to the release of confidential 
information about individuals or information that a financial 
institution may have, or encourage the release of confidential 
information about individuals. This legislation is not intended 
to lessen the protection under Exemption 8 created by Congress 
and traditionally afforded by the courts.
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    \20\5 U.S.C. Sec. 552(b)(8).
    \21\See, e.g., Consumers Union v. Heimann, 589 F.2d 531, 534 (D.C. 
Cir. 1978) (identifying the primary reason for Exemption 8 was to 
``ensure the security of financial institutions'' against the 
possibility that ``disclosure of examination, operation, and condition 
reports containing frank evaluations of the investigated banks might 
undermine public confidence and cause unwarranted runs on banks,'' and 
the secondary purpose was to ``safeguard the relationship between the 
banks and their supervising agencies,'' because banks would be less 
likely to cooperate with federal authorities if ``examinations were 
made freely available to the public and to banking competitors.'').
    \22\Gregory v. Federal Deposit Insurance Corporation, 631 F.2d 896, 
898 (D.C. Cir. 1980).
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    Exemption 5--The FOIA Improvement Act amends Exemption 5 to 
include a sunset provision, which would limit the application 
of Exemption 5 to documents created less than 25 years ago. 
Exemption 5 permits agencies to withhold from disclosure inter- 
and intra-agency documents that would be exempt from discovery 
in civil or criminal litigation. This includes but is not 
limited to the attorney-client privilege, the attorney work 
product doctrine, and deliberative process documents.
    The amendment to Exemption 5 is consistent with the unique 
relationship that government employees have with executive 
branch agencies, as well as the duty imposed on government 
employees to act in the public interest. The actions of 
government lawyers, for example, are subject to a degree of 
public scrutiny and review that is unknown within the context 
of a private attorney and her private citizen--or even 
corporate entity--client.\23\
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    \23\See, for example, In re Witness Before Special Grand Jury 2000-
2, 288 F.3d 289, 293 (7th Cir. 2002) (``First, government lawyers have 
responsibilities and obligations different from those facing members of 
the private bar. While the latter are appropriately concerned first and 
foremost with protecting their clients--even those engaged in 
wrongdoing--from criminal charges and public exposure, government 
lawyers have a higher, competing duty to act in the public 
interest.'').
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    Office of Government Information Services Independence--The 
FOIA Improvement Act provides additional independence for the 
Office of Government Information Services, created by the Open 
Government Act of 2007. It gives OGIS the ability to report 
directly to the Congress and the President without prior 
approval from any other agency, including the DOJ or the OMB. 
The bill also provides OGIS with the authority to issue 
advisory opinions at its discretion at the completion of 
mediation between a FOIA requester and an agency. The Committee 
expects OGIS to use its full authority to issue advisory 
opinions, particularly in instances where OGIS notices a 
particular pattern of non-compliance with the law.
    Dispute Resolution Services--The FOIA Improvement Act 
requires agencies to notify FOIA requesters of the right to 
seek dispute resolution services from OGIS or the agency's FOIA 
public liaison.
    Government Accountability Office--The FOIA Improvement Act 
requires the GAO, in addition to its current responsibility of 
auditing agency compliance with the FOIA, to catalog and report 
on the statutory exemptions to FOIA that exist outside of 5 
U.S.C. Sec. 552 (as incorporated into FOIA through Exemption 
3),\24\ including the frequency with which the exemptions are 
invoked. Furthermore, the bill requires the GAO to examine and 
report on the use of Exemption 5 and examine the manner in 
which those exemptions have been used by agencies.
---------------------------------------------------------------------------
    \24\5 U.S.C. Sec. 552(b)(3).
---------------------------------------------------------------------------
    Chief FOIA Officers Council--The FOIA Improvement Act 
mandates creation of a council to develop recommendations for 
increasing agency FOIA compliance and efficiency by Federal 
agencies, disseminate information about agency best practices, 
and coordinate initiatives to increase transparency and open 
government. The Council is modeled after the currently existing 
Chief Information Officers Council. The Committee believes 
meetings of the Council and all materials generated in 
preparation for or as a result of the Council's work should be 
as open to the public as possible.
    FOIA Reports--The FOIA Improvement Act requires agencies to 
include in their annual FOIA reports (a) the number of times 
documents have been exempted from disclosure as part of an 
ongoing criminal investigation under 5 U.S.C. Sec. 552(c); (b) 
the number of times the agency has engaged in dispute 
resolution with OGIS or the FOIA public liaison; and (c) the 
number of records the agency proactively discloses as required 
by 5 U.S.C. Sec. 552(a)(2).
    Consolidated Online Request Portal--The FOIA Improvement 
Act requires the Director of OMB, in consultation with the 
Attorney General, to ensure the operation of a consolidated 
online request portal that allows the public to submit a FOIA 
request to any agency from a single website. The legislation 
provides that this requirement shall not be construed to alter 
any other agency's power to create or maintain an independent 
online portal for the submission of a FOIA request. Further, 
the Director of OMB is instructed to establish standards for 
interoperability between the new consolidated online request 
portal and other request processing software used by agencies 
subject to this section.

Section 3. Revision and issuance of regulations

    This section requires agencies to review and issue 
regulations on the procedures for disclosure of records under 
section 552 of title 5, including procedures for dispute 
resolution and engaging with the Office of Government 
Information Services.

Section 4. Proactive disclosure through records management

    This section amends section 3102 of title 44 of the United 
States Code to make proactive disclosure an ongoing part of 
agency record management by requiring the heads of agencies to 
include in an agency's records management system procedures for 
identifying records of general interest or use to the public 
that are appropriate for public disclosure, and for making such 
records publicly available in an electronic format.

Section 5. 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.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 337, 
the following estimate and comparison prepared by the Director 
of the Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:
                                                 February 17, 2015.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 337, the FOIA 
Improvement Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact for this 
estimate is Matthew Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 337--FOIA Improvement Act of 2015

    Summary: S. 337 would amend the Freedom of Information Act 
(FOIA) and aims to provide easier access to government 
documents. 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; 
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 on FOIA matters.
    CBO estimates that implementing S. 337 would cost $20 
million over the 2015-2020 period, assuming appropriation of 
the necessary amounts. Enacting S. 337 could affect direct 
spending by agencies not funded through annual appropriations 
(such as the Tennessee Valley Authority). Therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net 
changes direct spending by those agencies would not be 
significant. Enacting the bill would not affect revenues.
    S. 337 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 S. 337 is shown in the following table. The 
costs of this legislation fall within all budget functions that 
contain salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                              By fiscal year, in millions of dollars--
                                                  --------------------------------------------------------------
                                                                                                          2015-
                                                     2015     2016     2017     2018     2019     2020     2020
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level....................        2        4        4        5        5        5       25
Estimated Outlays................................        1        3        4        4        4        4       20
----------------------------------------------------------------------------------------------------------------

    Basis of the estimate: For this estimate, CBO assumes that 
the bill will be enacted 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 (DOJ) 
oversees agency compliance with FOIA. In 2013, federal agencies 
(excluding the Social Security Administration) received more 
than 704,000 FOIA requests. In addition, DOJ reports that in 
fiscal year 2013, agencies employed about 4,200 full-time staff 
to fulfill requests and spent $446 million on related 
activities.
    Some of the provisions of the bill would codify and expand 
current practices related to FOIA. Presidential memoranda and 
DOJ guidelines have directed agencies to provide more FOIA 
information to the public on a timely basis. Under the bill, 
CBO expects that OMB would expand the use of existing websites 
that are currently used to fulfill FOIA requests.
    CBO anticipates that the workloads of most agencies would 
increase slightly to carry out the bill's new reporting 
requirements. We also expect that agencies would incur 
additional costs to organize and hold an annual FOIA meeting 
and to establish a Chief FOIA Officers Council to review and 
improve the FOIA process. Based on the costs of developing and 
maintaining similar electronic filing systems and websites and 
a review of the annual reports on FOIA activities submitted by 
15 major agencies over the past five years, which provide 
information on FOIA-related costs, CBO estimates that 
implementing S. 337 would eventually cost $5 million annually--
a 1 percent increase in the governmentwide cost of 
administering FOIA. We expect that most federal agencies would 
face additional costs of significantly less than $0.5 million 
per year.
    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 S. 337 could affect net direct spending for 
agencies not funded through the appropriations process, but CBO 
estimates that such effects would not be significant in any 
year.
    Intergovernmental and private-sctor impact: S. 337 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: Jon Sperl; 
Impact on private sector: John Rodier.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 337.

                             VI. Conclusion

    Passage of the FOIA Improvement Act will ensure FOIA 
remains our nation's premier transparency law. Codification of 
the presumption of openness is long overdue, and will reaffirm 
our commitment to promoting transparency and an open 
government. Improvements to OGIS will help ensure that it 
serves as a much-needed bridge between Federal agencies and 
FOIA requesters, as well as a resource to Congress and the 
President as we continue to evaluate and improve FOIA 
administration. The passage and enactment of this important 
legislation furthers the notions that government 
accountability, best achieved through a strong commitment to 
transparency laws, is in the interests of both the Government 
and its citizenry alike.

                         VII. Additional Views

                 ADDITIONAL VIEWS FROM SENATOR SESSIONS

    Since the Freedom of Information Act was first passed in 
1966, it has been an invaluable tool for promoting government 
accountability and transparency--``ensur[ing] an informed 
citizenry, vital to the functioning of a democratic society, 
needed to check against corruption and to hold the governors 
accountable to the governed.''\1\ The Committee is now 
recommending a bill to the Senate that seeks to build on these 
worthy goals. However, I am concerned that a provision in this 
legislation could cause a decline in the effectiveness of 
decisionmaking by government officials by chilling lawyers from 
presenting in writing various options and concerns. The 
historic strength, even sanctity, of the attorney-client 
relationship has been a valued part of the American legal 
tradition since the nation's founding. To allow a breach of 
that private communication without specific cause and merely 
upon the passage of time through FOIA is an enormous alteration 
of this long-established principle.
---------------------------------------------------------------------------
    \1\NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
---------------------------------------------------------------------------
    Specifically, the bill would change the law so that 
government documents that are currently covered by FOIA 
Exemption 5 could potentially be disclosed after 25 years. FOIA 
Exemption 5 provides that executive agencies do not have to 
make public any ``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.''\2\ Interpreting 
this language, the Supreme Court has ``construe[d] Exemption 5 
to exempt those documents, and only those documents, normally 
privileged in the civil discovery context.''\3\ As such, 
Exemption 5 is broad in its scope, ``encompassing both 
statutory privileges and those commonly recognized by case 
law,''\4\ including both the attorney-client and attorney work-
product privileges.
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    \2\5 U.S.C. 552(b)(5).
    \3\NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
    \4\Office of Information Policy, ``Guide to the Freedom of 
Information Act,'' pg. 357, Dep't of Justice, Jul. 23, 2014, available 
at: http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/
exemption5--1.pdf.
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    By subjecting such documents to potential disclosure, this 
legislation could chill government lawyers from offering candid 
advice and invite criminal defendants and their attorneys to 
re-open and re-litigate long-resolved cases. As the Supreme 
Court stated in Upjohn Co. v. United States:

          The attorney-client privilege is the oldest of the 
        privileges for confidential communications known to the 
        common law. Its purpose is to encourage full and frank 
        communication between attorneys and their clients, and 
        thereby promote broader public interests in the 
        observance of law and administration of justice. The 
        privilege recognizes that sound legal advice or 
        advocacy serves public ends and that such advice or 
        advocacy depends upon the lawyer's being fully informed 
        by the client.\5\
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    \5\Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (internal 
citations omitted).

    These same goals and needs exist in the executive agency 
context to the same extent that they exist in any other legal 
context, which is why the Supreme Court has also recognized 
``that an agency can be a `client' and agency lawyers can 
function as `attorneys' within the relationship contemplated by 
the [attorney-client] privilege . . .''\6\ Agency lawyers rely 
on ``full and frank communication'' with their executive branch 
clients in order to provide ``sound legal advice or advocacy.'' 
I am concerned that ``full and frank communication'' may be 
chilled by the knowledge that all such communications could 
become a matter of public record within a relatively short time 
period. As the Supreme Court stated in United States v. Nixon, 
``[h]uman experience teaches that those who expect public 
dissemination of their remarks may well temper candor with a 
concern for appearances and for their own interests to the 
detriment of the decision-making process.''\7\ Attorneys who 
have prepared legal opinions in the past have felt free to 
discuss credibility issues, unproven facts, character 
judgments, and the like on the assumption that they would be 
considered in the process but never suspecting they would be 
made public on the mere showing of passage of time. This 
concern is magnified by the fact that many government lawyers' 
careers span well over 25 years. It would be unfortunate if a 
young lawyer withheld sound legal advice, sanitizing or 
reducing the content of his writings, for fear that he might be 
criticized for such advice later on, or if an agency official 
withheld information from lawyers out of similar concern.
---------------------------------------------------------------------------
    \6\Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 
863 (D.C. Cir. 1980).
    \7\United States v. Nixon, 418 U.S. 683, 705 (1974).
---------------------------------------------------------------------------
    In addition, litigation can often last well beyond 25 
years. At the very least, this legislation raises the question 
of whether documents related to ongoing litigation could be 
disclosed to the public. There would be little certainty, as 
the question of disclosure in such scenarios would presumably 
be decided by a judge.
    Finally, I am informed by both the Department of Justice 
and the National Association of Assistant United States 
Attorneys that the 25-year sunset provision on Exemption 5 
could invite defendants and their lawyers to use FOIA as an 
alternative discovery tool in attempts to re-open closed cases. 
FOIA was designed by Congress as a public accountability 
measure and not as an instrument of litigation. Preliminary 
opinions, early research, and comments made before facts are 
fully known when considered years later can create unfounded 
issues resulting in prolonged re-litigation of cases concluded 
on clear evidence.
    While I support the overall purpose of the legislation, I 
believe that these issues should be studied more closely. I 
look forward to working with the sponsors and discussing these 
matters to ensure potential unintended consequences do not 
frustrate the bill's purpose. I applaud the Committee for its 
continued efforts to ensure the transparent and accountable 
governance that is so critical to the health of any democracy.

                                                     Jeff Sessions.
      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that it is 
necessary to dispense with the requirement of paragraph 12 to 
expedite the business of the Senate.

                              [all]
```