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[Senate Report 113-287]
[From the U.S. Government Publishing Office]

113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-287

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

 
                      FOIA IMPROVEMENT ACT OF 2014

                                _______
                                

                December 8, 2014.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2520]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2520), to improve the Freedom of Information Act, 
having considered the same, reports favorably thereon, with an 
amendment, and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the FOIA Improvement Act of 2014.......1
 II. History of the Bill and Committee Consideration..................5
III. Section-by-Section Analysis of the Bill..........................6
 IV. Congressional Budget Office Cost Estimate.......................11
  V. Regulatory Impact Evaluation....................................11
 VI. Conclusion......................................................11
VII. Changes to Existing Law Made by the Bill, as Reported...........12

     I. Background and Purpose of the FOIA Improvement Act of 2014

               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, 9 exemptions 
to disclosure and 3 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). 
The Office of Government Information Services 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. The Office of Government Information Services 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 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 percent 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 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 the 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 2014

    The FOIA Improvement Act of 2014 (``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\ 
Further, the bill adds a sunset provision to limit the 
applicability to Exemption 5 to documents created less than 25 
years ago.
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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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    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 Officer 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 and 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 70 
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, the Center for Media and Democracy, the Center for 
Justice & Democracy at New York Law School, Citizen Works, 
Government Accountability Project, Greenpeace, the Liberty 
Coalition, the Minnesota Coalition on Government Information, 
the Mississippi Center for Freedom of Information, the National 
Freedom of Information Coalition, the National Security 
Archive, the National Security Counselors, New Media Rights, 
OpenTheGovernment.org, the PEN American Center, People For the 
American Way, Project On Government Oversight, Reporters 
Committee for Freedom of the Press, Society of American 
Archivists, Society of Professional Journalists, the Sunlight 
Foundation, U.S. Public Interest Research Group, and the 
Sunshine in Government Initiative.

          II. History of the Bill and Committee Consideration

                               A. HEARING

    On March 11, 2014, Chairman Leahy convened 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 include 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, Chairman Leahy and Senator John 
Cornyn introduced the FOIA Improvement Act on June 24, 2014. 
The bill was referred to the Committee on the Judiciary. 
Senators Grassley, Hirono, Johanns, Coons, Markey, Ayotte and 
Tester later joined as cosponsors of the legislation.

                       C. COMMITTEE CONSIDERATION

    The Committee considered S. 2520 on November 20, 2014. 
Chairman Leahy, on behalf of himself and Senator Cornyn, 
offered a substitute amendment to make several changes to the 
bill. The substitute amendment eliminated the balancing test to 
Exemption 5 originally proposed in the bill as introduced. The 
substitute amendment also clarified that the ``presumption of 
openness'' applies only to the discretionary exemptions of 
FOIA, and clarified 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.
    The Committee then voted to report the FOIA Improvement Act 
of 2014, with an amendment in the nature of a substitute, 
favorably to the Senate by a voice vote.

              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 2014.''

Section 2. Amendments to FOIA

    This section details the changes made by the FOIA 
Improvement Act to 5 U.S.C. 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 
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, 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\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 Authority, 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 
``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\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 institution'' against the 
possibility that ``disclosure of examination, operation, and condition 
reports containing frank evaluations of investigated banks might 
undermine public confidence and cause unwarranted runs of 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.
    Office of Government Information Services Independence--The 
FOIA Improvement Act provides additional independence for the 
Office of Government Information Services (OGIS), 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),\23\ 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.
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    \23\5 U.S.C. Sec. 552(b)(3).
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    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. 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 cost estimate provided by the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974 was not available for inclusion in this report. The 
estimate will be printed in either a supplemental report or the 
Congressional Record when it is available.

                    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. 2520.

                             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. 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.
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