59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–391 

FOIA OVERSIGHT AND IMPLEMENTATION ACT OF 2015 

JANUARY 7, 2016.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. CHAFFETZ, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 653] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 653) to amend section 552 of title 5, 

United States Code (commonly known as the Freedom of Information Act), to provide for greater public access to information, and 

for other purposes, having considered the same, report favorably 

thereon with an amendment and recommend that the bill as 

amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 7 

Section-by-Section .................................................................................................... 16 

Explanation of Amendments ................................................................................... 17 

Committee Consideration ........................................................................................ 18 

Roll Call Votes ......................................................................................................... 18 

Application of Law to the Legislative Branch ....................................................... 18 

Statement of Oversight Findings and Recommendations of the Committee ...... 19 

Statement of General Performance Goals and Objectives .................................... 19 

Duplication of Federal Programs ............................................................................ 19 

Disclosure of Directed Rule Makings ..................................................................... 19 

Federal Advisory Committee Act ............................................................................ 19 

Unfunded Mandate Statement ............................................................................... 19 

Earmark Identification ............................................................................................ 19 

Committee Estimate ................................................................................................ 19 

Budget Authority and Congressional Budget Office Cost Estimate .................... 20 

Changes in Existing Law Made by the Bill, as Reported ..................................... 22 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 


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SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘FOIA Oversight and Implementation Act of 2015’’ 

or the ‘‘FOIA Act’’. 

SEC. 2. FREEDOM OF INFORMATION ACT AMENDMENTS. 

(a) ELECTRONIC ACCESSIBILITY.—Section 552 of title 5, United States Code, is 

amended— 

(1) in subsection (a)— 

(A) in paragraph (2)— 

(i) by striking ‘‘for public inspection and copying’’ each place it appears and inserting ‘‘in an electronic, publicly accessible format’’; 

(ii) by striking ‘‘; and’’ and inserting a semicolon; 

(iii) by striking subparagraph (E) and inserting the following new 

subparagraphs: 

‘‘(E) copies of all releasable records, regardless of form or format, that have 

been requested three or more times under paragraph (3); and 

‘‘(F) a general index of the records referred to under subparagraphs (D) and 

(E);’’; and 

(iv) in the matter following subparagraph (F) (as added by clause (iii) 

of this subparagraph)— 

(I) by striking ‘‘subparagraph (D)’’ and inserting ‘‘subparagraphs 

(D) and (E)’’; and 

(II) by striking ‘‘subparagraph (E)’’ and inserting ‘‘subparagraph 

(F)’’; and 

(B) in paragraph (7)— 

(i) in subparagraph (A), by striking ‘‘that will take longer than ten 

days to process’’; and 

(ii) in subparagraph (B), by inserting ‘‘automated’’ after ‘‘provides’’; 

(2) in subsection (g), by striking ‘‘make publicly available upon request’’ and 

inserting ‘‘make available in an electronic, publicly accessible format’’; and 

(3) by adding at the end the following new subsection: 

‘‘(m) ELECTRONIC SUBMISSION OF REQUESTS.— 

‘‘(1) CONSOLIDATED ONLINE REQUEST PORTAL.—The Director of the Office of 

Management and Budget, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that allows a member 

of the public to submit a request for records under subsection (a) to any agency 

from a single website. The portal may include any additional tools the Director 

of the Office of Management and Budget finds will improve the implementation 

of this section. 

‘‘(2) RULE OF CONSTRUCTION.—This subsection shall not be construed to alter 

the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. The Director 

of the Office of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section. 

‘‘(3) EMAIL REQUEST REQUIRED.—Each agency shall accept requests for records 

under subsection (a) through an email address and shall publish such email address on the website of the agency.’’. 

(b) PRESUMPTION OF OPENNESS.—Section 552(b) of title 5, United States Code, is 

amended— 

(1) in paragraph (5), by inserting after ‘‘with the agency’’ the following: ‘‘, excluding— 

‘‘(A) opinions that are controlling interpretations of law; 

‘‘(B) final reports or memoranda created by an entity other than the agency, including other Governmental entities, at the request of the agency and 

used to make a final policy decision; 

‘‘(C) guidance documents used by the agency to respond to the public; and 

‘‘(D) records or information created 25 years or more before the date on 

which a request is made under subsection (a)(3)’’; and 

(2) in the matter following paragraph (9), by inserting before ‘‘Any reasonably 

segregable portion’’ the following: ‘‘An agency may not withhold information 

under this subsection unless such agency reasonably foresees that disclosure 

would cause specific identifiable harm to an interest protected by an exemption, 

or if disclosure is prohibited by law.’’. 

(c) ASSESSMENT OF ATTORNEY FEES AND OTHER LITIGATION COSTS.—Section 

552(a)(4)(E)(i) of title 5, United States Code, is amended by striking ‘‘The court may’’ 

and inserting ‘‘The court shall’’. 

(d) THE OFFICE OF GOVERNMENT INFORMATION SERVICES.—Section 552 of title 5, 

United States Code, is amended— 


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(1) in subsection (a)(4)(A)(i), by striking ‘‘the Director of the Office of Management and Budget’’ and inserting ‘‘the Director of the Office of Management and 

Budget, in consultation with the Director of the Office of Government Information Services,’’; and 

(2) by amending subsection (h) to read as follows: 

‘‘(h) THE OFFICE OF GOVERNMENT INFORMATION SERVICES.— ‘‘(1) ESTABLISHMENT.—There is established the Office of Government Information Services within the National Archives and Records Administration. The 

head of the Office is the Director of the Office of Government Information Services. 

‘‘(2) REVIEW OF FOIA POLICY, PROCEDURE, AND COMPLIANCE.—The Office of 

Government Information Services shall— 

‘‘(A) review policies and procedures of agencies under this section; 

‘‘(B) review compliance with this section by agencies; 

‘‘(C) identify methods that improve compliance under this section that 

may include— 

‘‘(i) the timely processing of requests submitted to agencies under 

this section; 

‘‘(ii) the system for assessing fees and fee waivers under this section; 

and 

‘‘(iii) the use of any exemption under subsection (b); and 

‘‘(D) review and provide guidance to agencies on the use of fees and fee 

waivers. 

‘‘(3) MEDIATION SERVICES.—The Office of Government Information Services 

shall offer mediation services to resolve disputes between persons making requests under this section and agencies as a non-exclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to such mediation services. 

‘‘(4) SUBMISSION OF REPORT.— 

‘‘(A) IN GENERAL.—The Office of Government Information Services shall 

not less than annually submit to the committees described in subparagraph 

(C) and the President a report on the findings from the information reviewed and identified under paragraph (2), a summary of the Office’s activities under paragraph (3) (including any advisory opinions issued), and legislative and regulatory recommendations to improve the administration of 

this section. 

‘‘(B) ELECTRONIC AVAILABILITY OF REPORTS.—The Office shall make available any report submitted under paragraph (A) in a publicly accessible format. 

‘‘(C) CONGRESSIONAL SUBMISSION OF REPORT.—The committees described 

in this subparagraph are the following: 

‘‘(i) The Committee on Oversight and Government Reform of the 

House of Representatives. 

‘‘(ii) The Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate. 

‘‘(D) DIRECT SUBMISSION OF REPORTS AND TESTIMONY.—Any report submitted under paragraph (A), any testimony, or any other communication to 

Congress shall be submitted directly to the committees and the President, 

without any requirement that any officer or employee outside of the Office 

of Government Information Services, including the Archivist of the United 

States and the Director of the Office of Management and Budget, review 

such report, testimony, or other communication. 

‘‘(5) SUBMISSION OF ADDITIONAL INFORMATION.—The Director of the Office of 

Government Information Services may submit additional information to Congress and the President that the Director determines to be appropriate. 

‘‘(6) ANNUAL MEETING REQUIRED.—Not less than once a year, the Office of 

Government Information Services shall hold a meeting that is open to the public on the review and reports by the Office and permit interested persons to appear and present oral or written statements at such meeting.’’. 

(e) PUBLIC RESOURCES.—Section 552(a)(6)(A) of title 5, United States Code, is 

amended— 

(1) in clause (i), by striking ‘‘of such determination and the reasons therefor, 

and of the right of such person to appeal to the head of the agency any adverse 

determination; and’’ and inserting the following: ‘‘of— 

‘‘(I) such determination and the reasons therefor; 

‘‘(II) the right of such person to seek assistance from the agency FOIA 

Public Liaison; and 

‘‘(III) the right of such person to appeal to the head of the agency any 

adverse determination, within a period determined by the agency that is 


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not less than 90 days after the receipt of such adverse determination; and’’; 

and 

(2) in clause (ii), by striking the period at the end and inserting the following: 

‘‘and the right of such person to seek dispute resolution services from the agency FOIA Public Liaison or the Office of Government Information Services.’’ 

(f) ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENTS.—Section 552(a) of 

title 5, United States Code, is amended by adding at the end the following new 

paragraphs: 

‘‘(8) DISCLOSURE OF INFORMATION FOR INCREASED PUBLIC UNDERSTANDING OF

THE GOVERNMENT.—Each agency shall— 

‘‘(A) review the records of such agency to determine whether the release 

of the records would be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities 

of the Government; 

‘‘(B) for records determined to be in the public interest under subparagraph (A), reasonably segregate and redact any information exempted from 

disclosure under subsection (b); and 

‘‘(C) make available in an electronic, publicly accessible format, any 

records identified in subparagraph (A), as modified pursuant to subparagraph (B). 

‘‘(9) INCREASED DISCLOSURE OF INFORMATION.—Each agency shall— 

‘‘(A) make information public to the greatest extent possible through modern technology to— 

‘‘(i) inform the public of the operations and activities of the Government; and 

‘‘(ii) ensure timely disclosure of information; and 

‘‘(B) establish procedures for identifying categories of records that may be 

disclosed regularly and additional records of interest to the public that are 

appropriate for public disclosure, and for posting such records in an electronic, publicly accessible format.’’. 

(g) REPORT ON CATEGORIES OF INFORMATION FOR DISCLOSURE.—Not later than one 

year after the date of the enactment of this Act, and every two years thereafter, the 

Director of the Office of Information Policy of the Department of Justice, after consultation with agencies selected by the Director, shall submit to the Committee on 

Oversight and Government Reform of the House of Representatives and the Committees on Homeland Security and Governmental Affairs and the Judiciary of the 

Senate a report that identifies categories of records that would be appropriate for 

proactive disclosure, and shall make such report available in an electronic, publicly 

accessible format. 

(h) AGENCY FOIA REPORT.—Section 552(e) of title 5, United States Code, is 

amended— 

(1) in paragraph (1)— 

(A) by inserting ‘‘and to the Director of the Office of Government Information Services’’ after ‘‘the Attorney General of the United States’’; 

(B) in subparagraph (N), by striking ‘‘; and’’ and inserting a semicolon; 

(C) in subparagraph (O), by striking the period and inserting a semicolon; 

and 

(D) by adding at the end the following new subparagraphs: 

‘‘(P) the number of times the agency invoked a law enforcement exclusion 

under subsection (c); 

‘‘(Q) the number of times the agency engaged in dispute resolution with the 

assistance of the Office of Government Information Services or the FOIA Public 

Liaison; 

‘‘(R) the number of records that were made available in an electronic, publicly 

accessible format under subsection (a)(2); and 

‘‘(S) the number of times the agency assessed a search or duplication fee 

under subsection (a)(4)(A) and did not comply with a time limit under subsection (a)(6).’’; 

(2) by amending paragraph (3) to read as follows: 

‘‘(3) ELECTRONIC ACCESSIBILITY OF REPORTS.—Each agency shall make each 

such report available in an electronic, publicly accessible format. In addition, 

each agency shall make the raw statistical data used in its reports available in 

a timely manner in an electronic, publicly accessible format. Such data shall 

be— 

‘‘(A) made available without charge, license, or registration requirement; 

‘‘(B) capable of being searched and aggregated; and 

‘‘(C) permitted to be downloaded and downloaded in bulk.’’; 

(3) in paragraph (4)— 


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(A) by striking ‘‘Committee on Government Reform and Oversight’’ and 

inserting ‘‘Committee on Oversight and Government Reform’’; 

(B) by striking ‘‘Governmental Affairs’’ and inserting ‘‘Homeland Security 

and Governmental Affairs’’; and 

(C) by striking ‘‘April 1’’ and inserting ‘‘March 1’’; 

(4) in paragraph (5)— 

(A) by inserting ‘‘and the Director of the Office of Government Information Services’’ after ‘‘the Director of the Office of Management and Budget’’; 

and 

(B) by striking ‘‘by October 1, 1997’’; and 

(5) by amending paragraph (6) to read as follows: 

‘‘(6) ATTORNEY GENERAL FOIA REPORT.— ‘‘(A) IN GENERAL.—The Attorney General of the United States shall submit to Congress and the President an annual report on or before March 1 

of each calendar year which shall include for the prior calendar year— 

‘‘(i) a listing of the number of cases arising under this section; 

‘‘(ii) each subsection under this section, each paragraph of the subsection, and any exemption, if applicable, involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under 

subparagraphs (E), (F), and (G) of subsection (a)(4); and 

‘‘(iii) a description of the efforts undertaken by the Department of 

Justice to encourage agency compliance with this section. 

‘‘(B) ELECTRONIC AVAILABILITY.—The Attorney General of the United 

States— 

‘‘(i) shall make each report described under subparagraph (A) available in an electronic, publicly accessible format; and 

‘‘(ii) shall make the raw statistical data used in each report available 

in an electronic, publicly accessible format, which shall be— 

‘‘(I) made available without charge, license, or registration requirement; 

‘‘(II) capable of being searched and aggregated; and 

‘‘(III) permitted to be downloaded, including downloaded in 

bulk.’’. 

(i) SEARCH OR DUPLICATION FEES.—Section 552(a)(4)(A)(viii) of title 5, United 

States Code, is amended by adding at the end the following new sentence: ‘‘Any 

agency that does assess search or duplication fees after failing to comply with a time 

limit under paragraph (6) shall provide written notice to the requester of the circumstance that justifies the fees. If an agency fails to provide such notice, the agency may not assess search or duplication fees.’’. 

(j) GOVERNMENT ACCOUNTABILITY OFFICE.—Subsection (i) of section 552 of title 5, 

United States Code, is amended to read as follows: 

‘‘(i) GOVERNMENT ACCOUNTABILITY OFFICE.—The Government Accountability Office shall— 

‘‘(1) conduct audits of administrative agencies on compliance with and implementation of the requirements of this section and issue reports detailing the results of such audits; 

‘‘(2) catalog the number of exemptions under subsection (b)(3) and agency use 

of such exemptions; and 

‘‘(3) review and prepare a report on the processing of requests by agencies for 

information pertaining to an entity that has received assistance under title I 

of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) 

during any period in which the Government owns or owned more than 50 percent of the stock of such entity.’’. 

(k) CHIEF FOIA OFFICER RESPONSIBILITIES; COUNCIL; REVIEW.—Section 552 of 

title 5, United States Code, is amended— 

(1) by striking subsections (j) and (k); and 

(2) by inserting after subsection (i), the following new subsections: 

‘‘(j) CHIEF FOIA OFFICER.— 

‘‘(1) DESIGNATION.—Each agency shall designate a Chief FOIA Officer who 

shall be a senior official of such agency (at the Assistant Secretary or equivalent 

level). 

‘‘(2) DUTIES.—The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency— 

‘‘(A) have agency-wide responsibility for efficient and appropriate compliance with this section; 

‘‘(B) monitor implementation of this section throughout the agency and 

keep the head of the agency, the chief legal officer of the agency, and the 

Attorney General appropriately informed of the agency’s performance in implementing this section; 


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‘‘(C) recommend to the head of the agency such adjustments to agency 

practices, policies, personnel, and funding as may be necessary to improve 

its implementation of this section; 

‘‘(D) review and report to the Attorney General, through the head of the 

agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing this section; 

‘‘(E) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions 

in both the agency’s handbook issued under subsection (g), and the agency’s 

annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply; 

‘‘(F) serve as the primary agency liaison with the Office of Government 

Information Services and the Office of Information Policy; and 

‘‘(G) designate one or more FOIA Public Liaisons. 

‘‘(3) COMPLIANCE REVIEW REQUIRED.—The Chief FOIA Officer of each agency 

shall— 

‘‘(A) review, not less than annually, all aspects of the agency’s administration of this section to ensure compliance with the requirements of this 

section, including— 

‘‘(i) agency regulations; 

‘‘(ii) disclosure of records required under paragraphs (2), (8), and (9) 

of subsection (a); 

‘‘(iii) assessment of fees and determination of eligibility for fee waivers; 

‘‘(iv) the timely processing of requests for information under this section; 

‘‘(v) the use of exemptions under subsection (b); and 

‘‘(vi) dispute resolution services with the assistance of the Office of 

Government Information Services or the FOIA Public Liaison; and 

‘‘(B) make recommendations as necessary to improve agency practices and 

compliance with this section. 

‘‘(k) CHIEF FOIA OFFICERS COUNCIL.— 

‘‘(1) ESTABLISHMENT.—There is established in the executive branch the Chief 

FOIA Officers Council (in this subsection, referred to as the ‘Council’). 

‘‘(2) MEMBERS.—The Council shall consist of the following members: 

‘‘(A) The Deputy Director for Management of the Office of Management 

and Budget. 

‘‘(B) The Director of the Office of Information Policy at the Department 

of Justice. 

‘‘(C) The Director of the Office of Government Information Services at the 

National Archives and Records Administration. 

‘‘(D) The Chief FOIA Officer of each agency. 

‘‘(E) Any other officer or employee of the United States as designated by 

the Co-Chairs. 

‘‘(3) CO-CHAIRS.—The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information 

Services at the National Archives and Records Administration shall be the CoChairs of the Council. 

‘‘(4) SUPPORT SERVICES.—The Administrator of General Services shall provide 

administrative and other support for the Council. 

‘‘(5) CONSULTATION.—In performing its duties, the Council shall consult regularly with members of the public who make requests under this section. 

‘‘(6) DUTIES.—The duties of the Council include the following: 

‘‘(A) Develop recommendations for increasing compliance and efficiency 

under this section. 

‘‘(B) Disseminate information about agency experiences, ideas, best practices, and innovative approaches related to this section. 

‘‘(C) Identify, develop, and coordinate initiatives to increase transparency 

and compliance with this section. 

‘‘(D) Promote the development and use of common performance measures 

for agency compliance with this section. 

‘‘(7) MEETINGS.— 

‘‘(A) REGULAR MEETINGS.—The Council shall meet regularly and such 

meetings shall be open to the public unless the Council determines to close 

the meeting for reasons of national security or to discuss information exempt under subsection (b). 


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‘‘(B) ANNUAL MEETINGS.—Not less than once a year, the Council shall 

hold a meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the Council. 

‘‘(C) NOTICE.—Not later than 10 business days before a meeting of the 

Council, notice of such meeting shall be published in the Federal Register. 

‘‘(D) PUBLIC AVAILABILITY OF COUNCIL RECORDS.—Except as provided in 

subsection (b), the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents that were made 

available to or prepared for or by the Council shall be made publicly available. 

‘‘(E) MINUTES.—Detailed minutes of each meeting of the Council shall be 

kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies 

of all reports received, issued, or approved by the Council.’’. 

(l) REGULATIONS.— (1) REVISION OF REGULATIONS.—Not later than 180 days after the date of the 

enactment of this Act, the head of each agency shall review the regulations of 

such agency and shall issue regulations on procedures for the disclosure of 

records under section 552 of title 5, United States Code, in accordance with the 

amendments made by this section. The regulations of each agency shall include— 

(A) procedures for engaging in dispute resolution; and 

(B) procedures for engaging with the Office of Government Information 

Services. 

(2) OFFICE OF GOVERNMENT INFORMATION SERVICES REPORT.—Not later than 

270 days after the date of the enactment of this Act, the Office of Government 

Information Services shall submit to Congress a report on agency compliance 

with the requirements of this subsection. 

(3) REPORT ON NONCOMPLIANCE.—The head of any agency that does not meet 

the requirements of paragraph (1) shall submit to Congress a report on the reason for noncompliance not later than 270 days after the date of the enactment 

of this Act. 

(4) INSPECTOR GENERAL REVIEW FOR NONCOMPLIANCE.—Any agency that fails 

to comply with the requirements of this subsection shall be reviewed by the Office of Inspector General of such agency for compliance with section 552 of title 

5, United States Code. 

(5) AGENCY DEFINED.—In this section, the term ‘‘agency’’ has the meaning 

given such term in section 552(f) of title 5, United States Code. 

SEC. 3. INSPECTOR GENERAL REVIEW; ADVERSE ACTIONS. 

(a) INSPECTOR GENERAL REVIEW.— 

(1) IN GENERAL.—The Inspector General of each agency shall— 

(A) periodically review compliance with the requirements of section 552 

of title 5, United States Code, including the timely processing of requests, 

assessment of fees and fee waivers, and the use of exemptions under subsection (b) of such section; and 

(B) make recommendations the Inspector General determines to be necessary to the head of the agency, including recommendations for disciplinary action. 

(2) AGENCY DEFINED.—In this subsection, the term ‘‘agency’’ has the meaning 

given that term under section 552(f) of title 5, United States Code. 

(b) ADVERSE ACTIONS.—The withholding of information in a manner inconsistent 

with the requirements of section 552 of title 5, United States Code (including any 

rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with subchapter I, II, or V of chapter 75 of such title, as the case may be. 

SEC. 4. NO ADDITIONAL FUNDS AUTHORIZED. 

No additional funds are authorized to carry out the requirements of this Act and 

the amendments made by this Act. Such requirements shall be carried out using 

amounts otherwise authorized or appropriated. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

H.R. 653, the FOIA Oversight and Implementation Act of 2015 

(FOIA Act), would strengthen the Freedom of Information Act 

(FOIA) to increase transparency and accountability in government, 


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1 Congressional Research Service, ‘‘The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues,’’ Aug. 14, 2015. 2 Id. 

3 Id. 

4Sam Archibald, ‘‘The Early Years of the Freedom of Information Act—1955 to 1974,’’ PS: Political Science and Politics, vol. 26, no. 4 (1993), pp. 726–731. 5 Congressional Research Service, ‘‘The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues,’’ Aug. 14, 2015. 6 H. Rep. No. 1497 (1966). 

7 Congressional Research Service, ‘‘The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues,’’ Aug. 14, 2015. 8 Id. 

9 U.S. Department of Justice, ‘‘Summary of Annual FOIA Reports for Fiscal Year 2014.’’ 

and improve access to government records for citizens. It amends 

FOIA to provide for more disclosure of records, through both 

proactive disclosure and limitations on the use of exemptions. H.R. 

653 also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and 

requesters. 

BACKGROUND AND NEED FOR LEGISLATION

FOIA establishes a presumption that records in the possession of 

Executive Branch agencies and departments of the federal government are accessible to the people.1 Under FOIA, anyone may file 

a request for a copy of any existing record at any federal agency 

for any reason.2 Information requested under FOIA is required to 

be released unless it falls under any of nine narrow exemptions 

that protect certain information from disclosure.3

FOIA was a product of the former-Government Operations Committee’s Special Subcommittee on Government Information, established in the 84th Congress.4 After eleven years of development in 

the House of Representatives and almost six years of consideration 

in the Senate, FOIA was enacted in 1966.5 The House bill report 

to the 1966 Freedom of Information Act stated: 

It is vital to our way of life to reach a workable balance 

between the right of the public to know and the need of 

the Government to keep information in confidence to the 

extent necessary without permitting indiscriminate secrecy. The right of the individual to be able to find out how 

his Government is operating can be just as important to 

him as his right to privacy and his right to confide in his 

government. This bill strikes a balance considering all 

these interests.6

Since FOIA’s enactment, Congress has repeatedly revisited the 

law to better balance the public’s right to know. FOIA has been 

amended multiple times in efforts to increase agency compliance 

with the requirements of the Act and to improve the process. FOIA 

was amended in 1974, 1976, 1986, 1996, 2007, and 2010.7 Despite 

these amendments, barriers to the public’s right to know persist. 

H.R. 653 will help to address many of these issues. 

FOIA’s ‘‘Right to Know’’ Necessitates Increased Disclosure 

FOIA is often referred to as the embodiment of ‘‘the people’s 

right to know’’ about the activities and operations of government.8

However, backlogs, exemptions, and other barriers to access interfere with this right. In fiscal year 2014, Executive Branch agencies 

received 714,231 new FOIA requests.9 In the same period, the 


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10 Id. 11 5 U.S.C. 552(b). 12OpenTheGovernment.org ‘‘Scoring the Third National Action Plan—November 17, 2015 

Newsletter,’’ available at: http://www.openthegovernment.org/node/5051; AllGov.com ‘‘Judge Orders CIA to Stop Abusing Freedom of Information Act Exemption,’’ (Sept. 25, 2013), available 

at: http://www.allgov.com/news/controversies/judge-orders-cia-to-stop-abusing-freedom-of-information-act-exemption-130925?news=851226; Media Alert, Sunlight Foundation ‘‘Editorial Memo: 

The Freedom Of Information Act Must Be Updated’’ (Aug. 24, 2014), available at: http:// 

sunlightfoundation.com/press/releases/2014/08/26/editorial-memo-freedom-information-actmust-be-upd/; Unredacted, ‘‘Analysis of and Prospects for New House and Senate FOIA Bills’’ 

(Feb. 4, 2015) available at: https://nsarchive.wordpress.com/page/13/?archives-list&archivestype=months. 13 U.S. Dept. of Justice, ‘‘Data,’’ available at http://www.foia.gov/data.html (last accessed 

May 28, 2015). 14Memorandum from President Barack Obama for the Heads of Exec. Departments & Agencies, Freedom of Information Act, (Jan. 21, 2009). 15Memorandum from Att’ny Gen. Eric Holder for the Heads of Exec. Departments & Agencies, 

Freedom of Information Act, (Mar. 19, 2009), 74 Fed. Reg. 51879 (Oct. 8, 2009). 16Dept. of Justice, ‘‘Discretionary Disclosure and Waiver,’’ (May 2004). 

agencies processed 647,142 new and existing requests, and agencies released records in full 28 percent of the processed requests.10

The FOIA statute includes nine exemptions, which allow for the 

withholding of records to protect sensitive information from disclosure.11 Unfortunately, there is concern that agencies are overusing 

these exemptions to protect records that should be releasable under 

the law.12 To help put their use in perspective, in FY2014 agencies 

invoked exemptions more than 550,000 times.13

Effective transparency starts with a presumption of openness 

In January 2009, President Obama issued a memorandum which 

said: ‘‘The Freedom of Information Act should be administered with 

a clear presumption: In the face of doubt, openness prevails. . . . 

All agencies should adopt a presumption in favor of disclosure, in 

order to renew their commitment to the principles embodied in 

FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving 

FOIA.’’ 14 In March 2009, Attorney General Eric Holder issued 

guidance which reasserted a presumption of disclosure and established a standard for litigation whereby the Department of Justice 

would defend FOIA request denials only if ‘‘(1) the agency reasonably foresees that disclosure would harm an interest protected by 

one of the statutory exemptions, or (2) disclosure is prohibited by 

law.’’ 15

Building on the Administration’s efforts, H.R. 653 would codify 

the presumption of openness, making it a permanent requirement 

for agencies, with respect to FOIA. Based on the Department of 

Justice’s standard to defend a decision in litigation, H.R. 653 would 

prohibit agencies from withholding information unless the agency 

‘‘reasonably foresees that disclosure would cause a specific, identifiable harm to an interest protected by an exemption, or if disclosure 

is prohibited by law.’’ An inquiry into whether an agency has reasonably foreseen a specific, identifiable harm that would be caused 

by a disclosure would require the ability to articulate both the nature of the harm and the link between the specified harm and specific information contained in the material withheld. 

The presumption as codified at 5 U.S.C. 552(b) would be applicable to discretionary exemptions, such as exemption two or exemption five, which cover internal personnel policy and legal privileges, 

respectively.16 The presumption would not require the release of inVerDate Sep 11 2014 05:29 Jan 09, 2016 Jkt 059006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR391.XXX HR391

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17 5 U.S.C. 552(b)(1). 18 E.O. 13526 (2009); 18 U.S.C. 798. 19Dept. of Justice ‘‘Guide to the Freedom of Information Act,’’ Exemption Eight (updated July 

23, 2014). 20 Nate Jones, ‘‘The Next FOIA Fight: The B(5) ‘Withhold it because you want to’ Exemption,’’ 

National Security Archive blog ‘‘Unredacted’’ (Mar. 27, 2014). 21 5 U.S.C. 552(b)(5). 22 H. Rep. No. 1497 (1966). 23Dept. of Justice ‘‘Guide to the Freedom of Information Act,’’ Exemption Five, p13 (updated 

May 7, 2014). 24 Anne Weismann, ‘‘New FOIA Legislation—the Good, the Bad, and the Ugly,’’ Citizens for 

Responsibility and Ethics in Washington, (Feb. 9, 2015). 25Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958). Gerald Wetlaufer, ‘‘Justifying Secrecy: An Objection to the General Deliberative Privilege,’’ 65 Ind. 

L.J. 843 (Fall 1990). 26Dept. of Justice ‘‘Guide to the Freedom of Information Act,’’ Exemption Five (updated May 

7, 2014). 27 H. Rep. No. 1497 (1966). 

formation for which disclosure is legally prohibited. As an example, 

exemption one protects classified information.17 Agency officials do 

not have discretion to release properly classified information.18 The 

presumption of openness does not change that prohibition, as the 

specific, identifiable harm is that the release of the information 

would be a violation of the law. 

Similarly, the presumption does not alter the scope of information that is covered under an exemption. Exemption eight, as an 

example, has traditionally been interpreted by courts as having a 

‘‘ ‘particularly broad, all-inclusive’ scope.’’ 19 The presumption does 

not narrow the broad scope of exemption eight. Nor should the presumption be interpreted so as to compromise the stability of any 

financial institution or financial system, disrupt the operations of 

financial markets or undermine consumer protection due to the release of private information about individuals. 

Some concerns about overuse of exemption five can be addressed by limiting the scope 

Exemption five has been singled out as a particularly problematic exemption. Some have taken to calling it the ‘‘withhold it because you want to’’ exemption.20 Exemption five safeguards sensitive information contained in inter-agency or intra-agency memorandums or letters that would be withheld as privileged during litigation.21 The purpose of the exemption is so that agencies need not 

operate in a fishbowl.22

Federal agencies most commonly invoke exemption five to withhold records protected by attorney client privilege, attorney work 

product privilege, and the deliberative process privilege.23 The deliberative process privilege is the most used privilege and the 

source of the most concern regarding overuse.24 The privilege is a 

relatively recent innovation by the judicial branch, first appearing 

in an American judicial decision in 1958.25

The deliberative process privilege has become the legal vehicle by 

which agencies continue to withhold information about government 

operations.26 The legislative history of FOIA describes how this 

was a central problem FOIA was trying to fix, namely abuse of 

statutory language that was intended to public access to information about the operations of the federal government. The 1966 

House bill report found ‘‘Improper denials occur again and 

again.’’ 27 It went on: 


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28 Id. (emphasis added). 

Matters which relate solely to ‘‘internal management’’ 

and thus can be withheld under the provisions of [current 

law] range from the important to the insignificant. They 

range from a proposed spending program, still being 

worked out in the agency for future presentation to the 

Congress, to a routine telephone book. . . . The statutory 

requirement that information about routine administrative 

actions need be given only to ‘‘persons properly and directly concerned’’ has been relied upon almost daily to 

withhold Government information from the public. . . . If 

none of the other restrictive phrases of [current law] applies to the official Government record which an agency 

wishes to keep confidential, it can be hidden behind the 

‘‘good cause found’’ shield. Historically, Government 

agencies whose mistakes cannot bear public scrutiny have found ‘good cause’ for secrecy.28

Congress has not yet identified language that will ensure that 

the Executive agencies administering FOIA will strike the appropriate balance between privacy that is absolutely necessary for candid conversations in the development of effective public policy and 

transparency that is necessary and expected in a government by 

the people and for the people. In an attempt to provide some transparency in this area, H.R. 653 carves out a 25-year time limitation 

to exemption five. 

In addition to the presumption of openness, the FOIA Act would 

specifically limit exemption five by setting a time limit on use of 

the exemption. Agencies could only apply exemption five to records 

and information created within 25 years prior to the date of the request regardless of the underlying privilege relied upon. 

Proactive disclosure will further the development of a culture 

of openness 

Proactive disclosure will improve transparency of government operations and allow the public to better understand government activities and decisions. H.R. 653 would increase the amount of agency information made available through proactive disclosure. 

Records requested under FOIA more than three times would be 

posted online for public inspection and copying. Each agency would 

also be required to review its records to determine whether any 

records ought to be released because they are in the public interest, 

and establish procedures for identifying categories of records that 

can be proactively disclosed to the public on a regular basis. These 

provisions would increase the amount of information the public can 

access without even filing a FOIA request. As an added benefit, increased disclosure may reduce the drain on resources required to 

respond to repetitive requests. 

H.R. 653 would improve FOIA processes 

Ensuring the public’s right to know requires that the processing 

of FOIA requests is done efficiently and effectively. Transparency 

in FOIA processes allows requesters to feel confident that agencies 

are responding to those requests and that the agency takes their 

inquiry seriously. Increased accessibility ensures that everyone has 


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29 National Security Archive, ‘‘National Security Archive FOIA Audit highlights delinquent 

agencies; praises Congressional and White House plans for updated regulations,’’ (Mar. 14, 

2014). 30Washington Examiner, ‘‘EPA Inspector General Investigating Claims Agency Used Fees to 

Block FOIA Requests,’’ May 16, 2013. See also: ‘‘Suit: Spy Agency Flouting FOIA,’’ Politico, February 22, 2012. 31 5 U.S.C. 552(a)(4). 

the ability to exercise their rights and increased compliance means 

the agencies are effective in their responsibilities to uphold the 

public’s right. 

H.R. 653 would ensure accessibility and transparency in 

FOIA processes 

To improve accessibility and transparency, H.R. 653 would establish a single website, accessible to the public at no cost, which will 

allow people to submit FOIA requests, file appeals, and receive 

automated information about the status of their requests in a single location. H.R. 653 also would require agencies to assign a tracking number to a request on day one, so that requesters may track 

the progress of their request as it moves through an agency’s FOIA 

process. These provisions would improve public access to the FOIA 

request process and improve efficiency in federal FOIA offices. 

H.R. 653 clarifies the right of any individual to appeal an agency’s determination regarding a FOIA request filed by that individual. Under the bill, agencies would be required to give requesters at least 90 days to appeal an adverse determination. A time 

limit for appeals is not currently codified, so this provision will 

strengthen requester rights to file appeals. 

H.R. 653 would ensure compliance with FOIA processes 

A 2014 survey found that seven years after enactment of the 

OPEN Government Act of 2007, more than half of agencies had not 

updated their FOIA regulations to comply with the law.29 To ensure statutory compliance, H.R. 653 would require agencies to update their FOIA regulations no later than 180 days after H.R. 653 

is enacted. The bill would require agency regulations to be reviewed by the Office of Government Information Services (OGIS) to 

ensure they are compliant and consistent with current FOIA law. 

Any agency that fails to comply would be required to submit a report to Congress to explain its noncompliance. Agencies that do not 

comply would also be reviewed by their Office of Inspector General 

to evaluate agency compliance with FOIA law. 

Fees and fee waivers are another problem that requires further 

legislation. FOIA does not allow agencies to charge search fees if 

the agency does not comply with specific statutory time limits to 

respond to requesters. Additionally, many requesters qualify for a 

waiver of fees. Some agencies have not fully complied with the statute and charge excessive fees, or engage in fee assessment practices designed to dissuade requesters.30 H.R. 653 would clarify the 

fee requirements to better prevent similar abuses in the future. 

While there are no criminal penalties for violating FOIA, courts 

may assess attorney fees and court costs for violations, and bringing disciplinary action against an agency employee who acted arbitrarily or capriciously with respect to the withholding of information.31 H.R. 653 would expand upon the ability to impose disciplinary actions by allowing an agency to impose disciplinary actions 


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32 H.R. Rep No. 92–1419 (1974). 33Pub. L. 110–175 (2007). 34 Id. 35 Id. 36 ‘‘OGIS Timeline,’’ available at https://ogis.archives.gov/news-and-events/ogis-timeline.htm 

(last accessed Dec. 13, 2015). 37 H. Comm. on Oversight & Gov’t Reform, Ensuring Government Transparency through FOIA 

Reform, 114th Cong. (Feb. 27, 2015) (Statement of Miriam Nisbet, former Exec. Dir., OGIS). 

when the Inspector General determines an employee has inappropriately withheld records that were releasable under FOIA. 

An effective OGIS is an independent OGIS 

FOIA implementation has been plagued by delays, resistance, 

and excuses for non-compliance from the beginning.32 Congress has 

been persistent in conducting oversight, drafting legislative solutions, and encouraging greater openness in the executive branch, 

with little to no avail. Eight years ago, in yet another attempt to 

improve FOIA processes, Congress enacted the OPEN Government 

Act of 2007.33 Among other things, the OPEN Government Act established OGIS to serve as a FOIA Ombudsman, to help requesters 

navigate the FOIA process and to remind agencies of statutory obligations.34

OGIS was charged with providing a neutral source of FOIA compliance review, policy recommendations, and dispute resolution 

services for requesters and agencies as an alternative to litigation.35 OGIS first opened its doors in September 2009.36 One concern facing the agency is that the advice, recommendations, and reports regarding FOIA compliance are first filtered through the Office of Management and Budget, prior to reaching Congress. 

In February 2015, Ms. Miriam Nisbet, the first Executive Director of OGIS, testified before the Committee’s Subcommittee on Government Operations. Ms. Nisbet served as the Executive Director 

of OIGS from 2009 through 2014. In no uncertain terms, Ms. 

Nisbet explained the need for greater independence: ‘‘If you want 

recommendations, reports, and testimony that have not had to be 

reviewed, changed, and approved by the very agencies that might 

be affected, then you should change the law. . . . [T]he authority 

to report directly to Congress, as H.R. 653 provides, would be an 

important reform for an office that hears complaints, resolves disputes, reviews compliance, and is expected to speak truth to power. 

I might add that, if I were still the Director, I could not say this.’’ 37

H.R. 653 provides OGIS with direct reporting to Congress, without the need for interagency review. This increased independence 

would allow OGIS to give unfiltered recommendations and assessments. OGIS would also be tasked with increased review of compliance with FOIA, including the timely processing of requests, the 

proper handling of fees and fee waivers, and the correct use of exemptions. OGIS would be required to submit an annual report to 

Congress on its review and hold at least one public meeting per 

year to allow interested persons to appear and present oral or written statements. 

H.R. 653 would increase oversight to address persistent backlogs 

and other inefficiencies 

The backlog of FOIA requests has increased in recent years, and 

has led to significant delays in the processing of requests. The 


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38Department of Justice, ‘‘Summary of Annual FOIA Reports for Fiscal Year 2014.’’ 39 Id. 40Department of Justice, Office of Information Policy (previously Office of Information and 

Privacy), FOIA Post, ‘‘FOIA Counselor Q&A: ‘Frequently Requested’ Records,’’ (2002). 41P.L. 110–175 (2007). 42The FOIA Project, ‘‘FOIA Lawsuits,’’ available at foiaproject.org/lawsuit/(last accessed Dec. 

13, 2015). 

number of FOIA requests rose from 597,415 in FY 2010 to 714,231 

in FY2014, a 20 percent increase.38 During that same time frame, 

the government-wide backlog more than doubled. From FY2010 to 

FY2014, the total backlog of FOIA requests increased from 69,526 

to 159,741.39 Agencies have made efforts to reduce FOIA backlogs, 

but backlogs are a persistent and growing problem. 

Many agencies are failing to comply with FOIA requirements to 

make frequently requested records publicly available online. The 

Department of Justice issued guidance instructing agencies to release records that have been requested three or more times.40 The 

proactive disclosure of records in the public interest has been limited though. Proactive disclosure could reduce the number of FOIA 

requests, requiring less processing time for agencies. 

The current FOIA statute encourages the use of alternate dispute resolution to avoid lawsuits whenever possible. Each agency 

has a FOIA Public Liaison who is tasked with assisting ‘‘in the resolution of any disputes between the requester and the agency.’’ 41

OGIS was also created to offer mediation services and work to resolve disputes. Despite these actions, the number of FOIA lawsuits 

continues to rise.42

To increase the ability to oversee FOIA processes, H.R. 653 

would increase the amount of information reported by agencies in 

annual FOIA reports. The bill would require each agency to report 

how often it invoked law enforcement exclusions, how often it engaged in dispute resolution, how often it made information available to the public through proactive disclosure, and how often it assessed a search or duplication fee for a request when the agency 

did not comply with the statutory time limits for responding to that 

request. The reports would be sent to OGIS, as well as the Attorney General. Additionally, the raw data used by agencies to complete their annual FOIA reports would be made available online in 

a fully useable, bulk-downloadable and machine-readable format. 

The bill would require the Government Accountability Office 

(GAO) to conduct audits of agency compliance with FOIA and catalog the number of exemptions that have been created under exemption three of FOIA. GAO would also review and report on agency 

processing of FOIA requests seeking information about private entities that receive or received assistance under the Emergency Economic Stabilization Act of 2008 during any period in which the government owned or owns more than 50 percent of the stock of such 

entity. Nothing in H.R. 653 is intended to alter the policy issued 

pursuant to section 348 of the FY 2010 Intelligence Authorization 

Act (P.L. 111–259). 

H.R. 653 increases the oversight responsibilities of agency Chief 

FOIA Officers, requiring each agency Chief FOIA Officer to annually review all aspects of FOIA compliance by the agency. The bill 

also would establish a Chief FOIA Officers Council to be chaired 

by the Director of the Office of Information Policy at the Department of Justice and the Director of OGIS. 


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The Council would be tasked with: developing recommendations 

to increase FOIA compliance and efficiency; sharing information on 

ideas, best practices, and innovative approaches to improve FOIA; 

identifying ways to better coordinate initiatives to increase transparency; and promoting the development and use of performance 

measures for agency FOIA compliance. The Council would be required to meet regularly and hold annual meetings, open to the 

public and at which interested persons would be allowed to present 

oral and written statements. All Council records, except any 

records relating to national security, would be required to be made 

publicly available. 

LEGISLATIVE HISTORY

H.R. 653 was introduced by Congressman Darrell Issa (R–CA), 

with Ranking Member Elijah Cummings (D–MD) as an original cosponsor, on February 2, 2015 and referred to the Committee on 

Oversight and Government Reform. On March 25, 2015, the Committee on Oversight and Government Reform ordered H.R. 653 favorably reported, with an amendment in the nature of a substitute 

by Congressman Mark Meadows (R–NC) and two amendments by 

Chairman Jason Chaffetz (R–UT). 

Similar legislation, S. 337 the ‘‘FOIA Improvement Act of 2015,’’ 

was introduced in the Senate by Senator John Cornyn (R–TX), with 

Senators Chuck Grassley (R–IA) and Patrick Leahy (D–VT) as 

original cosponsors, on February 2, 2015 and referred to the Senate 

Committee on the Judiciary. On February 9, 2015, the Senate Committee on the Judiciary ordered S. 337 favorably reported. No further action has been taken. 

On February 27, 2015 the Committee on Oversight and Government Reform Subcommittee on Government Operations held a 

hearing entitled ‘‘Ensuring Government Transparency Through 

FOIA Reform.’’ The Subcommittee heard testimony from Ms. Miriam Nisbet, former Director of the Office of Government Information Services, Mr. Frederick Sadler, a former FOIA officer at the 

Food and Drug Administration, and Mr. Rick Blum, Director of the 

Sunshine in Government Initiative. 

During the 113th Congress, on March 13, 2013, the Committee 

on Oversight and Government Reform held a hearing on FOIA and 

related issues entitled, ‘‘Addressing Transparency in the Federal 

Bureaucracy: Moving Toward A More Open Government.’’ The 

Committee heard testimony from representatives of transparency 

watchdog groups, including Ms. Angela Canterbury, Director of 

Public Policy, Project on Government Oversight; Mr. Jim Harper, 

Director of Information Policy Studies, Cato Institute; Mr. Daniel 

Schuman, Policy Counsel, The Sunlight Foundation; and Ms. Celia 

Wexler, Senior Washington Representative, Center for Science and 

Democracy, Union of Concerned Scientists. 

Following this hearing, then-Chairman Issa and Ranking Member Cummings introduced the FOIA Oversight and Implementation 

Act of 2013, on March 15, 2013. That bill, H.R. 1211, was ordered 

favorably reported by the Committee on Oversight and Government 

Reform on March 20, 2013 and passed the House 410–0 on February 25, 2014. In the Senate, it was referred to the Senate Committee on Judiciary and no further action was taken. 


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Additionally, on June 24, 2014, Senator Leahy introduced S. 

2520 the ‘‘FOIA Improvement Act of 2014.’’ S. 2520 was ordered favorably reported by the Senate Committee on the Judiciary on November 20, 2014 and passed the Senate by unanimous consent on 

December 9, 2014. The bill was held at the desk in the House. No 

further action was taken in the three remaining days the House 

was in session in 2014. 

SECTION-BY-SECTION

Section 1. Short title 

Designates the short title of the bill, ‘‘FOIA Oversight and Implementation Act of 2015,’’ or the ‘‘FOIA Act.’’ 

Section 2. Freedom of Information Act amendments 

Amends the Freedom of Information Act (FOIA) by— 

(1) Increasing electronic accessibility by requiring agencies to 

post more information online in publicly accessible formats. Agencies would be required to post information requested three or more 

times online in a publicly accessible format, as well as other 

records that would contribute to public interest. Annual reports 

and the raw data of the reports would also be publicly accessible. 

(2) Requiring OMB, in consultation with the Attorney General, 

to create a consolidated online request portal for the public to submit FOIA requests and receive information about the status of requests. 

(3) Requiring agencies to provide an e-mail address at which the 

agency accepts FOIA requests and to post that e-mail address online. 

(4) Prohibiting agencies from collecting fees if they do not respond within 20 days, unless the agency provides a written notice 

to the requester that justifies the fees. 

(5) Requires agencies to pay litigation costs if the plaintiff prevails. 

(6) Limiting exemption five to 25 years after the creation of the 

record and to exclude: (i) opinions that are controlling interpretations of law, (ii) final reports or memoranda solicited and used to 

make policy, and (iii) guidance documents used to respond to the 

public. 

(7) Requiring agencies to identify a reasonably foreseeable harm 

that could be caused by disclosure before withholding information 

under discretionary exemptions, placing the burden on agencies to 

demonstrate why information may be withheld, instead of on the 

public to justify release. 

(8) Strengthening the Office of Government Information Services 

(OGIS) by giving it increased independence. OGIS would be required to report directly to Congress without interagency review or 

review by the Archivist or the Office of Management and Budget. 

OGIS would be required to review agency compliance with all aspects of FOIA, and report recommendations. OGIS would also be 

required to hold public meetings at least once a year. 

(9) Requiring agencies to report more information in their annual 

reports. Agencies would for the first time have to report the number of times they invoked law enforcement exclusions, engaged in 

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able. Annual reports would need to be completed by March 1 of 

each year instead of April 1 in order to make information available 

for Sunshine Week. 

(10) Requiring the Government Accountability Office to catalog 

all uses of (b)(3) exemptions, which are FOIA exemptions created 

by other statutes. Currently, it is unknown how many (b)(3) exemptions exist. 

(11) Increasing responsibilities for OGIS, DOJ, and Chief FOIA 

Officers to review FOIA compliance and make recommendations. 

DOJ would be required to report more information about FOIA 

lawsuits. OGIS and Chief FOIA Officers would both review FOIA 

compliance and make recommendations to improve the process. 

(12) Creating a Chief FOIA Officers Council, based on the Chief 

Information Officers Council. It shall be run jointly by OGIS and 

DOJ’s Office of Information Policy as co-chairs. All agency Chief 

FOIA Officers shall be members of the Council. The Council would 

be required to meet regularly to review FOIA compliance and discuss improvements. Records of the meetings would be mandated to 

be made publicly available, and all meetings would be required to 

be noticed in the Federal Register prior to the meeting. No less 

than once a year, the Council would be required to have a public 

meeting where interested persons may submit statements in writing or in person. 

(13) Requiring each agency to update its FOIA regulations within 

180 days of enactment. OGIS would be required to review agency 

compliance. If agencies fail to update their regulations they would 

be required to report to Congress on their failure and would be 

subject to a review of their FOIA compliance by their Office of Inspector General. 

Section 3. Inspector General review; adverse actions 

Section three would require Inspectors General to review compliance with FOIA and make recommendations, including recommendations for disciplinary action. 

Section three would also make the inappropriate withholding of 

information under FOIA the basis for a disciplinary action. 

Section 4. No additional funds authorized 

Clarifies that no additional funds are authorized to implement 

the bill. 

EXPLANATION OF AMENDMENTS

Congressman Mark Meadows (R–NC) offered an amendment in 

the nature of a substitute that clarifies the Office of Government 

Information Services’ authority to issue advisory opinions and requires agencies to accept FOIA requests by email. The Meadows 

amendment was adopted by voice vote. 

Chairman Jason Chaffetz (R–UT) offered two amendments: (1) 

an amendment to require agencies to pay for litigation fees when 

they do not substantially prevail in FOIA lawsuits, which will encourage greater compliance with statutory requirements by discouraging agencies from defending legally tenuous position, and (2) an 

amendment to restrict the use of exemption five by excluding three 

categories of information. 


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43Memorandum, Dept. of Justice Office of Legal Counsel, ‘‘Best Practices for OLC Legal Advice and Written Opinions,’’ (July 16, 2010). 44 Id. 45 Id. 

The exemption five amendment creates greater transparency into 

agency decision making. The amendment does not, however, prevent an agency from relying upon other exemptions to withhold 

records, such as exemption one, which prohibits the release of properly classified information. The exemption five amendment limits 

exemption five for information which is integral to an agencys final 

policy decision, regardless of whether it was expressly adopted by 

the agency. The agency would not need to publicly state that the 

information served as a basis of the decision because the request 

for information is sufficient evidence to show that the information 

was considered in some way in the process of reaching the final 

policy decision. The amendment also limits the use of exemption 

five with regard to guidance used by agencies to respond to the 

public, which will allow the public greater insight into how to best 

interact with agencies. 

The exemption five amendment also limits the use of exemption 

five with regard to legal opinions that are likely the final interpretation of the law. On occasion, the Executive Branch considers legal 

issues of first impression which are unlikely to be resolved in 

courts.43 The Department of Justices Office of Legal Counsel 

(OLC), as an example, is responsible for providing controlling advice to the Executive Branch.44 Without judicial review, OLC’s controlling advice is effectively ‘‘the final word on the controlling 

law.’’ 45 The exemption five amendment prohibits the use of exemption five to withhold from disclosure such final controlling interpretations. 

Both Chaffetz amendments were adopted by voice vote. 

Representative Carolyn Maloney (D–NY) offered an amendment 

to clarify that the presumption of openness language is not intended to lessen the protection provided by exemption 8 of FOIA. 

Representative Maloney withdrew her amendment. 

COMMITTEE CONSIDERATION

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

vote, a quorum being present. 

ROLL CALL VOTES

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

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill provides for more 

proactive disclosure of records, encourages enhanced agency compliance, and improves the FOIA process for both agencies and requesters. Legislative branch employees and their families, to the 

extent that they are otherwise eligible for the benefits provided by 

this legislation, have equal access to its benefits. 


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STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

The objective of the bill is FOIA Oversight and implementation of 

certain reforms. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of this bill establishes or reauthorizes a program of 

the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The FOIA Oversight and Implementation Act will require agencies to promulgate new regulations on procedures for processing requests under FOIA. Agencies are already required to have regulations on FOIA, but this Act will ensure these regulations are current. Agencies will specifically have to create new regulations on 

interactions with the Office of Government Information Services, 

and procedures used for dispute resolution services. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

This bill does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

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mittee of the costs that would be incurred in carrying out this bill. 

However, clause 3(d)(2)(B) of that rule provides that this requirement does not apply when the Committee has included in its report 

a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has received the following cost estimate for 

this bill from the Director of Congressional Budget Office: 

H.R. 653—FOIA Act 

Summary: H.R. 653 would amend the Freedom of Information 

Act (FOIA). FOIA generally allows any person to obtain records 

from federal agencies. Specifically, the legislation would: establish 

a single website for making FOIA requests; direct agencies to make 

records available in an electronic format; require courts to pay 

some attorney fees and other litigation costs related to FOIA disputes; reduce the number of exemptions agencies can use to withhold information from the public; clarify procedures for handling 

frequently requested documents and charging fees; establish the 

Chief FOIA Officers Council; and require agencies to prepare additional reports for the Congress. CEO estimates that implementing H.R. 653 would cost $22 million over the 2016–2020 period, assuming appropriation of the necessary amounts. The bill would affect direct spending by agencies 

not funded through annual appropriations; therefore, pay as-you-go 

procedures apply. CEO estimates, however, that any net increase 

in spending by those agencies would not be significant. Enacting 

the bill would not affect revenues. 

H.R. 653 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would not affect the budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary effect of H.R. 653 is shown in the following table. The costs 

of this legislation fall within all budget functions that contain 

spending for salaries and expenses. 

By fiscal year, in millions of dollars— 

2016 2017 2018 2019 2020 2016– 

2020 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Administrative Provisions: 

Estimated Authorization Level ............................................. 2 4 4 5 5 20 

Estimated Outlays ............................................................... 1 3 4 5 5 20 

Attorney Fees and Other Litigation Costs: 

Estimated Authorization Level ............................................. * * * * * 2 

Estimated Outlays ............................................................... * * * * * 2 


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By fiscal year, in millions of dollars— 

2016 2017 2018 2019 2020 2016– 

2020 

Total Changes: 

Estimated Authorization Level .................................... 2 4 4 5 5 22 

Estimated Outlays ...................................................... 2 4 4 5 5 22 

Note: * less than $500,000. 

Basis of the estimate: For this estimate, CBO assumes that the 

bill will be enacted late in fiscal year 2015, that the necessary 

amounts will be appropriated for each year, and that spending will 

follow historical patterns for FOIA activities. 

Enacted in 1966, FOIA was designed to enable anyone to request, without explanation or justification, copies of existing, identifiable, and unpublished records from the executive branch. The 

Office of Management and Budget (OMB) issues guidelines to agencies on what fees to charge for providing information, while the Department of Justice (D0J) oversees agency compliance with FOIA. 

In 2013, federal agencies received more than 730,000 FOIA requests. In addition, DOJ reports that in fiscal year 2013, agencies 

employed about 4,200 full-time staff to fulfill FOIA requests and 

spent $446 million on related activities. 

Administrative provisions 

H.R. 653 would establish a Chief FOIA Officers Council to review 

and improve the FOIA process and to convene an annual FOIA 

meeting. In addition, the legislation would impose additional reporting and administrative requirements on agencies. Thus, CBO 

expects that the workload of most agencies would increase under 

the bill. Based on the costs of similar councils and related administrative requirements as well as a review of cost information in the 

annual reports submitted by 15 major agencies over the past five 

2 years, CBO estimates that implementing H.R. 653 would eventually cost $5 million annually—a 1 percent increase in the 

govemmentwide cost of administering FOIA. We expect that most 

federal agencies, however, would face additional costs of significantly less than $0.5 million per year. 

Attorney fees and other litigation costs 

H.R. 653 would require courts to award attorney fees and related 

litigation costs to plaintiffs in all FOIA cases where the plaintiff 

has ‘‘substantially prevailed.’’ Under current law, the courts have 

more discretion in awarding attorney fees and related costs. 

CBO reviewed FOIA cases over the 2010–2014 period In those 

years agencies spent between a few hundred dollars to $1.5 million 

per year on awards for plaintiffs’ attorney fees and related costs. 

In addition, on average there were less than 20 cases annually 

where attorney fees were not paid by the government when the 

plaintiff had prevailed on any part of the court’s decision. Based on 

that information, CBO estimates that under H.R. 653 additional attorney fees and related costs would total about $300,000 per year, 

roughly $2 million over the 2016–2020 period. 

Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 

for legislation affecting direct spending or revenues. Enacting H.R. 

653 could affect net direct spending by some agencies (such as the 


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22 

Tennessee Valley Authority) because their operating costs are covered by receipts from the sale of goods, fees, and other collections. 

Therefore, pay-as-you-go procedures apply. Because most of those 

agencies can make adjustments to the amounts collected, CBO estimates that any net changes in direct spending by those agencies 

would not be significant. Enacting the bill would not affect revenues. 

Intergovernmental and private-sector impact: H.R. 653 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA and would not affect the budgets of state, local, or tribal 

governments. 

Previous CBO estimate: On February 17, 2015, CBO transmitted 

a cost estimate for S. 337, the FOIA Improvement Act of 2015, as 

ordered reported by the Senate Committee on the Judiciary on February 9, 2015. H.R. 653 would require courts to order agencies to 

pay attorney and other litigation costs in FOIA disputes when the 

plaintiff substantially prevails, while the Senate bill would not 

That difference is reflected in the cost estimates. 

Estimate prepared by: Federal Costs: Matthew Pickford; Impact 

on State, Local, and Tribal Governments: Jon Sperl; Impact on Private Sector: John Rodier. 

Estimate approved by: Theresa Gullo, Assistant Director for 

Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 5—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

Subchapter II—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

§ 552. Public information; agency rules, opinions, orders, 

records, and proceedings 

(a) Each agency shall make available to the public information 

as follows: 

(1) Each agency shall separately state and currently publish in 

the Federal Register for the guidance of the public— 


SSpencer on DSK4SPTVN1PROD with REPORTS
23 

(A) descriptions of its central and field organization and the 

established places at which, the employees (and in the case of 

a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; 

(B) statements of the general course and method by which 

its functions are channeled and determined, including the nature and requirements of all formal and informal procedures 

available; 

(C) rules of procedure, descriptions of forms available or the 

places at which forms may be obtained, and instructions as to 

the scope and contents of all papers, reports, or examinations; 

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the 

agency; and 

(E) each amendment, revision, or repeal of the foregoing. 

Except to the extent that a person has actual and timely notice of 

the terms thereof, a person may not in any manner be required to 

resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of 

persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of 

the Director of the Federal Register. 

(2) Each agency, in accordance with published rules, shall make 

available øfor public inspection and copying¿ in an electronic, publicly accessible format— (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; 

(B) those statements of policy and interpretations which 

have been adopted by the agency and are not published in the 

Federal Register; 

(C) administrative staff manuals and instructions to staff 

that affect a member of the public; 

(D) copies of all records, regardless of form or format, which 

have been released to any person under paragraph (3) and 

which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject 

of subsequent requests for substantially the same recordsø; 

and¿; 

ø(E) a general index of the records referred to under subparagraph (D);¿ 

(E) copies of all releasable records, regardless of form or format, that have been requested three or more times under paragraph (3); and 

(F) a general index of the records referred to under subparagraphs (D) and (E); 

unless the materials are promptly published and copies offered for 

sale. For records created on or after November 1, 1996, within one 

year after such date, each agency shall make such records available, including by computer telecommunications or, if computer 

telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a 

clearly unwarranted invasion of personal privacy, an agency may 


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24 

delete identifying details when it makes available or publishes an 

opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in øsubparagraph (D)¿ subparagraphs (D) and (E). However, in each case the justification for 

the deletion shall be explained fully in writing, and the extent of 

such deletion shall be indicated on the portion of the record which 

is made available or published, unless including that indication 

would harm an interest protected by the exemption in subsection 

(b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record 

where the deletion was made. Each agency shall also maintain and 

make available øfor public inspection and copying¿ in an electronic, 

publicly accessible format current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be 

made available or published. Each agency shall promptly publish, 

quarterly or more frequently, and distribute (by sale or otherwise) 

copies of each index or supplements thereto unless it determines by 

order published in the Federal Register that the publication would 

be unnecessary and impracticable, in which case the agency shall 

nonetheless provide copies of such index on request at a cost not 

to exceed the direct cost of duplication. Each agency shall make the 

index referred to inøsubparagraph (E)¿ subparagraph (F) available 

by computer telecommunications by December 31, 1999. A final 

order, opinion, statement of policy, interpretation, or staff manual 

or instruction that affects a member of the public may be relied on, 

used, or cited as precedent by an agency against a party other than 

an agency only if— 

(i) it has been indexed and either made available or published as provided by this paragraph; or 

(ii) the party has actual and timely notice of the terms thereof. 

(3)(A) Except with respect to the records made available under 

paragraphs (1) and (2) of this subsection, and except as provided 

in subparagraph (E), each agency, upon any request for records 

which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), 

and procedures to be followed, shall make the records promptly 

available to any person. 

(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the 

agency in that form or format. Each agency shall make reasonable 

efforts to maintain its records in forms or formats that are reproducible for purposes of this section. 

(C) In responding under this paragraph to a request for records, 

an agency shall make reasonable efforts to search for the records 

in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system. 

(D) For purposes of this paragraph, the term ‘‘search’’ means to 

review, manually or by automated means, agency records for the 

purpose of locating those records which are responsive to a request. 

(E) An agency, or part of an agency, that is an element of the 

intelligence community (as that term is defined in section 3(4) of 


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25 

the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not 

make any record available under this paragraph to— 

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision 

thereof; or 

(ii) a representative of a government entity described in 

clause (i). 

(4)(A)(i) In order to carry out the provisions of this section, each 

agency shall promulgate regulations, pursuant to notice and receipt 

of public comment, specifying the schedule of fees applicable to the 

processing of requests under this section and establishing procedures and guidelines for determining when such fees should be 

waived or reduced. Such schedule shall conform to the guidelines 

which shall be promulgated, pursuant to notice and receipt of public comment, by øthe Director of the Office of Management and 

Budget¿ the Director of the Office of Management and Budget, in 

consultation with the Director of the Office of Government Information Services, and which shall provide for a uniform schedule of 

fees for all agencies. 

(ii) Such agency regulations shall provide that— 

(I) fees shall be limited to reasonable standard charges for 

document search, duplication, and review, when records are requested for commercial use; 

(II) fees shall be limited to reasonable standard charges for 

document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or 

scientific research; or a representative of the news media; and 

(III) for any request not described in (I) or (II), fees shall be 

limited to reasonable standard charges for document search 

and duplication. 

In this clause, the term ‘‘a representative of the news media’’ 

means any person or entity that gathers information of potential 

interest to a segment of the public, uses its editorial skills to turn 

the raw materials into a distinct work, and distributes that work 

to an audience. In this clause, the term ‘‘news’’ means information 

that is about current events or that would be of current interest 

to the public. Examples of news-media entities are television or 

radio stations broadcasting to the public at large and publishers of 

periodicals (but only if such entities qualify as disseminators of 

‘‘news’’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery 

evolve (for example, the adoption of the electronic dissemination of 

newspapers through telecommunications services), such alternative 

media shall be considered to be news-media entities. A freelance 

journalist shall be regarded as working for a news-media entity if 

the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually 

employed by the entity. A publication contract would present a 

solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such 

a determination. 

(iii) Documents shall be furnished without any charge or at a 

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sure of the information is in the public interest because it is likely 

to contribute significantly to public understanding of the operations 

or activities of the government and is not primarily in the commercial interest of the requester. 

(iv) Fee schedules shall provide for the recovery of only the direct 

costs of search, duplication, or review. Review costs shall include 

only the direct costs incurred during the initial examination of a 

document for the purposes of determining whether the documents 

must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues 

of law or policy that may be raised in the course of processing a 

request under this section. No fee may be charged by any agency 

under this section— 

(I) if the costs of routine collection and processing of the fee 

are likely to equal or exceed the amount of the fee; or 

(II) for any request described in clause (ii) (II) or (III) of this 

subparagraph for the first two hours of search time or for the 

first one hundred pages of duplication. 

(v) No agency may require advance payment of any fee unless 

the requester has previously failed to pay fees in a timely fashion, 

or the agency has determined that the fee will exceed $250. 

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of 

fees for particular types of records. 

(vii) In any action by a requester regarding the waiver of fees 

under this section, the court shall determine the matter de novo: 

Provided, That the court’s review of the matter shall be limited to 

the record before the agency. 

(viii) An agency shall not assess search fees (or in the case of a 

requester described under clause (ii)(II), duplication fees) under 

this subparagraph if the agency fails to comply with any time limit 

under paragraph (6), if no unusual or exceptional circumstances (as 

those terms are defined for purposes of paragraphs (6)(B) and (C), 

respectively) apply to the processing of the request. Any agency 

that does assess search or duplication fees after failing to comply 

with a time limit under paragraph (6) shall provide written notice 

to the requester of the circumstance that justifies the fees. If an 

agency fails to provide such notice, the agency may not assess search 

or duplication fees. 

(B) On complaint, the district court of the United States in the 

district in which the complainant resides, or has his principal place 

of business, or in which the agency records are situated, or in the 

District of Columbia, has jurisdiction to enjoin the agency from 

withholding agency records and to order the production of any 

agency records improperly withheld from the complainant. In such 

a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine 

whether such records or any part thereof shall be withheld under 

any of the exemptions set forth in subsection (b) of this section, and 

the burden is on the agency to sustain its action. In addition to any 

other matters to which a court accords substantial weight, a court 

shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under 


SSpencer on DSK4SPTVN1PROD with REPORTS
27 

paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). 

(C) Notwithstanding any other provision of law, the defendant 

shall serve an answer or otherwise plead to any complaint made 

under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless 

the court otherwise directs for good cause shown. 

(E)(i) øThe court may¿ The court shall assess against the United 

States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. 

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through 

either— 

(I) a judicial order, or an enforceable written agreement or 

consent decree; or 

(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial. 

(F)(i) Whenever the court orders the production of any agency 

records improperly withheld from the complainant and assesses 

against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that 

the circumstances surrounding the withholding raise questions 

whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation 

and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the 

agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The 

administrative authority shall take the corrective action that the 

Special Counsel recommends. 

(ii) The Attorney General shall— 

(I) notify the Special Counsel of each civil action described 

under the first sentence of clause (i); and 

(II) annually submit a report to Congress on the number of 

such civil actions in the preceding year. 

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i). 

(G) In the event of noncompliance with the order of the court, the 

district court may punish for contempt the responsible employee, 

and in the case of a uniformed service, the responsible member. 

(5) Each agency having more than one member shall maintain 

and make available for public inspection a record of the final votes 

of each member in every agency proceeding. 

(6)(A) Each agency, upon any request for records made under 

paragraph (1), (2), or (3) of this subsection, shall— 

(i) determine within 20 days (excepting Saturdays, Sundays, 

and legal public holidays) after the receipt of any such request 

whether to comply with such request and shall immediately 

notify the person making such request øof such determination 

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28 

peal to the head of the agency any adverse determination; 

and¿ of— 

(I) such determination and the reasons therefor; 

(II) the right of such person to seek assistance from the 

agency FOIA Public Liaison; and 

(III) the right of such person to appeal to the head of the 

agency any adverse determination, within a period determined by the agency that is not less than 90 days after the 

receipt of such adverse determination; and 

(ii) make a determination with respect to any appeal within 

twenty days (excepting Saturdays, Sundays, and legal public 

holidays) after the receipt of such appeal.If on appeal the denial of the request for records is in whole or in part upheld, 

the agency shall notify the person making such request of the 

provisions for judicial review of that determination under paragraph (4) of this subsectionø.¿ and the right of such person to 

seek dispute resolution services from the agency FOIA Public 

Liaison or the Office of Government Information Services. 

The 20-day period under clause (i) shall commence on the date on 

which the request is first received by the appropriate component of 

the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by 

the agency except— 

(I) that the agency may make one request to the requester 

for information and toll the 20-day period while it is awaiting 

such information that it has reasonably requested from the requester under this section; or 

(II) if necessary to clarify with the requester issues regarding 

fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or 

clarification ends the tolling period. 

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) 

of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances 

for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that 

would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph. 

(ii) With respect to a request for which a written notice under 

clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to 

limit the scope of the request so that it may be processed within 

that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or 

arrange such an alternative time frame shall be considered as a 

factor in determining whether exceptional circumstances exist for 

purposes of subparagraph (C). To aid the requester, each agency 

shall make available its FOIA Public Liaison, who shall assist in 


SSpencer on DSK4SPTVN1PROD with REPORTS
29 

the resolution of any disputes between the requester and the agency. 

(iii) As used in this subparagraph, ‘‘unusual circumstances’’ 

means, but only to the extent reasonably necessary to the proper 

processing of the particular requests— 

(I) the need to search for and collect the requested records 

from field facilities or other establishments that are separate 

from the office processing the request; 

(II) the need to search for, collect, and appropriately examine 

a voluminous amount of separate and distinct records which 

are demanded in a single request; or 

(III) the need for consultation, which shall be conducted with 

all practicable speed, with another agency having a substantial 

interest in the determination of the request or among two or 

more components of the agency having substantial subject-matter interest therein. 

(iv) Each agency may promulgate regulations, pursuant to notice 

and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors 

acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise 

satisfy the unusual circumstances specified in this subparagraph, 

and the requests involve clearly related matters. Multiple requests 

involving unrelated matters shall not be aggregated. 

(C)(i) Any person making a request to any agency for records 

under paragraph (1), (2), or (3) of this subsection shall be deemed 

to have exhausted his administrative remedies with respect to such 

request if the agency fails to comply with the applicable time limit 

provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due 

diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review 

of the records. Upon any determination by an agency to comply 

with a request for records, the records shall be made promptly 

available to such person making such request. Any notification of 

denial of any request for records under this subsection shall set 

forth the names and titles or positions of each person responsible 

for the denial of such request. 

(ii) For purposes of this subparagraph, the term ‘‘exceptional circumstances’’ does not include a delay that results from a predictable agency workload of requests under this section, unless the 

agency demonstrates reasonable progress in reducing its backlog of 

pending requests. 

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request 

(or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request 

shall be considered as a factor in determining whether exceptional 

circumstances exist for purposes of this subparagraph. 

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time 

(or both) involved in processing requests. 

(ii) Regulations under this subparagraph may provide a person 

making a request that does not qualify for the fastest multitrack 


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30 

processing an opportunity to limit the scope of the request in order 

to qualify for faster processing. 

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. 

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records— 

(I) in cases in which the person requesting the records demonstrates a compelling need; and 

(II) in other cases determined by the agency. 

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure— 

(I) that a determination of whether to provide expedited 

processing shall be made, and notice of the determination shall 

be provided to the person making the request, within 10 days 

after the date of the request; and 

(II) expeditious consideration of administrative appeals of 

such determinations of whether to provide expedited processing. 

(iii) An agency shall process as soon as practicable any request 

for records to which the agency has granted expedited processing 

under this subparagraph. Agency action to deny or affirm denial of 

a request for expedited processing pursuant to this subparagraph, 

and failure by an agency to respond in a timely manner to such a 

request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the 

agency at the time of the determination. 

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request 

for records after the agency has provided a complete response to 

the request. 

(v) For purposes of this subparagraph, the term ‘‘compelling 

need’’ means— 

(I) that a failure to obtain requested records on an expedited 

basis under this paragraph could reasonably be expected to 

pose an imminent threat to the life or physical safety of an individual; or 

(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. 

(vi) A demonstration of a compelling need by a person making a 

request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief. 

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide 

any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. 

(7) Each agency shall— 

(A) establish a system to assign an individualized tracking 

number for each request received øthat will take longer than 

ten days to process¿ and provide to each person making a request the tracking number assigned to the request; and 


SSpencer on DSK4SPTVN1PROD with REPORTS
31 

(B) establish a telephone line or Internet service that provides automated information about the status of a request to 

the person making the request using the assigned tracking 

number, including— 

(i) the date on which the agency originally received the 

request; and 

(ii) an estimated date on which the agency will complete 

action on the request. 

(8) DISCLOSURE OF INFORMATION FOR INCREASED PUBLIC UN- DERSTANDING OF THE GOVERNMENT.—Each agency shall— 

(A) review the records of such agency to determine whether the release of the records would be in the public interest 

because it is likely to contribute significantly to public understanding of the operations or activities of the Government; 

(B) for records determined to be in the public interest 

under subparagraph (A), reasonably segregate and redact 

any information exempted from disclosure under subsection 

(b); and 

(C) make available in an electronic, publicly accessible 

format, any records identified in subparagraph (A), as 

modified pursuant to subparagraph (B). 

(9) INCREASED DISCLOSURE OF INFORMATION.—Each agency 

shall— 

(A) make information public to the greatest extent possible through modern technology to— 

(i) inform the public of the operations and activities 

of the Government; and 

(ii) ensure timely disclosure of information; and 

(B) establish procedures for identifying categories of 

records that may be disclosed regularly and additional 

records of interest to the public that are appropriate for 

public disclosure, and for posting such records in an electronic, publicly accessible format. 

(b) This section does not apply to matters that are— 

(1)(A) specifically authorized under criteria established by an 

Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified 

pursuant to such Executive order; 

(2) related solely to the internal personnel rules and practices of an agency; 

(3) specifically exempted from disclosure by statute (other 

than section 552b of this title), if that statute— 

(A)(i) requires that the matters be withheld from the 

public in such a manner as to leave no discretion on the 

issue; or 

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and 

(B) if enacted after the date of enactment of the OPEN 

FOIA Act of 2009, specifically cites to this paragraph. 

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; 

(5) inter-agency or intra-agency memorandums or letters 

which would not be available by law to a party other than an 

agency in litigation with the agency, excluding— 


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32 

(A) opinions that are controlling interpretations of law; 

(B) final reports or memoranda created by an entity other 

than the agency, including other Governmental entities, at 

the request of the agency and used to make a final policy 

decision; 

(C) guidance documents used by the agency to respond to 

the public; and 

(D) records or information created 25 years or more before the date on which a request is made under subsection 

(a)(3); 

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion 

of personal privacy; 

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law 

enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably 

be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential 

basis, and, in the case of a record or information compiled by 

criminal law enforcement authority in the course of a criminal 

investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a 

confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or 

would disclose guidelines for law enforcement investigations or 

prosecutions if such disclosure could reasonably be expected to 

risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; 

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an 

agency responsible for the regulation or supervision of financial 

institutions; or 

(9) geological and geophysical information and data, including maps, concerning wells. 

An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause 

specific identifiable harm to an interest protected by an exemption, 

or if disclosure is prohibited by law. Any reasonably segregable portion of a record shall be provided to any person requesting such 

record after deletion of the portions which are exempt under this 

subsection. The amount of information deleted, and the exemption 

under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would 

harm an interest protected by the exemption in this subsection 

under which the deletion is made. If technically feasible, the 

amount of the information deleted, and the exemption under which 

the deletion is made, shall be indicated at the place in the record 

where such deletion is made. 

(c)(1) Whenever a request is made which involves access to 

records described in subsection (b)(7)(A) and— 


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33 

(A) the investigation or proceeding involves a possible violation of criminal law; and 

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, 

the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this 

section. 

(2) Whenever informant records maintained by a criminal law 

enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s 

name or personal identifier, the agency may treat the records as 

not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed. 

(3) Whenever a request is made which involves access to records 

maintained by the Federal Bureau of Investigation pertaining to 

foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as 

provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records 

as not subject to the requirements of this section. 

(d) This section does not authorize withholding of information or 

limit the availability of records to the public, except as specifically 

stated in this section. This section is not authority to withhold information from Congress. 

(e)(1) On or before February 1 of each year, each agency shall 

submit to the Attorney General of the United States and to the Director of the Office of Government Information Services a report 

which shall cover the preceding fiscal year and which shall include— 

(A) the number of determinations made by the agency not to 

comply with requests for records made to such agency under 

subsection (a) and the reasons for each such determination; 

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the 

action upon each appeal that results in a denial of information; 

and 

(ii) a complete list of all statutes that the agency relies upon 

to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute 

was relied upon, a description of whether a court has upheld 

the decision of the agency to withhold information under each 

such statute, and a concise description of the scope of any information withheld; 

(C) the number of requests for records pending before the 

agency as of September 30 of the preceding year, and the median and average number of days that such requests had been 

pending before the agency as of that date; 

(D) the number of requests for records received by the agency and the number of requests which the agency processed; 

(E) the median number of days taken by the agency to process different types of requests, based on the date on which the 

requests were received by the agency; 


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34 

(F) the average number of days for the agency to respond to 

a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of 

days for the agency to respond to such requests; 

(G) based on the number of business days that have elapsed 

since each request was originally received by the agency— 

(i) the number of requests for records to which the agency has responded with a determination within a period up 

to and including 20 days, and in 20-day increments up to 

and including 200 days; 

(ii) the number of requests for records to which the agency has responded with a determination within a period 

greater than 200 days and less than 301 days; 

(iii) the number of requests for records to which the 

agency has responded with a determination within a period greater than 300 days and less than 401 days; and 

(iv) the number of requests for records to which the 

agency has responded with a determination within a period greater than 400 days; 

(H) the average number of days for the agency to provide the 

granted information beginning on the date on which the request was originally filed, the median number of days for the 

agency to provide the granted information, and the range in 

number of days for the agency to provide the granted information; 

(I) the median and average number of days for the agency 

to respond to administrative appeals based on the date on 

which the appeals originally were received by the agency, the 

highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of 

business days taken by the agency to respond to an administrative appeal; 

(J) data on the 10 active requests with the earliest filing 

dates pending at each agency, including the amount of time 

that has elapsed since each request was originally received by 

the agency; 

(K) data on the 10 active administrative appeals with the 

earliest filing dates pending before the agency as of September 

30 of the preceding year, including the number of business 

days that have elapsed since the requests were originally received by the agency; 

(L) the number of expedited review requests that are granted 

and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days; 

(M) the number of fee waiver requests that are granted and 

denied, and the average and median number of days for adjudicating fee waiver determinations; 

(N) the total amount of fees collected by the agency for processing requestsø; and¿; 

(O) the number of full-time staff of the agency devoted to 

processing requests for records under this section, and the total 

amount expended by the agency for processing such 

requestsø.¿; 


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35 

(P) the number of times the agency invoked a law enforcement 

exclusion under subsection (c); 

(Q) the number of times the agency engaged in dispute resolution with the assistance of the Office of Government Information 

Services or the FOIA Public Liaison; 

(R) the number of records that were made available in an 

electronic, publicly accessible format under subsection (a)(2); 

and 

(S) the number of times the agency assessed a search or duplication fee under subsection (a)(4)(A) and did not comply with 

a time limit under subsection (a)(6). 

(2) Information in each report submitted under paragraph (1) 

shall be expressed in terms of each principal component of the 

agency and for the agency overall. 

ø(3) Each agency shall make each such report available to the 

public including by computer telecommunications, or if computer 

telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make 

the raw statistical data used in its reports available electronically 

to the public upon request.¿ 

(3) ELECTRONIC ACCESSIBILITY OF REPORTS.—Each agency 

shall make each such report available in an electronic, publicly 

accessible format. In addition, each agency shall make the raw 

statistical data used in its reports available in a timely manner 

in an electronic, publicly accessible format. Such data shall 

be— 

(A) made available without charge, license, or registration requirement; 

(B) capable of being searched and aggregated; and 

(C) permitted to be downloaded and downloaded in bulk. 

(4) The Attorney General of the United States shall make each 

report which has been made available by electronic means available at a single electronic access point. The Attorney General of the 

United States shall notify the Chairman and ranking minority 

member of the øCommittee on Government Reform and Oversight¿ 

Committee on Oversight and Government Reform of the House of 

Representatives and the Chairman and ranking minority member 

of the Committees on øGovernmental Affairs¿ Homeland Security 

and Governmental Affairs and the Judiciary of the Senate, no later 

than øApril 1¿ March 1 of the year in which each such report is 

issued, that such reports are available by electronic means. 

(5) The Attorney General of the United States, in consultation 

with the Director of the Office of Management and Budget and the 

Director of the Office of Government Information Services, shall develop reporting and performance guidelines in connection with reports required by this subsection øby October 1, 1997¿, and may 

establish additional requirements for such reports as the Attorney 

General determines may be useful. 

ø(6) The Attorney General of the United States shall submit an 

annual report on or before April 1 of each calendar year which 

shall include for the prior calendar year a listing of the number of 

cases arising under this section, the exemption involved in each 

case, the disposition of such case, and the cost, fees, and penalties 

assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). 

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SSpencer on DSK4SPTVN1PROD with REPORTS
36 

taken by the Department of Justice to encourage agency compliance with this section.¿ 

(6) ATTORNEY GENERAL FOIA REPORT.— (A) IN GENERAL.—The Attorney General of the United 

States shall submit to Congress and the President an annual report on or before March 1 of each calendar year 

which shall include for the prior calendar year— 

(i) a listing of the number of cases arising under this 

section; 

(ii) each subsection under this section, each paragraph of the subsection, and any exemption, if applicable, involved in each case, the disposition of such case, 

and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and 

(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance 

with this section. 

(B) ELECTRONIC AVAILABILITY.—The Attorney General of 

the United States— 

(i) shall make each report described under subparagraph (A) available in an electronic, publicly accessible 

format; and 

(ii) shall make the raw statistical data used in each 

report available in an electronic, publicly accessible 

format, which shall be— 

(I) made available without charge, license, or 

registration requirement; 

(II) capable of being searched and aggregated; 

and 

(III) permitted to be downloaded, including 

downloaded in bulk. 

(f) For purposes of this section, the term— 

(1) ‘‘agency’’ as defined in section 551(1) of this title includes 

any executive department, military department, Government 

corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including 

the Executive Office of the President), or any independent regulatory agency; and 

(2) ‘‘record’’ and any other term used in this section in reference to information includes— 

(A) any information that would be an agency record subject to the requirements of this section when maintained 

by an agency in any format, including an electronic format; 

and 

(B) any information described under subparagraph (A) 

that is maintained for an agency by an entity under Government contract, for the purposes of records management. 

(g) The head of each agency shall prepare and ømake publicly 

available upon request¿ make available in an electronic, publicly 

accessible format, reference material or a guide for requesting 

records or information from the agency, subject to the exemptions 

in subsection (b), including— 

(1) an index of all major information systems of the agency; 

(2) a description of major information and record locator systems maintained by the agency; and 


SSpencer on DSK4SPTVN1PROD with REPORTS
37 

(3) a handbook for obtaining various types and categories of 

public information from the agency pursuant to chapter 35 of 

title 44, and under this section. 

ø(h)(1) There is established the Office of Government Information 

Services within the National Archives and Records Administration. 

ø(2) The Office of Government Information Services shall— 

ø(A) review policies and procedures of administrative agencies under this section; 

ø(B) review compliance with this section by administrative 

agencies; and 

ø(C) recommend policy changes to Congress and the President to improve the administration of this section. 

ø(3) The Office of Government Information Services shall offer 

mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, 

may issue advisory opinions if mediation has not resolved the dispute. 

ø(i) The Government Accountability Office shall conduct audits of 

administrative agencies on the implementation of this section and 

issue reports detailing the results of such audits. 

ø(j) Each agency shall designate a Chief FOIA Officer who shall 

be a senior official of such agency (at the Assistant Secretary or 

equivalent level). 

ø(k) The Chief FOIA Officer of each agency shall, subject to the 

authority of the head of the agency— 

ø(1) have agency-wide responsibility for efficient and appropriate compliance with this section; 

ø(2) monitor implementation of this section throughout the 

agency and keep the head of the agency, the chief legal officer 

of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section; 

ø(3) recommend to the head of the agency such adjustments 

to agency practices, policies, personnel, and funding as may be 

necessary to improve its implementation of this section; 

ø(4) review and report to the Attorney General, through the 

head of the agency, at such times and in such formats as the 

Attorney General may direct, on the agency’s performance in 

implementing this section; 

ø(5) facilitate public understanding of the purposes of the 

statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook 

issued under subsection (g), and the agency’s annual report on 

this section, and by providing an overview, where appropriate, 

of certain general categories of agency records to which those 

exemptions apply; and 

ø(6) designate one or more FOIA Public Liaisons.¿ 

(h) THE OFFICE OF GOVERNMENT INFORMATION SERVICES.— (1) ESTABLISHMENT.—There is established the Office of Government Information Services within the National Archives and 

Records Administration. The head of the Office is the Director 

of the Office of Government Information Services. 

(2) REVIEW OF FOIA POLICY, PROCEDURE, AND COMPLIANCE.— 

The Office of Government Information Services shall— 


SSpencer on DSK4SPTVN1PROD with REPORTS
38 

(A) review policies and procedures of agencies under this 

section; 

(B) review compliance with this section by agencies; 

(C) identify methods that improve compliance under this 

section that may include— 

(i) the timely processing of requests submitted to 

agencies under this section; 

(ii) the system for assessing fees and fee waivers 

under this section; and 

(iii) the use of any exemption under subsection (b); 

and 

(D) review and provide guidance to agencies on the use 

of fees and fee waivers. 

(3) MEDIATION SERVICES.—The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and 

agencies as a non-exclusive alternative to litigation and may 

issue advisory opinions at the discretion of the Office or upon 

request of any party to such mediation services. 

(4) SUBMISSION OF REPORT.— 

(A) IN GENERAL.—The Office of Government Information 

Services shall not less than annually submit to the committees described in subparagraph (C) and the President a report on the findings from the information reviewed and 

identified under paragraph (2), a summary of the Office’s 

activities under paragraph (3) (including any advisory 

opinions issued), and legislative and regulatory recommendations to improve the administration of this section. 

(B) ELECTRONIC AVAILABILITY OF REPORTS.—The Office 

shall make available any report submitted under paragraph (A) in a publicly accessible format. 

(C) CONGRESSIONAL SUBMISSION OF REPORT.—The committees described in this subparagraph are the following: 

(i) The Committee on Oversight and Government Reform of the House of Representatives. 

(ii) The Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate. 

(D) DIRECT SUBMISSION OF REPORTS AND TESTIMONY.— 

Any report submitted under paragraph (A), any testimony, 

or any other communication to Congress shall be submitted 

directly to the committees and the President, without any 

requirement that any officer or employee outside of the Office of Government Information Services, including the Archivist of the United States and the Director of the Office 

of Management and Budget, review such report, testimony, 

or other communication. 

(5) SUBMISSION OF ADDITIONAL INFORMATION.—The Director 

of the Office of Government Information Services may submit 

additional information to Congress and the President that the 

Director determines to be appropriate. 

(6) ANNUAL MEETING REQUIRED.—Not less than once a year, 

the Office of Government Information Services shall hold a 

meeting that is open to the public on the review and reports by 


SSpencer on DSK4SPTVN1PROD with REPORTS
39 

the Office and permit interested persons to appear and present 

oral or written statements at such meeting. 

(i) GOVERNMENT ACCOUNTABILITY OFFICE.—The Government Accountability Office shall— 

(1) conduct audits of administrative agencies on compliance 

with and implementation of the requirements of this section 

and issue reports detailing the results of such audits; 

(2) catalog the number of exemptions under subsection (b)(3) 

and agency use of such exemptions; and 

(3) review and prepare a report on the processing of requests 

by agencies for information pertaining to an entity that has received assistance under title I of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) during any period in which the Government owns or owned more than 50 percent of the stock of such entity. 

(j) CHIEF FOIA OFFICER.— 

(1) DESIGNATION.—Each agency shall designate a Chief FOIA 

Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level). 

(2) DUTIES.—The Chief FOIA Officer of each agency shall, 

subject to the authority of the head of the agency— 

(A) have agency-wide responsibility for efficient and appropriate compliance with this section; 

(B) monitor implementation of this section throughout the 

agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately 

informed of the agency’s performance in implementing this 

section; 

(C) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding 

as may be necessary to improve its implementation of this 

section; 

(D) review and report to the Attorney General, through 

the head of the agency, at such times and in such formats 

as the Attorney General may direct, on the agency’s performance in implementing this section; 

(E) facilitate public understanding of the purposes of the 

statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook 

issued under subsection (g), and the agency’s annual report 

on this section, and by providing an overview, where appropriate, of certain general categories of agency records to 

which those exemptions apply; 

(F) serve as the primary agency liaison with the Office of 

Government Information Services and the Office of Information Policy; and 

(G) designate one or more FOIA Public Liaisons. 

(3) COMPLIANCE REVIEW REQUIRED.—The Chief FOIA Officer 

of each agency shall— 

(A) review, not less than annually, all aspects of the 

agency’s administration of this section to ensure compliance 

with the requirements of this section, including— 

(i) agency regulations; 

(ii) disclosure of records required under paragraphs 

(2), (8), and (9) of subsection (a); 


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40 

(iii) assessment of fees and determination of eligibility for fee waivers; 

(iv) the timely processing of requests for information 

under this section; 

(v) the use of exemptions under subsection (b); and 

(vi) dispute resolution services with the assistance of 

the Office of Government Information Services or the 

FOIA Public Liaison; and 

(B) make recommendations as necessary to improve agency practices and compliance with this section. 

(k) CHIEF FOIA OFFICERS COUNCIL.— (1) ESTABLISHMENT.—There is established in the executive 

branch the Chief FOIA Officers Council (in this subsection, referred to as the ‘‘Council’’). 

(2) MEMBERS.—The Council shall consist of the following 

members: 

(A) The Deputy Director for Management of the Office of 

Management and Budget. 

(B) The Director of the Office of Information Policy at the 

Department of Justice. 

(C) The Director of the Office of Government Information 

Services at the National Archives and Records Administration. 

(D) The Chief FOIA Officer of each agency. 

(E) Any other officer or employee of the United States as 

designated by the Co-Chairs. 

(3) CO-CHAIRS.—The Director of the Office of Information Policy at the Department of Justice and the Director of the Office 

of Government Information Services at the National Archives 

and Records Administration shall be the Co-Chairs of the 

Council. 

(4) SUPPORT SERVICES.—The Administrator of General Services shall provide administrative and other support for the 

Council. 

(5) CONSULTATION.—In performing its duties, the Council 

shall consult regularly with members of the public who make 

requests under this section. 

(6) DUTIES.—The duties of the Council include the following: 

(A) Develop recommendations for increasing compliance 

and efficiency under this section. 

(B) Disseminate information about agency experiences, 

ideas, best practices, and innovative approaches related to 

this section. 

(C) Identify, develop, and coordinate initiatives to increase transparency and compliance with this section. 

(D) Promote the development and use of common performance measures for agency compliance with this section. 

(7) MEETINGS.— 

(A) REGULAR MEETINGS.—The Council shall meet regularly and such meetings shall be open to the public unless 

the Council determines to close the meeting for reasons of 

national security or to discuss information exempt under 

subsection (b). 

(B) ANNUAL MEETINGS.—Not less than once a year, the 

Council shall hold a meeting that shall be open to the pubVerDate Sep 11 2014 05:29 Jan 09, 2016 Jkt 059006 PO 00000 Frm 00040 Fmt 6659 Sfmt 6603 E:\HR\OC\HR391.XXX HR391

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lic and permit interested persons to appear and present 

oral and written statements to the Council. 

(C) NOTICE.—Not later than 10 business days before a 

meeting of the Council, notice of such meeting shall be published in the Federal Register. 

(D) PUBLIC AVAILABILITY OF COUNCIL RECORDS.—Except 

as provided in subsection (b), the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents that were made available 

to or prepared for or by the Council shall be made publicly 

available. 

(E) MINUTES.—Detailed minutes of each meeting of the 

Council shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the Council. 

(l) FOIA Public Liaisons shall report to the agency Chief FOIA 

Officer and shall serve as supervisory officials to whom a requester 

under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an 

initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, 

and assisting in the resolution of disputes. 

(m) ELECTRONIC SUBMISSION OF REQUESTS.— (1) CONSOLIDATED ONLINE REQUEST PORTAL.—The Director of 

the Office of Management and Budget, in consultation with the 

Attorney General, shall ensure the operation of a consolidated 

online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency 

from a single website. The portal may include any additional 

tools the Director of the Office of Management and Budget finds 

will improve the implementation of this section. 

(2) RULE OF CONSTRUCTION.—This subsection shall not be 

construed to alter the power of any other agency to create or 

maintain an independent online portal for the submission of a 

request for records under this section. The Director of the Office 

of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) 

and other request processing software used by agencies subject 

to this section. 

(3) EMAIL REQUEST REQUIRED.—Each agency shall accept requests for records under subsection (a) through an email address and shall publish such email address on the website of 

the agency. 

* * * * * * * 

Æ 


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