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Calendar No. 127 

110TH CONGRESS 

1ST SESSION S. 849 

[Report No. 110–59] 

To promote accessibility, accountability, and openness in Government by 

strengthening section 552 of title 5, United States Code (commonly 

referred to as the Freedom of Information Act), and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 13, 2007 

Mr. LEAHY (for himself, Mr. CORNYN, Mr. SPECTER, Mr. FEINGOLD, Mr. 

KERRY, Mr. ISAKSON, Mr. BROWN, Mr. CARDIN, and Ms. LANDRIEU) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

APRIL 30, 2007 

Reported by Mr. LEAHY, without amendment 

A BILL 

To promote accessibility, accountability, and openness in 

Government by strengthening section 552 of title 5, 

United States Code (commonly referred to as the Freedom of Information Act), and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Openness Promotes 

3 Effectiveness in our National Government Act of 2007’’ 

4 or the ‘‘OPEN Government Act of 2007’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds that— 

7 (1) the Freedom of Information Act was signed 

8 into law on July 4, 1966, because the American peo9 ple believe that— 

10 (A) our constitutional democracy, our sys11 tem of self-government, and our commitment to 

12 popular sovereignty depends upon the consent 

13 of the governed; 

14 (B) such consent is not meaningful unless 

15 it is informed consent; and 

16 (C) as Justice Black noted in his concur17 ring opinion in Barr v. Matteo (360 U.S. 564 

18 (1959)), ‘‘The effective functioning of a free 

19 government like ours depends largely on the 

20 force of an informed public opinion. This calls 

21 for the widest possible understanding of the 

22 quality of government service rendered by all 

23 elective or appointed public officials or employ24 ees.’’; 


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1 (2) the American people firmly believe that our 

2 system of government must itself be governed by a 

3 presumption of openness; 

4 (3) the Freedom of Information Act establishes 

5 a ‘‘strong presumption in favor of disclosure’’ as 

6 noted by the United States Supreme Court in 

7 United States Department of State v. Ray (502 U.S. 

8 164 (1991)), a presumption that applies to all agen9 cies governed by that Act; 

10 (4) ‘‘disclosure, not secrecy, is the dominant ob11 jective of the Act,’’ as noted by the United States 

12 Supreme Court in Department of Air Force v. Rose 

13 (425 U.S. 352 (1976)); 

14 (5) in practice, the Freedom of Information Act 

15 has not always lived up to the ideals of that Act; and 

16 (6) Congress should regularly review section 

17 552 of title 5, United States Code (commonly re18 ferred to as the Freedom of Information Act), in 

19 order to determine whether further changes and im20 provements are necessary to ensure that the Govern21 ment remains open and accessible to the American 

22 people and is always based not upon the ‘‘need to 

23 know’’ but upon the fundamental ‘‘right to know’’. 


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1 SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA. 

2 Section 552(a)(4)(A)(ii) of title 5, United States 

3 Code, is amended by adding at the end the following: 

4 ‘‘In making a determination of a representative of the 

5 news media under subclause (II), an agency may not deny 

6 that status solely on the basis of the absence of institu7 tional associations of the requester, but shall consider the 

8 prior publication history of the requester. Prior publica9 tion history shall include books, magazine and newspaper 

10 articles, newsletters, television and radio broadcasts, and 

11 Internet publications. If the requestor has no prior publi12 cation history or current affiliation, the agency shall con13 sider the requestor’s stated intent at the time the request 

14 is made to distribute information to a reasonably broad 

15 audience.’’. 

16 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

17 COSTS. 

18 Section 552(a)(4)(E) of title 5, United States Code, 

19 is amended— 

20 (1) by inserting ‘‘(i)’’ after ‘‘(E)’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(ii) For purposes of this section, a 

23 complainant has substantially prevailed if 

24 the complainant has obtained relief 

25 through either— 


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1 ‘‘(I) a judicial order, an adminis2 trative action, or an enforceable writ3 ten agreement or consent decree; or 

4 ‘‘(II) a voluntary or unilateral 

5 change in position by the opposing 

6 party, where the complaintant’s claim 

7 or defense was not frivolous.’’. 

8 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA9 PRICIOUS REJECTIONS OF REQUESTS. 

10 Section 552(a)(4)(F) of title 5, United States Code, 

11 is amended— 

12 (1) by inserting ‘‘(i)’’ after ‘‘(F)’’; and 

13 (2) by adding at the end the following: 

14 ‘‘(ii) The Attorney General shall— 

15 ‘‘(I) notify the Special Counsel of each civil ac16 tion described under the first sentence of clause (i); 

17 and 

18 ‘‘(II) annually submit a report to Congress on 

19 the number of such civil actions in the preceding 

20 year. 

21 ‘‘(iii) The Special Counsel shall annually submit a re22 port to Congress on the actions taken by the Special Coun23 sel under clause (i).’’. 

24 SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS. 

25 (a) TIME LIMITS.— 


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1 (1) IN GENERAL.—Section 552(a)(6)(A)(i) of 

2 title 5, United States Code, is amended by inserting 

3 ‘‘, and the 20-day period shall commence on the date 

4 on which the request is first received by the agency, 

5 and shall not be tolled without the consent of the 

6 party filing the request’’ after ‘‘adverse determina7 tion’’. 

8 (2) EFFECTIVE DATE.—The amendment made 

9 by this subsection shall take effect 1 year after the 

10 date of enactment of this Act. 

11 (b) AVAILABILITY OF AGENCY EXEMPTIONS.— 

12 (1) IN GENERAL.—Section 552(a)(6) of title 5, 

13 United States Code, is amended by adding at the 

14 end the following: 

15 ‘‘(G)(i) If an agency fails to comply with the applica16 ble time limit provisions of this paragraph with respect 

17 to a request, the agency may not assert any exemption 

18 under subsection (b) to that request, unless disclosure— 

19 ‘‘(I) would endanger the national security of the 

20 United States; 

21 ‘‘(II) would disclose personal private informa22 tion protected by section 552a or proprietary infor23 mation; or 

24 ‘‘(III) is otherwise prohibited by law. 


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1 ‘‘(ii) A court may waive the application of clause (i) 

2 if the agency demonstrates by clear and convincing evi3 dence that there was good cause for the failure to comply 

4 with the applicable time limit provisions.’’. 

5 (2) EFFECTIVE DATE AND APPLICATION.—The 

6 amendment made by this subsection shall take effect 

7 1 year after the date of enactment of this Act and 

8 apply to requests for information under section 552 

9 of title 5, United States Code, filed on or after that 

10 effective date. 

11 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE12 QUESTS AND STATUS INFORMATION. 

13 (a) IN GENERAL.—Section 552(a) of title 5, United 

14 States Code, is amended by adding at the end the fol15 lowing: 

16 ‘‘(7) Each agency shall— 

17 ‘‘(A) establish a system to assign an individual18 ized tracking number for each request for informa19 tion under this section; 

20 ‘‘(B) not later than 10 days after receiving a 

21 request, provide each person making a request with 

22 the tracking number assigned to the request; and 

23 ‘‘(C) establish a telephone line or Internet serv24 ice that provides information about the status of a 


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1 request to the person making the request using the 

2 assigned tracking number, including— 

3 ‘‘(i) the date on which the agency origi4 nally received the request; and 

5 ‘‘(ii) an estimated date on which the agen6 cy will complete action on the request.’’. 

7 (b) EFFECTIVE DATE AND APPLICATION.—The 

8 amendment made by this section shall take effect 1 year 

9 after the date of enactment of this Act and apply to re10 quests for information under section 552 of title 5, United 

11 States Code, filed on or after that effective date. 

12 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

13 Section 552(b) of title 5, United States Code, is 

14 amended by striking paragraph (3) and inserting the fol15 lowing: 

16 ‘‘(3) specifically exempted from disclosure by 

17 statute (other than section 552b of this title), pro18 vided that such statute— 

19 ‘‘(A) if enacted after the date of enactment 

20 of the Openness Promotes Effectiveness in our 

21 National Government Act of 2005, specifically 

22 cites to this section; and 

23 ‘‘(B)(i) requires that the matters be with24 held from the public in such a manner as to 

25 leave no discretion on the issue; or 


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1 ‘‘(ii) establishes particular criteria for 

2 withholding or refers to particular types of mat3 ters to be withheld;’’. 

4 SEC. 9. REPORTING REQUIREMENTS. 

5 (a) IN GENERAL.—Section 552(e)(1) of title 5, 

6 United States Code, is amended— 

7 (1) in subparagraph (B)(ii), by inserting after 

8 the first comma ‘‘the number of occasions on which 

9 each statute was relied upon,’’; 

10 (2) in subparagraph (C), by inserting ‘‘and av11 erage’’ after ‘‘median’’; 

12 (3) in subparagraph (E), by inserting before the 

13 semicolon ‘‘, based on the date on which the requests 

14 were received by the agency’’; 

15 (4) by redesignating subparagraphs (F) and 

16 (G) as subparagraphs (N) and (O), respectively; and 

17 (5) by inserting after subparagraph (E) the fol18 lowing: 

19 ‘‘(F) the average number of days for the 

20 agency to respond to a request beginning on the 

21 date on which the request was received by the 

22 agency, the median number of days for the 

23 agency to respond to such requests, and the 

24 range in number of days for the agency to re25 spond to such requests; 


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1 ‘‘(G) based on the number of business days 

2 that have elapsed since each request was origi3 nally received by the agency— 

4 ‘‘(i) the number of requests for 

5 records to which the agency has responded 

6 with a determination within a period up to 

7 and including 20 days, and in 20-day in8 crements up to and including 200 days; 

9 ‘‘(ii) the number of requests for 

10 records to which the agency has responded 

11 with a determination within a period great12 er than 200 days and less than 301 days; 

13 ‘‘(iii) the number of requests for 

14 records to which the agency has responded 

15 with a determination within a period great16 er than 300 days and less than 401 days; 

17 and 

18 ‘‘(iv) the number of requests for 

19 records to which the agency has responded 

20 with a determination within a period great21 er than 400 days; 

22 ‘‘(H) the average number of days for the 

23 agency to provide the granted information be24 ginning on the date on which the request was 

25 originally filed, the median number of days for 


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1 the agency to provide the granted information, 

2 and the range in number of days for the agency 

3 to provide the granted information; 

4 ‘‘(I) the median and average number of 

5 days for the agency to respond to administra6 tive appeals based on the date on which the ap7 peals originally were received by the agency, the 

8 highest number of business days taken by the 

9 agency to respond to an administrative appeal, 

10 and the lowest number of business days taken 

11 by the agency to respond to an administrative 

12 appeal; 

13 ‘‘(J) data on the 10 active requests with 

14 the earliest filing dates pending at each agency, 

15 including the amount of time that has elapsed 

16 since each request was originally received by the 

17 agency; 

18 ‘‘(K) data on the 10 active administrative 

19 appeals with the earliest filing dates pending 

20 before the agency as of September 30 of the 

21 preceding year, including the number of busi22 ness days that have elapsed since the requests 

23 were originally received by the agency; 

24 ‘‘(L) the number of expedited review re25 quests that are granted and denied, the average 


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1 and median number of days for adjudicating ex2 pedited review requests, and the number adju3 dicated within the required 10 days; 

4 ‘‘(M) the number of fee waiver requests 

5 that are granted and denied, and the average 

6 and median number of days for adjudicating fee 

7 waiver determinations;’’. 

8 (b) APPLICABILITY TO AGENCY AND EACH PRIN9 CIPAL COMPONENT OF THE AGENCY.—Section 552(e) of 

10 title 5, United States Code, is amended— 

11 (1) by redesignating paragraphs (2) through 

12 (5) as paragraphs (3) through (6), respectively; and 

13 (2) by inserting after paragraph (1) the fol14 lowing: 

15 ‘‘(2) Information in each report submitted 

16 under paragraph (1) shall be expressed in terms of 

17 each principal component of the agency and for the 

18 agency overall.’’. 

19 (c) PUBLIC AVAILABILITY OF DATA.—Section 

20 552(e)(3) of title 5, United States Code, (as redesignated 

21 by subsection (b) of this section) is amended by adding 

22 after the period ‘‘In addition, each agency shall make the 

23 raw statistical data used in its reports available electroni24 cally to the public upon request.’’. 


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1 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

2 A PRIVATE ENTITY. 

3 Section 552(f) of title 5, United States Code, is 

4 amended by striking paragraph (2) and inserting the fol5 lowing: 

6 ‘‘(2) ‘record’ and any other term used in this 

7 section in reference to information includes— 

8 ‘‘(A) any information that would be an 

9 agency record subject to the requirements of 

10 this section when maintained by an agency in 

11 any format, including an electronic format; and 

12 ‘‘(B) any information described under sub13 paragraph (A) that is maintained for an agency 

14 by an entity under a contract between the agen15 cy and the entity.’’. 

16 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV17 ICES. 

18 (a) IN GENERAL.—Chapter 5 of title 5, United 

19 States Code, is amended— 

20 (1) by redesignating section 596 as section 597; 

21 and 

22 (2) by inserting after section 595 the following: 

23 ‘‘§ 596. Office of Government Information Services 

24 ‘‘(a) There is established the Office of Government 

25 Information Services within the Administrative Con26 ference of the United States. 


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1 ‘‘(b) The Office of Government Information Services 

2 shall— 

3 ‘‘(1) review policies and procedures of adminis4 trative agencies under section 552 and compliance 

5 with that section by administrative agencies; 

6 ‘‘(2) conduct audits of administrative agencies 

7 on such policies and compliance and issue reports 

8 detailing the results of such audits; 

9 ‘‘(3) recommend policy changes to Congress 

10 and the President to improve the administration of 

11 section 552, including whether agencies are receiving 

12 and expending adequate funds to ensure compliance 

13 with that section; and 

14 ‘‘(4) offer mediation services between persons 

15 making requests under section 552 and administra16 tive agencies as a non-exclusive alternative to litiga17 tion and, at the discretion of the Office, issue advi18 sory opinions if mediation has not resolved the dis19 pute.’’. 

20 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

21 The table of sections for chapter 5 of title 5, United States 

22 Code, is amended by striking the item relating to section 

23 596 and inserting the following: 

‘‘596. Office of Government Information Services. 

‘‘597. Authorization of appropriations.’’. 


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1 (c) EFFECTIVE DATE.—The amendments made by 

2 this section shall take effect 1 year after the date of enact3 ment of this Act. 

4 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

5 INFORMATION. 

6 (a) IN GENERAL.—Not later than January 1 of each 

7 of the 3 years following the date of the enactment of this 

8 Act, the Comptroller General of the United States shall 

9 submit to Congress a report on the implementation and 

10 use of section 214 of the Homeland Security Act of 2002 

11 (6 U.S.C. 133), including— 

12 (1) the number of persons in the private sector, 

13 and the number of State and local agencies, that vol14 untarily furnished records to the Department under 

15 this section; 

16 (2) the number of requests for access to records 

17 granted or denied under this section; 

18 (3) such recommendations as the Comptroller 

19 General considers appropriate regarding improve20 ments in the collection and analysis of sensitive in21 formation held by persons in the private sector, or 

22 by State and local agencies, relating to vulnerabili23 ties of and threats to critical infrastructure, includ24 ing the response to such vulnerabilities and threats; 

25 and 


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1 (4) an examination of whether the nondisclo2 sure of such information has led to the increased 

3 protection of critical infrastructure. 

4 (b) FORM.—The report shall be submitted in unclas5 sified form, but may include a classified annex. 

6 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

7 FOIA. 

8 Not later than 1 year after the date of enactment 

9 of this Act, the Office of Personnel Management shall sub10 mit to Congress a report that examines— 

11 (1) whether changes to executive branch per12 sonnel policies could be made that would— 

13 (A) provide greater encouragement to all 

14 Federal employees to fulfill their duties under 

15 section 552 of title 5, United States Code; and 

16 (B) enhance the stature of officials admin17 istering that section within the executive 

18 branch; 

19 (2) whether performance of compliance with 

20 section 552 of title 5, United States Code, should be 

21 included as a factor in personnel performance eval22 uations for any or all categories of Federal employ23 ees and officers; 


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1 (3) whether an employment classification series 

2 specific to compliance with sections 552 and 552a of 

3 title 5, United States Code, should be established; 

4 (4) whether the highest level officials in par5 ticular agencies administering such sections should 

6 be paid at a rate of pay equal to or greater than a 

7 particular minimum rate; and 

8 (5) whether other changes to personnel policies 

9 can be made to ensure that there is a clear career 

10 advancement track for individuals interested in de11 voting themselves to a career in compliance with 

12 such sections; and 

13 (6) whether the executive branch should require 

14 any or all categories of Federal employees to under15 take awareness training of such sections. 


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Calendar No. 127 

110TH CONGRESS 

1ST SESSION S. 849 

[Report No. 110

–59] 

A BILL 

To promote accessibility, accountability, and openand for other purposes. ferred to as the Freedom of Information Act), of title 5, United States Code (commonly re- ness in Government by strengthening section 552 

APRIL 30, 2007 

Reported without amendment 


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