II 

110TH CONGRESS 

1ST SESSION S. 849 

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 and Mr. CORNYN) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 Effectiveness in our National Government Act of 2007’’ 

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

7 SEC. 2. FINDINGS. 

8 Congress finds that— 


hsrobinson on PROD1PC76 with BILLS
2 

•S 849 IS

1 (1) the Freedom of Information Act was signed 

2 into law on July 4, 1966, because the American peo3 ple believe that— 

4 (A) our constitutional democracy, our sys5 tem of self-government, and our commitment to 

6 popular sovereignty depends upon the consent 

7 of the governed; 

8 (B) such consent is not meaningful unless 

9 it is informed consent; and 

10 (C) as Justice Black noted in his concur11 ring opinion in Barr v. Matteo (360 U.S. 564 

12 (1959)), ‘‘The effective functioning of a free 

13 government like ours depends largely on the 

14 force of an informed public opinion. This calls 

15 for the widest possible understanding of the 

16 quality of government service rendered by all 

17 elective or appointed public officials or employ18 ees.’’; 

19 (2) the American people firmly believe that our 

20 system of government must itself be governed by a 

21 presumption of openness; 

22 (3) the Freedom of Information Act establishes 

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

24 noted by the United States Supreme Court in 

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


hsrobinson on PROD1PC76 with BILLS
3 

•S 849 IS

1 164 (1991)), a presumption that applies to all agen2 cies governed by that Act; 

3 (4) ‘‘disclosure, not secrecy, is the dominant ob4 jective of the Act,’’ as noted by the United States 

5 Supreme Court in Department of Air Force v. Rose 

6 (425 U.S. 352 (1976)); 

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

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

9 (6) Congress should regularly review section 

10 552 of title 5, United States Code (commonly re11 ferred to as the Freedom of Information Act), in 

12 order to determine whether further changes and im13 provements are necessary to ensure that the Govern14 ment remains open and accessible to the American 

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

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

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

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

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

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

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

22 that status solely on the basis of the absence of institu23 tional associations of the requester, but shall consider the 

24 prior publication history of the requester. Prior publica25 tion history shall include books, magazine and newspaper 


hsrobinson on PROD1PC76 with BILLS
4 

•S 849 IS

1 articles, newsletters, television and radio broadcasts, and 

2 Internet publications. If the requestor has no prior publi3 cation history or current affiliation, the agency shall con4 sider the requestor’s stated intent at the time the request 

5 is made to distribute information to a reasonably broad 

6 audience.’’. 

7 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

8 COSTS. 

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

10 is amended— 

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

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

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

14 complainant has substantially prevailed if 

15 the complainant has obtained relief 

16 through either— 

17 ‘‘(I) a judicial order, an adminis18 trative action, or an enforceable writ19 ten agreement or consent decree; or 

20 ‘‘(II) a voluntary or unilateral 

21 change in position by the opposing 

22 party, where the complaintant’s claim 

23 or defense was not frivolous.’’. 


hsrobinson on PROD1PC76 with BILLS
5 

•S 849 IS

1 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA2 PRICIOUS REJECTIONS OF REQUESTS. 

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

4 is amended— 

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

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

7 ‘‘(ii) The Attorney General shall— 

8 ‘‘(I) notify the Special Counsel of each civil ac9 tion described under the first sentence of clause (i); 

10 and 

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

12 the number of such civil actions in the preceding 

13 year. 

14 ‘‘(iii) The Special Counsel shall annually submit a re15 port to Congress on the actions taken by the Special Coun16 sel under clause (i).’’. 

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

18 (a) TIME LIMITS.— 

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

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

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

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

23 and shall not be tolled without the consent of the 

24 party filing the request’’ after ‘‘adverse determina25 tion’’. 


hsrobinson on PROD1PC76 with BILLS
6 

•S 849 IS

1 (2) EFFECTIVE DATE.—The amendment made 

2 by this subsection shall take effect 1 year after the 

3 date of enactment of this Act. 

4 (b) AVAILABILITY OF AGENCY EXEMPTIONS.— 

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

6 United States Code, is amended by adding at the 

7 end the following: 

8 ‘‘(G)(i) If an agency fails to comply with the applica9 ble time limit provisions of this paragraph with respect 

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

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

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

13 United States; 

14 ‘‘(II) would disclose personal private informa15 tion protected by section 552a or proprietary infor16 mation; or 

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

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

19 if the agency demonstrates by clear and convincing evi20 dence that there was good cause for the failure to comply 

21 with the applicable time limit provisions.’’. 

22 (2) EFFECTIVE DATE AND APPLICATION.—The 

23 amendment made by this subsection shall take effect 

24 1 year after the date of enactment of this Act and 

25 apply to requests for information under section 552 


hsrobinson on PROD1PC76 with BILLS
7 

•S 849 IS

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

2 effective date. 

3 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE4 QUESTS AND STATUS INFORMATION. 

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

6 States Code, is amended by adding at the end the fol7 lowing: 

8 ‘‘(7) Each agency shall— 

9 ‘‘(A) establish a system to assign an individual10 ized tracking number for each request for informa11 tion under this section; 

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

13 request, provide each person making a request with 

14 the tracking number assigned to the request; and 

15 ‘‘(C) establish a telephone line or Internet serv16 ice that provides information about the status of a 

17 request to the person making the request using the 

18 assigned tracking number, including— 

19 ‘‘(i) the date on which the agency origi20 nally received the request; and 

21 ‘‘(ii) an estimated date on which the agen22 cy will complete action on the request.’’. 

23 (b) EFFECTIVE DATE AND APPLICATION.—The 

24 amendment made by this section shall take effect 1 year 

25 after the date of enactment of this Act and apply to reVerDate Aug 31 2005 23:02 Mar 14, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S849.IS S849

hsrobinson on PROD1PC76 with BILLS
8 

•S 849 IS

1 quests for information under section 552 of title 5, United 

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

3 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

5 amended by striking paragraph (3) and inserting the fol6 lowing: 

7 ‘‘(3) specifically exempted from disclosure by 

8 statute (other than section 552b of this title), pro9 vided that such statute— 

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

11 of the Openness Promotes Effectiveness in our 

12 National Government Act of 2005, specifically 

13 cites to this section; and 

14 ‘‘(B)(i) requires that the matters be with15 held from the public in such a manner as to 

16 leave no discretion on the issue; or 

17 ‘‘(ii) establishes particular criteria for 

18 withholding or refers to particular types of mat19 ters to be withheld;’’. 

20 SEC. 9. REPORTING REQUIREMENTS. 

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

22 United States Code, is amended— 

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

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

25 each statute was relied upon,’’; 


hsrobinson on PROD1PC76 with BILLS
9 

•S 849 IS

1 (2) in subparagraph (C), by inserting ‘‘and av2 erage’’ after ‘‘median’’; 

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

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

5 were received by the agency’’; 

6 (4) by redesignating subparagraphs (F) and 

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

8 (5) by inserting after subparagraph (E) the fol9 lowing: 

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

11 agency to respond to a request beginning on the 

12 date on which the request was received by the 

13 agency, the median number of days for the 

14 agency to respond to such requests, and the 

15 range in number of days for the agency to re16 spond to such requests; 

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

18 that have elapsed since each request was origi19 nally received by the agency— 

20 ‘‘(i) the number of requests for 

21 records to which the agency has responded 

22 with a determination within a period up to 

23 and including 20 days, and in 20-day in24 crements up to and including 200 days; 


hsrobinson on PROD1PC76 with BILLS
10 

•S 849 IS

1 ‘‘(ii) the number of requests for 

2 records to which the agency has responded 

3 with a determination within a period great4 er than 200 days and less than 301 days; 

5 ‘‘(iii) the number of requests for 

6 records to which the agency has responded 

7 with a determination within a period great8 er than 300 days and less than 401 days; 

9 and 

10 ‘‘(iv) the number of requests for 

11 records to which the agency has responded 

12 with a determination within a period great13 er than 400 days; 

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

15 agency to provide the granted information be16 ginning on the date on which the request was 

17 originally filed, the median number of days for 

18 the agency to provide the granted information, 

19 and the range in number of days for the agency 

20 to provide the granted information; 

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

22 days for the agency to respond to administra23 tive appeals based on the date on which the ap24 peals originally were received by the agency, the 

25 highest number of business days taken by the 


hsrobinson on PROD1PC76 with BILLS
11 

•S 849 IS

1 agency to respond to an administrative appeal, 

2 and the lowest number of business days taken 

3 by the agency to respond to an administrative 

4 appeal; 

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

6 the earliest filing dates pending at each agency, 

7 including the amount of time that has elapsed 

8 since each request was originally received by the 

9 agency; 

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

11 appeals with the earliest filing dates pending 

12 before the agency as of September 30 of the 

13 preceding year, including the number of busi14 ness days that have elapsed since the requests 

15 were originally received by the agency; 

16 ‘‘(L) the number of expedited review re17 quests that are granted and denied, the average 

18 and median number of days for adjudicating ex19 pedited review requests, and the number adju20 dicated within the required 10 days; 

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

22 that are granted and denied, and the average 

23 and median number of days for adjudicating fee 

24 waiver determinations;’’. 


hsrobinson on PROD1PC76 with BILLS
12 

•S 849 IS

1 (b) APPLICABILITY TO AGENCY AND EACH PRIN2 CIPAL COMPONENT OF THE AGENCY.—Section 552(e) of 

3 title 5, United States Code, is amended— 

4 (1) by redesignating paragraphs (2) through 

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

6 (2) by inserting after paragraph (1) the fol7 lowing: 

8 ‘‘(2) Information in each report submitted 

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

10 each principal component of the agency and for the 

11 agency overall.’’. 

12 (c) PUBLIC AVAILABILITY OF DATA.—Section 

13 552(e)(3) of title 5, United States Code, (as redesignated 

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

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

16 raw statistical data used in its reports available electroni17 cally to the public upon request.’’. 

18 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

19 A PRIVATE ENTITY. 

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

21 amended by striking paragraph (2) and inserting the fol22 lowing: 

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

24 section in reference to information includes— 


hsrobinson on PROD1PC76 with BILLS
13 

•S 849 IS

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

2 agency record subject to the requirements of 

3 this section when maintained by an agency in 

4 any format, including an electronic format; and 

5 ‘‘(B) any information described under sub6 paragraph (A) that is maintained for an agency 

7 by an entity under a contract between the agen8 cy and the entity.’’. 

9 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV10 ICES. 

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

12 States Code, is amended— 

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

14 and 

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

16 ‘‘§ 596. Office of Government Information Services 

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

18 Information Services within the Administrative Con19 ference of the United States. 

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

21 shall— 

22 ‘‘(1) review policies and procedures of adminis23 trative agencies under section 552 and compliance 

24 with that section by administrative agencies; 


hsrobinson on PROD1PC76 with BILLS
14 

•S 849 IS

1 ‘‘(2) conduct audits of administrative agencies 

2 on such policies and compliance and issue reports 

3 detailing the results of such audits; 

4 ‘‘(3) recommend policy changes to Congress 

5 and the President to improve the administration of 

6 section 552, including whether agencies are receiving 

7 and expending adequate funds to ensure compliance 

8 with that section; and 

9 ‘‘(4) offer mediation services between persons 

10 making requests under section 552 and administra11 tive agencies as a non-exclusive alternative to litiga12 tion and, at the discretion of the Office, issue advi13 sory opinions if mediation has not resolved the dis14 pute.’’. 

15 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

18 596 and inserting the following: 

‘‘596. Office of Government Information Services. 

‘‘597. Authorization of appropriations.’’. 

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

20 this section shall take effect 1 year after the date of enact21 ment of this Act. 


hsrobinson on PROD1PC76 with BILLS
15 

•S 849 IS

1 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

2 INFORMATION. 

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

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

5 Act, the Comptroller General of the United States shall 

6 submit to Congress a report on the implementation and 

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

8 (6 U.S.C. 133), including— 

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

10 and the number of State and local agencies, that vol11 untarily furnished records to the Department under 

12 this section; 

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

14 granted or denied under this section; 

15 (3) such recommendations as the Comptroller 

16 General considers appropriate regarding improve17 ments in the collection and analysis of sensitive in18 formation held by persons in the private sector, or 

19 by State and local agencies, relating to vulnerabili20 ties of and threats to critical infrastructure, includ21 ing the response to such vulnerabilities and threats; 

22 and 

23 (4) an examination of whether the nondisclo24 sure of such information has led to the increased 

25 protection of critical infrastructure. 


hsrobinson on PROD1PC76 with BILLS
16 

•S 849 IS

1 (b) FORM.—The report shall be submitted in unclas2 sified form, but may include a classified annex. 

3 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

4 FOIA. 

5 Not later than 1 year after the date of enactment 

6 of this Act, the Office of Personnel Management shall sub7 mit to Congress a report that examines— 

8 (1) whether changes to executive branch per9 sonnel policies could be made that would— 

10 (A) provide greater encouragement to all 

11 Federal employees to fulfill their duties under 

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

13 (B) enhance the stature of officials admin14 istering that section within the executive 

15 branch; 

16 (2) whether performance of compliance with 

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

18 included as a factor in personnel performance eval19 uations for any or all categories of Federal employ20 ees and officers; 

21 (3) whether an employment classification series 

22 specific to compliance with sections 552 and 552a of 

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

24 (4) whether the highest level officials in par25 ticular agencies administering such sections should 


hsrobinson on PROD1PC76 with BILLS
17 

•S 849 IS

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

2 particular minimum rate; and 

3 (5) whether other changes to personnel policies 

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

5 advancement track for individuals interested in de6 voting themselves to a career in compliance with 

7 such sections; and 

8 (6) whether the executive branch should require 

9 any or all categories of Federal employees to under10 take awareness training of such sections. 

Æ 


hsrobinson on PROD1PC76 with BILLS