110TH CONGRESS

1ST SESSION S. 849

AN ACT

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’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) the Freedom of Information Act was signed

4 into law on July 4, 1966, because the American peo5 ple believe that—

6 (A) our constitutional democracy, our sys7 tem of self-government, and our commitment to

8 popular sovereignty depends upon the consent

9 of the governed;

10 (B) such consent is not meaningful unless

11 it is informed consent; and

12 (C) as Justice Black noted in his concur13 ring opinion in Barr v. Matteo (360 U.S. 564

14 (1959)), ‘‘The effective functioning of a free

15 government like ours depends largely on the

16 force of an informed public opinion. This calls

17 for the widest possible understanding of the

18 quality of government service rendered by all

19 elective or appointed public officials or employ20 ees.’’;

21 (2) the American people firmly believe that our

22 system of government must itself be governed by a

23 presumption of openness;

24 (3) the Freedom of Information Act establishes

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

26 noted by the United States Supreme Court in
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1 United States Department of State v. Ray (502 U.S.

2 164 (1991)), a presumption that applies to all agen3 cies governed by that Act;

4 (4) ‘‘disclosure, not secrecy, is the dominant ob5 jective of the Act,’’ as noted by the United States

6 Supreme Court in Department of Air Force v. Rose

7 (425 U.S. 352 (1976));

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

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

10 (6) Congress should regularly review section

11 552 of title 5, United States Code (commonly re12 ferred to as the Freedom of Information Act), in

13 order to determine whether further changes and im14 provements are necessary to ensure that the Govern15 ment remains open and accessible to the American

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

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

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

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

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

21 ‘‘The term ‘a representative of the news media’

22 means any person or entity that gathers information of

23 potential interest to a segment of the public, uses its edi24 torial skills to turn the raw materials into a distinct work,

25 and distributes that work to an audience. The term ‘news’
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1 means information that is about current events or that

2 would be of current interest to the public. Examples of

3 news-media entities are television or radio stations broad4 casting to the public at large and publishers of periodicals

5 (but only if such entities qualify as disseminators of

6 ‘news’) who make their products available for purchase by

7 or subscription by or free distribution to the general pub8 lic. These examples are not all-inclusive. Moreover, as

9 methods of news delivery evolve (for example, the adoption

10 of the electronic dissemination of newspapers through tele11 communications services), such alternative media shall be

12 considered to be news-media entities. A freelance jour13 nalist shall be regarded as working for a news-media enti14 ty if the journalist can demonstrate a solid basis for ex15 pecting publication through that entity, whether or not the

16 journalist is actually employed by the entity. A publication

17 contract would present a solid basis for such an expecta18 tion; the Government may also consider the past publica19 tion record of the requester in making such a determina20 tion.’’.

21 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION

22 COSTS.

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

24 is amended—

25 (1) by inserting ‘‘(i)’’ after ‘‘(E)’’; and
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1 (2) by adding at the end the following:

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

3 complainant has substantially prevailed if

4 the complainant has obtained relief

5 through either—

6 ‘‘(I) a judicial order, or an enforceable

7 written agreement or consent decree; or

8 ‘‘(II) a voluntary or unilateral change in

9 position by the agency, provided that the com10 plainant’s claim is not insubstantial.’’.

11 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA12 PRICIOUS REJECTIONS OF REQUESTS.

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

14 is amended—

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

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

17 ‘‘(ii) The Attorney General shall—

18 ‘‘(I) notify the Special Counsel of each civil ac19 tion described under the first sentence of clause (i);

20 and

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

22 the number of such civil actions in the preceding

23 year.
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1 ‘‘(iii) The Special Counsel shall annually submit a re2 port to Congress on the actions taken by the Special Coun3 sel under clause (i).’’.

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

5 (a) TIME LIMITS.—

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

7 title 5, United States Code, is amended by striking

8 ‘‘determination;’’ and inserting ‘‘determination. The

9 20-day period shall commence on the date on which

10 the request is first received by the appropriate com11 ponent of the agency, but in any event no later than

12 ten days after the request is first received by any

13 component of the agency that is designated in the

14 agency’s FOIA regulations to receive FOIA requests.

15 The 20-day period shall not be tolled by the agency

16 except—

17 ‘‘(I) that the agency may make one request to

18 the requester for information and toll the 20-day pe19 riod while it is awaiting such information that it has

20 reasonably requested from the FOIA requester; or

21 ‘‘(II) if necessary to clarify with the requester

22 issues regarding fee assessment. In either case, the

23 agency’s receipt of the requester’s response to the

24 agency’s request for information or clarification ends

25 the tolling period;’’.
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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) COMPLIANCE WITH TIME LIMITS.—

5 (1)(A) Section 552(a)(4)(A) of title 5, United

6 States Code, is amended by adding at the end the

7 following:

8 ‘‘(viii) an agency shall not assess

9 search fees under this subparagraph if the

10 agency fails to comply with any time limit

11 under paragraph (6), provided that no un12 usual or exceptional circumstances (as

13 those terms are defined for purposes of

14 paragraphs (6)(B) and (C), respectively)

15 apply to the processing of the request.’’.

16 (B) Section 552(a)(6)(B)(ii) of title 5, United

17 States Code, is amended by inserting between the

18 first and second sentences the following: ‘‘To aid the

19 requester, each agency shall make available its

20 FOIA Public Liaison, who shall assist in the resolu21 tion of any disputes between the requester and the

22 agency.’’.

23 (2) EFFECTIVE DATE AND APPLICATION.—The

24 amendment made by this subsection shall take effect

25 1 year after the date of enactment of this Act and
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1 apply to requests for information under section 552

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

3 effective date.

4 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE5 QUESTS AND STATUS INFORMATION.

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

7 States Code, is amended by adding at the end the fol8 lowing:

9 ‘‘(7) Each agency shall—

10 ‘‘(A) establish a system to assign an individual11 ized tracking number for each request received that

12 will take longer than ten days to process and provide

13 to each person making a request the tracking num14 ber assigned to the request; and

15 ‘‘(B) 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 re-
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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 prior to the date of enact11 ment of the OPEN Government Act of 2007,

12 requires that the matters be withheld from the

13 public in such a manner as to leave no discre14 tion on the issue, or establishes particular cri15 teria for withholding or refers to particular

16 types of matters to be withheld; or

17 ‘‘(B) if enacted after the date of enactment

18 of the OPEN Government Act of 2007, specifi19 cally cites to the Freedom of Information Act.’’.

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,’’;
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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;
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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
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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;’’.
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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—
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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 Government contract, for

8 the purposes of records management.’’.

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

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

12 States Code, is amended by adding at the end the fol13 lowing:

14 ‘‘(h) There is established the Office of Government

15 lnformation Services within the National Archives and

16 Records Administration. The Office of Government Infor17 mation Services shall review policies and procedures of ad18 ministrative agencies under section 552, shall review com19 pliance with section 552 by administrative agencies, and

20 shall recommend policy changes to Congress and the

21 President to improve the administration of section 552.

22 The Office of Government Information Services shall offer

23 mediation services to resolve disputes between persons

24 making requests under section 552 and administrative

25 agencies as a non-exclusive alternative to litigation and,
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1 at the discretion of the Office, may issue advisory opinions

2 if mediation has not resolved the dispute.

3 ‘‘(i) The Government Accountability Office shall con4 duct audits of administrative agencies on the implementa5 tion of section 552 and issue reports detailing the results

6 of such audits.

7 ‘‘(j) Each agency shall—

8 ‘‘(1) Designate a Chief FOIA Officer who shall

9 be a senior official of such agency (at the Assistant

10 Secretary or equivalent level).

11 ‘‘(a) GENERAL DUTIES.—The Chief FOIA Officer of

12 each agency shall, subject to the authority of the head of

13 the agency—

14 ‘‘(A) have agency-wide responsibility for ef15 ficient and appropriate compliance with the

16 FOIA;

17 ‘‘(B) monitor FOIA implementation

18 throughout the agency and keep the head of the

19 agency, the chief legal officer of the agency, and

20 the Attorney General appropriately informed of

21 the agency’s performance in implementing the

22 FOIA;

23 ‘‘(C) recommend to the head of the agency

24 such adjustments to agency practices, policies,
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1 personnel, and funding as may be necessary to

2 improve its implementation of the FOIA;

3 ‘‘(D) review and report to the Attorney

4 General, through the head of the agency, at

5 such times and in such formats as the Attorney

6 General may direct, on the agency’s perform7 ance in implementing the FOIA; and

8 ‘‘(E) facilitate public understanding of the

9 purposes of the FOIA’s statutory exemptions by

10 including concise descriptions of the exemptions

11 in both the agency’s FOIA handbook issued

12 under section 552(g) of title 5, United States

13 Code, and the agency’s annual FOIA report,

14 and by providing an overview, where appro15 priate, of certain general categories of agency

16 records to which those exemptions apply.

17 ‘‘(2) Designate one or more FOIA Public Liai18 sons who shall be appointed by the Chief FOIA Offi19 cer.

20 ‘‘(b) GENERAL DUTIES.—FOIA Public Liaisons shall

21 report to the agency Chief FOIA Officer and shall serve

22 as supervisory officials to whom a FOIA requester can

23 raise concerns about the service the FOIA requester has

24 received from the FOIA Requester Center, following an

25 initial response from the FOIA Requester Center Staff.
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1 FOIA Public Liaisons shall be responsible for assisting in

2 reducing delays, increasing transparency and under3 standing of the status of requests, and assisting in the

4 resolution of disputes.

5 ‘‘(c) EFFECTIVE DATE.—The amendments made by

6 this section shall take effect on the date of enactment of

7 this Act.’’.

8 SEC. 12. REPORT ON PERSONNEL POLICIES RELATED TO

9 FOIA.

10 Not later than 1 year after the date of enactment

11 of this Act, the Office of Personnel Management shall sub12 mit to Congress a report that examines—

13 (1) whether changes to executive branch per14 sonnel policies could be made that would—

15 (A) provide greater encouragement to all

16 Federal employees to fulfill their duties under

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

18 (B) enhance the stature of officials admin19 istering that section within the executive

20 branch;

21 (2) whether performance of compliance with

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

23 included as a factor in personnel performance eval24 uations for any or all categories of Federal employ25 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.

Passed the Senate August 3, 2007.

Attest:

Secretary.

110TH CONGRESS

1ST SESSION S. 849

AN ACT

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