I

103D CONGRESS

2D SESSION H. R. 4917

To amend section 552 of title 5, United States Code (commonly known

as the Freedom of Information Act), to provide for public access to

information in an electronic format, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 8, 1994

Ms. CANTWELL (for herself, Mr. CONDIT, Ms. ESHOO, Ms. SHEPHERD, Mr.

FINGERHUT, and Ms. WOOLSEY) introduced the following bill; which was

referred to the Committee on Government Operations

A BILL

To amend section 552 of title 5, United States Code (commonly known as the Freedom of Information Act), to

provide for public access to information in an electronic

format, 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 ‘‘Electronic Freedom

5 of Information Improvement Act of 1994’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—The Congress finds that—
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1 (1) the purpose of the Freedom of Information

2 Act is to require agencies of the Federal Govern3 ment to make certain agency information available

4 for public inspection and copying and to establish

5 and enable enforcement of the right of any person

6 to obtain access to the records of such agencies

7 (subject to statutory exemptions) for any public or

8 private purpose;

9 (2) since the enactment of the Freedom of In10 formation Act in 1966, and the amendments enacted

11 in 1974 and 1986, the Freedom of Information Act

12 has been a valuable means through which any per13 son can learn how the Federal Government operates;

14 (3) the Freedom of Information Act has led to

15 the disclosure of waste, fraud, abuse, and wrong16 doing in the Federal Government;

17 (4) the Freedom of Information Act has led to

18 the identification of unsafe consumer products,

19 harmful drugs, and serious health hazards;

20 (5) Government agencies increasingly use com21 puters to conduct agency business and to store pub22 licly valuable agency records and information; and

23 (6) Government agencies should use new tech24 nology to enhance public access to agency records

25 and information.
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1 (b) PURPOSES.—The purposes of this Act are to—

2 (1) foster democracy by ensuring public access

3 to agency records and information;

4 (2) improve public access to agency records and

5 information;

6 (3) ensure agency compliance with statutory

7 time limits; and

8 (4) maximize the usefulness of agency records

9 and information collected, maintained, used, re10 tained, and disseminated by the Federal Govern11 ment.

12 SEC. 3. PUBLIC INFORMATION AVAILABILITY.

13 Section 552(a)(1) of title 5, United States Code, is

14 amended—

15 (1) in the first sentence by inserting ‘‘by com16 puter telecommunications, or if computer tele17 communications means are not available, by other

18 electronic means,’’ after ‘‘Federal Register’’;

19 (2) by striking out ‘‘and’’ at the end of sub20 paragraph (D);

21 (3) by redesignating subparagraph (E) as sub22 paragraph (F); and

23 (4) by inserting after subparagraph (D) the fol24 lowing new subparagraph:
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1 ‘‘(E) a complete list of all statutes that the

2 agency head or general counsel relies upon to au3 thorize the agency to withhold information under

4 subsection (b)(3) of this section, together with a spe5 cific description of the scope of the information cov6 ered; and’’.

7 SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC

8 FORMAT.

9 Section 552(a)(2) of title 5, United States Code, is

10 amended—

11 (1) in the first sentence by inserting ‘‘including,

12 within 1 year after the date of the enactment of the

13 Electronic Freedom of Information Improvement Act

14 of 1994, by computer telecommunications, or if com15 puter telecommunications means are not available,

16 by other electronic means,’’ after ‘‘copying’’;

17 (2) in subparagraph (B) by striking out ‘‘and’’

18 after the semicolon;

19 (3) in subparagraph (C) by inserting ‘‘and’’

20 after the semicolon;

21 (4) by adding after subparagraph (C) the fol22 lowing new subparagraphs:

23 ‘‘(D) an index of all major information sys24 tems containing agency records regardless of
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1 form or format unless such an index is provided

2 as otherwise required by law; and

3 ‘‘(E) a description of any new major infor4 mation system with a statement of how such

5 system shall enhance agency operations under

6 this section;’’; and

7 (5) in the third sentence by inserting ‘‘and the

8 extent of such deletion shall be indicated on the por9 tion of the record which is made available or pub10 lished at the place in the record where such deletion

11 was made’’ after ‘‘explained fully in writing’’.

12 SEC. 5. LIST OF RECORDS MADE AVAILABLE TO THE PUB13 LIC AND HONORING FORMAT REQUESTS.

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

15 amended by—

16 (1) inserting ‘‘(A)’’ after ‘‘(3)’’;

17 (2) striking out ‘‘(A) reasonably’’ and inserting

18 in lieu thereof ‘‘(i) reasonably’’;

19 (3) striking out ‘‘(B)’’ and inserting in lieu

20 thereof ‘‘(ii)’’; and

21 (4) adding at the end thereof the following new

22 subparagraphs:

23 ‘‘(B) A list of all records which are made avail24 able to any person under this paragraph shall be

25 made available for public inspection and copying as
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1 provided under paragraph (2) of this subsection.

2 Copies of all such records, regardless of form or for3 mat, which because of the nature of their subject

4 matter, have become or are likely to become the sub5 ject of subsequent requests under this paragraph for

6 substantially the same records, shall be made avail7 able for inspection and copying as provided under

8 paragraph (2) of this subsection.

9 ‘‘(C) An agency shall, as requested by any per10 son, provide records in any form or format in which

11 such records are maintained by that agency.

12 ‘‘(D) An agency shall make reasonable efforts

13 to provide records in the form or format requested

14 by any person, including in an electronic form or

15 format, even where such records are not usually

16 maintained but are available in such form or for17 mat.’’.

18 SEC. 6. DELAYS.

19 (a) FEES.—Section 552(a)(4)(A) of title 5, United

20 States Code, is amended by adding at the end thereof the

21 following new clause:

22 ‘‘(viii) If at an agency’s request, the Comptroller Gen23 eral determines that the agency annually has either pro24 vided responsive documents or denied requests in substan25 tial compliance with the requirements of paragraph
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1 (6)(A), one-half of the fees collected under this section

2 shall be credited to the collecting agency and expended to

3 offset the costs of complying with this section through

4 staff development and acquisition of additional request

5 processing resources. The remaining fees collected under

6 this section shall be remitted to the Treasury as general

7 funds or miscellaneous receipts.’’.

8 (b) PAYMENT OF THE EXPENSES OF THE PERSON

9 MAKING A REQUEST.—Section 552(a)(4)(E) of title 5,

10 United States Code, is amended by adding at the end

11 thereof the following new sentence: ‘‘The court may assess

12 against the United States all out-of-pocket expenses in13 curred by the person making a request, and reasonable

14 attorney fees incurred in the administrative process, in

15 any case in which the agency has failed to comply with

16 the time limit provisions of paragraph (6) of this sub17 section.’’.

18 (c) DEMONSTRATION OF CIRCUMSTANCES FOR

19 DELAY.—Section 552(a)(4)(E) of title 5, United States

20 Code, is further amended—

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

22 (2) by adding at the end thereof the following

23 new clause:

24 ‘‘(ii) Any agency not in compliance with the time lim25 its set forth in this subsection shall demonstrate to a court
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1 that the delay is warranted under the circumstances set

2 forth under paragraph (6) (B) or (C) of this subsection.’’.

3 (d) PERIOD FOR AGENCY DECISION TO COMPLY

4 WITH REQUEST.—Section 552(a)(6)(A)(i) is amended by

5 striking out ‘‘ten days’’ and inserting in lieu thereof

6 ‘‘twenty days’’.

7 (e) AGENCY BACKLOGS.—Section 552(a)(6)(C) of

8 title 5, United States Code, is amended by inserting after

9 the second sentence the following: ‘‘As used in this sub10 paragraph, ‘exceptional circumstances’ shall be unforeseen

11 and shall not include delays that result from a predictable

12 workload, including any ongoing agency backlog, in the

13 ordinary course of processing requests for records.’’.

14 (f) NOTIFICATION OF DENIAL.—The fourth sentence

15 of section 552(a)(6)(C) of title 5, United States Code, is

16 amended to read: ‘‘Any notification of any full or partial

17 denial of any request for records under this subsection

18 shall set forth the names and titles or positions of each

19 person responsible for the denial of such request and the

20 total number of denied records and pages considered by

21 the agency to have been responsive to the request.’’.

22 (g) MULTITRACK FIFO PROCESSING AND EXPE23 DITED ACCESS.—Section 552(a)(6) of title 5, United

24 States Code, is amended by adding at the end thereof the

25 following new subparagraphs:
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1 ‘‘(D)(i) Each agency shall adopt a first-in, first-out

2 (hereafter in this subparagraph referred to as FIFO)

3 processing policy in determining the order in which re4 quests are processed. The agency may establish separate

5 processing tracks for simple and complex requests using

6 FIFO processing within each track.

7 ‘‘(ii) For purposes of such a multitrack system—

8 ‘‘(I) a simple request shall be a request requir9 ing 10 days or less to make a determination on

10 whether to comply with such a request; and

11 ‘‘(II) a complex request shall be a request re12 quiring more than 10 days to make a determination

13 on whether to comply with such a request.

14 ‘‘(iii) A multitrack system shall not negate a claim

15 of due diligence under subparagraph (C), if FIFO process16 ing within each track is maintained and the agency can

17 show that it has reasonably allocated resources to handle

18 the processing for each track.

19 ‘‘(E)(i) Each agency shall promulgate regulations,

20 pursuant to notice and receipt of public comment, provid21 ing that upon receipt of a request for expedited access to

22 records and a showing by the person making such request

23 of a compelling need for expedited access to records, the

24 agency shall determine within 5 days (excepting Satur25 days, Sundays, and legal public holidays) after the receipt
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1 of such a request, whether to comply with such request.

2 No more than 1 day after making such determination the

3 agency shall notify the person making a request for expe4 dited access of such determination, the reasons therefor,

5 and of the right to appeal to the head of the agency. A

6 request for records to which the agency has granted expe7 dited access shall be processed as soon as practicable. A

8 request for records to which the agency has denied expe9 dited access shall be processed within the time limits

10 under paragraph (6) of this subsection.

11 ‘‘(ii) A person whose request for expedited access has

12 not been decided within 5 days of its receipt by the agency

13 or has been denied shall be required to exhaust adminis14 trative remedies. A request for expedited access which has

15 not been decided may be appealed to the head of the agen16 cy within 7 days (excepting Saturdays, Sundays, and legal

17 public holidays) after its receipt by the agency. A request

18 for expedited access that has been denied by the agency

19 may be appealed to the head of the agency within 2 days

20 (excepting Saturdays, Sundays, and legal public holidays)

21 after the person making such request receives notice of

22 the agency’s denial. If an agency head has denied, af23 firmed a denial, or failed to respond to a timely appeal

24 of a request for expedited access, a court which would have

25 jurisdiction of an action under paragraph (4)(B) of this
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1 subsection may, upon complaint, require the agency to

2 show cause why the request for expedited access should

3 not be granted, except that such review shall be limited

4 to the record before the agency.

5 ‘‘(iii) The burden of demonstrating a compelling need

6 by a person making a request for expedited access may

7 be met by a showing, which such person certifies under

8 penalty of perjury to be true and correct to the best of

9 such person’s knowledge and belief, that failure to obtain

10 the requested records within the timeframe for expedited

11 access under this paragraph would—

12 ‘‘(I) threaten an individual’s life or safety;

13 ‘‘(II) result in the loss of substantial due proc14 ess rights and the information sought is not other15 wise available in a timely fashion; or

16 ‘‘(III) affect public assessment of the nature

17 and propriety of actual or alleged governmental ac18 tions that are the subject of widespread, contem19 poraneous media coverage.’’.

20 SEC. 7. COMPUTER REDACTION.

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

22 amended by inserting before the period in the sentence

23 following paragraph (9): ‘‘, and the extent of such deletion

24 shall be indicated on the released portion of the record

25 at the place in the record where such deletion was made’’.
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1 SEC. 8. DEFINITIONS.

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

3 amended to read as follows:

4 ‘‘(f) For purposes of this section—

5 ‘‘(1) the term ‘agency’ as defined in section

6 551(1) of this title includes any executive depart7 ment, military department, Government corporation,

8 Government controlled corporation, or other estab9 lishment in the executive branch of the Government

10 (including the Executive Office of the President), or

11 any independent regulatory agency;

12 ‘‘(2) the term ‘record’ means all books, papers,

13 maps, photographs, machine-readable materials, or

14 other information or documentary materials, regard15 less of physical form or characteristics; and

16 ‘‘(3) the term ‘search’ means a manual or auto17 mated review of agency records that is conducted for

18 the purpose of locating those records which are re19 sponsive to a request under subsection (a)(3)(A) of

20 this section.’’.

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