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[House Report 115-1046]
[From the U.S. Government Publishing Office]

115th Congress      }                                 {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session         }                                 {      115-1046

======================================================================

 
         SETTLEMENT AGREEMENT INFORMATION DATABASE ACT OF 2018

                                _______
                                

 November 27, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 6777]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 6777) to amend chapter 3 of title 
5, United States Code, to require the publication of settlement 
agreements, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Summary and Purpose of Legislation...............................     2
Background and Need for Legislation..............................     2
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     4
Statement of General Performance Goals and Objectives............     5
Legislative History..............................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Explanation of Amendments........................................     5
Application of Law to the Legislative Branch.....................     5
Duplication of Federal Programs..................................     5
Disclosure of Directed Rule Makings..............................     5
Federal Advisory Committee Act...................................     6
Unfunded Mandates Statement......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     6
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     6
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     8

                   Summary and Purpose of Legislation

    H.R. 6777, the Settlement Agreement Information Database 
Act of 2018, requires the establishment of a centralized, 
publicly-available settlements database. The bill directs 
federal agencies to publish information about settlement 
agreements to the database. When settlement details are deemed 
confidential, H.R. 6777 directs the heads of agencies to issue 
a written public statement justifying any confidentiality 
requirements preventing the release of the required 
information.

                  Background and Need for Legislation

    Federal agencies often resolve litigation by entering into 
legally-binding consent decrees and settlement agreements in 
order to avoid lengthy trials.\1\ This process has dictated an 
``enormous range'' of policies across governmental programs, 
states, and cities in ``special education, mental hospitals, 
environmental protection, and prisons.''\2\ Settlement 
agreements can require actions extending beyond the scope of 
the original violation of federal law, and in some cases remain 
in effect for decades.\3\
---------------------------------------------------------------------------
    \1\Ross Sandler & David Schoenbrod, Democracy By Decree: What 
Happens When Courts Run Government, Yale University Press 4 (2003).
    \2\Id. at 4.
    \3\Michael E. DeBow, Gary J. Palmer, & John J. Park, Jr., Alabama 
Policy Inst., Consent Decrees in Institutional Reform Litigation: 
Strategies for State Legislatures (2008), https://
www.alabamapolicy.org/wp-content/uploads/2018/01/API-Research-Consent-
Decrees.pdf.
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    The Committee examined the effect of the sue-and-settle 
process on states and local governments in two subcommittee 
joint hearings in May and July 2017.\4\ In the July 2017 
hearing, City Administrator Carl Geffken testified before the 
subcommittees on the economic impact of a consent decree on the 
city of Fort Smith, Arkansas.\5\ Prior to the consent decree, 
the city was subject to one of the Environmental Protection 
Agency's (EPA) oldest administrative orders still in effect.\6\ 
According to Mr. Geffken, the Department of Justice (DOJ) and 
the Arkansas State Attorney General ``browbeat and coerced Fort 
Smith into accepting a consent decree'' to reform its sewer 
systems by threatening millions of dollars in legal fees, 
despite the city investing $200 million into compliance 
efforts.\7\
---------------------------------------------------------------------------
    \4\Examining `Sue and Settle' Agreements: Part I: Hearing Before 
the Subcomm. on Intergovernmental Affairs and the Subcomm. on the 
Interior, Energy, & Environment of the H. Comm, on Oversight & Gov't 
Reform, 115th Cong. (May 24, 2017); Examining `Sue and Settle' 
Agreements: Part II: Hearing Before the Subcomm. on Intergovernmental 
Affairs and the Subcomm. on the Interior, Energy, & Environment of the 
H. Comm, on Oversight & Gov't Reform, 115th Cong. (July 25, 2017).
    \5\Examining `Sue and Settle' Agreements: Part II: Hearing Before 
the Subcomm. on Intergovernmental Affairs and the Subcomm. on the 
Interior, Energy & Environment of the H. Comm, on Oversight & Gov't 
Reform, 115th Cong. (July 25, 2017).
    \6\Id.
    \7\Id.
---------------------------------------------------------------------------
    The resulting consent decree caused further deleterious 
effects from the imposition of unusual terms. While other 
cities under similar orders had 20 years to achieve compliance, 
Fort Smith's consent decree mandates a 12-year completion 
date.\8\ The cost of the consent decree also exceeded federal 
guidelines, costing more than 2 percent of the median household 
income (MHI).\9\ Moreover, Fort Smith sewer utility bills 
increased by 167 percent in 3 years to fund the provisions 
required by the consent decree, while residents' incomes 
simultaneously decreased by 11 percent.\10\ Ultimately, it is 
projected to cost double the city's annual total budget for all 
government activities to achieve full compliance.\11\
---------------------------------------------------------------------------
    \8\Id.
    \9\Id.
    \10\Examining `Sue and Settle' Agreements: Part II: Hearing Before 
the H. Comm. On Oversight & Gov't Reform, 115th Cong. (2017) (Statement 
of Carl E. Geffken, City Administrator, City of Fort Smith, Arkansas).
    \11\Id., at 9.
---------------------------------------------------------------------------
    In the same hearing, former Michigan Governor John Engler 
testified some Federal judges are unaware of the number of 
consent decrees they enforce in their caseload, due to 
inadequate recordkeeping.\12\
---------------------------------------------------------------------------
    \12\Id.
---------------------------------------------------------------------------
    Arbitrary and opaque settlement agreement provisions have 
profound consequences on states, municipalities, and federal 
entities, and prevent Congress and the public from fully 
evaluating their impact. Federal agencies are generally not 
required to publish information on settlement agreements. 
Further, Federal agencies can seal decisions or determine the 
terms of the settlement agreement are confidential with no 
explanation to the public.\13\ There is no rule or regulation 
mandating that the agencies explain why one was determined to 
be confidential and another was not, leading to a further lack 
of transparency and the appearance of an arbitrary process.\14\ 
This appearance is compounded by the agency practice of 
designating some agreements as ``solely an Agreement in 
Principle,'' which allows the agency to postpone publishing the 
terms of the consent decree until an indeterminate later 
date.\15\
---------------------------------------------------------------------------
    \13\Phineas Baxandall & Michelle Surka, Settling for a Lack of 
Accountability? Which Federal Agencies Allow Companies to Write Off 
Out-of-Court Settlements as Tax Deductions, and Which are Transparent 
about it, U.S. Public Interest Research Group Education Fund (Dec. 
2015), https://uspirgedfund.org/sites/pirg/files/reports/USPIRG_ 
SettlementsReport.pdf [hereinafter Baxandall & Surka].
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    Most of the public's access to Federal settlement agreement 
information is primarily determined by individual agency 
discretion, most commonly issued in the form of a press 
release.\16\ Recently, some Federal agencies have attempted to 
increase accountability and transparency with respect to 
settlement agreements.
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    In October 2017, the EPA issued an agency-wide directive 
modifying its settlement agreement practices, which requires:
          1. Publishing any notices of intent to sue the agency 
        within 15 days of receiving the notice;
          2. Publishing any complaints or petitions for review 
        in regard to an environmental law, regulation, or rule 
        in which the agency is a defendant or respondent in 
        federal court within 15 days of receipt;
          3. Reaching out to and including any states and/or 
        regulated entities affected by potential settlements or 
        consent decrees;
          4. Publishing a list of consent decrees and 
        settlement agreements that govern agency actions within 
        30 days, along with any attorney fees paid, and update 
        it within 15 days of any new consent decree or 
        settlement agreement;
          5. Expressly forbidding the practice of entering into 
        any consent decrees that exceed the authority of the 
        courts;
          6. Excluding attorney's fees and litigation costs 
        when settling with those suing the agency;
          7. Providing sufficient time to issue or modify 
        proposed and final rules, take and consider public 
        comment; and
          8. Publishing any proposed or modified consent 
        decrees and settlements for 30-day public comment, and 
        providing a public hearing on a proposed consent decree 
        or settlement when requested.\17\
---------------------------------------------------------------------------
    \17\EPA, Directive Promoting Transparency and Public Participation 
in Consent Decrees and Settlement Agreements (2017).
---------------------------------------------------------------------------
    The Department of the Interior (Interior) also established 
a policy mandating new practices to boost transparency.\18\ For 
example, Interior will establish a ``publicly accessible 
litigation webpage,'' which includes a searchable list of all 
consent decrees and settlement agreements still in effect.\19\ 
The litigation webpage will be updated with any new settlement 
agreements and decrees, and maintained in a way to maximize 
public utility.\20\
---------------------------------------------------------------------------
    \18\Dep't of the Interior, Order No. 3368, Promoting Transparency 
and Accountability in Consent Decrees and Settlement Agreements (2018).
    \19\Id.
    \20\Id.
---------------------------------------------------------------------------
    The Department of Justice, in contrast, has historically 
lacked transparency in its settlement practices.\21\ The DOJ is 
both the largest originator of settlements, as well as the main 
negotiating agency for other Federal agencies.\22\ As such, the 
DOJ has the greatest potential impact on federal settlement 
agreement transparency practices. According to a report by the 
Public Interest Research Group, with regard to DOJ settlements, 
``the percent of publicly announced settlements with text 
posted on line declined from 35 percent in 2012 to 25 percent 
in 2014.''\23\
---------------------------------------------------------------------------
    \21\Baxandall & Surka, supra note 13.
    \22\Id.
    \23\Id., at 28.
---------------------------------------------------------------------------
    To extend transparency across the Federal government, the 
Settlement Agreement Information Database Act (SAID Act) 
requires establishment of an electronic and publicly-available 
database of settlement agreements entered into by Federal 
agencies. Similar to existing EPA and DOJ policies,\24\ H.R. 
6777 requires federal agencies to submit settlement agreement 
information into the database, including dates, payments, 
awarding of attorney fees, and a list of State and local 
governments directly affected by the agreement. In cases where 
the terms of an agreement are deemed confidential, the bill 
requires agency heads to issue a written public statement 
justifying the nondisclosure.
---------------------------------------------------------------------------
    \24\Id.
---------------------------------------------------------------------------
    The SAID Act does not establish any novel or overly 
burdensome requirements. Most of the information required for 
posting is readily apparent on the face of the settlement 
agreements and in the posted information that often accompanies 
agreements, such as fact sheets and press releases.

  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 previous section.

         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 
goal or objective of this bill is to increase public access to 
federal agency settlement agreement records.

                          Legislative History

    On September 12, 2018, Representative Gary Palmer (R-AL) 
introduced H.R. 6777, the Settlement Agreement Information 
Database Act of 2018. H.R. 6777 was referred to the Committee 
on Oversight and Government Reform. The Committee considered 
H.R. 6777 at a business meeting on September 27, 2018, and 
ordered the bill favorably reported to the House by unanimous 
consent.

                        Committee Consideration

    On September 27, 2018, the Committee met in open session 
and, with a quorum being present, ordered the bill favorably 
reported to the House by unanimous consent.

                            Roll Call Votes

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 6777.

                       Explanation of Amendments

    There were no amendments to H.R. 6777 offered or adopted 
during Committee consideration of the bill.

              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 is to increase public access to federal agency 
settlement agreement records. As such, this bill does not 
relate to employment or access to public services and 
accommodations.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII 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

    This bill does not direct the completion of any specific 
rule makings within the meaning of section 551 of title 5, 
United States Code.

                     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 Section 5(b) of the appendix to title 5, 
United States Code.

                      Unfunded Mandates Statement

    Pursuant to section 423 of the Congressional Budget Act of 
1974 the Committee has included a letter received from the 
Congressional Budget Office below.

                         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 of the House of Representatives.

                           Committee Estimate

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 18, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6777, the 
Settlement Agreement Information Database Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                             Mark P. Hadley
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 6777--Settlement Agreement Information Database Act of 2018

    H.R. 6777 would establish new requirements for the public 
disclosure of settlement agreements entered into by federal 
agencies. Specifically, the legislation would require that the 
text of such agreements be posted online. Under the bill, each 
posted settlement would include a copy of the agreement, the 
names of the parties involved, a description of the claims 
settled, the amount to be paid and to whom it was paid, the 
length of the agreement, and how the agreement came about. In 
addition, H.R. 6777 would require the agencies to report on any 
agreements that are confidential and the reasoning for that 
arrangement.
    CBO estimates that enacting H.R. 6777 would have no 
significant effect on the federal budget because most of the 
required information is already collected during the settlement 
process and the cost of making it available online would not be 
significant.
    Enacting H.R. 6777 could affect direct spending by some 
agencies (such as the Tennessee Valley Authority) that are 
authorized to use receipts from the sale of goods, fees, and 
other collections to cover their operating costs; therefore, 
pay-as-you-go procedures apply. Because most of those agencies 
can adjust the amounts collected, CBO estimates that any net 
changes in direct spending by those agencies would be 
negligible. Enacting the bill would not affect revenues.
    CBO estimates that enacting H.R. 6777 would not 
significantly increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2029.
    H.R. 6777 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 designates the short title of the bill as the 
``Settlement Agreement Information Database Act of 2018.''

Section 2. Information regarding settlement agreements entered into by 
        Federal Agencies

    Section 2 amends chapter 3 of title 5, United States Code, 
by adding section 307, which establishes new information 
disclosure requirements for Federal agencies regarding 
settlement agreements.
            Section 307. Information regarding settlement agreements
    Section 307 requires the establishment of a centralized and 
publicly available settlement agreement information database, 
which will be overseen by the Director of the Office of 
Management and Budget (OMB). OMB has one year to execute 
database operations.
    The head of each Executive agency is required to submit to 
the database a list of each agency settlement agreement, 
including: (1) the category of the settlement agreement; (2) 
the date of entry; (3) a list of specific violations and a 
description of the claims settled; (4) the awarding of 
attorneys' fees and related costs; (5) the amount each settling 
party is obligated to pay; (6) the projected duration of the 
settlement agreement; (7) a list of State or local governments 
that may be directly affected; (8) a summary of economic data 
and methodology; (9) any applicable modifications; (10) notice 
and comments; and (11) a copy of the settlement agreement. The 
section clarifies it is the originating agency's responsibility 
to submit such information.
    The section includes an exemption of the disclosure of 
information in circumstances where there is a confidentiality 
agreement or other exemptions provided under the Freedom of 
Information Act, as long as the appropriate citation is 
provided. Agency heads are also required to issue a written 
public statement explaining the sealing of information and 
documents in circumstances where a settlement agreement 
requires a confidentiality agreement.
    The section further requires OMB to issue guidelines to 
ensure a standardized approach to data and information sharing 
from Federal agencies to the database, with such information 
remaining publicly available for a period of five years after 
the termination of the settlement agreement. Agency heads are 
required to begin submitting information to the database not 
later than 90 days after the issuance of the OMB guidance.
    The section includes a clerical amendment to update the 
table of sections and defines several terms used within the 
section.

Section 3. Amendments to the Freedom of Information Act

    Section 3 creates a new subparagraph (B) of section 
552(a)(2) of title 5, United States Code, which extends 
redactions and exemptions to settlement agreements, as defined 
in section 307.

Section 4. Rule of construction

    Section 4 clarifies the bill is not intended to require 
public disclosure of agency information or records otherwise 
protected from disclosure under the Freedom of Information Act.

Section 5. Effective date; applicability

    Section 5 requires the application of the bill 180 days 
after enactment, which will apply to any settlement agreement 
entered into on or after enactment, as well as any settlement 
agreement remaining in effect on or after enactment, to the 
extent practicable.

         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 3--POWERS

Sec.
301. Departmental regulations.
     * * * * * * *
307. Information regarding settlement agreements.

           *       *       *       *       *       *       *

Sec. 307. Information regarding settlement agreements

  (a) Definitions.--In this section:
          (1) Local government.--The term ``local government'' 
        has the meaning given that term in section 6501 of 
        title 31.
          (2) Order type.--The term ``order type'' means the 
        type of action or instrument used to settle a civil or 
        criminal judicial action.
          (3) Settlement agreement.--The term ``settlement 
        agreement'' means a settlement agreement (including a 
        consent decree) that--
                  (A) is entered into by an Executive agency; 
                and
                  (B) relates to an alleged violation of 
                Federal civil or criminal law.
          (4) State.--The term ``State'' means each of the 
        several States, the District of Columbia, each 
        territory or possession of the United States, and each 
        federally recognized Indian Tribe.
  (b) Settlement Agreement Information Database.--
          (1) Executive agency requirement.--
                  (A) In general.--Subject to subparagraph (B), 
                the head of each Executive agency shall, in 
                accordance with guidance issued pursuant to 
                paragraph (2), submit the following information 
                to the database established under paragraph 
                (3):
                          (i) A list of each settlement 
                        agreement, in a categorized and 
                        searchable format, entered into by the 
                        Executive agency, as a party to a 
                        lawsuit, which shall include, for each 
                        settlement agreement--
                                  (I) the order type of the 
                                settlement agreement;
                                  (II) the date on which the 
                                parties entered into the 
                                settlement agreement;
                                  (III) a list of specific 
                                violations that specify the 
                                basis for the action taken, 
                                with a description of the 
                                claims each party settled under 
                                the settlement agreement;
                                  (IV) the amount of attorneys' 
                                fees and other litigation costs 
                                awarded, if any, including a 
                                description of the statutory 
                                basis for such an award;
                                  (V) the amount each party 
                                settling a claim under the 
                                settlement agreement is 
                                obligated to pay under the 
                                settlement agreement;
                                  (VI) the total amount the 
                                settling parties are obligated 
                                to pay under the settlement 
                                agreement;
                                  (VII) the amount, if any, the 
                                settling party is obligated to 
                                pay that is expressly specified 
                                under the settlement agreement 
                                as a civil or criminal penalty 
                                or fine;
                                  (VIII) any payment made under 
                                the settlement agreement, 
                                including a description of any 
                                payment made to the Federal 
                                Government;
                                  (IX) the projected duration 
                                of the settlement agreement, if 
                                available;
                                  (X) a list of State or local 
                                governments that may be 
                                directly affected by the terms 
                                of the settlement agreement;
                                  (XI) a brief description of 
                                any economic data and 
                                methodology used to justify the 
                                terms of the settlement 
                                agreement;
                                  (XII) any modifications to 
                                the settlement agreement, when 
                                applicable;
                                  (XIII) notice and comments, 
                                when applicable; and
                                  (XIV) whether the settlement 
                                agreement is still under 
                                judicial enforcement and any 
                                period of time by which the 
                                parties agreed to have certain 
                                conditions met.
                          (ii) A copy of each--
                                  (I) settlement agreement 
                                entered into by the Executive 
                                agency; and
                                  (II) statement issued under 
                                paragraph (4).
                  (B) Nondisclosure.--The requirement to submit 
                information or a copy of a settlement agreement 
                under subparagraph (A) shall not apply to the 
                extent the information or copy (or portion 
                thereof)--
                          (i) is subject to a confidentiality 
                        provision that prohibits disclosure of 
                        the information or copy (or portion 
                        thereof); and
                          (ii) would not be disclosed under 
                        section 552, if the Executive agency 
                        provides a citation to the applicable 
                        exemption.
                  (C) Clarification of responsible agency.--In 
                a case in which an Executive agency is acting 
                at the request or on behalf of another 
                Executive agency (referred to as the 
                originating agency), the originating agency is 
                responsible for submitting information under 
                subparagraph (A).
          (2) Guidance.--The Director of the Office of 
        Management and Budget shall issue guidance for 
        Executive agencies to implement paragraph (1). Such 
        guidance shall include the following:
                  (A) Specific dates by which submissions must 
                be made, not less than twice a year.
                  (B) Data standards, including common data 
                elements and a common, nonproprietary, 
                searchable, machine-readable, platform 
                independent format.
                  (C) A requirement that the information and 
                documents required under paragraph (1) are 
                publicly available for a period starting on the 
                date of the settlement through not less than 5 
                years after the termination of the settlement 
                agreement.
          (3) Establishment of database.--The Director of the 
        Office of Management and Budget, or the head of an 
        Executive agency designated by the Director, shall 
        establish and maintain a public, searchable, 
        downloadable database for Executive agencies to 
        directly upload and submit the information and 
        documents required under paragraph (1) for immediate 
        publication online.
          (4) Statement of confidentiality.--If the head of an 
        Executive agency determines that a confidentiality 
        provision in a settlement agreement, or the sealing of 
        a settlement agreement, is required to protect the 
        public interest of the United States, the head of the 
        Executive agency may except the settlement agreement 
        from the requirement in paragraph (1) and shall issue a 
        written public statement stating why such action is 
        required to protect the public interest of the United 
        States, which shall explain--
                  (A) what interests confidentiality protects; 
                and
                  (B) why the interests protected by 
                confidentiality outweigh the public's interest 
                in knowing about the conduct of the Federal 
                Government and the expenditure of Federal 
                resources.

           *       *       *       *       *       *       *

CHAPTER 5--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *

SUBCHAPTER II--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *

Sec. 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--
          (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 for public inspection in an electronic format--
          (A) final opinions, including concurring and 
        dissenting opinions, as well as orders, made in the 
        adjudication of cases;
          (B) each settlement agreement (as defined in section 
        307) entered into by an Executive agency, with 
        redactions for information that the agency may withhold 
        under paragraph (8) and subsections (b) and (c) of this 
        section;
          [(B)] (C) those statements of policy and 
        interpretations which have been adopted by the agency 
        and are not published in the Federal Register;
          [(C)] (D) administrative staff manuals and 
        instructions to staff that affect a member of the 
        public;
          [(D)] (E) copies of all records, regardless of form 
        or format--
                  (i) that have been released to any person 
                under paragraph (3); and
                  (ii)(I) that 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 
                records; or
                  (II) that have been requested 3 or more 
                times; and
          [(E)] (F) a general index of the records referred to 
        under subparagraph (D);
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 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 subparagraph (D). 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 for public inspection in an electronic 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 in subparagraph 
(E) 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 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 the Director of the Office of Management and Budget 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 
charge reduced below the fees established under clause (ii) if 
disclosure 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)(I) Except as provided in subclause (II), an agency 
shall not assess any search fees (or in the case of a requester 
described under clause (ii)(II) of this subparagraph, 
duplication fees) under this subparagraph if the agency has 
failed to comply with any time limit under paragraph (6).
  (II)(aa) If an agency has determined that unusual 
circumstances apply (as the term is defined in paragraph 
(6)(B)) and the agency provided a timely written notice to the 
requester in accordance with paragraph (6)(B), a failure 
described in subclause (I) is excused for an additional 10 
days. If the agency fails to comply with the extended time 
limit, the agency may not assess any search fees (or in the 
case of a requester described under clause (ii)(II) of this 
subparagraph, duplication fees).
  (bb) If an agency has determined that unusual circumstances 
apply and more than 5,000 pages are necessary to respond to the 
request, an agency may charge search fees (or in the case of a 
requester described under clause (ii)(II) of this subparagraph, 
duplication fees) if the agency has provided a timely written 
notice to the requester in accordance with paragraph (6)(B) and 
the agency has discussed with the requester via written mail, 
electronic mail, or telephone (or made not less than 3 good-
faith attempts to do so) how the requester could effectively 
limit the scope of the request in accordance with paragraph 
(6)(B)(ii).
  (cc) If a court has determined that exceptional circumstances 
exist (as that term is defined in paragraph (6)(C)), a failure 
described in subclause (I) shall be excused for the length of 
time provided by the court order.
  (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 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.
  [(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 
1984, 98 Stat. 3357.]
  (E)(i) The court may 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 of--
                  (I) such determination and the reasons 
                therefor;
                  (II) the right of such person to seek 
                assistance from the FOIA Public Liaison of the 
                agency; and
                  (III) in the case of an adverse 
                determination--
                          (aa) the right of such person to 
                        appeal to the head of the agency, 
                        within a period determined by the head 
                        of the agency that is not less than 90 
                        days after the date of such adverse 
                        determination; and
                          (bb) the right of such person to seek 
                        dispute resolution services from the 
                        FOIA Public Liaison of the agency or 
                        the Office of Government Information 
                        Services; 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 subsection.
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 the resolution of any disputes between the requester and the 
agency, and notify the requester of the right of the requester 
to seek dispute resolution services from the Office of 
Government Information Services.
  (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 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 that will 
        take longer than ten days to process and provide to 
        each person making a request the tracking number 
        assigned to the request; and
          (B) establish a telephone line or Internet service 
        that provides 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)(A) An agency shall--
          (i) withhold information under this section only if--
                  (I) the agency reasonably foresees that 
                disclosure would harm an interest protected by 
                an exemption described in subsection (b); or
                  (II) disclosure is prohibited by law; and
          (ii)(I) consider whether partial disclosure of 
        information is possible whenever the agency determines 
        that a full disclosure of a requested record is not 
        possible; and
          (II) take reasonable steps necessary to segregate and 
        release nonexempt information; and
          (B) Nothing in this paragraph requires disclosure of 
        information that is otherwise prohibited from 
        disclosure by law, or otherwise exempted from 
        disclosure under subsection (b)(3).
  (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 that would not be available by law to a party 
        other than an agency in litigation with the agency, 
        provided that the deliberative process privilege shall 
        not apply to records created 25 years or more before 
        the date on which the records were requested;
          (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.
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--
          (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;
          (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 requests;
          (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 requests;
          (P) the number of times the agency denied a request 
        for records under subsection (c); and
          (Q) the number of records that were made available 
        for public inspection in an electronic format under 
        subsection (a)(2).
  (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.
  (3) Each agency shall make each such report available for 
public inspection in an electronic format. In addition, each 
agency shall make the raw statistical data used in each report 
available in a timely manner for public inspection in an 
electronic format, which shall be made available--
          (A) without charge, license, or registration 
        requirement;
          (B) in an aggregated, searchable format; and
          (C) in a format that may be 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 Committee on Oversight and 
Government Reform of the House of Representatives and the 
Chairman and ranking minority member of the Committees on 
Homeland Security and Governmental Affairs and the Judiciary of 
the Senate, no later than 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, shall develop reporting and performance guidelines in 
connection with reports required by this subsection by October 
1, 1997, and may establish additional requirements for such 
reports as the Attorney General determines may be useful.
  (6)(A) The Attorney General of the United States shall submit 
to the Committee on Oversight and Government Reform of the 
House of Representatives, the Committee on the Judiciary of the 
Senate, and the President a 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) a listing of--
                  (I) each subsection, and any exemption, if 
                applicable, involved in each case arising under 
                this section;
                  (II) the disposition of each case arising 
                under this section; and
                  (III) 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) The Attorney General of the United States shall make--
          (i) each report submitted under subparagraph (A) 
        available for public inspection in an electronic 
        format; and
          (ii) the raw statistical data used in each report 
        submitted under subparagraph (A) available for public 
        inspection in an electronic format, which shall be made 
        available--
                  (I) without charge, license, or registration 
                requirement;
                  (II) in an aggregated, searchable format; and
                  (III) in a format that may be 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 make available 
for public inspection in an electronic 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
          (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.
  (h)(1) There is established the Office of Government 
Information Services within the National Archives and Records 
Administration. The head of the Office shall be the Director of 
the Office of Government Information Services.
  (2) The Office of Government Information Services shall--
          (A) review policies and procedures of administrative 
        agencies under this section;
          (B) review compliance with this section by 
        administrative agencies; and
          (C) identify procedures and methods for improving 
        compliance under this section.
  (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 
nonexclusive alternative to litigation and may issue advisory 
opinions at the discretion of the Office or upon request of any 
party to a dispute.
  (4)(A) Not less frequently than annually, the Director of the 
Office of Government Information Services shall submit to the 
Committee on Oversight and Government Reform of the House of 
Representatives, the Committee on the Judiciary of the Senate, 
and the President--
          (i) a report on the findings of the information 
        reviewed and identified under paragraph (2);
          (ii) a summary of the activities of the Office of 
        Government Information Services under paragraph (3), 
        including--
                  (I) any advisory opinions issued; and
                  (II) the number of times each agency engaged 
                in dispute resolution with the assistance of 
                the Office of Government Information Services 
                or the FOIA Public Liaison; and
          (iii) legislative and regulatory recommendations, if 
        any, to improve the administration of this section.
  (B) The Director of the Office of Government Information 
Services shall make each report submitted under subparagraph 
(A) available for public inspection in an electronic format.
  (C) The Director of the Office of Government Information 
Services shall not be required to obtain the prior approval, 
comment, or review of any officer or agency of the United 
States, including the Department of Justice, the Archivist of 
the United States, or the Office of Management and Budget 
before submitting to Congress, or any committee or subcommittee 
thereof, any reports, recommendations, testimony, or comments, 
if such submissions include a statement indicating that the 
views expressed therein are those of the Director and do not 
necessarily represent the views of the President.
  (5) The Director of the Office of Government Information 
Services may directly submit additional information to Congress 
and the President as the Director determines to be appropriate.
  (6) Not less frequently than annually, the Office of 
Government Information Services shall conduct a meeting that is 
open to the public on the review and reports by the Office and 
shall allow interested persons to appear and present oral or 
written statements at the meeting.
  (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.
  (j)(1) 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) 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) offer training to agency staff regarding their 
        responsibilities under this section;
          (G) serve as the primary agency liaison with the 
        Office of Government Information Services and the 
        Office of Information Policy; and
          (H) designate 1 or more FOIA Public Liaisons.
  (3) The Chief FOIA Officer of each agency shall review, not 
less frequently than annually, all aspects of the 
administration of this section by the agency to ensure 
compliance with the requirements of this section, including--
          (A) agency regulations;
          (B) disclosure of records required under paragraphs 
        (2) and (8) of subsection (a);
          (C) assessment of fees and determination of 
        eligibility for fee waivers;
          (D) the timely processing of requests for information 
        under this section;
          (E) the use of exemptions under subsection (b); and
          (F) dispute resolution services with the assistance 
        of the Office of Government Information Services or the 
        FOIA Public Liaison.
  (k)(1) There is established in the executive branch the Chief 
FOIA Officers Council (referred to in this subsection as the 
``Council'').
  (2) The Council shall be comprised 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.
          (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) The Director of the Office of Information Policy at the 
Department of Justice and the Director of the Office of 
Government Information Services shall be the Co-Chairs of the 
Council.
  (4) The Administrator of General Services shall provide 
administrative and other support for the Council.
  (5)(A) The duties of the Council shall include the following:
          (i) Develop recommendations for increasing compliance 
        and efficiency under this section.
          (ii) Disseminate information about agency 
        experiences, ideas, best practices, and innovative 
        approaches related to this section.
          (iii) Identify, develop, and coordinate initiatives 
        to increase transparency and compliance with this 
        section.
          (iv) Promote the development and use of common 
        performance measures for agency compliance with this 
        section.
  (B) In performing the duties described in subparagraph (A), 
the Council shall consult on a regular basis with members of 
the public who make requests under this section.
  (6)(A) 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) Not less frequently than annually, 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) Not later than 10 business days before a meeting of the 
Council, notice of such meeting shall be published in the 
Federal Register.
  (D) Except as provided in subsection (b), the records, 
reports, transcripts, minutes, appendices, 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) 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. The minutes shall be 
redacted as necessary and made publicly available.
  (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)(1) 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) 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.

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