I

103D CONGRESS

1ST SESSION H. R. 3394

To amend title 5, United States Code, to require disclosure of information

by the Congress.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 27, 1993

Mr. KLUG (for himself, Mr. BOEHNER, Mr. BONILLA, Mr. GRAMS, Mr.

GREENWOOD, Mr. GILCHREST, Mrs. JOHNSON of Connecticut, Mr.

RAMSTAD, Mr. ROBERTS, Mr. SANTORUM, Mr. SHAYS, Mr. SMITH of

Texas, and Mr. ZIMMER) introduced the following bill; which was referred

jointly to the Committee on House Administration and Government Operations

A BILL

To amend title 5, United States Code, to require disclosure

of information by the Congress.

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

3 SECTION 1. APPLICATION OF INFORMATION DISCLOSURE

4 REQUIREMENTS TO CONGRESS.

5 (a) IN GENERAL.—Notwithstanding any other provi6 sion of law, and subject to the amendments made by this

7 Act, the provisions of section 552 of title 5, United States
2

•HR 3394 IH

1 Code (popularly known as the ‘‘Freedom of Information

2 Act’’), shall apply to the legislative branch.

3 (b) CONFORMING AMENDMENT.—Section 551(1)(A)

4 of title 5, United States Code (relating to the exclusion

5 of the Congress from, among other matters, laws requiring

6 the disclosure of public information), is amended to read

7 as follows:

8 ‘‘(A) except as that term is used in section

9 552, the Congress;’’.

10 SEC. 2. SPECIAL RULES REGARDING APPLICATION OF IN11 FORMATION DISCLOSURE REQUIREMENTS

12 TO LEGISLATIVE BRANCH.

13 (a) AUTHORITY TO DECIDE COMPLAINTS.—Section

14 552(a)(4) of title 5, United States Code, is amended—

15 (1) in subparagraph (B) in the first sentence by

16 inserting before the period the following: ‘‘, except

17 that in the case of a complaint against an agency in

18 the legislative branch a member of the Disclosure

19 Review Board selected under subsection (g)(2) shall

20 have that jurisdiction’’;

21 (2) in subparagraph (E) by striking ‘‘The

22 court’’ and inserting ‘‘The court or member of the

23 Disclosure Review Board’’; and
3

•HR 3394 IH

1 (3) by striking ‘‘the court’’ each place it ap2 pears and inserting ‘‘the court or member of the

3 Disclosure Review Board’’.

4 (b) PROCEDURES FOR DECIDING COMPLAINTS.—

5 Section 552 of title 5, United States Code (relating to the

6 disclosure of public information), is amended by adding

7 at the end the following new subsections:

8 ‘‘(g)(1) There is established in the legislative branch

9 of the Federal Government a board to be known as the

10 Disclosure Review Board. Each member of the Board shall

11 have the jurisdiction to hear and determine claims cer12 tified under subsection (i)(4)(B) to the Board and referred

13 to such member, in accordance with rules issued under

14 subsection (m), for hearing and determination.

15 ‘‘(2)(A) Members of the Board shall be appointed

16 from among individuals who are retired from Federal serv17 ice as administrative law judges appointed under section

18 3105, as follows:

19 ‘‘(i) 3 members shall be appointed by the

20 Speaker of the House of Representatives.

21 ‘‘(ii) 3 members shall be appointed by the mi22 nority leader of the House of Representatives.

23 ‘‘(iii) 3 members shall be appointed by the ma24 jority leader of the Senate.
4

•HR 3394 IH

1 ‘‘(iv) 3 members shall be appointed by the mi2 nority leader of the Senate.

3 ‘‘(B) Any individual so appointed shall serve on the

4 Board for a term of 2 years and may be reappointed to

5 the Board. Any member of the board who is hearing and

6 determining any claim under this section at the time the

7 term of such member expires may continue to serve as

8 a member of the Board until such individual concludes the

9 determination of such claim.

10 ‘‘(3)(A) For any claim in a complaint under sub11 section (b)(4)(B) filed with the Disclosure Review Board

12 alleging a failure by a Member of Congress or any individ13 ual on the personal staff of a Member of Congress to make

14 available information, records, or other material required

15 by this section to be made available, one of the members

16 of the Board shall be selected as follows to hear and deter17 mine the claims alleged in such complaint which are cer18 tified under subsection (i)(4)(B):

19 ‘‘(i) If such Member of Congress belongs to the

20 majority party of the House of Congress to which

21 such Member belongs, then the minority leader of

22 such House of Congress shall select the member of

23 the Board to hear and determine such claim.

24 ‘‘(ii) If such Member of Congress belongs to the

25 minority party of the House of Congress to which
5

•HR 3394 IH

1 such Member belongs, then the Speaker of the

2 House of Representatives (if such Member belongs

3 to the House of Representatives) or the majority

4 leader of the Senate (if such Member belongs to the

5 Senate) shall select the member of the Board to hear

6 and determine such claim.

7 ‘‘(B) If a claim in a complaint filed under subsection

8 (b) alleges that a committee of Congress (other than a

9 joint committee), an agency established in a House of

10 Congress, or any individual on the staff of such committee

11 or agency has failed to make available information,

12 records, or other material required by this section to be

13 made available, then one of the members of the Board

14 shall be selected as follows to hear and determine the

15 claims alleged in such complaint which are certified under

16 subsection (i)(4)(B):

17 ‘‘(i) If such committee or agency is established

18 in the House of Representatives, then the Speaker

19 of the House of Representatives shall select the

20 member of the Board to hear and determine such

21 claim.

22 ‘‘(ii) If such committee or agency is established

23 in the Senate, then the majority leader of the Senate

24 shall select a member of the Board to hear and de25 termine such claim.
6

•HR 3394 IH

1 ‘‘(C) If a claim in a complaint filed under subsection

2 (b) alleges that a joint committee of Congress, an agency

3 established in the legislative branch of the Federal Gov4 ernment (other than an agency established in a House of

5 Congress), or any individual on the staff of such commit6 tee or agency has failed to make available information,

7 records, or other material required by this section to be

8 made available, then the Speaker of the House of Rep9 resentatives shall select a member of the Board to hear

10 and determine such claim.

11 ‘‘(4) The offices of the Board shall be in the District

12 of Columbia. There shall be detailed to the Board such

13 employees of the Congress as the Board may require to

14 carry out its duties under this section.

15 ‘‘(h)(1) The Board shall designate one of its members

16 (other than any Special Hearing Member) to serve for a

17 term of 1 year as the Complaint Referral Officer. The

18 Complaint Referral Officer may not hear or determine any

19 claim in a complaint referred under paragraph (2) to such

20 Officer.

21 ‘‘(2) Except as provided in subparagraph (B), each

22 complaint filed with the Board in accordance with sub23 section (b) shall be referred immediately to the Complaint

24 Referral Officer.
7

•HR 3394 IH

1 ‘‘(3) Not later than 15 days after a complaint filed

2 in accordance with subsection (b)(4) is received by the

3 Board, the Complaint Referral Officer shall appoint an in4 dividual (other than a member of the Board) to serve as

5 the Investigating Counsel with respect to such complaint

6 and shall refer such complaint to such Investigating Coun7 sel.

8 ‘‘(i)(1) Each individual appointed under subsection

9 (d)(3) as Investigating Counsel shall meet the qualifica10 tions for appointment as a United States magistrate speci11 fied in subsections (b), (c), and (d) of section 631 of title

12 28.

13 ‘‘(2)(A) An Investigating Counsel shall comply with

14 the requirements for service applicable to part-time United

15 States magistrates specified in section 632(b) of title 28.

16 ‘‘(B) If the appointment of an Investigating Counsel

17 is terminated by reason of resignation, death, or removal

18 from office, the Complaint Referral Officer shall appoint

19 another individual as Investigating Counsel to complete

20 the work of the Investigating Counsel who so resigned,

21 died, or was removed.

22 ‘‘(C) An Investigating Counsel may be removed from

23 office only by the Complaint Referral Officer and only for

24 good cause, physical disability, mental incapacity, or any
8

•HR 3394 IH

1 other condition that substantially impairs the performance

2 of such Investigating Counsel’s duties.

3 ‘‘(3) Not earlier than 45 days, and not later than 90

4 days, after receiving a complaint referred under paragraph

5 (2), the Investigating Counsel involved shall conduct a

6 thorough investigation of each unresolved claim therein al7 leging a failure to make available material required by this

8 section to be made available and shall determine whether

9 there is reasonable cause to believe any such claim is true.

10 For purposes of conducting such investigation, such Inves11 tigating Counsel shall have investigative powers of the

12 types vested in the Equal Employment Opportunity Com13 mission by section 709(a) of the Civil Rights Act of 1964.

14 ‘‘(4)(A) If such Investigating Counsel determines

15 that there is reasonable cause to believe any such claim

16 is true, then such Investigating Counsel shall attempt to

17 secure from the defendant and the person that filed the

18 complaint making the claim, during the 30-day period be19 ginning on the date of such determination, an agreement

20 to make available the material that is the subject of the

21 complaint.

22 ‘‘(B) If such Investigating Counsel is unable to secure

23 such agreement with respect to any such claim, then such

24 Investigating Counsel shall certify to the Board for hear-
9

•HR 3394 IH

1 ing and determination each claim with respect to which

2 such reasonable cause is found.

3 ‘‘(5)(A) Each Investigating Counsel appointed under

4 this subsection shall be paid at the daily equivalent of the

5 annual rate of basic pay payable from time to time for

6 level IV of the Executive Schedule under section 5315 for

7 each day (including traveltime) during which such Inves8 tigating Counsel is engaged in the actual performance of

9 duties under this subsection.

10 ‘‘(B)(i) If the complaint with respect to which an In11 vestigating Counsel is appointed is based on an alleged

12 failure by the Congress to make available material, then

13 the Investigating Counsel shall be paid compensation in

14 connection with such complaint from the contingent fund

15 of the House of Congress (upon vouchers approved by the

16 Clerk of the House of Representatives or the Secretary

17 of the Senate in which the failure occurred.

18 ‘‘(ii) If the complaint with respect to which an Inves19 tigating Counsel is appointed is based on an alleged failure

20 to make available material by an agency or unit of the

21 legislative branch of the Federal Government (other than

22 the Congress), then the Investigating Counsel shall be

23 paid compensation in connection with such complaint by

24 such agency or unit from funds available to such agency

25 or unit.
10

•HR 3394 IH

1 ‘‘(j)(1) The member of the Board, to whom a claim

2 is referred under subsection (g) for hearing and deter3 mination shall make such determination as promptly as

4 possible and, insofar as practicable, not later than 180

5 days after the date the Board received the complaint in6 volved.

7 ‘‘(2)(A) Each determination made by the Board or

8 a member of the Board shall be in writing. In the case

9 of a determination made by a member of the Board to

10 dispose of any claim in such complaint, such member shall

11 file with the Board a written report containing such mem12 ber’s findings of fact and conclusions of law with respect

13 to such claim.

14 ‘‘(B) If such member finds that the defendant has

15 failed to make available material that is required by this

16 section to be made available, then such member shall sub17 mit to the Board, and the Board shall issue, an order for

18 relief which compels the defendant to do one or more of

19 the following, as appropriate, for the benefit of the person

20 that filed the complaint:

21 ‘‘(i) Make available the information, record, or

22 other material that is the subject of the complaint,

23 on such terms and conditions as determined to be

24 appropriate.

25 ‘‘(ii) Pay compensatory damages.
11

•HR 3394 IH

1 ‘‘(iii) Pay the fees and allowances of witnesses

2 in the same manner as is provided in section 1821

3 of title 28, and pay a reasonable attorney’s fee.

4 ‘‘(C) Any payment ordered under subparagraph (B)

5 with respect to a violation of this section by a Member

6 of Congress, a committee of Congress, or an officer or em7 ployee of Congress shall be paid from the contingent fund

8 of the appropriate House of Congress, upon vouchers ap9 proved by the Clerk of the House of Representatives or

10 the Secretary of the Senate, as the case may be.

11 ‘‘(3)(A) Any member of the Board may issue subpoe12 nas requiring the attendance and testimony of witnesses

13 and the production of any evidence that relates to a com14 plaint pending before the Board. Such attendance of wit15 nesses and production of evidence may be required from

16 any place within the United States. Any member of the

17 Board may administer oaths and affirmations.

18 ‘‘(B) If a person issued a subpoena under subpara19 graph (A) refuses to obey such subpoena or is guilty of

20 contumacy, the district court of the United States for the

21 District of Columbia or the district court of the United

22 States for the judicial district within which such person

23 is found or resides, or transacts business may, upon appli24 cation by the Board, order such person to appear before

25 the appropriate member of the Board to produce evidence
12

•HR 3394 IH

1 or to give testimony relating to such complaint. Any fail2 ure to obey such order of the court may be punished by

3 such court as a contempt thereof.

4 ‘‘(C) Subpoenas issued by members of the Board

5 shall be served in the manner provided for subpoenas is6 sued by a United States district courts under the Federal

7 Rules of Civil Procedure.

8 ‘‘(D) All process of any court to which application

9 may be made under this subsection may be served in the

10 judicial district in which the person required to be served

11 resides, is found, or transacts business.

12 ‘‘(E) For purposes of sections 6002 and 6004 of title

13 18, the Board shall be considered to be an agency of the

14 United States.

15 ‘‘(4)(A) Except as otherwise provided in this section,

16 rules 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21,

17 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 43,

18 and 50 of the Federal Rules of Civil Procedure shall apply

19 with respect to complaints filed under subsection (b)(1).

20 ‘‘(B) The Federal Rules of Evidence shall apply with

21 respect to the hearing and determination of claims by the

22 Board.

23 ‘‘(5)(A) Notwithstanding any other provision of law,

24 none of the records of the Board relating to a complaint

25 filed under subsection (b)(1) may be disclosed to the pub-
13

•HR 3394 IH

1 lic by the Board or by any court or agency of the United

2 States until the conclusion of any judicial review of the

3 order issued by the Board disposing of such complaint or

4 the expiration of any period allowed by law to seek such

5 review, whichever occurs later.

6 ‘‘(B) No determination made by the Supreme Court

7 of the United States, the Court of Appeals for the District

8 of Columbia Circuit, the Board (or any member of the

9 Board), or the Investigating Counsel with respect to any

10 claim alleging a violation of this section is admissible in

11 evidence in any administrative or judicial proceeding other

12 than a proceeding authorized by law to review a deter13 mination made under this section by the Board (or any

14 member of the Board) or the Court of Appeals for the

15 District of Columbia Circuit.

16 ‘‘(6)(A) Any person who files a complaint under sub17 section (b)(4)(B) may attend, and may be represented by

18 an attorney at, any hearing conducted under this sub19 section with respect to such complaint.

20 ‘‘(B)(i) Except as provided in clause (ii), if such indi21 vidual resides more than 100 miles from the place where

22 such hearing is held, then such individual shall be reim23 bursed by the defendant for any actual and reasonable

24 costs incurred by such individual to attend such hearing.
14

•HR 3394 IH

1 ‘‘(ii) If such complaint is filed with respect to a fail2 ure by the Congress to make available materials, then such

3 reimbursement shall be paid from the contingent fund of

4 the appropriate House of Congress, upon vouchers ap5 proved by the Clerk of the House of Representatives or

6 the Secretary of the Senate, as the case may be.

7 ‘‘(k)(1) Chapter 7 shall apply with respect to judicial

8 review of orders of the Board.

9 ‘‘(2) The United States Court of Appeals for the Dis10 trict of Columbia Circuit shall have jurisdiction to review

11 and to enjoin, set aside, suspend, modify, and enforce the

12 orders of the Board.

13 ‘‘(3) Any person who is a party to a proceeding in

14 which the Board issues an order may seek review of such

15 order by filing in the United States Court of Appeals for

16 the District of Columbia Circuit (hereinafter in this sub17 section referred to as the ‘court’), not later than 60 days

18 after the date such order is entered by the Board, a writ19 ten petition for review. A copy of the petition shall be

20 transmitted by the clerk of the court to the Board, and,

21 upon receipt of such copy the Board shall file with the

22 court the record in the proceeding, in the manner provided

23 in section 2112 of title 28.

24 ‘‘(4)(A) In any judicial proceeding to review an order

25 of the Board, if any party—
15

•HR 3394 IH

1 ‘‘(i) applies to the court for leave to adduce ad2 ditional evidence; and

3 ‘‘(ii) shows to the satisfaction of the court

4 that—

5 ‘‘(I) such additional evidence is material;

6 and

7 ‘‘(II) reasonable grounds exist for the fail8 ure to adduce such evidence in the proceeding

9 before the Board;

10 the court may order such additional evidence (and evi11 dence in rebuttal thereof) to be taken before the Board,

12 in such manner and upon such terms as the court consid13 ers to be appropriate.

14 ‘‘(B) The Board may modify its findings of fact, or

15 make new findings of fact, by reason of the additional evi16 dence so taken, and shall file any such modified or new

17 findings, together with any recommendations for the modi18 fication or setting aside of the original order of the Board.

19 ‘‘(C) The findings of fact of the Board may be set

20 aside only if not supported by substantial evidence.

21 ‘‘(5) In any judicial proceeding to review an order of

22 the Board, the court may remand, on its own motion, the

23 case to the Board for such further action as the court may

24 require.
16

•HR 3394 IH

1 ‘‘(6) In any action or proceeding under this section

2 the court, in its discretion, may allow the prevailing party,

3 a reasonable attorney’s fee as part of the costs, and the

4 United States shall be liable for costs the same as a pri5 vate person.

6 ‘‘(l) Each member of the Board appointed under this

7 section shall submit written reports at least annually to

8 the Committee on Standards of Official Conduct of the

9 House of Representatives and to the Senate Select Com10 mittee on Ethics describing the pending complaints re11 ferred to such member for determination and any deter12 minations made by such member disposing of complaints

13 during the reporting period involved.

14 ‘‘(m) The Board may issue rules of practice and pro15 cedure to carry out this section.

16 ‘‘(n)(1) Any right to relief under this section shall

17 be in addition to, and not in lieu of, any right to relief

18 under any other law.

19 ‘‘(2) No claim arising with respect to conduct which

20 if true would constitute a violation of this section may pro21 ceed in any court of the United States if with respect to

22 such conduct a claim by the same claimant then is pending

23 before the Board.’’.

Æ

HR 3394 IH——2