II

103D CONGRESS

1ST SESSION S. 1782

To amend title 5, United States Code, to provide for public access to information in an electronic format, to amend the Freedom of Information

Act, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 22, 1993

Mr. LEAHY (for himself and Mr. BROWN) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

To amend title 5, United States Code, to provide for public

access to information in an electronic format, to amend

the Freedom of Information Act, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Electronic Freedom

5 of Information Improvement Act of 1993’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—The Congress finds that—

8 (1) since the enactment of the Freedom of In9 formation Act in 1966, and the amendments enacted
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1 in 1974 and 1986, the Freedom of Information Act

2 has been a valuable means through which any per3 son can learn how the Federal Government operates;

4 (2) the Freedom of Information Act ensures ac5 cess to information held by the Government, which

6 is a valuable national resource;

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

8 the disclosure of waste, fraud, abuse, and wrong9 doing in the Federal Government;

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

11 the identification of unsafe consumer products,

12 harmful drugs, and serious health hazards;

13 (5) Government agencies increasingly use com14 puters to conduct agency business and to store pub15 licly valuable information; and

16 (6) Government agencies should use new tech17 nology to enhance public access to information.

18 (b) PURPOSES.—The purposes of this Act are to—

19 (1) foster democracy by ensuring access to pub20 lic information;

21 (2) improve public access to agency records and

22 information;

23 (3) ensure agency compliance with statutory

24 time limits; and
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1 (4) maximize the usefulness of agency records

2 and information collected, maintained, used, re3 tained, and disseminated by the Federal Govern4 ment.

5 SEC. 3. PUBLIC INFORMATION AVAILABILITY.

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

7 amended—

8 (1) in the first sentence by inserting ‘‘electroni9 cally by computer telecommunications, and by other

10 means,’’ after ‘‘Federal Register’’;

11 (2) by striking out ‘‘and’’ at the end of sub12 paragraph (D);

13 (3) by redesignating subparagraph (E) as sub14 paragraph (H); and

15 (4) by inserting after subparagraph (D) the fol16 lowing new subparagraphs:

17 ‘‘(E) an index of all information retrievable or

18 stored in an electronic form by the agency;

19 ‘‘(F) a description of any new database or

20 database system with a statement of how such

21 database or system shall enhance agency operations

22 under this section;

23 ‘‘(G) a complete list of all statutes that the

24 agency head or general counsel relies upon to au25 thorize the agency to withhold information under
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1 subsection (b)(3) of this section, together with a spe2 cific description of the scope of the information cov3 ered; and’’.

4 SEC. 4. HONORING FORMAT REQUESTS.

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

6 amended by—

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

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

9 in lieu thereof ‘‘(i) reasonably’’;

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

11 thereof ‘‘(ii)’’; and

12 (4) adding the following new subparagraphs at

13 the end thereof:

14 ‘‘(B) An agency shall provide records in any form in

15 which such records are maintained by that agency as re16 quested by any person.

17 ‘‘(C) An agency shall make reasonable efforts to pro18 vide records in an electronic form requested by any person,

19 even where such records are not usually maintained in

20 such form.’’.

21 SEC. 5. DELAYS.

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

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

24 following new clause:
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1 ‘‘(viii) If at an agency’s request, the Comptroller Gen2 eral determines that the agency annually has either pro3 vided responsive documents or denied requests in substan4 tial compliance with the requirements of paragraph

5 (6)(A), one-half of the fees collected under this section

6 shall be credited to the collecting agency and expended to

7 offset the costs of complying with this section through

8 staff development and acquisition of additional request

9 processing resources. The remaining fees collected under

10 this section shall be remitted to the Treasury as general

11 funds or miscellaneous receipts.’’.

12 (b) PAYMENT OF REQUESTER’S EXPENSES.—Section

13 552(a)(4)(E) of title 5, United States Code, is amended

14 by adding at the end thereof the following new sentence:

15 ‘‘The court may assess against the United States all out16 of-pocket expenses incurred by the requester, and reason17 able attorney fees incurred in the administrative process,

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

19 the time limit provisions of paragraph (6) of this sub20 section.’’.

21 (c) CIVIL PENALTY FOR DELAY.—Section

22 552(a)(4)(E) of title 5, United States Code, is further

23 amended—

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

2 new clause:

3 ‘‘(ii) Any agency not in compliance with the time lim4 its set forth in this subsection shall demonstrate to a court

5 that the delay is warranted under the circumstances. It

6 shall be within the discretion of the court to award the

7 requester an amount not to exceed $75 for each day that

8 the agency’s response to his request exceeded the time lim9 its set forth in paragraph (6) of this section.’’.

10 (d) AGENCY BACKLOGS.—Section 552(a)(6)(B) of

11 title 5, United States Code, is amended in the fourth sen12 tence by inserting ‘‘shall not include routine agency back13 logs and’’ after ‘‘ ‘unusual circumstances’ ’’.

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

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

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

17 denial of any request for records under this subsection

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

19 person responsible for the denial of such request and the

20 total number of denied records and pages considered by

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

22 (f) EXPEDITED ACCESS.—Section 552(a)(6) of title

23 5, United States Code, is amended by adding at the end

24 thereof the following new subparagraph:
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1 ‘‘(D)(i) Each agency shall promulgate regulations,

2 pursuant to notice and receipt of public comment, provid3 ing that upon receipt of a request for expedited access to

4 records and a demonstration by the requester of a compel5 ling need for expedited access to records, the agency shall

6 determine within five days (excepting Saturdays, Sundays,

7 and legal public holidays) after the receipt of such a re8 quest, whether to comply with such request. No more than

9 one day after making such determination the agency shall

10 notify the requester of such determination, the reasons

11 therefor, and of the right to appeal to the head of the

12 agency.

13 ‘‘(ii) A requester whose request for expedited access

14 has not been decided within five days of its receipt by the

15 agency or has been denied shall not be required to exhaust

16 administrative remedies. An agency failing to comply with

17 this time limitation shall be subject to the provisions of

18 paragraph (4)(E)(ii).’’.

19 SEC. 6. COMPUTER REDACTION.

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

21 amended by inserting before the period in the sentence

22 following paragraph (9): ‘‘, and such deletion shall be indi23 cated on the released portion of the record at the place

24 where such deletion was made’’.
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1 SEC. 7. DEFINITIONS.

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

3 amended to read as follows:

4 ‘‘(f) For purposes of this section—

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

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

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

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

11 any independent regulatory agency;

12 ‘‘(2) the term ‘record’ includes all books, pa13 pers, maps, photographs, data, computer programs,

14 machine readable materials, and computerized,

15 digitized, and electronic information, regardless of

16 the medium by which it is stored, or other documen17 tary materials, regardless of physical form or char18 acteristics; and

19 ‘‘(3) the term ‘search’ includes a manual or

20 automated examination to locate records.’’.

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