Calendar No. 594

103D CONGRESS

2D SESSION S. 1782

A BILL

To amend title 5, United States Code, to provide

Act, and for other purposes.format, to amend the Freedom of Informationfor public access to information in an electronic

AUGUST 22 (legislative day, AUGUST 18), 1994

Reported with an amendment and an amendment to the

title
II

Calendar No. 594

103D CONGRESS

2D 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

AUGUST 22 (legislative day, AUGUST 18), 1994

Reported by Mr. BIDEN, with an amendment and an amendment to the title

[Strike out all after the enacting clause and insert the part printed in italic]

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’’.
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1 SEC. 2. FINDINGS AND PURPOSES.

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

3 (1) since the enactment of the Freedom of In4 formation Act in 1966, and the amendments enacted

5 in 1974 and 1986, the Freedom of Information Act

6 has been a valuable means through which any per7 son can learn how the Federal Government operates;

8 (2) the Freedom of Information Act ensures ac9 cess to information held by the Government, which

10 is a valuable national resource;

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

12 the disclosure of waste, fraud, abuse, and wrong13 doing in the Federal Government;

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

15 the identification of unsafe consumer products,

16 harmful drugs, and serious health hazards;

17 (5) Government agencies increasingly use com18 puters to conduct agency business and to store pub19 licly valuable information; and

20 (6) Government agencies should use new tech21 nology to enhance public access to information.

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

23 (1) foster democracy by ensuring access to pub24 lic information;

25 (2) improve public access to agency records and

26 information;
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1 (3) ensure agency compliance with statutory

2 time limits; and

3 (4) maximize the usefulness of agency records

4 and information collected, maintained, used, re5 tained, and disseminated by the Federal Govern6 ment.

7 SEC. 3. PUBLIC INFORMATION AVAILABILITY.

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

9 amended—

10 (1) in the first sentence by inserting ‘‘electroni11 cally by computer telecommunications, and by other

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

13 (2) by striking out ‘‘and’’ at the end of sub14 paragraph (D);

15 (3) by redesignating subparagraph (E) as sub16 paragraph (H); and

17 (4) by inserting after subparagraph (D) the fol18 lowing new subparagraphs:

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

20 stored in an electronic form by the agency;

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

22 database system with a statement of how such

23 database or system shall enhance agency operations

24 under this section;
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1 ‘‘(G) a complete list of all statutes that the

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

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

7 SEC. 4. HONORING FORMAT REQUESTS.

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

9 amended by—

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

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

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

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

14 thereof ‘‘(ii)’’; and

15 (4) adding the following new subparagraphs at

16 the end thereof:

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

18 which such records are maintained by that agency as re19 quested by any person.

20 ‘‘(C) An agency shall make reasonable efforts to pro21 vide records in an electronic form requested by any person,

22 even where such records are not usually maintained in

23 such form.’’.
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1 SEC. 5. DELAYS.

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

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

4 following new clause:

5 ‘‘(viii) If at an agency’s request, the Comptroller Gen6 eral determines that the agency annually has either pro7 vided responsive documents or denied requests in substan8 tial compliance with the requirements of paragraph

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

10 shall be credited to the collecting agency and expended to

11 offset the costs of complying with this section through

12 staff development and acquisition of additional request

13 processing resources. The remaining fees collected under

14 this section shall be remitted to the Treasury as general

15 funds or miscellaneous receipts.’’.

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

17 552(a)(4)(E) of title 5, United States Code, is amended

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

19 ‘‘The court may assess against the United States all out20 of-pocket expenses incurred by the requester, and reason21 able attorney fees incurred in the administrative process,

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

23 the time limit provisions of paragraph (6) of this sub24 section.’’.
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1 (c) CIVIL PENALTY FOR DELAY.—Section

2 552(a)(4)(E) of title 5, United States Code, is further

3 amended—

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

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

6 new clause:

7 ‘‘(ii) Any agency not in compliance with the time lim8 its set forth in this subsection shall demonstrate to a court

9 that the delay is warranted under the circumstances. It

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

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

12 the agency’s response to his request exceeded the time lim13 its set forth in paragraph (6) of this section.’’.

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

15 title 5, United States Code, is amended in the fourth sen16 tence by inserting ‘‘shall not include routine agency back17 logs and’’ after ‘‘ ‘unusual circumstances’ ’’.

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

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

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

21 denial of any request for records under this subsection

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

23 person responsible for the denial of such request and the

24 total number of denied records and pages considered by

25 the agency to have been responsive to the request.’’.
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1 (f) EXPEDITED ACCESS.—Section 552(a)(6) of title

2 5, United States Code, is amended by adding at the end

3 thereof the following new subparagraph:

4 ‘‘(D)(i) Each agency shall promulgate regulations,

5 pursuant to notice and receipt of public comment, provid6 ing that upon receipt of a request for expedited access to

7 records and a demonstration by the requester of a compel8 ling need for expedited access to records, the agency shall

9 determine within five days (excepting Saturdays, Sundays,

10 and legal public holidays) after the receipt of such a re11 quest, whether to comply with such request. No more than

12 one day after making such determination the agency shall

13 notify the requester of such determination, the reasons

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

15 agency.

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

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

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

19 administrative remedies. An agency failing to comply with

20 this time limitation shall be subject to the provisions of

21 paragraph (4)(E)(ii).’’.

22 SEC. 6. COMPUTER REDACTION.

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

24 amended by inserting before the period in the sentence

25 following paragraph (9): ‘‘, and such deletion shall be indi-
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1 cated on the released portion of the record at the place

2 where such deletion was made’’.

3 SEC. 7. DEFINITIONS.

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

5 amended to read as follows:

6 ‘‘(f) For purposes of this section—

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

8 551(1) of this title includes any executive depart9 ment, military department, Government corporation,

10 Government controlled corporation, or other estab11 lishment in the executive branch of the Government

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

13 any independent regulatory agency;

14 ‘‘(2) the term ‘record’ includes all books, pa15 pers, maps, photographs, data, computer programs,

16 machine readable materials, and computerized,

17 digitized, and electronic information, regardless of

18 the medium by which it is stored, or other documen19 tary materials, regardless of physical form or char20 acteristics; and

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

22 automated examination to locate records.’’.

23 SECTION 1. SHORT TITLE.

24 This Act may be cited as the ‘‘Electronic Freedom of

25 Information Improvement Act of 1994’’.
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1 SEC. 2. FINDINGS AND PURPOSES.

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

3 (1) the purpose of the Freedom of Information

4 Act is to require agencies of the Federal Government

5 to make certain agency information available for pub6 lic inspection and copying and to establish and en7 able enforcement of the right of any person to obtain

8 access to the records of such agencies (subject to statu9 tory exemptions) for any public or private purpose;

10 (2) since the enactment of the Freedom of Infor11 mation Act in 1966, and the amendments enacted in

12 1974 and 1986, the Freedom of Information Act has

13 been a valuable means through which any person can

14 learn how the Federal Government operates;

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

16 the disclosure of waste, fraud, abuse, and wrongdoing

17 in the Federal Government;

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

19 the identification of unsafe consumer products, harm20 ful drugs, and serious health hazards;

21 (5) Government agencies increasingly use com22 puters to conduct agency business and to store pub23 licly valuable agency records and information; and

24 (6) Government agencies should use new tech25 nology to enhance public access to agency records and

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

2 (1) foster democracy by ensuring public access to

3 agency records and information;

4 (2) improve public access to agency records and

5 information;

6 (3) ensure agency compliance with statutory

7 time limits; and

8 (4) maximize the usefulness of agency records

9 and information collected, maintained, used, retained,

10 and disseminated by the Federal Government.

11 SEC. 3. PUBLIC INFORMATION AVAILABILITY.

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

13 amended—

14 (1) in the first sentence by inserting ‘‘by com15 puter telecommunications, or if computer tele16 communications means are not available, by other

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

18 (2) by striking out ‘‘and’’ at the end of subpara19 graph (D);

20 (3) by redesignating subparagraph (E) as sub21 paragraph (F); and

22 (4) by inserting after subparagraph (D) the fol23 lowing new subparagraph:

24 ‘‘(E) a complete list of all statutes that the agen25 cy head or general counsel relies upon to authorize the
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1 agency to withhold information under subsection

2 (b)(3) of this section, together with a specific descrip3 tion of the scope of the information covered; and’’.

4 SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC

5 FORMAT.

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

7 amended—

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

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

10 Electronic Freedom of Information Improvement Act

11 of 1994, by computer telecommunications, or if com12 puter telecommunications means are not available, by

13 other electronic means,’’ after ‘‘copying’’;

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

15 after the semicolon;

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

17 after the semicolon;

18 (4) by adding after subparagraph (C) the follow19 ing new subparagraphs:

20 ‘‘(D) an index of all major information systems

21 containing agency records regardless of form or for22 mat unless such an index is provided as otherwise re23 quired by law; and
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1 ‘‘(E) a description of any new major informa2 tion system with a statement of how such system shall

3 enhance agency operations under this section;’’; and

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

5 extent of such deletion shall be indicated on the por6 tion of the record which is made available or pub7 lished at the place in the record where such deletion

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

9 SEC. 5. LIST OF RECORDS MADE AVAILABLE TO THE PUBLIC

10 AND HONORING FORMAT REQUESTS.

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

12 amended by—

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

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

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

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

17 thereof ‘‘(ii)’’; and

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

19 subparagraphs:

20 ‘‘(B) A list of all records which are made available

21 to any person under this paragraph shall be made available

22 for public inspection and copying as provided under para23 graph (2) of this subsection. Copies of all such records, re24 gardless of form or format, which because of the nature of

25 their subject matter, have become or are likely to become
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1 the subject of subsequent requests under this paragraph for

2 substantially the same records, shall be made available for

3 inspection and copying as provided under paragraph (2)

4 of this subsection.

5 ‘‘(C) An agency shall, as requested by any person, pro6 vide records in any form or format in which such records

7 are maintained by that agency.

8 ‘‘(D) An agency shall make reasonable efforts to pro9 vide records in the form or format requested by any person,

10 including in an electronic form or format, even where such

11 records are not usually maintained but are available in

12 such form or format.’’.

13 SEC. 6. DELAYS.

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

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

16 following new clause:

17 ‘‘(viii) If at an agency’s request, the Comptroller Gen18 eral determines that the agency annually has either pro19 vided responsive documents or denied requests in substan20 tial compliance with the requirements of paragraph (6)(A),

21 one-half of the fees collected under this section shall be cred22 ited to the collecting agency and expended to offset the costs

23 of complying with this section through staff development

24 and acquisition of additional request processing resources.

25 The remaining fees collected under this section shall be re-
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1 mitted to the Treasury as general funds or miscellaneous

2 receipts.’’.

3 (b) PAYMENT OF THE EXPENSES OF THE PERSON

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

5 United States Code, is amended by adding at the end there6 of the following new sentence: ‘‘The court may assess against

7 the United States all out-of-pocket expenses incurred by the

8 person making a request, and reasonable attorney fees in9 curred in the administrative process, in any case in which

10 the agency has failed to comply with the time limit provi11 sions of paragraph (6) of this subsection.’’.

12 (c) DEMONSTRATION OF CIRCUMSTANCES FOR

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

14 Code, is further amended—

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

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

17 new clause:

18 ‘‘(ii) Any agency not in compliance with the time lim19 its set forth in this subsection shall demonstrate to a court

20 that the delay is warranted under the circumstances set

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

22 (d) PERIOD FOR AGENCY DECISION TO COMPLY WITH

23 REQUEST.—Section 552(a)(6)(A)(i) is amended by striking

24 out ‘‘ten days’’ and inserting in lieu thereof ‘‘twenty days’’.
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1 (e) AGENCY BACKLOGS.—Section 552(a)(6)(C) of title

2 5, United States Code, is amended by inserting after the

3 second sentence the following: ‘‘As used in this subpara4 graph, ‘exceptional circumstances’ shall be unforeseen and

5 shall not include delays that result from a predictable work6 load, including any ongoing agency backlog, in the ordi7 nary course of processing requests for records.’’.

8 (f) NOTIFICATION OF DENIAL.—The fourth sentence of

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

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

11 denial of any request for records under this subsection shall

12 set forth the names and titles or positions of each person

13 responsible for the denial of such request and the total num14 ber of denied records and pages considered by the agency

15 to have been responsive to the request.’’.

16 (g) MULTITRACK FIFO PROCESSING AND EXPEDITED

17 ACCESS.—Section 552(a)(6) of title 5, United States Code,

18 is amended by adding at the end thereof the following new

19 subparagraphs:

20 ‘‘(D)(i) Each agency shall adopt a first-in, first-out

21 (hereafter in this subparagraph referred to as FIFO) proc22 essing policy in determining the order in which requests

23 are processed. The agency may establish separate processing

24 tracks for simple and complex requests using FIFO process25 ing within each track.
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1 ‘‘(ii) For purposes of such a multitrack system—

2 ‘‘(I) a simple request shall be a request requiring

3 10 days or less to make a determination on whether

4 to comply with such a request; and

5 ‘‘(II) a complex request shall be a request requir6 ing more than 10 days to make a determination on

7 whether to comply with such a request.

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

9 of due diligence under subparagraph (C), if FIFO process10 ing within each track is maintained and the agency can

11 show that it has reasonably allocated resources to handle

12 the processing for each track.

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

14 pursuant to notice and receipt of public comment, provid15 ing that upon receipt of a request for expedited access to

16 records and a showing by the person making such request

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

18 agency shall determine within 5 days (excepting Saturdays,

19 Sundays, and legal public holidays) after the receipt of such

20 a request, whether to comply with such request. No more

21 than one day after making such determination the agency

22 shall notify the person making a request for expedited access

23 of such determination, the reasons therefor, and of the right

24 to appeal to the head of the agency. A request for records

25 to which the agency has granted expedited access shall be
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1 processed as soon as practicable. A request for records to

2 which the agency has denied expedited access shall be proc3 essed within the time limits under paragraph (6) of this

4 subsection.

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

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

7 or has been denied shall be required to exhaust administra8 tive remedies. A request for expedited access which has not

9 been decided may be appealed to the head of the agency

10 within 7 days (excepting Saturdays, Sundays, and legal

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

12 for expedited access that has been denied by the agency may

13 be appealed to the head of the agency within 2 days (except14 ing Saturdays, Sundays, and legal public holidays) after

15 the person making such request receives notice of the agen16 cy’s denial. If an agency head has denied, affirmed a denial,

17 or failed to respond to a timely appeal of a request for expe18 dited access, a court which would have jurisdiction of an

19 action under paragraph (4)(B) of this subsection may, upon

20 complaint, require the agency to show cause why the request

21 for expedited access should not be granted, except that such

22 review shall be limited to the record before the agency.

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

24 by a person making a request for expedited access may be

25 met by a showing, which such person certifies under penalty
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1 of perjury to be true and correct to the best of such person’s

2 knowledge and belief, that failure to obtain the requested

3 records within the timeframe for expedited access under this

4 paragraph would—

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

6 ‘‘(II) result in the loss of substantial due process

7 rights and the information sought is not otherwise

8 available in a timely fashion; or

9 ‘‘(III) affect public assessment of the nature and

10 propriety of actual or alleged governmental actions

11 that are the subject of widespread, contemporaneous

12 media coverage.’’.

13 SEC. 7. COMPUTER REDACTION.

14 Section 552(b) of title 5, United States Code, is amend15 ed by inserting before the period in the sentence following

16 paragraph (9): ‘‘, and the extent of such deletion shall be

17 indicated on the released portion of the record at the place

18 in the record where such deletion was made’’.

19 SEC. 8. DEFINITIONS.

20 Section 552(f) of title 5, United States Code, is amend21 ed to read as follows:

22 ‘‘(f) For purposes of this section—

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

24 551(1) of this title includes any executive department,

25 military department, Government corporation, Gov-
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1 ernment controlled corporation, or other establishment

2 in the executive branch of the Government (including

3 the Executive Office of the President), or any inde4 pendent regulatory agency;

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

6 maps, photographs, machine-readable materials, or

7 other information or documentary materials, regard8 less of physical form or characteristics; and

9 ‘‘(3) the term ‘search’ means a manual or auto10 mated review of agency records that is conducted for

11 the purpose of locating those records which are re12 sponsive to a request under subsection (a)(3)(A) of

13 this section.’’.

Amend the title so as to read: ‘‘A bill to amend section 552 of title 5, United States Code (commonly known

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

access to information in an electronic format, and for

other purposes.’’.

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