IIA

103D CONGRESS

2D SESSION S. 1782

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 12, 1994

Referred to the Committee on Government Operations

AN ACT

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

provide for public access to information in an electronic

format, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

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

5 of Information Improvement Act of 1994’’.
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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 Govern5 ment to make certain agency information available

6 for public inspection and copying and to establish

7 and enable enforcement of the right of any person

8 to obtain access to the records of such agencies

9 (subject to statutory exemptions) for any public or

10 private purpose;

11 (2) since the enactment of the Freedom of In12 formation Act in 1966, and the amendments enacted

13 in 1974 and 1986, the Freedom of Information Act

14 has been a valuable means through which any per15 son can learn how the Federal Government operates;

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

17 the disclosure of waste, fraud, abuse, and wrong18 doing in the Federal Government;

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

20 the identification of unsafe consumer products,

21 harmful drugs, and serious health hazards;

22 (5) Government agencies increasingly use com23 puters to conduct agency business and to store pub24 licly valuable agency records and information; and
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1 (6) Government agencies should use new tech2 nology to enhance public access to agency records

3 and information.

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

5 (1) foster democracy by ensuring public access

6 to agency records and information;

7 (2) improve public access to agency records and

8 information;

9 (3) ensure agency compliance with statutory

10 time limits; and

11 (4) maximize the usefulness of agency records

12 and information collected, maintained, used, re13 tained, and disseminated by the Federal Govern14 ment.

15 SEC. 3. PUBLIC INFORMATION AVAILABILITY.

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

17 amended—

18 (1) in the first sentence by inserting ‘‘by com19 puter telecommunications, or if computer tele20 communications means are not available, by other

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

22 (2) by striking out ‘‘and’’ at the end of sub23 paragraph (D);

24 (3) by redesignating subparagraph (E) as sub25 paragraph (F); and
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1 (4) by inserting after subparagraph (D) the fol2 lowing new subparagraph:

3 ‘‘(E) a complete list of all statutes that the

4 agency head or general counsel relies upon to au5 thorize the agency to withhold information under

6 subsection (b)(3) of this section, together with a spe7 cific description of the scope of the information cov8 ered; and’’.

9 SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FOR10 MAT.

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

12 amended—

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

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

15 Electronic Freedom of Information Improvement Act

16 of 1994, by computer telecommunications, or if com17 puter telecommunications means are not available,

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

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

20 after the semicolon;

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

22 after the semicolon;

23 (4) by adding after subparagraph (C) the fol24 lowing new subparagraphs:
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1 ‘‘(D) an index of all major information systems

2 containing agency records regardless of form or for3 mat unless such an index is provided as otherwise

4 required by law; and

5 ‘‘(E) a description of any new major informa6 tion system with a statement of how such system

7 shall enhance agency operations under this section;’’;

8 and

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

10 extent of such deletion shall be indicated on the por11 tion of the record which is made available or pub12 lished at the place in the record where such deletion

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

14 SEC. 5. LIST OF RECORDS MADE AVAILABLE TO THE PUB15 LIC AND HONORING FORMAT REQUESTS.

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

17 amended by—

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

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

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

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

22 thereof ‘‘(ii)’’; and

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

24 subparagraphs:
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1 ‘‘(B) A list of all records which are made available

2 to any person under this paragraph shall be made avail3 able for public inspection and copying as provided under

4 paragraph (2) of this subsection. Copies of all such

5 records, regardless of form or format, which because of

6 the nature of their subject matter, have become or are

7 likely to become the subject of subsequent requests under

8 this paragraph for substantially the same records, shall

9 be made available for inspection and copying as provided

10 under paragraph (2) of this subsection.

11 ‘‘(C) An agency shall, as requested by any person,

12 provide records in any form or format in which such

13 records are maintained by that agency.

14 ‘‘(D) An agency shall make reasonable efforts to pro15 vide records in the form or format requested by any per16 son, including in an electronic form or format, even where

17 such records are not usually maintained but are available

18 in such form or format.’’.

19 SEC. 6. DELAYS.

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

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

22 following new clause:

23 ‘‘(viii) If at an agency’s request, the Comptroller Gen24 eral determines that the agency annually has either pro25 vided responsive documents or denied requests in substan-
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1 tial compliance with the requirements of paragraph

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

3 shall be credited to the collecting agency and expended to

4 offset the costs of complying with this section through

5 staff development and acquisition of additional request

6 processing resources. The remaining fees collected under

7 this section shall be remitted to the Treasury as general

8 funds or miscellaneous receipts.’’.

9 (b) PAYMENT OF THE EXPENSES OF THE PERSON

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

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

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

13 against the United States all out-of-pocket expenses in14 curred by the person making a request, and reasonable

15 attorney fees incurred in the administrative process, in

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

17 the time limit provisions of paragraph (6) of this sub18 section.’’.

19 (c) DEMONSTRATION OF CIRCUMSTANCES FOR

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

21 Code, is further amended—

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

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

24 new clause:
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1 ‘‘(ii) Any agency not in compliance with the time lim2 its set forth in this subsection shall demonstrate to a court

3 that the delay is warranted under the circumstances set

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

5 (d) PERIOD FOR AGENCY DECISION TO COMPLY

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

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

8 ‘‘twenty days’’.

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

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

11 the second sentence the following: ‘‘As used in this sub12 paragraph, ‘exceptional circumstances’ shall be unforeseen

13 and shall not include delays that result from a predictable

14 workload, including any ongoing agency backlog, in the

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

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

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

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

19 denial of any request for records under this subsection

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

21 person responsible for the denial of such request and the

22 total number of denied records and pages considered by

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

24 (g) MULTITRACK FIFO PROCESSING AND EXPE25 DITED ACCESS.—Section 552(a)(6) of title 5, United
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1 States Code, is amended by adding at the end thereof the

2 following new subparagraphs:

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

4 (hereafter in this subparagraph referred to as FIFO)

5 processing policy in determining the order in which re6 quests are processed. The agency may establish separate

7 processing tracks for simple and complex requests using

8 FIFO processing within each track.

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

10 ‘‘(I) a simple request shall be a request requir11 ing 10 days or less to make a determination on

12 whether to comply with such a request; and

13 ‘‘(II) a complex request shall be a request re14 quiring more than 10 days to make a determination

15 on whether to comply with such a request.

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

17 of due diligence under subparagraph (C), if FIFO process18 ing within each track is maintained and the agency can

19 show that it has reasonably allocated resources to handle

20 the processing for each track.

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

22 pursuant to notice and receipt of public comment, provid23 ing that upon receipt of a request for expedited access to

24 records and a showing by the person making such request

25 of a compelling need for expedited access to records, the
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1 agency shall determine within 5 days (excepting Satur2 days, Sundays, and legal public holidays) after the receipt

3 of such a request, whether to comply with such request.

4 No more than one day after making such determination

5 the agency shall notify the person making a request for

6 expedited access of such determination, the reasons there7 for, and of the right to appeal to the head of the agency.

8 A request for records to which the agency has granted ex9 pedited access shall be processed as soon as practicable.

10 A request for records to which the agency has denied expe11 dited access shall be processed within the time limits

12 under paragraph (6) of this subsection.

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

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

15 or has been denied shall be required to exhaust adminis16 trative remedies. A request for expedited access which has

17 not been decided may be appealed to the head of the agen18 cy within 7 days (excepting Saturdays, Sundays, and legal

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

20 for expedited access that has been denied by the agency

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

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

23 after the person making such request receives notice of

24 the agency’s denial. If an agency head has denied, af25 firmed a denial, or failed to respond to a timely appeal
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1 of a request for expedited access, a court which would have

2 jurisdiction of an action under paragraph (4)(B) of this

3 subsection may, upon complaint, require the agency to

4 show cause why the request for expedited access should

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

6 to the record before the agency.

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

8 by a person making a request for expedited access may

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

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

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

12 the requested records within the timeframe for expedited

13 access under this paragraph would—

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

15 ‘‘(II) result in the loss of substantial due proc16 ess rights and the information sought is not other17 wise available in a timely fashion; or

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

19 and propriety of actual or alleged governmental ac20 tions that are the subject of widespread, contem21 poraneous media coverage.’’.

22 SEC. 7. 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 the extent of such deletion
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1 shall be indicated on the released portion of the record

2 at the place in the record where such deletion was made’’.

3 SEC. 8. 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’ means all books, papers,

15 maps, photographs, machine-readable materials, or

16 other information or documentary materials, regard17 less of physical form or characteristics; and

18 ‘‘(3) the term ‘search’ means a manual or auto19 mated review of agency records that is conducted for

20 the purpose of locating those records which are re21 sponsive to a request under subsection (a)(3)(A) of

22 this section.’’.

Passed the Senate August 25 (legislative day, August 18), 1994.

Attest: MARTHA S. POPE,

Secretary.