I

104TH CONGRESS

2D SESSION H. R. 3802

To amend section 552 of title 5, United States Code, popularly known

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

information in an electronic format, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 12, 1996

Mr. TATE (for himself, Mr. HORN, Mrs. MALONEY, and Mr. PETERSON of

Minnesota) introduced the following bill; which was referred to the Committee on Government Reform and Oversight

A BILL

To amend section 552 of title 5, United States Code, popularly 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 Amendments of 1996’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—The Congress finds that—
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1 (1) the purpose of section 552 of title 5, United

2 States Code, popularly known as the Freedom of In3 formation Act, is to require agencies of the Federal

4 Government to make certain agency information

5 available for public inspection and copying and to es6 tablish and enable enforcement of the right of any

7 person to obtain access to the records of such agen8 cies, subject to statutory exemptions, for any public

9 or private purpose;

10 (2) since the enactment of the Freedom of In11 formation Act in 1966, and the amendments enacted

12 in 1974 and 1986, the Freedom of Information Act

13 has been a valuable means through which any per14 son can learn how the Federal Government operates;

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

16 the disclosure of waste, fraud, abuse, and wrong17 doing in the Federal Government;

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

19 the identification of unsafe consumer products,

20 harmful 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
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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. APPLICATION OF REQUIREMENTS TO ELECTRONIC

16 FORMAT INFORMATION.

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

18 amended—

19 (1) by redesignating such section as section

20 (f)(1);

21 (2) by striking the period at the end and insert22 ing ‘‘; and’’; and

23 (3) by adding at the end the following:

24 ‘‘(2) For purposes of this section, ‘information’,

25 ‘record’, and any other term used in this section in ref-
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1 erence to information includes such information main2 tained in an electronic format.’’.

3 SEC. 4. HONORING FORM OR FORMAT REQUESTS.

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

5 amended—

6 (1) by inserting ‘‘(A)’’ after ‘‘(3)’’;

7 (2) by striking out ‘‘(A)’’ the second place it

8 appears and inserting ‘‘(i)’’;

9 (3) by striking out ‘‘(B)’’ and inserting ‘‘(ii)’’;

10 and

11 (4) by adding at the end the following new sub12 paragraphs:

13 ‘‘(B) In making any record available to a person

14 under this paragraph, an agency shall provide the record

15 in any form or format requested by the person if the

16 record is readily reproducible by the agency in that form

17 or format. Each agency shall make reasonable efforts to

18 maintain its records in forms or formats that are repro19 ducible for purposes of this section.

20 ‘‘(C) In responding under this paragraph to a request

21 for records, an agency shall make reasonable efforts to

22 search for the records in electronic form or format.

23 ‘‘(D) For purposes of this paragraph, the term

24 ‘search’ means to review, manually or by automated
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1 means, agency records for the purpose of locating those

2 records which are responsive to a request.’’.

3 SEC. 5. STANDARD FOR JUDICIAL REVIEW.

4 Section 552(a)(4)(B) of title 5, United States Code,

5 is amended by adding at the end the following new sen6 tence: ‘‘A court shall accord substantial weight to an affi7 davit of an agency concerning the agency’s determination

8 as to technical feasibility under paragraph (2)(C) and sub9 section (b) and reproducibility under paragraph (3)(B).’’.

10 SEC. 6. ENSURING TIMELY RESPONSE TO REQUESTS.

11 (a) MULTITRACK PROCESSING.—Section 552(a)(6)

12 of title 5, United States Code, is amended by adding at

13 the end the following new subparagraph:

14 ‘‘(D)(i) Each agency may promulgate regulations,

15 pursuant to notice and receipt of public comment, provid16 ing for multitrack processing of requests for records or

17 information.

18 ‘‘(ii) Regulations under this subparagraph may pro19 vide a person making a request that does not qualify for

20 the fastest multitrack processing an opportunity to limit

21 the scope of the request in order to qualify for faster proc22 essing.

23 ‘‘(iii) This subparagraph shall not be considered to

24 affect the requirement under subparagraph (C) to exercise

25 due diligence.’’.
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1 (b) UNUSUAL CIRCUMSTANCES.—Section

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

3 to read as follows:

4 ‘‘(B)(i) In unusual circumstances as specified in this

5 subparagraph, the time limits prescribed in either clause

6 (i) or clause (ii) of subparagraph (A) may be extended

7 by written notice to the person making such request set8 ting forth the unusual circumstances for such extension

9 and the date on which a determination is expected to be

10 dispatched. No such notice shall specify a date that would

11 result in an extension for more than ten working days,

12 unless the person making the request has (I) agreed upon

13 a longer timeframe for processing the request, or (II) re14 fused to reasonably modify the request. In the event that

15 the person making the request refuses to agree upon a

16 reasonable timeframe for processing the request or to rea17 sonably modify the request, the agency may offer such re18 fusal as evidence of exceptional circumstances under sub19 paragraph (C).

20 ‘‘(ii) As used in this subparagraph, ‘unusual cir21 cumstances’ means, but only to the extent reasonably nec22 essary to the proper processing of the particular re23 quests—

24 ‘‘(I) the need to search for and collect the re25 quested records from field facilities or other estab-
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1 lishments that are separate from the office process2 ing the request;

3 ‘‘(II) the need to search for, collect, and appro4 priately examine a voluminous amount of separate

5 and distinct records which are demanded in a single

6 request; or

7 ‘‘(III) the need for consultation, which shall be

8 conducted with all practicable speed, with another

9 agency having a substantial interest in the deter10 mination of the request or among two or more com11 ponents of the agency having substantial subject12 matter interest therein.’’.

13 (c) EXCEPTIONAL CIRCUMSTANCES.—Section

14 552(a)(6)(C) of title 5, United States Code, is amended

15 by inserting ‘‘(i)’’ after ‘‘(C)’’, and by adding at the end

16 the following new clauses:

17 ‘‘(ii) For purposes of this subparagraph, the term ‘ex18 ceptional circumstances’ does not include a delay that re19 sults from a predictable agency workload of requests

20 under this section.

21 ‘‘(iii) If a person refuses to reasonably modify the

22 scope of a request under this section after being requested

23 to do so by the agency to whom the person made the re24 quest, such refusal may be considered evidence of excep25 tional circumstances.
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1 ‘‘(iv) In determining whether exceptional cir2 cumstances exist, a court may consider the efforts by an

3 agency to reduce the number of pending requests under

4 this section.’’.

5 SEC. 7. TIME PERIOD FOR AGENCY CONSIDERATION OF RE6 QUESTS.

7 (a) EXPEDITED PROCESSING.—Section 552(a)(6) of

8 title 5, United States Code (as amended by section 6(a)

9 of this Act), is further amended by adding at the end the

10 following new subparagraph:

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

12 pursuant to notice and receipt of public comment, provid13 ing for expedited processing of requests for records—

14 ‘‘(I) in cases in which the person requesting the

15 records demonstrates a compelling need; and

16 ‘‘(II) in other cases determined by the agency.

17 ‘‘(ii) Notwithstanding subparagraph (A)(i), regula18 tions under this subparagraph must ensure—

19 ‘‘(I) that a determination of whether to provide

20 expedited processing shall be made, and notice of the

21 determination shall be provided to the person mak22 ing the request, within 10 days after the date of the

23 request; and
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1 ‘‘(II) expeditious consideration of administrative

2 appeals of such determinations of whether to provide

3 expedited processing.

4 ‘‘(iii) Agency action to deny or affirm denial of a re5 quest for expedited processing pursuant to this subpara6 graph, and failure by an agency to respond timely to such

7 a request—

8 ‘‘(I) may only be for cause; and

9 ‘‘(II) shall be subject to judicial review under

10 paragraph (4), except that the judicial review shall

11 be based on the record before the agency at the time

12 of the determination.

13 ‘‘(iv) For purposes of this subparagraph, the term

14 ‘compelling need’ means—

15 ‘‘(I) that a failure to obtain requested records

16 on an expedited basis under this paragraph could

17 reasonably be expected to pose an imminent threat

18 to the life or physical safety of an individual; or

19 ‘‘(II) with respect to a request made by a per20 son engaged in disseminating information, compel21 ling urgency to the public.’’.

22 (b) EXTENSION OF GENERAL PERIOD FOR DETER23 MINING WHETHER TO COMPLY WITH A REQUEST.—Sec24 tion 552(a)(6)(A)(i) of title 5, United States Code, is

25 amended by striking ‘‘ten days’’ and inserting ‘‘20 days’’.
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1 (c) ESTIMATION OF MATTER DENIED.—Section

2 552(a)(6) of title 5 United States Code (as amended by

3 section 6 of this Act and subsection (a) of this section),

4 is further amended by adding at the end the following new

5 subparagraph:

6 ‘‘(F) In denying a request for records, in whole or

7 in part, an agency shall make a reasonable effort to esti8 mate the volume of any requested matter the provision of

9 which is denied, and provide any such estimate to the per10 son making the request.’’.

11 SEC. 8. COMPUTER REDACTION.

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

13 amended in the matter following paragraph (9) by striking

14 the period and inserting the following: ‘‘The deletions shall

15 be indicated on the released portion of the record. If tech16 nically feasible, each deletion shall be indicated at the

17 place in the record where such deletion was made.’’.

18 SEC. 9. AGENCY REPORTS.

19 (a) CONTENTS OF ANNUAL REPORTS.—Section

20 552(e) of title 5, United States Code, is amended—

21 (1) in paragraph (6), by striking ‘‘and’’ after

22 the semicolon;

23 (2) by redesignating paragraph (7) as para24 graph (10); and
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1 (3) by inserting after paragraph (6) the follow2 ing new paragraphs:

3 ‘‘(7) a complete list of all statutes relied on by

4 the agency to authorize the agency to withhold infor5 mation, and a description of the scope of informa6 tion withholdable;

7 ‘‘(8) the time estimated to be necessary for the

8 agency to complete requests for information of dif9 ferent categories of size and complexity in the fu10 ture;

11 ‘‘(9) reference materials and guides made avail12 able by the agency under subsection (g); and’’.

13 (b) ELECTRONIC AVAILABILITY.—Section 552 of title

14 5, United States Code, is amended by redesignating sub15 section (f) as subsection (h), and by inserting after sub16 section (e) the following new subsection:

17 ‘‘(f)(1) The head of each agency shall make informa18 tion contained in the reports of the agency under sub19 section (e) available to the public—

20 ‘‘(A) by means of computer telecommunications;

21 or

22 ‘‘(B) if computer telecommunications means

23 have not been established by an agency, by other

24 electronic means.
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1 ‘‘(2) The Administrator of the Office of Information

2 and Regulatory Affairs in the Office of Management and

3 Budget shall establish a single electronic access point for

4 all agency reports under subsection (e). The Administrator

5 may delegate this responsibility to the head of any other

6 appropriate agency.

7 ‘‘(3) This subsection shall apply to agency reports

8 under subsection (e) submitted after the conclusion of the

9 first fiscal year beginning after the date of the enactment

10 of the Electronic Freedom of Information Amendments of

11 1996.’’.

12 SEC. 10. REFERENCE MATERIALS AND GUIDES.

13 Section 552 of title 5, United States Code, as amend14 ed by section 9(b) of this Act, is further amended by in15 serting after subsection (f) the following new subsection:

16 ‘‘(g) The head of each agency shall make available

17 to the public, reference material or a guide for requesting

18 records or information from the agency, including—

19 ‘‘(1) an index of all major information systems

20 of the agency; and

21 ‘‘(2) a description of major information and

22 record locator systems maintained by the agency.’’.
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1 SEC. 11. EFFECTIVE DATE.

2 (a) IN GENERAL.—Except as provided in subsection

3 (b), this Act shall take effect 90 days after the date of

4 the enactment of this Act.

5 (b) PROVISIONS EFFECTIVE ON ENACTMENT.—Sec6 tions 6 and 7 shall take effect one year after the date

7 of the enactment of this Act.

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