II

104TH CONGRESS

2D SESSION H. R. 3802

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 18, 1996

Received

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

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

3 of Information Act Amendments of 1996’’.

4 SEC. 2. FINDINGS AND PURPOSES.

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

6 (1) the purpose of section 552 of title 5, United

7 States Code, popularly known as the Freedom of In8 formation Act, is to require agencies of the Federal

9 Government to make certain agency information

10 available for public inspection and copying and to es11 tablish and enable enforcement of the right of any

12 person to obtain access to the records of such agen13 cies, subject to statutory exemptions, for any public

14 or private purpose;

15 (2) since the enactment of the Freedom of In16 formation Act in 1966, and the amendments enacted

17 in 1974 and 1986, the Freedom of Information Act

18 has been a valuable means through which any per19 son can learn how the Federal Government operates;

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

21 the disclosure of waste, fraud, abuse, and wrong22 doing in the Federal Government;

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

24 the identification of unsafe consumer products,

25 harmful drugs, and serious health hazards;
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1 (5) Government agencies increasingly use com2 puters to conduct agency business and to store pub3 licly valuable agency records and information; and

4 (6) Government agencies should use new tech5 nology to enhance public access to agency records

6 and information.

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

8 (1) foster democracy by ensuring public access

9 to agency records and information;

10 (2) improve public access to agency records and

11 information;

12 (3) ensure agency compliance with statutory

13 time limits; and

14 (4) maximize the usefulness of agency records

15 and information collected, maintained, used, re16 tained, and disseminated by the Federal

17 Government.

18 SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC

19 FORMAT INFORMATION.

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

21 amended to read as follows:

22 ‘‘(f) For purposes of this section, the term—

23 ‘‘(1) ‘agency’ as defined in section 551(1) of

24 this title includes any executive department, military

25 department, Government corporation, Government
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1 controlled corporation, or other establishment in the

2 executive branch of the Government (including the

3 Executive Office of the President), or any independ4 ent regulatory agency; and

5 ‘‘(2) ‘record’ and any other term used in this

6 section in reference to information includes any in7 formation that would be an agency record subject to

8 the requirements of this section when maintained by

9 an agency in any format, including an electronic for10 mat.’’.

11 SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC

12 FORMAT AND INDEXATION OF RECORDS.

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

14 amended—

15 (1) in the second sentence, by striking ‘‘or staff

16 manual or instruction’’ and inserting ‘‘staff manual,

17 instruction, or copies of records referred to in sub18 paragraph (D)’’;

19 (2) by inserting before the period at the end of

20 the third sentence the following: ‘‘, and the extent of

21 such deletion shall be indicated on the portion of the

22 record which is made available or published, unless

23 including that indication would harm an interest

24 protected by the exemption in subsection (b) under

25 which the deletion is made’’;
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1 (3) by inserting after the third sentence the fol2 lowing: ‘‘If technically feasible, the extent of the de3 letion shall be indicated at the place in the record

4 where the deletion was made.’’;

5 (4) in subparagraph (B), by striking ‘‘and’’

6 after the semicolon;

7 (5) by inserting after subparagraph (C) the

8 following:

9 ‘‘(D) copies of all records, regardless of form or

10 format, which have been released to any person

11 under paragraph (3) and which, because of the na12 ture of their subject matter, the agency determines

13 have become or are likely to become the subject of

14 subsequent requests for substantially the same

15 records; and

16 ‘‘(E) a general index of the records referred to

17 under subparagraph (D);’’;

18 (6) by inserting after the fifth sentence the fol19 lowing: ‘‘Each agency shall make the index referred

20 to in subparagraph (E) available by computer tele21 communications by December 31, 1999.’’; and

22 (7) by inserting after the first sentence the fol23 lowing: ‘‘For records created on or after November

24 1, 1996, within one year after such date, each agen25 cy shall make such records available, including by
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1 computer telecommunications or, if computer tele2 communications means have not been established by

3 the agency, by other electronic means.’’.

4 SEC. 5. HONORING FORM OR FORMAT REQUESTS.

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

6 amended—

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

8 (2) by striking ‘‘(A)’’ the second place it ap9 pears and inserting ‘‘(i)’’;

10 (3) by striking ‘‘(B)’’ and inserting ‘‘(ii)’’; 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, except

23 when such efforts would significantly interfere with the op24 eration of the agency’s automated information system.
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1 ‘‘(D) For purposes of this paragraph, the term

2 ‘search’ means to review, manually or by automated

3 means, agency records for the purpose of locating those

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

5 SEC. 6. STANDARD FOR JUDICIAL REVIEW.

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

7 is amended by adding at the end the following new sen8 tence: ‘‘In addition to any other matters to which a court

9 accords substantial weight, a court shall accord substan10 tial weight to an affidavit of an agency concerning the

11 agency’s determination as to technical feasibility under

12 paragraph (2)(C) and subsection (b) and reproducibility

13 under paragraph (3)(B).’’.

14 SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.

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

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

17 the end the following new subparagraph:

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

19 pursuant to notice and receipt of public comment, provid20 ing for multitrack processing of requests for records based

21 on the amount of work or time (or both) involved in proc22 essing requests.

23 ‘‘(ii) Regulations under this subparagraph may pro24 vide a person making a request that does not qualify for

25 the fastest multitrack processing an opportunity to limit
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1 the scope of the request in order to qualify for faster

2 processing.

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

4 affect the requirement under subparagraph (C) to exercise

5 due diligence.’’.

6 (b) UNUSUAL CIRCUMSTANCES.—Section

7 552(a)(6)(B) of title 5, United States Code, is amended

8 to read as follows:

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

10 subparagraph, the time limits prescribed in either clause

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

12 by written notice to the person making such request set13 ting forth the unusual circumstances for such extension

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

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

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

17 except as provided in clause (ii) of this subparagraph.

18 ‘‘(ii) With respect to a request for which a written

19 notice under clause (i) extends the time limits prescribed

20 under clause (i) of subparagraph (A), the agency shall no21 tify the person making the request if the request cannot

22 be processed within the time limit specified in that clause

23 and shall provide the person an opportunity to limit the

24 scope of the request so that it may be processed within

25 that time limit or an opportunity to arrange with the agen-
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1 cy an alternative time frame for processing the request

2 or a modified request. Refusal by the person to reasonably

3 modify the request or arrange such an alternative time

4 frame shall be considered as a factor in determining

5 whether exceptional circumstances exist for purposes of

6 subparagraph (C).

7 ‘‘(iii) As used in this subparagraph, ‘unusual cir8 cumstances’ means, but only to the extent reasonably nec9 essary to the proper processing of the particular re10 quests—

11 ‘‘(I) the need to search for and collect the re12 quested records from field facilities or other estab13 lishments that are separate from the office process14 ing the request;

15 ‘‘(II) the need to search for, collect, and appro16 priately examine a voluminous amount of separate

17 and distinct records which are demanded in a single

18 request; or

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

20 conducted with all practicable speed, with another

21 agency having a substantial interest in the deter22 mination of the request or among two or more com23 ponents of the agency having substantial subject24 matter interest therein.
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1 ‘‘(iv) Each agency may promulgate regulations, pur2 suant to notice and receipt of public comment, providing

3 for the aggregation of certain requests by the same reques4 tor, or by a group of requestors acting in concert, if the

5 agency reasonably believes that such requests actually con6 stitute a single request, which would otherwise satisfy the

7 unusual circumstances specified in this subparagraph, and

8 the requests involve clearly related matters. Multiple re9 quests involving unrelated matters shall not be aggre10 gated.’’.

11 (c) EXCEPTIONAL CIRCUMSTANCES.—Section

12 552(a)(6)(C) of title 5, United States Code, is amended

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

14 the following new clauses:

15 ‘‘(ii) For purposes of this subparagraph, the term ‘ex16 ceptional circumstances’ does not include a delay that re17 sults from a predictable agency workload of requests

18 under this section, unless the agency demonstrates reason19 able progress in reducing its backlog of pending requests.

20 ‘‘(iii) Refusal by a person to reasonably modify the

21 scope of a request or arrange an alternative time frame

22 for processing a request (or a modified request) under

23 clause (ii) after being given an opportunity to do so by

24 the agency to whom the person made the request shall

25 be considered as a factor in determining whether excep-
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1 tional circumstances exist for purposes of this subpara2 graph.’’.

3 SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF

4 REQUESTS.

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

6 title 5, United States Code (as amended by section 7(a)

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

8 following new subparagraph:

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

10 pursuant to notice and receipt of public comment, provid11 ing for expedited processing of requests for records—

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

13 records demonstrates a compelling need; and

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

15 ‘‘(ii) Notwithstanding clause (i), regulations under

16 this subparagraph must ensure—

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

18 expedited processing shall be made, and notice of the

19 determination shall be provided to the person mak20 ing the request, within 10 days after the date of the

21 request; and

22 ‘‘(II) expeditious consideration of administrative

23 appeals of such determinations of whether to provide

24 expedited processing.
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1 ‘‘(iii) An agency shall process as soon as practicable

2 any request for records to which the agency has granted

3 expedited processing under this subparagraph. Agency ac4 tion to deny or affirm denial of a request for expedited

5 processing pursuant to this subparagraph, and failure by

6 an agency to respond in a timely manner to such a request

7 shall be subject to judicial review under paragraph (4),

8 except that the judicial review shall be based on the record

9 before the agency at the time of the determination.

10 ‘‘(iv) A district court of the United States shall not

11 have jurisdiction to review an agency denial of expedited

12 processing of a request for records after the agency has

13 provided a complete response to the request.

14 ‘‘(v) For purposes of this subparagraph, the term

15 ‘compelling need’ means—

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

17 on an expedited basis under this paragraph could

18 reasonably be expected to pose an imminent threat

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

20 ‘‘(II) with respect to a request made by a per21 son primarily engaged in disseminating information,

22 urgency to inform the public concerning actual or al23 leged Federal Government activity.

24 ‘‘(vi) A demonstration of a compelling need by a per25 son making a request for expedited processing shall be
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1 made by a statement certified by such person to be true

2 and correct to the best of such person’s knowledge and

3 belief.’’.

4 (b) EXTENSION OF GENERAL PERIOD FOR DETER5 MINING WHETHER TO COMPLY WITH A REQUEST.—Sec6 tion 552(a)(6)(A)(i) of title 5, United States Code, is

7 amended by striking ‘‘ten days’’ and inserting ‘‘20 days’’.

8 (c) ESTIMATION OF MATTER DENIED.—Section

9 552(a)(6) of title 5, United States Code (as amended by

10 section 7 of this Act and subsection (a) of this section),

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

12 subparagraph:

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

14 in part, an agency shall make a reasonable effort to esti15 mate the volume of any requested matter the provision of

16 which is denied, and shall provide any such estimate to

17 the person making the request, unless providing such esti18 mate would harm an interest protected by the exemption

19 in subsection (b) pursuant to which the denial is made.’’.

20 SEC. 9. COMPUTER REDACTION.

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

22 amended in the matter following paragraph (9) by insert23 ing after the period the following: ‘‘The amount of infor24 mation deleted shall be indicated on the released portion

25 of the record, unless including that indication would harm
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1 an interest protected by the exemption in this subsection

2 under which the deletion is made. If technically feasible,

3 the amount of the information deleted shall be indicated

4 at the place in the record where such deletion is made.’’.

5 SEC. 10. REPORT TO THE CONGRESS.

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

7 amended to read as follows:

8 ‘‘(e)(1) On or before February 1 of each year, each

9 agency shall submit to the Attorney General of the United

10 States a report which shall cover the preceding fiscal year

11 and which shall include—

12 ‘‘(A) the number of determinations made by the

13 agency not to comply with requests for records made

14 to such agency under subsection (a) and the reasons

15 for each such determination;

16 ‘‘(B)(i) the number of appeals made by persons

17 under subsection (a)(6), the result of such appeals,

18 and the reason for the action upon each appeal that

19 results in a denial of information; and

20 ‘‘(ii) a complete list of all statutes that the

21 agency relies upon to authorize the agency to with22 hold information under subsection (b)(3), a descrip23 tion of whether a court has upheld the decision of

24 the agency to withhold information under each such
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1 statute, and a concise description of the scope of any

2 information withheld;

3 ‘‘(C) the number of requests for records pend4 ing before the agency as of September 30 of the pre5 ceding year, and the median number of days that

6 such requests had been pending before the agency as

7 of that date;

8 ‘‘(D) the number of requests for records re9 ceived by the agency and the number of requests

10 which the agency processed;

11 ‘‘(E) the median number of days taken by the

12 agency to process different types of requests;

13 ‘‘(F) the total amount of fees collected by the

14 agency for processing requests; and

15 ‘‘(G) the number of full-time staff of the agency

16 devoted to processing requests for records under this

17 section, and the total amount expended by the agen18 cy for processing such requests.

19 ‘‘(2) Each agency shall make each such report avail20 able to the public including by computer telecommuni21 cations, or if computer telecommunications means have

22 not been established by the agency, by other electronic

23 means.

24 ‘‘(3) The Attorney General of the United States shall

25 make each report which has been made available by elec-
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1 tronic means available at a single electronic access point.

2 The Attorney General of the United States shall notify

3 the Chairman and ranking minority member of the Com4 mittee on Government Reform and Oversight of the House

5 of Representatives and the Chairman and ranking minor6 ity member of the Committees on Governmental Affairs

7 and the Judiciary of the Senate, no later than April 1 of

8 the year in which each such report is issued, that such

9 reports are available by electronic means.

10 ‘‘(4) The Attorney General of the United States, in

11 consultation with the Director of the Office of Manage12 ment and Budget, shall develop reporting and perform13 ance guidelines in connection with reports required by this

14 subsection by October 1, 1997, and may establish addi15 tional requirements for such reports as the Attorney Gen16 eral determines may be useful.

17 ‘‘(5) The Attorney General of the United States shall

18 submit an annual report on or before April 1 of each cal19 endar year which shall include for the prior calendar year

20 a listing of the number of cases arising under this section,

21 the exemption involved in each case, the disposition of

22 such case, and the cost, fees, and penalties assessed under

23 subparagraphs (E), (F), and (G) of subsection (a)(4).

24 Such report shall also include a description of the efforts
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1 undertaken by the Department of Justice to encourage

2 agency compliance with this section.’’.

3 SEC. 11. REFERENCE MATERIALS AND GUIDES.

4 Section 552 of title 5, United States Code, is amend5 ed by adding after subsection (f) the following new sub6 section:

7 ‘‘(g) The head of each agency shall prepare and make

8 publicly available upon request, reference material or a

9 guide for requesting records or information from the agen10 cy, subject to the exemptions in subsection (b), includ11 ing—

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

13 of the agency;

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

15 record locator systems maintained by the agency;

16 and

17 ‘‘(3) a handbook for obtaining various types

18 and categories of public information from the agency

19 pursuant to chapter 35 of title 44, and under this

20 section.’’.

21 SEC. 12. EFFECTIVE DATE.

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

23 (b), this Act shall take effect 180 days after the date of

24 the enactment of this Act.
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1 (b) PROVISIONS EFFECTIVE ON ENACTMENT.—Sec2 tions 7 and 8 shall take effect one year after the date

3 of the enactment of this Act.

Passed the House of Representatives September 17,

1996.

Attest: ROBIN H. CARLE,

Clerk.