H. R. 3802

One Hundred Fourth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Wednesday,

the third day of January, one thousand nine hundred and ninety-six

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.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

Act Amendments of 1996’’.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—The Congress finds that—

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

Code, popularly known as the Freedom of Information Act,

is to require agencies of the Federal Government to make

certain agency information available for public inspection and

copying and to establish and enable enforcement of the right

of any person to obtain access to the records of such agencies,

subject to statutory exemptions, for any public or private purpose;

(2) since the enactment of the Freedom of Information

Act in 1966, and the amendments enacted in 1974 and 1986,

the Freedom of Information Act has been a valuable means

through which any person can learn how the Federal Government operates;

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

of waste, fraud, abuse, and wrongdoing in the Federal Government;

(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious

health hazards;

(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency

records and information; and

(6) Government agencies should use new technology to

enhance public access to agency records and information.

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

(1) foster democracy by ensuring public access to agency

records and information;

(2) improve public access to agency records and information;

(3) ensure agency compliance with statutory time

limits; and
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(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated

by the Federal Government.

SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT

INFORMATION.

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

read as follows:

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

‘‘(1) ‘agency’ as defined in section 551(1) of this title includes

any executive department, military department, Government

corporation, Government controlled corporation, or other

establishment in the executive branch of the Government

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

independent regulatory agency; and

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

reference to information includes any information that would

be an agency record subject to the requirements of this section

when maintained by an agency in any format, including an

electronic format.’’.

SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND

INDEXATION OF RECORDS.

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

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

or instruction’’ and inserting ‘‘staff manual, instruction, or copies of records referred to in subparagraph (D)’’;

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

sentence the following: ‘‘, and the extent of such deletion shall

be indicated on the portion of the record which is made available

or published, unless including that indication would harm an

interest protected by the exemption in subsection (b) under

which the deletion is made’’;

(3) by inserting after the third sentence the following:

‘‘If technically feasible, the extent of the deletion shall be

indicated at the place in the record where the deletion was

made.’’;

(4) in subparagraph (B), by striking ‘‘and’’ after the semicolon;

(5) by inserting after subparagraph (C) the following:

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

which have been released to any person under paragraph (3)

and which, because of the nature of their subject matter, the

agency determines have become or are likely to become the

subject of subsequent requests for substantially the same

records; and

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

subparagraph (D);’’;

(6) by inserting after the fifth sentence the following: ‘‘Each

agency shall make the index referred to in subparagraph (E)

available by computer telecommunications by December 31,

1999.’’; and

(7) by inserting after the first sentence the following: ‘‘For

records created on or after November 1, 1996, within one year

after such date, each agency shall make such records available,

including by computer telecommunications or, if computer telecommunications means have not been established by the

agency, by other electronic means.’’.
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SEC. 5. HONORING FORM OR FORMAT REQUESTS.

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

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

(2) by striking ‘‘(A)’’ the second place it appears and

inserting ‘‘(i)’’;

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

(4) by adding at the end the following new subparagraphs:

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

paragraph, an agency shall provide the record in any form or

format requested by the person if the record is readily reproducible

by the agency in that form or format. Each agency shall make

reasonable efforts to maintain its records in forms or formats that

are reproducible for purposes of this section.

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

records, an agency shall make reasonable efforts to search for

the records in electronic form or format, except when such efforts

would significantly interfere with the operation of the agency’s

automated information system.

‘‘(D) For purposes of this paragraph, the term ‘search’ means

to review, manually or by automated means, agency records for

the purpose of locating those records which are responsive to a

request.’’.

SEC. 6. STANDARD FOR JUDICIAL REVIEW.

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

by adding at the end the following new sentence: ‘‘In addition

to any other matters to which a court accords substantial weight,

a court shall accord substantial weight to an affidavit of an agency

concerning the agency’s determination as to technical feasibility

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

paragraph (3)(B).’’.

SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.

(a) MULTITRACK PROCESSING.—Section 552(a)(6) of title 5,

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

new subparagraph:

‘‘(D)(i) Each agency may promulgate regulations, pursuant to

notice and receipt of public comment, providing for multitrack

processing of requests for records based on the amount of work

or time (or both) involved in processing requests.

‘‘(ii) Regulations under this subparagraph may provide a person

making a request that does not qualify for the fastest multitrack

processing an opportunity to limit the scope of the request in

order to qualify for faster processing.

‘‘(iii) This subparagraph shall not be considered to affect the

requirement under subparagraph (C) to exercise due diligence.’’.

(b) UNUSUAL CIRCUMSTANCES.—Section 552(a)(6)(B) of title 5,

United States Code, is amended to read as follows:

‘‘(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause

(ii) of subparagraph (A) may be extended by written notice to

the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify

a date that would result in an extension for more than ten working

days, except as provided in clause (ii) of this subparagraph.
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‘‘(ii) With respect to a request for which a written notice under

clause (i) extends the time limits prescribed under clause (i) of

subparagraph (A), the agency shall notify the person making the

request if the request cannot be processed within the time limit

specified in that clause and shall provide the person an opportunity

to limit the scope of the request so that it may be processed

within that time limit or an opportunity to arrange with the agency

an alternative time frame for processing the request or a modified

request. Refusal by the person to reasonably modify the request

or arrange such an alternative time frame shall be considered

as a factor in determining whether exceptional circumstances exist

for purposes of subparagraph (C).

‘‘(iii) As used in this subparagraph, ‘unusual circumstances’

means, but only to the extent reasonably necessary to the proper

processing of the particular requests—

‘‘(I) the need to search for and collect the requested records

from field facilities or other establishments that are separate

from the office processing the request;

‘‘(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which

are demanded in a single request; or

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

with all practicable speed, with another agency having a

substantial interest in the determination of the request or

among two or more components of the agency having substantial subject-matter interest therein.

‘‘(iv) Each agency may promulgate regulations, pursuant to

notice and receipt of public comment, providing for the aggregation

of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such

requests actually constitute a single request, which would otherwise

satisfy the unusual circumstances specified in this subparagraph,

and the requests involve clearly related matters. Multiple requests

involving unrelated matters shall not be aggregated.’’.

(c) EXCEPTIONAL CIRCUMSTANCES.—Section 552(a)(6)(C) of title

5, United States Code, is amended by inserting ‘‘(i)’’ after ‘‘(C)’’,

and by adding at the end the following new clauses:

‘‘(ii) For purposes of this subparagraph, the term ‘exceptional

circumstances’ does not include a delay that results from a predictable agency workload of requests under this section, unless the

agency demonstrates reasonable progress in reducing its backlog

of pending requests.

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

a request or arrange an alternative time frame for processing a

request (or a modified request) under clause (ii) after being given

an opportunity to do so by the agency to whom the person made

the request shall be considered as a factor in determining whether

exceptional circumstances exist for purposes of this subparagraph.’’.

SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.

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

States Code (as amended by section 7(a) of this Act), is further

amended by adding at the end the following new subparagraph:

‘‘(E)(i) Each agency shall promulgate regulations, pursuant to

notice and receipt of public comment, providing for expedited

processing of requests for records—
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‘‘(I) in cases in which the person requesting the records

demonstrates a compelling need; and

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

‘‘(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—

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

processing shall be made, and notice of the determination shall

be provided to the person making the request, within 10 days

after the date of the request; and

‘‘(II) expeditious consideration of administrative appeals

of such determinations of whether to provide expedited processing.

‘‘(iii) An agency shall process as soon as practicable any request

for records to which the agency has granted expedited processing

under this subparagraph. Agency action to deny or affirm denial

of a request for expedited processing pursuant to this subparagraph,

and failure by an agency to respond in a timely manner to such

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

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

the agency at the time of the determination.

‘‘(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request

for records after the agency has provided a complete response

to the request.

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

need’ means—

‘‘(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected

to pose an imminent threat to the life or physical safety of

an individual; or

‘‘(II) with respect to a request made by a person primarily

engaged in disseminating information, urgency to inform the

public concerning actual or alleged Federal Government

activity.

‘‘(vi) A demonstration of a compelling need by a person making

a request for expedited processing shall be made by a statement

certified by such person to be true and correct to the best of

such person’s knowledge and belief.’’.

(b) EXTENSION OF GENERAL PERIOD FOR DETERMINING

WHETHER TO COMPLY WITH A REQUEST.—Section 552(a)(6)(A)(i)

of title 5, United States Code, is amended by striking ‘‘ten days’’

and inserting ‘‘20 days’’.

(c) ESTIMATION OF MATTER DENIED.—Section 552(a)(6) of title

5, United States Code (as amended by section 7 of this Act and

subsection (a) of this section), is further amended by adding at

the end the following new subparagraph:

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

an agency shall make a reasonable effort to estimate the volume

of any requested matter the provision of which is denied, and

shall provide any such estimate to the person making the request,

unless providing such estimate would harm an interest protected

by the exemption in subsection (b) pursuant to which the denial

is made.’’.

SEC. 9. COMPUTER REDACTION.

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

the matter following paragraph (9) by inserting after the period
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the following: ‘‘The amount of information deleted shall be indicated

on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this

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

the amount of the information deleted shall be indicated at the

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

SEC. 10. REPORT TO THE CONGRESS.

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

read as follows:

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

shall submit to the Attorney General of the United States a report

which shall cover the preceding fiscal year and which shall include—

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

not to comply with requests for records made to such agency

under subsection (a) and the reasons for each such determination;

‘‘(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for

the action upon each appeal that results in a denial of information; and

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

upon to authorize the agency to withhold information under

subsection (b)(3), a description of whether a court has upheld

the decision of the agency to withhold information under each

such statute, and a concise description of the scope of any

information withheld;

‘‘(C) the number of requests for records pending before

the agency as of September 30 of the preceding year, and

the median number of days that such requests had been pending before the agency as of that date;

‘‘(D) the number of requests for records received by the

agency and the number of requests which the agency processed;

‘‘(E) the median number of days taken by the agency to

process different types of requests;

‘‘(F) the total amount of fees collected by the agency for

processing requests; and

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

to processing requests for records under this section, and the

total amount expended by the agency for processing such

requests.

‘‘(2) Each agency shall make each such report available to

the public including by computer telecommunications, or if computer

telecommunications means have not been established by the agency,

by other electronic means.

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

each report which has been made available by electronic means

available at a single electronic access point. The Attorney General

of the United States shall notify the Chairman and ranking minority

member of the Committee on Government Reform and Oversight

of the House of Representatives and the Chairman and ranking

minority member of the Committees on Governmental Affairs and

the Judiciary of the Senate, no later than April 1 of the year

in which each such report is issued, that such reports are available

by electronic means.

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

with the Director of the Office of Management and Budget, shall
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develop reporting and performance guidelines in connection with

reports required by this subsection by October 1, 1997, and may

establish additional requirements for such reports as the Attorney

General determines may be useful.

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

an annual report on or before April 1 of each calendar year which

shall include for the prior calendar year a listing of the number

of cases arising under this section, the exemption involved in each

case, the disposition of such case, and the cost, fees, and penalties

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

Such report shall also include a description of the efforts undertaken

by the Department of Justice to encourage agency compliance with

this section.’’.

SEC. 11. REFERENCE MATERIALS AND GUIDES.

Section 552 of title 5, United States Code, is amended by

adding after subsection (f) the following new subsection:

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

available upon request, reference material or a guide for requesting

records or information from the agency, subject to the exemptions

in subsection (b), including—

‘‘(1) an index of all major information systems of the agency;

‘‘(2) a description of major information and record locator

systems maintained by the agency; and

‘‘(3) a handbook for obtaining various types and categories

of public information from the agency pursuant to chapter

35 of title 44, and under this section.’’.

SEC. 12. EFFECTIVE DATE.

(a) IN GENERAL.—Except as provided in subsection (b), this

Act shall take effect 180 days after the date of the enactment

of this Act.

(b) PROVISIONS EFFECTIVE ON ENACTMENT.—Sections 7 and

8 shall take effect one year after the date of the enactment of

this Act.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.