Union Calendar No. 433

104TH CONGRESS

2D SESSION H. R. 3802

[Report No. 104–795]

A BILL

To amend section 552 of title 5, United States

purposes.mation in an electronic format, and for othermation Act, to provide for public access to inforCode, popularly known as the Freedom of InforSEPTEMBER 17, 1996

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 433

104TH CONGRESS

2D SESSION H. R. 3802

[Report No. 104–795]

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

SEPTEMBER 17, 1996

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

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

[For text of introduced bill, see copy of bill as introduced on July 12, 1996]

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,
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1 SECTION 1. SHORT TITLE.

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

3 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 agencies,

13 subject to statutory exemptions, for any public or pri14 vate purpose;

15 (2) since the enactment of the Freedom of Infor16 mation Act in 1966, and the amendments enacted in

17 1974 and 1986, the Freedom of Information Act has

18 been a valuable means through which any person can

19 learn how the Federal Government operates;

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

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

22 in the Federal Government;

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

24 the identification of unsafe consumer products, harm25 ful 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 and

6 information.

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

8 (1) foster democracy by ensuring public access to

9 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, retained,

16 and disseminated by the Federal Government.

17 SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC

18 FORMAT INFORMATION.

19 Section 552(f) of title 5, United States Code, is amend20 ed to read as follows:

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

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

23 title includes any executive department, military de24 partment, Government corporation, Government con25 trolled corporation, or other establishment in the exec-
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1 utive branch of the Government (including the Execu2 tive Office of the President), or any independent regu3 latory agency; and

4 ‘‘(2) ‘record’ and any other term used in this sec5 tion in reference to information includes any infor6 mation that would be an agency record subject to the

7 requirements of this section when maintained by an

8 agency in any format, including an electronic for9 mat.’’.

10 SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC

11 FORMAT AND INDEXATION OF RECORDS.

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

13 amended—

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

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

16 instruction, or copies of records referred to in sub17 paragraph (D)’’;

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

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

20 such deletion shall be indicated on the portion of the

21 record which is made available or published, unless

22 including that indication would harm an interest

23 protected by the exemption in subsection (b) under

24 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 dele3 tion shall be indicated at the place in the record

4 where the deletion was made.’’;

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

6 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 under

11 paragraph (3) and which, because of the nature of

12 their subject matter, the agency determines have be13 come or are likely to become the subject of subsequent

14 requests for substantially the same records; and

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

16 under subparagraph (D);’’;

17 (6) by inserting after the fifth sentence the fol18 lowing: ‘‘Each agency shall make the index referred to

19 in subparagraph (E) available by computer tele20 communications by December 31, 1999.’’; and

21 (7) by inserting after the first sentence the fol22 lowing: ‘‘For records created on or after November 1,

23 1996, within one year after such date, each agency

24 shall make such records available, including by com25 puter telecommunications or, if computer tele-
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1 communications means have not been established by

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

3 SEC. 5. 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 ‘‘(A)’’ the second place it appears

8 and inserting ‘‘(i)’’;

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

10 (4) by adding at the end the following new sub11 paragraphs:

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

13 under this paragraph, an agency shall provide the record

14 in any form or format requested by the person if the record

15 is readily reproducible by the agency in that form or for16 mat. Each agency shall make reasonable efforts to maintain

17 its records in forms or formats that are reproducible for

18 purposes of this section.

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

20 for records, an agency shall make reasonable efforts to

21 search for the records in electronic form or format, except

22 when such efforts would significantly interfere with the op23 eration of the agency’s automated information system.

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

25 means to review, manually or by automated means, agency
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1 records for the purpose of locating those records which are

2 responsive to a request.’’.

3 SEC. 6. STANDARD FOR JUDICIAL REVIEW.

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

5 amended by adding at the end the following new sentence:

6 ‘‘In addition to any other matters to which a court accords

7 substantial weight, a court shall accord substantial weight

8 to an affidavit of an agency concerning the agency’s deter9 mination as to technical feasibility under paragraph (2)(C)

10 and subsection (b) and reproducibility under paragraph

11 (3)(B).’’.

12 SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.

13 (a) MULTITRACK PROCESSING.—Section 552(a)(6) of

14 title 5, United States Code, is amended by adding at the

15 end the following new subparagraph:

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

17 pursuant to notice and receipt of public comment, provid18 ing for multitrack processing of requests for records based

19 on the amount of work or time (or both) involved in process20 ing requests.

21 ‘‘(ii) Regulations under this subparagraph may pro22 vide a person making a request that does not qualify for

23 the fastest multitrack processing an opportunity to limit

24 the scope of the request in order to qualify for faster

25 processing.
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1 ‘‘(iii) This subparagraph shall not be considered to af2 fect the requirement under subparagraph (C) to exercise due

3 diligence.’’.

4 (b) UNUSUAL CIRCUMSTANCES.—Section 552(a)(6)(B)

5 of title 5, United States Code, is amended to read as follows:

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

7 subparagraph, the time limits prescribed in either clause

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

9 written notice to the person making such request setting

10 forth the unusual circumstances for such extension and the

11 date on which a determination is expected to be dispatched.

12 No such notice shall specify a date that would result in an

13 extension for more than ten working days, except as pro14 vided in clause (ii) of this subparagraph.

15 ‘‘(ii) With respect to a request for which a written no16 tice under clause (i) extends the time limits prescribed

17 under clause (i) of subparagraph (A), the agency shall no18 tify the person making the request if the request cannot be

19 processed within the time limit specified in that clause and

20 shall provide the person an opportunity to limit the scope

21 of the request so that it may be processed within that time

22 limit or an opportunity to arrange with the agency an al23 ternative time frame for processing the request or a modi24 fied request. Refusal by the person to reasonably modify the

25 request or arrange such an alternative time frame shall be
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1 considered as a factor in determining whether exceptional

2 circumstances exist for purposes of subparagraph (C).

3 ‘‘(iii) As used in this subparagraph, ‘unusual cir4 cumstances’ means, but only to the extent reasonably nec5 essary to the proper processing of the particular requests—

6 ‘‘(I) the need to search for and collect the re7 quested records from field facilities or other establish8 ments that are separate from the office processing the

9 request;

10 ‘‘(II) the need to search for, collect, and appro11 priately examine a voluminous amount of separate

12 and distinct records which are demanded in a single

13 request; or

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

15 conducted with all practicable speed, with another

16 agency having a substantial interest in the deter17 mination of the request or among two or more compo18 nents of the agency having substantial subject-matter

19 interest therein.

20 ‘‘(iv) Each agency may promulgate regulations, pursu21 ant to notice and receipt of public comment, providing for

22 the aggregation of certain requests by the same requestor,

23 or by a group of requestors acting in concert, if the agency

24 reasonably believes that such requests actually constitute a

25 single request, which would otherwise satisfy the unusual
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1 circumstances specified in this subparagraph, and the re2 quests involve clearly related matters. Multiple requests in3 volving unrelated matters shall not be aggregated.’’.

4 (c) EXCEPTIONAL CIRCUMSTANCES.—Section

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

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

7 following new clauses:

8 ‘‘(ii) For purposes of this subparagraph, the term ‘ex9 ceptional circumstances’ does not include a delay that re10 sults from a predictable agency workload of requests under

11 this section, unless the agency demonstrates reasonable

12 progress in reducing its backlog of pending requests.

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

14 scope of a request or arrange an alternative time frame for

15 processing a request (or a modified request) under clause

16 (ii) after being given an opportunity to do so by the agency

17 to whom the person made the request shall be considered

18 as a factor in determining whether exceptional cir19 cumstances exist for purposes of this subparagraph.’’.

20 SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF

21 REQUESTS.

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

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

24 this Act), is further amended by adding at the end the fol25 lowing new subparagraph:
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1 ‘‘(E)(i) Each agency shall promulgate regulations,

2 pursuant to notice and receipt of public comment, provid3 ing for expedited processing of requests for records—

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

5 records demonstrates a compelling need; and

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

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

8 this subparagraph must ensure—

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

10 expedited processing shall be made, and notice of the

11 determination shall be provided to the person making

12 the request, within 10 days after the date of the re13 quest; and

14 ‘‘(II) expeditious consideration of administrative

15 appeals of such determinations of whether to provide

16 expedited processing.

17 ‘‘(iii) An agency shall process as soon as practicable

18 any request for records to which the agency has granted

19 expedited processing under this subparagraph. Agency ac20 tion to deny or affirm denial of a request for expedited proc21 essing pursuant to this subparagraph, and failure by an

22 agency to respond in a timely manner to such a request

23 shall be subject to judicial review under paragraph (4), ex24 cept that the judicial review shall be based on the record

25 before the agency at the time of the determination.
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1 ‘‘(iv) A district court of the United States shall not

2 have jurisdiction to review an agency denial of expedited

3 processing of a request for records after the agency has pro4 vided a complete response to the request.

5 ‘‘(v) For purposes of this subparagraph, the term ‘com6 pelling need’ means—

7 ‘‘(I) that a failure to obtain requested records on

8 an expedited basis under this paragraph could rea9 sonably be expected to pose an imminent threat to the

10 life or physical safety of an individual; or

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

12 primarily engaged in disseminating information, ur13 gency to inform the public concerning actual or al14 leged Federal Government activity.

15 ‘‘(vi) A demonstration of a compelling need by a per16 son making a request for expedited processing shall be made

17 by a statement certified by such person to be true and cor18 rect to the best of such person’s knowledge and belief.’’.

19 (b) EXTENSION OF GENERAL PERIOD FOR DETERMIN20 ING WHETHER TO COMPLY WITH A REQUEST.—Section

21 552(a)(6)(A)(i) of title 5, United States Code, is amended

22 by striking ‘‘ten days’’ and inserting ‘‘20 days’’.

23 (c) ESTIMATION OF MATTER DENIED.—Section

24 552(a)(6) of title 5, United States Code (as amended by

25 section 7 of this Act and subsection (a) of this section), is
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1 further amended by adding at the end the following new

2 subparagraph:

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

4 part, an agency shall make a reasonable effort to estimate

5 the volume of any requested matter the provision of which

6 is denied, and shall provide any such estimate to the person

7 making the request, unless providing such estimate would

8 harm an interest protected by the exemption in subsection

9 (b) pursuant to which the denial is made.’’.

10 SEC. 9. COMPUTER REDACTION.

11 Section 552(b) of title 5, United States Code, is amend12 ed in the matter following paragraph (9) by inserting after

13 the period the following: ‘‘The amount of information de14 leted shall be indicated on the released portion of the record,

15 unless including that indication would harm an interest

16 protected by the exemption in this subsection under which

17 the deletion is made. If technically feasible, the amount of

18 the information deleted shall be indicated at the place in

19 the record where such deletion is made.’’.

20 SEC. 10. REPORT TO THE CONGRESS.

21 Section 552(e) of title 5, United States Code, is amend22 ed to read as follows:

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

24 agency shall submit to the Attorney General of the United
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1 States a report which shall cover the preceding fiscal year

2 and which shall include—

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

4 agency not to comply with requests for records made

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

6 for each such determination;

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

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

9 and the reason for the action upon each appeal that

10 results in a denial of information; and

11 ‘‘(ii) a complete list of all statutes that the agen12 cy relies upon to authorize the agency to withhold in13 formation under subsection (b)(3), a description of

14 whether a court has upheld the decision of the agency

15 to withhold information under each such statute, and

16 a concise description of the scope of any information

17 withheld;

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

19 before the agency as of September 30 of the preceding

20 year, and the median number of days that such re21 quests had been pending before the agency as of that

22 date;

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

24 by the agency and the number of requests which the

25 agency processed;
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1 ‘‘(E) the median number of days taken by the

2 agency to process different types of requests;

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

4 agency for processing requests; and

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

6 devoted to processing requests for records under this

7 section, and the total amount expended by the agency

8 for processing such requests.

9 ‘‘(2) Each agency shall make each such report avail10 able to the public including by computer telecommuni11 cations, or if computer telecommunications means have not

12 been established by the agency, by other electronic means.

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

14 make each report which has been made available by elec15 tronic means available at a single electronic access point.

16 The Attorney General of the United States shall notify the

17 Chairman and ranking minority member of the Committee

18 on Government Reform and Oversight of the House of Rep19 resentatives and the Chairman and ranking minority mem20 ber of the Committees on Governmental Affairs and the Ju21 diciary of the Senate, no later than April 1 of the year

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

23 available by electronic means.

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

25 consultation with the Director of the Office of Management
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1 and Budget, shall develop reporting and performance guide2 lines in connection with reports required by this subsection

3 by October 1, 1997, and may establish additional require4 ments for such reports as the Attorney General determines

5 may be useful.

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

7 submit an annual report on or before April 1 of each cal8 endar year which shall include for the prior calendar year

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

10 the exemption involved in each case, the disposition of such

11 case, and the cost, fees, and penalties assessed under sub12 paragraphs (E), (F), and (G) of subsection (a)(4). Such re13 port shall also include a description of the efforts under14 taken by the Department of Justice to encourage agency

15 compliance with this section.’’.

16 SEC. 11. REFERENCE MATERIALS AND GUIDES.

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

18 by adding after subsection (f) the following new subsection:

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

20 publicly available upon request, reference material or a

21 guide for requesting records or information from the agency,

22 subject to the exemptions in subsection (b), including—

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

24 of the agency;
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1 ‘‘(2) a description of major information and

2 record locator systems maintained by the agency; and

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

4 categories of public information from the agency pur5 suant to chapter 35 of title 44, and under this sec6 tion.’’.

7 SEC. 12. EFFECTIVE DATE.

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

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

10 enactment of this Act.

11 (b) PROVISIONS EFFECTIVE ON ENACTMENT.—Sec12 tions 7 and 8 shall take effect one year after the date of

13 the enactment of this Act.