II 

113TH CONGRESS 

2D SESSION S. 2520 

To improve the Freedom of Information Act. 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2014 

Mr. LEAHY (for himself and Mr. CORNYN) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

A BILL 

To improve the Freedom of Information Act. 

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 ‘‘FOIA Improvement 

5 Act of 2014’’. 

6 SEC. 2. AMENDMENTS TO FOIA. 

7 Section 552 of title 5, United States Code, is amend8 ed— 

9 (1) in subsection (a)— 

10 (A) in paragraph (2)— 

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1 tion and copying’’ and inserting ‘‘for public 

2 inspection in an electronic format’’; 

3 (ii) by striking subparagraph (D) and 

4 inserting the following: 

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

6 format— 

7 ‘‘(i) that have been released to any person 

8 under paragraph (3); and 

9 ‘‘(ii)(I) that because of the nature of their 

10 subject matter, the agency determines have be11 come or are likely to become the subject of sub12 sequent requests for substantially the same 

13 records; or 

14 ‘‘(II) that have been requested not less 

15 than 3 times; and’’; and 

16 (iii) in the undesignated matter fol17 lowing subparagraph (E), by striking 

18 ‘‘public inspection and copying current’’ 

19 and inserting ‘‘public inspection in an elec20 tronic format, and current’’; 

21 (B) in paragraph (4)(A), by striking clause 

22 (viii) and inserting the following: 

23 ‘‘(viii)(I) Except as provided in subclause (II), 

24 an agency shall not assess any search fees (or in the 

25 case of a requester described under clause (ii)(II) of 


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1 this subparagraph, duplication fees) under this sub2 paragraph if the agency has failed to comply with 

3 any time limit under paragraph (6). 

4 ‘‘(II)(aa) If an agency determines that unusual 

5 circumstances apply (as the term is defined in para6 graph (6)(B)) and the agency provides a timely writ7 ten notice to the requester in accordance with para8 graph (6)(B), a failure described in subclause (I) is 

9 excused for an additional 10 days. If the agency fails 

10 to comply with the extended time limit, the agency 

11 may not assess any search fees (or in the case of a 

12 requester described under clause (ii)(II) of this sub13 paragraph, duplication fees). 

14 ‘‘(bb) If a court determines that exceptional cir15 cumstances exist (as that term is defined in para16 graph (6)(C)), a failure described in subclause (I) 

17 shall be excused for the length of time provided by 

18 the court order.’’; 

19 (C) in paragraph (6)— 

20 (i) in subparagraph (A)(i), by striking 

21 ‘‘making such request’’ and all that follows 

22 through ‘‘determination; and’’ and insert23 ing the following: ‘‘making such request 

24 of—’’ 


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1 ‘‘(I) such determination and the rea2 sons therefore; 

3 ‘‘(II) the right of such person to seek 

4 assistance from the FOIA Public Liaison 

5 of the agency; and 

6 ‘‘(III) in the case of an adverse deter7 mination— 

8 ‘‘(aa) the right of such person to 

9 appeal to the head of the agency, 

10 within a period determined by the 

11 head of the agency that is not less 

12 than 90 days after the receipt of such 

13 adverse determination; and 

14 ‘‘(bb) the right of such person to 

15 seek dispute resolution services from 

16 the FOIA Public Liaison of the agen17 cy or the Office of Government Infor18 mation Services; and’’; and 

19 (ii) in subparagraph (B)(ii), by strik20 ing ‘‘the agency.’’ and inserting ‘‘the agen21 cy, and notify the requester of the right of 

22 the requester to seek dispute resolution 

23 services from the Office of Government In24 formation Services.’’; and 

25 (D) by adding at the end the following: 


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1 ‘‘(8) An agency— 

2 ‘‘(A) shall— 

3 ‘‘(i) withhold information under this sec4 tion only if— 

5 ‘‘(I) the agency reasonably foresees 

6 that disclosure would harm an interest pro7 tected by an exemption described in sub8 section (b) or other provision of law; or 

9 ‘‘(II) disclosure is prohibited by law; 

10 and 

11 ‘‘(ii)(I) consider whether partial disclosure 

12 of information is possible whenever the agency 

13 determines that a full disclosure of a requested 

14 record is not possible; and 

15 ‘‘(II) take reasonable steps necessary to 

16 segregate and release nonexempt information; 

17 and 

18 ‘‘(B) may not— 

19 ‘‘(i) withhold information requested under 

20 this section merely because the agency can dem21 onstrate, as a technical matter, that the records 

22 fall within the scope of an exemption described 

23 in subsection (b); or 

24 ‘‘(ii) withhold information requested under 

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1 barrassing to the agency or because of specula2 tive or abstract concerns.’’; 

3 (2) in subsection (b), by amending paragraph 

4 (5) to read as follows: 

5 ‘‘(5) inter-agency or intra-agency memoran6 dums or letters that would not be available by law 

7 to a party other than an agency in litigation with 

8 the agency, if— 

9 ‘‘(A) in the case of deliberative process 

10 privilege or attorney work-product privilege, the 

11 agency interest in protecting the records or in12 formation is not outweighed by a public interest 

13 in disclosure; 

14 ‘‘(B) in the case of attorney-client privi15 lege, the agency interest in protecting the 

16 records or information is not outweighed by a 

17 compelling public interest in disclosure; and 

18 ‘‘(C) the requested record or information 

19 was created less than 25 years before the date 

20 on which the request was made;’’; 

21 (3) in subsection (e) 

22 (A) in paragraph (1)— 

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1 tor of the Office of Government Informa2 tion Services’’ after ‘‘United States’’; 

3 (ii) in subparagraph (N), by striking 

4 ‘‘and’’ at the end; 

5 (iii) in subparagraph (O), by striking 

6 the period at the end and inserting a semi7 colon; and 

8 (iv) by adding at the end the fol9 lowing: 

10 ‘‘(P) the number of times the agency denied a 

11 request for records under subsection (c); and 

12 ‘‘(Q) the number of records that were made 

13 available for public inspection in an electronic for14 mat under subsection (a)(2).’’; 

15 (B) by striking paragraph (3) and insert16 ing the following: 

17 ‘‘(3) Each agency shall make each such report avail18 able for public inspection in an electronic format. In addi19 tion, each agency shall make the raw statistical data used 

20 in each report available in a timely manner for public in21 spection in an electronic format, which shall be made 

22 available— 

23 ‘‘(A) without charge, license, or registration re24 quirement; 

25 ‘‘(B) in an aggregated, searchable format; and 


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1 ‘‘(C) in a format that may be downloaded in 

2 bulk.’’; 

3 (C) in paragraph (4)— 

4 (i) by striking ‘‘Government Reform 

5 and Oversight’’ and inserting ‘‘Oversight 

6 and Government Reform’’; 

7 (ii) by inserting ‘‘Homeland Security 

8 and’’ before ‘‘Governmental Affairs’’; and 

9 (iii) by striking ‘‘April’’ and inserting 

10 ‘‘March’’; and 

11 (D) by striking paragraph (6) and insert12 ing the following: 

13 ‘‘(6)(A) The Attorney General of the United States 

14 shall submit to the Committee on Oversight and Govern15 ment Reform of the House of Representatives, the Com16 mittee on Judiciary of the Senate, and the President a 

17 report on or before March 1 of each calendar year, which 

18 shall include for the prior calendar year— 

19 ‘‘(i) a listing of the number of cases arising 

20 under this section; 

21 ‘‘(ii) a listing of— 

22 ‘‘(I) each subsection, and any exemption, if 

23 applicable, involved in each case arising under 

24 this section; 


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1 ‘‘(II) the disposition of each case arising 

2 under this section; and 

3 ‘‘(III) the cost, fees, and penalties assessed 

4 under subparagraphs (E), (F), and (G) of sub5 section (a)(4); and 

6 ‘‘(iii) a description of the efforts undertaken by 

7 the Department of Justice to encourage agency com8 pliance with this section. 

9 ‘‘(B) The Attorney General of the United States shall 

10 make— 

11 ‘‘(i) each report submitted under subparagraph 

12 (A) available for public inspection in an electronic 

13 format; and 

14 ‘‘(ii) the raw statistical data used in each report 

15 submitted under subparagraph (A) available for pub16 lic inspection in an electronic format, which shall be 

17 made available— 

18 ‘‘(I) without charge, license, or registration 

19 requirement; 

20 ‘‘(II) in an aggregated, searchable format; 

21 and 

22 ‘‘(III) in a format that may be downloaded 

23 in bulk.’’; 

24 (4) in subsection (g), in the matter preceding 

25 paragraph (1), by striking ‘‘publicly available upon 


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1 request’’ and inserting ‘‘available for public inspec2 tion in an electronic format’’; 

3 (5) in subsection (h)— 

4 (A) in paragraph (1), by adding at the end 

5 the following: ‘‘The head of the Office shall be 

6 the Director of the Office of Government Infor7 mation Services.’’; 

8 (B) in paragraph (2), by striking subpara9 graph (C) and inserting the following: 

10 ‘‘(C) identify procedures and methods for im11 proving compliance under this section.’’; 

12 (C) by striking paragraph (3) and insert13 ing the following: 

14 ‘‘(3) The Office of Government Information Services 

15 shall offer mediation services to resolve disputes between 

16 persons making requests under this section and adminis17 trative agencies as a non-exclusive alternative to litigation 

18 and may issue advisory opinions at the discretion of the 

19 Office or upon request of any party to a dispute.’’; and 

20 (D) by adding at the end the following: 

21 ‘‘(4)(A) Not less frequently than annually, the Direc22 tor of the Office of Government Information Services shall 

23 submit to the Committee on Oversight and Government 

24 Reform of the House of Representatives, the Committee 

25 on the Judiciary of the Senate, and the President— 


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1 ‘‘(i) a report on the findings of the information 

2 reviewed and identified under paragraph (2); 

3 ‘‘(ii) a summary of the activities of the Office 

4 of Government Information Services under para5 graph (3), including— 

6 ‘‘(I) any advisory opinions issued; and 

7 ‘‘(II) the number of times each agency en8 gaged in dispute resolution with the assistance 

9 of the Office of Government Information Serv10 ices or the FOIA Public Liaison; and 

11 ‘‘(iii) legislative and regulatory recommenda12 tions, if any, to improve the administration of this 

13 section. 

14 ‘‘(B) The Director of the Office of Government Infor15 mation Services shall make each report submitted under 

16 subparagraph (A) available for public inspection in an 

17 electronic format. 

18 ‘‘(C) The Director of the Office of Government Infor19 mation Services shall not be required to obtain the prior 

20 approval, comment, or review of any officer or agency of 

21 the United States, including the Department of Justice, 

22 the Archivist of the United States, or the Office of Man23 agement and Budget before submitting to the Congress, 

24 or any committee or subcommittee thereof, any reports, 

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1 missions include a statement indicating that the views ex2 pressed therein are those of the Director and do not nec3 essarily represent the views of the President. 

4 ‘‘(5) The Director of the Office of Government Infor5 mation Services may submit additional information to 

6 Congress and the President as the Director determines to 

7 be appropriate. 

8 ‘‘(6) Not less frequently than annually, the Office of 

9 Government Information Services shall conduct a meeting 

10 that is open to the public on the review and reports by 

11 the Office and shall allow interested persons to appear and 

12 present oral or written statements at the meeting.’’; and 

13 (6) by striking subsections (i), (j), and (k), and 

14 inserting the following: 

15 ‘‘(i) The Government Accountability Office shall— 

16 ‘‘(1) conduct audits of administrative agencies 

17 on compliance with and implementation of the re18 quirements of this section and issue reports detailing 

19 the results of such audits; and 

20 ‘‘(2) catalog the number of exemptions de21 scribed in subsection (b)(3) and the use of such ex22 emptions by each agency. 

23 ‘‘(j)(1) Each agency shall designate a Chief FOIA Of24 ficer who shall be a senior official of such agency (at the 

25 Assistant Secretary or equivalent level). 


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1 ‘‘(2) The Chief FOIA Officer of each agency shall, 

2 subject to the authority of the head of the agency— 

3 ‘‘(A) have agency-wide responsibility for effi4 cient and appropriate compliance with this section; 

5 ‘‘(B) monitor implementation of this section 

6 throughout the agency and keep the head of the 

7 agency, the chief legal officer of the agency, and the 

8 Attorney General appropriately informed of the 

9 agency’s performance in implementing this section; 

10 ‘‘(C) recommend to the head of the agency such 

11 adjustments to agency practices, policies, personnel, 

12 and funding as may be necessary to improve its im13 plementation of this section; 

14 ‘‘(D) review and report to the Attorney General, 

15 through the head of the agency, at such times and 

16 in such formats as the Attorney General may direct, 

17 on the agency’s performance in implementing this 

18 section; 

19 ‘‘(E) facilitate public understanding of the pur20 poses of the statutory exemptions of this section by 

21 including concise descriptions of the exemptions in 

22 both the agency’s handbook issued under subsection 

23 (g), and the agency’s annual report on this section, 

24 and by providing an overview, where appropriate, of 


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1 certain general categories of agency records to which 

2 those exemptions apply; 

3 ‘‘(F) offer training to agency staff regarding 

4 their responsibilities under this section; 

5 ‘‘(G) serve as the primary agency liaison with 

6 the Office of Government Information Services and 

7 the Office of Information Policy; and 

8 ‘‘(H) designate 1 or more FOIA Public Liai9 sons. 

10 ‘‘(3) The Chief FOIA Officer of each agency shall re11 view, not less frequently than annually, all aspects of the 

12 administration of this section by the agency to ensure 

13 compliance with the requirements of this section, includ14 ing— 

15 ‘‘(A) agency regulations; 

16 ‘‘(B) disclosure of records required under para17 graphs (2) and (8) of subsection (a); 

18 ‘‘(C) assessment of fees and determination of 

19 eligibility for fee waivers; 

20 ‘‘(D) the timely processing of requests for infor21 mation under this section; 

22 ‘‘(E) the use of exemptions under subsection 

23 (b); and 


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1 ‘‘(F) dispute resolution services with the assist2 ance of the Office of Government Information Serv3 ices or the FOIA Public Liaison. 

4 ‘‘(k)(1) There is established in the executive branch 

5 the Chief FOIA Officers Council (referred to in this sub6 section as the ‘Council’). 

7 ‘‘(2) The Council shall be comprised of the following 

8 members: 

9 ‘‘(A) The Deputy Director for Management of 

10 the Office of Management and Budget. 

11 ‘‘(B) The Director of the Office of Information 

12 Policy at the Department of Justice. 

13 ‘‘(C) The Director of the Office of Government 

14 Information Services. 

15 ‘‘(D) The Chief FOIA Officer of each agency. 

16 ‘‘(E) Any other officer or employee of the 

17 United States as designated by the Co-Chairs. 

18 ‘‘(3) The Director of the Office of Information Policy 

19 at the Department of Justice and the Director of the Of20 fice of Government Information Services shall be the Co21 Chairs of the Council. 

22 ‘‘(4) The Administrator of General Services shall pro23 vide administrative and other support for the Council. 

24 ‘‘(5)(A) The duties of the Council shall include the 

25 following: 


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1 ‘‘(i) Develop recommendations for increasing 

2 compliance and efficiency under this section. 

3 ‘‘(ii) Disseminate information about agency ex4 periences, ideas, best practices, and innovative ap5 proaches related to this section. 

6 ‘‘(iii) Identify, develop, and coordinate initia7 tives to increase transparency and compliance with 

8 this section. 

9 ‘‘(iv) Promote the development and use of com10 mon performance measures for agency compliance 

11 with this section. 

12 ‘‘(B) In performing the duties described in subpara13 graph (A), the Council shall consult on a regular basis 

14 with members of the public who make requests under this 

15 section. 

16 ‘‘(6)(A) The Council shall meet regularly and such 

17 meetings shall be open to the public unless the Council 

18 determines to close the meeting for reasons of national 

19 security or to discuss information exempt under subsection 

20 (b). 

21 ‘‘(B) Not less frequently than annually, the Council 

22 shall hold a meeting that shall be open to the public and 

23 permit interested persons to appear and present oral and 

24 written statements to the Council. 


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1 ‘‘(C) Not later than 10 business days before a meet2 ing of the Council, notice of such meeting shall be pub3 lished in the Federal Register. 

4 ‘‘(D) Except as provided in subsection (b), the 

5 records, reports, transcripts, minutes, appendixes, working 

6 papers, drafts, studies, agenda, or other documents that 

7 were made available to or prepared for or by the Council 

8 shall be made publicly available. 

9 ‘‘(E) Detailed minutes of each meeting of the Council 

10 shall be kept and shall contain a record of the persons 

11 present, a complete and accurate description of matters 

12 discussed and conclusions reached, and copies of all re13 ports received, issued, or approved by the Council. The 

14 minutes shall be redacted as necessary and made publicly 

15 available.’’. 

16 SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS. 

17 (a) IN GENERAL.—Not later than 180 days after the 

18 date of enactment of this Act, the head of each agency 

19 (as defined in section 551 of title 5, United States Code) 

20 shall review the regulations of such agency and shall issue 

21 regulations on procedures for the disclosure of records 

22 under section 552 of title 5, United States Code, in ac23 cordance with the amendments made by section 2. 

24 (b) REQUIREMENTS.—The regulations of each agency 

25 shall include procedures for engaging in dispute resolution 


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1 through the FOIA Public Liaison and the Office of Gov2 ernment Information Services. 

3 SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MAN4 AGEMENT. 

5 Section 3102 of title 44, United States Code, is 

6 amended— 

7 (1) by redesignating paragraphs (2) and (3) as 

8 paragraphs (3) and (4); and 

9 (2) by inserting after paragraph (1) the fol10 lowing: 

11 ‘‘(2) procedures for identifying records of gen12 eral interest or use to the public that are appro13 priate for public disclosure, and for posting such 

14 records in a publicly accessible electronic format;’’. 

15 SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED. 

16 No additional funds are authorized to carry out the 

17 requirements of this Act or the amendments made by this 

18 Act. The requirements of this Act and the amendments 

19 made by this Act shall be carried out using amounts other20 wise authorized or appropriated. 

Æ 


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