IIB 

110TH CONGRESS 

1ST SESSION H. R. 1309 

IN THE SENATE OF THE UNITED STATES 

MARCH 15, 2007 

Received; read twice and referred to the Committee on the Judiciary 

AN ACT 

To promote openness in Government by strengthening section 

552 of title 5, United States Code (commonly referred 

to as the Freedom of Information Act), 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; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Freedom of Information Act Amendments of 2007’’. 

4 (b) TABLE OF CONTENTS.—The table of contents for 

5 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Protection of fee status for news media. 

Sec. 4. Recovery of attorney fees and litigation costs. 

Sec. 5. Disciplinary actions for arbitrary and capricious rejections of requests. 

Sec. 6. Time limits for agencies to act on requests. 

Sec. 7. Individualized tracking numbers for requests and status information. 

Sec. 8. Specific citations in exemptions. 

Sec. 9. Reporting requirements. 

Sec. 10. Openness of agency records maintained by a private entity. 

Sec. 11. Office of Government Information Services. 

Sec. 12. Accessibility of critical infrastructure information. 

Sec. 13. Report on personnel policies related to FOIA. 

Sec. 14. Promotion of public disclosure. 

Sec. 15. Requirement to describe exemptions authorizing deletions of material 

provided under FOIA. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

8 (1) the Freedom of Information Act was signed 

9 into law on July 4, 1966, because the American peo10 ple believe that— 

11 (A) our constitutional democracy, our sys12 tem of self-government, and our commitment to 

13 popular sovereignty depends upon the consent 

14 of the governed; 

15 (B) such consent is not meaningful unless 

16 it is informed consent; and 

17 (C) as Justice Black noted in his concur18 ring opinion in Barr v. Matteo (360 U.S. 564 


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1 (1959)), ‘‘The effective functioning of a free 

2 government like ours depends largely on the 

3 force of an informed public opinion. This calls 

4 for the widest possible understanding of the 

5 quality of government service rendered by all 

6 elective or appointed public officials or employ7 ees.’’; 

8 (2) the American people firmly believe that our 

9 system of government must itself be governed by a 

10 presumption of openness; 

11 (3) the Freedom of Information Act establishes 

12 a ‘‘strong presumption in favor of disclosure’’ as 

13 noted by the United States Supreme Court in 

14 United States Department of State v. Ray (502 U.S. 

15 164 (1991)), a presumption that applies to all agen16 cies governed by that Act; 

17 (4) ‘‘disclosure, not secrecy, is the dominant ob18 jective of the Act,’’ as noted by the United States 

19 Supreme Court in Department of Air Force v. Rose 

20 (425 U.S. 352 (1976)); 

21 (5) in practice, the Freedom of Information Act 

22 has not always lived up to the ideals of that Act; and 

23 (6) Congress should regularly review section 

24 552 of title 5, United States Code (commonly re25 ferred to as the Freedom of Information Act), in 


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1 order to determine whether further changes and im2 provements are necessary to ensure that the Govern3 ment remains open and accessible to the American 

4 people and is always based not upon the ‘‘need to 

5 know’’ but upon the fundamental ‘‘right to know’’. 

6 SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA. 

7 Section 552(a)(4)(A)(ii) of title 5, United States 

8 Code, is amended by adding at the end the following: 

9 ‘‘In making a determination of a representative of the 

10 news media under subclause (II), an agency may not deny 

11 that status solely on the basis of the absence of institu12 tional associations of the requester, but shall consider the 

13 prior publication history of the requester. Prior publica14 tion history shall include books, magazine and newspaper 

15 articles, newsletters, television and radio broadcasts, and 

16 Internet publications. If the requestor has no prior publi17 cation history or current affiliation, the agency shall con18 sider the requestor’s stated intent at the time the request 

19 is made to distribute information to a reasonably broad 

20 audience.’’. 

21 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

22 COSTS. 

23 (a) IN GENERAL.—Section 552(a)(4)(E) of title 5, 

24 United State Code, is amended by adding at the end the 

25 following: ‘‘For purposes of this section only, a complainVerDate Aug 31 2005 02:46 Mar 16, 2007 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1309.RFS H1309

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1 ant has substantially prevailed if the complainant has ob2 tained relief through either— 

3 ‘‘(i) a judicial order, administrative action, or 

4 an enforceable written agreement or consent decree; 

5 or 

6 ‘‘(ii) a voluntary or unilateral change in posi7 tion by the opposing party, in a case in which the 

8 complainant’s claim or defense was not frivolous.’’. 

9 (b) LIMITATION.—Notwithstanding section 1304 of 

10 title 31, United States Code, no amounts may be obligated 

11 or expended from the Claims and Judgment Fund of the 

12 United States Treasury to pay the costs resulting from 

13 the amendments made by this section. Any such amounts 

14 shall be paid only from funds annually appropriated for 

15 the Federal agency against which a claim or judgment has 

16 been rendered. 

17 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA18 PRICIOUS REJECTIONS OF REQUESTS. 

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

20 is amended— 

21 (1) by inserting ‘‘(i)’’ after ‘‘(F)’’; and 

22 (2) by adding at the end the following: 

23 ‘‘(ii) The Attorney General shall— 


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1 ‘‘(I) notify the Special Counsel of each civil ac2 tion described under the first sentence of clause (i); 

3 and 

4 ‘‘(II) annually submit a report to Congress on 

5 the number of such civil actions in the preceding 

6 year. 

7 ‘‘(iii) The Special Counsel shall annually submit a re8 port to Congress on the actions taken by the Special Coun9 sel under clause (i).’’. 

10 SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS. 

11 (a) TIME LIMITS.— 

12 (1) IN GENERAL.—Section 552(a)(6)(A)(i) of 

13 title 5, United States Code, is amended by striking 

14 ‘‘determine within 20 days (excepting Saturdays, 

15 Sundays, and legal public holidays) after the receipt 

16 of any such request’’ and inserting ‘‘within the 20- 

17 day period commencing on the date on which the re18 quest is first received by the agency (excepting Sat19 urdays, Sundays, and legal public holidays), which 

20 shall not be tolled without the consent of the party 

21 filing the request, determine’’. 

22 (2) EFFECTIVE DATE.—The amendment made 

23 by this subsection shall take effect 1 year after the 

24 date of enactment of this Act. 

25 (b) APPLICABILITY OF AGENCY FEES.— 


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1 (1) LIMITATION.—Section 552(a)(4)(A) of title 

2 5, United States Code, is amended by adding at the 

3 end the following: 

4 ‘‘(viii) An agency shall refund any fees collected 

5 under this subparagraph if the agency fails to comply with 

6 any time limit that applies under paragraph (6). Such re7 funds shall be paid from annual appropriations provided 

8 to that agency.’’. 

9 (2) EFFECTIVE DATE AND APPLICATION.—The 

10 amendment made by this subsection shall take effect 

11 1 year after the date of enactment of this Act and 

12 shall apply to requests for information under section 

13 552 of title 5, United States Code, filed on or after 

14 that effective date. 

15 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE16 QUESTS AND STATUS INFORMATION. 

17 (a) IN GENERAL.—Section 552(a) of title 5, United 

18 States Code, is amended by adding at the end the fol19 lowing: 

20 ‘‘(7) Each agency shall— 

21 ‘‘(A) establish a system to assign an individual22 ized tracking number for each request for informa23 tion under this section; 


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1 ‘‘(B) not later than 10 days after receiving a 

2 request, provide each person making a request with 

3 the tracking number assigned to the request; and 

4 ‘‘(C) establish a telephone line or Internet serv5 ice that provides information about the status of a 

6 request to the person making the request using the 

7 assigned tracking number, including— 

8 ‘‘(i) the date on which the agency origi9 nally received the request; and 

10 ‘‘(ii) an estimated date on which the agen11 cy will complete action on the request.’’. 

12 (b) EFFECTIVE DATE AND APPLICATION.—The 

13 amendment made by this section shall take effect 1 year 

14 after the date of enactment of this Act and apply to re15 quests for information under section 552 of title 5, United 

16 States Code, filed on or after that effective date. 

17 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

19 amended by striking paragraph (3) and inserting the fol20 lowing: 

21 ‘‘(3) specifically exempted from disclosure by 

22 statute (other than section 552b of this title), pro23 vided that such statute— 

24 ‘‘(A) if enacted after the date of enactment 

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1 ments of 2007, specifically cites to this section; 

2 and 

3 ‘‘(B)(i) requires that the matters be with4 held from the public in such a manner as to 

5 leave no discretion on the issue; or 

6 ‘‘(ii) establishes particular criteria for 

7 withholding or refers to particular types of mat8 ters to be withheld;’’. 

9 SEC. 9. REPORTING REQUIREMENTS. 

10 (a) ANNUAL REPORT REQUIREMENTS.—Section 

11 552(e)(1) of title 5, United States Code, is amended— 

12 (1) in the matter preceding subparagraph (A) 

13 by striking ‘‘fiscal year and which’’ and inserting 

14 ‘‘fiscal year. Information in the report shall be ex15 pressed in terms of each principal component of the 

16 agency and for the agency overall, and’’; 

17 (2) in subparagraph (B)(ii), by inserting after 

18 the first comma the following, ‘‘the number of occa19 sions on which each statute was relied upon,’’; 

20 (3) in subparagraph (C), by inserting after 

21 ‘‘median’’ the following: ‘‘and average’’; 

22 (4) in subparagraph (E), by inserting before the 

23 semicolon the following: ‘‘, based on the date on 

24 which each request was initially received by the 

25 agency’’; and 


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1 (5) by redesignating subparagraphs (F) and 

2 (G) as subparagraphs (N) and (O), respectively, and 

3 inserting after subparagraph (E) the following new 

4 subparagraphs: 

5 ‘‘(F) the average number of days for the agency 

6 to respond to requests beginning on the date on 

7 which each request was initially received by the 

8 agency, the median number of days for the agency 

9 to respond to such requests, and the range in num10 ber of days for the agency to respond to such re11 quests; 

12 ‘‘(G) based on the number of business days that 

13 have elapsed since each request was initially received 

14 by the agency— 

15 ‘‘(i) the number of requests for records to 

16 which the agency has responded with a deter17 mination within a period greater than 1 day 

18 and less than 201 days, stated in 20-day incre19 ments; 

20 ‘‘(ii) the number of requests for records to 

21 which the agency has responded with a deter22 mination within a period greater than 200 days 

23 and less than 301 days; 

24 ‘‘(iii) the number of requests for records to 

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1 mination within a period greater than 300 days 

2 and less than 401 days; and 

3 ‘‘(iv) the number of requests for records to 

4 which the agency has responded with a deter5 mination within a period greater than 400 days; 

6 ‘‘(H) the average number of days for the agen7 cy to provide the granted information beginning on 

8 the date on which each request was initially received 

9 by the agency, the median number of days for the 

10 agency to provide the granted information, and the 

11 range in number of days for the agency to provide 

12 the granted information; 

13 ‘‘(I) the median and average number of days 

14 for the agency to respond with a determination to 

15 administrative appeals based on the date on which 

16 each appeal was initially received by the agency; the 

17 highest number of business days taken by the agen18 cy to respond to an administrative appeal; and the 

19 lowest number of business days taken by the agency 

20 to respond to an administrative appeal; 

21 ‘‘(J) data on the 10 active requests with the 

22 earliest filing dates pending at the agency, including 

23 the amount of time that has elapsed since each re24 quest was initially received by the agency; 


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1 ‘‘(K) data on the 10 active administrative ap2 peals with the earliest filing dates pending at the 

3 agency as of September 30 of the preceding year, in4 cluding the number of business days that have 

5 elapsed since each request was initially received by 

6 the agency; 

7 ‘‘(L) the number of expedited review requests 

8 received by the agency, the number that were grant9 ed and the number that were denied, the average 

10 and median number of days for adjudicating expe11 dited review requests, and the number of requests 

12 that adjudicated within the required 10 days; 

13 ‘‘(M) the number of fee waiver requests that 

14 were granted and the number that were denied, and 

15 the average and median number of days for adjudi16 cating fee waiver determinations;’’. 

17 (b) AVAILABILITY OF RAW STATISTICAL DATA.— 

18 Section 552(e)(2) of title 5, United States Code, is amend19 ed by adding after the period the following: ‘‘In addition, 

20 each agency shall make the raw statistical data used in 

21 its reports available electronically to the public upon re22 quest.’’. 


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1 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

2 A PRIVATE ENTITY. 

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

4 amended by striking paragraph (2) and inserting the fol5 lowing: 

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

7 section in reference to information includes— 

8 ‘‘(A) any information that would be an 

9 agency record subject to the requirements of 

10 this section when maintained by an agency in 

11 any format, including an electronic format; and 

12 ‘‘(B) any information described under sub13 paragraph (A) that is maintained for an agency 

14 by an entity under a contract between the agen15 cy and the entity.’’. 

16 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV17 ICES. 

18 (a) IN GENERAL.—Chapter 21 of title 44, United 

19 States Code, is amended by inserting after section 2119 

20 the following new section: 

21 ‘‘§ 2120. Office of Government Information Services 

22 ‘‘(a) IN GENERAL.—There is established in the Na23 tional Archives an office to be known as the ‘Office of Gov24 ernment Information Services’. 

25 ‘‘(b) NATIONAL INFORMATION ADVOCATE.— 


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1 ‘‘(1) IN GENERAL.—The Office of Government 

2 Information Services shall be under the supervision 

3 and direction of an official to be known as the ‘Na4 tional Information Advocate’ who shall report di5 rectly to the Archivist of the United States. 

6 ‘‘(2) FUNCTIONS OF OFFICE.— 

7 ‘‘(A) GUIDANCE FOR REQUESTERS.— 

8 ‘‘(i) IN GENERAL.—The Office of Gov9 ernment Information Services shall pro10 vide, as a non-exclusive alternative to liti11 gation, guidance to FOIA requesters. 

12 ‘‘(ii) TYPES OF GUIDANCE.—In pro13 viding such guidance, the Office shall pro14 vide informal guidance to requesters and 

15 may provide fact-finding reviews and opin16 ions to requesters. All reviews and opinions 

17 shall be non-binding and shall be initiated 

18 only on the request of FOIA requesters. 

19 ‘‘(iii) AVAILABILITY.—Any written 

20 opinion issued pursuant to this section 

21 shall be available on the Internet in an in22 dexed, readily accessible format. 

23 ‘‘(iv) FOIA REQUESTERS.—In this 

24 paragraph, the term ‘FOIA requester’ or 

25 ‘requester’ means a person who has made 


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1 a request under section 552 of this title 

2 and who has been denied records or has 

3 not received a timely response to the re4 quest or to an administrative appeal. 

5 ‘‘(B) ANALYSES OF AGENCY OPER6 ATIONS.—The Office of Government Informa7 tion Services shall— 

8 ‘‘(i) review polices and procedures of 

9 administrative agencies under section 552 

10 of this title and compliance with that sec11 tion by administrative agencies; and 

12 ‘‘(ii) recommend policy changes to 

13 Congress and the President to improve the 

14 administration of section 552 of this title, 

15 including whether agencies are receiving 

16 and expending adequate funds to ensure 

17 compliance with that section. 

18 ‘‘(3) IMPACT ON REQUESTER ACCESS TO LITI19 GATION.—Nothing in this section shall affect the 

20 right of requesters to seek judicial review as de21 scribed in section 552 of this title.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

23 The table of sections for chapter 21 of title 44, United 

24 States Code, is amended by inserting after the item relat25 ing to section 2119 the following: 

‘‘2120. Office of Government Information Services.’’. 


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1 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

2 INFORMATION. 

3 (a) IN GENERAL.—Not later than January 1 of each 

4 of the 3 years following the date of the enactment of this 

5 Act, the Comptroller General of the United States shall 

6 submit to Congress a report on the implementation and 

7 use of section 214 of the Homeland Security Act of 2002 

8 (6 U.S.C. 133), including— 

9 (1) the number of persons in the private sector, 

10 and the number of State and local agencies, that vol11 untarily furnished records to the Department under 

12 this section; 

13 (2) the number of requests for access to records 

14 granted or denied under this section; 

15 (3) such recommendations as the Comptroller 

16 General considers appropriate regarding improve17 ments in the collection and analysis of sensitive in18 formation held by persons in the private sector, or 

19 by State and local agencies, relating to 

20 vulnerabilities of and threats to critical infrastruc21 ture, including the response to such vulnerabilities 

22 and threats; and 

23 (4) an examination of whether the nondisclo24 sure of such information has led to the increased 

25 protection of critical infrastructure. 


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1 (b) FORM.—The report shall be submitted in unclas2 sified form, but may include a classified annex. 

3 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

4 FOIA. 

5 Not later than 1 year after the date of enactment 

6 of this Act, the Office of Personnel Management shall sub7 mit to Congress a report that examines— 

8 (1) whether changes to executive branch per9 sonnel policies could be made that would— 

10 (A) provide greater encouragement to all 

11 Federal employees to fulfill their duties under 

12 section 552 of title 5, United States Code; and 

13 (B) enhance the stature of officials admin14 istering that section within the executive 

15 branch; 

16 (2) whether performance of compliance with 

17 section 552 of title 5, United States Code, should be 

18 included as a factor in personnel performance eval19 uations for any or all categories of Federal employ20 ees and officers; 

21 (3) whether an employment classification series 

22 specific to compliance with sections 552 and 552a of 

23 title 5, United States Code, should be established; 

24 (4) whether the highest level officials in par25 ticular agencies administering such sections should 


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1 be paid at a rate of pay equal to or greater than a 

2 particular minimum rate; 

3 (5) whether other changes to personnel policies 

4 can be made to ensure that there is a clear career 

5 advancement track for individuals interested in de6 voting themselves to a career in compliance with 

7 such sections; and 

8 (6) whether the executive branch should require 

9 any or all categories of Federal employees to under10 take awareness training of such sections. 

11 SEC. 14. PROMOTION OF PUBLIC DISCLOSURE. 

12 Section 552 of title 5, United States Code, is amend13 ed by adding at the end the following: 

14 ‘‘(h)(1) The policy of the Federal Government is to 

15 release information to the public in response to a request 

16 under this section— 

17 ‘‘(A) if such release is required by law; or 

18 ‘‘(B) if such release is allowed by law and the 

19 agency concerned does not reasonably foresee that 

20 disclosure would be harmful to an interest protected 

21 by an applicable exemption. 

22 ‘‘(2) All guidance provided to Federal Government 

23 employees responsible for carrying out this section shall 

24 be consistent with the policy set forth in paragraph (1).’’. 


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1 SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AU2 THORIZING DELETIONS OF MATERIAL PRO3 VIDED UNDER FOIA. 

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

5 amended in the matter appearing after paragraph (9)— 

6 (1) in the second sentence, by inserting after 

7 ‘‘amount of information deleted’’ the following: ‘‘, 

8 and the exemption under which the deletion is 

9 made,’’; and 

10 (2) in the third sentence, by inserting after 

11 ‘‘amount of the information deleted’’ the following: 

12 ‘‘, and the exemption under which the deletion is 

13 made,’’. 

Passed the House of Representatives March 14, 

2007. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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