I 

110TH CONGRESS 

1ST SESSION H. R. 1326 

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. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 5, 2007 

Mr. SMITH of Texas introduced the following bill; which was referred to the 

Committee on Oversight and Government Reform 

A BILL 

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, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Openness Promotes Effectiveness in our National Gov6 ernment Act of 2007’’ or the ‘‘OPEN Government Act of 

7 2007’’. 


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

2 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. 

3 SEC. 2. FINDINGS. 

4 Congress finds that— 

5 (1) the Freedom of Information Act was signed 

6 into law on July 4, 1966, because the American peo7 ple believe that— 

8 (A) our constitutional democracy, our sys9 tem of self-government, and our commitment to 

10 popular sovereignty depends upon the consent 

11 of the governed; 

12 (B) such consent is not meaningful unless 

13 it is informed consent; and 

14 (C) as Justice Black noted in his concur15 ring opinion in Barr v. Matteo (360 U.S. 564 

16 (1959)), ‘‘The effective functioning of a free 

17 government like ours depends largely on the 

18 force of an informed public opinion. This calls 

19 for the widest possible understanding of the 


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1 quality of government service rendered by all 

2 elective or appointed public officials or employ3 ees.’’; 

4 (2) the American people firmly believe that our 

5 system of government must itself be governed by a 

6 presumption of openness; 

7 (3) the Freedom of Information Act establishes 

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

9 noted by the United States Supreme Court in 

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

11 164 (1991)), a presumption that applies to all agen12 cies governed by that Act; 

13 (4) ‘‘disclosure, not secrecy, is the dominant ob14 jective of the Act,’’ as noted by the United States 

15 Supreme Court in Department of Air Force v. Rose 

16 (425 U.S. 352 (1976)); 

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

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

19 (6) Congress should regularly review section 

20 552 of title 5, United States Code (commonly re21 ferred to as the Freedom of Information Act), in 

22 order to determine whether further changes and im23 provements are necessary to ensure that the Govern24 ment remains open and accessible to the American 


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

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

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

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

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

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

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

8 that status solely on the basis of the absence of institu9 tional associations of the requester, but shall consider the 

10 prior publication history of the requester. Prior publica11 tion history shall include books, magazine and newspaper 

12 articles, newsletters, television and radio broadcasts, and 

13 Internet publications. If the requestor has no prior publi14 cation history or current affiliation, the agency shall con15 sider the requestor’s stated intent at the time the request 

16 is made to distribute information to a reasonably broad 

17 audience.’’. 

18 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

19 COSTS. 

20 Section 552(a)(4)(E) of title 5, United State Code, 

21 is amended by adding at the end the following: ‘‘For pur22 poses of this section only, a complainant has substantially 

23 prevailed if the complainant has obtained relief through 

24 either— 


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1 ‘‘(i) a judicial order, administrative action, 

2 or an enforceable written agreement or consent 

3 decree; or 

4 ‘‘(ii) a voluntary or unilateral change in 

5 position by the opposing party, in a case in 

6 which the complainant’s claim or defense was 

7 not frivolous.’’. 

8 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA9 PRICIOUS REJECTIONS OF REQUESTS. 

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

11 is amended— 

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

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

14 ‘‘(ii) The Attorney General shall— 

15 ‘‘(I) notify the Special Counsel of each civil ac16 tion described under the first sentence of clause (i); 

17 and 

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

19 the number of such civil actions in the preceding 

20 year. 

21 ‘‘(iii) The Special Counsel shall annually submit a re22 port to Congress on the actions taken by the Special Coun23 sel under clause (i).’’. 

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

25 (a) TIME LIMITS.— 


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

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

3 ‘‘determine within 20 days (excepting Saturdays, 

4 Sundays, and legal public holidays) after the receipt 

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

6 day period commencing on the date on which the re7 quest is first received by the agency (excepting Sat8 urdays, Sundays, and legal public holidays), which 

9 shall not be tolled without the consent of the party 

10 filing the request, determine’’. 

11 (2) EFFECTIVE DATE.—The amendment made 

12 by this subsection shall take effect 1 year after the 

13 date of enactment of this Act. 

14 (b) APPLICABILITY OF AGENCY FEES.— 

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

16 5, United States Code, is amended by adding at the 

17 end the following: 

18 ‘‘(vii) An agency may not charge any 

19 fees under this subparagraph if the agency 

20 fails to comply with any time limit that ap21 plies under paragraph (6).’’. 

22 (2) EFFECTIVE DATE AND APPLICATION.—The 

23 amendment made by this subsection shall take effect 

24 1 year after the date of enactment of this Act and 

25 shall apply to requests for information under section 


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1 552 of title 5, United States Code, filed on or after 

2 that effective date. 

3 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE4 QUESTS AND STATUS INFORMATION. 

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

6 States Code, is amended by adding at the end the fol7 lowing: 

8 ‘‘(7) Each agency shall— 

9 ‘‘(A) establish a system to assign an individual10 ized tracking number for each request for informa11 tion under this section; 

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

13 request, provide each person making a request with 

14 the tracking number assigned to the request; and 

15 ‘‘(C) establish a telephone line or Internet serv16 ice that provides information about the status of a 

17 request to the person making the request using the 

18 assigned tracking number, including— 

19 ‘‘(i) the date on which the agency origi20 nally received the request; and 

21 ‘‘(ii) an estimated date on which the agen22 cy will complete action on the request.’’. 

23 (b) EFFECTIVE DATE AND APPLICATION.—The 

24 amendment made by this section shall take effect 1 year 

25 after the date of enactment of this Act and apply to reVerDate Aug 31 2005 01:04 Mar 07, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1326.IH H1326

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1 quests for information under section 552 of title 5, United 

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

3 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

5 amended by striking paragraph (3) and inserting the fol6 lowing: 

7 ‘‘(3) specifically exempted from disclosure by 

8 statute (other than section 552b of this title), pro9 vided that such statute— 

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

11 of the Openness Promotes Effectiveness in our 

12 National Government Act of 2007, specifically 

13 cites to this section; and 

14 ‘‘(B)(i) requires that the matters be with15 held from the public in such a manner as to 

16 leave no discretion on the issue; or 

17 ‘‘(ii) establishes particular criteria for 

18 withholding or refers to particular types of mat19 ters to be withheld;’’. 

20 SEC. 9. REPORTING REQUIREMENTS. 

21 (a) ANNUAL REPORT REQUIREMENTS.—Section 

22 552(e)(1) of title 5, United States Code, is amended— 

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

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

25 ‘‘fiscal year. Information in the report shall be exVerDate Aug 31 2005 01:04 Mar 07, 2007 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1326.IH H1326

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1 pressed in terms of each principal component of the 

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

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

4 the first comma the following, ‘‘the number of occa5 sions on which each statute was relied upon,’’; 

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

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

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

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

10 which each request was initially received by the 

11 agency’’; and 

12 (5) by redesignating subparagraphs (F) and 

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

14 inserting after subparagraph (E) the following new 

15 subparagraphs: 

16 ‘‘(F) the average number of days for the 

17 agency to respond to requests beginning on the 

18 date on which each request was initially re19 ceived by the agency, the median number of 

20 days for the agency to respond to such re21 quests, and the range in number of days for the 

22 agency to respond to such requests; 

23 ‘‘(G) based on the number of business days 

24 that have elapsed since each request was ini25 tially received by the agency— 


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1 ‘‘(i) the number of requests for 

2 records to which the agency has responded 

3 with a determination within a period great4 er than 1 day and less than 201 days, stat5 ed in 20-day increments; 

6 ‘‘(ii) the number of requests for 

7 records to which the agency has responded 

8 with a determination within a period great9 er than 200 days and less than 301 days; 

10 ‘‘(iii) the number of requests for 

11 records to which the agency has responded 

12 with a determination within a period great13 er than 300 days and less than 401 days; 

14 and 

15 ‘‘(iv) the number of requests for 

16 records to which the agency has responded 

17 with a determination within a period great18 er than 400 days; 

19 ‘‘(H) the average number of days for the 

20 agency to provide the granted information be21 ginning on the date on which each request was 

22 initially received by the agency, the median 

23 number of days for the agency to provide the 

24 granted information, and the range in number 


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1 of days for the agency to provide the granted 

2 information; 

3 ‘‘(I) the median and average number of 

4 days for the agency to respond with a deter5 mination to administrative appeals based on the 

6 date on which each appeal was initially received 

7 by the agency; the highest number of business 

8 days taken by the agency to respond to an ad9 ministrative appeal; and the lowest number of 

10 business days taken by the agency to respond 

11 to an administrative appeal; 

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

13 the earliest filing dates pending at the agency, 

14 including the amount of time that has elapsed 

15 since each request was initially received by the 

16 agency; 

17 ‘‘(K) data on the 10 active administrative 

18 appeals with the earliest filing dates pending at 

19 the agency as of September 30 of the preceding 

20 year, including the number of business days 

21 that have elapsed since each request was ini22 tially received by the agency; 

23 ‘‘(L) the number of expedited review re24 quests received by the agency, the number that 

25 were granted and the number that were denied, 


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1 the average and median number of days for ad2 judicating expedited review requests, and the 

3 number of requests that adjudicated within the 

4 required 10 days; 

5 ‘‘(M) the number of fee waiver requests 

6 that were granted and the number that were 

7 denied, and the average and median number of 

8 days for adjudicating fee waiver determina9 tions;’’. 

10 (b) AVAILABILITY OF RAW STATISTICAL DATA.— 

11 Section 552(e)(2) of title 5, United States Code, is amend12 ed by adding after the period the following: ‘‘In addition, 

13 each agency shall make the raw statistical data used in 

14 its reports available electronically to the public upon re15 quest.’’. 

16 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

17 A PRIVATE ENTITY. 

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

19 amended by striking paragraph (2) and inserting the fol20 lowing: 

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

22 section in reference to information includes— 

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

24 agency record subject to the requirements of 


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1 this section when maintained by an agency in 

2 any format, including an electronic format; and 

3 ‘‘(B) any information described under sub4 paragraph (A) that is maintained for an agency 

5 by an entity under a contract between the agen6 cy and the entity.’’. 

7 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV8 ICES. 

9 (a) IN GENERAL.—Chapter 21 of title 5, United 

10 States Code, is amended by inserting after section 2119 

11 the following new section: 

12 ‘‘§ 2120. Office of Government Information Services 

13 ‘‘(a) IN GENERAL.—There is established in the Na14 tional Archives an office to be known as the ‘Office of Gov15 ernment Information Services’. 

16 ‘‘(b) NATIONAL INFORMATION ADVOCATE.— 

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

18 Information Services shall be under the supervision 

19 and direction of an official to be known as the ‘Na20 tional Information Advocate’ who shall report di21 rectly to the Archivist of the United States. 

22 ‘‘(2) FUNCTIONS OF OFFICE.— 

23 ‘‘(A) GUIDANCE FOR REQUESTERS.— 

24 ‘‘(i) IN GENERAL.—The Office of Gov25 ernment Information Services shall proVerDate Aug 31 2005 01:04 Mar 07, 2007 Jkt 059200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H1326.IH H1326

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1 vide, as a non-exclusive alternative to liti2 gation, guidance to FOIA requesters. 

3 ‘‘(ii) TYPES OF GUIDANCE.—In pro4 viding such guidance, the Office shall pro5 vide informal guidance to requesters and 

6 may provide fact-finding reviews and opin7 ions to requesters. All reviews and opinions 

8 shall be non-binding and shall be initiated 

9 only on the request of FOIA requesters. 

10 ‘‘(iii) AVAILABILITY.—Any written 

11 opinion issued pursuant to this section 

12 shall be available on the Internet in an in13 dexed, readily accessible format. 

14 ‘‘(iv) FOIA REQUESTERS.—In this 

15 paragraph, the term ‘FOIA requester’ or 

16 ‘requester’ means a person who has made 

17 a request under section 552 of this title 

18 and who has been denied records or has 

19 not received a timely response to the re20 quest or to an administrative appeal. 

21 ‘‘(B) ANALYSES OF AGENCY OPER22 ATIONS.—The Office of Government Informa23 tion Services shall— 

24 ‘‘(i) review polices and procedures of 

25 administrative agencies under section 552 


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1 of this title and compliance with that sec2 tion by administrative agencies; and 

3 ‘‘(ii) recommend policy changes to 

4 Congress and the President to improve the 

5 administration of section 552 of this title, 

6 including whether agencies are receiving 

7 and expending adequate funds to ensure 

8 compliance with that section. 

9 ‘‘(3) IMPACT ON REQUESTER ACCESS TO LITI10 GATION.—Nothing in this section shall affect the 

11 right of requesters to seek judicial review as de12 scribed in section 552 of this title.’’. 

13 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

14 The table of sections for chapter 21 of title 5, United 

15 States Code, is amended by inserting after the item relat16 ing to section 2119 the following: 

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

17 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

18 INFORMATION. 

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

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

21 Act, the Comptroller General of the United States shall 

22 submit to Congress a report on the implementation and 

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

24 (6 U.S.C. 133), including— 


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

2 and the number of State and local agencies, that vol3 untarily furnished records to the Department under 

4 this section; 

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

6 granted or denied under this section; 

7 (3) such recommendations as the Comptroller 

8 General considers appropriate regarding improve9 ments in the collection and analysis of sensitive in10 formation held by persons in the private sector, or 

11 by State and local agencies, relating to 

12 vulnerabilities of and threats to critical infrastruc13 ture, including the response to such vulnerabilities 

14 and threats; and 

15 (4) an examination of whether the nondisclo16 sure of such information has led to the increased 

17 protection of critical infrastructure. 

18 (b) FORM.—The report shall be submitted in unclas19 sified form, but may include a classified annex. 

20 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

21 FOIA. 

22 Not later than 1 year after the date of enactment 

23 of this Act, the Office of Personnel Management shall sub24 mit to Congress a report that examines— 


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1 (1) whether changes to executive branch per2 sonnel policies could be made that would— 

3 (A) provide greater encouragement to all 

4 Federal employees to fulfill their duties under 

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

6 (B) enhance the stature of officials admin7 istering that section within the executive 

8 branch; 

9 (2) whether performance of compliance with 

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

11 included as a factor in personnel performance eval12 uations for any or all categories of Federal employ13 ees and officers; 

14 (3) whether an employment classification series 

15 specific to compliance with sections 552 and 552a of 

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

17 (4) whether the highest level officials in par18 ticular agencies administering such sections should 

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

20 particular minimum rate; 

21 (5) whether other changes to personnel policies 

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

23 advancement track for individuals interested in de24 voting themselves to a career in compliance with 

25 such sections; and 


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1 (6) whether the executive branch should require 

2 any or all categories of Federal employees to under3 take awareness training of such sections. 

Æ 


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