IB 

Union Calendar No. 21 

110TH CONGRESS 

1ST SESSION H. R. 1309 

[Report No. 110–45] 

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. CLAY (for himself, Mr. PLATTS, and Mr. WAXMAN) introduced the following bill; which was referred to the Committee on Oversight and Government Reform 

MARCH 12, 2007 

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

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

[Insert the part printed in italic] 

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, 


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

24 is amended by adding at the end the following: ‘‘For pur25 poses of this section only, a complainant has substantially 


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1 prevailed if the complainant has obtained relief through 

2 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 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA10 PRICIOUS REJECTIONS OF REQUESTS. 

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

12 is amended— 

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

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

15 ‘‘(ii) The Attorney General shall— 

16 ‘‘(I) notify the Special Counsel of each civil ac17 tion described under the first sentence of clause (i); 

18 and 

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

20 the number of such civil actions in the preceding 

21 year. 

22 ‘‘(iii) The Special Counsel shall annually submit a re23 port to Congress on the actions taken by the Special Coun24 sel under clause (i).’’. 


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

2 (a) TIME LIMITS.— 

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

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

5 ‘‘determine within 20 days (excepting Saturdays, 

6 Sundays, and legal public holidays) after the receipt 

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

8 day period commencing on the date on which the re9 quest is first received by the agency (excepting Sat10 urdays, Sundays, and legal public holidays), which 

11 shall not be tolled without the consent of the party 

12 filing the request, determine’’. 

13 (2) EFFECTIVE DATE.—The amendment made 

14 by this subsection shall take effect 1 year after the 

15 date of enactment of this Act. 

16 (b) APPLICABILITY OF AGENCY FEES.— 

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

18 5, United States Code, is amended by adding at the 

19 end the following: 

20 ‘‘(viii) An agency may not charge any fees under this 

21 subparagraph if the agency fails to comply with any time 

22 limit that applies under paragraph (6).’’. 

23 (2) EFFECTIVE DATE AND APPLICATION.—The 

24 amendment made by this subsection shall take effect 

25 1 year after the date of enactment of this Act and 

26 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 21:31 Mar 12, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1309.RH H1309

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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 Freedom of Information Act Amend12 ments of 2007, specifically cites to this section; 

13 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 21:31 Mar 12, 2007 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1309.RH H1309

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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 agency 

17 to respond to requests beginning on the date on 

18 which each request was initially received by the 

19 agency, the median number of days for the agency 

20 to respond to such requests, and the range in num21 ber of days for the agency to respond to such re22 quests; 

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

24 have elapsed since each request was initially received 

25 by the agency— 


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

2 which the agency has responded with a deter3 mination within a period greater than 1 day 

4 and less than 201 days, stated in 20-day incre5 ments; 

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

7 which the agency has responded with a deter8 mination within a period greater than 200 days 

9 and less than 301 days; 

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

11 which the agency has responded with a deter12 mination within a period greater than 300 days 

13 and less than 401 days; and 

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

15 which the agency has responded with a deter16 mination within a period greater than 400 days; 

17 ‘‘(H) the average number of days for the agen18 cy to provide the granted information beginning on 

19 the date on which each request was initially received 

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

21 agency to provide the granted information, and the 

22 range in number of days for the agency to provide 

23 the granted information; 

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

25 for the agency to respond with a determination to 


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1 administrative appeals based on the date on which 

2 each appeal was initially received by the agency; the 

3 highest number of business days taken by the agen4 cy to respond to an administrative appeal; and the 

5 lowest number of business days taken by the agency 

6 to respond to an administrative appeal; 

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

8 earliest filing dates pending at the agency, including 

9 the amount of time that has elapsed since each re10 quest was initially received by the agency; 

11 ‘‘(K) data on the 10 active administrative ap12 peals with the earliest filing dates pending at the 

13 agency as of September 30 of the preceding year, in14 cluding the number of business days that have 

15 elapsed since each request was initially received by 

16 the agency; 

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

18 received by the agency, the number that were grant19 ed and the number that were denied, the average 

20 and median number of days for adjudicating expe21 dited review requests, and the number of requests 

22 that adjudicated within the required 10 days; 

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

24 were granted and the number that were denied, and 


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1 the average and median number of days for adjudi2 cating fee waiver determinations;’’. 

3 (b) AVAILABILITY OF RAW STATISTICAL DATA.— 

4 Section 552(e)(2) of title 5, United States Code, is amend5 ed by adding after the period the following: ‘‘In addition, 

6 each agency shall make the raw statistical data used in 

7 its reports available electronically to the public upon re8 quest.’’. 

9 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

10 A PRIVATE ENTITY. 

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

12 amended by striking paragraph (2) and inserting the fol13 lowing: 

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

15 section in reference to information includes— 

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

17 agency record subject to the requirements of 

18 this section when maintained by an agency in 

19 any format, including an electronic format; and 

20 ‘‘(B) any information described under sub21 paragraph (A) that is maintained for an agency 

22 by an entity under a contract between the agen23 cy and the entity.’’. 


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1 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV2 ICES. 

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

4 States Code, is amended by inserting after section 2119 

5 the following new section: 

6 ‘‘§ 2120. Office of Government Information Services 

7 ‘‘(a) IN GENERAL.—There is established in the Na8 tional Archives an office to be known as the ‘Office of Gov9 ernment Information Services’. 

10 ‘‘(b) NATIONAL INFORMATION ADVOCATE.— 

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

12 Information Services shall be under the supervision 

13 and direction of an official to be known as the ‘Na14 tional Information Advocate’ who shall report di15 rectly to the Archivist of the United States. 

16 ‘‘(2) FUNCTIONS OF OFFICE.— 

17 ‘‘(A) GUIDANCE FOR REQUESTERS.— 

18 ‘‘(i) IN GENERAL.—The Office of Gov19 ernment Information Services shall pro20 vide, as a non-exclusive alternative to liti21 gation, guidance to FOIA requesters. 

22 ‘‘(ii) TYPES OF GUIDANCE.—In pro23 viding such guidance, the Office shall pro24 vide informal guidance to requesters and 

25 may provide fact-finding reviews and opin26 ions to requesters. All reviews and opinions 


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1 shall be non-binding and shall be initiated 

2 only on the request of FOIA requesters. 

3 ‘‘(iii) AVAILABILITY.—Any written 

4 opinion issued pursuant to this section 

5 shall be available on the Internet in an in6 dexed, readily accessible format. 

7 ‘‘(iv) FOIA REQUESTERS.—In this 

8 paragraph, the term ‘FOIA requester’ or 

9 ‘requester’ means a person who has made 

10 a request under section 552 of this title 

11 and who has been denied records or has 

12 not received a timely response to the re13 quest or to an administrative appeal. 

14 ‘‘(B) ANALYSES OF AGENCY OPER15 ATIONS.—The Office of Government Informa16 tion Services shall— 

17 ‘‘(i) review polices and procedures of 

18 administrative agencies under section 552 

19 of this title and compliance with that sec20 tion by administrative agencies; and 

21 ‘‘(ii) recommend policy changes to 

22 Congress and the President to improve the 

23 administration of section 552 of this title, 

24 including whether agencies are receiving 


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1 and expending adequate funds to ensure 

2 compliance with that section. 

3 ‘‘(3) IMPACT ON REQUESTER ACCESS TO LITI4 GATION.—Nothing in this section shall affect the 

5 right of requesters to seek judicial review as de6 scribed in section 552 of this title.’’. 

7 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

9 States Code, is amended by inserting after the item relat10 ing to section 2119 the following: 

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

11 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

12 INFORMATION. 

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

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

15 Act, the Comptroller General of the United States shall 

16 submit to Congress a report on the implementation and 

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

18 (6 U.S.C. 133), including— 

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

20 and the number of State and local agencies, that vol21 untarily furnished records to the Department under 

22 this section; 

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

24 granted or denied under this section; 


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1 (3) such recommendations as the Comptroller 

2 General considers appropriate regarding improve3 ments in the collection and analysis of sensitive in4 formation held by persons in the private sector, or 

5 by State and local agencies, relating to 

6 vulnerabilities of and threats to critical infrastruc7 ture, including the response to such vulnerabilities 

8 and threats; and 

9 (4) an examination of whether the nondisclo10 sure of such information has led to the increased 

11 protection of critical infrastructure. 

12 (b) FORM.—The report shall be submitted in unclas13 sified form, but may include a classified annex. 

14 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

15 FOIA. 

16 Not later than 1 year after the date of enactment 

17 of this Act, the Office of Personnel Management shall sub18 mit to Congress a report that examines— 

19 (1) whether changes to executive branch per20 sonnel policies could be made that would— 

21 (A) provide greater encouragement to all 

22 Federal employees to fulfill their duties under 

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


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1 (B) enhance the stature of officials admin2 istering that section within the executive 

3 branch; 

4 (2) whether performance of compliance with 

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

6 included as a factor in personnel performance eval7 uations for any or all categories of Federal employ8 ees and officers; 

9 (3) whether an employment classification series 

10 specific to compliance with sections 552 and 552a of 

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

12 (4) whether the highest level officials in par13 ticular agencies administering such sections should 

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

15 particular minimum rate; 

16 (5) whether other changes to personnel policies 

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

18 advancement track for individuals interested in de19 voting themselves to a career in compliance with 

20 such sections; and 

21 (6) whether the executive branch should require 

22 any or all categories of Federal employees to under23 take awareness training of such sections. 


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1 SEC. 14. PROMOTION OF PUBLIC DISCLOSURE. 

2 Section 552 of title 5, United States Code, is amend3 ed by adding at the end the following: 

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

5 release information to the public in response to a request 

6 under this section— 

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

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

9 agency concerned does not reasonably foresee that 

10 disclosure would be harmful to an interest protected 

11 by an applicable exemption. 

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

13 employees responsible for carrying out this section shall 

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

15 SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AU16 THORIZING DELETIONS OF MATERIAL PRO17 VIDED UNDER FOIA. 

18 Section 552(b) of title 5, United States Code, is amend19 ed in the matter appearing after paragraph (9)— 

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

21 ‘‘amount of information deleted’’ the following: ‘‘, and 

22 the exemption under which the deletion is made,’’; 

23 and 

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

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


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1 and the exemption under which the deletion is 

2 made,’’. 


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Union Calendar No. 21 

110TH CONGRESS 

1ST SESSION H. R. 1309 

[Report No. 110

–45] 

A BILL 

To promote openness in Government by strengthmation Act), and for other purposes. (commonly referred to as the Freedom of Infor- ening section 552 of title 5, United States Code 

MARCH 12, 2007 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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