I 

110TH CONGRESS 

1ST SESSION H. R. 1309 

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 

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

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

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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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. 

1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) the Freedom of Information Act was signed 

4 into law on July 4, 1966, because the American peo5 ple believe that— 

6 (A) our constitutional democracy, our sys7 tem of self-government, and our commitment to 

8 popular sovereignty depends upon the consent 

9 of the governed; 

10 (B) such consent is not meaningful unless 

11 it is informed consent; and 

12 (C) as Justice Black noted in his concur13 ring opinion in Barr v. Matteo (360 U.S. 564 

14 (1959)), ‘‘The effective functioning of a free 

15 government like ours depends largely on the 

16 force of an informed public opinion. This calls 

17 for the widest possible understanding of the 

18 quality of government service rendered by all 


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1 elective or appointed public officials or employ2 ees.’’; 

3 (2) the American people firmly believe that our 

4 system of government must itself be governed by a 

5 presumption of openness; 

6 (3) the Freedom of Information Act establishes 

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

8 noted by the United States Supreme Court in 

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

10 164 (1991)), a presumption that applies to all agen11 cies governed by that Act; 

12 (4) ‘‘disclosure, not secrecy, is the dominant ob13 jective of the Act,’’ as noted by the United States 

14 Supreme Court in Department of Air Force v. Rose 

15 (425 U.S. 352 (1976)); 

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

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

18 (6) Congress should regularly review section 

19 552 of title 5, United States Code (commonly re20 ferred to as the Freedom of Information Act), in 

21 order to determine whether further changes and im22 provements are necessary to ensure that the Govern23 ment remains open and accessible to the American 

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

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


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

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

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

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

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

6 that status solely on the basis of the absence of institu7 tional associations of the requester, but shall consider the 

8 prior publication history of the requester. Prior publica9 tion history shall include books, magazine and newspaper 

10 articles, newsletters, television and radio broadcasts, and 

11 Internet publications. If the requestor has no prior publi12 cation history or current affiliation, the agency shall con13 sider the requestor’s stated intent at the time the request 

14 is made to distribute information to a reasonably broad 

15 audience.’’. 

16 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

17 COSTS. 

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

19 is amended by adding at the end the following: ‘‘For pur20 poses of this section only, a complainant has substantially 

21 prevailed if the complainant has obtained relief through 

22 either— 

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

24 or an enforceable written agreement or consent 

25 decree; or 


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

2 position by the opposing party, in a case in 

3 which the complainant’s claim or defense was 

4 not frivolous.’’. 

5 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA6 PRICIOUS REJECTIONS OF REQUESTS. 

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

8 is amended— 

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

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

11 ‘‘(ii) The Attorney General shall— 

12 ‘‘(I) notify the Special Counsel of each civil ac13 tion described under the first sentence of clause (i); 

14 and 

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

16 the number of such civil actions in the preceding 

17 year. 

18 ‘‘(iii) The Special Counsel shall annually submit a re19 port to Congress on the actions taken by the Special Coun20 sel under clause (i).’’. 

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

22 (a) TIME LIMITS.— 

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

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

25 ‘‘determine within 20 days (excepting Saturdays, 


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1 Sundays, and legal public holidays) after the receipt 

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

3 day period commencing on the date on which the re4 quest is first received by the agency (excepting Sat5 urdays, Sundays, and legal public holidays), which 

6 shall not be tolled without the consent of the party 

7 filing the request, determine’’. 

8 (2) EFFECTIVE DATE.—The amendment made 

9 by this subsection shall take effect 1 year after the 

10 date of enactment of this Act. 

11 (b) APPLICABILITY OF AGENCY FEES.— 

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

13 5, United States Code, is amended by adding at the 

14 end the following: 

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

16 fees under this subparagraph if the agency 

17 fails to comply with any time limit that ap18 plies under paragraph (6).’’. 

19 (2) EFFECTIVE DATE AND APPLICATION.—The 

20 amendment made by this subsection shall take effect 

21 1 year after the date of enactment of this Act and 

22 shall apply to requests for information under section 

23 552 of title 5, United States Code, filed on or after 

24 that effective date. 


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1 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE2 QUESTS AND STATUS INFORMATION. 

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

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘(7) Each agency shall— 

7 ‘‘(A) establish a system to assign an individual8 ized tracking number for each request for informa9 tion under this section; 

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

11 request, provide each person making a request with 

12 the tracking number assigned to the request; and 

13 ‘‘(C) establish a telephone line or Internet serv14 ice that provides information about the status of a 

15 request to the person making the request using the 

16 assigned tracking number, including— 

17 ‘‘(i) the date on which the agency origi18 nally received the request; and 

19 ‘‘(ii) an estimated date on which the agen20 cy will complete action on the request.’’. 

21 (b) EFFECTIVE DATE AND APPLICATION.—The 

22 amendment made by this section shall take effect 1 year 

23 after the date of enactment of this Act and apply to re24 quests for information under section 552 of title 5, United 

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


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1 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

3 amended by striking paragraph (3) and inserting the fol4 lowing: 

5 ‘‘(3) specifically exempted from disclosure by 

6 statute (other than section 552b of this title), pro7 vided that such statute— 

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

9 of the Freedom of Information Act Amend10 ments of 2007, specifically cites to this section; 

11 and 

12 ‘‘(B)(i) requires that the matters be with13 held from the public in such a manner as to 

14 leave no discretion on the issue; or 

15 ‘‘(ii) establishes particular criteria for 

16 withholding or refers to particular types of mat17 ters to be withheld;’’. 

18 SEC. 9. REPORTING REQUIREMENTS. 

19 (a) ANNUAL REPORT REQUIREMENTS.—Section 

20 552(e)(1) of title 5, United States Code, is amended— 

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

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

23 ‘‘fiscal year. Information in the report shall be ex24 pressed in terms of each principal component of the 

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


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

2 the first comma the following, ‘‘the number of occa3 sions on which each statute was relied upon,’’; 

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

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

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

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

8 which each request was initially received by the 

9 agency’’; and 

10 (5) by redesignating subparagraphs (F) and 

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

12 inserting after subparagraph (E) the following new 

13 subparagraphs: 

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

15 agency to respond to requests beginning on the 

16 date on which each request was initially re17 ceived by the agency, the median number of 

18 days for the agency to respond to such re19 quests, and the range in number of days for the 

20 agency to respond to such requests; 

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

22 that have elapsed since each request was ini23 tially received by the agency— 

24 ‘‘(i) the number of requests for 

25 records to which the agency has responded 


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1 with a determination within a period great2 er than 1 day and less than 201 days, stat3 ed in 20-day increments; 

4 ‘‘(ii) the number of requests for 

5 records to which the agency has responded 

6 with a determination within a period great7 er than 200 days and less than 301 days; 

8 ‘‘(iii) the number of requests for 

9 records to which the agency has responded 

10 with a determination within a period great11 er than 300 days and less than 401 days; 

12 and 

13 ‘‘(iv) the number of requests for 

14 records to which the agency has responded 

15 with a determination within a period great16 er than 400 days; 

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

18 agency to provide the granted information be19 ginning on the date on which each request was 

20 initially received by the agency, the median 

21 number of days for the agency to provide the 

22 granted information, and the range in number 

23 of days for the agency to provide the granted 

24 information; 


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

2 days for the agency to respond with a deter3 mination to administrative appeals based on the 

4 date on which each appeal was initially received 

5 by the agency; the highest number of business 

6 days taken by the agency to respond to an ad7 ministrative appeal; and the lowest number of 

8 business days taken by the agency to respond 

9 to an administrative appeal; 

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

11 the earliest filing dates pending at the agency, 

12 including the amount of time that has elapsed 

13 since each request was initially received by the 

14 agency; 

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

16 appeals with the earliest filing dates pending at 

17 the agency as of September 30 of the preceding 

18 year, including the number of business days 

19 that have elapsed since each request was ini20 tially received by the agency; 

21 ‘‘(L) the number of expedited review re22 quests received by the agency, the number that 

23 were granted and the number that were denied, 

24 the average and median number of days for ad25 judicating expedited review requests, and the 


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1 number of requests that adjudicated within the 

2 required 10 days; 

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

4 that were granted and the number that were 

5 denied, and the average and median number of 

6 days for adjudicating fee waiver determina7 tions;’’. 

8 (b) AVAILABILITY OF RAW STATISTICAL DATA.— 

9 Section 552(e)(2) of title 5, United States Code, is amend10 ed by adding after the period the following: ‘‘In addition, 

11 each agency shall make the raw statistical data used in 

12 its reports available electronically to the public upon re13 quest.’’. 

14 SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY 

15 A PRIVATE ENTITY. 

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

17 amended by striking paragraph (2) and inserting the fol18 lowing: 

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

20 section in reference to information includes— 

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

22 agency record subject to the requirements of 

23 this section when maintained by an agency in 

24 any format, including an electronic format; and 


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1 ‘‘(B) any information described under sub2 paragraph (A) that is maintained for an agency 

3 by an entity under a contract between the agen4 cy and the entity.’’. 

5 SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERV6 ICES. 

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

8 States Code, is amended by inserting after section 2119 

9 the following new section: 

10 ‘‘§ 2120. Office of Government Information Services 

11 ‘‘(a) IN GENERAL.—There is established in the Na12 tional Archives an office to be known as the ‘Office of Gov13 ernment Information Services’. 

14 ‘‘(b) NATIONAL INFORMATION ADVOCATE.— 

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

16 Information Services shall be under the supervision 

17 and direction of an official to be known as the ‘Na18 tional Information Advocate’ who shall report di19 rectly to the Archivist of the United States. 

20 ‘‘(2) FUNCTIONS OF OFFICE.— 

21 ‘‘(A) GUIDANCE FOR REQUESTERS.— 

22 ‘‘(i) IN GENERAL.—The Office of Gov23 ernment Information Services shall pro24 vide, as a non-exclusive alternative to liti25 gation, guidance to FOIA requesters. 


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1 ‘‘(ii) TYPES OF GUIDANCE.—In pro2 viding such guidance, the Office shall pro3 vide informal guidance to requesters and 

4 may provide fact-finding reviews and opin5 ions to requesters. All reviews and opinions 

6 shall be non-binding and shall be initiated 

7 only on the request of FOIA requesters. 

8 ‘‘(iii) AVAILABILITY.—Any written 

9 opinion issued pursuant to this section 

10 shall be available on the Internet in an in11 dexed, readily accessible format. 

12 ‘‘(iv) FOIA REQUESTERS.—In this 

13 paragraph, the term ‘FOIA requester’ or 

14 ‘requester’ means a person who has made 

15 a request under section 552 of this title 

16 and who has been denied records or has 

17 not received a timely response to the re18 quest or to an administrative appeal. 

19 ‘‘(B) ANALYSES OF AGENCY OPER20 ATIONS.—The Office of Government Informa21 tion Services shall— 

22 ‘‘(i) review polices and procedures of 

23 administrative agencies under section 552 

24 of this title and compliance with that sec25 tion by administrative agencies; and 


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1 ‘‘(ii) recommend policy changes to 

2 Congress and the President to improve the 

3 administration of section 552 of this title, 

4 including whether agencies are receiving 

5 and expending adequate funds to ensure 

6 compliance with that section. 

7 ‘‘(3) IMPACT ON REQUESTER ACCESS TO LITI8 GATION.—Nothing in this section shall affect the 

9 right of requesters to seek judicial review as de10 scribed in section 552 of this title.’’. 

11 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

13 States Code, is amended by inserting after the item relat14 ing to section 2119 the following: 

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

15 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

16 INFORMATION. 

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

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

19 Act, the Comptroller General of the United States shall 

20 submit to Congress a report on the implementation and 

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

22 (6 U.S.C. 133), including— 

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

24 and the number of State and local agencies, that volVerDate Aug 31 2005 01:32 Mar 06, 2007 Jkt 059196 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H1309.IH H1309

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1 untarily furnished records to the Department under 

2 this section; 

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

4 granted or denied under this section; 

5 (3) such recommendations as the Comptroller 

6 General considers appropriate regarding improve7 ments in the collection and analysis of sensitive in8 formation held by persons in the private sector, or 

9 by State and local agencies, relating to 

10 vulnerabilities of and threats to critical infrastruc11 ture, including the response to such vulnerabilities 

12 and threats; and 

13 (4) an examination of whether the nondisclo14 sure of such information has led to the increased 

15 protection of critical infrastructure. 

16 (b) FORM.—The report shall be submitted in unclas17 sified form, but may include a classified annex. 

18 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

19 FOIA. 

20 Not later than 1 year after the date of enactment 

21 of this Act, the Office of Personnel Management shall sub22 mit to Congress a report that examines— 

23 (1) whether changes to executive branch per24 sonnel policies could be made that would— 


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1 (A) provide greater encouragement to all 

2 Federal employees to fulfill their duties under 

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

4 (B) enhance the stature of officials admin5 istering that section within the executive 

6 branch; 

7 (2) whether performance of compliance with 

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

9 included as a factor in personnel performance eval10 uations for any or all categories of Federal employ11 ees and officers; 

12 (3) whether an employment classification series 

13 specific to compliance with sections 552 and 552a of 

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

15 (4) whether the highest level officials in par16 ticular agencies administering such sections should 

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

18 particular minimum rate; and 

19 (5) whether other changes to personnel policies 

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

21 advancement track for individuals interested in de22 voting themselves to a career in compliance with 

23 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. 

4 SEC. 14. PROMOTION OF PUBLIC DISCLOSURE. 

5 Section 552 of title 5, United States Code, is amend6 ed by adding at the end the following: 

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

8 release information to the public in response to a request 

9 under this section— 

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

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

12 agency concerned does not reasonably foresee that 

13 disclosure would be harmful to an interest protected 

14 by an applicable exemption. 

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

16 employees responsible for carrying out this section shall 

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

Æ 


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