II 

Calendar No. 628 

109TH CONGRESS 

2D SESSION S. 394 

To promote accessibility, accountability, and 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 SENATE OF THE UNITED STATES 

FEBRUARY 16, 2005 

Mr. CORNYN (for himself, Mr. LEAHY, Mr. ISAKSON, Mr. ALEXANDER, Mr. 

NELSON of Nebraska, and Mr. FEINGOLD) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

SEPTEMBER 21, 2006 

Reported by Mr. SPECTER, without amendment 

A BILL 

To promote accessibility, accountability, and 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. 

2 This Act may be cited as the ‘‘Openness Promotes 

3 Effectiveness in our National Government Act of 2005’’ 

4 or the ‘‘OPEN Government Act of 2005’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds that— 

7 (1) the Freedom of Information Act was signed 

8 into law on July 4, 1966, because the American peo9 ple believe that— 

10 (A) our constitutional democracy, our sys11 tem of self-government, and our commitment to 

12 popular sovereignty depends upon the consent 

13 of the governed; 

14 (B) such consent is not meaningful unless 

15 it is informed consent; and 

16 (C) as Justice Black noted in his concur17 ring opinion in Barr v. Matteo (360 U.S. 564 

18 (1959)), ‘‘The effective functioning of a free 

19 government like ours depends largely on the 

20 force of an informed public opinion. This calls 

21 for the widest possible understanding of the 

22 quality of government service rendered by all 

23 elective or appointed public officials or employ24 ees.’’; 


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1 (2) the American people firmly believe that our 

2 system of government must itself be governed by a 

3 presumption of openness; 

4 (3) the Freedom of Information Act establishes 

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

6 noted by the United States Supreme Court in 

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

8 164 (1991)), a presumption that applies to all agen9 cies governed by that Act; 

10 (4) ‘‘disclosure, not secrecy, is the dominant ob11 jective of the Act,’’ as noted by the United States 

12 Supreme Court in Department of Air Force v. Rose 

13 (425 U.S. 352 (1976)); 

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

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

16 (6) Congress should regularly review section 

17 552 of title 5, United States Code (commonly re18 ferred to as the Freedom of Information Act), in 

19 order to determine whether further changes and im20 provements are necessary to ensure that the Govern21 ment remains open and accessible to the American 

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

23 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 States Code, 

19 is amended by adding at the end the following: ‘‘For pur20 poses of this section, a complainant has ‘substantially pre21 vailed’ if the complainant has obtained a substantial part 

22 of its requested relief through a judicial or administrative 

23 order or an enforceable written agreement, or if the com24 plainant’s pursuit of a nonfrivolous claim or defense has 

25 been a catalyst for a voluntary or unilateral change in poVerDate Aug 31 2005 02:14 Sep 22, 2006 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S394.RS S394

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1 sition by the opposing party that provides a substantial 

2 part of the requested relief.’’. 

3 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA4 PRICIOUS REJECTIONS OF REQUESTS. 

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

6 is amended— 

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

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

9 ‘‘(ii) The Attorney General shall— 

10 ‘‘(I) notify the Special Counsel of each civil ac11 tion described under the first sentence of clause (i); 

12 and 

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

14 the number of such civil actions in the preceding 

15 year. 

16 ‘‘(iii) The Special Counsel shall annually submit a re17 port to Congress on the actions taken by the Special Coun18 sel under clause (i).’’. 

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

20 (a) TIME LIMITS.— 

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

22 title 5, United States Code, is amended by inserting 

23 ‘‘, and the 20-day period shall commence on the date 

24 on which the request is first received by the agency, 

25 and shall not be tolled without the consent of the 


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1 party filing the request’’ after ‘‘adverse determina2 tion’’. 

3 (2) EFFECTIVE DATE.—The amendment made 

4 by this subsection shall take effect 1 year after the 

5 date of enactment of this Act. 

6 (b) AVAILABILITY OF AGENCY EXEMPTIONS.— 

7 (1) IN GENERAL.—Section 552(a)(6) of title 5, 

8 United States Code, is amended by adding at the 

9 end the following: 

10 ‘‘(G)(i) If an agency fails to comply with the applica11 ble time limit provisions of this paragraph with respect 

12 to a request, the agency may not assert any exemption 

13 under subsection (b) to that request, unless disclosure— 

14 ‘‘(I) would endanger the national security of the 

15 United States; 

16 ‘‘(II) would disclose personal private informa17 tion protected by section 552a or proprietary infor18 mation; or 

19 ‘‘(III) is otherwise prohibited by law. 

20 ‘‘(ii) A court may waive the application of clause (i) 

21 if the agency demonstrates by clear and convincing evi22 dence that there was good cause for the failure to comply 

23 with the applicable time limit provisions.’’. 

24 (2) EFFECTIVE DATE AND APPLICATION.—The 

25 amendment made by this subsection shall take effect 


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

2 apply to requests for information under section 552 

3 of title 5, United States Code, filed on or after that 

4 effective date. 

5 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE6 QUESTS AND STATUS INFORMATION. 

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

8 States Code, is amended by adding at the end the fol9 lowing: 

10 ‘‘(7) Each agency shall— 

11 ‘‘(A) establish a system to assign an individual12 ized tracking number for each request for informa13 tion under this section; 

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

15 request, provide each person making a request with 

16 the tracking number assigned to the request; and 

17 ‘‘(C) establish a telephone line or Internet serv18 ice that provides information about the status of a 

19 request to the person making the request using the 

20 assigned tracking number, including— 

21 ‘‘(i) the date on which the agency origi22 nally received the request; and 

23 ‘‘(ii) an estimated date on which the agen24 cy will complete action on the request.’’. 


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1 (b) EFFECTIVE DATE AND APPLICATION.—The 

2 amendment made by this section shall take effect 1 year 

3 after the date of enactment of this Act and apply to re4 quests for information under section 552 of title 5, United 

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

6 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

8 amended by striking paragraph (3) and inserting the fol9 lowing: 

10 ‘‘(3) specifically exempted from disclosure by 

11 statute (other than section 552b of this title), pro12 vided that such statute— 

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

14 of the Openness Promotes Effectiveness in our 

15 National Government Act of 2005, specifically 

16 cites to this section; and 

17 ‘‘(B)(i) requires that the matters be with18 held from the public in such a manner as to 

19 leave no discretion on the issue; or 

20 ‘‘(ii) establishes particular criteria for 

21 withholding or refers to particular types of mat22 ters to be withheld;’’. 

23 SEC. 9. REPORTING REQUIREMENTS. 

24 Section 552(e)(1) of title 5, United States Code, is 

25 amended— 


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1 (1) in subparagraph (F), by striking ‘‘and’’ 

2 after the semicolon; 

3 (2) in subparagraph (G), by striking the period 

4 and inserting a semicolon; and 

5 (3) by adding at the end the following: 

6 ‘‘(H) data on the 10 active requests with the 

7 earliest filing dates pending at each agency, includ8 ing the amount of time that has elapsed since each 

9 request was originally filed; 

10 ‘‘(I) the average number of days for the agency 

11 to respond to a request beginning the date on which 

12 the request was originally filed, the median number 

13 of days for the agency to respond to such requests, 

14 and the range in number of days for the agency to 

15 respond to such requests; and 

16 ‘‘(J) the number of fee status requests that are 

17 granted and denied, and the average number of days 

18 for adjudicating fee status determinations. 

19 When reporting the total number of requests filed, agen20 cies shall distinguish between first person requests for per21 sonal records and other kinds of requests, and shall pro22 vide a total number for each category of requests.’’. 


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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 5 of title 5, United 

19 States Code, is amended— 

20 (1) by redesignating section 596 as section 597; 

21 and 

22 (2) by inserting after section 595 the following: 

23 ‘‘§ 596. Office of Government Information Services 

24 ‘‘(a) There is established the Office of Government 

25 Information Services within the Administrative Con26 ference of the United States. 


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1 ‘‘(b) The Office of Government Information Services 

2 shall— 

3 ‘‘(1) review policies and procedures of adminis4 trative agencies under section 552 and compliance 

5 with that section by administrative agencies; 

6 ‘‘(2) conduct audits of administrative agencies 

7 on such policies and compliance and issue reports 

8 detailing the results of such audits; 

9 ‘‘(3) recommend policy changes to Congress 

10 and the President to improve the administration of 

11 section 552, including whether agencies are receiving 

12 and expending adequate funds to ensure compliance 

13 with that section; and 

14 ‘‘(4) offer mediation services between persons 

15 making requests under section 552 and administra16 tive agencies as a non-exclusive alternative to litiga17 tion and, at the discretion of the Office, issue advi18 sory opinions if mediation has not resolved the dis19 pute.’’. 

20 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

22 Code, is amended by striking the item relating to section 

23 596 and inserting the following: 

‘‘596. Office of Government Information Services. 

‘‘597. Authorization of appropriations.’’. 


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1 (c) EFFECTIVE DATE.—The amendments made by 

2 this section shall take effect 1 year after the date of enact3 ment of this Act. 

4 SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 

5 INFORMATION. 

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

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

8 Act, the Comptroller General of the United States shall 

9 submit to Congress a report on the implementation and 

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

11 (6 U.S.C. 133), including— 

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

13 and the number of State and local agencies, that vol14 untarily furnished records to the Department under 

15 this section; 

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

17 granted or denied under this section; 

18 (3) such recommendations as the Comptroller 

19 General considers appropriate regarding improve20 ments in the collection and analysis of sensitive in21 formation held by persons in the private sector, or 

22 by State and local agencies, relating to 

23 vulnerabilities of and threats to critical infrastruc24 ture, including the response to such vulnerabilities 

25 and threats; and 


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1 (4) an examination of whether the nondisclo2 sure of such information has led to the increased 

3 protection of critical infrastructure. 

4 (b) FORM.—The report shall be submitted in unclas5 sified form, but may include a classified annex. 

6 SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO 

7 FOIA. 

8 Not later than 1 year after the date of enactment 

9 of this Act, the Office of Personnel Management shall sub10 mit to Congress a report that examines— 

11 (1) whether changes to executive branch per12 sonnel policies could be made that would— 

13 (A) provide greater encouragement to all 

14 Federal employees to fulfill their duties under 

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

16 (B) enhance the stature of officials admin17 istering that section within the executive 

18 branch; 

19 (2) whether performance of compliance with 

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

21 included as a factor in personnel performance eval22 uations for any or all categories of Federal employ23 ees and officers; 


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1 (3) whether an employment classification series 

2 specific to compliance with sections 552 and 552a of 

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

4 (4) whether the highest level officials in par5 ticular agencies administering such sections should 

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

7 particular minimum rate; 

8 (5) whether other changes to personnel policies 

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

10 advancement track for individuals interested in de11 voting themselves to a career in compliance with 

12 such sections; and 

13 (6) whether the executive branch should require 

14 any or all categories of Federal employees to under15 take awareness training of such sections. 


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Calendar No. 628 

109TH CONGRESS 

2D SESSION S. 394 

A BILL 

To promote accessibility, accountability, and openand for other purposes. ferred to as the Freedom of Information Act), of title 5, United States Code (commonly re- ness in Government by strengthening section 552 

SEPTEMBER 21, 2006 

Reported without amendment 


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