II 

109TH CONGRESS 

1ST 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 and Mr. LEAHY) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

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,

3 SECTION 1. SHORT TITLE. 

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

5 Effectiveness in our National Government Act of 2005’’ 

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

7 SEC. 2. FINDINGS. 

8 Congress finds that—
2

•S 394 IS 

1 (1) the Freedom of Information Act was signed 

2 into law on July 4, 1966, because the American peo3 ple believe that—

4 (A) our constitutional democracy, our sys5 tem of self-government, and our commitment to 

6 popular sovereignty depends upon the consent 

7 of the governed; 

8 (B) such consent is not meaningful unless 

9 it is informed consent; and 

10 (C) as Justice Black noted in his concur11 ring opinion in Barr v. Matteo (360 U.S. 564 

12 (1959)), ‘‘The effective functioning of a free 

13 government like ours depends largely on the 

14 force of an informed public opinion. This calls 

15 for the widest possible understanding of the 

16 quality of government service rendered by all 

17 elective or appointed public officials or employ18 ees.’’; 

19 (2) the American people firmly believe that our 

20 system of government must itself be governed by a 

21 presumption of openness; 

22 (3) the Freedom of Information Act establishes 

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

24 noted by the United States Supreme Court in 

25 United States Department of State v. Ray (502 U.S. 
3

•S 394 IS 

1 164 (1991)), a presumption that applies to all agen2 cies governed by that Act; 

3 (4) ‘‘disclosure, not secrecy, is the dominant ob4 jective of the Act,’’ as noted by the United States 

5 Supreme Court in Department of Air Force v. Rose 

6 (425 U.S. 352 (1976)); 

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

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

9 (6) Congress should regularly review section 

10 552 of title 5, United States Code (commonly re11 ferred to as the Freedom of Information Act), in 

12 order to determine whether further changes and im13 provements are necessary to ensure that the Govern14 ment remains open and accessible to the American 

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

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

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

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

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

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

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

22 that status solely on the basis of the absence of institu23 tional associations of the requester, but shall consider the 

24 prior publication history of the requester. Prior publica25 tion history shall include books, magazine and newspaper 
4

•S 394 IS 

1 articles, newsletters, television and radio broadcasts, and 

2 Internet publications. If the requestor has no prior publi3 cation history or current affiliation, the agency shall con4 sider the requestor’s stated intent at the time the request 

5 is made to distribute information to a reasonably broad 

6 audience.’’. 

7 SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 

8 COSTS. 

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

10 is amended by adding at the end the following: ‘‘For pur11 poses of this section, a complainant has ‘substantially pre12 vailed’ if the complainant has obtained a substantial part 

13 of its requested relief through a judicial or administrative 

14 order or an enforceable written agreement, or if the com15 plainant’s pursuit of a nonfrivolous claim or defense has 

16 been a catalyst for a voluntary or unilateral change in po17 sition by the opposing party that provides a substantial 

18 part of the requested relief.’’. 

19 SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA20 PRICIOUS REJECTIONS OF REQUESTS. 

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

22 is amended—

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

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

25 ‘‘(ii) The Attorney General shall—
5

•S 394 IS 

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 inserting 

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

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

16 and shall not be tolled without the consent of the 

17 party filing the request’’ after ‘‘adverse determina18 tion’’. 

19 (2) EFFECTIVE DATE.—The amendment made 

20 by this subsection shall take effect 1 year after the 

21 date of enactment of this Act. 

22 (b) AVAILABILITY OF AGENCY EXEMPTIONS.—

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

24 United States Code, is amended by adding at the 

25 end the following:
6

•S 394 IS 

1 ‘‘(G)(i) If an agency fails to comply with the applica2 ble time limit provisions of this paragraph with respect 

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

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

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

6 United States; 

7 ‘‘(II) would disclose personal private informa8 tion protected by section 552a or proprietary infor9 mation; or 

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

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

12 if the agency demonstrates by clear and convincing evi13 dence that there was good cause for the failure to comply 

14 with the applicable time limit provisions.’’. 

15 (2) EFFECTIVE DATE AND APPLICATION.—The 

16 amendment made by this subsection shall take effect 

17 1 year after the date of enactment of this Act and 

18 apply to requests for information under section 552 

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

20 effective date. 

21 SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR RE22 QUESTS AND STATUS INFORMATION. 

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

24 States Code, is amended by adding at the end the fol25 lowing: 
7

•S 394 IS 

1 ‘‘(7) Each agency shall—

2 ‘‘(A) establish a system to assign an individual3 ized tracking number for each request for informa4 tion under this section; 

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

6 request, provide each person making a request with 

7 the tracking number assigned to the request; and 

8 ‘‘(C) establish a telephone line or Internet serv9 ice that provides information about the status of a 

10 request to the person making the request using the 

11 assigned tracking number, including—

12 ‘‘(i) the date on which the agency origi13 nally received the request; and 

14 ‘‘(ii) an estimated date on which the agen15 cy will complete action on the request.’’. 

16 (b) EFFECTIVE DATE AND APPLICATION.—The 

17 amendment made by this section shall take effect 1 year 

18 after the date of enactment of this Act and apply to re19 quests for information under section 552 of title 5, United 

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

21 SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. 

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

23 amended by striking paragraph (3) and inserting the fol24 lowing: 
8

•S 394 IS 

1 ‘‘(3) specifically exempted from disclosure by 

2 statute (other than section 552b of this title), pro3 vided that such statute—

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

5 of the Openness Promotes Effectiveness in our 

6 National Government Act of 2005, specifically 

7 cites to this section; and 

8 ‘‘(B)(i) requires that the matters be with9 held from the public in such a manner as to 

10 leave no discretion on the issue; or 

11 ‘‘(ii) establishes particular criteria for 

12 withholding or refers to particular types of mat13 ters to be withheld;’’. 

14 SEC. 9. REPORTING REQUIREMENTS. 

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

16 amended—

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

18 after the semicolon; 

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

20 and inserting a semicolon; and 

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

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

23 earliest filing dates pending at each agency, includ24 ing the amount of time that has elapsed since each 

25 request was originally filed; 
9

•S 394 IS 

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

2 to respond to a request beginning the date on which 

3 the request was originally filed, the median number 

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

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

6 respond to such requests; and 

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

8 granted and denied, and the average number of days 

9 for adjudicating fee status determinations. 

10 When reporting the total number of requests filed, agen11 cies shall distinguish between first person requests for per12 sonal records and other kinds of requests, and shall pro13 vide a total number for each category of requests.’’. 

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 
10

•S 394 IS 

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 5 of title 5, United 

8 States Code, is amended—

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

10 and 

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

12 ‘‘§ 596. Office of Government Information Services 

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

14 Information Services within the Administrative Con15 ference of the United States. 

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

17 shall—

18 ‘‘(1) review policies and procedures of adminis19 trative agencies under section 552 and compliance 

20 with that section by administrative agencies; 

21 ‘‘(2) conduct audits of administrative agencies 

22 on such policies and compliance and issue reports 

23 detailing the results of such audits; 

24 ‘‘(3) recommend policy changes to Congress 

25 and the President to improve the administration of
11

•S 394 IS 

1 section 552, including whether agencies are receiving 

2 and expending adequate funds to ensure compliance 

3 with that section; and 

4 ‘‘(4) offer mediation services between persons 

5 making requests under section 552 and administra6 tive agencies as a non-exclusive alternative to litiga7 tion and, at the discretion of the Office, issue advi8 sory opinions if mediation has not resolved the dis9 pute.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENT.—

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

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

13 596 and inserting the following:

‘‘596. Office of Government Information Services. 

‘‘597. Authorization of appropriations.’’.

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

15 this section shall take effect 1 year after the date of enact16 ment of this Act. 

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—
12

•S 394 IS 

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—
13

•S 394 IS 

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 
14

•S 394 IS 

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