II 

114TH CONGRESS 

1ST SESSION S. 337 

To improve the Freedom of Information Act. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 2, 2015 

Mr. CORNYN (for himself, Mr. LEAHY, and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To improve the Freedom of Information Act. 

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 ‘‘FOIA Improvement 

5 Act of 2015’’. 

6 SEC. 2. AMENDMENTS TO FOIA. 

7 Section 552 of title 5, United States Code, is amend8 ed— 

9 (1) in subsection (a)— 

10 (A) in paragraph (2)— 

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1 (i) in the matter preceding subpara2 graph (A), by striking ‘‘for public inspec3 tion and copying’’ and inserting ‘‘for public 

4 inspection in an electronic format’’; 

5 (ii) by striking subparagraph (D) and 

6 inserting the following: 

7 ‘‘(D) copies of all records, regardless of form or 

8 format— 

9 ‘‘(i) that have been released to any person 

10 under paragraph (3); and 

11 ‘‘(ii)(I) that because of the nature of their 

12 subject matter, the agency determines have be13 come or are likely to become the subject of sub14 sequent requests for substantially the same 

15 records; or 

16 ‘‘(II) that have been requested 3 or more 

17 times; and’’; and 

18 (iii) in the undesignated matter fol19 lowing subparagraph (E), by striking 

20 ‘‘public inspection and copying current’’ 

21 and inserting ‘‘public inspection in an elec22 tronic format current’’; 

23 (B) in paragraph (4)(A), by striking clause 

24 (viii) and inserting the following: 

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1 ‘‘(viii)(I) Except as provided in subclause (II), 

2 an agency shall not assess any search fees (or in the 

3 case of a requester described under clause (ii)(II) of 

4 this subparagraph, duplication fees) under this sub5 paragraph if the agency has failed to comply with 

6 any time limit under paragraph (6). 

7 ‘‘(II)(aa) If an agency has determined that un8 usual circumstances apply (as the term is defined in 

9 paragraph (6)(B)) and the agency provided a timely 

10 written notice to the requester in accordance with 

11 paragraph (6)(B), a failure described in subclause 

12 (I) is excused for an additional 10 days. If the agen13 cy fails to comply with the extended time limit, the 

14 agency may not assess any search fees (or in the 

15 case of a requester described under clause (ii)(II) of 

16 this subparagraph, duplication fees). 

17 ‘‘(bb) If an agency has determined that unusual 

18 circumstances apply and more than 50,000 pages 

19 are necessary to respond to the request, an agency 

20 may charge search fees (or in the case of a requester 

21 described under clause (ii)(II) of this subparagraph, 

22 duplication fees) if the agency has provided a timely 

23 written notice to the requester in accordance with 

24 paragraph (6)(B) and the agency has discussed with 

25 the requester via written mail, electronic mail, or 

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1 telephone (or made not less than 3 good-faith at2 tempts to do so) how the requester could effectively 

3 limit the scope of the request in accordance with 

4 paragraph (6)(B)(ii). 

5 ‘‘(cc) If a court has determined that exceptional 

6 circumstances exist (as that term is defined in para7 graph (6)(C)), a failure described in subclause (I) 

8 shall be excused for the length of time provided by 

9 the court order.’’; 

10 (C) in paragraph (6)— 

11 (i) in subparagraph (A)(i), by striking 

12 ‘‘making such request’’ and all that follows 

13 through ‘‘determination; and’’ and insert14 ing the following: ‘‘making such request 

15 of— 

16 ‘‘(I) such determination and the rea17 sons therefor; 

18 ‘‘(II) the right of such person to seek 

19 assistance from the FOIA Public Liaison 

20 of the agency; and 

21 ‘‘(III) in the case of an adverse deter22 mination— 

23 ‘‘(aa) the right of such person to 

24 appeal to the head of the agency, 

25 within a period determined by the 

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1 head of the agency that is not less 

2 than 90 days after the date of such 

3 adverse determination; and 

4 ‘‘(bb) the right of such person to 

5 seek dispute resolution services from 

6 the FOIA Public Liaison of the agen7 cy or the Office of Government Infor8 mation Services; and’’; and 

9 (ii) in subparagraph (B)(ii), by strik10 ing ‘‘the agency.’’ and inserting ‘‘the agen11 cy, and notify the requester of the right of 

12 the requester to seek dispute resolution 

13 services from the Office of Government In14 formation Services.’’; and 

15 (D) by adding at the end the following: 

16 ‘‘(8)(A) An agency— 

17 ‘‘(i) shall— 

18 ‘‘(I) withhold information under this sec19 tion only if— 

20 ‘‘(aa) the agency reasonably foresees 

21 that disclosure would harm an interest pro22 tected by an exemption described in sub23 section (b) or other provision of law; or 

24 ‘‘(bb) disclosure is prohibited by law; 

25 and 

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1 ‘‘(II)(aa) consider whether partial disclo2 sure of information is possible whenever the 

3 agency determines that a full disclosure of a re4 quested record is not possible; and 

5 ‘‘(bb) take reasonable steps necessary to 

6 segregate and release nonexempt information; 

7 and 

8 ‘‘(ii) may not— 

9 ‘‘(I) withhold information requested under 

10 this section merely because the agency can dem11 onstrate, as a technical matter, that the records 

12 fall within the scope of an exemption described 

13 in subsection (b); or 

14 ‘‘(II) withhold information requested under 

15 this section merely because disclosure of the in16 formation may be embarrassing to the agency 

17 or because of speculative or abstract concerns. 

18 ‘‘(B) Nothing in this paragraph requires disclosure 

19 of information that is otherwise prohibited from disclosure 

20 by law, or otherwise exempted from disclosure under sub21 section (b)(3).’’; 

22 (2) in subsection (b), by amending paragraph 

23 (5) to read as follows: 

24 ‘‘(5) inter-agency or intra-agency memoran25 dums or letters that would not be available by law 

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1 to a party other than an agency in litigation with 

2 the agency, if the requested record or information 

3 was created less than 25 years before the date on 

4 which the request was made;’’; 

5 (3) in subsection (e)— 

6 (A) in paragraph (1)— 

7 (i) in the matter preceding subpara8 graph (A), by inserting ‘‘and to the Direc9 tor of the Office of Government Informa10 tion Services’’ after ‘‘United States’’; 

11 (ii) in subparagraph (N), by striking 

12 ‘‘and’’ at the end; 

13 (iii) in subparagraph (O), by striking 

14 the period at the end and inserting a semi15 colon; and 

16 (iv) by adding at the end the fol17 lowing: 

18 ‘‘(P) the number of times the agency denied a 

19 request for records under subsection (c); and 

20 ‘‘(Q) the number of records that were made 

21 available for public inspection in an electronic for22 mat under subsection (a)(2).’’; 

23 (B) by striking paragraph (3) and insert24 ing the following: 

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1 ‘‘(3) Each agency shall make each such report avail2 able for public inspection in an electronic format. In addi3 tion, each agency shall make the raw statistical data used 

4 in each report available in a timely manner for public in5 spection in an electronic format, which shall be made 

6 available— 

7 ‘‘(A) without charge, license, or registration re8 quirement; 

9 ‘‘(B) in an aggregated, searchable format; and 

10 ‘‘(C) in a format that may be downloaded in 

11 bulk.’’; 

12 (C) in paragraph (4)— 

13 (i) by striking ‘‘Government Reform 

14 and Oversight’’ and inserting ‘‘Oversight 

15 and Government Reform’’; 

16 (ii) by inserting ‘‘Homeland Security 

17 and’’ before ‘‘Governmental Affairs’’; and 

18 (iii) by striking ‘‘April’’ and inserting 

19 ‘‘March’’; and 

20 (D) by striking paragraph (6) and insert21 ing the following: 

22 ‘‘(6)(A) The Attorney General of the United States 

23 shall submit to the Committee on Oversight and Govern24 ment Reform of the House of Representatives, the Com25 mittee on the Judiciary of the Senate, and the President 

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1 a report on or before March 1 of each calendar year, which 

2 shall include for the prior calendar year— 

3 ‘‘(i) a listing of the number of cases arising 

4 under this section; 

5 ‘‘(ii) a listing of— 

6 ‘‘(I) each subsection, and any exemption, if 

7 applicable, involved in each case arising under 

8 this section; 

9 ‘‘(II) the disposition of each case arising 

10 under this section; and 

11 ‘‘(III) the cost, fees, and penalties assessed 

12 under subparagraphs (E), (F), and (G) of sub13 section (a)(4); and 

14 ‘‘(iii) a description of the efforts undertaken by 

15 the Department of Justice to encourage agency com16 pliance with this section. 

17 ‘‘(B) The Attorney General of the United States shall 

18 make— 

19 ‘‘(i) each report submitted under subparagraph 

20 (A) available for public inspection in an electronic 

21 format; and 

22 ‘‘(ii) the raw statistical data used in each report 

23 submitted under subparagraph (A) available for pub24 lic inspection in an electronic format, which shall be 

25 made available— 

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1 ‘‘(I) without charge, license, or registration 

2 requirement; 

3 ‘‘(II) in an aggregated, searchable format; 

4 and 

5 ‘‘(III) in a format that may be downloaded 

6 in bulk.’’; 

7 (4) in subsection (g), in the matter preceding 

8 paragraph (1), by striking ‘‘publicly available upon 

9 request’’ and inserting ‘‘available for public inspec10 tion in an electronic format’’; 

11 (5) in subsection (h)— 

12 (A) in paragraph (1), by adding at the end 

13 the following: ‘‘The head of the Office shall be 

14 the Director of the Office of Government Infor15 mation Services.’’; 

16 (B) in paragraph (2), by striking subpara17 graph (C) and inserting the following: 

18 ‘‘(C) identify procedures and methods for im19 proving compliance under this section.’’; 

20 (C) by striking paragraph (3) and insert21 ing the following: 

22 ‘‘(3) The Office of Government Information Services 

23 shall offer mediation services to resolve disputes between 

24 persons making requests under this section and adminis25 trative agencies as a non-exclusive alternative to litigation 

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1 and may issue advisory opinions at the discretion of the 

2 Office or upon request of any party to a dispute.’’; and 

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

4 ‘‘(4)(A) Not less frequently than annually, the Direc5 tor of the Office of Government Information Services shall 

6 submit to the Committee on Oversight and Government 

7 Reform of the House of Representatives, the Committee 

8 on the Judiciary of the Senate, and the President— 

9 ‘‘(i) a report on the findings of the information 

10 reviewed and identified under paragraph (2); 

11 ‘‘(ii) a summary of the activities of the Office 

12 of Government Information Services under para13 graph (3), including— 

14 ‘‘(I) any advisory opinions issued; and 

15 ‘‘(II) the number of times each agency en16 gaged in dispute resolution with the assistance 

17 of the Office of Government Information Serv18 ices or the FOIA Public Liaison; and 

19 ‘‘(iii) legislative and regulatory recommenda20 tions, if any, to improve the administration of this 

21 section. 

22 ‘‘(B) The Director of the Office of Government Infor23 mation Services shall make each report submitted under 

24 subparagraph (A) available for public inspection in an 

25 electronic format. 

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1 ‘‘(C) The Director of the Office of Government Infor2 mation Services shall not be required to obtain the prior 

3 approval, comment, or review of any officer or agency of 

4 the United States, including the Department of Justice, 

5 the Archivist of the United States, or the Office of Man6 agement and Budget before submitting to Congress, or 

7 any committee or subcommittee thereof, any reports, rec8 ommendations, testimony, or comments, if such submis9 sions include a statement indicating that the views ex10 pressed therein are those of the Director and do not nec11 essarily represent the views of the President. 

12 ‘‘(5) The Director of the Office of Government Infor13 mation Services may directly submit additional informa14 tion to Congress and the President as the Director deter15 mines to be appropriate. 

16 ‘‘(6) Not less frequently than annually, the Office of 

17 Government Information Services shall conduct a meeting 

18 that is open to the public on the review and reports by 

19 the Office and shall allow interested persons to appear and 

20 present oral or written statements at the meeting.’’; 

21 (6) by striking subsections (i), (j), and (k), and 

22 inserting the following: 

23 ‘‘(i) The Government Accountability Office shall— 

24 ‘‘(1) not later than 1 year after the date of en25 actment of the FOIA Improvement Act of 2015 and 

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1 every 2 years thereafter, conduct audits of 3 or more 

2 administrative agencies on compliance with and im3 plementation of the requirements of this section and 

4 issue reports detailing the results of such audits; 

5 ‘‘(2) not later than 1 year after the date of en6 actment of the FOIA Improvement Act of 2015 and 

7 every 2 years thereafter, issue a report cataloging 

8 the number of exemptions described in paragraphs 

9 (3) and (5) of subsection (b) and the use of such ex10 emptions by each agency; 

11 ‘‘(3) not later than 1 year after the date of en12 actment of the FOIA Improvement Act of 2015, 

13 conduct a study on the methods Federal agencies 

14 use to reduce the backlog of requests under this sec15 tion and issue a report on the effectiveness of those 

16 methods; and 

17 ‘‘(4) submit copies of all reports and audits de18 scribed in this subsection to the Committee on Over19 sight and Government Reform of the House of Rep20 resentatives and the Committee on the Judiciary of 

21 the Senate. 

22 ‘‘(j)(1) Each agency shall designate a Chief FOIA Of23 ficer who shall be a senior official of such agency (at the 

24 Assistant Secretary or equivalent level). 

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1 ‘‘(2) The Chief FOIA Officer of each agency shall, 

2 subject to the authority of the head of the agency— 

3 ‘‘(A) have agency-wide responsibility for effi4 cient and appropriate compliance with this section; 

5 ‘‘(B) monitor implementation of this section 

6 throughout the agency and keep the head of the 

7 agency, the chief legal officer of the agency, and the 

8 Attorney General appropriately informed of the 

9 agency’s performance in implementing this section; 

10 ‘‘(C) recommend to the head of the agency such 

11 adjustments to agency practices, policies, personnel, 

12 and funding as may be necessary to improve its im13 plementation of this section; 

14 ‘‘(D) review and report to the Attorney General, 

15 through the head of the agency, at such times and 

16 in such formats as the Attorney General may direct, 

17 on the agency’s performance in implementing this 

18 section; 

19 ‘‘(E) facilitate public understanding of the pur20 poses of the statutory exemptions of this section by 

21 including concise descriptions of the exemptions in 

22 both the agency’s handbook issued under subsection 

23 (g), and the agency’s annual report on this section, 

24 and by providing an overview, where appropriate, of 

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1 certain general categories of agency records to which 

2 those exemptions apply; 

3 ‘‘(F) offer training to agency staff regarding 

4 their responsibilities under this section; 

5 ‘‘(G) serve as the primary agency liaison with 

6 the Office of Government Information Services and 

7 the Office of Information Policy; and 

8 ‘‘(H) designate 1 or more FOIA Public Liai9 sons. 

10 ‘‘(3) The Chief FOIA Officer of each agency shall re11 view, not less frequently than annually, all aspects of the 

12 administration of this section by the agency to ensure 

13 compliance with the requirements of this section, includ14 ing— 

15 ‘‘(A) agency regulations; 

16 ‘‘(B) disclosure of records required under para17 graphs (2) and (8) of subsection (a); 

18 ‘‘(C) assessment of fees and determination of 

19 eligibility for fee waivers; 

20 ‘‘(D) the timely processing of requests for infor21 mation under this section; 

22 ‘‘(E) the use of exemptions under subsection 

23 (b); and 

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1 ‘‘(F) dispute resolution services with the assist2 ance of the Office of Government Information Serv3 ices or the FOIA Public Liaison. 

4 ‘‘(k)(1) There is established in the executive branch 

5 the Chief FOIA Officers Council (referred to in this sub6 section as the ‘Council’). 

7 ‘‘(2) The Council shall be comprised of the following 

8 members: 

9 ‘‘(A) The Deputy Director for Management of 

10 the Office of Management and Budget. 

11 ‘‘(B) The Director of the Office of Information 

12 Policy at the Department of Justice. 

13 ‘‘(C) The Director of the Office of Government 

14 Information Services. 

15 ‘‘(D) The Chief FOIA Officer of each agency. 

16 ‘‘(E) Any other officer or employee of the 

17 United States as designated by the Co-Chairs. 

18 ‘‘(3) The Director of the Office of Information Policy 

19 at the Department of Justice and the Director of the Of20 fice of Government Information Services shall be the Co21 Chairs of the Council. 

22 ‘‘(4) The Administrator of General Services shall pro23 vide administrative and other support for the Council. 

24 ‘‘(5)(A) The duties of the Council shall include the 

25 following: 

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1 ‘‘(i) Develop recommendations for increasing 

2 compliance and efficiency under this section. 

3 ‘‘(ii) Disseminate information about agency ex4 periences, ideas, best practices, and innovative ap5 proaches related to this section. 

6 ‘‘(iii) Identify, develop, and coordinate initia7 tives to increase transparency and compliance with 

8 this section. 

9 ‘‘(iv) Promote the development and use of com10 mon performance measures for agency compliance 

11 with this section. 

12 ‘‘(B) In performing the duties described in subpara13 graph (A), the Council shall consult on a regular basis 

14 with members of the public who make requests under this 

15 section. 

16 ‘‘(6)(A) The Council shall meet regularly and such 

17 meetings shall be open to the public unless the Council 

18 determines to close the meeting for reasons of national 

19 security or to discuss information exempt under subsection 

20 (b). 

21 ‘‘(B) Not less frequently than annually, the Council 

22 shall hold a meeting that shall be open to the public and 

23 permit interested persons to appear and present oral and 

24 written statements to the Council. 

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1 ‘‘(C) Not later than 10 business days before a meet2 ing of the Council, notice of such meeting shall be pub3 lished in the Federal Register. 

4 ‘‘(D) Except as provided in subsection (b), the 

5 records, reports, transcripts, minutes, appendices, working 

6 papers, drafts, studies, agenda, or other documents that 

7 were made available to or prepared for or by the Council 

8 shall be made publicly available. 

9 ‘‘(E) Detailed minutes of each meeting of the Council 

10 shall be kept and shall contain a record of the persons 

11 present, a complete and accurate description of matters 

12 discussed and conclusions reached, and copies of all re13 ports received, issued, or approved by the Council. The 

14 minutes shall be redacted as necessary and made publicly 

15 available.’’; and 

16 (7) by adding at the end the following: 

17 ‘‘(m)(1) The Director of the Office of Management 

18 and Budget, in consultation with the Attorney General, 

19 shall ensure the operation of a consolidated online request 

20 portal that allows a member of the public to submit a re21 quest for records under subsection (a) to any agency from 

22 a single website. The portal may include any additional 

23 tools the Director of the Office of Management and Budg24 et finds will improve the implementation of this section. 

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1 ‘‘(2) This subsection shall not be construed to alter 

2 the power of any other agency to create or maintain an 

3 independent online portal for the submission of a request 

4 for records under this section. The Director of the Office 

5 of Management and Budget shall establish standards for 

6 interoperability between the portal required under para7 graph (1) and other request processing software used by 

8 agencies subject to this section.’’. 

9 SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS. 

10 (a) IN GENERAL.—Not later than 180 days after the 

11 date of enactment of this Act, the head of each agency 

12 (as defined in section 551 of title 5, United States Code) 

13 shall review the regulations of such agency and shall issue 

14 regulations on procedures for the disclosure of records 

15 under section 552 of title 5, United States Code, in ac16 cordance with the amendments made by section 2. 

17 (b) REQUIREMENTS.—The regulations of each agency 

18 shall include procedures for engaging in dispute resolution 

19 through the FOIA Public Liaison and the Office of Gov20 ernment Information Services. 

21 SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MAN22 AGEMENT. 

23 Section 3102 of title 44, United States Code, is 

24 amended— 

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1 (1) by redesignating paragraphs (2) and (3) as 

2 paragraphs (3) and (4); and 

3 (2) by inserting after paragraph (1) the fol4 lowing: 

5 ‘‘(2) procedures for identifying records of gen6 eral interest or use to the public that are appro7 priate for public disclosure, and for posting such 

8 records in a publicly accessible electronic format;’’. 

9 SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED. 

10 No additional funds are authorized to carry out the 

11 requirements of this Act or the amendments made by this 

12 Act. The requirements of this Act and the amendments 

13 made by this Act shall be carried out using amounts other14 wise authorized or appropriated. 

Æ 

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