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[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 337 Engrossed in Senate (ES)]

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114th CONGRESS
  2d Session
                                 S. 337

_______________________________________________________________________

                                 AN ACT

 
               To improve the Freedom of Information Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``FOIA Improvement Act of 2016''.

SEC. 2. AMENDMENTS TO FOIA.

    Section 552 of title 5, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``for public inspection and 
                        copying'' and inserting ``for public inspection 
                        in an electronic format'';
                            (ii) by striking subparagraph (D) and 
                        inserting the following:
            ``(D) copies of all records, regardless of form or format--
                    ``(i) that have been released to any person under 
                paragraph (3); and
                    ``(ii)(I) that because of the nature of their 
                subject matter, the agency determines have become or 
                are likely to become the subject of subsequent requests 
                for substantially the same records; or
                    ``(II) that have been requested 3 or more times; 
                and''; and
                            (iii) in the undesignated matter following 
                        subparagraph (E), by striking ``public 
                        inspection and copying current'' and inserting 
                        ``public inspection in an electronic format 
                        current'';
                    (B) in paragraph (4)(A), by striking clause (viii) 
                and inserting the following:
                    ``(viii)(I) Except as provided in subclause (II), 
                an agency shall not assess any search fees (or in the 
                case of a requester described under clause (ii)(II) of 
                this subparagraph, duplication fees) under this 
                subparagraph if the agency has failed to comply with 
                any time limit under paragraph (6).
                    ``(II)(aa) If an agency has determined that unusual 
                circumstances apply (as the term is defined in 
                paragraph (6)(B)) and the agency provided a timely 
                written notice to the requester in accordance with 
                paragraph (6)(B), a failure described in subclause (I) 
                is excused for an additional 10 days. If the agency 
                fails to comply with the extended time limit, the 
                agency may not assess any search fees (or in the case 
                of a requester described under clause (ii)(II) of this 
                subparagraph, duplication fees).
                    ``(bb) If an agency has determined that unusual 
                circumstances apply and more than 5,000 pages are 
                necessary to respond to the request, an agency may 
                charge search fees (or in the case of a requester 
                described under clause (ii)(II) of this subparagraph, 
                duplication fees) if the agency has provided a timely 
                written notice to the requester in accordance with 
                paragraph (6)(B) and the agency has discussed with the 
                requester via written mail, electronic mail, or 
                telephone (or made not less than 3 good-faith attempts 
                to do so) how the requester could effectively limit the 
                scope of the request in accordance with paragraph 
                (6)(B)(ii).
                    ``(cc) If a court has determined that exceptional 
                circumstances exist (as that term is defined in 
                paragraph (6)(C)), a failure described in subclause (I) 
                shall be excused for the length of time provided by the 
                court order.'';
                    (C) in paragraph (6)--
                            (i) in subparagraph (A)(i), by striking 
                        ``making such request'' and all that follows 
                        through ``determination; and'' and inserting 
                        the following: ``making such request of--
                            ``(I) such determination and the reasons 
                        therefor;
                            ``(II) the right of such person to seek 
                        assistance from the FOIA Public Liaison of the 
                        agency; and
                            ``(III) in the case of an adverse 
                        determination--
                                    ``(aa) the right of such person to 
                                appeal to the head of the agency, 
                                within a period determined by the head 
                                of the agency that is not less than 90 
                                days after the date of such adverse 
                                determination; and
                                    ``(bb) the right of such person to 
                                seek dispute resolution services from 
                                the FOIA Public Liaison of the agency 
                                or the Office of Government Information 
                                Services; and''; and
                            (ii) in subparagraph (B)(ii), by striking 
                        ``the agency.'' and inserting ``the agency, and 
                        notify the requester of the right of the 
                        requester to seek dispute resolution services 
                        from the Office of Government Information 
                        Services.''; and
                    (D) by adding at the end the following:
    ``(8)(A) An agency shall--
            ``(i) withhold information under this section only if--
                    ``(I) the agency reasonably foresees that 
                disclosure would harm an interest protected by an 
                exemption described in subsection (b); or
                    ``(II) disclosure is prohibited by law; and
            ``(ii)(I) consider whether partial disclosure of 
        information is possible whenever the agency determines that a 
        full disclosure of a requested record is not possible; and
            ``(II) take reasonable steps necessary to segregate and 
        release nonexempt information; and
    ``(B) Nothing in this paragraph requires disclosure of information 
that is otherwise prohibited from disclosure by law, or otherwise 
exempted from disclosure under subsection (b)(3).'';
            (2) in subsection (b), by amending paragraph (5) to read as 
        follows:
            ``(5) inter-agency or intra-agency memorandums or letters 
        that would not be available by law to a party other than an 
        agency in litigation with the agency, provided that the 
        deliberative process privilege shall not apply to records 
        created 25 years or more before the date on which the records 
        were requested;''; and
            (3) in subsection (e)--
                    (A) in paragraph (1)--
                            (i) in the matter preceding subparagraph 
                        (A), by inserting ``and to the Director of the 
                        Office of Government Information Services'' 
                        after ``United States'';
                            (ii) in subparagraph (N), by striking 
                        ``and'' at the end;
                            (iii) in subparagraph (O), by striking the 
                        period at the end and inserting a semicolon; 
                        and
                            (iv) by adding at the end the following:
            ``(P) the number of times the agency denied a request for 
        records under subsection (c); and
            ``(Q) the number of records that were made available for 
        public inspection in an electronic format under subsection 
        (a)(2).'';
                    (B) by striking paragraph (3) and inserting the 
                following:
    ``(3) Each agency shall make each such report available for public 
inspection in an electronic format. In addition, each agency shall make 
the raw statistical data used in each report available in a timely 
manner for public inspection in an electronic format, which shall be 
made available--
            ``(A) without charge, license, or registration requirement;
            ``(B) in an aggregated, searchable format; and
            ``(C) in a format that may be downloaded in bulk.'';
                    (C) in paragraph (4)--
                            (i) by striking ``Government Reform and 
                        Oversight'' and inserting ``Oversight and 
                        Government Reform'';
                            (ii) by inserting ``Homeland Security and'' 
                        before ``Governmental Affairs''; and
                            (iii) by striking ``April'' and inserting 
                        ``March''; and
                    (D) by striking paragraph (6) and inserting the 
                following:
    ``(6)(A) The Attorney General of the United States shall submit to 
the Committee on Oversight and Government Reform of the House of 
Representatives, the Committee on the Judiciary of the Senate, and the 
President a report on or before March 1 of each calendar year, which 
shall include for the prior calendar year--
            ``(i) a listing of the number of cases arising under this 
        section;
            ``(ii) a listing of--
                    ``(I) each subsection, and any exemption, if 
                applicable, involved in each case arising under this 
                section;
                    ``(II) the disposition of each case arising under 
                this section; and
                    ``(III) the cost, fees, and penalties assessed 
                under subparagraphs (E), (F), and (G) of subsection 
                (a)(4); and
            ``(iii) a description of the efforts undertaken by the 
        Department of Justice to encourage agency compliance with this 
        section.
    ``(B) The Attorney General of the United States shall make--
            ``(i) each report submitted under subparagraph (A) 
        available for public inspection in an electronic format; and
            ``(ii) the raw statistical data used in each report 
        submitted under subparagraph (A) available for public 
        inspection in an electronic format, which shall be made 
        available--
                    ``(I) without charge, license, or registration 
                requirement;
                    ``(II) in an aggregated, searchable format; and
                    ``(III) in a format that may be downloaded in 
                bulk.'';
            (4) in subsection (g), in the matter preceding paragraph 
        (1), by striking ``publicly available upon request'' and 
        inserting ``available for public inspection in an electronic 
        format'';
            (5) in subsection (h)--
                    (A) in paragraph (1), by adding at the end the 
                following: ``The head of the Office shall be the 
                Director of the Office of Government Information 
                Services.'';
                    (B) in paragraph (2), by striking subparagraph (C) 
                and inserting the following:
            ``(C) identify procedures and methods for improving 
        compliance under this section.'';
                    (C) by striking paragraph (3) and inserting the 
                following:
    ``(3) The Office of Government Information Services shall offer 
mediation services to resolve disputes between persons making requests 
under this section and administrative agencies as a nonexclusive 
alternative to litigation and may issue advisory opinions at the 
discretion of the Office or upon request of any party to a dispute.''; 
and
                    (D) by adding at the end the following:
    ``(4)(A) Not less frequently than annually, the Director of the 
Office of Government Information Services shall submit to the Committee 
on Oversight and Government Reform of the House of Representatives, the 
Committee on the Judiciary of the Senate, and the President--
            ``(i) a report on the findings of the information reviewed 
        and identified under paragraph (2);
            ``(ii) a summary of the activities of the Office of 
        Government Information Services under paragraph (3), 
        including--
                    ``(I) any advisory opinions issued; and
                    ``(II) the number of times each agency engaged in 
                dispute resolution with the assistance of the Office of 
                Government Information Services or the FOIA Public 
                Liaison; and
            ``(iii) legislative and regulatory recommendations, if any, 
        to improve the administration of this section.
    ``(B) The Director of the Office of Government Information Services 
shall make each report submitted under subparagraph (A) available for 
public inspection in an electronic format.
    ``(C) The Director of the Office of Government Information Services 
shall not be required to obtain the prior approval, comment, or review 
of any officer or agency of the United States, including the Department 
of Justice, the Archivist of the United States, or the Office of 
Management and Budget before submitting to Congress, or any committee 
or subcommittee thereof, any reports, recommendations, testimony, or 
comments, if such submissions include a statement indicating that the 
views expressed therein are those of the Director and do not 
necessarily represent the views of the President.
    ``(5) The Director of the Office of Government Information Services 
may directly submit additional information to Congress and the 
President as the Director determines to be appropriate.
    ``(6) Not less frequently than annually, the Office of Government 
Information Services shall conduct a meeting that is open to the public 
on the review and reports by the Office and shall allow interested 
persons to appear and present oral or written statements at the 
meeting.'';
            (6) by striking subsections (j) and (k), and inserting the 
        following:
    ``(j)(1) Each agency shall designate a Chief FOIA Officer who shall 
be a senior official of such agency (at the Assistant Secretary or 
equivalent level).
    ``(2) The Chief FOIA Officer of each agency shall, subject to the 
authority of the head of the agency--
            ``(A) have agency-wide responsibility for efficient and 
        appropriate compliance with this section;
            ``(B) monitor implementation of this section throughout the 
        agency and keep the head of the agency, the chief legal officer 
        of the agency, and the Attorney General appropriately informed 
        of the agency's performance in implementing this section;
            ``(C) recommend to the head of the agency such adjustments 
        to agency practices, policies, personnel, and funding as may be 
        necessary to improve its implementation of this section;
            ``(D) review and report to the Attorney General, through 
        the head of the agency, at such times and in such formats as 
        the Attorney General may direct, on the agency's performance in 
        implementing this section;
            ``(E) facilitate public understanding of the purposes of 
        the statutory exemptions of this section by including concise 
        descriptions of the exemptions in both the agency's handbook 
        issued under subsection (g), and the agency's annual report on 
        this section, and by providing an overview, where appropriate, 
        of certain general categories of agency records to which those 
        exemptions apply;
            ``(F) offer training to agency staff regarding their 
        responsibilities under this section;
            ``(G) serve as the primary agency liaison with the Office 
        of Government Information Services and the Office of 
        Information Policy; and
            ``(H) designate 1 or more FOIA Public Liaisons.
    ``(3) The Chief FOIA Officer of each agency shall review, not less 
frequently than annually, all aspects of the administration of this 
section by the agency to ensure compliance with the requirements of 
this section, including--
            ``(A) agency regulations;
            ``(B) disclosure of records required under paragraphs (2) 
        and (8) of subsection (a);
            ``(C) assessment of fees and determination of eligibility 
        for fee waivers;
            ``(D) the timely processing of requests for information 
        under this section;
            ``(E) the use of exemptions under subsection (b); and
            ``(F) dispute resolution services with the assistance of 
        the Office of Government Information Services or the FOIA 
        Public Liaison.
    ``(k)(1) There is established in the executive branch the Chief 
FOIA Officers Council (referred to in this subsection as the 
`Council').
    ``(2) The Council shall be comprised of the following members:
            ``(A) The Deputy Director for Management of the Office of 
        Management and Budget.
            ``(B) The Director of the Office of Information Policy at 
        the Department of Justice.
            ``(C) The Director of the Office of Government Information 
        Services.
            ``(D) The Chief FOIA Officer of each agency.
            ``(E) Any other officer or employee of the United States as 
        designated by the Co-Chairs.
    ``(3) The Director of the Office of Information Policy at the 
Department of Justice and the Director of the Office of Government 
Information Services shall be the Co-Chairs of the Council.
    ``(4) The Administrator of General Services shall provide 
administrative and other support for the Council.
    ``(5)(A) The duties of the Council shall include the following:
            ``(i) Develop recommendations for increasing compliance and 
        efficiency under this section.
            ``(ii) Disseminate information about agency experiences, 
        ideas, best practices, and innovative approaches related to 
        this section.
            ``(iii) Identify, develop, and coordinate initiatives to 
        increase transparency and compliance with this section.
            ``(iv) Promote the development and use of common 
        performance measures for agency compliance with this section.
    ``(B) In performing the duties described in subparagraph (A), the 
Council shall consult on a regular basis with members of the public who 
make requests under this section.
    ``(6)(A) The Council shall meet regularly and such meetings shall 
be open to the public unless the Council determines to close the 
meeting for reasons of national security or to discuss information 
exempt under subsection (b).
    ``(B) Not less frequently than annually, the Council shall hold a 
meeting that shall be open to the public and permit interested persons 
to appear and present oral and written statements to the Council.
    ``(C) Not later than 10 business days before a meeting of the 
Council, notice of such meeting shall be published in the Federal 
Register.
    ``(D) Except as provided in subsection (b), the records, reports, 
transcripts, minutes, appendices, working papers, drafts, studies, 
agenda, or other documents that were made available to or prepared for 
or by the Council shall be made publicly available.
    ``(E) Detailed minutes of each meeting of the Council shall be kept 
and shall contain a record of the persons present, a complete and 
accurate description of matters discussed and conclusions reached, and 
copies of all reports received, issued, or approved by the Council. The 
minutes shall be redacted as necessary and made publicly available.''; 
and
            (7) by adding at the end the following:
    ``(m)(1) The Director of the Office of Management and Budget, in 
consultation with the Attorney General, shall ensure the operation of a 
consolidated online request portal that allows a member of the public 
to submit a request for records under subsection (a) to any agency from 
a single website. The portal may include any additional tools the 
Director of the Office of Management and Budget finds will improve the 
implementation of this section.
    ``(2) This subsection shall not be construed to alter the power of 
any other agency to create or maintain an independent online portal for 
the submission of a request for records under this section. The 
Director of the Office of Management and Budget shall establish 
standards for interoperability between the portal required under 
paragraph (1) and other request processing software used by agencies 
subject to this section.''.

SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the head of each agency (as defined in section 
551 of title 5, United States Code) shall review the regulations of 
such agency and shall issue regulations on procedures for the 
disclosure of records under section 552 of title 5, United States Code, 
in accordance with the amendments made by section 2.
    (b) Requirements.--The regulations of each agency shall include 
procedures for engaging in dispute resolution through the FOIA Public 
Liaison and the Office of Government Information Services.

SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.

    Section 3102 of title 44, United States Code, is amended--
            (1) by redesignating paragraphs (2) and (3) as paragraphs 
        (3) and (4); and
            (2) by inserting after paragraph (1) the following:
            ``(2) procedures for identifying records of general 
        interest or use to the public that are appropriate for public 
        disclosure, and for posting such records in a publicly 
        accessible electronic format;''.

SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.

    No additional funds are authorized to carry out the requirements of 
this Act or the amendments made by this Act. The requirements of this 
Act and the amendments made by this Act shall be carried out using 
amounts otherwise authorized or appropriated.

SEC. 6. APPLICABILITY.

    This Act, and the amendments made by this Act, shall take effect on 
the date of enactment of this Act and shall apply to any request for 
records under section 552 of title 5, United States Code, made after 
the date of enactment of this Act.

            Passed the Senate March 15, 2016.

            Attest:

                                                             Secretary.
114th CONGRESS

  2d Session

                                 S. 337

_______________________________________________________________________

                                 AN ACT

               To improve the Freedom of Information Act.
```