I 
109TH CONGRESS 
1ST SESSION 
H. R. 867
To promote openness in Government by strengthening section 552 of title 
5, United States Code (commonly referred to as the Freedom of Informa-
tion Act), and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 16, 2005
Mr. SMITH of Texas introduced the following bill; which was referred to the 
Committee on 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Openness Promotes 
Effectiveness in our National Government Act of 2005’’ 
or the ‘‘OPEN Government Act of 2005’’. 
SEC. 2. FINDINGS. 
Congress finds that—
(1) the Freedom of Information Act was signed 
into law on July 4, 1966, because the American peo-
ple believe that—
(A) our constitutional democracy, our sys-
tem of self-government, and our commitment to 
popular sovereignty depends upon the consent 
of the governed; 
(B) such consent is not meaningful unless 
it is informed consent; and 
(C) as Justice Black noted in his concur-
ring opinion in Barr v. Matteo (360 U.S. 564 
(1959)), ‘‘The effective functioning of a free 
government like ours depends largely on the 
force of an informed public opinion. This calls 
for the widest possible understanding of the 
quality of government service rendered by all 
elective or appointed public officials or employ-
ees.’’; 
(2) the American people firmly believe that our 
system of government must itself be governed by a 
presumption of openness; 
(3) the Freedom of Information Act establishes 
a ‘‘strong presumption in favor of disclosure’’ as 
noted by the United States Supreme Court in 
United States Department of State v. Ray (502 U.S.
164 (1991)), a presumption that applies to all agen-
cies governed by that Act; 
(4) ‘‘disclosure, not secrecy, is the dominant ob-
jective of the Act,’’ as noted by the United States 
Supreme Court in Department of Air Force v. Rose 
(425 U.S. 352 (1976)); 
(5) in practice, the Freedom of Information Act 
has not always lived up to the ideals of that Act; and 
(6) Congress should regularly review section 
552 of title 5, United States Code (commonly re-
ferred to as the Freedom of Information Act), in 
order to determine whether further changes and im-
provements are necessary to ensure that the Govern-
ment remains open and accessible to the American 
people and is always based not upon the ‘‘need to 
know’’ but upon the fundamental ‘‘right to know’’. 
SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA. 
Section 552(a)(4)(A)(ii) of title 5, United States 
Code, is amended by adding at the end the following: 
‘‘In making a determination of a representative of the 
news media under subclause (II), an agency may not deny 
that status solely on the basis of the absence of institu-
tional associations of the requester, but shall consider the 
prior publication history of the requester. Prior publica-
tion history shall include books, magazine and newspaper
articles, newsletters, television and radio broadcasts, and 
Internet publications. If the requestor has no prior publi-
cation history or current affiliation, the agency shall con-
sider the requestor’s stated intent at the time the request 
is made to distribute information to a reasonably broad 
audience.’’. 
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION 
COSTS. 
Section 552(a)(4)(E) of title 5, United States Code, 
is amended by adding at the end the following: ‘‘For pur-
poses of this section, a complainant has ‘substantially pre-
vailed’ if the complainant has obtained a substantial part 
of its requested relief through a judicial or administrative 
order or an enforceable written agreement, or if the com-
plainant’s pursuit of a nonfrivolous claim or defense has 
been a catalyst for a voluntary or unilateral change in po-
sition by the opposing party that provides a substantial 
part of the requested relief.’’. 
SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CA-
PRICIOUS REJECTIONS OF REQUESTS. 
Section 552(a)(4)(F) of title 5, United States Code, 
is amended—
(1) by inserting ‘‘(i)’’ after ‘‘(F)’’; and 
(2) by adding at the end the following: 
‘‘(ii) The Attorney General shall—
‘‘(I) notify the Special Counsel of each civil ac-
tion described under the first sentence of clause (i); 
and 
‘‘(II) annually submit a report to Congress on 
the number of such civil actions in the preceding 
year. 
‘‘(iii) The Special Counsel shall annually submit a re-
port to Congress on the actions taken by the Special Coun-
sel under clause (i).’’. 
SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS. 
(a) TIME LIMITS.—
(1) IN
GENERAL.—Section 552(a)(6)(A)(i) of 
title 5, United States Code, is amended by inserting 
‘‘, and the 20-day period shall commence on the date 
on which the request is first received by the agency, 
and shall not be tolled without the consent of the 
party filing the request’’ after ‘‘adverse determina-
tion’’. 
(2) EFFECTIVE DATE.—The amendment made 
by this subsection shall take effect 1 year after the 
date of enactment of this Act. 
(b) AVAILABILITY OF AGENCY EXEMPTIONS.—
(1) IN GENERAL.—Section 552(a)(6) of title 5, 
United States Code, is amended by adding at the 
end the following: