II 113th CONGRESS 2d Session S. 2520 IN THE SENATE OF THE UNITED STATES June 24, 2014 Mr. Leahy (for himself and Mr. Cornyn ) 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. Short title This Act may be cited as the FOIA Improvement Act of 2014 . 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 not less than 3 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, and 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 determines that unusual circumstances apply (as the term is defined in paragraph (6)(B)) and the agency provides 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 a court determines 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 therefore; (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 receipt 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) An agency— (A) 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 other provision of law; 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) may not— (i) withhold information requested under this section merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption described in subsection (b); or (ii) withhold information requested under this section because the information may be embarrassing to the agency or because of speculative or abstract concerns. ; (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, if— (A) in the case of deliberative process privilege or attorney work-product privilege, the agency interest in protecting the records or information is not outweighed by a public interest in disclosure; (B) in the case of attorney-client privilege, the agency interest in protecting the records or information is not outweighed by a compelling public interest in disclosure; and (C) the requested record or information was created less than 25 years before the date on which the request was made; ; (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 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 non-exclusive 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 the 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 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. ; and (6) by striking subsections (i), (j), and (k), and inserting the following: (i) The Government Accountability Office shall— (1) conduct audits of administrative agencies on compliance with and implementation of the requirements of this section and issue reports detailing the results of such audits; and (2) catalog the number of exemptions described in subsection (b)(3) and the use of such exemptions by each agency. (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, appendixes, 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. . 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. 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; . 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.