E-FOIA Amendments (H.R. 3802) H.R.3802 One Hundred Fourth Congress of the United States of America
AT THE SECOND SESSIONBegun and held at the City of Washington on Wednesday, the third day of January,
one thousand nine hundred and ninety-six
To amend section 552 of title 5, United States Code, popularly
known as the Freedom of Information Act, to provide for public access
to information in an electronic format, and for other purposes.
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 `Electronic Freedom of Information
Act Amendments of 1996'.
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS- The Congress finds that--
(1) the purpose of section 552 of title 5, United States Code,
popularly known as the Freedom of Information Act, is to require
agencies of the Federal Government to make certain agency information
available for public inspection and copying and to establish and
enable enforcement of the right of any person to obtain access to the
records of such agencies, subject to statutory exemptions, for any
public or private purpose;
(2) since the enactment of the Freedom of Information Act in 1966,
and the amendments enacted in 1974 and 1986, the Freedom of
Information Act has been a valuable means through which any person
can learn how the Federal Government operates;
(3) the Freedom of Information Act has led to the disclosure of
waste, fraud, abuse, and wrongdoing in the Federal Government;
(4) the Freedom of Information Act has led to the identification of
unsafe consumer products, harmful drugs, and serious health
hazards;
(5) Government agencies increasingly use computers to conduct agency
business and to store publicly valuable agency records and
information; and
(6) Government agencies should use new technology to enhance public
access to agency records and information.
(b) PURPOSES- The purposes of this Act are to--
(1) foster democracy by ensuring public access to agency records
and information;
(2) improve public access to agency records and information;
(3) ensure agency compliance with statutory time limits; and
(4) maximize the usefulness of agency records and information
collected, maintained, used, retained, and disseminated by the
Federal Government.
SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.
Section 552(f) of title 5, United States Code, is amended to read as follows:
`(f) For purposes of this section, the term--
`(1) `agency' as defined in section 551(1) of this title includes
any executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the executive branch of the Government (including
the Executive Office of the President), or any independent regulatory
agency; and
`(2) `record' and any other term used in this section in reference to
information includes any information that would be an agency record
subject to the requirements of this section when maintained by an
agency in any format, including an electronic format.'.
SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEXATION OF RECORDS.
Section 552(a)(2) of title 5, United States Code, is amended--
(1) in the second sentence, by striking `or staff manual or
instruction' and inserting `staff manual, instruction, or copies of
records referred to in subparagraph (D)';
(2) by inserting before the period at the end of the third sentence
the following: `, and the extent of such deletion shall be indicated
on the portion of the record which is made available or published,
unless including that indication would harm an interest protected by
the exemption in subsection (b) under which the deletion is
made';
(3) by inserting after the third sentence the following: `If
technically feasible, the extent of the deletion shall be indicated
at the place in the record where the deletion was made.';
(4) in subparagraph (B), by striking `and' after the semicolon;
(5) by inserting after subparagraph (C) the following:
`(D) copies of all records, regardless of form or format, which
have been released to any person under paragraph (3) and which,
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; and
`(E) a general index of the records referred to under subparagraph
(D);';
(6) by inserting after the fifth sentence the following: `Each
agency shall make the index referred to in subparagraph (E) available
by computer telecommunications by December 31, 1999.'; and
(7) by inserting after the first sentence the following: `For records
created on or after November 1, 1996, within one year after such
date, each agency shall make such records available, including by
computer telecommunications or, if computer telecommunications means
have not been established by the agency, by other electronic
means.'.
SEC. 5. HONORING FORM OR FORMAT REQUESTS.
Section 552(a)(3) of title 5, United States Code, is amended--
(1) by inserting `(A)' after `(3)';
(2) by striking `(A)' the second place it appears and inserting
`(i)';
(3) by striking `(B)' and inserting `(ii)'; and
(4) by adding at the end the following new subparagraphs:
`(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by the
agency in that form or format. Each agency shall make reasonable
efforts to maintain its records in forms or formats that are
reproducible for purposes of this section.
`(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in
electronic form or format, except when such efforts would
significantly interfere with the operation of the agency's automated
information system.
`(D) For purposes of this paragraph, the term `search' means to
review, manually or by automated means, agency records for the
purpose of locating those records which are responsive to a
request.'.
SEC. 6. STANDARD FOR JUDICIAL REVIEW.
Section 552(a)(4)(B) of title 5, United States Code, is amended by adding at the end the following new sentence: `In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).'.
SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.
(a) MULTITRACK PROCESSING- Section 552(a)(6) of title 5, United
States Code, is amended by adding at the end the following new
subparagraph:
`(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
`(ii) Regulations under this subparagraph may provide a person making
a request that does not qualify for the fastest multitrack processing
an opportunity to limit the scope of the request in order to qualify
for faster processing.
`(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.'.
(b) UNUSUAL CIRCUMSTANCES- Section 552(a)(6)(B) of title 5, United
States Code, is amended to read as follows:
`(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i) or
clause (ii) of subparagraph (A) may be extended by written notice to
the person making such request setting forth the unusual
circumstances for such extension and the date on which a
determination is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more than ten
working days, except as provided in clause (ii) of this
subparagraph.
`(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an opportunity
to limit the scope of the request so that it may be processed within
that time limit or an opportunity to arrange with the agency an
alternative time frame for processing the request or a modified
request. Refusal by the person to reasonably modify the request or
arrange such an alternative time frame shall be considered as a
factor in determining whether exceptional circumstances exist for
purposes of subparagraph (C).
`(iii) As used in this subparagraph, `unusual circumstances' means,
but only to the extent reasonably necessary to the proper processing
of the particular requests--
`(I) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
`(II) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
`(III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest
in the determination of the request or among two or more components
of the agency having substantial subject-matter interest therein.
`(iv) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of requestors acting in
concert, if the agency reasonably believes that such requests
actually constitute a single request, which would otherwise satisfy
the unusual circumstances specified in this subparagraph, and the
requests involve clearly related matters. Multiple requests involving
unrelated matters shall not be aggregated.'.
(c) EXCEPTIONAL CIRCUMSTANCES- Section 552(a)(6)(C) of title 5,
United States Code, is amended by inserting `(i)' after `(C)', and by
adding at the end the following new clauses:
`(ii) For purposes of this subparagraph, the term `exceptional
circumstances' does not include a delay that results from a
predictable agency workload of requests under this section, unless
the agency demonstrates reasonable progress in reducing its backlog
of pending requests.
`(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a request
(or a modified request) under clause (ii) after being given an
opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this subparagraph.'.
SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.
(a) EXPEDITED PROCESSING- Section 552(a)(6) of title 5, United
States Code (as amended by section 7(a) of this Act), is further
amended by adding at the end the following new subparagraph:
`(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records--
`(I) in cases in which the person requesting the records demonstrates
a compelling need; and
`(II) in other cases determined by the agency.
`(ii) Notwithstanding clause (i), regulations under this subparagraph
must ensure--
`(I) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided to
the person making the request, within 10 days after the date of the
request; and
`(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
`(iii) An agency shall process as soon as practicable any request for
records to which the agency has granted expedited processing under
this subparagraph. Agency action to deny or affirm denial of a
request for expedited processing pursuant to this subparagraph, and
failure by an agency to respond in a timely manner to such a request
shall be subject to judicial review under paragraph (4), except that
the judicial review shall be based on the record before the agency at
the time of the determination.
`(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a
request for records after the agency has provided a complete response
to the request.
`(v) For purposes of this subparagraph, the term `compelling need'
means--
`(I) that a failure to obtain requested records on an expedited basis
under this paragraph could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual; or
`(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
`(vi) A demonstration of a compelling need by a person making a
request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best of such
person's knowledge and belief.'.
(b) EXTENSION OF GENERAL PERIOD FOR DETERMINING WHETHER TO COMPLY WITH A REQUEST- Section 552(a)(6)(A)(i) of title 5, United States Code, is amended by striking `ten days' and inserting `20 days'.
(c) ESTIMATION OF MATTER DENIED- Section 552(a)(6) of title 5,
United States Code (as amended by section 7 of this Act and
subsection (a) of this section), is further amended by adding at the
end the following new subparagraph:
`(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.'.
SEC. 9. COMPUTER REDACTION.
Section 552(b) of title 5, United States Code, is amended in the matter following paragraph (9) by inserting after the period the following: `The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.'.
SEC. 10. REPORT TO THE CONGRESS.
Section 552(e) of title 5, United States Code, is amended to read
as follows:
`(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General of the United States a report which
shall cover the preceding fiscal year and which shall include--
`(A) the number of determinations made by the agency not to comply
with requests for records made to such agency under subsection (a)
and the reasons for each such determination;
`(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information; and
`(ii) a complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under subsection (b)(3),
a description of whether a court has upheld the decision of the
agency to withhold information under each such statute, and a concise
description of the scope of any information withheld;
`(C) the number of requests for records pending before the agency as
of September 30 of the preceding year, and the median number of days
that such requests had been pending before the agency as of that
date;
`(D) the number of requests for records received by the agency and
the number of requests which the agency processed;
`(E) the median number of days taken by the agency to process
different types of requests;
`(F) the total amount of fees collected by the agency for processing
requests; and
`(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
`(2) Each agency shall make each such report available to the public
including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.
`(3) The Attorney General of the United States shall make each report
which has been made available by electronic means available at a
single electronic access point. The Attorney General of the United
States shall notify the Chairman and ranking minority member of the
Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the
Committees on Governmental Affairs and the Judiciary of the Senate,
no later than April 1 of the year in which each such report is
issued, that such reports are available by electronic means.
`(4) The Attorney General of the United States, in consultation with
the Director of the Office of Management and Budget, shall develop
reporting and performance guidelines in connection with reports
required by this subsection by October 1, 1997, and may establish
additional requirements for such reports as the Attorney General
determines may be useful.
`(5) The Attorney General of the United States shall submit an annual
report on or before April 1 of each calendar year which shall include
for the prior calendar year a listing of the number of cases arising
under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed
under subparagraphs (E), (F), and (G) of subsection (a)(4). Such
report shall also include a description of the efforts undertaken by
the Department of Justice to encourage agency compliance with this
section.'.
SEC. 11. REFERENCE MATERIALS AND GUIDES.
Section 552 of title 5, United States Code, is amended by adding
after subsection (f) the following new subsection:
`(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for requesting
records or information from the agency, subject to the exemptions in
subsection (b), including--
`(1) an index of all major information systems of the agency;
`(2) a description of major information and record locator systems
maintained by the agency; and
`(3) a handbook for obtaining various types and categories of public
information from the agency pursuant to chapter 35 of title 44, and
under this section.'.
SEC. 12. EFFECTIVE DATE.
(a) IN GENERAL- Except as provided in subsection (b), this Act
shall take effect 180 days after the date of the enactment of this
Act.
(b) PROVISIONS EFFECTIVE ON ENACTMENT - Sections 7 and 8 shall take
effect one year after the date of the enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and President of the Senate.
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