110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-45
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FREEDOM OF INFORMATION ACT AMENDMENTS OF 2007
_______
March 12, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1309]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 1309) 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, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Legislative History.............................................. 4
Section-by-Section............................................... 5
Explanation of Amendments........................................ 9
Committee Consideration.......................................... 9
Rollcall Votes................................................... 9
Application of Law to the Legislative Branch..................... 9
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 9
Statement of General Performance Goals and Objectives............ 9
Constitutional Authority Statement............................... 9
Federal Advisory Committee Act................................... 9
Unfunded Mandate Statement....................................... 9
Earmark Identification........................................... 10
Committee Estimate............................................... 10
Budget Authority and Congressional Budget Office Cost Estimate... 10
Changes in Existing Law Made by the Bill as Reported............. 14
Additional Views of Representative Tom Davis..................... 21
The amendment is as follows:
At the end of the bill, add the following new section (and
conform the table of contents accordingly):
SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING DELETIONS OF
MATERIAL PROVIDED UNDER FOIA.
Section 552(b) of title 5, United States Code, is amended in
the matter appearing after paragraph (9)--
(1) in the second sentence, by inserting after
``amount of information deleted'' the following: ``,
and the exemption under which the deletion is made,'';
and
(2) in the third sentence, by inserting after
``amount of the information deleted'' the following:
``, and the exemption under which the deletion is
made,''
Purpose and Summary
H.R. 1309, the Freedom of Information Act Amendments of
2007, was introduced on March 5, 2007, by Reps. William Lacy
Clay, Todd Russell Platts, and Henry A. Waxman. The legislation
promotes and enhances public disclosure of government
information pursuant to the Freedom of Information Act (FOIA).
This bill will restore the presumption of disclosure, help
requesters obtain timely responses from agencies, improve
transparency in agency compliance with FOIA, provide an
alternative to litigation for FOIA requesters, and provide
accountability for agency decisions on whether to release
information under FOIA requests.
Background and Need for Legislation
With the enactment of FOIA in 1966, the federal government
established a policy of openness toward information within its
control. FOIA establishes a presumptive right for the public to
obtain identifiable, existing records of federal agencies. Any
member of the public may use FOIA to request access to
government information. Requesters do not have to show a need
or reason for seeking information.
The burden of proof for withholding requested material
rests with the department or agency that seeks to deny the
request. Agencies may deny access only to records, or portions
of records, that fall within nine exemptions. The exemptions
include information that relates solely to an agency's internal
personnel rules and practices; internal government deliberative
communications about a decision before an announcement;
information about an individual that, if disclosed, would cause
an unwarranted invasion of personal privacy; and law
enforcement records, particularly with regard to ongoing
investigations.\1\
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\1\ The nine categories of information exempted from the
presumption of access are: (1) certain national security or foreign
policy information as authorized by an executive order; (2) personnel
rules and practices of an agency; (3) information specifically exempted
from disclosure by statute; (4) trade secrets and commercial or
financial information; (5) inter-agency or intra-agency memoranda; (6)
personnel and medical files; (7) certain records compiled for law
enforcement purposes; (8) certain reports related to the regulation of
financial institutions; and (9) geological and geophysical information
and data.
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Access to information under FOIA has been impacted by
memoranda issued by attorneys general. Under the Clinton
Administration, the Attorney General instructed agencies to
make discretionary disclosures to FOIA requesters, and to
withhold records only if a foreseeable harm existed from that
release. An October 1993 memorandum from Attorney General Janet
Reno stated:
In short, it shall be the policy of the Department of
Justice to defend the assertion of a FOIA exemption
only in those cases where the agency reasonably
foresees that disclosure would be harmful to an
interest protected by that exemption. Where an item of
information might technically or arguably fall within
an exemption, it ought not to be withheld from a FOIA
requester unless it need be.\2\
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\2\ Janet Reno, Attorney General, Memorandum for Heads of
Departments and Agencies, Subject: The Freedom of Information Act (Oct.
4, 1993).
In 2001, the Bush Administration reversed this policy with
a memorandum from Attorney General John Ashcroft that
encouraged agencies to limit discretionary disclosures of
information, calling on them to exercise ``full and deliberate
consideration of the institutional, commercial, and personal
privacy interests that could be implicated by disclosure of the
information.'' Similarly, the memo stated that the Department
of Justice would defend decisions to withhold information from
requesters unless those decisions ``lack a sound legal basis.''
\3\
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\3\ John Ashcroft, Attorney General, Memorandum for Heads of All
Federal Departments and Agencies, Subject: The Freedom of Information
Act (Oct. 12, 2001).
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FOIA has been used effectively by journalists, public
interest organizations, corporations, and individuals to access
government information. However, its use has been plagued by
delays and backlogs, requesters often have difficulty obtaining
information about the status of their requests, and a recent
Supreme Court decision has hampered requesters' ability to
litigate their claims. H.R. 1309 would address these and other
concerns about the implementation of FOIA.
Executive agencies receive hundreds of thousands of FOIA
requests annually. The response to a request may involve a
single sheet of paper, thousands of documents, or information
in electronic format. An oversight hearing held by the
Subcommittee on Government Management, Finance, and
Accountability in July 2006 indicated that the timeliness of
agency response to FOIA requests is a significant and ongoing
problem. Although the law requires that agencies respond to a
FOIA request within 20 days, requesters often do not receive
the requested information for much longer periods of time.
During the July 2006 hearing, the Government Accountability
Office (GAO) testified that the number of pending FOIA requests
carried over from year to year--also known as the backlog--has
been increasing significantly. In Fiscal Year 2005, for
example, the backlog increased by approximately 200,000, a 24%
increase from the previous year.
H.R. 1309 addresses this backlog by ensuring that the 20-
day statutory clock runs immediately upon an agency's receipt
of a request and by imposing consequences on federal agencies
for missing the deadline. The bill also requires agencies to
provide requesters with individualized tracking numbers for
each request and access to a telephone or Internet hotline with
information about the status of requests.
Although GAO and other organizations use FOIA annual
reports compiled by agencies to analyze compliance with FOIA,
these reports do not contain the information needed to
understand the extent of delays and compare across agencies.
H.R. 1309 would improve transparency in agency compliance with
FOIA by strengthening these reporting requirements to identify
excessive delays. The bill also requires each agency to make
the raw data used tocompile its annual reports publicly
available. This change will enable analysts to better understand agency
performance.
Under FOIA, requesters who do not feel that an agency is
being adequately responsive may sue for the information.
However, requesters have argued that they would benefit from
having access to an ombudsman for FOIA who could provide
guidance to requesters before, or as an alternative to,
litigation. As journalist Clark Hoyt described it in his
testimony before the Information Policy Subcommittee in March
2007, these requesters are looking for ``a champion for FOIA
training and compliance, a place where individuals seeking to
exercise their rights under FOIA can go for help short of
filing a lawsuit.'' H.R. 1309 creates this ombudsman function
within an Office of Government Information Services in the
National Archives and Records Administration (NARA).
A new concern has arisen in the last several years for FOIA
requesters who litigate their claims. In 2001, the Supreme
Court, in Buckhannon Board and Care Home, Inc. v. West Virginia
Dep't of Health and Human Resources, 532 U.S. 598 (2001),
eliminated the ``catalyst theory'' of attorney fee recovery
under certain federal civil rights laws. The court decided that
litigants are only eligible for recovery of attorney fees if
they prevail through a court ruling. The application of
Buckhannon to FOIA prevents requesters from any eligibility for
recovery of attorney fees if an agency provides the requested
records prior to a court decision. FOIA requesters have raised
concerns that this system gives agencies the incentive to delay
compliance with a FOIA request until just before a court
decision. H.R. 1309 addresses this by clarifying Buckhannon
does not apply to FOIA cases.
Legislative History
H.R. 1309, the Freedom of Information Act Amendments of
2007, was introduced by Reps. Wm. Lacy Clay, Todd Russell
Platts, and Henry A. Waxman on March 5, 2007, and referred to
the Committee on Oversight and Government Reform, and was
subsequently referred to the Subcommittee on Information
Policy, Census and National Archives.
The legislation resembles legislation introduced in the
House and Senate in 2005. Specifically, during the 109th
Congress, Sens. John Cornyn and Patrick Leahy introduced S.
394, and Rep. Lamar Smith introduced its companion bill, H.R.
867. S. 394 was reported by the Senate Committee on the
Judiciary by voice vote without amendment and without an
accompanying report.
On September 27, 2006, the Subcommittee on Government
Management, Finance, and Accountability reported H.R. 867 to
the full Committee on Government Reform, amending the bill to
include two provisions offered by Rep. Waxman. The first
provision of this amendment aimed to overturn both the
``Ashcroft Memo'' (restricting release of information under
FOIA) and the ``Card Memo'' (safeguarding information
considered ``sensitive but unclassified''). The second
provision increased transparency in agency reporting on FOIA
implementation. It required agencies to provide more
information about the time spent in responding to FOIA
requests, their responsiveness to expedited review requests,
and the time spent on administrative appeals in their annual
reports. The bill was not considered by the full Committee. The
substance of the two provisions offered by Rep. Waxman to H.R.
867 is contained in H.R. 1309.
On February 15, 2007, the Subcommittee on Information
Policy, Census and National Archives held a hearing on FOIA and
analyzed agency efforts to meet FOIA requirements. The
witnesses were Linda Koontz, Director, Information Management,
Government Accountability Office; Melanie Ann Pustay, Acting
Director, Office of Information and Privacy; U.S. Department of
Justice; Clarke Hoyt, McClatchy Newspapers, on behalf of the
Sunshine in Government Initiative; Anthony Romero, Executive
Director, American Civil Liberties Union; and Thomas Blanton,
Director, National Security Archive at George Washington
University.
The Subcommittee on Information Policy, Census and National
Archives held a markup to consider H.R. 1309 on March 6, 2007.
The subcommittee approved the bill by voice vote, and reported
it favorably to the full Committee.
The Committee held a markup to consider H.R. 1309 on March
8, 2007, and ordered the bill to be reported, as amended, by a
voice vote.
Section-by-Section
Section 1. Short title
This section provides the short title of H.R. 1309 as the
``Freedom of Information Act Amendments of 2007.''
Section 2. Findings
This section lists several findings articulating the
sentiment that the effective functioning of a free government
depends largely on the force of an informed public with the
widest possible understanding regarding the quality of
government service rendered by all elective or appointed public
officials or employees. In addition, this section notes that
the Freedom of Information Act establishes ``a strong
presumption in favor of disclosure'' that applies to all
agencies governed by the Act.
Congress finds that in practice, FOIA has not always lived
up its ideals of the Act and Congress should therefore
regularly review FOIA in order to determine whether further
changes and improvements are necessary to ensure that the
government remains open and accessible to the American people,
based upon a fundamental ``right to know.''
Section 3. Protection of fee status for news media
This section clarifies that agencies may not deny fee
waivers for legitimate journalists solely on the basis of an
absence of institutional associations of the requester.
Instead, agencies must consider the prior publication history
of the requester, including books, articles, newsletters,
television and radio broadcasts, and Internet publications. If
the requester has no prior publication history or current
affiliation, the agency must consider the requester's stated
intent to distribute information to a reasonably broad
audience.
This provision is meant to ensure that fee waivers are also
available to journalists associated with less traditional media
outlets or distribution methods, particularly those that rely
on the Internet to reach a broad audience.
Section 4. Recovery of attorney fees and litigation costs
This section clarifies that, for the purpose of the
recovery of attorney fees and other litigation costs,
requesters have ``substantially prevailed'' in FOIA litigation
when they have obtained relief from the agency through
enforceable decisions or orders, as well as through voluntary
or unilateral changes in position by the agency.
The section responds to the Supreme Court's ruling in
Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of
Health and Human Resources, 532 U.S. 598 (2001), which
eliminated the ``catalyst theory'' of attorney fee recovery
under certain federal civil rights laws. This section makes
clear that the Buckhannon decision does not apply to FOIA cases
and ensures that requesters are eligible for attorney fees and
other litigation costs if they obtain relief from the agency
during the litigation.
Section 5. Disciplinary actions for arbitrary and capricious rejections
of requests
This section enhances provisions in current law that
authorize disciplinary action against government officials who
arbitrarily and capriciously deny records to FOIA requesters.
It directs the Attorney General to notify the Special Counsel
of civil actions taken for arbitrary and capricious rejections
of requests for agency records, and to annually submit reports
to Congress on the number of these actions taken. The section
further requires the Special Counsel to submit annual reports
to Congress on the actions taken by the Special Counsel
regarding these civil actions.
Section 6. Time limits for agencies to act on requests
Under FOIA, agencies are required to respond to requesters
with a determination within 20 days. Subsection (a) requires
that the 20-day statutory clock run immediately upon agency
receipt of a FOIA request. The agency must obtain the consent
of the requesting party to toll the 20-day period.
Subsection (b) states that an agency may not charge a
requester fees for document search, duplication, or review if
the agency fails to comply with the 20 day deadline for
responding to that request with a determination. This provision
would apply only to FOIA requests filed on or after the
effective date of this amendment.
Section 7. Individualized tracking numbers for requests and status
information
This section requires each agency to establish a system to
assign an individualized tracking number for each request for
information pursuant to FOIA. Under this provision, each agency
would have 10 days after receiving a request to provide the
requester with a tracking number. Each agency also would be
required to establish a telephone line or Internet service that
provides information about the status of requests, including
the date on which the agency received the request and an
estimated date on which the agency will complete action on the
request.
This provision will take effect one year after the date of
enactment and apply only to requests for information filed on
or after that effective date.
Section 8. Specific citations in exemptions
This section of the bill provides that Congress may not
create new statutory exemptions under FOIA unless it does so
explicitly. Accordingly, for any new statutory exemption to
have effect, the statute must cite directly to 5 U.S.C.
552(b)(3), thereby conveying congressional intent to create a
new (b)(3) exemption.
Section 9. Reporting requirements
This section mandates that agencies provide additional
information about their compliance with FOIA in annual reports
to the Attorney General detailing compliance information for
each principal component of the agency as well as the agency
overall.
This section calls on agencies to report on the number of
occasions on which a particular statute was relied upon to deny
a FOIA request and the average number of days FOIA requests
have been pending before that agency, and to provide additional
information about the number of days taken by an agency to
process different types of requests.
Subsection (a) adds several new requirements for data to be
included in agency annual reports. The subsection calls for
agencies to provide additional information about the timeframes
for responding to requests with a determination, including the
number of requests that the agency has responded to within the
required 20 days; information about the timeframes for
providing granted information to requesters; data regarding
agency responsiveness to administrative appeals; data on the 10
active requests and administrative appeals with the earliest
filing dates pending at the agency; data regarding agency
responsiveness to expedited review requests; and data regarding
agency grants of fee waivers.
Subsection (b) requires that each agency make the raw
statistical data used in its compliance reports available
electronically to the public upon request.
Section 10. Openness of agency records maintained by a private entity
This section clarifies that agency records kept by private
contractors licensed by the government to undertake
recordkeeping functions remain subject to FOIA just as if those
records were maintained by the relevant government agency.
Section 11. Office of government information services
This section creates an Office of Government Information
Services within the NARA. This office is to be headed by a
National Information Advocate, who will report directly to the
Archivist of the United States.
The Office of Government Information Services will provide
guidance to FOIA requesters as a non-exclusive alternative to
litigation. Specifically, the office may provide nonbinding
informal guidance, fact-finding reviews, and opinions to
requesters who have been denied records or have not received a
timely response to a FOIA request or administrative appeal. In
addition, the office will review FOIA policies and procedures
by federal agencies and recommend policy changes to Congress
and the president designed to improve administration of FOIA.
The Committee expects that the Office of Government
Information Services will be responsive to requests for
assistance and will, wherever possible, acknowledge these
requests in a timely fashion.
Section 12. Accessibility of critical infrastructure information
This Section requires reports on the implementation of the
Critical Infrastructure Information Act of 2002. It requires
the Comptroller General to report to Congress on the number of
private sector, state, and local agency submissions of CII data
to the Department of Homeland Security and the number of
requests for access to records. The Comptroller General also
will be required to report on whether the nondisclosure of CII
material has led to increased protection of critical
infrastructure.
Section 13. Report on personnel policies related to FOIA
This Section adds a new provision requiring the Office of
Personnel Management (OPM) to submit to Congress a report that
examines whether certain changes to executive branch personnel
polices might enhance agency compliance with FOIA.
Specifically, this Section calls on OPM to examine whether FOIA
compliance should be included as a factor in personnel
performance evaluations; whether an employment classification
series specific to compliance with FOIA should be established;
whether employees doing FOIA related work should be paid
differently; whether there is a clear career advancement track
for individuals interested in devoting themselves to FOIA
compliance; and whether the executive branch should require all
federal employees to undertake awareness training regarding
FOIA.
Section 14. Promotion of public disclosure
This Section codifies a ``presumption of disclosure'' by
reaffirming the presumption that records should be released to
the public if disclosure is allowable under law and the agency
cannot ``reasonably foresee'' a harm from such a disclosure.
Subsection (h)(2) of this Section mandates that all guidance
provided to federal employees be consistent with this
presumption.
Section 15. Requirement to describe exemptions authorizing deletions of
material provided under FOIA
This Section provides that agencies should note the
exemption or exemptions used to withhold information on the
partial records that are released, unless revealing that
information would harm an interest protected by the exemption.
It further provides that agencies should, wherever technically
feasible, indicate the exemption used at the place in the
record where the deletion is made.
Explanation of Amendments
The following amendment was adopted in Committee:
Rep. Carolyn Maloney offered an amendment creating a new
Section 15, which was accepted by voice vote. The amendment
calls on agencies to, whenever possible; indicate the exemption
used to delete material at the place in a record where the
deletion is made.
Committee Consideration
On Thursday, March 8, 2007, the Committee ordered the bill
reported to the House by a voice vote.
Rollcall Votes
The Committee held no rollcall votes on this bill.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill provides enhanced transparency to the operations of
the executive branch. As such this bill does not relate to
employment or access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 1309. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported bill include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office that is included
herein.
Earmark Identification
H.R. 1255 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1309. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under Section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of Rule
XIII of the Rules of the House of Representatives and Section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and Section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 985 from the Director of
Congressional Budget Office:
March 12, 2007.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1309, the OPEN
Government Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 1309--OPEN Government Act of 2007
Summary: H.R. 1309 would make several amendments to the
Freedom of Information Act (FOIA), which generally allows any
person the right to obtain federal agency records protected
from disclosure. Specifically, the legislation would:
Expand FOIA's definition of the news media;
Require time limits for agencies to act upon
FOIA requests and not allow fees to be collected that
are for requests not completed within time limits;
Allow greater recovery of attorney fees and
litigation costs by FOIA requestors if information is
withheld by the government;
Require agencies to provide status
information for FOIA requests;
Amend the types of information that are
exempt from disclosure under FOIA;
Require federal agencies to prepare
additional reports to the Congress concerning FOIA
activities;
Require new reports concerning agencies'
FOIA programs from the Government Accountability Office
(GAO), the Department of Justice (DOJ), the Office of
the Special Counsel (OSC), and the Office of Personnel
Management (OPM); and
Establish an Office of Government
Information Services to provide policy guidance to
federal agencies and review FOIA policies and
procedures.
CBO estimates that enacting this legislation would increase
direct spending by $6 million in 2008 and $63 million over the
2008-2017 period to reimburse citizens making FOIA requests for
attorneys' fees and litigation cost payments. CBO also
estimates that enacting H.R. 1309 would result in a loss of
fees, which are recorded in the budget as revenues, of $10
million over the 2008-2017 period.
In addition, we estimate that implementing the bill would
increase costs subject to appropriation by $9 million in 2008
and $53 million over the 2008-2012 period to establish the OGIS
and implement new agency reporting requirements. H.R. 1309
would codify and expand Executive Order 13392 that requires
agencies to improve their FOIA operations, including improving
efficiency and customer services.
H.R. 1309 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1309 is shown in the following table.
The costs of this legislation fall within budget function 800
(general government) and all other budget functions that
include federal salaries and expenses.
Basis of estimate: For this estimate, CBO assumes that H.R.
1309 will be enacted before the start of 2008, that the
necessary funds will be provided for each year, and that
spending will follow historical patterns for similar programs.
Enacted in 1966, FOIA was designed to enable any person--
individual or corporate, regardless of citizenship status--to
request, without explanation or justification, access to
existing, identifiable, and unpublished executive branch
records on any topic. The Office of Management and Budget
issues guidelines to agencies on fees to charge for providing
copies of information requested, while DOJ oversees agency
compliance with FOIA. Based on information from GAO for fiscal
year 2005, federal agencies (excluding the Social Security
Administration) received more than 2.5 million FOIA requests.
In addition, DOJ reports that in fiscal year 2005, agencies
devoted about 5,000 employee-years to processing and litigating
FOIA requests at a cost of over $300 million.
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By fiscal year, in millions of dollars--
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2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
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CHANGES IN DIRECT SPENDING
Attorneys' Fees and Litigation Costs:
Estimated Budget Authority............ 6 6 6 6 7 7 7 7 7 7
Estimated Outlays..................... 6 6 6 6 6 6 6 7 7 7
CHANGES IN REVENUES
FOIA Fees:
Estimated Revenues.................... -1 -1 -1 -1 -1 -1 -1 -1 -1 -1
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Office of Government Information Services:
Estimated Authorization Level......... 4 5 5 5 6 6 6 6 6 6
Estimated Outlays..................... 3 4 5 5 6 6 6 6 6 6
FOIA Reporting Requirements:
Estimated Authorization Level......... 4 5 5 5 6 6 6 6 6 7
Estimated Outlays..................... 3 5 5 5 6 6 6 6 6 7
Other Reports:
Estimated Authorization Level......... 3 2 1 * * * * * * *
Estimated Outlays..................... 3 2 1 * * * * * * *
Total Changes:
Estimated Authorization Level......... 11 12 11 10 12 12 12 12 12 13
Estimated Outlays..................... 9 11 11 10 12 12 12 12 12 13
----------------------------------------------------------------------------------------------------------------
Note.--* = less than $500,000.
Direct spending and revenues
Attorneys' Fees and Litigation Costs. Under the
legislation, FOIA requestors would be entitled to recover any
attorneys' fees and litigation costs incurred to receive
requested information through a judicial or administrative
order or because of a voluntary change in an agency's FOIA
policies. Those payments would be made from the Judgment Fund
(a permanent, indefinite appropriation for claims and judgments
against the United States). The cost of implementing this
section would depend on the number of successful challenges to
FOIA requests that are either fully or partially denied and any
changes in FOIA disclosure policies.
Under current law, when a FOIA request is denied or
partially granted, the requestor can administratively appeal
the decision. If the administrative appeal is also denied, a
requestor has the right to appeal the decision in federal
court. Based on a review of FOIA decisions by federal courts
over the 2001-2005 period, CBO estimates that about 350 FOIA
cases are presented annually, and about 6 percent of
complainants subsequently challenge agency decisions and are
reimbursed for attorneys' fees and litigation costs. Those
payments by the Judgment Fund cost about $3 million a year. In
addition, based on information from 15 major agencies over the
2001-2005 period, including the Departments of Veterans
Affairs, Treasury, Defense, Labor, State, and Justice, CBO
estimates that requestors successfully appeal about 1,000 FOIA
cases each year.
CBO estimates that the average cost of litigating a FOIA
lawsuit or administrative appeal is about $6,000 per case.
Assuming that agencies act on about 1,000 FOIA cases each year,
CBO estimates that enacting this legislation would increase
direct spending from the Judgment Fund by $30 million over the
2008-2012 period, and $63 million over the 2008-2017 period.
FOIA Fees. FOIA requests from researchers associated with
academic institutions and the news media are charged fees for
the duplication of records that are larger than 100 pages. All
other requestors are charged fees for research time and
duplication costs after the first two hours of research and 100
pages of copying. Those fees are recorded on the budget as
revenues and deposited into the general fund of the Treasury.
Based on a review of annual FOIA reports from 15 major agencies
over the fiscal year 2003-2005 period, CBO estimates that
agencies collect about $4 million in FOIA fees annually.
Section 3 would expand the definition of news media
researchers to FOIA requestors who have no affiliation with a
media outlet but have a publishing history. Section 6 would set
a period of 20 days for agencies to respond to the initial FOIA
request. If this deadline is missed, agencies could not charge
fees. CBO expects that those changes would reduce the amount of
fees currently collected for retrieval of information. Based on
information from some of the 15 major agencies, CBO estimates
that removing the fees for some requests would reduce the
amount of FOIA fees collected by about $1 million annually.
Spending subject to appropriation
Office of Government Information Services. Section 11 would
establish an Office of Government Information Services under
the direction of a National Information Advocate within the
National Archives and Records Administration (NARA). The office
would provide guidance to FOIA requestors, review FOIA policies
and practices and make recommendations.
Based on information from NARA and the cost of similar
offices, CBO estimates that implementing this provision would
cost about $5 million annually for additional staff to conduct
audits of FOIA programs. CBO expects that the new agency would
take about two years to reach that level of effort. We estimate
that operations for the new office would cost $23 million over
the 2008-2012 period, assuming appropriation of the necessary
amounts.
FOIA Reporting Requirements. Section 9 would add a number
of additional reporting requirements to the annual FOIA reports
submitted by all federal departments and agencies. This would
include FOIA information on the time required to process
requests, median and average processing time, expedited and
appeal processing time, and the oldest pending requests. In
addition, H.R. 1309 would require each agency to provide the
raw data used to compile their annual FOIA report. Based on the
costs of similar reports, a review of annual reports by 15
major agencies over the 2001-2005 period, and information from
some of those agencies, CBO estimates that adding additional
reporting requirements would cost about $5 million annually and
about $24 million over the 2008-2012 period, assuming the
appropriation of the necessary amounts.
Other Reports. H.R. 1309 would require new reports by a
number of government agencies. GAO would be required to report
on critical infrastructure information that is collected by the
government from the private sector but is exempt from FOIA
disclosure. DOJ and OSC would be required to report on legal
actions related to the rejection of FOIA requests, and OPM
would be required to produce a report on FOIA personnel
policies. Based on the costs of similar reports, CBO estimates
that implementing those provisions would cost $6 million over
the 2008-2012 period, assuming the availability of appropriated
funds.
Other Provisions. Additional provisions would require
providing tracking numbers for FOIA requests and would expand
on the provisions of Executive Order 13392 issued on December
14, 2005. That order calls upon all federal agencies to improve
their FOIA operations, including customer service and
assistance. Specifically, the order requires agencies to
develop FOIA improvement plans, designate a Chief FOIA officer,
and establish FOIA requestor centers. Based on information from
DOJ and a review of annual reports by 15 major agencies over
the 2001-2005 period, CBO estimates that those provisions would
not significantly increase agencies' costs to implement FOIA.
Intergovernmental and private-sector impact: H.R. 1309
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford.
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum. Impact on the Private-Sector: Amy Petz.
Esimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
* * * * * * *
Sec. 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) * * *
* * * * * * *
(4)(A)(i) * * *
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review,
when records are requested for commercial use;
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the request is made by an
educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II),
fees shall be limited to reasonable standard charges
for document search and duplication.
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 institutional associations of
the requester, but shall consider the prior publication history
of the requester. Prior publication history shall include
books, magazine and newspaper articles, newsletters, television
and radio broadcasts, and Internet publications. If the
requestor has no prior publication history or current
affiliation, the agency shall consider the requestor's stated
intent at the time the request is made to distribute
information to a reasonably broad audience.
* * * * * * *
(viii) An agency may not charge any fees under this
subparagraph if the agency fails to comply with any time limit
that applies under paragraph (6).
* * * * * * *
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in
any case under this section in which the complainant has
substantially prevailed. For purposes of this section only, a
complainant has substantially prevailed if the complainant has
obtained relief through either--
(i) a judicial order, administrative action, or an
enforceable written agreement or consent decree; or
(ii) a voluntary or unilateral change in position by
the opposing party, in a case in which the
complainant's claim or defense was not frivolous.
(F)(i) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding. The
Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and
recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(ii) The Attorney General shall--
(I) notify the Special Counsel of each civil action
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 report to
Congress on the actions taken by the Special Counsel under
clause (i).
* * * * * * *
(6)(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall--
(i) [determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of any such request] within the 20-day period
commencing on the date on which the request is first
received by the agency (excepting Saturdays, Sundays,
and legal public holidays), which shall not be tolled
without the consent of the party filing the request,
determine whether to comply with such request and shall
immediately notify the person making such request of
such determination and the reasons therefor, and of the
right of such person to appeal to the head of the
agency any adverse determination; and
* * * * * * *
(7) Each agency shall--
(A) establish a system to assign an individualized
tracking number for each request for information under
this section;
(B) not later than 10 days after receiving a request,
provide each person making a request with the tracking
number assigned to the request; and
(C) establish a telephone line or Internet service
that provides information about the status of a request
to the person making the request using the assigned
tracking number, including--
(i) the date on which the agency originally
received the request; and
(ii) an estimated date on which the agency
will complete action on the request.
(b) This section does not apply to matters that are--
(1) * * *
* * * * * * *
[(3) specifically exempted from disclosure by statute
(other than section 552b of this title), provided that
such statute (A) requires that the matters be withheld
from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld;]
(3) specifically exempted from disclosure by statute
(other than section 552b of this title), provided that
such statute--
(A) if enacted after the date of enactment of
the Freedom of Information Act Amendments of
2007, specifically cites to this section; and
(B)(i) requires that the matters be withheld
from the public in such a manner as to leave no
discretion on the issue; or
(ii) establishes particular criteria for
withholding or refers to particular types of
matters to be withheld;
* * * * * * *
(9) geological and geophysical information and data,
including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection. The amount of
information deleted, and the exemption under which the deletion
is made, 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, and the exemption under which the deletion
is made, shall be indicated at the place in the record where
such deletion is made.
* * * * * * *
(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]
fiscal year. Information in the report shall be expressed in
terms of each principal component of the agency and for the
agency overall, and shall include--
(A) * * *
(B)(i) * * *
(ii) a complete list of all statutes that the agency
relies upon to authorize the agency to withhold
information under subsection (b)(3), the number of
occasions on which each statute was relied upon, 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 and average number of days that such
requests had been pending before the agency as of that
date;
* * * * * * *
(E) the median number of days taken by the agency to
process different types of requests, based on the date
on which each request was initially received by the
agency;
(F) the average number of days for the agency to
respond to requests beginning on the date on which each
request was initially received by the agency, the
median number of days for the agency to respond to such
requests, and the range in number of days for the
agency to respond to such requests;
(G) based on the number of business days that have
elapsed since each request was initially received by
the agency--
(i) the number of requests for records to
which the agency has responded with a
determination within a period greater than 1
day and less than 201 days, stated in 20-day
increments;
(ii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 200
days and less than 301 days;
(iii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 300
days and less than 401 days; and
(iv) the number of requests for records to
which the agency has responded with a
determination within a period greater than 400
days;
(H) the average number of days for the agency to
provide the granted information beginning on the date
on which each request was initially received by the
agency, the median number of days for the agency to
provide the granted information, and the range in
number of days for the agency to provide the granted
information;
(I) the median and average number of days for the
agency to respond with a determination to
administrative appeals based on the date on which each
appeal was initially received by the agency; the
highest number of business days taken by the agency to
respond to an administrative appeal; and the lowest
number of business days taken by the agency to respond
to an administrative appeal;
(J) data on the 10 active requests with the earliest
filing dates pending at the agency, including the
amount of time that has elapsed since each request was
initially received by the agency;
(K) data on the 10 active administrative appeals with
the earliest filing dates pending at the agency as of
September 30 of the preceding year, including the
number of business days that have elapsed since each
request was initially received by the agency;
(L) the number of expedited review requests received
by the agency, the number that were granted and the
number that were denied, the average and median number
of days for adjudicating expedited review requests, and
the number of requests that adjudicated within the
required 10 days;
(M) the number of fee waiver requests that were
granted and the number that were denied, and the
average and median number of days for adjudicating fee
waiver determinations;
[(F)] (N) the total amount of fees collected by the
agency for processing requests; and
[(G)] (O) 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. In addition, each agency
shall make the raw statistical data used in its reports
available electronically to the public upon request.
* * * * * * *
(f) For purposes of this section, the term--
(1) * * *
[(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.]
(2) ``record'' and any other term used in this
section in reference to information includes--
(A) 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; and
(B) any information described under
subparagraph (A) that is maintained for an
agency by an entity under a contract between
the agency and the entity.
* * * * * * *
(h)(1) The policy of the Federal Government is to release
information to the public in response to a request under this
section--
(A) if such release is required by law; or
(B) if such release is allowed by law and the agency
concerned does not reasonably foresee that disclosure
would be harmful to an interest protected by an
applicable exemption.
(2) All guidance provided to Federal Government employees
responsible for carrying out this section shall be consistent
with the policy set forth in paragraph (1).
* * * * * * *
----------
CHAPTER 21 OF TITLE 44, UNITED STATES CODE
Sec.
2101. Definitions.
* * * * * * *
2120. Office of Government Information Services.
* * * * * * *
Sec. 2120. Office of Government Information Services
(a) In General.--There is established in the National
Archives an office to be known as the ``Office of Government
Information Services''.
(b) National Information Advocate.--
(1) In general.--The Office of Government Information
Services shall be under the supervision and direction
of an official to be known as the ``National
Information Advocate'' who shall report directly to the
Archivist of the United States.
(2) Functions of office.--
(A) Guidance for requesters.--
(i) In general.--The Office of
Government Information Services shall
provide, as a non-exclusive alternative
to litigation, guidance to FOIA
requesters.
(ii) Types of guidance.--In providing
such guidance, the Office shall provide
informal guidance to requesters and may
provide fact-finding reviews and
opinions to requesters. All reviews and
opinions shall be non-binding and shall
be initiated only on the request of
FOIA requesters.
(iii) Availability.--Any written
opinion issued pursuant to this section
shall be available on the Internet in
an indexed, readily accessible format.
(iv) FOIA requesters.--In this
paragraph, the term ``FOIA requester''
or ``requester'' means a person who has
made a request under section 552 of
this title and who has been denied
records or has not received a timely
response to the request or to an
administrative appeal.
(B) Analyses of agency operations.--The
Office of Government Information Services
shall--
(i) review polices and procedures of
administrative agencies under section
552 of this title and compliance with
that section by administrative
agencies; and
(ii) recommend policy changes to
Congress and the President to improve
the administration of section 552 of
this title, including whether agencies
are receiving and expending adequate
funds to ensure compliance with that
section.
(3) Impact on requester access to litigation.--
Nothing in this section shall affect the right of
requesters to seek judicial review as described in
section 552 of this title.
* * * * * * *
ADDITIONAL VIEWS OF REPRESENTATIVE TOM DAVIS
Legislation designed to streamline and improve the FOIA
process was introduced in the 109th Congress by Rep. Lamar
Smith. His bill (H.R. 867) had moved through subcommittee to
the full committee. Although not perfect, this was a solid
bipartisan bill that Republicans introduced and guided through
the legislative process. This year, the Majority took his
bipartisan bill and added a few of their own twists. We have
additional suggestions as well, and Republicans offered two
amendments to H.R. 1309 that were not included in the reported
bill.
First, the attorney's fee provision appears to
significantly lower the bar for the recovery of fees. The
language in this bill differs from that in H.R. 867. We should
consider the wisdom of this provision, and its implications for
the numerous federal statutes providing for attorney fee awards
where the United States or a federal agency or official is a
party.
The Supreme Court has ruled on this matter, and now some
want to codify old, more lucrative, law. There is a great deal
of talk about freedom of information, open government, and the
public right to know. But I hope when we scratch the surface,
it's not about money. You have to assume that if this provision
passes, everyone litigating under any private right of action
statute will clamor for the same legislative treatment.
The language in Section 4 of H.R. 1309 would allow
plaintiffs to receive awards of attorney's fees in almost any
case they file so long as they can show that the defending
government agency somehow changed its position once the case
had been commenced.
Although it is true that FOIA complainants often face an
uphill battle when they face off against an agency, the bar
suggested in this statute is simply too low a standard. It may
actually undermine the stated ``dominant objective'' of the act
by incentivizing departments to avoid disclosure.
Under Section 4 of this bill, once a lawsuit is commenced
any change in position by the agency will be tantamount to an
admission of liability for attorney's fees. Why settle? Why
release the least controversial documents? Why do anything at
all other than try to win the case? Isn't the whole point of
FOIA to get the information to the public? We should encourage
an agency or department to release all appropriate documents
early, thus avoiding a long drawn out court battle. This
supports the main purpose of the Act: minimizing secrecy and
increasing information provided to the public.
Rep. Bill Sali (R-ID) offered an amendment to strike
Section 4 to preserve settled judicial precedent regarding
attorney's fees and highlight this issue. I hope my colleagues
in the House and Senate will take a close look at this section
as this legislation moves forward.
Second, the Majority has taken to heart various groups'
concerns about the so-called Ashcroft memo. During the Clinton
Administration, Attorney General Janet Reno issued a memorandum
establishing a presumption of disclosure if no ``foreseeable
harm'' would result from the release of information.
Shortly after 9/11, and recognizing the challenges of that
standard, Attorney General Ashcroft issued a memorandum that
encouraged agencies to carefully consider the protection of the
values and interests embodied in the statutory exemptions to
FOIA (national security, privacy, governmental interests, etc.)
when making disclosure determinations. It stated that DOJ would
defend agency decisions unless they lack a ``sound legal
basis.'' Mr. Ashcroft's memorandum superseded the Reno
memorandum.
Section 14, however, would codify Attorney General Reno's
position. Keep in mind, these are guidance memos. Agency
personnel still must follow the law. This appears to intrude on
the discretion given to an Administration to implement the law.
In addition, it requires agency officials to see the
future. It is quite a burden to place on agency personnel to
ascertain ``foreseeable harm'' when deciding whether or not to
release a document.
The exemptions embodied in FOIA are there for a reason.
Attorney General Ashcroft did not establish a policy that
government information should not be released if it was likely
to threaten national security or invade personal privacy.
Congress did. Mr. Ashcroft simply said: follow the law Congress
passed and we will support you.
I understand there are serious concerns with this Section.
Last year, Rep. Smith was a champion of bipartisan FOIA
legislation. I understand that Rep. Smith did not cosponsor
this bill, but introduced his own measure, H.R. 1326, in part
due to this provision.
I hope we can come to real bipartisan agreement on this
provision as we move forward. Clearly, improving the procedural
aspects of FOIA is important. I trust we can find a way to
balance national security with the vital principles of open
government.
Tom Davis.
.
