[Congressional Record: December 14, 2007 (Senate)]
[Page S15649-S15650]
OPEN GOVERNMENT ACT
Mr. KYL. Madam President, I rise today to comment on the OPEN
Government Act. This bill is only a slightly modified version of S.
849, a bill that passed the Senate on August 3 of this year. At that
time, I made a more complete statement regarding the bill--see 153
Congressional Record at S10987 to S10989 in the daily edition of the
Record,, on August 3, 2007--as did Senators Leahy and Cornyn--see the
Record at S10986 to S10987 and S10989 to S10990. Thus my remarks today
need only describe the changes made to the bill and a few other
matters.
One section of the bill that makes important changes to the law and
thus deserves comment is section 6. Although this section appeared in
S. 849, I did not address the provision in August because final
negotiations regarding the language of that section were completed only
an hour or so before we began a hotline of the bill. The purpose of
section 6 is to force agencies to comply with FOIA's 20-day deadline
for responding to a request for information. The original introduced
version of S. 849 sought to obtain agency compliance by repealing
certain FOIA exemptions in the event that an agency missed the 20-day
deadline, an approach that I and others argued would impose penalties
that were grossly disproportionate and that would principally punish
innocent third parties--see S. Rep. 110-059 at 13-14 and 15-19. The
current draft applies what is in my view a much better calibrated
sanction, the denial of search fees to agencies that miss the 20-day
deadline with no good excuse.
Several features of this new system merit further elaboration. First,
the 20-day deadline begins to run only when a FOIA request is received
by the appropriate component of the agency, but in any event no later
than 10 days after the request is received by a FOIA component of the
agency. The reasoning behind this distinction is that requesters should
receive the full benefit of the 20-day deadline if they make the effort
to precisely address their request to the right FOIA office, and that
they should also be protected by the secondary 10-day deadline if they
at least ensure that their request goes to some FOIA component of the
agency. So long as a misdirected request is sent to some FOIA component
of an agency, it is reasonable to expect that such component will be
able to promptly identify that missive as a FOIA request and redirect
it to its proper destination.
On the other hand, if a FOIA request is sent to a part of an agency
that is not even a FOIA component, it is difficult to impose particular
deadlines for processing the request. For example, if a request is sent
to an obscure regional office of an agency, it will probably simply be
sent to regional headquarters. Many agencies have a large number of
field offices whose staff handle very basic functions and are not
trained to handle FOIA requests. Such staff probably will not recognize
some requests as FOIA requests. Implementing a deadline that extended
to FOIA requests that are received by such staff would effectively
require training a large number of additional agency staff in FOIA,
something that Congress has not provided the resources to do.
Also, because this bill imposes significant sanctions on an agency
for a failure to comply with the 20-day deadline, it is important that
the deadline only begin to run when the agency can reasonably be
expected to comply with it, and that the law not create opportunities
for gamesmanship. If the deadline began to run whenever an agency
component receives the request, for example, sophisticated commercial
requesters might purposely send their request to an obscure field
office in the hope that by the time the FOIA office receives the
request, it will be impossible to meet the deadline, and the requester
will thereby be relieved from paying search fees. Given the wide
variety of types of FOIA requesters, Congress cannot simply assume that
every requester will act in good faith and that no requester will seek
to take advantage of the rules. The present bill therefore initiates
the 20-day deadline only when the request is received by the proper
FOIA component of the agency, or no later than 10 days after the
request is received by some FOIA component of the agency.
Section 6 of the bill also allows FOIA's 20-day response deadline to
be tolled while an agency is awaiting a response to a request for
further information from a FOIA requester, but only in two types of
circumstances. Current practice allows tolling of the deadline whenever
an agency requests further information from the requester. Some FOIA
requesters have described to the Judiciary Committee situations in
[[Page S15650]]
which some agencies have abused this process. For example, some
agencies, when they are about to miss the 20-day deadline, allegedly
have contacted a requester to simply inquire whether the requester
still wants the request, or with other frivolous inquiries, all for the
purpose of obtaining tolling of the deadline. Such practices should not
be permitted. On the other hand, agencies do have a legitimate need for
some tolling of the deadline. The language of subclauses (I) and (II)
is the result of hard-fought negotiations between the FOIA requester
community and representatives of the agencies, negotiations to which
Senator Leahy and I, frankly, served more as mere conduits rather than
full participants. This language allows tolling whenever and as often
as necessary to clarify fee issues, and also allows one additional
catch-all request with the stipulation that this additional request
must be reasonable.
With regard to the tolling for requests for information relating to
fee assessments that is authorized by subclause (II), neither agencies
nor requesters would benefit if agencies could not contact requesters
and toll the deadline while waiting to hear whether a requester still
wanted the request in light of, for example, a substantial upward
revision in the search fees that would be assessed in relation to a
FOIA request. And because such upward revisions might occur multiple
times as a request is processed, it is not practical to impose a
numerical limit on such fee-related requests. Such requests need only
be necessary in order to be entitled to tolling under this subclause.
Presumably, a request as to whether a requester still wanted his
request in light of a trivial upward revision in the search-fees
estimate would not be ``necessary,'' and therefore would not be
entitled to tolling. Moreover, tolling only occurs while the agency is
awaiting the requester's response. If an agency were to call or e-mail
a requester and inquire whether he still wanted the request in light of
a $100 increase in estimated review or search fees, and the requester
immediately responded yes, no tolling would occur. At least at this
time, it is not apparent how this tolling exception could be abused.
With regard to the catch-all requests authorized by subclause (I),
representatives of the agencies identified for the committee a wide
array of additional reasons for which agencies reasonably need to
request additional information from the requester and should be
entitled to tolling. The agencies' representatives, however, also
thought that an agency would not need to make more than one such non-
fee-related information request. Since the agencies are the masters of
their own interests, we have incorporated that limit into this bill,
allowing the agencies to make a tolling-initiating request for any
purpose and in addition to previous fee-related requests, with the
additional stipulation that these one-time requests also be reasonable.
Additional changes were made to this bill from S. 849. This bill
omits section 8 of the August-passed bill. The former section 8
maintained the requirement that previously enacted statutes only be
construed to create exemptions to FOIA if the statute at least
established criteria for withholding information, but required that
future statutes instead include a clear statement that information is
not subject to release under FOIA. I only grudgingly accepted former
section 8 since I do not favor the use of clear statement rules in this
circumstance. The rule likely would serve as a trap for unwary future
legislative drafters. Under such a rule, even a statement in a statute
that particular information shall not be released under any
circumstances whatsoever would be construed not to preclude release of
the information under FOIA. On the other hand, some FOIA requesters
came to have second thoughts about section 8's elimination of the
requirement for future legislation that FOIA exemptions at least set
criteria for what information may be withheld. In my view, it would not
be practical to require a clear statement in addition to requiring that
exemptions only be implied when release criteria are identified. At the
very least, it would pose a difficult question of statutory
construction were a court asked to construe a statute to allow
information to be ``FOIAble'', despite a clear statement in the statute
that the information was not subject to release under FOIA, because the
statute did not also set criteria for withholding the information. I
have never seen such a ``clear-statement-plus rule.'' I think that
simple clear-statement rules themselves reach the zenith of one
legislature's power to bind future legislatures, and that a ``clear-
statement-plus rule'' would cross that line. Given the preference of
some advocates for this bill for keeping the requirement that FOIA
exemptions identify withholding standards or criteria, and my objection
to combining a clear-statement rule with additional requirements for
identifying a FOIA exemption, the compromise reached in this bill was
simply to strike the previous section 8.
This draft also includes a provision that is now subsection (b) of
section 4 that requires that attorneys' fees assessed against agencies
be extracted from the agencies' own appropriated budgets rather than
from the U.S. Treasury. This change was necessary in order to avoid an
unwaivable point of order against the bill in the House of
Representatives under that body's pay-go rules. I do not like this
provision. As I explained in my August 3 remarks, I believe that
section 4 already awards attorneys' fees too liberally in the
circumstances of a settlement. Effectively, it protects an agency from
fee assessments not when the agency's legal position would prevail on
the merits, but rather only when the requester's claims would not
survive a motion to dismiss or for summary judgment. I believe that
this standard will discourage agencies from settling--even a case that
the agency believes that it will win at trial it likely will be
disinclined to settle if the agency believes that the claims would not
be dismissed on summary judgment. Subsection (b), by extracting the
fees out of the agency's own budget, substantially aggravates section
4's de facto no-good-deed-goes-unpunished rule, and will further
aggravate section 4's tendency to discourage agencies from settling
FOIA lawsuits. Unfortunately, we have been unable to identify any way
of solving the bill's pay-go problems other than by partly repealing or
delaying the implementation of parts of the OPEN Government Act,
solutions to which advocates for the bill balked. The effects of
subsection (b) should be monitored and, if the provision is as
discouraging of settlements and disruptive to agency budgets as I fear
that it might be, perhaps the provision should be repealed or a
separate fund established to pay the fees assessed pursuant to FOIA's
fee-shifting rules.
Finally, the bill includes two changes that were sought by the House.
One is to expand section 6's denial of search fees to agencies that
miss the response deadline to also include duplication fees in the case
of media requesters and other subclause (II) requesters who already are
exempted from search fees. Since these requesters already do not pay
search fees, in their cases the threat of denying agencies such fees if
the 20-day response deadline is not met is not much of a sanction.
Although duplication fees for idiosyncratic requests sometimes are
massive and denying such fees in all cases would be excessive--paper
and toner do cost money--it is my understanding that media and other
subclause (II) requesters typically make narrow and tailored requests
that do not result in massive duplication costs.
The last change made in this bill is the addition of the new section
12, which requires that when an agency deletes information in a
document pursuant to a FOIA exemption, that it identify at the place
where the deletion is made the particular exemption on which the agency
relies.
Overall, I believe that the bill that will pass the Senate today
strikes the right balance and that it will improve the operation of the
Freedom of Information Act, and I encourage my colleagues to support
this legislation.
____________________
[Congressional Record: December 14, 2007 (Senate)]
[Page S15701-S15704]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr14de07-59]
OPENNESS PROMOTES EFFECTIVENESS IN OUR NATIONAL GOVERNMENT ACT OF 2007
Mr. REID. Madam President, I ask unanimous consent that the Senate
proceed to the consideration S. 2488.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 2488) to promote accessibility, accountability,
and 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.
There being no objection, the Senate proceeded to consider the bill.
Mr. REID. Madam President, I ask unanimous consent that the bill be
read three times, passed, the motion to reconsider be laid upon the
table, with no intervening action or debate, and that any statements
relating to this bill be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 2488) was ordered to be engrossed for a third reading,
was read the third time, and passed, as follows:
S. 248
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 ``Openness Promotes
Effectiveness in our National Government Act of 2007'' or the
``OPEN Government Act of 2007''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Freedom of Information Act was signed into law on
July 4, 1966, because the American people believe that--
(A) our constitutional democracy, our system of self-
government, and our commitment to popular sovereignty depends
upon the consent of the governed;
(B) such consent is not meaningful unless it is informed
consent; and
(C) as Justice Black noted in his concurring opinion in
Barr v. Matteo (360 U.S. 564 (1959)), ``The effective
functioning of a free government like ours depends largely on
the force of an informed public opinion. This calls for the
widest possible understanding of the quality of government
service rendered by all elective or appointed public
officials or employees.'';
(2) the American people firmly believe that our system of
government must itself be governed by a presumption of
openness;
(3) the Freedom of Information Act establishes a ``strong
presumption in favor of disclosure'' as noted by the United
States Supreme Court in United States Department of State v.
Ray (502 U.S. 164 (1991)), a presumption that applies to all
agencies governed by that Act;
(4) ``disclosure, not secrecy, is the dominant objective of
the Act,'' as noted by the United States Supreme Court in
Department of Air Force v. Rose (425 U.S. 352 (1976));
(5) in practice, the Freedom of Information Act has not
always lived up to the ideals of that Act; and
(6) Congress should regularly review section 552 of title
5, United States Code (commonly referred to as the Freedom of
Information Act), in order to determine whether further
changes and improvements are necessary to ensure that the
Government remains open and accessible to the American people
and is always based not upon the
[[Page S15702]]
``need to know'' but upon the fundamental ``right to know''.
SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.
Section 552(a)(4)(A)(ii) of title 5, United States Code, is
amended by adding at the end the following:
``In this clause, the term `a representative of the news
media' means any person or entity that gathers information of
potential interest to a segment of the public, uses its
editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. In this
clause, the term `news' means information that is about
current events or that would be of current interest to the
public. Examples of news-media entities are television or
radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify
as disseminators of `news') who make their products available
for purchase by or subscription by or free distribution to
the general public. These examples are not all-inclusive.
Moreover, as methods of news delivery evolve (for example,
the adoption of the electronic dissemination of newspapers
through telecommunications services), such alternative media
shall be considered to be news-media entities. A freelance
journalist shall be regarded as working for a news-media
entity if the journalist can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication
contract would present a solid basis for such an expectation;
the Government may also consider the past publication record
of the requester in making such a determination.''.
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.
(a) In General.--Section 552(a)(4)(E) of title 5, United
States Code, is amended--
(1) by inserting ``(i)'' after ``(E)''; and
(2) by adding at the end the following:
``(ii) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained
relief through either--
``(I) a judicial order, or an enforceable written agreement
or consent decree; or
``(II) a voluntary or unilateral change in position by the
agency, if the complainant's claim is not insubstantial.''.
(b) Limitation.--Notwithstanding section 1304 of title 31,
United States Code, no amounts may be obligated or expended
from the Claims and Judgment Fund of the United States
Treasury to pay the costs resulting from fees assessed under
section 552(a)(4)(E) of title 5, United States Code. Any such
amounts shall be paid only from funds annually appropriated
for any authorized purpose for the Federal agency against
which a claim or judgment has been rendered.
SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS
REJECTIONS OF REQUESTS.
Section 552(a)(4)(F) of title 5, United States Code, is
amended--
(1) by inserting ``(i)'' after ``(F)''; and
(2) by adding at the end the following:
``(ii) The Attorney General shall--
``(I) notify the Special Counsel of each civil 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).''.
SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.
(a) Time Limits.--
(1) In general.--Section 552(a)(6)(A) of title 5, United
States Code, is amended by inserting after clause (ii) the
following:
``The 20-day period under clause (i) shall commence on the
date on which the request is first received by the
appropriate component of the agency, but in any event not
later than ten days after the request is first received by
any component of the agency that is designated in the
agency's regulations under this section to receive requests
under this section. The 20-day period shall not be tolled by
the agency except--
``(I) that the agency may make one request to the requester
for information and toll the 20-day period while it is
awaiting such information that it has reasonably requested
from the requester under this section; or
``(II) if necessary to clarify with the requester issues
regarding fee assessment. In either case, the agency's
receipt of the requester's response to the agency's request
for information or clarification ends the tolling period.''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of enactment of this
Act.
(b) Compliance With Time Limits.--
(1) In general.--
(A) Search fees.--Section 552(a)(4)(A) of title 5, United
States Code, is amended by adding at the end the following:
``(viii) An agency shall not assess search fees (or in the
case of a requester described under clause (ii)(II),
duplication fees) under this subparagraph if the agency fails
to comply with any time limit under paragraph (6), if no
unusual or exceptional circumstances (as those terms are
defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request.''.
(B) Public liaison.--Section 552(a)(6)(B)(ii) of title 5,
United States Code, is amended by inserting after the first
sentence the following: ``To aid the requester, each agency
shall make available its FOIA Public Liaison, who shall
assist in the resolution of any disputes between the
requester and the agency.''.
(2) Effective date and application.--The amendment made by
this subsection shall take effect 1 year after the date of
enactment of this Act and apply to requests for information
under section 552 of title 5, United States Code, filed on or
after that effective date.
SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND
STATUS INFORMATION.
(a) In General.--Section 552(a) of title 5, United States
Code, is amended by adding at the end the following:
``(7) Each agency shall--
``(A) establish a system to assign an individualized
tracking number for each request received that will take
longer than ten days to process and provide to each person
making a request the tracking number assigned to the request;
and
``(B) 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) Effective Date and Application.--The amendment made by
this section shall take effect 1 year after the date of
enactment of this Act and apply to requests for information
under section 552 of title 5, United States Code, filed on or
after that effective date.
SEC. 8. REPORTING REQUIREMENTS.
(a) In General.--Section 552(e)(1) of title 5, United
States Code, is amended--
(1) in subparagraph (B)(ii), by inserting after the first
comma ``the number of occasions on which each statute was
relied upon,'';
(2) in subparagraph (C), by inserting ``and average'' after
``median'';
(3) in subparagraph (E), by inserting before the semicolon
``, based on the date on which the requests were received by
the agency'';
(4) by redesignating subparagraphs (F) and (G) as
subparagraphs (N) and (O), respectively; and
(5) by inserting after subparagraph (E) the following:
``(F) the average number of days for the agency to respond
to a request beginning on the date on which the request was
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 originally received by the
agency--
``(i) the number of requests for records to which the
agency has responded with a determination within a period up
to and including 20 days, and in 20-day increments up to and
including 200 days;
``(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 the
request was originally filed, 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 to administrative appeals based on the date on
which the appeals originally were 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 each agency, including the amount of
time that has elapsed since each request was originally
received by the agency;
``(K) data on the 10 active administrative appeals with the
earliest filing dates pending before the agency as of
September 30 of the preceding year, including the number of
business days that have elapsed since the requests were
originally received by the agency;
``(L) the number of expedited review requests that are
granted and denied, the average and median number of days for
adjudicating expedited review requests, and the number
adjudicated within the required 10 days;
``(M) the number of fee waiver requests that are granted
and denied, and the average and median number of days for
adjudicating fee waiver determinations;''.
(b) Applicability to Agency and Each Principal Component of
the Agency.--Section 552(e) of title 5, United States Code,
is amended--
(1) by redesignating paragraphs (2) through (5) as
paragraphs (3) through (6), respectively; and
[[Page S15703]]
(2) by inserting after paragraph (1) the following:
``(2) Information in each report submitted under paragraph
(1) shall be expressed in terms of each principal component
of the agency and for the agency overall.''.
(c) Public Availability of Data.--Section 552(e)(3) of
title 5, United States Code, (as redesignated by subsection
(b) of this section) is amended by adding at the end ``In
addition, each agency shall make the raw statistical data
used in its reports available electronically to the public
upon request.''.
SEC. 9. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE
ENTITY.
Section 552(f) of title 5, United States Code, is amended
by striking paragraph (2) and inserting the following:
``(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 Government
contract, for the purposes of records management.''.
SEC. 10. OFFICE OF GOVERNMENT INFORMATION SERVICES.
(a) In General.--Section 552 of title 5, United States
Code, is amended by adding at the end the following:
``(h)(1) There is established the Office of Government
Information Services within the National Archives and Records
Administration.
``(2) The Office of Government Information Services shall--
``(A) review policies and procedures of administrative
agencies under this section;
``(B) review compliance with this section by administrative
agencies; and
``(C) recommend policy changes to Congress and the
President to improve the administration of this section.
``(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, at
the discretion of the Office, may issue advisory opinions if
mediation has not resolved the dispute.
``(i) The Government Accountability Office shall conduct
audits of administrative agencies on the implementation of
this section and issue reports detailing the results of such
audits.
``(j) Each agency shall designate a Chief FOIA Officer who
shall be a senior official of such agency (at the Assistant
Secretary or equivalent level).
``(k) The Chief FOIA Officer of each agency shall, subject
to the authority of the head of the agency--
``(1) have agency-wide responsibility for efficient and
appropriate compliance with this section;
``(2) 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;
``(3) 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;
``(4) 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;
``(5) 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; and
``(6) designate one or more FOIA Public Liaisons.
``(l) FOIA Public Liaisons shall report to the agency Chief
FOIA Officer and shall serve as supervisory officials to whom
a requester under this section can raise concerns about the
service the requester has received from the FOIA Requester
Center, following an initial response from the FOIA Requester
Center Staff. FOIA Public Liaisons shall be responsible for
assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.''.
(b) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act.
SEC. 11. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.
Not later than 1 year after the date of enactment of this
Act, the Office of Personnel Management shall submit to
Congress a report that examines--
(1) whether changes to executive branch personnel policies
could be made that would--
(A) provide greater encouragement to all Federal employees
to fulfill their duties under section 552 of title 5, United
States Code; and
(B) enhance the stature of officials administering that
section within the executive branch;
(2) whether performance of compliance with section 552 of
title 5, United States Code, should be included as a factor
in personnel performance evaluations for any or all
categories of Federal employees and officers;
(3) whether an employment classification series specific to
compliance with sections 552 and 552a of title 5, United
States Code, should be established;
(4) whether the highest level officials in particular
agencies administering such sections should be paid at a rate
of pay equal to or greater than a particular minimum rate;
and
(5) whether other changes to personnel policies can be made
to ensure that there is a clear career advancement track for
individuals interested in devoting themselves to a career in
compliance with such sections; and
(6) whether the executive branch should require any or all
categories of Federal employees to undertake awareness
training of such sections.
SEC. 12. 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 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,''.
Mr. LEAHY. Madam President, I am pleased that, once again, the Senate
has reaffirmed its bipartisan commitment to open and transparent
government by unanimously passing the Openness Promotes Effectiveness
in our National Government Act, the ``OPEN Government Act--the first
major reform to the Freedom of Information Act, ``FOIA'', in more than
a decade. I commend the bill's chief Republican cosponsor, Senator John
Cornyn, for his commitment and dedication to passing FOIA reform
legislation this year. I am also appreciative of the efforts of Senator
Jon Kyl for cosponsoring this bill and helping us to reach a compromise
on this legislation, so that the Senate could consider and pass
meaningful FOIA reform legislation this year.
Earlier this year, the Senate passed this historic FOIA reform
legislation, S. 849, before adjourning for the August recess. Now that
the Senate has unanimously passed a modified bill, to ensure that
``pay/go'' and other concerns of the House are adequately addressed, I
hope that the House will promptly enact this bill and send it to the
President without further delay.
I have worked very hard to address the concerns of the House
Oversight and Government Reform Committee, to ensure that the Congress
can enact meaningful FOIA reform legislation this year. I commend
Congressman Waxman, the distinguished Chairman of that Committee, for
his commitment to FOIA reform and I thank him and his staff for all of
their hard work on this legislation.
The bill that the Senate passed today includes ``pay/go'' language
that has been requested by the House and it also eliminates a provision
on citations to FOIA exemptions in legislation that was in the previous
bill. To accommodate other concerns of the House, the bill also
includes a new provision that requires Federal agencies to disclose the
FOIA exemptions that they rely upon when redacting information from
documents released under FOIA. In addition, the bill adds FOIA
duplication fees for noncommercial requesters, including the media, to
the fee waiver penalty that will be imposed when an agency fails to
meet the 20-day statutory clock under FOIA. While I will continue to
work with the House and others to further strengthen this critical open
government law, I hope that the House will promptly take up the
bipartisan FOIA compromise bill that we have been able to pass so that
it may be signed into law before the end of the year.
As the first major reform to FOIA in more than a decade, the OPEN
Government Act will help to reverse the troubling trends of excessive
delays and lax FOIA compliance in our government and help to restore
the public's trust in their government. This bill will also improve
transparency in the Federal Government's FOIA process by restoring
meaningful deadlines for agency action under FOIA; imposing real
consequences on federal agencies for missing FOIA's 20-day statutory
deadline; clarifying that FOIA applies to Government records held by
outside private
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contractors; establishing a FOIA hotline service for all Federal
agencies; and creating a FOIA Ombudsman to provide FOIA requestors and,
federal agencies with a meaningful alternative to costly litigation.
Specifically, the OPEN Government Act will protect the public's right
to know, by ensuring that anyone who gathers information to inform the
public, including freelance journalists and bloggers, may seek a fee
waiver when they request information under FOIA. The bill ensures that
Federal agencies will not automatically exclude Internet blogs and
other Web-based forms of media when deciding whether to waive FOIA
fees. In addition, the bill also clarifies that the definition of news
media, for purposes of FOIA fee waivers, includes free newspapers and
individuals performing a media function who do not necessarily have a
prior history of publication.
The bill also restores meaningful deadlines for agency action, by
ensuring that the 20-day statutory clock under FOIA starts when a
request is received by the appropriate component of the agency and
requiring that agency FOIA offices get FOIA requests to the appropriate
agency component within 10 days of the receipt of such requests. To
ensure accuracy in FOIA responses, the bill allows federal agencies to
toll the 20-day clock while they are awaiting a response to a
reasonable request for information from a FOIA requester on one
occasion, or while the agency is awaiting clarification regarding a
FOIA fee assessment. In addition, to encourage agencies to meet the 20-
day time limit the bill requires that an agency refund FOIA search
fees--and duplication fees for noncommercial requestors--if it fails to
meet the 20-day deadline, except in the case of exceptional
circumstances as defined by the FOIA statute.
The bill also addresses a relatively new concern that, under current
law, Federal agencies have an incentive to delay compliance with FOIA
requests until just before a court decision is made that is favorable
to a FOIA requestor. The Supreme Court's decision 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''
for attorneys' fees recovery under certain federal civil rights laws.
When applied to FOIA cases, Buckhannon precludes FOIA requesters from
ever being eligible to recover attorneys fees under circumstances where
an agency provides the records requested in the litigation just prior
to a court decision that would have been favorable to the FOIA
requestor. The bill clarifies that Buckhannon does not apply to FOIA
cases. Under the bill, a FOIA requester can obtain attorneys' fees when
he or she files a lawsuit to obtain records from the Government and the
Government releases those records before the court orders them to do
so. But, this provision would not allow the requester to recover
attorneys' fees if the requester's claim is wholly insubstantial. To
address House ``pay/go'' concerns, the bill also requires that any
attorneys'' fees assessed under this provision be paid from any
annually appropriated agency funds.
To address concerns about the growing costs of FOIA litigation, the
bill also creates an Office of Government Information Services in the
National Archives and creates an ombudsman to mediate agency-level FOIA
disputes. In addition the bill ensures that each federal agency will
appoint a Chief FOIA Officer, who will monitor the agency's compliance
with FOIA requests, and a FOIA Public Liaison who will be available to
resolve FOIA related disputes.
Finally, the bill does several things to enhance the agency reporting
and tracking requirements under FOIA. The bill creates a tracking
system for FOIA requests to assist members of the public and the media.
The bill also establishes a FOIA hotline service for all Federal
agencies, either by telephone or on the Internet, to enable requestors
to track the status of their FOIA requests. The bill also clarifies
that FOIA applies to agency records that are held by outside private
contractors, no matter where these records are located.
The Freedom of Information Act is an essential tool to ensure that
all Americans can access information about the workings of their
government. But, after four decades, this open government law needs to
be strengthened. I am pleased that the reforms contained in the OPEN
Government Act will ensure that FOIA is reinvigorated--so that it works
more effectively for the American people.
Again, I commend Senators Cornyn and Kyl and the many other
cosponsors of this legislation for their dedication to open government.
But, most importantly, I especially want to thank the many concerned
citizens who, knowing the importance of this measure to the American
people's right to know, have demanded action on this bill. This bill is
endorsed by more than 115 business, public interest, and news
organizations from across the political and ideological spectrum,
including the American Library Association, the U.S. Chamber of
Commerce, OpenTheGovemment.org, Public Citizen, the Republican Liberty
Caucus, the Sunshine in Government Initiative and the Vermont Press
Association. The invaluable support of these and many other
organizations is what led the opponents of this bill to come around and
support this legislation.
By passing this important FOIA reform legislation, the Senate has
reaffirmed the principle that open government is not a Democratic issue
or a Republican issue. But, rather, it is an American issue and an
American value. I strongly encourage the House of Representatives,
which overwhelmingly passed a similar measure earlier this year, to
promptly take up and enact this bill before adjourning for the year.
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