[Congressional Record: December 6, 2007 (Senate)]
[Page S14849-S14856]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself and Mr. Cornyn):
S. 2427. A bill 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; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I have joined with Senator Cornyn to
reintroduce the ``Openness Promotes Effectiveness in our National
Government Act--or the OPEN Government Act--the first major reform to
the Freedom of Information Act, FOIA, in more than a decade. The Senate
passed this historic FOIA reform legislation, S. 849, before adjourning
for the August recess. But, sadly, this measure has been stalled in the
House Oversight and Government Reform Committee for several months,
preventing these long-overdue FOIA reforms from being enacted into law.
Despite the unfortunate delay of this bill, I remain deeply committed
to enacting FOIA reform legislation this year. Because time is of the
essence, I am requesting that this legislation be immediately placed on
the Senate Calendar and that the Senate promptly take up and pass this
bill by unanimous consent, so that it can be sent to the House.
The version of the bill introduced today includes ``pay/go'' language
that has been requested by the House and eliminates the provision on
citations to FOIA exemptions. After needlessly delaying the enactment
of this bill for several months, I hope that the House Oversight and
Government Reform Committee will promptly take up this important
measure, so that the House can enact this legislation and send it to
the President 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 contractors; establishing a FOIA hotline service for
all Federal agencies; and creating a FOIA Ombudsman to provide FOIA
requesters 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. 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 if it fails to meet the 20-day
deadline, except in the case of exceptional circumstances as defined by
the FOIA statute. To address pay/go concerns, the bill requires that
these refunds come from annual agency appropriations.
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 requester. 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 pay/go concerns, the bill also requires that any attorneys'
fees assessed under this provision be paid from 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. Tracking numbers are not required
for FOIA requests that are anticipated to take 10 days or less to
process. 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 critical to ensuring that all
American citizens 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.
I commend the bill's chief Republican cosponsor, Senator John Cornyn,
for his commitment and dedication to passing FOIA reform legislation
this year. I also thank the many cosponsors of this legislation for
their dedication to open government and I thank the Majority Leader for
his strong support of this legislation. I am also appreciative of the
efforts of Senator Kyl in helping us to reach a compromise on this
legislation, so that the Senate could consider and pass meaningful FOIA
reform legislation.
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, OpenTheGovernment.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.
I hope that by once again passing this important FOIA reform
legislation, the Senate will reaffirm 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 encourage all
of my Senate colleagues, on
[[Page S14854]]
both sides of the aisle, to unanimously pass this historic bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2427
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 ``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:
``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. 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 section, 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, provided that 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 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)(i) of title 5, United
States Code, is amended by striking ``determination;'' and
inserting ``determination. The 20-day period shall commence
on the date on which the request is first received by the
appropriate component of the agency, but in any event no
later than ten days after the request is first received by
any component of the agency that is designated in the
agency's FOIA regulations to receive FOIA requests. 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 FOIA requester; 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 refund search fees under this
subparagraph if the agency fails to comply with any time
limit under paragraph (6), provided that--
``(I) 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; and
``(II) such refunds shall be paid from annual
appropriations provided to that agency.''.
(B) Public liaison.--Section 552(a)(6)(B)(ii) of title 5,
United States Code, is amended by inserting between the first
and second sentences 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--
[[Page S14855]]
``(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
(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 after the period
``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) There is established the Office of Government
lnformation Services within the National Archives and Records
Administration. The Office of Government Information Services
shall review policies and procedures of administrative
agencies under section 552, shall review compliance with
section 552 by administrative agencies, and shall recommend
policy changes to Congress and the President to improve the
administration of section 552. The Office of Government
Information Services shall offer mediation services to
resolve disputes between persons making requests under
section 552 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
section 552 and issue reports detailing the results of such
audits.
``(j) Each agency shall--
``(1) Designate a Chief FOIA Officer who shall be a senior
official of such agency (at the Assistant Secretary or
equivalent level).
``(a) General Duties.--The Chief FOIA Officer of each
agency shall, subject to the authority of the head of the
agency--
``(A) have agency-wide responsibility for efficient and
appropriate compliance with the FOIA;
``(B) monitor FOIA implementation 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 the FOIA;
``(C) recommend to the head of the agency such adjustments
to agency practices, policies, personnel, and funding as may
be necessary to improve its implementation of the FOIA;
``(D) review and report to the Attorney General, through
the head of the agency, at such times and in such formats as
the Attorney General may direct, on the agency's performance
in implementing the FOIA; and
``(E) facilitate public understanding of the purposes of
the FOIA's statutory exemptions by including concise
descriptions of the exemptions in both the agency's FOIA
handbook issued under section 552(g) of title 5, United
States Code, and the agency's annual FOIA report, and by
providing an overview, where appropriate, of certain general
categories of agency records to which those exemptions apply.
``(2) Designate one or more FOIA Public Liaisons who shall
be appointed by the Chief FOIA Officer.
``(b) General Duties.--FOIA Public Liaisons shall report to
the agency Chief FOIA Officer and shall serve as supervisory
officials to whom a FOIA requester can raise concerns about
the service the FOIA 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.
``(c) 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.
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