Congressional Record: March 13, 2007 (Senate)
Page S3066-S3075
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
BY Mr. LEAHY (for himself and Mr. Cornyn):
S. 849. 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, I am pleased to join Senator Cornyn in
reintroducing the Openness Promotes Effectiveness in our National
Government Act'', the ``OPEN Government Act''. This bill contains
commonsense reforms to update and strengthen the Freedom of Information
Act (FOIA) for all Americans.
Last year, the Senate Judiciary Committee favorably reported an
essentially identical bill. Sadly, the full Senate did not consider
this legislation before it adjourned last year. But, I hope that the
Senate will do its part to reinvigorate FOIA this year, by promptly
passing this bill.
During my three decades in the Senate, I have devoted a considerable
portion of my work to improving government openness, to make our
government work better for the American people. At times, this has been
a lonely effort. But, for the past 4 years, I have been delighted to
have Senator Cornyn as a partner on this important issue. I thank him
for his leadership on preserving and strengthening FOIA.
Now in its fourth decade, the Freedom of Information Act remains an
indispensable tool in shedding light on bad policies and government
abuses. But, today, FOIA also faces challenges like never before.
During the past 6 years, the Bush administration has allowed lax FOIA
enforcement and a near obsession with secrecy to undercut the public's
right to know. As we celebrate Sunshine Week this week, there is urgent
need to update and strengthen our FOIA law.
Chief among the problems with FOIA is the major delays encountered by
FOIA requestors. According to a report by the National Security
Archive, an independent nongovernmental research institute, the oldest
outstanding FOIA requests date back to 1989--before the collapse of the
Soviet Union. And, while the number of FOIA requests submitted each
year continues to rise, our Federal agencies remain unable--or
unwilling--to keep up with the demand. Just recently, the Government
Accountability Office found that Federal agencies had 43 percent more
FOIA requests pending and outstanding in 2006, than they had in 2002.
Although the Bush administration has taken modest steps to address
the growing problem with FOIA delays, that effort has not done nearly
enough to correct lax FOIA enforcement by Federal agencies. More than a
year after the President's directive to Government agencies to improve
their FOIA services, Americans who seek information under FOIA remain
less likely to obtain it. For example, a recent study by the Coalition
of Journalists for Open Government found that the percentage of FOIA
requestors who obtained at least some of the information that they
requested from the Government fell by 31 percent last year. These and
other shortcomings with the President's FOIA policy demonstrate that
the Congress must play an important role in preserving and
strengthening FOIA.
The legislation that Senator Cornyn and I introduce today takes
several important steps to help Americans obtain timely responses to
their FOIA requests and to provide government officials with the tools
that they need to ensure that our government remains open and
accessible. First, our bill restores meaningful deadlines for agency
action by ensuring that the 20-day statutory clock runs immediately
upon the receipt of the request and the bill impose real consequences
on Federal agencies for missing statutory deadlines. Our bill also
clarifies that FOIA applies to agency records that are held by outside
private contractors, no matter where these records are located.
In addition, our bill 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. Finally, our
bill enhances the agency reporting requirements under FOIA and improves
personnel policies for FOIA officials to enhance agency FOIA
performance.
This legislation was drafted after a long and thoughtful process of
consultation with individuals and organizations that rely on FOIA to
obtain information and share it with the public, including the news
media, librarians, and public interest organizations representing all
facets of the political spectrum.
This legislation also reaffirms the fundamental premise of FOIA--that
government information belongs to all Americans. Again, I thank Senator
Cornyn for the time and effort that he has devoted to reinvigorating
FOIA, and I urge all Senators to join us in supporting this important
open government legislation.
______
S 849 IS
110th CONGRESS
1st Session
S. 849
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.
IN THE SENATE OF THE UNITED STATES
March 13, 2007
Mr. LEAHY (for himself and Mr. CORNYN) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
A BILL
To 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.
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.
(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:
`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.'.
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.
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, an administrative action, or an enforceable written agreement or consent decree; or
`(II) a voluntary or unilateral change in
position by the opposing party, where the complaintant's claim or
defense was not frivolous.'.
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.
(1) IN GENERAL- Section 552(a)(6)(A)(i) of title 5,
United States Code, is amended by inserting `, and the 20-day period
shall commence on the date on which the request is first received by
the agency, and shall not be tolled without the consent of the party
filing the request' after `adverse determination'.
(2) EFFECTIVE DATE- The amendment made by this subsection shall take effect 1 year after the date of enactment of this Act.
(b) Availability of Agency Exemptions-
(1) IN GENERAL- Section 552(a)(6) of title 5, United States Code, is amended by adding at the end the following:
`(G)(i) If an agency fails to comply with the applicable
time limit provisions of this paragraph with respect to a request, the
agency may not assert any exemption under subsection (b) to that
request, unless disclosure--
`(I) would endanger the national security of the United States;
`(II) would disclose personal private information protected by section 552a or proprietary information; or
`(III) is otherwise prohibited by law.
`(ii) A court may waive the application of clause (i) if
the agency demonstrates by clear and convincing evidence that there was
good cause for the failure to comply with the applicable time limit
provisions.'.
(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:
`(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) 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. SPECIFIC CITATIONS IN EXEMPTIONS.
Section 552(b) of title 5, United States Code, is amended by striking paragraph (3) and inserting the following:
`(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
Openness Promotes Effectiveness in our National Government Act of 2005,
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;'.
SEC. 9. 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
(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. 10. 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 a contract
between the agency and the entity.'.
SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.
(a) In General- Chapter 5 of title 5, United States Code, is amended--
(1) by redesignating section 596 as section 597; and
(2) by inserting after section 595 the following:
`Sec. 596. Office of Government Information Services
`(a) There is established the Office of Government
Information Services within the Administrative Conference of the United
States.
`(b) The Office of Government Information Services shall--
`(1) review policies and procedures of administrative
agencies under section 552 and compliance with that section by
administrative agencies;
`(2) conduct audits of administrative agencies on such
policies and compliance and issue reports detailing the results of such
audits;
`(3) recommend policy changes to Congress and the
President to improve the administration of section 552, including
whether agencies are receiving and expending adequate funds to ensure
compliance with that section; and
`(4) offer mediation services between persons making
requests under section 552 and administrative agencies as a
non-exclusive alternative to litigation and, at the discretion of the
Office, issue advisory opinions if mediation has not resolved the
dispute.'.
(b) Technical and Conforming Amendment- The table of
sections for chapter 5 of title 5, United States Code, is amended by
striking the item relating to section 596 and inserting the following:
`596. Office of Government Information Services.
`597. Authorization of appropriations.'.
(c) Effective Date- The amendments made by this section shall take effect 1 year after the date of enactment of this Act.
SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE INFORMATION.
(a) In General- Not later than January 1 of each of the 3
years following the date of the enactment of this Act, the Comptroller
General of the United States shall submit to Congress a report on the
implementation and use of section 214 of the Homeland Security Act of
2002 (6 U.S.C. 133), including--
(1) the number of persons in the private sector, and
the number of State and local agencies, that voluntarily furnished
records to the Department under this section;
(2) the number of requests for access to records granted or denied under this section;
(3) such recommendations as the Comptroller General
considers appropriate regarding improvements in the collection and
analysis of sensitive information held by persons in the private
sector, or by State and local agencies, relating to vulnerabilities of
and threats to critical infrastructure, including the response to such
vulnerabilities and threats; and
(4) an examination of whether the nondisclosure of such
information has led to the increased protection of critical
infrastructure.
(b) Form- The report shall be submitted in unclassified form, but may include a classified annex.
SEC. 13. 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.
END
