[Congressional Record Volume 160, Number 99 (Tuesday, June 24, 2014)]
[Senate]
[Pages S3940-S3944]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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By Mr. LEAHY (for himself and Mr. Cornyn):
S. 2520. A bill to improve the Freedom of Information Act; to the
Committee on the Judiciary.
Mr. LEAHY. Mr. President, the Freedom of Information Act, FOIA, is
one of our Nation's most important laws, established to give Americans
greater access to their government and protect their ability to hold
government accountable. In keeping with my commitment to support this
law and expand its mission, today I join with Senator John Cornyn to
introduce bipartisan legislation that will improve the implementation
of FOIA.
I have sought for decades to make our government more open and
transparent. Senator Cornyn has been an important partner in these
efforts, and our collaboration has resulted in the enactment of several
improvements to FOIA: the OPEN Government Act, the first major reform
to FOIA in more than a decade; the OPEN FOIA Act, which increased the
transparency of legislative exemptions to FOIA; and the Faster FOIA
Act, which responded to the concerns of FOIA requestors and addressed
agency delays in processing requests.
The FOIA Improvement Act we are introducing today will make
additional improvements to the law. It will enshrine into law the
presumption of openness that the President laid out on his first day in
office. He said, ``The Freedom of Information Act should be
administered with a clear presumption: In the face of doubt, openness
prevails.'' Our bipartisan legislation will require that Federal
agencies consider the public interest in the disclosure of government
information before invoking a FOIA exemption. It will provide
additional independence for the Office of Government Information
Services, OGIS, created by the OPEN Government Act in 2007, and reduce
the overuse of Exemption 5 to withhold information by adding a public
interest balancing test.
There has been significant progress in improving the FOIA process
over the years, but I am concerned that the growing trend towards
relying upon FOIA exemptions to withhold large swaths of government
information is hindering the public's right to know. According to the
OpenTheGovernment.org 2013 Secrecy Report, Federal agencies used
Exemption 5 more than 79,000 times in 2012--an incredible 41 percent
increase from the previous year. This does not exemplify the
presumption of openness that we expect from our Government, and that is
why Senator Cornyn and I are introducing the FOIA Improvement Act
today.
Both Democrats and Republicans understand that a commitment to
transparency is a commitment to the American values of openness and
accountability, and to the public's right to know what their government
is doing. I value the strong partnership that I have formed with
Senator Cornyn on open government matters. Ensuring an open government
should be a nonpartisan issue, and I invite all Members to support the
FOIA Improvement Act of 2014.
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. 2520
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 ``FOIA Improvement Act of
2014''.
SEC. 2. AMENDMENTS TO FOIA.
Section 552 of title 5, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) in the matter preceding subparagraph (A), by striking
``for public inspection and copying'' and inserting ``for
public inspection in an electronic format'';
(ii) by striking subparagraph (D) and inserting the
following:
``(D) copies of all records, regardless of form or format--
``(i) that have been released to any person under paragraph
(3); and
``(ii)(I) that because of the nature of their subject
matter, the agency determines have become or are likely to
become the subject of subsequent requests for substantially
the same records; or
``(II) that have been requested not less than 3 times;
and''; and
(iii) in the undesignated matter following subparagraph
(E), by striking ``public inspection and copying current''
and inserting ``public inspection in an electronic format,
and current'';
(B) in paragraph (4)(A), by striking clause (viii) and
inserting the following:
``(viii)(I) Except as provided in subclause (II), an agency
shall not assess any search fees (or in the case of a
requester described under clause (ii)(II) of this
subparagraph, duplication fees) under this subparagraph if
the agency has failed to comply with any time limit under
paragraph (6).
``(II)(aa) If an agency determines that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provides a timely written notice to
the requester in accordance with paragraph (6)(B), a failure
described in subclause (I) is excused for an additional 10
days. If the agency fails to comply with the extended time
limit, the agency may not assess any search fees (or in the
case of a requester described under clause (ii)(II) of this
subparagraph, duplication fees).
``(bb) If a court determines that exceptional circumstances
exist (as that term is defined in paragraph (6)(C)), a
failure described in subclause (I) shall be excused for the
length of time provided by the court order.'';
(C) in paragraph (6)--
(i) in subparagraph (A)(i), by striking ``making such
request'' and all that follows through ``determination; and''
and inserting the following: ``making such request of--''
``(I) such determination and the reasons therefore;
``(II) the right of such person to seek assistance from the
FOIA Public Liaison of the agency; and
``(III) in the case of an adverse determination--
``(aa) the right of such person to appeal to the head of
the agency, within a period determined by the head of the
agency that is not less than 90 days after the receipt of
such adverse determination; and
``(bb) the right of such person to seek dispute resolution
services from the FOIA Public Liaison of the agency or the
Office of Government Information Services; and''; and
(ii) in subparagraph (B)(ii), by striking ``the agency.''
and inserting ``the agency, and notify the requester of the
right of the requester to seek dispute resolution services
from the Office of Government Information Services.''; and
(D) by adding at the end the following:
``(8) An agency--
``(A) shall--
``(i) withhold information under this section only if--
``(I) the agency reasonably foresees that disclosure would
harm an interest protected by an exemption described in
subsection (b) or other provision of law; or
``(II) disclosure is prohibited by law; and
``(ii)(I) consider whether partial disclosure of
information is possible whenever the agency determines that a
full disclosure of a requested record is not possible; and
``(II) take reasonable steps necessary to segregate and
release nonexempt information; and
``(B) may not--
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``(i) withhold information requested under this section
merely because the agency can demonstrate, as a technical
matter, that the records fall within the scope of an
exemption described in subsection (b); or
``(ii) withhold information requested under this section
because the information may be embarrassing to the agency or
because of speculative or abstract concerns.'';
(2) in subsection (b), by amending paragraph (5) to read as
follows:
``(5) inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an
agency in litigation with the agency, if--
``(A) in the case of deliberative process privilege or
attorney work-product privilege, the agency interest in
protecting the records or information is not outweighed by a
public interest in disclosure;
``(B) in the case of attorney-client privilege, the agency
interest in protecting the records or information is not
outweighed by a compelling public interest in disclosure; and
``(C) the requested record or information was created less
than 25 years before the date on which the request was
made;'';
(3) in subsection (e)
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A), by inserting
``and to the Director of the Office of Government Information
Services'' after ``United States'';
(ii) in subparagraph (N), by striking ``and'' at the end;
(iii) in subparagraph (O), by striking the period at the
end and inserting a semicolon; and
(iv) by adding at the end the following:
``(P) the number of times the agency denied a request for
records under subsection (c); and
``(Q) the number of records that were made available for
public inspection in an electronic format under subsection
(a)(2).'';
(B) by striking paragraph (3) and inserting the following:
``(3) Each agency shall make each such report available for
public inspection in an electronic format. In addition, each
agency shall make the raw statistical data used in each
report available in a timely manner for public inspection in
an electronic format, which shall be made available--
``(A) without charge, license, or registration requirement;
``(B) in an aggregated, searchable format; and
``(C) in a format that may be downloaded in bulk.'';
(C) in paragraph (4)--
(i) by striking ``Government Reform and Oversight'' and
inserting ``Oversight and Government Reform'';
(ii) by inserting ``Homeland Security and'' before
``Governmental Affairs''; and
(iii) by striking ``April'' and inserting ``March''; and
(D) by striking paragraph (6) and inserting the following:
``(6)(A) The Attorney General of the United States shall
submit to the Committee on Oversight and Government Reform of
the House of Representatives, the Committee on Judiciary of
the Senate, and the President a report on or before March 1
of each calendar year, which shall include for the prior
calendar year--
``(i) a listing of the number of cases arising under this
section;
``(ii) a listing of--
``(I) each subsection, and any exemption, if applicable,
involved in each case arising under this section;
``(II) the disposition of each case arising under this
section; and
``(III) the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4); and
``(iii) a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with
this section.
``(B) The Attorney General of the United States shall
make--
``(i) each report submitted under subparagraph (A)
available for public inspection in an electronic format; and
``(ii) the raw statistical data used in each report
submitted under subparagraph (A) available for public
inspection in an electronic format, which shall be made
available--
``(I) without charge, license, or registration requirement;
``(II) in an aggregated, searchable format; and
``(III) in a format that may be downloaded in bulk.'';
(4) in subsection (g), in the matter preceding paragraph
(1), by striking ``publicly available upon request'' and
inserting ``available for public inspection in an electronic
format'';
(5) in subsection (h)--
(A) in paragraph (1), by adding at the end the following:
``The head of the Office shall be the Director of the Office
of Government Information Services.'';
(B) in paragraph (2), by striking subparagraph (C) and
inserting the following:
``(C) identify procedures and methods for improving
compliance under this section.'';
(C) by striking paragraph (3) and inserting the following:
``(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 may
issue advisory opinions at the discretion of the Office or
upon request of any party to a dispute.''; and
(D) by adding at the end the following:
``(4)(A) Not less frequently than annually, the Director of
the Office of Government Information Services shall submit to
the Committee on Oversight and Government Reform of the House
of Representatives, the Committee on the Judiciary of the
Senate, and the President--
``(i) a report on the findings of the information reviewed
and identified under paragraph (2);
``(ii) a summary of the activities of the Office of
Government Information Services under paragraph (3),
including--
``(I) any advisory opinions issued; and
``(II) the number of times each agency engaged in dispute
resolution with the assistance of the Office of Government
Information Services or the FOIA Public Liaison; and
``(iii) legislative and regulatory recommendations, if any,
to improve the administration of this section.
``(B) The Director of the Office of Government Information
Services shall make each report submitted under subparagraph
(A) available for public inspection in an electronic format.
``(C) The Director of the Office of Government Information
Services shall not be required to obtain the prior approval,
comment, or review of any officer or agency of the United
States, including the Department of Justice, the Archivist of
the United States, or the Office of Management and Budget
before submitting to the Congress, or any committee or
subcommittee thereof, any reports, recommendations,
testimony, or comments, if such submissions include a
statement indicating that the views expressed therein are
those of the Director and do not necessarily represent the
views of the President.
``(5) The Director of the Office of Government Information
Services may submit additional information to Congress and
the President as the Director determines to be appropriate.
``(6) Not less frequently than annually, the Office of
Government Information Services shall conduct a meeting that
is open to the public on the review and reports by the Office
and shall allow interested persons to appear and present oral
or written statements at the meeting.''; and
(6) by striking subsections (i), (j), and (k), and
inserting the following:
``(i) The Government Accountability Office shall--
``(1) conduct audits of administrative agencies on
compliance with and implementation of the requirements of
this section and issue reports detailing the results of such
audits; and
``(2) catalog the number of exemptions described in
subsection (b)(3) and the use of such exemptions by each
agency.
``(j)(1) Each agency shall designate a Chief FOIA Officer
who shall be a senior official of such agency (at the
Assistant Secretary or equivalent level).
``(2) 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 this section;
``(B) 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;
``(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 this section;
``(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 this section;
``(E) 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;
``(F) offer training to agency staff regarding their
responsibilities under this section;
``(G) serve as the primary agency liaison with the Office
of Government Information Services and the Office of
Information Policy; and
``(H) designate 1 or more FOIA Public Liaisons.
``(3) The Chief FOIA Officer of each agency shall review,
not less frequently than annually, all aspects of the
administration of this section by the agency to ensure
compliance with the requirements of this section, including--
``(A) agency regulations;
``(B) disclosure of records required under paragraphs (2)
and (8) of subsection (a);
``(C) assessment of fees and determination of eligibility
for fee waivers;
``(D) the timely processing of requests for information
under this section;
``(E) the use of exemptions under subsection (b); and
``(F) dispute resolution services with the assistance of
the Office of Government Information Services or the FOIA
Public Liaison.
``(k)(1) There is established in the executive branch the
Chief FOIA Officers Council
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(referred to in this subsection as the `Council').
``(2) The Council shall be comprised of the following
members:
``(A) The Deputy Director for Management of the Office of
Management and Budget.
``(B) The Director of the Office of Information Policy at
the Department of Justice.
``(C) The Director of the Office of Government Information
Services.
``(D) The Chief FOIA Officer of each agency.
``(E) Any other officer or employee of the United States as
designated by the Co-Chairs.
``(3) The Director of the Office of Information Policy at
the Department of Justice and the Director of the Office of
Government Information Services shall be the Co-Chairs of the
Council.
``(4) The Administrator of General Services shall provide
administrative and other support for the Council.
``(5)(A) The duties of the Council shall include the
following:
``(i) Develop recommendations for increasing compliance and
efficiency under this section.
``(ii) Disseminate information about agency experiences,
ideas, best practices, and innovative approaches related to
this section.
``(iii) Identify, develop, and coordinate initiatives to
increase transparency and compliance with this section.
``(iv) Promote the development and use of common
performance measures for agency compliance with this section.
``(B) In performing the duties described in subparagraph
(A), the Council shall consult on a regular basis with
members of the public who make requests under this section.
``(6)(A) The Council shall meet regularly and such meetings
shall be open to the public unless the Council determines to
close the meeting for reasons of national security or to
discuss information exempt under subsection (b).
``(B) Not less frequently than annually, the Council shall
hold a meeting that shall be open to the public and permit
interested persons to appear and present oral and written
statements to the Council.
``(C) Not later than 10 business days before a meeting of
the Council, notice of such meeting shall be published in the
Federal Register.
``(D) Except as provided in subsection (b), the records,
reports, transcripts, minutes, appendixes, working papers,
drafts, studies, agenda, or other documents that were made
available to or prepared for or by the Council shall be made
publicly available.
``(E) Detailed minutes of each meeting of the Council shall
be kept and shall contain a record of the persons present, a
complete and accurate description of matters discussed and
conclusions reached, and copies of all reports received,
issued, or approved by the Council. The minutes shall be
redacted as necessary and made publicly available.''.
SEC. 3. REVIEW AND ISSUANCE OF REGULATIONS.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the head of each agency (as defined in
section 551 of title 5, United States Code) shall review the
regulations of such agency and shall issue regulations on
procedures for the disclosure of records under section 552 of
title 5, United States Code, in accordance with the
amendments made by section 2.
(b) Requirements.--The regulations of each agency shall
include procedures for engaging in dispute resolution through
the FOIA Public Liaison and the Office of Government
Information Services.
SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.
Section 3102 of title 44, United States Code, is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4); and
(2) by inserting after paragraph (1) the following:
``(2) procedures for identifying records of general
interest or use to the public that are appropriate for public
disclosure, and for posting such records in a publicly
accessible electronic format;''.
SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the
requirements of this Act or the amendments made by this Act.
The requirements of this Act and the amendments made by this
Act shall be carried out using amounts otherwise authorized
or appropriated.
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