[Congressional Record Volume 162, Number 6 (Monday, January 11, 2016)]
[House]
[Pages H249-H255]
FOIA OVERSIGHT AND IMPLEMENTATION ACT OF 2015
Mr. CHAFFETZ. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 653) to amend section 552 of title 5, United States Code
(commonly known as the Freedom of Information Act), to provide for
greater public access to information, and for other purposes, as
amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 653
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 Oversight and
Implementation Act of 2015'' or the ``FOIA Act''.
SEC. 2. FREEDOM OF INFORMATION ACT AMENDMENTS.
(a) Electronic Accessibility.--Section 552 of title 5,
United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) by striking ``for public inspection and copying'' each
place it appears and inserting ``in an electronic, publicly
accessible format'';
(ii) by striking ``; and'' and inserting a semicolon;
(iii) by striking subparagraph (E) and inserting the
following new subparagraphs:
``(E) copies of all releasable records, regardless of form
or format, that have been requested three or more times under
paragraph (3); and
``(F) a general index of the records referred to under
subparagraphs (D) and (E);''; and
(iv) in the matter following subparagraph (F) (as added by
clause (iii) of this subparagraph)--
(I) by striking ``subparagraph (D)'' and inserting
``subparagraphs (D) and (E)'';
(II) by striking ``subparagraph (E)'' and inserting
``subparagraph (F)''; and
(B) in paragraph (7)--
(i) in subparagraph (A)--
(I) by striking ``that will take longer than ten days to
process''; and
(II) by striking ``; and'' and inserting a semicolon;
(ii) in subparagraph (B)--
(I) by inserting ``automated'' after ``provides''; and
(II) by striking the period at the end of clause (ii) and
inserting ``; and''; and
(iii) by adding at the end the following new subparagraph:
``(C) provide a name, phone number, and email address for
an agency employee who can provide current information about
the status of each request received.'';
(2) in subsection (g), by striking ``make publicly
available upon request'' and inserting ``make available in an
electronic, publicly accessible format''; and
(3) by adding at the end the following new subsection:
``(m) Electronic Submission of Requests.--
``(1) Consolidated online request portal.--The Director of
the Office of Management and Budget, in consultation with the
Attorney General, shall ensure the operation of a
consolidated online request portal that allows a member of
the public to submit a request for records under subsection
(a) to any agency from a single website. The portal may
include any additional tools the Director of the Office of
Management and Budget finds will improve the implementation
of this section.
``(2) Rule of construction.--This subsection shall not be
construed to alter the power of any other agency to create or
maintain an independent online portal for the submission of a
request for records under this section. The Director of the
Office of Management and Budget shall establish standards for
interoperability between the portal required under paragraph
(1) and other request processing software used by agencies
subject to this section.
``(3) Email request required.--At a minimum, each agency
shall accept requests for records under subsection (a)
through an email address and shall publish such email address
on the website of the agency.''.
(b) Presumption of Openness.--
(1) Amendments.--Section 552(b) of title 5, United States
Code, is amended--
(A) in paragraph (5), by inserting after ``with the
agency'' the following: ``, excluding--
``(A) opinions that are controlling interpretations of law;
``(B) final reports or memoranda created by an entity other
than the agency, including other Governmental entities, at
the request of the agency and used to make a final policy
decision;
``(C) guidance documents used by the agency to respond to
the public; and
``(D) records or information created 25 years or more
before the date on which a request is made under subsection
(a)(3);'';
(B) in paragraph (6), by striking ``similar files'' and
inserting ``personal information such as contact information
or financial information''; and
(C) in the matter following paragraph (9)--
(i) by inserting before ``Any reasonably segregable
portion'' the following: ``An agency may not withhold
information under this subsection unless such agency
reasonably foresees that disclosure would cause specific
identifiable harm to an interest protected by an exemption,
or if disclosure is prohibited by law.''; and
(ii) by inserting before ``If technically feasible,'' the
following: ``For each record withheld in whole or in part
under paragraph (3), the agency shall identify the statute
that exempts the record from disclosure.''
(2) Rules of construction.--
(A) Intelligence sources and methods.--Nothing in the
amendments made by this Act to section 552(b) of title 5,
United States Code, shall be construed to require the
disclosure of information that--
(i) is exempt under paragraph (1) of such section; or
(ii) would adversely affect intelligence sources and
methods that are protected by an exemption under such
section.
(B) Personal privacy.--For purposes of section 552(b)(6) of
title 5, United States Code, as amended by this Act, the term
``personal privacy'' may not be construed to include the name
of a Federal employee engaged in an official duty of such
employee.
(3) Exemption decision transparency.--Section
552(a)(6)(C)(i) of title 5, United States Code, is amended by
striking the
[[Page H250]]
fourth sentence and inserting at the end the following: ``Any
notification of denial or partial denial of any request for
records under this subsection shall set forth each name and
title or position of each person responsible for the denial
or partial denial or any decision to withhold a responsive
record under subsection (b).''.
(c) Requests From Congress.--Section 552(d) of title 5,
United States Code, is amended by adding at the end the
following: ``In responding to requests from Congress for
information, an agency may not assert that information may be
withheld from Congress under this section.''.
(d) Assessment of Attorney Fees and Other Litigation
Costs.--Section 552(a)(4)(E)(i) of title 5, United States
Code, is amended by striking ``The court may'' and inserting
``The court shall''.
(e) Office of Government Information Services.--Section 552
of title 5, United States Code, is amended--
(1) in subsection (a)(4)(A)(i), by striking ``the Director
of the Office of Management and Budget'' and inserting ``the
Director of the Office of Management and Budget, in
consultation with the Director of the Office of Government
Information Services,''; and
(2) by amending subsection (h) to read as follows:
``(h) Office of Government Information Services.--
``(1) Establishment.--There is established the Office of
Government Information Services within the National Archives
and Records Administration. The head of the Office is the
Director of the Office of Government Information Services.
``(2) Review of foia policy, procedure, and compliance.--
The Office of Government Information Services shall--
``(A) review policies and procedures of agencies under this
section;
``(B) review compliance with this section by agencies;
``(C) identify methods that improve compliance under this
section that may include--
``(i) the timely processing of requests submitted to
agencies under this section;
``(ii) the system for assessing fees and fee waivers under
this section; and
``(iii) the use of any exemption under subsection (b); and
``(D) review and provide guidance to agencies on the use of
fees and fee waivers.
``(3) Mediation services.--The Office of Government
Information Services shall offer mediation services to
resolve disputes between persons making requests under this
section and 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 such mediation
services.
``(4) Submission of report.--
``(A) In general.--The Office of Government Information
Services shall not less than annually submit to the
committees described in subparagraph (C) and the President a
report on the findings from the information reviewed and
identified under paragraph (2), a summary of the Office's
activities under paragraph (3) (including any advisory
opinions issued), and legislative and regulatory
recommendations to improve the administration of this
section.
``(B) Electronic availability of reports.--The Office shall
make available any report submitted under subparagraph (A) in
an electronic, publicly accessible format.
``(C) Congressional submission of report.--The committees
described in this subparagraph are the following:
``(i) The Committee on Oversight and Government Reform of
the House of Representatives.
``(ii) The Committees on Homeland Security and Governmental
Affairs and the Judiciary of the Senate.
``(D) Direct submission of reports and testimony.--Any
report submitted under subparagraph (A), any testimony, or
any other communication to Congress shall be submitted
directly to the committees and the President, without any
requirement that any officer or employee outside of the
Office of Government Information Services, including the
Archivist of the United States and the Director of the Office
of Management and Budget, review such report, testimony, or
other communication.
``(5) Submission of additional information.--The Director
of the Office of Government Information Services may submit
additional information to Congress and the President that the
Director determines to be appropriate.
``(6) Annual meeting required.--Not less than once a year,
the Office of Government Information Services shall hold a
meeting that is open to the public on the review and reports
by the Office and permit interested persons to appear and
present oral or written statements at such meeting.''.
(f) Public Resources.--Section 552(a)(6) of title 5, United
States Code, is amended--
(1) in subparagraph (A)--
(A) in clause (i), by striking ``of such determination and
the reasons therefor, and of the right of such person to
appeal to the head of the agency any adverse determination;
and'' and inserting the following: ``of--
``(I) such determination and the reasons therefor;
``(II) the right of such person to seek assistance from the
agency FOIA Public Liaison; and
``(III) the right of such person to appeal to the head of
the agency any adverse determination, within a period
determined by the agency that is not less than 90 days after
the receipt of such adverse determination; and''; and
(B) in clause (ii), by striking the period at the end and
inserting the following: ``and the right of such person to
seek dispute resolution services from the agency FOIA Public
Liaison or the Office of Government Information Services.'';
(2) in subparagraph (B)--
(A) by redesignating clause (iv) as clause (v); and
(B) by inserting after clause (iii) the following new
clause (iv):
``(iv) When an agency consults with an entity with
substantial interests in the determination of a request (in
this clause referred to as the `consulted entity'):
``(I) The agency shall notify the requestor of the
consultation in writing, including each of the following:
``(aa) A brief description of the consultation process.
``(bb) The name of each consulted entity, unless otherwise
prohibited by law.
``(cc) An approximate number of pages, or other description
of the volume of records, that each consulted entity is
reviewing.
``(II) The agency shall notify the consulted entity of the
need to consult in writing, including each of the following:
``(aa) An approximate number of pages, or other description
of the volume of records, that the entity is requested to
review.
``(bb) A request to provide a complete response within 15
days after the date on which the notification is sent and a
notice that after the expiration of that time period the
agency will proceed with the compliance of the request if a
completed response is not received.
``(cc) If the number of records in the consultation under
this clause exceeds 3,000 pages, a notification that the
consulted entity shall have 15 days after the date on which
the notice is sent to submit a substantial response and that
a response on at least 3,000 pages not less than every five
days thereafter is required to continue the consultation
period.
``(dd) If the consulted entity is unable or anticipates
that the entity will be unable to complete the consultation
within the time period described, a notification that the
consulted entity may request mediation services at the Office
of Government Information Services to set an alternative
consultation schedule.
``(III) If the requesting agency has not received a
completed request within the time period described in the
consultation notice, the agency shall request that the
consulted entity engage in mediation services with the Office
of Government Information Services. If the consulted entity
is an agency, the consulted agency shall agree to participate
in mediation services.
``(IV) If the consulted entity requests or agrees to engage
in mediation services, the requesting agency shall notify the
requester of the mediation and the opportunity to participate
in the mediation, if participation is not otherwise
prohibited by law. The parties in the mediation shall
determine a reasonable schedule of completion and a date by
which the requesting agency shall complete the response to
the request.
``(V) If the consulted entity does not respond or rejects
the offer to mediate an alternative schedule, the requesting
agency shall complete the response to the requester.
``(VI) The previous provisions of this clause shall not
apply when the consulted entity is an element of the
intelligence community (as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 3003(4))).''; and
(3) in subparagraph (F), by striking ``any such estimate to
the person making the request, unless providing such estimate
would harm an interest protected by the exemption in
subsection (b) pursuant to which the denial is made.'' and
inserting the following: ``to the person making the request
the following:
``(i) Any such estimate, unless providing such estimate
would harm an interest protected by the exemption in
subsection (b) pursuant to which the denial is made.
``(ii) A list of all records requested the provision of
which was denied, unless the disclosure of such record is
prohibited by law.''.
(g) Additional Disclosure of Information Requirements.--
Section 552(a) of title 5, United States Code, is amended by
adding at the end the following new paragraphs:
``(8) Disclosure of Information for Increased Public
Understanding of the Government.--Each agency shall--
``(A) review the records of such agency to determine
whether the release of the records would be in the public
interest because it is likely to contribute significantly to
public understanding of the operations or activities of the
Government;
``(B) for records determined to be in the public interest
under subparagraph (A), reasonably segregate and redact any
information exempted from disclosure under subsection (b);
and
``(C) make available in an electronic, publicly accessible
format, any records identified in subparagraph (A), as
modified pursuant to subparagraph (B).
``(9) Increased Disclosure of Information.--Each agency
shall--
``(A) make information public to the greatest extent
possible through modern technology to--
``(i) inform the public of the operations and activities of
the Government; and
``(ii) ensure timely disclosure of information; and
[[Page H251]]
``(B) establish procedures for identifying categories of
records that may be disclosed regularly and additional
records of interest to the public that are appropriate for
public disclosure, and for posting such records in an
electronic, publicly accessible format.''.
(h) Report on Categories of Information for Disclosure.--
Not later than one year after the date of the enactment of
this Act, and every two years thereafter, the Director of the
Office of Information Policy of the Department of Justice,
after consultation with agencies selected by the Director,
shall submit to the Committee on Oversight and Government
Reform of the House of Representatives and the Committees on
Homeland Security and Governmental Affairs and the Judiciary
of the Senate a report that identifies categories of records
that would be appropriate for proactive disclosure, and shall
make such report available in an electronic, publicly
accessible format.
(i) Agency FOIA Report.--Section 552(e) of title 5, United
States Code, is amended--
(1) in paragraph (1)--
(A) by inserting ``and to the Director of the Office of
Government Information Services'' after ``the Attorney
General of the United States'';
(B) in subparagraph (N), by striking ``; and'' and
inserting a semicolon;
(C) in subparagraph (O), by striking the period and
inserting a semicolon; and
(D) by adding at the end the following new subparagraphs:
``(P) the number of times the agency invoked a law
enforcement exclusion under subsection (c);
``(Q) the number of times the agency engaged in dispute
resolution with the assistance of the Office of Government
Information Services or the FOIA Public Liaison;
``(R) the number of records that were made available in an
electronic, publicly accessible format under subsection
(a)(2); and
``(S) the number of times the agency assessed a search or
duplication fee under subsection (a)(4)(A) and did not comply
with a time limit under subsection (a)(6).'';
(2) by amending paragraph (3) to read as follows:
``(3) Electronic Accessibility of Reports.--Each agency
shall make each such report available in an electronic,
publicly accessible format. In addition, each agency shall
make the raw statistical data used in its reports available
in a timely manner in an electronic, publicly accessible
format. Such data shall be--
``(A) made available without charge, license, or
registration requirement;
``(B) capable of being searched and aggregated; and
``(C) permitted to be downloaded and downloaded in bulk.'';
(3) in paragraph (4)--
(A) by striking ``Committee on Government Reform and
Oversight'' and inserting ``Committee on Oversight and
Government Reform'';
(B) by striking ``Governmental Affairs'' and inserting
``Homeland Security and Governmental Affairs''; and
(C) by striking ``April 1'' and inserting ``March 1'';
(4) in paragraph (5)--
(A) by inserting ``and the Director of the Office of
Government Information Services'' after ``the Director of the
Office of Management and Budget''; and
(B) by striking ``by October 1, 1997''; and
(5) by amending paragraph (6) to read as follows:
``(6) Attorney General FOIA Report.--
``(A) In general.--The Attorney General of the United
States shall submit to Congress and the President an annual
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, including for each case, as applicable--
``(I) each subsection under this section;
``(II) each paragraph of each such subsection;
``(III) any exemption;
``(IV) the disposition of such case; and
``(V) the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4); and
``(ii) a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with
this section.
``(B) Electronic availability.--The Attorney General of the
United States--
``(i) shall make each report described under subparagraph
(A) available in an electronic, publicly accessible format;
and
``(ii) shall make the raw statistical data used in each
report available in an electronic, publicly accessible
format, which shall be--
``(I) made available without charge, license, or
registration requirement;
``(II) capable of being searched and aggregated; and
``(III) permitted to be downloaded, including downloaded in
bulk.''.
(j) Search or Duplication Fees.--Section 552(a)(4)(A) of
title 5, United States Code, is amended by striking clause
(viii) and inserting the following new clause:
``(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 fails to comply with any time limit described in
paragraph (6).
``(II)(aa) If an agency has determined that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provided 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 an agency has determined that unusual
circumstances apply and more than 3,000 pages are necessary
to respond to the request, an agency may charge search fees
(or in the case of a requester described under clause
(ii)(II) of this subparagraph, duplication fees) if the
agency has provided a timely written notice to the requester
in accordance with paragraph (6)(B) and the agency has
discussed with the requester via written mail, electronic
mail, or telephone (or made not less than 3 good-faith
attempts to do so) how the requester could effectively limit
the scope of the request in accordance with paragraph
(6)(B)(ii).
``(cc) If a court has determined 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.
``(ix) When assessing or estimating fees, agencies shall
provide a detailed explanation of the fee calculation,
including--
``(I) the actual or estimated number, as appropriate, of--
``(aa) records duplicated;
``(bb) hours of searching;
``(cc) files searched;
``(dd) records searched;
``(ee) custodians searched;
``(ff) records reviewed; and
``(gg) hours of review;
``(II) citations to the fee schedule for each category of
fee assessed; and
``(III) in the case of an estimate, the basis for such
estimate.''.
(k) Government Accountability Office.--Subsection (i) of
section 552 of title 5, United States Code, is amended to
read as follows:
``(i) Government Accountability Office.--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;
``(2) catalog the number of exemptions under subsection
(b)(3) and agency use of such exemptions; and
``(3) review and prepare a report on the processing of
requests by agencies for information pertaining to an entity
that has received assistance under title I of the Emergency
Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.)
during any period in which the Government owns or owned more
than 50 percent of the stock of such entity.''.
(l) Chief FOIA Officer Responsibilities; Council; Review.--
Section 552 of title 5, United States Code, is amended--
(1) by striking subsections (j) and (k); and
(2) by inserting after subsection (i), the following new
subsections:
``(j) Chief FOIA Officer.--
``(1) Designation.--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) 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 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 the 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) serve as the primary agency liaison with the Office
of Government Information Services and the Office of
Information Policy; and
``(G) designate one or more FOIA Public Liaisons.
``(3) Compliance review required.--The Chief FOIA Officer
of each agency shall--
``(A) review, not less than annually, all aspects of the
agency's administration of this section to ensure compliance
with the requirements of this section, including--
``(i) agency regulations;
``(ii) disclosure of records required under paragraphs (2),
(8), and (9) of subsection (a);
``(iii) assessment of fees and determination of eligibility
for fee waivers;
``(iv) the timely processing of requests for information
under this section;
``(v) the use of exemptions under subsection (b); and
[[Page H252]]
``(vi) dispute resolution services with the assistance of
the Office of Government Information Services or the FOIA
Public Liaison; and
``(B) make recommendations as necessary to improve agency
practices and compliance with this section.
``(k) Chief FOIA Officers Council.--
``(1) Establishment.--There is established in the executive
branch the Chief FOIA Officers Council (in this subsection,
referred to as the `Council').
``(2) Members.--The Council shall consist 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 at the National Archives and Records Administration.
``(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) Co-chairs.--The Director of the Office of Information
Policy at the Department of Justice and the Director of the
Office of Government Information Services at the National
Archives and Records Administration shall be the Co-Chairs of
the Council.
``(4) Support services.--The Administrator of General
Services shall provide administrative and other support for
the Council.
``(5) Consultation.--In performing its duties, the Council
shall consult regularly with members of the public who make
requests under this section.
``(6) Duties.--The duties of the Council include the
following:
``(A) Develop recommendations for increasing compliance and
efficiency under this section.
``(B) Disseminate information about agency experiences,
ideas, best practices, and innovative approaches related to
this section.
``(C) Identify, develop, and coordinate initiatives to
increase transparency and compliance with this section.
``(D) Promote the development and use of common performance
measures for agency compliance with this section.
``(7) Meetings.--
``(A) Regular meetings.--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) Annual meetings.--Not less than once a year, 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) Notice.--Not later than 10 business days before a
meeting of the Council, notice of such meeting shall be
published in the Federal Register.
``(D) Public availability of council records.--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) Minutes.--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.''.
(m) Excluded Records.--Section 552(c) of title 5, United
States Code, is amended by adding at the end the following
new paragraph:
``(4) An agency shall notify the Department of Justice in
each instance records responsive to a request have been
identified that the agency determines are not subject to the
requirements of this section under paragraphs (1), (2), or
(3) and shall provide the Department of Justice with a
detailed justification for such determination for each such
instance. The Department of Justice shall maintain records of
each notification and justification received. An agency may
treat records created under this paragraph as not subject to
the requirements under this section.''.
(n) Agency Performance; Adverse Actions.--
(1) In general.--Section 552 of title 5, United States
Code, is further amended by adding at the end the following
new subsection:
``(n) Agency Performance.--
``(1) Performance reviews.--Performance appraisals under
chapter 43 of this title shall include consideration of the
employee's responsibility for, and compliance with, this
section as appropriate.
``(2) Agency-wide training.--Each agency shall ensure
agency employees receive annual training on the
responsibilities of the agency under this section, including
the specific responsibilities of each employee, such as
responding promptly to requests for records and providing all
records that may be responsive to the request.
``(3) FOIA officer training.--Each agency shall ensure
agency employees directly responsible for fulfilling the
requirements under this section receive annual training on
such requirements. The annual training shall include
statutory requirements (such as time limits to respond to
requests for records, limitations on exemptions, and
opportunities for discretionary disclosure) and any changes
to this section or any interpretation of this section (such
as a regulation issued under this section).
``(4) Violation of foia.--
``(A) Intentional.--An intentional violation of any
provision of this section, including any rule, regulation, or
other implementing guideline, by an officer or employee of an
agency, as determined by the appropriate supervisor, shall be
forwarded to the Inspector General of the agency for a
verification of the violation, and upon verification, such
officer or employee shall be subject to the suspension and
removal provisions under subchapter II or V of chapter 75.
``(B) Unauthorized withholding.--The withholding of
information in contravention of the requirements of this
section, including any rule, regulation, or other
implementing guideline, as determined by the appropriate
supervisor, shall be a basis for disciplinary action in
accordance with subchapter I, II, or V of chapter 75, as the
case may be.''.
(2) Regulations.--The Office of Personnel Management shall
ensure that any performance appraisal system established
pursuant to chapter 43 of title 5, United States Code, shall
include the requirements of section 552(n)(1) of such title
(as added by paragraph (1)).
(o) Regulations; GAO Study; System of Record Notice.--
(1) Revision of regulations.--Not later than 180 days after
the date of the enactment of this Act, the head of each
agency 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 this section. The
regulations of each agency shall include--
(A) procedures for engaging in dispute resolution; and
(B) procedures for engaging with the Office of Government
Information Services.
(2) GAO non-custodian study.--Not later than 18 months
after the date of the enactment of this Act, the Comptroller
General shall--
(A) conduct a study of not less than five agencies to
assess the feasibility of implementing a policy requiring
non-custodians to search for records to meet the requirements
of section 552 of title 5, United States Code, and requests
for documents from Congress; and
(B) submit a report on such assessment to the Committee on
Oversight and Government Reform of the House of
Representatives and the Committee on the Judiciary of the
Senate detailing the results of such study.
(3) Office of government information services report.--Not
later than 270 days after the date of the enactment of this
Act, the Office of Government Information Services shall
submit to Congress a report on agency compliance with the
requirements of this subsection.
(4) Agency system of records notice required.--Not later
than 90 days after the date of the enactment of this Act, the
head of each agency shall publish in the Federal Register a
system of records notice as defined in section 552a of title
5, United States Code, which allows the Office of Government
Information Services access to records to the extent
necessary to meet the requirements of this Act, and the
amendments made by this Act.
(5) Report on noncompliance.--Not later than 270 days after
the date of the enactment of this Act, the head of an agency
that does not meet the requirements of paragraph (1) shall
submit to Congress a report on the reason for noncompliance.
(6) Inspector general review for noncompliance.--Any agency
that fails to comply with the requirements of this subsection
shall be reviewed by the Office of Inspector General of such
agency for compliance with section 552 of title 5, United
States Code.
(7) Agency defined.--In this section, the term ``agency''
has the meaning given such term in section 552(f) of title 5,
United States Code.
SEC. 3. INSPECTOR GENERAL REVIEW.
(a) Periodic Review.--The Inspector General of each agency
(as such term is defined in section 552(f) of this title 5,
United States Code) shall--
(1) periodically review compliance with the requirements of
section 552 of title 5, United States Code, including the
timely processing of requests, assessment of fees and fee
waivers, and the use of exemptions under subsection (b) of
such section; and
(2) make recommendations the Inspector General determines
to be necessary to the head of the agency, including
recommendations for disciplinary action.
(b) Required Frequency for Certain Agencies.--The Inspector
General of each agency (as such term is defined in section
901 of title 31, United States Code) shall complete the
review and make the recommendations required under subsection
(a) not less than once every two years.
SEC. 4. NO ADDITIONAL FUNDS AUTHORIZED.
No additional funds are authorized to carry out the
requirements of this Act and the amendments made by this Act.
Such requirements shall be carried out using amounts
otherwise authorized.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Utah (Mr. Chaffetz) and the gentleman from Maryland (Mr. Cummings) each
will control 20 minutes.
[[Page H253]]
The Chair recognizes the gentleman from Utah.
General Leave
Mr. CHAFFETZ. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous materials on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Utah?
There was no objection.
Mr. CHAFFETZ. Mr. Speaker, I yield 5 minutes to the gentleman from
California (Mr. Issa), the former chairman of the Oversight and
Government Reform Committee and one of the lead sponsors of this bill.
Mr. ISSA. Mr. Speaker, I thank the chairman.
It is no accident that this is one of the first bills of the new
year. Like some of the other legislation, it is not a new idea. In many
ways, what it really is is this body, once again, if you will,
reiterating when we talk about freedom of information for the American
people, whether it is a private citizen who doesn't know what the
government knows about him or her and would like to or it is an
interest group, a think tank, or very, very often the press--The New
York Times, The Washington Post, the LA Times, and a host more--wanting
to know what the government is doing, what their government is doing
with their money, their freedoms.
This bill emphasizes in no uncertain terms something that is long
overdue: that the balance between the American people's right to know
about their information and the government's right to keep a secret
shall always be balanced in favor and presumed to be the American
people's right. In other words, no longer, after this bill is signed
into law, will an administration, Republican or Democratic, be able to
presume that they are going to say no if they possibly can. Instead,
this bill shifts the burden to the presumption of yes.
Not only does it shift the burden, but it puts an outright mandate
that, after 25 years, information not covered by national security
requirements or classifications of secret or above, shall, in fact,
simply be available.
These are fundamentally important distinctions between the current
law. But more to the point of a modernization, this legislation
mandates a single point of asking for FOIA, an assumption that it is
long overdue for us to streamline and improve the ability to get this
information and get it to everyone.
One of the aspects of the legislation is that H.R. 653 will require
that information asked for again and again and again be posted and
available for everyone rather than each time being a burden of somebody
wanting similar or even identical information to have to put in a FOIA
request.
Mr. Speaker, what I want to close with is this isn't just bipartisan;
this is universal. Members of the House and the Senate, whether there
is a Republican or Democratic President, whether it is on behalf of a
constituent wanting some simple information, we regularly use the
Freedom of Information Act, and we regularly find ourselves frustrated.
This is good for the administration. It builds on legislation like
the DATA Act and other reforms that the Oversight and Government Reform
Committee have done over a number of years.
Lastly, I want to thank my good friend from Maryland (Mr. Cummings).
From the very day we began heading the committee, more than 5 years ago
now, together, he has always been for FOIA reform, always been for more
transparency, and always been supportive of the legislation you see
here today. I want to thank Mr. Cummings, something that I don't get
enough chances to do.
And I want to thank Chairman Chaffetz for bringing this bill, not
only as it was originally written, but with some important
modifications to make it, hopefully, go through quickly when it is
considered by the Senate.
I urge its support.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in strong support of H.R. 653, the FOIA Oversight
and Implementation Act.
I want to start by thanking Representative Darrell Issa for working
with me on this legislation. We first introduced the FOIA Act in March
2013. The bill before us today is the product of 3 years of work--hard
work--feedback, negotiation, and perseverance.
I also want to thank the chairman of the Oversight and Government
Reform Committee, Jason Chaffetz, for his work on this bill and his
strong support for bringing it to the House floor today.
I would say that this is a bipartisan effort, but it is more than
that. We actually worked very, very hard together, all of us, to make
this happen. If there was any case where we had to use this term of not
moving to common ground but moving to higher ground, it would be this
legislation.
Open government advocates--journalists, editorial boards, and
everyday citizens--who support this bill also deserve a tremendous
amount of gratitude.
The FOIA Act would strengthen the cornerstone of our open government
laws and the Freedom of Information Act. This legislation builds on the
historic work of the Obama administration, which I believe will go down
in history as the most transparent administration to date. The bill
would codify the presumption of openness standard that President Obama
put in place in a memo issued on his first day in office.
The bill would require agencies to identify specific identifiable
harm to an interest protected by exemption unless disclosure is
prohibited by law. This provision would not require agencies to
disclose classified information, it would not require agencies to
disclose anything they are prohibited from disclosing by law, and it
would not remove any of FOIA's existing time exemptions. It would,
however, put the burden on agencies where it should be: to justify
keeping government information secret.
The bill would also put a 25-year sunset exemption 5 of FOIA--the
deliberative process exemption--and limit the scope of records that
agencies could withhold under that exemption. It would modernize FOIA
by requiring the Office of Management and Budget to create a central
portal to allow FOIA requests to any agency through one Web site.
The Office of Government Information Services, the FOIA ombudsman
created by Congress in 2007, would become more independent, which is
very important under this bill, because that office would be allowed to
submit testimony and reports directly to Congress without going through
political review.
This bill is coming to the floor with an amendment that makes a
number of changes, and many of them proposed by Chairman Chaffetz. Some
of these additions include requiring agencies to provide each FOIA
requester with a contact name and information for an agency employee
who can provide information on the status of the request. This is so
very, very important.
Our bill has widespread support. A coalition of 47 open government
groups sent a letter in support of this bill on February 5, 2015, that
said:
``Congress must act this year to ensure that FOIA stays current with
people's need to access government information and resilient in the
face of attempts to subvert that access.''
{time} 1730
Numerous editorial boards have written, urging Congress to pass FOIA
reform legislation.
A New York Times editorial from February 2015 reads: ``This is a rare
chance to log a significant bipartisan accomplishment in the public
interest.''
A USA Today editorial in March 2015 called for the enactment of this
bill's reforms.
A Los Angeles Times editorial read that this legislation and a
similar bill in the Senate ``deserves to be passed.''
This is a movement called Fix FOIA by 50. That movement is aimed at
getting H.R. 653 enacted before the 50th anniversary of FOIA in July of
this year.
An online clearinghouse for the movement includes stories from
journalists about why FOIA is critical to their work and why this
legislation must be enacted.
It is important to note that, even with the enactment of this
legislation, the work of Congress must continue.
Agency FOIA staff are being asked to do more than ever before. From
2009 to
[[Page H254]]
2014, the overall number of FOIA requests submitted to Federal agencies
increased by 28 percent with new records set in each of the past 4
years in a row. The total number of FOIA personnel, however, decreased
by about 4 percent. Congress must give these agencies more resources.
Again, I thank Congressman Issa for all of his hard work. I know that
he has been on this bill for a long time and has tried to make sure it
gets passed. Again, I want to thank both staffs for working so hard.
Since Chairman Chaffetz became chairman, we have had two meetings,
and I know our staffs have had numerous meetings and have hammered out
the details to make a very good bill a better bill. I want to thank
them.
I urge my colleagues to vote for transparency and for the American
people by voting ``yes'' on this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. CHAFFETZ. Mr. Speaker, I yield myself such time as I may consume.
This is a good, much-needed piece of legislation. It is hard to
believe that FOIA, the Freedom of Information Act, was passed nearly 50
years ago.
We are a little different in the United States. We are self-critical.
We do look at things. We do examine things. We do it in the spirit of
making this country better.
We also have to remember who we work for. We work for the American
people. The American people are paying the tab. It is their government,
and they have the right to know.
Updating this piece of legislation is something that, in particular,
Congressman Issa sought to do some time ago. He put the wheels in
motion and started to draft a good and much-needed bill.
Coming together with the ranking member, Mr. Cummings, has made this
all possible. We have had some good, vibrant discussions. We had 2 days
of hearings in our committee. We heard from citizens. We heard from the
media. We heard from a host of people.
I think it is fair to say that, in large part, the FOIA, the way it
operates now, is broken. I do agree and concur with the ranking member
that, if we are going to have such a bombardment of requests, they need
to be properly funded and there needs to be the personnel in order to
make sure they can fulfill these requests.
When appropriation season comes, I want to stand with Mr. Cummings
and with others and make sure that it is properly funded so that those
good people can do their good work.
There were a number of reforms and improvements that needed to
happen. I do appreciate the flexibility of working and of offering
suggestions and then another set of suggestions.
This would not have been possible, Mr. Speaker, without some good
work in the Office of Legal Counsel. Sally Walker dealt with us time
and time again.
On our side of the aisle, we had it spearheaded with Katy Rother, and
I know that Krista Boyd particularly, on Mr. Cummings' staff, was vital
to making this happen.
There are vital pieces of information that are needed and that are
rightfully requested by the American people, but this piece of
legislation will make that FOIA process smoother. It will make it more
effective, more efficient, and I think it is much needed as we go into
the 50th year of FOIA. I look forward to its passage. I urge a ``yes''
vote.
Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
I close by highlighting a few additional provisions of FOIA.
This bill would require agencies to review existing records to
identify categories of records to proactively disclose rather than
waiting for FOIA requests.
The bill would also require the Department of Justice to report to
Congress on categories of records that would be appropriate for
proactive disclosure.
Finally, the bill would tackle the proliferation of statutory FOIA
exemptions by requiring the Government Accountability Office to catalog
all of the statutory exemptions on the books.
Again, I urge the support of this legislation.
Mr. Speaker, I yield back the balance of my time.
Mr. CHAFFETZ. Mr. Speaker, I yield myself such time as I may consume.
I appreciate the good, bipartisan work. It was through a lot of labor
and a lot of listening to what the public needs and to what the media
needs. I do think this will make the Freedom of Information Act better
as it is the spirit by which we operate in this country.
I urge the bill's passage.
Mr. Speaker, I yield back the balance of my time.
House of Representatives, Permanent Select Committee on
Intelligence,
Washington, DC, January 8, 2016.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform ,
Washington, DC.
Dear Chairman Chaffetz: On January 7, 2016, your committee
ordered H.R. 653, the ``FOIA Oversight and Implementation Act
of 2015,'' reported. As you know, H.R. 653 contains several
provisions that implicate the work of agencies within the
jurisdiction of the Permanent Select Committee on
Intelligence. The bill addresses how elements of the
Intelligence Community (IC), as defined in section 3(4) of
the National Security Act of 1947, may protect sensitive
information from disclosure under the Freedom of Information
Act (FOIA).
On the basis of your consultations with the Committee, I
understand that H.R. 653 has been crafted to avoid compelling
the disclosure of any properly classified information, or
other information where disclosure would adversely affect
intelligence sources and methods protected by an existing
FOIA exemption. In particular, I understand that H.R. 653
does not allow or require FOIA requesters to obtain IC
records or information, without regard to the age of the
records or information, if such disclosure would adversely
affect intelligence sources and methods.
I further understand that H.R. 653 does not alter an
Intelligence Community element's discretion over the language
it chooses to use in denying records or information sought
pursuant to FOIA. Specifically, I understand that the
requirement in Section 2(f)(3) for federal agencies to
include ``a list'' of all denied records preserves an
Intelligence Community element's discretion regarding the
contents of the required ``list.'' To the extent that
elaboration of any list would adversely affect intelligence
sources and methods, an IC element may cite to the applicable
FOIA exemption to meet the list requirement.
I would appreciate your response to this letter confirming
these understandings and would request that you include a
copy of this letter in the Congressional Record during its
floor consideration. Thank you in advance for your
cooperation.
Sincerely,
Devin Nunes,
Chairman.
____
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, January 11, 2016.
Hon. Devin Nunes,
Chairman, Permanent Select Committee on Intelligence,
Washington, DC.
Dear Mr. Chairman: Thank you for your January 8, 2016,
letter regarding H.R. 653, the FOIA Oversight and
Implementation Act of 2015, as reported. H.R. 653 bill
addresses how elements of the Intelligence Community (IC), as
defined in section 3(4) of the National Security Act of 1947,
may protect sensitive information from disclosure under the
Freedom of Information Act (FOIA). I am writing to confirm
our mutual understanding with respect to the consideration of
the bill.
H.R. 653 has been crafted to strengthen FOIA by
establishing a strong presumption in favor of disclosure,
while also recognizing the need to avoid compelling the
disclosure of any properly classified information, or other
information where disclosure would adversely affect
intelligence sources and methods protected by an existing
FOIA exemption. The bill, as reported, does not require
agency FOIA staff to disclose IC records or information,
without regard to the age of the records or information, if
such disclosure would adversely affect intelligence sources
and methods. Further, the bill does not alter an IC element's
discretion over the language it chooses to use in denying
records or information sought pursuant to FOIA. Specifically,
the requirement in Section 2(f)(3) for federal agencies to
include ``a list'' of all denied records preserves an
Intelligence Community element's discretion regarding the
contents of the required ``list.''
A copy of our exchange of letters on this matter in the
will be inserted into the Congressional Record during
consideration of this bill on the House floor. Thank you for
your attention to this matter.
Sincerely,
Jason Chaffetz,
Chairman.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Utah (Mr. Chaffetz) that the House suspend the rules and
pass the bill, H.R. 653, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
[[Page H255]]
A motion to reconsider was laid on the table.
____________________
