FOIA Update: House Committee Develops Its Own Electronic Record FOIA Amendment Bill

FOIA Update
Vol. XVII, No. 3
1996

In a sudden development that has both energized and complicated the process of obtaining consensus electronic record FOIA legislation, a committee of the House of Representatives has developed and immediately acted upon its own counterpart FOIA amendment bill.

On July 25, the House Committee on Government Reform and Oversight marked up and approved a bill, H.R. 3802, entitled the "Electronic Freedom of Information Amendments of 1996," that was introduced by Rep. Randy Tate (R. Wash.) less than two weeks earlier. After it was introduced on July 12, H.R. 3802 was given immediate consideration by the Subcommittee on Government Management, Information, and Technology, which is chaired by Rep. Stephen Horn (R. Cal.), and it was approved by the subcommittee without any modification on July 16.

At the full committee level, the bill was modified by proposals introduced by both Chairman Horn and Rep. Carolyn Maloney (D. N.Y.), the Ranking Minority Member of the subcommittee. (See pages 3-6 of this issue of FOIA Update for the full text of H.R. 3802 as approved by the full committee.)

As approved by the House full committee, H.R. 3802 differs markedly from the Senate electronic record FOIA amendment bill that was sponsored primarily by Sen. Patrick Leahy (D. Vt.) and was approved by the Senate Judiciary Committee earlier this year. See FOIA Update, Spring 1996, at 1. It contains the following major provisions:

• Definition of record. Unlike the Senate bill, H.R. 3802 does not contain a comprehensive definition of the term "record" under the FOIA. Rather, in Section 3 of the bill, it provides that any reference to the term "record" or "information" in the Act should "include[ ] any information that would be an agency record subject to [the Act] if maintained by an agency in any format including an electronic format." This provision does not specifically address the agency record status of computer software.
• Form or format of disclosure. H.R. 3802 contains two provisions that appear to apply to the situation in which a FOIA requester seeks to choose among existing forms or formats of a record and to the situation in which the requester might seek to obtain a record in a new form or format. First, it would require an agency to provide a record in a requested form or format "if the record is readily reproducible by the agency in that form or format." Second, it would require agencies to make "reasonable efforts" to maintain their records "in forms or formats that are reproducible" for purposes of FOIA requests.
• Electronic record searches. On the subject of an agency's obligation to search for requested information according to the specifications of a particular FOIA request, H.R. 3802 would specifically define the term "search" to include one conducted "by automated means." In an adjacent provision of Section 4 of the bill, it would employ the same "reasonable efforts" standard to govern the extent of requested electronic searches.
• Electronic "reading room" availability. An unnumbered section of H.R. 3802 as approved by the House full committee would require agencies to make all "reading room" materials created on or after November 1, 1996 available in electronic form within one year. Agencies also would be required to provide "reading room" availability to all records released to FOIA requesters that the agencies determine "have become or are likely to become the subject of subsequent requests," together with an index of those records.
• Time limits and backlogs. Like under S. 1090, H.R. 3802 would increase the time limit for an agency's initial FOIA response from ten to twenty days, but it contains a provision (Section 6(c)) that would specifically disallow a "predictable agency workload of requests" from serving as an "exceptional circumstance" for purposes of a court-ordered stay of proceedings under the Open America decision. Unlike the Senate bill, this part of the House bill contains no provision that would make this limitation applicable prospectively, to new FOIA requests only.
  
  Also different from S. 1090, H.R. 3802 would establish a procedure by which an agency could ask a requester to agree to a modification of a FOIA request that is of exceptional "scope or complexity." Under Section 6(b) of the bill, an agency could give such a requester "an opportunity to limit the scope of the request so that it may be processed within [the Act's] time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request." Under both Sections 6(b) and 6(c) of the bill, in such a situation a FOIA requester's refusal to agree to such a modification, if found unreasonable, could qualify as "exceptional circumstances" for purposes of an Open America stay.
• Multitrack processing. As with S. 1090, H.R. 3802 would encourage agencies to maintain multitrack FOIA processing systems based upon the complexity of the requests that they receive. Under Section 6(a) of H.R. 3802, a FOIA requester would be given the opportunity to limit the scope of his or her request in order to qualify for faster processing.
• Expedited processing. In contrast to the Senate bill, the House bill would provide for expedited processing of requests in any case in which a FOIA requester demonstrates a "compelling need," or in any "other cases determined by the agency." Section 7 of H.R. 3802 would define "compelling need" as (1) a threat to an individual's life or physical safety or (2) "with respect to a request made by a person primarily engaged in disseminating information, compelling urgency to the public concerning actual or alleged Federal Government activity." Also unlike S. 1090, H.R. 3802 would not require a penalty-of-perjury certification of need by the requester.
• Computer redaction. H.R. 3802 would require agencies to indicate the amount of information deleted in response to a FOIA request, unless such an indication "would harm an interest protected by an exemption." The bill would also employ a "technical feasibility" standard for such specifications.
• Standard for judicial review. Section 5 of H.R. 3802 contains a provision not included in S. 1090. It would require courts to accord "substantial weight" to an agency's determination of whether records are "readily reproducible" in a requested format or whether it is "technically feasible" to indicate the amount of information deleted. This provision does not appear to apply to the bill's "reasonable efforts" standards that would govern the extent of agency format and search obligations under Section 4 of the bill.
• Agency reports. In contrast to the Senate bill, the House bill would address the subject of agency reporting requirements under the FOIA and would make extensive revisions to subsection (e) of the Act. Under Section 9 of H.R. 3802, agencies would be required to submit to the Attorney General an annual report containing a complete list of Exemption 3 statutes relied upon to withhold information and a range of statistical data, including the number of requests received, the number of requests processed, the size of the agency's full-time FOIA staff, and the median number of days taken to process different types of requests. Each report would be made available by "electronic means" and the Attorney General would make all agency reports available to the public at a single electronic access point. Under this bill, the Attorney General would develop reporting guidelines for all agencies, in consultation with the Office of Management and Budget, and would submit an annual report to Congress each year regarding both its litigation and policy activities in implementation of the Act.
• Effective date. Unlike S. 1090, H.R. 3802 contains a separate effective date section. Under Section 11 of the bill, its multitrack, time limit, and expedited processing provisions would take effect one year after the date of enactment. Other provisions of the bill generally would take effect 180 days after enactment, with further implementation periods specifically provided for certain of the "reading room" and electronic availability provisions.

This action in the House of Representatives followed FOIA oversight and legislative hearings that were held by the House Subcommittee on Government Management, Information, and Technology on June 13 and 14. On the first day of hearings, the subcommittee heard from representatives of the Justice Department, the FBI, the Defense Department, and members of the FOIA-requester community regarding the overall operation of the Act.

On the second hearing day, which was devoted to possible legislative amendments, Chairman Horn stated that the subcommittee planned to schedule a further legislative hearing at which the Office of Management and Budget would present testimony on behalf of the Administration regarding the provisions of the Senate bill. Subsequently, however, the subcommittee proceeded to act without any such formal statement.

At the end of July, a proposal for a statement of Administration position was circulated by OMB for agency comment through the governmentwide clearance process, but that process was discontinued shortly before Congress recessed at the beginning of August, leaving it unclear what the next step in the legislative process would be.

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