FOIA Update: Senate FOIA Bill Reintroduced

January 1, 1994

FOIA Update
Vol. XV, No. 1
1994


Senate FOIA Bill Reintroduced

A legislative proposal to amend the Freedom of Information Act in a number of important procedural respects has been reintroduced in the United States Senate and is expected to be the subject of active legislative consideration during the spring.

In late November, Senators Patrick J. Leahy (D. Vt.) and Hank Brown (R. Colo.) introduced S. 1782, entitled the "Electronic Freedom of Information Improvement Act of 1993," which addresses both "electronic record" FOIA issues and the longstanding problem area of backlogs of FOIA requests under the Act.

This current FOIA amendment bill is substantially identical to one considered in the previous Congress, S. 1940, which was the subject of a Senate subcommittee hearing in the spring of 1992. See FOIA Update, Spring 1992, at 1. A companion bill to S. 1940 that contained substantive revisions of FOIA exemptions (S. 1939, 102d Cong.) has not been reintroduced.

"Electronic Record" Provisions

The provisions of S. 1782 would update the Freedom of Information Act so as to explicitly address the maintenance and disclosure of records by federal agencies in electronic form.

Toward that end, S. 1782 would define the term "record" under the Act--for the first time -- to specifically include "computer programs" and all related "electronic information . . . regardless of physical form or characteristics." Likewise, it would add a definition of the term "search" to the Act, one specifying that it includes "a manual or automated examination to locate records." A separate provision, under the heading of "computer redaction," would require that any deletion of information "be indicated on the released portion of the record at the place where such deletion is made."

Another major provision of the bill would address the form or format in which records are disclosed under the Act. Where a requested record is maintained by an agency in multiple record forms, it would allow the FOIA requester to choose his or her preferred form of disclosure. Further, the bill would require agencies to "make reasonable efforts to provide records in an electronic form requested by any person, even where such records are not usually maintained in such form."

Additional provisions would require agencies to publish indices of information stored in an "electronic form" and to formally consider the utility of FOIA access at the time of new database or database system creation.

Backlog-Related Provisions

Most of the other provisions of S. 1782 relate to difficulties in meeting the Act's time limits and to the problem of FOIA backlogs at many agencies. The bill would authorize courts to award FOIA requesters both "out-of-pocket expenses" and reasonable attorneys fees incurred at the administrative level in any case in which an agency fails to meet a time limit of the Act. Similarly, it would give courts the discretion to impose a "civil penalty for delay" of up to $75 per day for time-limit noncompliance. Another provision of the bill would explicitly preclude "routine agency backlogs" from serving as grounds for an extension of the Act's time limits. On the other hand, S. 1782 would permit agencies certified as in "substantial compliance" with the Act's time limits to retain half of the FOIA fees they collect, with the funds then "expended to offset the costs" of that compliance.

A separate provision of S. 1782 would afford expedited access to FOIA requesters based upon a "compelling need" standard and would establish a five-day time limit for the making of decisions on whether to grant expedited access when requested. Other provisions of the bill address such procedural matters as the content of administrative denial notifications and the creation of individual agency listings of Exemption 3 statutes. (See pages 2-3 of this issue of FOIA Update for the full text of all of S. 1782's provisions.)

The provisions of S. 1782 will be considered in the Senate first by the Senate Judiciary Committee's Subcommittee on Technology and the Law, which is chaired by Senator Leahy. No subcommittee hearing on S. 1782 is anticipated, but the bill's provisions should be the subject of extensive discussions and efforts to reach a consensus among interested parties. In anticipation of this legislative process, the Office of Management and Budget is circulating S. 1782 to federal agencies for individual agency comment and the inter-agency coordination of views.

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The four center pages of this issue of FOIA Update contain an updated list of the principal FOIA administrative and legal contacts at federal agencies. (Multiple changes for components of the Department of Defense should particularly be noted.)

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