FOIA Update: Text of Senate FOIA Amendment Bills

January 1, 1991

FOIA Update
Vol. XII, No. 4
1991


Text of Senate FOIA Amendment Bills

S. 1939 (Proposed Legislation)
[The following is the text of the two Freedom of Information Act amendment bills, S. 1939 and S. 1940, introduced in the United States Senate by the Chairman of the Senate Judiciary Committee's Subcommittee on Technology and the Law on Nov. 7, 1991.]

To amend title 5, United States Code, to amend 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 "Freedom of Information Improvement Act of 1991".

SECTION 2. FINDINGS AND PURPOSES.

(a) FINDINGS. -- The Congress finds that --

(2) the Freedom of Information Act ensures access to information held by the Government, which is a valuable national resource;

(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government; and

(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards.

(b) PURPOSES. -- The purposes of this Act are to --

(2) improve public access to agency records and information.

SECTION 3. FEE LIMITATIONS AND AGENCY REQUIREMENTS.

Section 552(a)(4)(A) of title 5, United States Code, is amended --

(A) in subclause (I) by inserting before the semicolon: ", but records requested in connection with publication or other media through which information is disseminated shall not be considered records requested for commercial use"; and

(B) in subclause (II) by striking out "an educational or" and inserting in lieu thereof "a person affiliated with an institution organized and operated for educational purposes or a"; and

(2) by amending clause (iii) to read as follows:

"(iii) Documents shall be furnished without any charge, if disclosure of the information is in the public interest because such disclosure is --

"(I) likely to contribute directly or indirectly to public understanding of the Government and other matters of public interest; and

"(II) not in the commercial interest of the requester.".

SECTION 4. EXEMPTIONS.

(a) NATIONAL DEFENSE. -- Section 552(b)(1) of title 5, United States Code, is amended to read as follows:

"(A) in fact properly classified pursuant to such Executive order;

"(B) matters the disclosure of which could reasonably be expected to cause identifiable damage to national defense or foreign policy; and

"(C) matters in which the need to protect the information outweighs the public interest in disclosure;".

(b) STATUTORY EXEMPTION. -- Section 552(b)(3) of title 5, United States Code, is amended by inserting before the semicolon: ", in which case the release of the specific information involved would cause the particular harm intended by Congress to be avoided".

(c) INTERAGENCY MEMORANDA. -- Section 552(b)(5) of title 5, United States Code, is amended to read as follows:

"(B) records withholdable under this subsection which shall be withheld only if the interest of the agency in withholding the records outweighs the public interest in disclosure;".

(d) LAW ENFORCEMENT. -- Section 552(b)(7) of title 5, United States Code, is amended to read as follows:

"(A) could reasonably be expected to interfere with enforcement proceedings;

"(B) would deprive a person of a right to a fair trial or an impartial adjudication;

"(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

"(D)(i) could reasonably be expected to disclose the identity of a source who, based on demonstrable facts and circumstances, clearly expected and continues to expect that the source relationship would remain confidential, including a State, local, or foreign agency or authority or any private institution which furnished information on such a confidential basis; or

"(ii) are furnished by such confidential source to a criminal law enforcement authority in the course of a criminal investigation or acquired by an agency conducting a lawful national security intelligence investigation, except the law enforcement authority or agency shall not withhold such information provided by such confidential source 20 years after the date of such communication with the agency, unless confidentiality is necessary to protect the life or physical safety of any individual;

"(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

"(F) could reasonably be expected to endanger the life or physical safety of any individual;".

(e) REVISION OF FINANCIAL REPORTS EXEMPTION. -- Section 552(b)(8) of title 5, United States Code, is amended by inserting before the semicolon ", if disclosure would directly injure the financial stability of an institution".

SECTION 5. DEFINITIONS.

Section 552(f) of title 5, United States Code, is amended to read as follows:

"(f) For purposes of this section the term 'agency' includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), the legislative branch of the Government, the office of the President and the Vice President, Administrative Office of the United States Courts, or any independent regulatory agency.".

SECTION 6. UNIFORM REQUIREMENTS FOR THE ENACTMENT OF CERTAIN INFORMATION WITHHOLDING STATUTES.

(a) IN GENERAL. -- Section 552 of title 5, United States Code, is amended by adding after subsection (f) the following new subsection:

"(2) Effective six years after the date of enactment of this subsection, no statute may be relied on to withhold information under subsection (b)(3) of this section, unless the provisions of such statute comply with the requirements of paragraph (1) of this subsection.

"(3)(A) Any bill or resolution which contains provisions constituting authority for withholding information under subsection (b)(3) of this section shall be referred to the appropriate committees of the Senate and the House of Representatives, pursuant to the rules of each House, and in addition, to the appropriate committees of the Senate and the House of Representatives, having jurisdiction over the provisions of this section, if such committees so request.

"(B) No bill or resolution described in subparagraph (A) of this paragraph shall be considered in the Senate or the House of Representatives, unless it is a bill or resolution which has been reported by the appropriate committees described in subparagraph (A) or from the consideration of which such committees have been discharged.

"(C) It shall not be in order in either the Senate or the House of Representatives to consider any bill or resolution described in subparagraphs (A) and (B) of this paragraph, unless the procedures of such subparagraphs have been followed.".

(b) RULEMAKING POWER OF THE CONGRESS. -- Section 552(g) of title 5, United States Code, is enacted by the Congress --

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

____________________________________________________________
S. 1940 (Proposed Legislation)

To amend title 5, United States Code, to provide for public access to information in an electronic format, to amend 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 "Electronic Freedom of Information Improvement Act of 1991".

SECTION 2. FINDINGS AND PURPOSES.

(a) FINDINGS. -- The Congress finds that --

(2) the Freedom of Information Act ensures access to information held by the Government, which is a valuable national resource;

(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;

(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;

(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable information; and

(6) Government agencies should use new technology to enhance public access to information.

(b) PURPOSES. -- The purposes of this Act are to --

(2) improve public access to agency records and information;

(3) ensure agency compliance with statutory time limits; and

(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.

SECTION 3. PUBLIC INFORMATION AVAILABILITY.

Section 552(a)(1) of title 5, United States Code, is amended --

(2) by striking out "and" at the end of subparagraph (D);

(3) by redesignating subparagraph (E) as subparagraph (H); and

(4) by inserting after subparagraph (D) the following new subparagraphs:

"(E) an index of all information retrievable or stored in an electronic form by the agency;

"(F) a description of any new database or database system with a statement of how such database or system shall enhance agency operations under this section;

"(G) a complete list of all statutes that the agency head or general counsel relies upon to authorize the agency to withhold information under subsection (b)(3) of this section, together with a specific description of the scope of the information covered; and".

SECTION 4. HONORING FORMAT REQUESTS.

Section 552(a)(3) of title 5, United States Code, is amended by --

(2) striking out "(A) reasonably" and inserting in lieu thereof "(i) reasonably";

(3) striking out "(B)" and inserting in lieu thereof "(ii)"; and

(4) adding the following new subparagraphs at the end thereof --

"(B) An agency shall provide records in any form in which such records are maintained by that agency as requested by any person.

"(C) An agency shall 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.".

SECTION 5. DELAYS.

(a) FEES. -- Section 552(a)(4)(A) of title 5, United States Code, is amended by adding at the end thereof the following new clause:

"(viii) If at an agency's request, the Comptroller General determines that the agency annually has either provided responsive documents or denied requests in substantial compliance with the requirements of paragraph (6)(A), one-half of the fees collected under this section shall be credited to the collecting agency and expended to offset the costs of complying with this section through staff development and acquisition of additional request processing resources. The remaining fees collected under this section shall be remitted to the Treasury as general funds or miscellaneous receipts.".

(b) PAYMENT OF REQUESTER'S EXPENSES. -- Section 552(a)(4)(E) of title 5, United States Code, is amended by adding at the end thereof the following new sentence: "The court may assess against the United States all out-of-pocket expenses incurred by the requester, and reasonable attorney fees incurred in the administrative process, in any case in which the agency has failed to comply with the time limit provisions of paragraph (6) of this subsection.".

(c) CIVIL PENALTY FOR DELAY. -- Section 552(a)(4)(E) of title 5, United States Code, is further amended --

(2) by adding at the end thereof the following new clause:

"(ii) Any agency not in compliance with the time limits set forth in this subsection shall demonstrate to a court that the delay is warranted under the circumstances. It shall be within the discretion of the court to award the requester an amount not to exceed $75 for each day that the agency's response to his request exceeded the time limits set forth in paragraph (6) of this section.".

(d) AGENCY BACKLOGS. -- Section 552(a)(6)(B) of title 5, United States Code, is amended in the third sentence by inserting "shall not include routine agency backlogs and" after "unusual circumstances".

(e) NOTIFICATION OF DENIAL. -- The third sentence of section 552(a)(6)(C) of title 5, United States Code, is amended to read: "Any notification of any full or partial denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request and the total number of denied records and pages considered by the agency to have been responsive to the request.".

(f) EXPEDITED ACCESS. -- Section 552(a)(6) of title 5, United States Code, is amended by adding at the end thereof the following new subparagraph:

"(ii) A requester whose request for expedited access has not been decided within five days of its receipt by the agency or has been denied shall not be required to exhaust administrative remedies. An agency failing to comply with this time limitation shall be subject to the provisions of paragraph (4)(E)(ii).".

SECTION 6. COMPUTER REDACTION.

Section 552(b) of title 5, United States Code, is amended by inserting before the period in the sentence following paragraph (9): ", and such deletion shall be indicated on the released portion of the record at the place where such deletion was made".

SECTION 7. DEFINITIONS.

Section 552(f) of title 5, United States Code, is amended to read as follows:

"(f) For purposes of this section --

"(2) the term 'search' includes a manual or automated examination to locate records.".

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