FOIA Update
Vol. XVII, No. 2

Senate Advances Electronic FOIA Bill

In a step similar to one taken in the Senate two years ago when a comparable bill passed the Senate but not the House of Representatives, a Senate committee has acted to advance a Senate bill that would amend the Freedom of Information Act on the subjects of electronic records and other procedural issues.

On April 25, the Senate Judiciary Committee "marked up" and reported to the full Senate a partially revised version of S. 1090, the "Electronic Freedom of Information Improvement Act," which would address electronic record FOIA issues and the difficult problem areas of compliance with the Act's time limits and administrative backlogs at many federal agencies, among other procedural issues. (See pages 5-7 of this issue of FOIA Update for the full text of S. 1090 in its committee "mark up" form.)

As modified at the Senate Judiciary Committee level, this FOIA amendment bill contains the following major provisions:

Definition of record. As with S. 1782 -- the bill that was passed by the Senate in 1994 -- S. 1090 would define the term "record" under the FOIA so as to include "machine-readable materials, or other information . . . regardless of physical form or characteristics." An entirely new provision, however, would explicitly exclude from this definition any "computer software which is obtained by an agency under a licensing agreement prohibiting its replication or distribution." Section 8 of S. 1090 also contains new exceptions for "library or museum materials," "extra copies of documents preserved solely for convenience of reference," and "stocks of publications and of processed documents."

Form of disclosure. Section 5 of the "marked up" bill contains two provisions pertaining to the form in which records are disclosed under the FOIA. The first would allow FOIA requesters to choose the form of disclosure where it is a choice among existing record forms, an approach which the Justice Department in its FOIA-training programs has been advising agencies to use since last year. Accord FOIA Update, Fall 1994, at 6 (proposed electronic record principle specifying that Dismukes precedent should not be followed). The second provision would require agencies to make "reasonable efforts" to provide records in any requested form or format that does not already exist.

Electronic record searches. The bill would add a definition of the term "search" to the Act, so as to expressly include a "manual or automated review of agency records." This definition, in conjunction with a new "search" requirement in section 5, contains no objective limitation on an agency's obligation to operate and manipulate an electronic record system for requested data-retrieval purposes.

Electronic "reading room" availability. Section 4 of S. 1090 would require agencies to convert all FOIA "reading room" materials to electronic form, in order to allow on-line or "other electronic" access, within one year. It also would require agencies to create and maintain indices of their major information systems and to maintain both an index of their FOIA-disclosed records and "reading room" copies of all such records that "have become or are likely to become the subject of subsequent requests."

Time limits and backlogs. S. 1090 would change the ten-day time limit for an agency's initial FOIA response to twenty days, but would prospectively preclude any "ongoing agency backlog" from serving as an "exceptional circumstance" that could justify any further delay.

Multitrack FIFO processing. Like the 1994 Senate bill, S. 1090 would codify the administrative practice of handling FOIA requests on a first-in, first-out (FIFO) basis and would endorse a multi-track system based upon the complexity of the request. It would define "complex" requests as those requiring more than ten working days.

Expedited access. The bill would expressly provide for expedited FOIA access when a requester demonstrates a "compelling need." In contrast to the earlier Senate bill, S. 1090 would allow agencies ten working days to make expedited access determinations. It also would require "penalty-of-perjury" certifications of need by requesters.

Denial notification. S. 1090 would require that all FOIA denial letters specify "the total number of denied records and pages considered by the agency to have been responsive to the request," without any statutory exception.

The Senate Judiciary Committee report that was issued with the "marked up" bill, S. Rep. No. 272, 104th Cong., 2d Sess. (May 15, 1996), incorporates most of the electronic record principles that were developed within the federal government's Information Infrastructure Task Force in 1994, see FOIA Update, Fall 1994, at 1-6, in some instances through an accompanying statement by the bill's principal sponsor, Senator Patrick Leahy (D. Vt.).

In this Congress, no comparable bill has yet been introduced in the House and it remains unclear whether this Senate action will lead to possible passage in both bodies.

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