FOIA Update
Vol. XV, No. 1

Text of Senate FOIA Amendment Bill

S. 1782 (Proposed Legislation)

[The following is the text of the Freedom of Information Act amendment bill introduced in the Senate on November 22, 1993, and now pending before the Senate Judiciary Committee's Subcommittee on Technology and the Law.]

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,


This Act may be cited as the "Electronic Freedom of Information Improvement Act of 1993".


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

(1) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;

(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 --

(1) foster democracy by ensuring access to public information;

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

(1) in the first sentence by inserting "electronically by computer telecommunications, and by other means," after "Federal Register";

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

(1) inserting "(A)" after "(3)";

(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.".


(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 --

(1) by inserting "(i)" after "(E)"; and

(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 fourth sentence by inserting "shall not include routine agency backlogs and" after "'unusual circumstances'".

(e) NOTIFICATION OF DENIAL. -- The fourth 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:

"(D)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing that upon receipt of a request for expedited access to records and a demonstration by the requester of a compelling need for expedited access to records, the agency shall determine within five days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such a request, whether to comply with such request. No more than one day after making such determination the agency shall notify the requester of such determination, the reasons therefor, and of the right to appeal to the head of the agency.

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

"(f) For purposes of this section --

"(1) the term 'agency' as defined in section 551(1) of this title 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), or any independent regulatory agency;

"(2) the term 'record' includes all books, papers, maps, photographs, data, computer programs, machine readable materials, and computerized, digitized, and electronic information, regardless of the medium by which it is stored, or other documentary materials, regardless of physical form or characteristics; and

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

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