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FOIA Update: Senate Passes FOIA Amendment Bill

FOIA Update
Vol. XV, No. 3

Senate Passes FOIA Amendment Bill

The United States Senate has advanced the process of legislative consideration of amendments to the Freedom of Information Act on the subjects of electronic records and other procedural FOIA issues by acting on the Senate FOIA bill that was introduced in the first session of this Congress last year.

On August 25, the Senate unanimously passed S. 1782, the "Electronic Freedom of Information Improvement Act," a bill which addresses "electronic record" issues arising under the FOIA and also the difficult problem areas of compliance with the Act's time limits and the maintenance of administrative backlogs of FOIA requests at many federal agencies, among other procedural issues. The bill was passed through action on the Senate's "unanimous consent" calendar shortly before Congress took its delayed summer recess this year.

Modifications Made to Bill's Provisions

Senate passage of S. 1782 came after the bill was marked up and approved by the Senate Judiciary Committee's Subcommittee on Technology and the Law, and then by the full Senate Judiciary Committee, with modifications made to several of its provisions and with some new provisions added to the bill as well. (See pages 3-5 of this issue of FOIA Update for the full text of S. 1782 in its modified form.)

The Technology and the Law Subcommittee -- which is chaired by Senator Patrick Leahy (D. Vt.), S. 1782's principal sponsor -- modified and approved the bill on June 29 and the Senate Judiciary Committee approved it on August 11. On August 8, a nearly identical counterpart bill, H.R. 4917, was introduced in the House of Representatives as well, without any further legislative action.

In the absence of any scheduled action on a FOIA amendment bill in the House of Representatives, further legislative consideration of the subjects addressed in S. 1782 carries over into the next Congress. It can be expected that this proposed legislation will be reintroduced in the 104th Congress next yea r-- just as S. 1782 was a reintroduction of a predecessor bill (S. 1940) that was originally considered in the 102d Congress (see FOIA Update, Spring 1992, at 1) -- and that it will receive active consideration in both the Senate and the House.

The new starting point for legislative consideration in the next Congress, however, should be the provisions of S. 1782 in the modified form in which the bill was acted upon by the Senate this year. As modified by the Senate's action, this legislative proposal now contains the following primary provisions:

Definition of "record." The bill would define the term "record" under the Act, for the first time, so as to include "machine-readable materials, or other information . . . regardless of physical form or characteristics." This definition is a modification of the one originally contained in S. 1782. It does not explicitly address computer software, digitized data, or any other particular type of electronic information.

Form of disclosure. S. 1782 contains two provisions pertaining to the form in which records are disclosed under the FOIA, each of which was modified by Senate action. The first provision addresses the circumstance in which records are maintained by an agency in more than one "form or format." It would require agencies to provide those records in any existing form or format that is chosen by the requester. The term "format" is an addition to the language of the bill.

The second such provision, as modified, would additionally require agencies to "make reasonable efforts" to provide records in a requested form or format, including an electronic one, "even where such records are not usually maintained but are available in such form or format." The term "available" is an addition to the language of the bill and is not further elaborated upon.

Electronic record searches. The bill would add a definition of the term "search" to the Act, defining it to expressly cover a "manual or automated review of agency records." This provision thus addresses the process by which agencies search through electronic databases for purposes of retrieving the parts of them that are responsive to FOIA requests. It contains no limitation on the extent to which an agency might be required to operate and manipulate an electronic record system in order to retrieve information according to the particular specifications of a FOIA request.

Electronic "reading room" availability. S. 1782 now contains several related provisions regarding records that are maintained by agencies for "reading room" inspection under subsection (a)(2) of the Act. An entirely new provision of the bill would require that all such records be made available to the public through "on-line" electronic access within one year of enactment or, "if computer telecommunications means are not available, by other electronic means" such as CD-ROM or computer disk. Other provisions of the bill, as modified, would require agencies to create, and to maintain under subsection (a)(2), indices of their "major information systems" and also descriptions of how "any new such system shall enhance agency operations" under the FOIA.

Lists and copies of FOIA disclosures. Another entirely new provision of S. 1782, contained in section 5 of the bill, would require agencies to create and maintain under subsection (a)(2) "[a] list of all records which are made available to any person" under the Act. Further, this provision would require agencies to identify all such records that either "have become or are likely to become the subject of subsequent requests" and to make them publicly available under subsection (a)(2) as well. The bill does not specify whether any such records might be required to be converted to some electronic form under subsection (a)(2).

Time limits. In its modified form, S. 1782 now contains an adjustment of the time limit for an agency's initial response to a FOIA request. It would increase that time period from ten working days to twenty working days. Another provision of the bill would authorize courts to award requesters both attorneys fees and "out-of-pocket expenses" incurred at the administrative level in any case in which the agency fails to comply with a time limit of the Act. (A previous provision of the bill that would have included civil penalties for such agency noncompliance was dropped.) S. 1782 also would authorize any agency found to be "in substantial compliance" with the Act's time limits to retain one-half of all FOIA fees collected, for purposes of FOIA administration.

Backlogs. Another new provision of the bill would specifically require an agency "to demonstrate to the court that the delay is warranted" whenever an agency backlog delays the agency's response to a FOIA request that proceeds to litigation. A further provision would specify that the Act's "exceptional circumstances" allowance for such backlog situations can no longer encompass any "delays that result from a predictable workload, including any ongoing agency backlog, in the ordinary course of processing requests for records." This latter provision is a modification of one originally contained in S. 1782.

Multitrack FIFO processing. Another entirely new provision added to S. 1782 would explicitly codify the administrative practice of handling FOIA requests on a first-in, first-out (FIFO) basis and also would endorse the use of a "multitrack system" for FOIA processing. Under this provision, an agency's multitrack FOIA-processing system would be divided into two tracks, consisting of "simple" and "complex" requests, with the latter defined as those requiring processing times of more than ten working days. This new provision also would specify that an agency's "due diligence" in responding to requests can be maintained where it processes records on a FIFO basis within multiple tracks and "can show that it has reasonably allocated resources to handle the processing for each track."

Expedited Access. S. 1782 now contains an expanded provision pertaining to the handling of requests for expedited access under the Act. It would require agencies to maintain procedures by which they can decide whether or not to grant expedited access, according to a "compelling need" standard, within five working days from the receipt of such a request. It also would provide for an administrative appeal structure, in which an agency's denial of such a request must be appealed within two working days (or seven working days if the agency fails to act within its initial five-day deadline), and for judicial review of such denials based upon the administrative record made before the agency.

As modified, this provision would define a "compelling need" for expedited access as existing where the failure to obtain it would pose a threat to life or personal safety; would "result in the loss of substantial due process rights"; or would "affect public assessment of the nature and propriety of actual or alleged governmental actions that are the subject of widespread, contemporaneous media coverage." (These standards follow those now used by the Department of Justice. See FOIA Update, Spring 1994, at 2.) This provision also would require a FOIA requester to demonstrate such "compelling need" for expedited access through a certification made under penalty of perjury.

Denial notification. The bill would require that all denials of requests for records under the Act specify "the total number of denied records and pages considered by the agency to have been responsive to the request."

Deletion specification. In a provision largely applicable to (but not limited to) records maintained in electronic form, the bill would require that wherever a deletion is made in a record otherwise released to a requester under the Act, "the extent of such deletion shall be indicated on the released portion of the record at the place in the record where such deletion is made." A modification to S. 1782 would likewise apply this requirement to any deletion that is made to records that are made available under subsection (a)(2) of the Act.

Specification of Exemption 3 statutes. The bill also would require each agencies to compile a "complete list" of all Exemption 3 statutes used by it, "together with a specific description of the scope of the information covered" by those statutes, and to regularly publish it in the Federal Register under subsection (a)(1) of the Act.

These provisions should be the subject of renewed attention by Congress, federal agencies, and members of the FOIA-requester community during the processes of future legislative consideration.

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Updated December 6, 2022