102d CONGRESS H.R. 1423 1st SESSION To amend the Freedom of Information Act to improve public access to Government information, and for other purposes. IN THE HOUSE OF REPRESENTATIVES March 13, 1991 Mr. Kleczka (for himself and Mr. Wise) introduced the following bill; which was referred to the Committee on Government Operations To amend the Freedom of Information Act to improve public access to Government information, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the "Freedom of Informa- 5 tion Public Access Improvement Act of 1991". 6 SEC. 2. FINDINGS. 7 The Congress finds that-- 8 (1) the Freedom of Information Act has served 9 an essential role in informing the public on the ac- 10 tivities of the Federal Government; identifying and 2 1 deterring Government waste, abuse, wrongdoing, and 2 Mismanagement; and disclosing significant informa- 3 tion regarding public health and safety, and the en- 4 vironment; 5 (2) the cost to the Federal Government of com- 6 pliance with the Freedom of Information Act has 7 been far outweighed by the public benefits resulting S from the Act; 9 (3) executive actions unreasonably limiting the 10 public disclosure of information generated, collected, 11 and maintained by the Federal Government have in- 12 creased the need for a strong and effective Freedom 13 of Information Act; and 14 (4) amendments are needed to make the Free- 15 dom of Information Act simpler and less expensive 16 for noncommercial interests and news organizations 17 to use, to provide for more meaningful sanctions for 18 its violation, to minimize delays in processing re- 19 quests under the Act, to discourage misuse of the 20 Act's exemptions by agencies and agency personnel, 21 to eliminate exemptions from the Act that serve no 22 legitimate governmental purpose, to provide for more 23 effective Congressional review of proposed exemp- 24 tions to the Act, and otherwise to ensure and en- 25 hance the effectiveness of the Act. *HR 1423 IH 3 1 TITLE I--AMENDMENTS TO THE FREEDOM OF 2 INFORMATION ACT 3 SEC. 101. RECORDKEEPING REQUIREMENTS. 4 (a) LOG OF REQUESTS AND RESPONSES.--Section 5 552(a) of title 5, United States Code, is amended by add- 6 ing at the end thereof the following new paragraph: 7 "(7) Each agency shall maintain for public inspection 8 (A) a log of requests received; (B) a current list of pending 9 requests showing the status of progress made toward com- 10 pliance; and (C) an index of all records disclosed pursuant 11 to this section.". 12 (b) Access And Retrieval of Records.--Section 13 552 of title 5, United States Code, is amended by adding 14 at the end thereof the following new subsection: 15 "(g) Each agency shall organize and maintain its 16 records in a manner which which will-- 17 "(1) make records easily accessible for conven- 18 ient use under this section; and 19 "(2) minimize the cost and difficulty of identi- 20 fying and retrieving records under this section.". 21 SEC. 102. FEES AND WAIVERS. 22 Section 552(a)(4)(A) of title 5, United States Code, 23 is amended-- 24 (1) in clause (ii)(II), by striking out "or a rep- 25 resentative of the news media;" and inserting the *HR 1423 IH 4 1 following: `a representative of the news media; or a 2 nonprofit organization that intends to make the in- 3 formation available to the news media, to any 4 branch or agency of Federal, State, or local govern- 5 ment, or to the public;"; 6 (2) in clause (iii)-- 7 (A) by inserting "(I)" after "if'; and 8 (B) by inserting before the period at the 9 end thereof the following: "; (II) the informa- 10 tion relates to a violation of law, inefficiency, or 11 administrative error by an agency; or (III) the 12 waiver or reduction of the fee is in the public 13 interest because furnishing the information pri- 14 marily benefits the general public"; 15 (3) by redesignating clause (vii) as clause (viii); 16 and 17 (4) by inserting after clause (vi) the following: 18 "(Vii) For purposes of clauses (ii) and (iii), the pub- 19 lication, reproduction, resale, or other dissemination of in- 20 formation obtained by any person under this section from 21 an agency is not a commercial use.". 22 SEC. 103. PENALTIES FOR AGENCY DELAY OR AGENCY 23 FAILURE TO COMPLY. 24 (a) PAYMENT OF REQUESTER'S EXPENSES.--Section 25 552(a)(4)(E) of title 5, United States Code, is amended *HR 1423 IH 5 1 by adding at the end thereof the following new sentence: 2 "The court may assess against the United States all out- 3 of-pocket expenses incurred by the requester, and reason- 4 able attorney fees incurred in the administrative process, 5 subsequent to the failure of any agency to comply with 6 the applicable time limit provisions of paragraph (6) of 7 this subsection.". 8 (b) Civil Penalty for Delay.--Such section is 9 further amended-- 10 (1) by inserting "(i) after "(E)"; and 11 (2) by adding at the end thereof the following: i2 "(ii) Any agency not in compliance with the time lim- 13 its set forth in this subsection shall demonstrate to a court 14 upon motion by a requester in the venue of the requester 15 of the information that the delay is warranted under the 16 circumstances. The court may assess against the United 17 States reasonable attorney fees and other litigation costs 18 reasonably incurred in any case under this section in 19 which the Government fails to sustain this burden. In ad- 20 dition, it shall be within the discretion of the court to 21 award the requester an amount not to exceed twenty-five 22 dollars for each day that the agency's response to his re- 23 quest exceeded the time limits set forth in paragraph (6) 24 of this section.". *HR 1423 IH 6 1 SEC. 104. SANCTIONS FOR AGENCY FAILURE TO COMPLY. 2 Paragraph (4)(F) of section 552(a) of title 5, United 3 States Code, is amended to read as follows: 4 "(F) Whenever the court issues a written finding that 5 circumstances raise questions whether agency personnel 6 acted arbitrarily or capriciously with respect to (i) the 7 withholding, destruction, removal, or alteration of a record 8 that was requested under this section, (ii) an estimate or 9 amount of a fee or the denial of a fee waiver or reduction, 10 or (iii) the denial of a request for expedited access the 11 Special Counsel shall promptly initiate a proceeding to de- 12 termine whether disciplinary action is warranted against 13 the officer or employee who was primarily responsible. 14 After investigation and consideration of the evidence sub- 15 mitted, the Special Counsel shall, within six months, sub- 16 mit his findings and recommendations to the head admin- 17 istrative authority of the agency concerned and shall send 18 copies of the findings and recommendations to the officer 19 or employee or his representative, the court, the requester, 20 the Committee on Government Operations of the House 21 of Representatives, and the Committee on the Judiciary 22 of the Senate. The administrative authority shall promptly 23 take the corrective action that the Special Counsel rec- 24 ommends and file a report with each such 25 Committee. *HR 1423 IH 7 1 SEC. 105. EXPEDITED ACCESS. 2 Paragraph (6) of section 552(a) of title 5, United 3 States Code, is amended by adding at the end thereof the 4 following new subparagraph: 5 "(D) Each agency shall promulgate regulations, pur- 6 suant to notice and receipt of public comment, providing 7 that upon receipt of a request for expedited access to 8 records and upon demonstration by the requester of a 9 compelling need for expedited access to records the agen- 10 cy shall determine within five days excepting Saturdays, 11 Sundays, and legal public holidays after the receipt of 12 such a request for expedited access whether to comply with 13 such request and shall immediately notify the person mak- 14 ing such request of such determination and the reasons 15 therefor, and of the right of such person to appear to the 16 head of the agency any adverse determination. A requester 17 whose request for expedited access has not been decided 18 within five days of its receipt by the agency or has been 19 denied shall not be required to exhaust administrative 20 remedies. An agency failing to comply with this time lim- 21 itation shall be subject to the provisions of section 22 552(a)(4)(E)(ii).". 23 SEC. 106. SEPARATE QUEUES FOR PROCESSING REQUESTS. 24 Paragraph (6) of section 552(a) of title 5, United 25 States Code, is further amended by adding at the end 26 thereof the following new subparagraph: *HR 1423 IH 8 1 "(E) Each agency shall include, as part of the regula- 2 tions implementing this section, pursuant to notice any 3 receipt of public comment, a detailed description of the 4 procedures used in the processing of requests under this 5 section. If a separate queue or a special procedure is used 6 in the processing of some categories of requests, the de- 7 scription shall identify the queue or procedure and shall 8 specify the criteria used for differentiating between re- 9 quests. ' '. 10 SEC. 107. REVISION OF EXEMPTIONS. 11 (a) REVISION OF CLASSIFIED INFORMATION EXEMP- 12 TION.--Paragraph (1) of section 552(b) of title 5, United 13 States Code, is amended to read as follows: 14 "(1) specifically authorized under criteria estab- 15 lished by an Executive order to be kept secret in the 16 interest of national defense or foreign policy and 17 are-- 18 "(A) in fact properly classified Pursuant to 19 such Executive order, 20 "(B) matters the disclosure of which could 21 reasonably be expected to cause identifiable 22 damage to the national defense or foreign policy 23 interests of the United States, and *HR 1423 IH 9 1 "(C) matters in which the need to protect 2 the information outweighs the public interest in 3 disclosure;". 4 (b) REVISION OF EXEMPTION FOR INTERNAL PER- 5 SONNEL RULES AND PRACTICES.--Paragraph (2) of such 6 section is amended to read as follows: 7 "(2) law enforcement manuals that are pre- 8 dominantly internal in nature to the extent that dis- 9 closure significantly risks circumvention of an agen- 10 cy investigation, a regulation, or a statute;". 11 (c) REVISION OF FINANCIAL REPORTS EXEMP- 12 TION.--Paragraph (8) of such section is amended to read 13 as follows: 14 "(8) contained in or related to examination, op- 15 erating, or condition reports prepared by, on behalf 16 of, or for the use of an agency responsible for the 17 regulation or supervision of financial institutions if 18 disclosure would directly injure the financial stability 19 of an institution; or" 20 (d) REPORTING ON USE OF STATUTORY EXEMP- 21 TIONS UNDER SUBSECTION (b)(3).--Paragraph (1) of sec- 22 tion 552(a) of title 5, United States Code, is amended-- 23 (1) by striking out "and" at the end of sub- 24 paragraph (D); HR 1423 IH---2 10 1 (2) by striking out the period at the end of sub- 2 Paragraph (E) and inserting in lieu thereof "; and"; 3 and 4 (3) by adding at the end thereof the following 5 new subparagraph: 6 "(F) a complete list of all statutes that the 7 agency head or general counsel has determined au- 8 thorize the agency to withhold information under 9 subsection (b)(3) of this section, together with a spe- 10 cific description of the scope of the information cov- 11 ered.". 12 (e) REPORTING ON PROPOSED STATUTORY EXEMP- 13 TIONS.--Section 552 of title 5, United States Code, 14 amended by adding at the end thereof the following new 15 subsection: 16 "(h) An agency, upon receipt of notification of the 17 introduction of any bill or resolution into the Senate or 18 House of Representatives constituting authority for the 19 agency to withhold information under subsection (b)(3) of 20 this section shall promptly notify the Committee on Gov- 21 ernment Operations of the House of Representatives and 22 the Committee on the Judiciary of the Senate, unless the 23 agency determines that written notice has otherwise been 24 given to each such Committee.". *HR 1423 IH 11 1 SEC. 108. PROHIBITION ON USE OF ACT TO WITHHOLD IN- 2 FORMATION TO CONCEAL VIOLATIONS OF 3 LAW, INEFFICIENCY, OR ADMINISTRATIVE 4 ERROR 5 Section 552(d) of title 5, United States Code, is 6 amended by adding at the end thereof the following new 7 sentence: "This section is not authority to withhold infor- 8 mation in order to conceal violations of law, inefficiency, 9 or administrative error by an agency.". 10 SEC. 109. OVERSIGHT OF AGENCY COMPLIANCE. 11 (a) IN GENERAL---Subsection (e) of section 552 of 12 title 5, United States Code, is amended to read as follows: 13 "(e)(1) The Archivist of the United States shall su- 14 pervise agency compliance with this section. The Archivist 15 may issue interpretations binding on other agencies pursu- 16 ant to this section and provide advisory opinions to agen- 17 cies and requesters. 18 "(2) On or before December 1 of each calendar year, 19 each agency shall, in accordance with standards promul- 20 gated by the Archivist, submit a report covering the pre- 21 ceding fiscal year to the Speaker of the House of Rep- 22 resentatives and the President of the Senate for referral 23 to the appropriate committees of the Congress. The report 24 shall include-- 25 "(A) the number of determinations made by 26 such agency not to comply with requests for records *HR 1423 IH 12 1 made to such agency under subsection (a) and the 2 reasons for each such determination; 3 "(B) the number of appeals made by persons 4 under subsection (a)(6), the result of such appeals 5 and the reason for the action upon each appeal that 6 results in a denial of information; 7 "(C) the names and titles or positions of each 8 person responsible for the denial of records re- 9 quested under this section, and the number of in- 10 stances of participation for each; 11 "(D) the results of each proceeding conducted 12 pursuant to subsection (a)(4)(E), including a report 13 of the disciplinary action taken, or an explanation of 14 why disciplinary action was not taken; 15 "(E) a copy of every change in any rule made 16 by such agency regarding this section; 17 "(F) the total amount of fees collected by the 18 agency for making records available under this sec- 19 tion; 20 "(G) the number of fee waivers requested and 21 the number of fee waiver requests granted; 22 "(H) the number of requests received, proc- 23 essed, and pending at the end of the year; 24 "(I) the average length of the to comply with 25 a request and with an appeal; *HR 1423 IH 13 1 "(J) the number of requests and appeals that 2 were responded to within the time limits specified in 3 this section and the number that were not; 4 "(K) other information required by the Archi- 5 vist; 6 "(L) any other information indicating efforts to 7 administer fully this section; and 8 "(M) if an agency maintains a separate queue 9 for some categories of requests, a separate statement 10 of the information required by subparagraphs (H), 11 (I), (J), and (K) of this paragraph shall be included 12 with respect to each such queue. 13 "(3) The Archivist shall submit an annual report on 14 or before December 1 of each calendar year which shall 15 include, for the prior fiscal year, a listing of the number 16 of cases arising under this section, the exception involved 17 in each case, the disposition of such case, and the cost, 18 fees, and penalties assessed under subsections (a)(4) (E) 19 and (F). Such report shall also include an explanation of 20 the interpretations issued during the preceding year pur- 21 suant to paragraph (1) of this subsection and a descrip- 22 tion of the efforts undertaken by the National Archives 23 and Records Administration to encourage agency compli- 24 ance with this section.". *HR 1423 IH 14 1 (b) TIME FOR SUBMISSION OF REPORTS.--Not- 2 withstanding the amendment made by subsection (a) of 3 this section, the reports required by section 552(e) of title 4 5, United States Code-- 5 (1) shall be submitted on March 1, 1992, and 6 shall cover the preceding calendar year; and 7 (2) shall be "submitted on December 1, 1992, 8 and shall cover the period from January 1, 1992, 9 through September 30, 1992. 10 SEC. 110. DEFINITIONS. 11 Subsection (f) of section 552 of title 5, United States 12 Code, is amended to read as follows: 13 "(f) For Purposes of this section-- 14 "(1) the term `agency' includes any executive 15 department, military department, Government cor- 16 poration, Government controlled corporation, or 17 other establishment in the executive branch of the 18 Government (including the Executive Office of the 19 President), any independent regulatory agency, and 20 the Smithsonian Institution; 21 "(2) the term `agency' includes-- 22 "(A)computerized, digitized, and elec- 23 tronic information, regardless of the medium by 24 which it is stored; and *HR 1423 IH 15 1 "(B) an appointment calendar and a tele- 2 phone log of an officer or employee of an agen- 3 cy unless such calendar or such log is person- 4 ally maintained by the officer or employee solely 5 for his own use; and 6 "(3) the term `search' includes a reasonable 7 amount of computer programming necessary to iden- 8 tify records.". 9 TITLE II--RECOVERY OF WRONGFULLY" 10 REMOVED AGENCY FILES 11 SEC. 201. PRIVATE CIVIL ACTIONS TO RECOVER AGENCY 12 RECORDS REMOVED IN VIOLATION OF CHAP- 13 TER 29 OF TITLE 44, UNITED STATES CODE. 14 Section 2905 of title 44, United States Code, is 15 amended by adding at the end thereof the following new 16 subsection: 17 "(c)(1) Except as provided in paragraphs (2) and (3) 18 any person may commence a civil action on his own behalf 19 against any person (including the United States and any 20 other governmental instrumentality or agency to the ex- 21 tent permitted by the eleventh amendment to the Con- 22 stitution) who is alleged to be in possession of any records 23 removed from an agency in violation of the provisions of 24 this chapter or of standards, procedures, or guidelines pro- 25 mulgated pursuant to such provisions. The district courts *HR 1423 IH 16 1 shall have Jurisdiction, without regard to the amount in 2 controversy or the citizenship of the parties, to order the 3 return of any such records or to issue any other order; 4 necessary to obtain compliance with such provisions 5 standards, procedures, or guidelines. 6 "(2) No action may be commenced under paragraph 7 (1) prior to sixty days after the plaintiff has given notice 8 of the alleged violation (A) to the Archivist, (B) to the 9 head of the agency from which such records are alleged 10 to have been removed, (C) to the Attorney General, and 11 (D) to the person who is alleged to have custody of such 12 records. 13 "(3) No action may be commenced under paragraph 14 (1) if, within sixty days after receipt of the notice required 15 by paragraph (2), the Attorney General commences and 16 is diligently prosecuting an action for the recovery of the 17 records to which such notice pertains, but if such an action 18 is instituted the person giving such notice may intervene 19 as a matter of right in such action. 20 "(4) In any action under this subsection, the Archi- 21 vist, if not a party, may intervene as a matter of right. 22 "(5) The court, in issuing any final order in any ac- 23 tion brought pursuant to paragraph (1) of this subsection, 24 may award costs of litigation (including reasonable attor- *HR 1423 IH 17 1 ney fees) to any party, whenever the court determines such 2 award is appropriate.". 3 SEC. 202. PRIVATE CIVIL ACTIONS TO RECOVER AGENCY 4 RECORDS REMOVED IN VIOLATION OF CHAP- 5 TER 31 OF TITLE 44, UNITED STATES CODE. 6 Section 3106 of title 44, United States Code, is- 7 amended by designating the existing paragraph as sub 8 section (a) and by adding at the end thereof the fol- 9 lowing new subsection: 10 "(b)(1) Except as provided in paragraphs (2) and 11 (3), any person may commence a civil action on his own 12 behalf against any person (including the United States 13 and any other governmental instrumentality or agency to 14 the extent permitted by the eleventh amendment to the 15 Constitution) who is alleged to be in possession of any 16 records removed from an agency in violation of the provi- 17 sions of this chapter or of standards, procedures, or guide- 18 lines promulgated pursuant to such provisions. The dis- 19 trict courts shall have jurisdiction, without regard to the 20 amount in controversy or the citizenship of the parties, 21 to order the return of any such records or to issue any 22 other orders necessary to obtain compliance with such pro- 23 visions, standards, procedures, or guidelines. 24 "(2) No action may be commenced under paragraph 25 (1) prior to sixty days after the plaintiff has given notice *HR 1423 IH 18 1 of the alleged violation (A) to the Archivist, (B) to the 2 head of the agency from which such records are alleged 3 to have been removed, (C) to the Attorney General, and 4 (D) to the person who is alleged to have custody of such 5 records. 6 "(3) No action may be commenced under paragraph 7 (1) if, within sixty days after receipt of the notice required 8 by paragraph (2), the Attorney General commences and 9 is diligently prosecuting an action for the recovery of the 10 records to which such notice pertains, but if such an action 11 is instituted the person giving such notice ma@ intervene 12 as a matter of right in such action. 13 "(4) In any action under this subsection, the Archi- 14 vist, if not a party, may intervene as a matter of right. 15 "(5) The court, in issuing any final order in any ac- 16 tion brought pursuant to paragraph (1) of this subsection 17 may award costs of litigation (including reasonable attor- 18 ney fees) to any party, whenever the court determines such 19 award is appropriate.". 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