[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 849 Engrossed in Senate (ES)]
110th CONGRESS
1st Session
S. 849
_______________________________________________________________________
AN ACT
To promote accessibility, accountability, and openness in Government by
strengthening section 552 of title 5, United States Code (commonly
referred to as 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 ``Openness Promotes Effectiveness in
our National Government Act of 2007'' or the ``OPEN Government Act of
2007''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Freedom of Information Act was signed into law on
July 4, 1966, because the American people believe that--
(A) our constitutional democracy, our system of
self-government, and our commitment to popular
sovereignty depends upon the consent of the governed;
(B) such consent is not meaningful unless it is
informed consent; and
(C) as Justice Black noted in his concurring
opinion in Barr v. Matteo (360 U.S. 564 (1959)), ``The
effective functioning of a free government like ours
depends largely on the force of an informed public
opinion. This calls for the widest possible
understanding of the quality of government service
rendered by all elective or appointed public officials
or employees.'';
(2) the American people firmly believe that our system of
government must itself be governed by a presumption of
openness;
(3) the Freedom of Information Act establishes a ``strong
presumption in favor of disclosure'' as noted by the United
States Supreme Court in United States Department of State v.
Ray (502 U.S. 164 (1991)), a presumption that applies to all
agencies governed by that Act;
(4) ``disclosure, not secrecy, is the dominant objective of
the Act,'' as noted by the United States Supreme Court in
Department of Air Force v. Rose (425 U.S. 352 (1976));
(5) in practice, the Freedom of Information Act has not
always lived up to the ideals of that Act; and
(6) Congress should regularly review section 552 of title
5, United States Code (commonly referred to as the Freedom of
Information Act), in order to determine whether further changes
and improvements are necessary to ensure that the Government
remains open and accessible to the American people and is
always based not upon the ``need to know'' but upon the
fundamental ``right to know''.
SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.
Section 552(a)(4)(A)(ii) of title 5, United States Code, is amended
by adding at the end the following:
``The term `a representative of the news media' means any person or
entity that gathers information of potential interest to a segment of
the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
`news' means information that is about current events or that would be
of current interest to the public. Examples of news-media entities are
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as
disseminators of `news') who make their products available for purchase
by or subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
shall be considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the journalist
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Government may also consider the past publication
record of the requester in making such a determination.''.
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.
Section 552(a)(4)(E) of title 5, United States Code, is amended--
(1) by inserting ``(i)'' after ``(E)''; and
(2) by adding at the end the following:
``(ii) For purposes of this section, a
complainant has substantially prevailed if the
complainant has obtained relief through
either--
``(I) a judicial order, or an enforceable written
agreement or consent decree; or
``(II) a voluntary or unilateral change in position
by the agency, provided that the complainant's claim is
not insubstantial.''.
SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS REJECTIONS OF
REQUESTS.
Section 552(a)(4)(F) of title 5, United States Code, is amended--
(1) by inserting ``(i)'' after ``(F)''; and
(2) by adding at the end the following:
``(ii) The Attorney General shall--
``(I) notify the Special Counsel of each civil action
described under the first sentence of clause (i); and
``(II) annually submit a report to Congress on the number
of such civil actions in the preceding year.
``(iii) The Special Counsel shall annually submit a report to
Congress on the actions taken by the Special Counsel under clause
(i).''.
SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.
(a) Time Limits.--
(1) In General.--Section 552(a)(6)(A)(i) of title 5, United
States Code, is amended by striking ``determination;'' and
inserting ``determination. The 20-day period shall commence on
the date on which the request is first received by the
appropriate component of the agency, but in any event no later
than ten days after the request is first received by any
component of the agency that is designated in the agency's FOIA
regulations to receive FOIA requests. The 20-day period shall
not be tolled by the agency except--
``(I) that the agency may make one request to the requester
for information and toll the 20-day period while it is awaiting
such information that it has reasonably requested from the FOIA
requester; or
``(II) if necessary to clarify with the requester issues
regarding fee assessment. In either case, the agency's receipt
of the requester's response to the agency's request for
information or clarification ends the tolling period;''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of enactment of this
Act.
``(b) Compliance with Time Limits.--
(1)(A) Section 552(a)(4)(A) of title 5, United States Code,
is amended by adding at the end the following:
``(viii) an agency shall not assess search
fees under this subparagraph if the agency
fails to comply with any time limit under
paragraph (6), provided that no unusual or
exceptional circumstances (as those terms are
defined for purposes of paragraphs (6)(B) and
(C), respectively) apply to the processing of
the request.''.
(B) Section 552(a)(6)(B)(ii) of title 5, United States
Code, is amended by inserting between the first and second
sentences the following: ``To aid the requester, each agency
shall make available its FOIA Public Liaison, who shall assist
in the resolution of any disputes between the requester and the
agency.''.
(2) Effective date and application.--The amendment made by
this subsection shall take effect 1 year after the date of
enactment of this Act and apply to requests for information
under section 552 of title 5, United States Code, filed on or
after that effective date.
SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND STATUS
INFORMATION.
(a) In General.--Section 552(a) of title 5, United States Code, is
amended by adding at the end the following:
``(7) Each agency shall--
``(A) establish a system to assign an individualized
tracking number for each request received that will take longer
than ten days to process and provide to each person making a
request the tracking number assigned to the request; and
``(B) establish a telephone line or Internet service that
provides information about the status of a request to the
person making the request using the assigned tracking number,
including--
``(i) the date on which the agency originally
received the request; and
``(ii) an estimated date on which the agency will
complete action on the request.''.
(b) Effective Date and Application.--The amendment made by this
section shall take effect 1 year after the date of enactment of this
Act and apply to requests for information under section 552 of title 5,
United States Code, filed on or after that effective date.
SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS.
Section 552(b) of title 5, United States Code, is amended by
striking paragraph (3) and inserting the following:
``(3) specifically exempted from disclosure by statute
(other than section 552b of this title), provided that such
statute--
``(A) if enacted prior to the date of enactment of
the OPEN Government Act of 2007, requires that the
matters be withheld from the public in such a manner as
to leave no discretion on the issue, or establishes
particular criteria for withholding or refers to
particular types of matters to be withheld; or
``(B) if enacted after the date of enactment of the
OPEN Government Act of 2007, specifically cites to the
Freedom of Information Act.''.
SEC. 9. REPORTING REQUIREMENTS.
(a) In General.--Section 552(e)(1) of title 5, United States Code,
is amended--
(1) in subparagraph (B)(ii), by inserting after the first
comma ``the number of occasions on which each statute was
relied upon,'';
(2) in subparagraph (C), by inserting ``and average'' after
``median'';
(3) in subparagraph (E), by inserting before the semicolon
``, based on the date on which the requests were received by
the agency'';
(4) by redesignating subparagraphs (F) and (G) as
subparagraphs (N) and (O), respectively; and
(5) by inserting after subparagraph (E) the following:
``(F) the average number of days for the agency to
respond to a request beginning on the date on which the
request was received by the agency, the median number
of days for the agency to respond to such requests, and
the range in number of days for the agency to respond
to such requests;
``(G) based on the number of business days that
have elapsed since each request was originally received
by the agency--
``(i) the number of requests for records to
which the agency has responded with a
determination within a period up to and
including 20 days, and in 20-day increments up
to and including 200 days;
``(ii) the number of requests for records
to which the agency has responded with a
determination within a period greater than 200
days and less than 301 days;
``(iii) the number of requests for records
to which the agency has responded with a
determination within a period greater than 300
days and less than 401 days; and
``(iv) the number of requests for records
to which the agency has responded with a
determination within a period greater than 400
days;
``(H) the average number of days for the agency to
provide the granted information beginning on the date
on which the request was originally filed, the median
number of days for the agency to provide the granted
information, and the range in number of days for the
agency to provide the granted information;
``(I) the median and average number of days for the
agency to respond to administrative appeals based on
the date on which the appeals originally were received
by the agency, the highest number of business days
taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by
the agency to respond to an administrative appeal;
``(J) data on the 10 active requests with the
earliest filing dates pending at each agency, including
the amount of time that has elapsed since each request
was originally received by the agency;
``(K) data on the 10 active administrative appeals
with the earliest filing dates pending before the
agency as of September 30 of the preceding year,
including the number of business days that have elapsed
since the requests were originally received by the
agency;
``(L) the number of expedited review requests that
are granted and denied, the average and median number
of days for adjudicating expedited review requests, and
the number adjudicated within the required 10 days;
``(M) the number of fee waiver requests that are
granted and denied, and the average and median number
of days for adjudicating fee waiver determinations;''.
(b) Applicability to Agency and Each Principal Component of the
Agency.--Section 552(e) of title 5, United States Code, is amended--
(1) by redesignating paragraphs (2) through (5) as
paragraphs (3) through (6), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) Information in each report submitted under paragraph
(1) shall be expressed in terms of each principal component of
the agency and for the agency overall.''.
(c) Public Availability of Data.--Section 552(e)(3) of title 5,
United States Code, (as redesignated by subsection (b) of this section)
is amended by adding after the period ``In addition, each agency shall
make the raw statistical data used in its reports available
electronically to the public upon request.''.
SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE ENTITY.
Section 552(f) of title 5, United States Code, is amended by
striking paragraph (2) and inserting the following:
``(2) `record' and any other term used in this section in
reference to information includes--
``(A) any information that would be an agency
record subject to the requirements of this section when
maintained by an agency in any format, including an
electronic format; and
``(B) any information described under subparagraph
(A) that is maintained for an agency by an entity under
Government contract, for the purposes of records
management.''.
SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.
(a) In General.--Section 552 of title 5, United States Code, is
amended by adding at the end the following:
``(h) There is established the Office of Government lnformation
Services within the National Archives and Records Administration. The
Office of Government Information Services shall review policies and
procedures of administrative agencies under section 552, shall review
compliance with section 552 by administrative agencies, and shall
recommend policy changes to Congress and the President to improve the
administration of section 552. The Office of Government Information
Services shall offer mediation services to resolve disputes between
persons making requests under section 552 and administrative agencies
as a non-exclusive alternative to litigation and, at the discretion of
the Office, may issue advisory opinions if mediation has not resolved
the dispute.
``(i) The Government Accountability Office shall conduct audits of
administrative agencies on the implementation of section 552 and issue
reports detailing the results of such audits.
``(j) Each agency shall--
``(1) Designate a Chief FOIA Officer who shall be a senior
official of such agency (at the Assistant Secretary or
equivalent level).
``(a) General Duties.--The Chief FOIA Officer of each agency shall,
subject to the authority of the head of the agency--
``(A) have agency-wide responsibility for efficient
and appropriate compliance with the FOIA;
``(B) monitor FOIA implementation throughout the
agency and keep the head of the agency, the chief legal
officer of the agency, and the Attorney General
appropriately informed of the agency's performance in
implementing the FOIA;
``(C) recommend to the head of the agency such
adjustments to agency practices, policies, personnel,
and funding as may be necessary to improve its
implementation of the FOIA;
``(D) review and report to the Attorney General,
through the head of the agency, at such times and in
such formats as the Attorney General may direct, on the
agency's performance in implementing the FOIA; and
``(E) facilitate public understanding of the
purposes of the FOIA's statutory exemptions by
including concise descriptions of the exemptions in
both the agency's FOIA handbook issued under section
552(g) of title 5, United States Code, and the agency's
annual FOIA report, and by providing an overview, where
appropriate, of certain general categories of agency
records to which those exemptions apply.
``(2) Designate one or more FOIA Public Liaisons who shall
be appointed by the Chief FOIA Officer.
``(b) General Duties.--FOIA Public Liaisons shall report to the
agency Chief FOIA Officer and shall serve as supervisory officials to
whom a FOIA requester can raise concerns about the service the FOIA
requester has received from the FOIA Requester Center, following an
initial response from the FOIA Requester Center Staff. FOIA Public
Liaisons shall be responsible for assisting in reducing delays,
increasing transparency and understanding of the status of requests,
and assisting in the resolution of disputes.
``(c) Effective Date.--The amendments made by this section shall
take effect on the date of enactment of this Act.''.
SEC. 12. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.
Not later than 1 year after the date of enactment of this Act, the
Office of Personnel Management shall submit to Congress a report that
examines--
(1) whether changes to executive branch personnel policies
could be made that would--
(A) provide greater encouragement to all Federal
employees to fulfill their duties under section 552 of
title 5, United States Code; and
(B) enhance the stature of officials administering
that section within the executive branch;
(2) whether performance of compliance with section 552 of
title 5, United States Code, should be included as a factor in
personnel performance evaluations for any or all categories of
Federal employees and officers;
(3) whether an employment classification series specific to
compliance with sections 552 and 552a of title 5, United States
Code, should be established;
(4) whether the highest level officials in particular
agencies administering such sections should be paid at a rate
of pay equal to or greater than a particular minimum rate; and
(5) whether other changes to personnel policies can be made
to ensure that there is a clear career advancement track for
individuals interested in devoting themselves to a career in
compliance with such sections; and
(6) whether the executive branch should require any or all
categories of Federal employees to undertake awareness training
of such sections.
Passed the Senate August 3, 2007.
Attest:
Secretary.
110th CONGRESS
1st Session
S. 849
_______________________________________________________________________
AN ACT
To promote accessibility, accountability, and openness in Government by
strengthening section 552 of title 5, United States Code (commonly
referred to as the Freedom of Information Act), and for other purposes.