ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT OF 1995

Congressional Documents

Calendar No. 406
104th Congress Report
SENATE
2d Session 104-272
_______________________________________________________________________
ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT OF 1995
_______
May 15, 1996.--Ordered to be printed
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1090]
The Committee on the Judiciary, to which was referred the
bill (S. 1090) to amend title 5, United States Code, section
552, commonly called the Freedom of Information Act, to provide
for public access to information in an electronic format, and
for other purposes, having considered the same, reports
favorably thereon and recommends that the bill, as amended, do
pass.
CONTENTS
Page
I. Explanation of amendment.........................................4
II. Purpose..........................................................5
III. Legislative history..............................................5
IV. Vote of the committee............................................6
V. Discussion.......................................................6
VI. Detailed discussion of the bill..................................9
VII. Regulatory impact statement.....................................20
VIII.Cost estimate...................................................20
IX. Additional views of Senator Leahy...............................23
X. Changes in existing law.........................................33
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Freedom of Information
Improvement Act of 1996''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) the purpose of the Freedom of Information Act is to
require agencies of the Federal Government to make certain
agency information available for public inspection and copying
and to establish and enable enforcement of the right of any
person to obtain access to the records of such agencies
(subject to statutory exemptions) for any public or private
purpose;
(2) 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;
(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 agency records
and information; and
(6) Government agencies should use new technology to enhance
public access to agency records and information.
(b) Purposes.--The purposes of this Act are to--
(1) foster democracy by ensuring public access to agency
records and 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.
SEC. 3. PUBLIC INFORMATION AVAILABILITY.
Section 552(a)(1) of title 5, United States Code, is amended--
(1) in the matter before subparagraph (A) by inserting
``including by computer telecommunications, or if computer
telecommunications means are not available, by other electronic
means,'' after ``Federal Register'';
(2) by striking out ``and'' at the end of subparagraph (D);
(3) by redesignating subparagraph (E) as subparagraph (F);
and
(4) by inserting after subparagraph (D) the following new
subparagraph:
``(E) 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''.
SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEX OF
RECORDS MADE AVAILABLE TO THE PUBLIC.
Section 552(a)(2) of title 5, United States Code, is amended--
(1) in the matter before subparagraph (A) by inserting ``,
including, within 1 year after the date of the enactment of the
Electronic Freedom of Information Improvement Act of 1996, by
computer telecommunications, or if computer telecommunications
means are not available, by other electronic means,'' after
``copying'';
(2) in subparagraph (B) by striking out ``and'' after the
semicolon;
(3) by adding after subparagraph (C) the following new
subparagraphs:
``(D) an index of all major information systems
containing agency records regardless of form or format
unless such an index is provided as otherwise required
by law;
``(E) a description of any new major information
system with a statement of how such system shall
enhance agency operations under this section;
``(F) an index of all records which are made
available to any person under paragraph (3) of this
subsection; and
``(G) copies of all records, regardless of form or
format, which because of the nature of their subject
matter, have become or are likely to become the subject
of subsequent requests for substantially the same
records under paragraph (3) of this subsection;'';
(4) in the second sentence by striking out ``or staff manual
or instruction'' and inserting in lieu thereof ``staff manual,
instruction, or index or copies of records, which are made
available under paragraph (3) of this subsection''; and
(5) in the third sentence by inserting ``and the extent of
such deletion shall be indicated on the portion of the record
which is made available or published at the place in the record
where such deletion was made'' after ``explained fully in
writing''.
SEC. 5. HONORING FORMAT REQUESTS.
Section 552(a)(3) of title 5, United States Code, is amended by--
(1) inserting ``(A)'' after ``(3)'';
(2) inserting ``(A) through (F)'' after ``under paragraphs
(1) and (2)'';
(3) striking out ``(A) reasonably'' and inserting in lieu
thereof ``(i) reasonably'';
(4) striking out ``(B)'' and inserting in lieu thereof
``(ii)''; and
(5) adding at the end thereof the following new
subparagraphs:
``(B) An agency shall, as requested by any person, provide
records in any form or format in which such records are
maintained by that agency.
``(C) An agency shall make reasonable efforts to search for
records in electronic form or format and provide records in the
form or format requested by any person, including in an
electronic form or format, even where such records are not
usually maintained but are available in such form or format.''.
SEC. 6. DELAYS.
(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) Demonstration of Circumstances for Delay.--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 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 set forth under
paragraph (6) (B) or (C) of this subsection.''.
(c) Period for Agency Decision To Comply With Request.--Section
552(a)(6)(A)(i) is amended by striking out ``ten days'' and inserting
in lieu thereof ``twenty days''.
(d) Agency Backlogs.--Section 552(a)(6)(C) of title 5, United States
Code, is amended by inserting after the second sentence the following:
``As used in this subparagraph, for requests submitted pursuant to
paragraph (3) after the date of the enactment of the Electronic Freedom
of Information Improvement Act of 1996, the term `exceptional
circumstances' means circumstances that are unforeseen and shall not
include delays that result from a predictable workload, including any
ongoing agency backlog, in the ordinary course of processing requests
for records.''.
(e) Notification of Denial.--The last 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) Multitrack FIFO Processing and Expedited Access.--Section
552(a)(6) of title 5, United States Code, is amended by adding at the
end thereof the following new subparagraphs:
``(D)(i) Each agency shall adopt a first-in, first-out
(hereafter in this subparagraph referred to as FIFO) processing
policy in determining the order in which requests are
processed. The agency may establish separate processing tracks
for simple and complex requests using FIFO processing within
each track.
``(ii) For purposes of such a multitrack system--
``(I) a simple request shall be a request requiring
10 days or less to make a determination on whether to
comply with such a request; and
``(II) a complex request shall be a request requiring
more than 10 days to make a determination on whether to
comply with such a request.
``(iii) A multitrack system shall not negate a claim of due
diligence under subparagraph (C), if FIFO processing within
each track is maintained and the agency can show that it has
reasonably allocated resources to handle the processing for
each track.
``(E)(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
showing by the person making such request of a compelling need
for expedited access to records, the agency determine within 10
days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of such a request, whether to comply with
such request. A request for records to which the agency has
granted expedited access shall be processed as soon as
practicable. A request for records to which the agency has
denied expedited access shall be processed within the time
limits under paragraph (6) of this subsection.
``(ii) A person whose request for expedited access has not
been decided within 10 days of its receipt by the agency or has
been denied shall be required to exhaust administrative
remedies. A request for expedited access which has not been
decided may be appealed to the head of the agency within 15
days (excepting Saturdays, Sundays, and legal public holidays)
after its receipt by the agency. A request for expedited access
that has been denied by the agency may be appealed to the head
of the agency within 5 days (excepting Saturdays, Sundays, and
legal public holidays) after the person making such request
receives notice of the agency's denial. If an agency head has
denied, affirmed a denial, or failed to respond to a timely
appeal of a request for expedited access, a court which would
have jurisdiction of an action under paragraph (4)(B) of this
subsection may, upon complaint, require the agency to show
cause why the request for expedited access should not be
granted, except that such review shall be limited to the record
before the agency.
``(iii) The burden of demonstrating a compelling need by a
person making a request for expedited access may be met by a
showing, which such person certifies under penalty of perjury
to be true and correct to the best of such person's knowledge
and belief, that failure to obtain the requested records within
the timeframe for expedited access under this paragraph would--
``(I) threaten an individual's life or safety;
``(II) result in the loss of substantial due process
rights and the information sought is not otherwise
available in a timely fashion; or
``(III) affect public assessment of the nature and
propriety of actual or alleged governmental actions
that are the subject of widespread, contemporaneous
media coverage.''.
SEC. 7. COMPUTER REDACTION.
Section 552(b) of title 5, United States Code, is amended by
inserting before the period in the sentence following paragraph (9) the
following: ``, and the extent of such deletion shall be indicated on
the released portion of the record at the place in the record where
such deletion was made''.
SEC. 8. DEFINITIONS.
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' means all books, papers, maps,
photographs, machine-readable materials, or other information
or documentary materials, regardless of physical form or
characteristics, but does not include--
``(A) library and museum material acquired or
received and preserved solely for reference or
exhibition purposes;
``(B) extra copies of documents preserved solely for
convenience of reference;
``(C) stocks of publications and of processed
documents; or
``(D) computer software which is obtained by an
agency under a licensing agreement prohibiting its
replication or distribution; and
``(3) the term `search' means a manual or automated review of
agency records that is conducted for the purpose of locating
those records which are responsive to a request under
subsection (a)(3)(A) of this section.''.
I. Explanation of Amendment
Inasmuch as all of the text of S. 1090 after the enacting
clause was stricken and new language was incorporated as a
single amendment, the contents of this report constitute an
explanation of the amendment made by the Committee on the
Judiciary.
II. Purpose
The Freedom of Information Act (FOIA) makes Government
information available, with certain exceptions, to anyone who
requests it. The statute is consistent with our democratic form
of government by furthering the interests of citizens in
knowing what their Government is doing.
Over the 30 years of its existence, the FOIA has led to
numerous disclosures of waste and fraud in the Government.
Today, the FOIA is in the midst of a new challenge. The
phenomenon of Federal executive department and agency records
being produced and retained in electronic formats has grown at
a fast rate during the past several years as Government use of
personal computers and digital storage media, such as CD-ROM's
(compact disk read-only memory), has become more widespread.
Agency records are no longer created exclusively on pieces of
paper and placed in filing cabinets. Computers make it easier
and more efficient to manage the tremendous amount of
information collected, stored, and used by the Government.
The FOIA was created at a time when agency records were
predominantly produced on paper. The efficient operation of the
FOIA requires that the form or format of an agency record
constitutes no impediment to the public accessibility of
requested information. Furthermore, the electronic information
technology currently being used by executive departments and
agencies should be applied in a manner that promotes efficiency
in responding to FOIA requests. This objective includes using
technology to provide requesters with information in the form
most useful to them.
An underlying goal of S. 1090 is to encourage electronic
access to Government information available under the FOIA,
including requests made pursuant to section 552(a)(3). This
shall make it easier for citizens to access Government
information on a timely basis, and shall further efficient
Government agency compliance with the FOIA.
S. 1090, the Electronic Freedom of Information Improvement
Act of 1996, amends the FOIA to address these considerations
and other information access issues prompted by the electronic
information phenomenon.
III. Legislative History
A bill to clarify the application of the FOIA to agency
records in electronic forms or formats, S. 1940, the Electronic
Freedom of Information Improvement Act of 1991, was introduced
by Senator Patrick Leahy for himself and Senator Hank Brown on
November 7, 1991. It was referred to the Committee on the
Judiciary, and a hearing on the bill was held by the
Subcommittee on Technology and the Law on April 30, 1992.
Testifying before the Subcommittee was Steven R.
Schlesinger, Director, Office of Policy Development, Department
of Justice, accompanied by Daniel Metcalfe, Co-director, Office
of Information and Privacy, Department of Justice. The
Subcommittee also received testimony from a panel of witnesses,
which included Peter Prichard, editor, USA Today, appearing on
behalf of the American Newspaper Publishers Association,
American Society of Newspaper Editors, Society of Professional
Journalists/Sigma Delta Chi, National Newspaper Association,
National Association of Broadcasters, Radio-Television News
Directors Association, and Reporters Committee for Freedom of
the Press; Scott Marshall, director, Governmental Relations
Department, American Foundation for the Blind; Sybil McShane,
director of Library and Information Services, Vermont State
Department of Libraries; and Thomas M. Susman, a practicing
attorney with Ropes & Gray, appearing on behalf of the American
Bar Association.\1\ The Subcommittee took no further action on
S. 1940 prior to the final adjournment of the 102d Congress.
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\1\ The Electronic Freedom of Information Improvement Act: Hearing
before the Subcommittee on Technology and the Law of the Committee on
the Judiciary, 102d Cong., 2d sess. (1992) (hereafter ``1992
Hearing'').
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A related bill, S. 1939, the Freedom of Information
Improvement Act of 1991, was also introduced by Senator Leahy
on November 7, 1991. This bill contained amendments to the FOIA
concerning matters other than agency records in electronic
forms or formats. S. 1939 was also referred to the Committee on
the Judiciary, but no action was taken on it during the 102d
Congress.
A slightly modified version of S. 1940 was introduced by
Senator Leahy for himself and Senator Brown on November 22,
1993, as S. 1782, the Electronic Freedom of Information
Improvement Act of 1993. It was referred to the Committee on
the Judiciary. Senator John Kerry of Massachusetts cosponsored
the bill on April 11, 1994. A revised version of S. 1782 was
unanimously approved by the Subcommittee on Technology and the
Law on June 29, 1994, and by the Committee on the Judiciary on
August 11, 1994. The bill then passed the Senate by unanimous
consent on August 25, 1995. No further action on the bill was
taken in the 103rd Congress.
On July 28, 1995, Senators Leahy, Brown, and Kerry
introduced S. 1090, the Electronic Freedom of Information
Improvement Act of 1995, which varied slightly from the version
passed by the Senate in the 103d Congress. S. 1090 was referred
to the Committee on the Judiciary and, on October 6, 1995, to
the Subcommittee on Terrorism, Technology and Government
Information. The Subcommittee favorably reported the bill on
March 14, 1996. Following consultation with the Office of
Management and Budget, revisions were made to S.1090 in the
form of a substitute amendment.
IV. Vote of the Committee
On April 25, 1996, with a quorum present, by voice vote,
the Committee on the Judiciary unanimously ordered the
Committee substitute to S. 1090 favorably reported.
V. Discussion
The FOIA was initially enacted in 1966 after many years of
congressional committee examination of impediments to public
access to information from the executive departments and
agencies of the Federal Government.2 The FOIA was first
amended in 1974. The changes made by the amendments included
requiring that a requester only ``reasonably describe'' the
records being sought; allowing an agency to furnish documents
without charge or at a reduced cost if it determined that such
an action would be in the public interest; allowing a court to
conduct an in camera review of contested materials to determine
if they were being properly withheld; establishing specific
response times for agency action; allowing a judge to award
attorney fees and litigation costs where a private complainant
had ``substantially prevailed'' in seeking records from an
agency; prescribing that a court may take notice of ``arbitrary
and capricious'' withholding of agency documents and require
that a civil service investigation take place in order to
determine if disciplinary action is warranted; expanding and
clarifying the definition of agencies covered by the FOIA; and
specifying that any record containing segregable portions of
withholdable information shall be released with the necessary
deletions. In addition, exemptions in the Act pertaining to
classified information and law enforcement materials were
narrowed and made more specific in terms of their application.
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\2\ House. Availability of Information From Federal Departments and
Agencies: Hearings before the House Committee on Government Operations,
84th-86th Congresses, U.S. Govt. Print. Off., 1956-1959.
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In 1976, when adopting another open government law--the
Government in the Sunshine Act--Congress once again amended the
FOIA.3 The change was a limited one, prompted by a 1975
decision of the Supreme Court, which broadly interpreted the
types of information falling within the ambit of the third
exemption of the FOIA.4 The FOIA amendment contained in
the Sunshine Act modified the third exemption to limit its
application to information specifically excepted from
disclosure by statutes mandating protection ``in such a manner
as to leave no discretion on the issue'' or establishing
particular criteria or referring to particular types of
information to be withheld.5
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\3\ For the legislative history of the Government in the Sunshine
Act and its amendment to the FOI Act, see Senate Committee on
Government Operations and House Committee on Government Operations.
Government in the Sunshine Act--S. 5 (Public Law 94-409). Source Book:
Legislative History, Texts, and Other Documents. Joint committee print,
94th Congress, 2d ses. Washington, U.S. Govt. Print. Off., 1976.
\4\ Administrator, Federal Aviation Administration v. Robertson,
422 U.S. 255 (1975).
\5\ 90 Stat. 1241, at 1247.
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Senate attempts to further amend the FOIA were unsuccessful
during the 97th and 98th Congresses. In the closing days of the
99th Congress, however, FOIA amendments were attached to an
omnibus anti-drug abuse bill during Senate debate on the
measure.6 These amendments strengthened protection for law
enforcement records and created new fee and fee waiver
arrangements. Three categories of fees were established: for
commercial users of the Act, for scholarly or scientific
researchers and news media representatives, and for all other
users. No fees were to be charged if the costs of routine
collection and processing of the fee were likely to equal or
exceed the amount of the fee or, in the case of requesters
other than commercial users of the Act, for the first 2 hours
of search time or for the first 100 pages of document
duplication. In addition, records were to be furnished without
charge or at a reduced charge if disclosure of the information
was in the public interest because it was likely to contribute
significantly to public understanding of the operations or
activities of the Government and otherwise was not primarily in
the commercial interest of the requester.
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\6\ See Harold C. Relyea. ``U.S. Freedom of Information Act
Reforms--1986,'' 9 Journal of Media Law and Practice, 6-12 (March
1988).
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The FOIA has become a popular tool used by various quarters
of American society--the press, business, scholars, attorneys,
consumers, and others. Recent agency annual reports on the
administration of the Act, covering 1992 operations, indicate
an annual volume of almost 600,000 requests. The response to a
request may involve paper or, increasingly, information in an
electronic format.
In 1955, when congressional hearings laying the groundwork
for the FOIA were held on the availability of information from
Federal departments and agencies, the Federal Government had 45
computers. Ten years later, when the Senate passed its version
of the FOIA, the inventory had risen to 1,826 computers. Only 5
years elapsed before the Government's holdings jumped to 5,277
computers, resulting in hundreds of thousands of automated
files and many data banks of agency records.7
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\7\ Alan F. Westin and Michael A. Baker. Data banks in a Free
Society. New York: Quadrangle Books, 1972, pp. 29-30.
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In succeeding years, the phenomenon of agency records being
produced and retained in electronic formats grew at a highly
expansive rate as Government use of personal computers and
digital storage media, such as CD-ROMs (compact disk read-only
memory), became more and more widespread.8 In fiscal year
1994, the Federal Government reportedly counted almost 25,250
small computers (costing $10,000 to $100,000 each), 8,500
medium computers (costing $100,000 to $1,000,000 each), and 890
large computers (costing more than $1,000,000 each) in use.
Personal computers had proliferated throughout the Federal
executive establishment. In 1995, the General Services
Administration had more than 19,300 PCS in its inventory, but
only 16,700 employees.9 The Social Security Administration
was preparing to upgrade computer systems in 1,300 offices
nationwide, installing 2,700 local area networks (LANs) and
90,000 new desktop computers.10 In a related development,
during the past 3 years, more than 800 Federal sites have been
set up on the World Wide Web.11
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\8\ See House Committee on Government Operations. Electronic
Collection and Dissemination of Information by Federal Agencies: A
Policy Overview, H.R. Rept. No. 99-560, 99th Cong., 2d sess. (1986);
U.S. Office of Technology Assessment. Informing the Nation: Federal
Information Dissemination in an Electronic Age. Washington, DC. October
1988.
\9\ Kevin Pwer, ``GSA Calls for Halt in Buying New PCS,'' 14
Government Computer News. 1 (Apr. 3, 1995).
\10\ Ted Bunker, ``Reinventing Government,'' LAN Magazine. 158
(October 1995).
\11\ Lisa Corbin, ``Cyberocracy,'' 28 Government Executive. 12 (
January 1996).
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The FOIA should stay abreast of these developments to
promote uniformity among agencies, minimize uncertainty among
FOIA requesters, and avoid potential disagreements between the
two. That is the principal purpose of S. 1090, the Electronic
Freedom of Information Improvement Act of 1996.
Certainly, innovations are underway to promote greater
dissemination of Government information through an electronic
information ``superhighway.'' 12 For example, the 104th
Congress created the ``Thomas'' on-line service, providing
access to numerous legislative resources, including the text of
legislation and the Congressional Record. The U.S. Geological
Survey has published data on the World Wide Web about rising
rivers and potential flood conditions; the White House provides
daily briefings and speeches on-line; and the Security and
Exchange Commission's EDGAR system provides electronic access
to corporate and financial data on American companies. Such
laudable dissemination occurs on the initiative of Government
officials, and the Paperwork Reduction Act of 1995 reflects
congressional understanding that wider use of electronic
dissemination has become an integral part of Government
information activity. The FOIA provides access to Government
information sought at the initiative of individuals. Government
dissemination of more varieties and greater amounts of its
information holdings via a ``superhighway'' may reduce the
volume of FOIA requests, but in no way diminishes the need for
the FOIA to embrace agency records regardless of their form or
format.
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\12\ See U. S. Information Infrastructure Task Force, The National
Information Infrastructure: Agenda for Action. Washington, DC. Sept.
15, 1993; U.S. Information Infrastructure Task Force's Committee on
Applications and Technology. Putting the Information Infrastructure to
Work. Washington, DC, May 1994; U.S. Information Infrastructure Task
Force's Committee on Applications and Technology, The Information
Infrastructure: Reaching Society's Goals. Washington, DC, September
1994; U.S. Advisory Council on the National Infrastructure. A Nation of
Opportunity: Realizing the Promise of the Information Superhighway,
Washington, DC, January 1996.
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VI. Detailed Discussion of the Bill
The FOIA requires agencies to make different types of
information available to the public through publication in the
Federal Register, in public reading rooms, and in response to
specific requests. The Electronic Freedom of Information
Improvement Act of 1996, S. 1090 as amended, would enhance
electronic access to, and expand the information forms or
formats used in making each category of information available
under the FOIA. The new requirements of these amendments are
intended to apply prospectively from the date of enactment.
1. Findings
Section 2, setting forth the findings and purposes of the
bill, makes clear that the purpose of the FOIA is to require
agencies of the Federal Government to make records available to
the public through public inspection and upon the request of
any person for any public or private use. The findings also
cite the role of the FOIA in leading to the disclosure of
information about Government operations and consumer health and
safety. For example, in 1993, the FOIA was used to uncover
human radiation experiments conducted under Government auspices
in the decades after World War II. Press reports on these
experiments prompted the Department of Energy to conduct a
review for purposes of declassifying millions of pages of
secret documents on the Government's past activities in this
area.
Finally, the findings acknowledge the increased use of
computers by Federal agencies, and exhort agencies to use this
technology to enhance public access.
2. Purposes
The purposes of the bill are to ensure and improve public
access to agency records and information, and maximize the
usefulness of those records and information to the public.
The bill is also intended to promote agency compliance with
statutory time limits. Chronic delays in receiving responses to
FOIA requests are the largest single complaint of persons using
the FOIA to obtain Federal agency records and information.
3. Public Information Availability
Section 3 of the bill amends 5 U.S.C. 552(a)(1) to require
that the Federal Register be available not only in paper form,
but also ``by computer telecommunications means,'' and, if such
means are not available, the Federal Register must be available
by alternative ``electronic means,'' such as CD-ROM or on disk.
Agencies should strive to meet their responsibilities under 5
U.S.C. 552(a)(1),and, to the maximum extent practicable, under
5 U.S.C. 552(a)(2) as well, through electronic means.
The Government Printing Office Electronic Information
Access Enhancement Act of 1993 13 (hereafter referred to
as the ``GPO Access Act'') already requires the Superintendent
of Documents to provide ``on-line access'' to the Congressional
Record, the Federal Register, and certain other publications to
the public.
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\13\ Public Law 103-40; 107 Stat. 112.
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The term ``computer telecommunications'' is meant to be
synonymous with on-line access. This term was used by Congress
in describing the obligations of the Environmental Protection
Agency (EPA) to make its Toxic Release Inventory publicly
available pursuant to the Emergency Planning and Community
Right-to-Know Act, Title III of the Superfund Amendments
Reauthorization Act of 1986.14 Although neither that Act
nor its legislative history defines the term, the Environmental
Protection Agency has understood and implemented its duty in
terms of providing public on-line access to its database. The
Paperwork Reduction Act of 1995 reflects congressional intent
generally that wider use of electronic dissemination is an
integral part of Government information activity.
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\14\ Public Law 99-499; 100 Stat. 1728.
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The FOIA currently requires that each agency publish in the
Federal Register, ``for the guidance of the public,'' such
information as descriptions of its organization, from whom, and
methods whereby, the public may obtain information, and
statements of general policy. The bill would require agencies
also to publish in the Federal Register a complete list of
statutes which require the agency to withhold information under
5 U.S.C. 552(b)(3), along with a specific description of the
scope of the information covered.
This section 3 requirement would serve an informational and
notice function for the public regarding claimed agency
withholding authorities. In addition, this provision would
assist congressional oversight to insure that (b)(3)
withholding exemptions are not abused. This provision in no way
prohibits an agency from relying on a statute, where
appropriate, to withhold records or information. Nor would this
provision prevent an agency from relying on an unlisted statute
to deny information in appropriate cases.
4. Materials Made Available In Electronic Format
Section 4 of the bill would make it easier to identify and
locate agency records and would enhance electronic access to
the information which an agency must ``make available for
public inspection and copying'' under 5 U.S.C. 552(a)(2).
Agencies are already encouraged to establish public reading
rooms to facilitate the availability of materials to the
public. Agencies should strive to make information available
through electronic means wherever practicable, and the bill
promotes this goal for those records subject to the FOIA.
Public access to agency records and information should be
enhanced through electronic means.
Under section 4 of the bill, materials required to be
publicly available under 552(a)(2) must be made available,
within 1 year of enactment, ``by computer telecommunications,''
as well as in hard copy. If an agency cannot make these
materials available by computer telecommunications, then the
materials should be made available in some other electronic
form, such as CD-ROM or on disk. The bill thus treats materials
required to be disclosed pursuant to 5 U.S.C. 552 (a)(2) in the
same manner as it treats (a)(1) materials, which are required
to be published in the Federal Register and, under the GPO
Access Act, to be made available to the public electronically.
The implementation of the electronic access requirements
for 552(a)(2) material is deferred for 1 year to allow agencies
time to arrange compliance. Deferred implementation is not
provided in section 3 of the bill for materials required to be
disclosed pursuant to 5 U.S.C. 552(a)(1), since agencies
already have an obligation to make this information available
electronically on-line under the GPO Access Act.
5. Indices and Descriptions of Major Information Systems
Three categories of materials are currently required to be
made available under 5 U.S.C. 552(a)(2): final opinions and
orders made in adjudicated cases, agency policies and
interpretations which are not published in the Federal
Register, and administrative staff manuals and instructions to
staff that affect a member of the public.
Section 4 of the bill would expand these categories of
materials and require agencies to make available for public
inspection and copying, in the same manner as other materials
made available under 5 U.S.C. 552(a)(2), an index of all major
information systems containing agency records, unless such an
index is already made publicly available as otherwise required
by law. Such an index shall help the public locate and access
information held by particular agencies.
Requiring on-line access to an index of major information
systems is fully consistent with the requirement of the
Paperwork Reduction Act of 1995 and revised guidelines in OMB
Circular A-130, which provide uniform government-wide
information management policies. Specifically, 44 U.S.C. S.3506
and section 8a(5)(d)(iv) of the Circular A-130, July 15, 1994,
direct agencies to assist the public in finding Government
information. Agencies may accomplish this by specifying and
disseminating ``locator'' information about the content,
format, uses, limitations, location and means of access
associated with particular records.
This requirement would also supplement the Government
Information Locator Service (GILS) identifying public
information resources throughout the Federal Government,
describing the information available in those resources, and
providing assistance in obtaining the information.15
Access to GILS contents would be available through each agency
through public and private information services on-line, and by
other electronic media.
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\15\ 44 U.S.C. 3511, 109 Stat. 180.
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Section 4 of the bill would also require agencies to make
publicly available a description of any new major information
system, together with a statement of how the system shall
enhance agency operations under the FOIA. The purpose of this
provision is to require agencies to use the development of new
major information systems as opportunities to enhance FOIA
administration. Agencies should make use of electronic
information technology in order to administer their
responsibilities under the FOIA most efficiently. Indeed, at
the time of ``major information system'' establishment,
agencies should consider both the potential FOIA availability
of the information involved as well as the affirmative
availability of the information apart from the FOIA.
Agencies are subject to a similar requirement under 44
U.S.C. 3506 and section 8a(1) of OMB Circular A-130, which
direct agencies to plan from the outset for each step in the
information life cycle. Such planning includes providing for
public access to records where required or appropriate.
The term ``major information system'' is familiar to
Federal agencies since it is defined in OMB Circular A-130. As
defined in OMB Circular A-130, ```major information system'
means an information system that requires special management
attention because of its importance to an agency mission; its
high development, operating, or maintenance costs; or its
significant role in the administration of agency programs,
finances, property, or other resources.'' In accordance with
OMB Circular A-130, agencies should already be establishing
inventories of their ``major information systems.'' 16
This new requirement under S. 1090 is not overlapping but,
instead, is a consistent and coordinated legislative
requirement to support administrative efforts already underway.
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\16\ OMB Circular No. A-130, sec. 9a(5), p. 15 (July 15, 1994).
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Certain kinds of records identified in nine exemptions may
be excluded from disclosure under the FOIA. These exemptions
would therefore apply to the index, which is required to be
made publicly available under the bill. Thus, an agency is not
required to identify the existence of a particular database or
electronic system in the exceptional circumstance in which its
existence is itself a sensitive, exempt fact. For example, a
new investigatory database, the existence of which necessarily
reflects the existence of an ongoing law enforcement
investigation protected under Exemption 7(a), would be exempt
from disclosure on the index.
6. index of records made available to the public
Section 4 of the bill would require that an index of any
records released as the result of requests for records pursuant
to 5 U.S.C. 552(a)(3) must be made available for public
inspection and copying under 552(a)(2). This provision shall
assist requesters in determining which records have been the
subject of prior FOIA requests. Since requests for records
provided in response to prior requests are more readily
identified by the agency without the need for new searches,
this list may assist agencies in complying with the FOIA time
limits. This should also reduce costs to agencies in preparing
responses. This does not, however, relieve agencies of their
obligations to conduct an adequate search for, or justify
withholding of, responsive records as required by the FOIA.
In addition, copies of records, which, because of the
nature of their subject matter, an agency determines have been
or shall likely be the subject of subsequent FOIA requests,
must be made available for public inspection and copying in the
same manner as the materials required to made available under
paragraph (a)(2).
As a practical matter, this would mean that copies of
records released in response to FOIA requests on a subject of
popular interest, such as the assassinations of Martin Luther
King, Jr., and President Kennedy, or on human radiation
experiments conducted by the Government, must subsequently be
treated as materials subject to release under 5 U.S.C.
552(a)(2) and made available for public inspection and copying,
including by computer telecommunications or other electronic
means. This would reduce the number of duplicative FOIA
requests for the same records requiring separate agency
responses.
The General Accounting Office has found that certain
Federal agencies, including the International Trade
Administration at the Department of Commerce and the State
Department, are already taking steps to make available for
public inspection and copying in their reading rooms materials
released in response to specific requests under the FOIA. ``The
State Department, for example, places previously released
material in the reading room when it believes the documents
shall be of topical or recurrent public interest. Such
documents include information relating to the Jonestown
massacre, the Grenada invasion, and the Cuban missile crisis.''
17
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\17\ U.S. General Accounting Office, ``Freedom of Information Act:
Agency Reading Rooms'', GAO/GGD-89-84BR, May 1989, at p. 6.
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The purpose of this provision in the bill is to prompt
agencies to make information available affirmatively on their
own initiative in order to meet anticipated public demand for
it. In other words, FOIA processes should not be incumbered by
requests for routinely available records or information that
can more efficiently be made available to the public through
affirmative dissemination means.
We recognize that an agency's practical ability to make
records and information affirmatively available to the public
apart from the FOIA is far greater as to nonexempt records than
to any record or information that is partially exempt and
requires redaction. Nevertheless, once released in response to
a specific request under the FOIA, complying with the new
requirement of making the previously released material, even in
a redacted form, available for public inspection and copying
should not be a burdensome undertaking.
Requiring, as a standard practice among all Federal
agencies, that popular, previously released FOIA records be
made available for public inspection and copying, including by
computer telecommunications, would take a significant step
toward on-line FOIA requests and responses. This shall increase
agency efficiency and reduce workload. Of course, not all
individuals have access to computers or the computer networks,
such as the Internet, or are near public reading rooms. Thus,
requesters shall still be able to access previously released
FOIA records through the normal FOIA process.
Current law permits an agency to delete identifying details
from material made available under 5 U.S.C. 552(a)(2), ``[t]o
the extent required to prevent a clearly unwarranted invasion
of personal privacy.'' Section 4 would make clear that agencies
retain the same discretion to delete identifying details from
the index and copies of records released in response to FOIA
requests and made available under this section of the bill, to
prevent a clearly unwarranted invasion of personal privacy.
The final part of section 4 would, consistent with the
``Computer Redaction'' requirement in section 7 of the bill,
require that any withholding deletions made in electronic
records prior to their public disclosure must be indicated
within the disclosed records at the place(s) and to the extent
of their occurrence.
Nothing in this section precludes an agency from
classifying information previously released under a FOIA
request.
7. honoring format requests
Section 5 of the bill directs agencies to provide records
to requesters in any form or format in which the agency
maintains those records. At the same time, the bill also
directs agencies to make reasonable efforts to honor the format
requests of requesters.
The amendments to section 552(a)(3) contained in section 5
of the bill, as amended, override the holding in Dismukes v.
Department of the Interior,18 that an agency ``has no
obligation under the FOIA to accommodate plaintiff's preference
[but] need only provide responsive, nonexempt information in a
reasonably accessible form.'' This precedent, which has been
followed in at least one subsequent case, see Baizer v. U.S.
Department of the Air Force, 887 F. Supp. 225, 229 (N.D. Cal.
1995), presents a reason for Congress to enact legislation to
clarify the rights of requesters with respect to the form and
format of the released record.
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\18\ 603 F. Supp. 760, 763 (D.D.C. 1984).
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The bill's requirement to make records available in the
form or format requested by any person where such records are
not usually maintained in the requested form or format, is
subject to a ``reasonable efforts'' qualification. In some
cases, this could relieve the agency of the requirement if it
would prove onerous. To clarify the meaning of ``reasonable,''
the bill makes clear that requests for an electronic version of
records should be honored, even for records that are not
normally maintained or stored in electronic form, if they are,
nevertheless, available in the requested electronic version.
This requirement applies to choices between conventional
record forms (e.g., paper, microfiche, or electronic) as well
as to choices between existing electronic formats. As a general
rule, the decision whether to disclose requested records or
information in a new requested form, whether electronic or
other form, is a matter of administrative discretion. In
exercising that discretion, agencies should consider
administrative efficiency and the existence of identified
public demands for the information. Consistent with current
practice, a FOIA requester generally should be entitled to
obtain a paper printout of any nonexempt electronic records--or
any readily retrievable nonexempt part of such records--if the
requester prefers.
The ``reasonable efforts'' qualification would apply to any
situation in which the original form of a record cannot readily
be handled without damage to it, such as may be the case with
archival records, where an existing copy form is used instead.
Likewise, the ``reasonable efforts'' qualification could
relieve agencies of the obligation of releasing the original
form of partially exempt records in circumstances where
agencies need to handle the records in a certain form for
purposes of redaction and, therefore, cannot readily disclose
them, as redacted, in a previously existing form.
This section also directs agencies to make ``reasonable
efforts to search for records in electronic form or format.''
What constitutes a ``reasonable effort'' shall vary with the
circumstances under which the records are held. We recognize
that both agency computer program development resources and
agency computer system operation resources are highly valuable
and finite. Both of these categories of agency resources shall
be impinged upon by the level of new search activity required
under the amendments. Agencies should search for and retrieve
data according to new specifications where such retrieval
activity does not disrupt agency functions.
The Office of Management and Budget has suggested 2 hours
as the amount of time an agency should reasonably spend on
computer program development time to accommodate a requester's
request for a particular form or format. In certain
circumstances, and for certain agencies, 2 hours of computer
development time may be the maximum amount of time that is
reasonable. Other agencies may determine that significantly
more or less than 2 hours is reasonable under the
circumstances.
Agencies may, as permitted by 5 U.S.C. 552 (a)(4)(A),
charge appropriate fees to recover copying costs, regardless of
what medium is used for duplication. Thus, if an agency is
requested to produce duplicate CD-ROM's and has the capability
to do so, it may assess an appropriate fee to recover the
reasonable costs for copying the record in that form. ``Copying
costs'' include the costs to agencies when they do not maintain
the records in the requested format and must put the records in
that format. A requester's refusal to pay the direct costs of
copying in the requested form or format would be a factor in
determining whether it is reasonable for the agency to comply
with the format request.
8. delays
Section 6 of the bill addresses the single most frequent
complaint about the operation of the FOIA, namely, agency
delays in responding to FOIA requests. A 1986 House report
cited a number of reasons for the delays, including inadequate
resources, unnecessary bureaucratic complexity, poor
organization of agency records, and lack of interest by
agencies in disclosure.\19\
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\19\ House Committee on Government Operations. Freedom of
Information Act Amendment of 1986. pp.11-12, H.R. 99-832, 99th Cong.,
2d sess.
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These delays have persisted. In an October 1993 memorandum
to all Heads of Departments and Agencies, Attorney General
Janet Reno acknowledged the delay problem and the cause for
FOIA backlogs, stating:
Many Federal departments and agencies are often unable to
meet the Act's ten-day time limit for processing FOIA requests,
and some agencies--especially those dealing with high-volume
demands for particularly sensitive records--maintain large FOIA
backlogs greatly exceeding the mandated time period. The
reasons for this may vary, but principally it appears to be a
problem of too few resources in the face of too heavy a
workload. This is a serious problem--one of growing concern and
frustration to both FOIA requesters and Congress, and to agency
FOIA officers as well.
Indeed, out of a total of 75 agencies responding to a
Department of Justice request for backlog information in
February 1994, only 28 agencies reported no backlog.
The bill contains provisions intended to help agencies
comply with statutory time limits by doubling the time allowed
for a determination on requests for records, providing
financial incentives for compliance, directing agencies to make
more information available on-line and to use better record
management techniques, such as multi-track processing,
publishing prior requests to avoid new searches, and making
available in public reading rooms those records likely to be
the subject of duplicative FOIA requests.
(a) Retention of Half the FOIA Fees.--The bill would permit
agencies that comply with statutory time limits to retain one-
half of the FOIA fees they collect and direct them to use those
fees to enhance the FOIA request processing function. While the
purpose of this provision is to give agencies an incentive to
comply with the time limits, the Committee recognizes that FOIA
fees do not cover the cost of compliance.
(b) Demonstration of Circumstances for Delay.--This section
would require agencies not in compliance with the statutory
time limits to demonstrate that the delay is warranted under
the standards for ``unusual'' or ``exceptional'' circumstances
set forth in 5 U.S.C. Sec. 552(a)(6)(B) and (C) of the FOIA,
the only circumstances that excuse compliance with the time
limits.
(c) Doubling of Statutory Time Limit.--Currently, the FOIA
allows agencies 10 working days to make initial determinations
on requests for information possessed by the Government.
Compliance with the 10-day rule is a practical impossibility
for the majority of agencies. The bill, therefore, doubles the
allowable time period for making an initial determination to 20
working days, while leaving intact the current 10-working day
statutory extension for cases involving ``unusual
circumstances.''
(d) Agency Backlogs.--Under the FOIA, a court may grant an
agency additional time to respond to FOIA requests beyond the
statutory time limit, if the agency can show that ``exceptional
circumstances exist and that the agency is exercising due
diligence in responding to the request.'' The FOIA does not
limit the additional time permitted. The Committee encourages
agencies to reduce backlogs. The bill would clarify that
``exceptional circumstances'' should be demonstrated by more
than the usual backlog of pending requests, but good faith
efforts to address and reduce an unusually large backlog may be
relevant to a determination of whether ``exceptional
circumstances'' exist.
(e) Notification of Denial.--Currently, the FOIA requires
agencies to provide requesters with the names and titles or
positions of any person responsible for denial of a request for
records. The bill would amend this requirement to also require
disclosure to requesters of the total number of records and
pages that the agency considered responsive to the request, but
nevertheless withheld.
(f) Multi-track FIFO Processing.--An agency commitment to
process requests on a first-come, first-served basis has been
held to satisfy the requirement that an agency exercise due
diligence in dealing with backlogs of FOIA requests.20
Some agencies have taken the position that they must process
requests on an FIFO basis, even if this procedure may result in
lengthy delays for simple requests due to the prior receipt and
processing of complex requests. This section encourages
agencies to implement multi-track processing systems for FOIA
requests to reduce backlog.
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\20\ Open America v. Watergate Special Prosecution Force, 547 F.2d
605 (D.C. Cir. 1976).
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Simple requests are those requiring 10 days or less to
process. Such requests may include requests for only a few
specific documents that are easily accessed or which, by their
nature would not normally be exempt from the requester (e.g.,
request for a copy of one's own birth certificate or
naturalization certificate). Complex requests are those for
which it is estimated that the records sought would take more
than 10 days to locate, review, and prepare for disclosure.
Such requests may include requests from files requiring line-
by-line review of numerous pages of personal information,
classified information, or investigative files, particularly
those that are of current or of recent investigations, that
require careful coordination with investigative personnel.
Under a two-track system some simple requests shall be
processed ahead of more complex ones which may have been
received earlier. Agencies may have more than two tracks, for
example, in the event that they receive requests for expedited
access, which may be processed on their own track.
(g) Expedited Access.--The bill provides for a requester to
obtain expedited access to records where the requester
demonstrates a compelling need, as defined by the bill. Once
such a need is demonstrated, and the request for expedited
access is granted, the agency must then proceed to process that
request ``as soon as practicable.'' No specific number of days
for compliance is imposed by the bill since, depending upon the
complexity of the request, the time needed for compliance may
vary. The goal is not to get the request for expedited access
processed within a specific time frame, but to give the request
priority for processing more quickly than otherwise would
occur.
In the event the agency uses a single-track FIFO procedure,
the expedited request should be processed first. If more than
one expedited access request is granted and pending, the agency
should have a separate track to process them on a FIFO basis. A
FOIA request to which expedited access has been denied should
be processed in the order it was received relative to other
FOIA requests. S. 1090, as amended, would permit a requester to
seek limited judicial review based on the same record before
the agency of an agency's denial of an expedited access
request, but only when the requester has complied with the
strict time limits under paragraph (4)(E)(ii).
This section adds statutory substance to the term
``compelling need'' for purposes of obtaining expedited access.
The first two criteria, in which an individual's life or safety
would be threatened, embody bases for expedited access which
have been accepted by some courts and acknowledged by the
Justice Department at least since 1983. The third basis for
expedited access would arise when failure to obtain such access
would affect public assessment of the nature and propriety of
actual or alleged governmental actions that are the subject of
widespread, contemporaneous media coverage. This is a reworking
of the new ``Discretion to Promote Public Accountability''
standard for expedited access which the Department of Justice,
Office of Information and Privacy, distributed to all agencies
in a February 1, 1994, memorandum. Media coverage is not in
itself sufficient for expedition. In order to ensure that this
shall not become a routine incantation among requesters, this
ground for expedition requires ``widespread, contemporaneous
media coverage'' to be shown in support of a request asserting
its applicability. FOIA is not a substitute for a means of
civil discovery. FOIA requests related to ongoing civil
litigation do not receive expedited access under the criteria
established in the bill simply because parties may need
information for use in civil litigation.
The requester would be required to declare, under penalty
of perjury, the truth and correctness of the requester's
statements of compelling need in support of a request for
expedited access. This is the same requirement generally used
to certify the correctness of information provided to the
government on documents ranging from income tax returns to
applications for fishing licenses.
9. Computer Redaction
Section 7 of the bill would require that any withholding
deletions made in electronic records prior to their public
disclosure must be indicated within the disclosed records at
the place(s) and to the extent of their occurrence. This would
ensure that the requester receives notice of the amount of
material deleted and the location of the deletion when records
are provided to a requester in electronic form or as a hard
copy print of electronic information.
Agencies are not required to aggregate, compact, or modify
electronic data in any way in order to release it to FOIA
requesters in nonexempt form. Agencies may do so as a matter of
administrative discretion, just as FOIA requesters may modify
their requests in order to encompass only nonexempt data.
10. Definitions
The FOIA already defines the term ``agency'' and section 8
of S 1090, as amended, would add definitions of ``record'' and
``search'' to the FOIA.
(a) Record.--The FOIA currently does not define ``record.''
A determination of what constitutes an ``agency record'' in
particular instances shall depend upon a number of factors
identified by the Supreme Court in Department of Justice v. Tax
Analysts.21 Any item containing information that is in the
possession and control of an agency is usually considered to be
an agency record under FOIA.
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\21\ 492 U.S. 136, 144-45 (1989).
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At the outset, it is important to note that the FOIA is not
an independent basis for requiring agencies to maintain records
or information; other statutes and regulations establish such
requirements. For example, the FOIA does not dictate the
records an agency must preserve under the Federal Records Act,
but only those subject to release. At the same time, agencies
should not convert any information into a form not required to
be preserved for the purpose of altering its status under the
FOIA.
As defined in the bill, ``record'' refers to all books,
papers, maps, photographs, machine-readable materials, or other
information or documentary materials, regardless of physical
form or characteristics. The term expressly does not include
library and museum material acquired or received and preserved
solely for reference or exhibition purposes, extra copies of
documents preserved only for convenience of reference, stocks
of publications and of processed documents, or computer
software which is obtained by an agency under a licensing
agreement prohibiting its replication or distribution.
This definition is a modified version of the definition of
``record'' in the Federal Records Act (``FRA'').22 The new
definition in the FOIA is not necessarily tied to any
definition of ``record'' that is used for purposes of other
statutes, including the Federal Records Act. Similar to that in
the FRA, the proposed definition of ``record'' under the FOIA
expressly excludes reference items that have been acquired or
received by the Government solely for reference purposes. This
is consistent with current law that, for example, library
reference materials are not subject to the FOIA.23
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\22\ 44 U.S.C.A. 3301.
\23\ See Dept. Of Justice v. Tax Analysts, 492 U.S. 136 (1988).
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(b) Search.--The bill makes it clear that a search of
computerized records that requires application of codes or some
form of programming to retrieve information would not amount to
the creation of a new record.
As defined in the Act, `` `search' means a manual or
automated review of agency records that is conducted for the
purpose of locating those records which are responsive to a
request under subsection (a)(3)(A) of this section.'' Under
FOIA, an agency is not required to create documents that do not
exist. Because computer records may be located in a database
rather than in a file cabinet, the question is whether a
computer search is analogous to a search for paper records.
Computerized records may require the application of codes or
some form of programming to retrieve the information. Any other
interpretation would make it virtually impossible to get
records that are maintained completely in an electronic form
because some manipulation of the information likely would be
necessary to search for the record.
This definition further clarifies that a search for records
is only made with regard to FOIA requests under 5 U.S.C.
552(a)(3)(A).
VII. Regulatory Impact Statement
In compliance with paragraph 11(b), Rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that no significant additional
regulatory impact or impact on personal privacy would be
incurred in carrying out the provisions of this legislation.
VIII. Cost Estimate
The Committee accepts the cost estimate of the
Congressional Budget Office.
The Congressional Budget Office estimate follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 13, 1996.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S. 1090, the Electronic Freedom of Information
Improvement Act of 1996, as ordered reported by the Senate
Committee on the Judiciary on April 25, 1996. CBO estimates
that enacting this bill would allow agencies to spend between
$4 million and $5 million over the 1997-2002 period out of fee
income expected under current law. Such expenditures would
constitute new direct spending; therefore, pay-as-you-go
procedures would apply.
Bill purpose. S. 1090 would amend the Freedom of
Information Act (FOIA) to:
Require that agencies make available for public
inspection and reproduction copies of any records that,
because of the nature of their subject matter, are
likely to elicit additional requests;
Require that agencies provide information in the form
requested (for example, paper or computer disk), if the
information is already available in that form;
Authorize agencies to retain and spend one-half of
any fees collected under FOIA, provided that they
comply with the statutory tie limits for responding to
such requests; and
Expand the amount of time an agency has to respond to
a FOIA request from 10 days to 20 days.
Federal Budgetary Impact. Many of the bill's provisions are
similar to those already required by the Office of Management
and Budget (OMB Circular No. A-130), and therefore are not
expected to affect agencies' budgets. Some provisions, however,
could change the way certain agencies' respond to FOIA
requests. For instance, the bill would require that agencies
make available for public inspection and reproduction copies of
any records that--because of the nature of their subject
matter--are likely to elicit additional requests. The bill also
would require that agencies provide information in the form
requested, if the information is already available in that
form. The first provision could reduce agencies' costs, while
the second provision might increase agencies' costs, but CBO
cannot estimate the extent of these impacts. Any change in
spending from either provision would be subject to
appropriation actions.
To provide an incentive to reduce delays, S. 1090 would
allow eligible agencies to keep half of the fees currently
charged for processing FOIA requests and to spend those funds
on resources used to comply with FOIA's time limits. In 1992
(the most recent year for which complete tabulations of
agencies' annual reports on FOIA activities are available),
agencies spent about $108 million processing FOIA requests,
while charging about $8 million in fees. Under current law,
these fees are deposited in the Treasury. Because the bill
would expand the amount of time agencies have to respond to
requests from 10 days to 20 days, we estimate that about 45 out
of the 75 agencies included in the Department of Justice's 1994
report on agency backlogs under FOIA would meet the bill's
requirement for ``substantial compliance'' and would thus be
eligible to retain half of any fees they charge. These
agencies, however, account for only about 10 percent of the
total fees collected. Thus, if this provision had been in
effect for 1992, they would have retained only about $0.4
million. By contrast, four agencies--all with large backlogs--
accounted for almost 75 percent of the total fees collected in
1992.
Assuming that costs for processing FOIA requests continue
to grow at historical rates and that fees as a proportion of
those costs also remain at their historical rates, CBO
estimates that agencies would be eligible to retain about $0.6
million of fees collected during fiscal year 1996. Under the
bill, however, spending of these funds would not occur until
fiscal year 1997. Estimated outlays would rise gradually to
about $1 million by 2002, and we estimate that direct spending
from this provision would total between $4 million and $5
million over the 1997-2002 period. The following table
summarizes the estimated budgetary impact of the bill.
CHANGES IN DIRECT SPENDING
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Estimated Budget Authority.......................... 1 1 1 1 1 1
Estimated Outlays................................... 1 1 1 1 1 1
----------------------------------------------------------------------------------------------------------------
This estimate assumes that S. 1090 would be enacted by the
end of fiscal year 1996.
Pay-as-you-go statement. Section 252 of the Balanced Budget
and Emergency Deficit Control Act of 1985 sets up pay-as-you-go
procedures for legislation affecting direct spending or
receipts through 1998. S. 1090 would affect direct spending by
authorizing eligible agencies to retain and spend on-half of
any fees collected under FOIA. As a result, CBO estimates that
outlays would increase by about $1 million in 1997 and $1
million in 1998.
Mandates statement. S. 1090 contains no intergovernmental
or private sector mandates as defined in Public Law 104-4 and
would impose no direct costs on state, local, or tribal
governments.
If you wish further details on this estimate, we will be
pleased to provide them. The staff contact is John R. Righter.
Sincerely,
June E. O'Neill, Director.
IX. ADDITIONAL VIEWS OF SENATOR LEAHY
A number of points were not addressed in the Committee's
report that would be helpful to provide additional guidance to
agencies on implementing the Electronic Freedom of Information
Act. As one of the authors of this legislation, I submit these
additional views to supplement the report of the Committee.
I. Introduction
The emerging National Information Infrastructure (NII)
consists of interconnected computer networks and databases that
can put vast amounts of information at users' fingertips. Such
an information infrastructure can be used to give the public
easy access to the immense volumes of information generated and
held by the Government. Individual Federal agencies are already
contributing to the development of the NII by using technology
to make Government information more easily accessible to our
citizens. For example, FedWorld, a bulletin board available on
the Internet, provides a gateway to more than 60 Federal
agencies.
The Electronic Freedom of Information Improvement Act would
contribute to that information flow by increasing on-line
access to Government information, including agency regulations,
opinions, and policy statements, and agency records that have
been previously released in response to FOIA requests and that
are the subject of repeated requests. This electronic FOIA bill
is an important step forward in using technology to make
government more accessible and accountable to our citizens.
II. Legislative History of the FOIA
The Committee report notes, without elaboration, that the
FOIA was enacted in 1966 after many years of examination of the
impediments to providing the public with access to Government
records. Prior to 1966, the prevailing public access law,
section 3 of the Administrative Procedure Act of 1946, was
being interpreted in ways to restrict the availability of
information.\1\ The so-called ``housekeeping'' law, dating from
the earliest days of the Republic and authorizing a department
head to prescribe regulations for the custody, use, and
preservation of department records, papers, and property, was
also being used to restrict information sought by the
public.\2\ Indeed, a considerable number of laws, regulations,
and rules restraining legal access to public records were
identified.
---------------------------------------------------------------------------
\1\ 60 Stat. 237, at 238. Francis E. Rourke. Secrecy and Publicity:
Dilemmas of Democracy. Baltimore: The Johns Hopkins Press, 1961, pp.
57-58.
\2\ See 1 Stat. 28, 49, 65; these and similar provisions were
consolidated in the Revised Statutes of the United States (1878) at
section 161, which is presently located in the United States Code at 5
U.S.C. 301 (1994). Rourke, Secrecy and Publicity: Dilemmas of
Democracy, pp. 47-49.
---------------------------------------------------------------------------
The author of one of the earliest and most thorough studies
of this protective bulwark stated the resulting dilemma
dramatically and concisely:
Public business is the public's business. The people
have the right to know. Freedom of information is their
just heritage. Without that the citizens of a democracy
have but changed their kings.\3\
---------------------------------------------------------------------------
\3\ Harold L. Cross. The People's Right to Know. Morningside
Heights: Columbia University Press, 1953, p. xiii.
An initial effort in support of the people's right to know
came to fruition in 1958 when Congress enacted an amendment to
the ``housekeeping'' law stating that it ``does not authorize
withholding information from the public or limiting the
availability of records to the public.'' \4\
---------------------------------------------------------------------------
\4\ 72 Stat. 547. Rourke, Secrecy and Publicity, pp. 59-60.
---------------------------------------------------------------------------
Shortly thereafter, work was begun on drafting legislation
to amend section 3 of the Administrative Procedure Act with a
general statute requiring the disclosure of unpublished agency
records requested by the public. Such a bill was introduced,
considered, and approved in the Senate during the 88th
Congress, when the movement for what would become the Freedom
of Information Act began in earnest.\5\ The House, however,
took no action on such a measure before sine die adjournment.
The Senate turned to such legislation again in the 89th
Congress, and adopted a revised and refined version of the
earlier bill on October 23, 1965. The House subsequently passed
this bill on June 20, 1966.
---------------------------------------------------------------------------
\5\ For the legislative history of the Freedom of Information Act
of 1966, see Senate Committee on the Judiciary, Freedom of Information
Act Source Book: Legislative Materials, Cases, Articles, S. Doc. No.
93-82, 93d Cong., 2d sess. (1974).
---------------------------------------------------------------------------
Signing the FOIA into law on July 4, 1966, \6\ President
Johnson declared:
---------------------------------------------------------------------------
\6\ 80 Stat. 250.
This legislation springs from one of our most
essential principles: A democracy works best when the
people have all the information that the security of
the Nation permits. No one should be able to pull
curtains of secrecy around decisions which can be
revealed without injury to the public interest.\7\
---------------------------------------------------------------------------
\7\ Public Papers of the Presidents of the United States: Lyndon B.
Johnson, 1966. Book 2. Washington, U.S. Govt. Print. Off., 1967, p.
699.
In accordance with the provisions of the Act, the FOIA
became operative on July 4, 1967, by which time it had been
codified as section 552 of title 5, United States Code.\8\
---------------------------------------------------------------------------
\8\ 81 Stat. 54; 5 U.S.C. 552 (1970).
---------------------------------------------------------------------------
During House and Senate committee consideration of
legislation leading to the FOIA, no executive department or
agency representative had testified in support of the
proposals. Congressional oversight of the administration and
operation of the Act would reveal that this distaste for the
legislation had transformed into hostility toward the statute
during its initial implementation.
A 1972 report by the House Committee on Government
Operations, based upon oversight proceedings conducted by one
of its subcommittees earlier in the year, characterized the
situation in the following words:
The efficient operation of the Freedom of Information
Act has been hindered by 5 years of foot-dragging by
the Federal bureaucracy. The widespread reluctance of
the bureaucracy to honor the public's legal right to
know has been obvious in parts of two administrations.
This reluctance has been overcome in a few agencies by
continued pressure from appointed officials at the
policy making level and in some other agencies through
public hearings and other oversight activities by the
Congress.\9\
\9\ House Committee on Government Operations, Administration of the
Freedom of Information Act, H. Rept. 92-1419, 92d Cong., 2d sess.
(1972), pp. 8-9.
Curiously, it was often argued that the FOIA was not a
primary program of the departments and agencies, a contention
that sadly ignored the importance of Government information
accessibility for the citizens of a democracy. Consequently,
FOIA administration suffered from a lack of resources and a
lack of immediacy so that requests languished, awaiting a
response.
A reform bill to strengthen the FOIA was introduced in the
House at the outset of the 93d Congress in early 1973.\10\ A
companion proposal was offered in the Senate in March, and the
House legislation received a committee hearing in May. No
department or agency witness expressed any support for the
proposed amendments. By the end of 1973, the House bill had
been refined, was reported from committee in February 1974, and
was adopted by the House in March. Shortly thereafter, in May,
a Senate counterpart bill was reported, strengthened during
floor debate, and adopted. Conferees were then named to
reconcile the differences between the two measures amending the
FOIA.
---------------------------------------------------------------------------
\10\ For the legislative history of the 1974 amendments to the FOIA
Act, see House Committee on Government Operations and Senate Committee
on the Judiciary. Freedom of Information Act and Amendments of 1974
(Public Law 93-502). Source Book: Legislative History, Texts, and Other
Documents. Joint committee print, 94th Cong., 1st sess. Washington,
U.S. Govt. Print. Off., 1975.
---------------------------------------------------------------------------
These were tumultuous times in the Federal Government and
the Nation. During the 20 months that the FOIA amendments moved
through the two Houses of Congress, various congressional
committees and a Special Prosecutor were pursuing inquiries
into a burglary at the Democratic National Committee
headquarters in the Watergate apartment complex in Washington,
DC. By the end of 1973, the involvement of current and former
high-level officials of the Nixon administration in this and
related matters had been revealed.
The following year, articles of impeachment against
President Nixon were under development in the House.
Accountability and the availability of Government information
became issues of mounting importance for Congress and the
public. A crux point was reached when the President refused to
provide certain Oval Office tape recordings subpoenaed by the
Special Prosecutor. The dispute came before the Supreme Court,
which, in a unanimous opinion of July 24, 1974, affirmed a
district court order requiring the President to provide the
subpoenaed tapes.\11\ A week later, the House Committee on the
Judiciary approved three articles of impeachment of President
Nixon. Ten days later, he resigned.
---------------------------------------------------------------------------
\11\ United States v. Nixon, 418 U.S. 683 (1974).
---------------------------------------------------------------------------
The FOIA amendments of 1974, which are summarized in the
Committee's report, were not developed in response to the
Watergate incident. However, they gained legislative momentum
as congressional investigators probed Watergate and related
matters. President Nixon resigned shortly after the conferees
on the FOIA amendments began their deliberations in August. The
new President, Gerald Ford, sent a letter to the conferees
indicating his reservations about some of the amendments. The
conferees pressed on, resolved their differences, and placed
their report before their respective chambers. The Senate gave
approval on October 1; the House voted acceptance on October 7;
and the compromise legislation was sent to President Ford the
next day.
On October 17, the President returned the bill to the House
without his approval and characterized the legislation as
``unconstitutional and unworkable.'' \12\ However, he had
underestimated congressional support for the amendments. On
November 20, the House voted 371-31 to reject the Presidential
veto. The next day, the Senate completed action on the
legislation, voting 65-27 to override the President's
objections. The 1974 amendments then became law, taking effect
on February 19, 1975.\13\
---------------------------------------------------------------------------
\12\ Public Papers of the Presidents of the United States: Gerald
R. Ford, 1974. Washington, U.S. Govt. Print. Off., 1975, pp. 374-376.
\13\ 88 Stat. 1561.
---------------------------------------------------------------------------
These amendments and their manner of adoption, as well as
subsequent amendments to the FOIA detailed in the Committee
report, provide a clear indication of congressional support for
and commitment to the FOIA and its proper administration.
III. Supplemental Discussion of the Bill
1. Findings
The findings set forth in section 2 of the bill makes clear
that the FOIA requires Federal agencies to make records
available to the public in specified ways, including upon the
request of any person for any public or private use. As Justice
Ginsburg commented, ``the identity and particular purpose of
the requester is irrelevant under FOIA. * * * This main rule
serves as a check against selection among requesters, by
agencies and reviewing courts, according to idiosyncratic
estimations of the request's or requester's worthiness.''
14
---------------------------------------------------------------------------
\14\ U.S. Department of Defense v. Federal Labor Relations
Authority, ---- U.S. ----, 114 S. Ct. 1006, 1019 (1994)(Ginsburg, J.,
concurring).
---------------------------------------------------------------------------
This finding is intended to address concerns that the
reasoning of the Supreme Court in Department of Justice v.
Reporters Committee 15 and the U.S. Department of Defense
v. Federal Labor Relations Authority 16 analyzed the
purpose of the FOIA too narrowly. The purpose of the FOIA is
not limited to making agency records and information available
to the public only in cases where such material would shed
light on the activities and operations of Government. Effort by
the courts to articulate a ``core purpose'' for which
information should be released imposes a limitation on the FOIA
which Congress did not intend and which cannot be found in its
language,17 and distorts the broader import of the Act in
effectuating Government openness.
---------------------------------------------------------------------------
\15\ 489 U.S. 749 (1989).
\16\ 114 S.Ct. 1006, 773-775, 1012-13 (1994).
\17\ U.S. Department of Defense v. FCRA, supra, 114 S.Ct. at 1018-
1019 (Ginsburg, J., concurring).
---------------------------------------------------------------------------
While the intended use of the records by the requester is
normally irrelevant in determining whether to grant access to
the requested records, it may properly be considered in
assessing the potential consequences of disclosure where the
public interest in disclosure must be balanced against an
asserted privacy interest in denying access to such records.
2. Records Made Available to the Public
The Congress has indicated its intent through laws, such as
the Paperwork Reduction Act of 1995, that wider use of
electronic dissemination is an integral part of Government
information activity. Such dissemination occurs on the
initiative of Government officials. The FOIA, by contrast, also
provides access to Government information sought on the
initiative of the people.
The Committee report correctly notes that the Government
Information Locator Service (GILS) is a helpful tool for
providing access to public information resources in the Federal
Government. Significantly, many Federal agencies are also
establishing sites on the World Wide Web to educate the public
about their mission and facilitate access to information about
the agency. Agencies should be encouraged to establish a FOIA
requester section on their Web site homepage to facilitate on-
line access to 552(a)(1), (a)(2), and (a)(3) materials. For
example, by accessing an agency's Web site, requesters in the
future may be able to browse through an index of major computer
systems maintained by the agency, an index of records made
availably to the public, and copies of records previously
released pursuant to FOIA requests.
In short, these World Wide Web sites could be used to
provide on-line access to the materials that agencies are
disseminating both electronically and in more conventional form
to the public. In fact, the Department of Defense has specified
that all homepages must be accompanied by a GILS record that
tells the public how to access other DOD material. We urge
Federal agencies to continue progress in this area.
3. Honoring Format Requests
Section 5 of the bill requires that Federal agencies
provide records to requesters in any form or format in which
the agency maintains those records, and that Federal agencies
make reasonable efforts to search for and honor the format
requests of requesters. In many cases, the vast amounts of
information held in Government databases would only be usable
if disclosed in an electronic form. Such information disclosed
in paper form would be unmanageable. Nevertheless, a FOIA
requester should be entitled to obtain a paper ``printout'' of
any nonexempt electronic records--or any readily retrievable
nonexempt part of such records--if the requester so prefers,
consistent with current practice.
The Committee report points out that what constitutes a
``reasonable effort'' to search for records in electronic form
or format will vary with the circumstances under which the
records are held. In responding to FOIA requests seeking only
specified portions of databases, agencies should search for and
retrieve data in the same manner used in the ordinary course of
agency business with their existing retrieval-programming
capability for the database involved. When requesters seek to
have data retrieved according to specifications other than
those ordinarily used by agencies for data retrieval from the
database system involved, agencies should comply with such
requests where they can reasonably and efficiently do so. We
recognize that this requirement, in tandem with the ``record''
status of agency software, holds some potential for compelled
software creation.
Agencies should be required to search for and retrieve data
according to new specifications where such retrieval activity
does not disrupt agency functions.
Agencies should make use of the capability to redact exempt
information through electronic means, including through the
acquisition of software packages for those purposes, wherever
it is more efficient to do so. Where redactions are made by
electronic means, the requirement in section 7 of the bill
remains that the requester should be notified of the extent and
location of the redactions. This principle should apply to
redaction in conventional record form, in which case the extent
of redactions ordinarily can be shown on the face of partially
disclosed records.
4. Delays: Agency Backlogs
The bill would clarify the meaning of ``exceptional
circumstances'' warranting an extension of the statutory time
limit for responding to requests under the FOIA. Specifically,
under the bill, the term ``exceptional circumstances'' would
mean ``circumstances that are unforeseen and shall not include
delays that result from a predictable workload, including any
ongoing agency backlog, in the ordinary course of processing
requests for records.''
In Open America v. Watergate Special Prosecution
Force,18 the court held that exceptional circumstances
exist when the agency can show it has inadequate resources to
process FOIA requests within statutory time limits and the
agency is exercising due diligence by processing requests on a
``first-in, first-out'' basis. Relying upon overly broad dictum
in this case, agencies have employed the exceptional
circumstances-due diligence exception to obtain judicial
approval for lengthy delays whenever they have a backlog.
---------------------------------------------------------------------------
\18\ 547 F.2d 605 (D.C. Cir. 1976).
---------------------------------------------------------------------------
Backlogs of requests for records under the FOIA should not
give agencies an automatic excuse to ignore the time limits.
This is exactly the wrong incentive to clear up such backlogs.
The bill would not overturn Open America, but would clarify
its holding. In Open America, the court granted additional time
because the agency had a truly exceptional, 3000-percent
increase in FOIA requests in 1 year. The bill would not change
the outcome in Open America--exceptional, unforeseen workload
increases would still warrant additional time to respond to
FOIA requests.
Consistent with Judge Leventhal's concurring opinion in
Open America, the bill would clarify that ``exceptional
circumstances'' must be demonstrated by more than the mere
number or backlog of pending requests. This clarification would
apply prospectively to requests for agency records submitted
after the date of enactment of this Act.
The agency must show the extraordinary size or complexity
of the requested records at issue; affirmative steps the agency
is taking to reduce the backlog (such as applying for
additional funding, training or reassigning additional
personnel, or implementing new processing procedures); efforts
to expedite release of the requested records, including by the
partial release of records expressly covered by the FOIA and
plainly outside the scope of any exemption; and concrete
obstacles to locating or otherwise processing the requested
records, including cases in which a substantial proportion of
the requested records can reasonably be expected to involve
information that may be exempt under 5 U.S.C. 552(b) (1), (6),
or (7). The mere fact that the requested records are those of
an agency with law enforcement or national security missions,
such as the Federal Bureau of Investigation or Central
Intelligence Agency, should not be sufficient in itself to
demonstrate that the records can reasonably be expected to fall
within the scope of those exemptions.
5. Definitions: Record
The new definition of ``record'' in the bill includes
``machine-readable materials or other information or
documentary materials, regardless of physical form or
characteristics.'' As a general rule, information maintained in
electronic form should be no less subject to the FOIA than
information maintained in conventional paper record form.
Indeed, among Federal agencies, there is little disagreement
that FOIA covers all Government records, regardless of the form
in which they are maintained or stored by the agency. The
Department of Justice agrees that computer database records are
agency records subject to the FOIA.\19\
---------------------------------------------------------------------------
\19\ 1992 Hearing, at 33.
---------------------------------------------------------------------------
However, a question may arise as to what, exactly,
constitutes a ``record'' when public records are in an
electronic format. For example, most Government agencies
maintain large databases comprising millions of pieces of
information. A specific ``record'' may not be created until a
query is formed and the software associated with the database
manipulates the information, which in turn compiles the record
formulated by the query. Because the database itself is a
public record, then any record created from information stored
in that database is also a public record.
The process of retrieving the information, however, may
result in the creation of a new document when the data is
printed out on paper or written on computer tape or disk. This
may be the only way computerized data is retrievable, even if
it means a new document must be created.
Moreover, material in a database that is constantly being
updated or modified is dynamic and continuously changing. It
should, nonetheless, be subject to the FOIA. Agencies may have
to develop special procedures to accommodate FOIA applicability
to such data on a ``snapshot'' basis, while at the same time
duly impairing the operation of the electronic system involved.
Any such nonexempt data for which there is an anticipated
public demand is likely to be made available affirmatively
under section 4 of S. 1090, thereby removing any potential FOIA
complications for that data.
The proposed definition of ``record'' in the bill would
cover electronic mail, in accordance with current case law and
regulations. Recognizing that ``the widespread and easy use of
e-mail has made it an important tool for the conduct of
Government business'' and that ``nearly all Federal agencies
now use e-mail to transact Government business,'' the National
Archives and Records Administration issued regulations,
effective on September 27, 1995, setting forth regulations for
the identification and preservation of e-mail messages that
constitute Federal records.
Electronic mail has also been held subject to the FOIA by
courts that have considered this issue. In Armstrong v.
Executive Office of President,20 the court based its
definition of ``records'' on the language contained in 44
U.S.C.A. 3301, and concluded that, if a document qualifies as a
record, then the FRA prohibits an agency from discarding it by
fiat. Communications stored in electronic communications
systems constituted Federal records because the FRA's
definition of ``records'' includes material ``regardless of
physical form or characteristics.'' The court concluded that
substantive communications otherwise meeting the definition of
Federal ``records'' that had been saved on electronic mail came
within the FRA's purview. Thus, the court held the mere
existence of paper printouts of electronic communications for
Government agencies does not affect the record status of
electronic material unless paper versions include all
significant material contained in the electronic records.
Electronic documents retain their status as Federal records
after the creation of paper printouts and all FRA obligations
concerning management and preservations of records apply.
---------------------------------------------------------------------------
\20\ 1 F.3d 1274, 1278 (D.C. Cir. 1993).
---------------------------------------------------------------------------
Electronic mail is used not just by Federal employees to
conduct official business, but also in circumstances where the
employees may have an expectation of privacy or
confidentiality. This expectation may be compromised if the
messages are preserved as records and released to the public
under the FOIA. What constitutes an appropriate use of e-mail
systems by Federal employees and what legitimate expectations
of privacy those employees may have in particular e-mail
messages are important questions, but not policy determinations
to be made under the FOIA. Indeed, the National Archive and
Records Administration has concluded that ``E-mail records are
no more and no less important than other records. Agency
personnel must apply the same decision making process to e-mail
that they apply to other documentary materials regardless of
the media used to create them.'' 21
---------------------------------------------------------------------------
\21\ 60 Fed. Reg. 44634, 44635 (Aug. 28, 1995).
---------------------------------------------------------------------------
Electronic information or material maintained outside of
the Government that is accessed electronically by an agency,
but merely viewed by agency employees, should not be deemed to
come into the agency's possession and control by virtue of such
electronic access. Any such data on a networked computer,
however, that is retrieved into an agency database by an agency
employee or agent, or is printed out in paper form, becomes
subject to the Act. Rules governing the circumstances under
which agencies may merely view, and not preserve, data
distributed over networked computers in the performance of
their functions should be established through legal and policy
mechanisms other than the FOIA.
As a general rule, computer software should also be treated
as a ``record'' subject to the FOIA. ``Computer software'' may
be regarded as the computer programs, routines, and symbolic
languages that control the functioning and direct the operation
of computer hardware. Software that is generated totally at
Government expense, and in which there exists no private
proprietary interest, should be subject to the FOIA and
disclosed if not covered by a FOIA exemption (e.g., Exemption 2
which can protect against circumvention of computer-system
security).22 Such software should be made available at
direct cost under the FOIA, absent any specific congressional
authorization for the charging of a greater fee.
---------------------------------------------------------------------------
\22\ See Cleary, Gottlieb, Steen & Hamilton v. Dept. of Health and
Human Services, 844 F. Supp. 770 (D.D.C. 1993) (computer program
created by agency employee is an agency ``record'' under the FOIA but
under the circumstances were exempt from disclosure under the
deliberative process privilege in Exemption 5).
---------------------------------------------------------------------------
Any software that is generated by an outside party under a
Government contract, in which the Government has retained all
proprietary interest, should likewise be subject to the FOIA.
Any software that is generated by an agency and furnished to an
outside party ``exclusively'' under a cooperative agreement
should be treated under the Act in accordance with the
provisions of any specific congressional enactment pertaining
to such agreement.
Any software that is generated by an outside party under a
Government contract, in which the party retains some or all of
the proprietary interest, should be subject to disclosure under
the FOIA only insofar as is compatible with that proprietary
interest, as well as the interests protected by any other
applicable FOIA exemption, such as Exemption 2 or 3.
Any computer software that has been acquired by the
Government, and from an outside proprietary interest holder
under a licensing agreement that prohibits the software's
copying or distribution is excluded by the definition of a
``record'' under the bill. The most effective handling of an
FOIA request for such software would be for the agency simply
to identify the software as commercially available.
In circumstances where acquired software is not made
commercially available by the outside proprietary interest
holder, or the software has been customized and is therefore
not commercially available in the exact form in which it is
requested, both the circumstances of the acquisition and of the
proprietary interest shall have to be examined in order to
determine the software's status under the FOIA. Specifically, a
determination shall have to be made whether release is
permitted under the licensing agreement under which the agency
obtained the software, and whether such release is consistent
with the copyright or patent laws.
If the licensing agreement or other legal impediment bars
release of the requested computer software, agencies should
make efforts to segregate proprietary from nonproprietary
information in order to comply with the FOIA.
If an agency maintains an electronic information system in
such a way that objectively understandable access to any
nonexempt information in it is dependent upon a computer
program or software that is unavailable to the public, then the
agency must upon request, pursuant to the new requirement in
section 5 of the bill, take all reasonable steps to convert the
data in order to afford FOIA access to it in a requested
electronic form.
Agencies should make efforts to avoid this situation and
seek instead to obtain computer programs or software that are
available to the public either commercially or by release under
the FOIA. Agencies certainly should not use licensing
agreements to circumvent public access to electronic
information under the FOIA. Efforts to do so would be short-
sighted given the additional time, expense, and efforts that
must be undertaken by agencies to convert information from an
unreleasable electronic form to a releasable electronic form.
IV. Conclusion
Making Government information readily available
electronically can help to revitalize citizens' interest in
learning what their Government is doing and better their
understanding of the reasons underlying Government actions. The
Electronic Freedom of Information Improvement Act of 1996 is an
important step forward in using technology to make Government
more accessible and accountable to our citizens.
In addition, this bill takes steps to cure the lengthy
delays in obtaining responses to requests for agency records
under the FOIA. The American taxpayer has paid for the
collection and maintenance of these records and should get
prompt access to it upon request. That is what the law requires
and that is the standard of service Government agencies should
meet. Long delays in access can mean no access at all.
Patrick Leahy.
X. Changes in Existing Law Made by the Bill, As Amended
In compliance with paragraph 12, rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
Subchapter I--General Provisions
* * * * * * *
Sec. 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) Each agency shall separately state and currently
publish in the Federal Register including by computer
telecommunications, or if computer telecommunications
means are not available, by other electronic means, for
the guidance of the public--
(A) descriptions of its central and field
organization and the established places at
which, the employees (and in the case of a
uniformed service, the members) from whom, and
the methods whereby, the public may obtain
information, make submittals or requests, or
obtain decisions;
(B) statements of the general course and
method by which its functions are channeled and
determined, including the nature and
requirements of all formal and informal
procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be
obtained, and instructions as to the scope and
contents of all papers, reports or
examinations;
(D) substantive rules of general
applicability adopted as authorized by law, and
statements of general policy or interpretations
of general applicability formulated and adopted
by the agency; [and]
(E) 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
(F) each amendment, revision, or repeal of
the foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by
reference therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with published rules,
shall make available for public inspection and copying,
including, within 1 year after the date of the
enactment of the Electronic Freedom of Information
Improvement Act of 1996, by computer
telecommunications, or if computer telecommunications
means are not available, by other electronic means--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in
the adjudication of cases;
(B) those statements of policy and
interpretations which have been adopted by the
agency and are not published in the Federal
Register; [and]
(C) administrative staff manuals and
instructions to staff that affect a member of
the public;
(D) an index of all major information systems
containing agency records regardless of form or
format unless such an index is provided as
otherwise required by law;
(E) a description of any new major
information system with a statement of how such
system shall enhance agency operations under
this section;
(F) an index of all records which are made
available to any person under paragraph (3) of
this subsection; and
(G) copies of all records, regardless of form
or format, which because of the nature of their
subject matter, have become or are likely to
become the subject of subsequent requests for
substantially the same records under paragraph
(3) of this subsection;
unless the materials are promptly published and copies
offered for sale. To the extent required to prevent a
clearly unwarranted invasion of personal privacy, an
agency may delete identifying details when it makes
available or publishes an opinion, statements of
policy, interpretation, [or staff manual or
instruction] staff manual, instruction, or index or
copies of records, which are made available under
paragraph (3) of this subsection. However, in each case
the justification for the deletion shall be explained
fully in writing and the extent of such deletion shall
be indicated on the portion of the record which is made
available or published at the place where such deletion
was made. Each agency shall also maintain and make
available for public inspection and copying current
indexes providing identifying information for the
public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph to
be made available or published. Each agency shall
promptly publish, quarterly or more frequently, and
distribute (by sale or otherwise) copies of each index
or supplements thereto unless it determines by order
published in the Federal Register that the publication
would be unnecessary and impracticable, in which case
the agency shall nonetheless provide copies of such
index on request at a cost not to exceed the direct
cost of duplication. A final order, opinion, statements
of policy, interpretation, or staff manual or
instruction that affects a member of the public may be
relied on, used, or cited as precedent by an agency
against a party other than an agency only if--
(i) it has been indexed and either made
available or published as provided by this
paragraph; or
(ii) the party has actual and timely notice
of the terms thereof.
(3)(A) Except with respect to the records made
available under paragraphs (1) and (2)(A) through (F)
of this subsection, each agency, upon any request for
records which [(A) reasonably] (i) reasonably describes
such records and [(B)] (ii) is made in accordance with
published rules stating the time, place, fees (if any),
and procedures to be followed, shall make the records
promptly available to any person.
(B) An agency shall, as requested by any person,
provide records in any form or format in which such
records are maintained by that agency.
(C) An agency shall make reasonable efforts to search
for records in electronic form or format and provide
records in the form or format requested by any person,
including in an electronic form or format, even where
such records are not usually maintained but are
available in such form or format.
(4)(A)(i) In order to carry out the provisions of
this section, each agency shall promulgate regulations,
pursuant to notice and receipt of public comment,
specifying the schedule of fees applicable to the
processing of requests under this section and
establishing procedures and guidelines for determining
when such fees should be waived or reduced. Such
schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public
comment, by the Director of the Office of Management
and Budget and which shall provide for a uniform
schedule of fees for all agencies.
* * * * * * *
(vii) In any action by a requester regarding the
waiver of fees under this section, the court shall
determine the matter de novo: Provided, that the
court's review of the matter shall be limited to the
record before the agency.
(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.
* * * * * * *
(D) Repealed.
(E)(i) The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in
which the complainant has substantially prevailed.
(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 set forth under paragraph (6) (B) or (C)
of this subsection.
* * * * * * *
(5) Each agency having more than one member shall
maintain and make available for public inspection a
record of the final votes of each member in every
agency proceeding.
(6)(A) Each agency, upon any request for records made
under paragraph (1), (2), or (3) of this subsection,
shall--
(i) determine within [ten days] twenty days
(excepting Saturdays, Sundays, and legal public
holidays) after the receipt of any such request
whether to comply with such a request and shall
immediately notify the person making such
request of such determination and the reasons
therefor, and of the right of such person to
appeal to the head of the agency any adverse
determination; and
(ii) make a determination with respect to any
appeal within twenty days (excepting Saturdays,
Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial
of the request for records is in the whole or
in part upheld, the agency shall notify the
person making such request of the provisions
for judicial review of that determination under
paragraph (4) of this subsection.
* * * * * * *
(C) Any person making a request to any agency for
records under paragraph (1), (2), or (3) of this
subsection shall be deemed to have exhausted his
administrative remedies with respect to such request if
the agency fails to comply with the applicable time
limit provisions of this paragraph. If the Government
can show exceptional circumstances exist and that the
agency is exercising due diligence in responding to the
request, the court may retain jurisdiction and allow
the agency additional time to complete its review of
the records. As used in this subparagraph, for requests
submitted pursuant to paragraph (3) after the date of
the enactment of the Electronic Freedom of Information
Improvement Act of 1996, the term ``exceptional
circumstances'' means circumstances that are unforeseen
and shall not include delays that result from a
predictable workload, including any ongoing agency
backlog, in the ordinary course of processing requests
for records. Upon any determination by an agency to
comply with a request for records, the records shall be
made promptly available to such person making such
request. [Any notification of denial of any requests
for records under this subsection shall set forth the
names and titles or positions of each person
responsible for the denial of such request.] 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.
(D)(i) Each agency shall adopt a first-in, first-out
(hereafter in this subparagraph referred to as FIFO)
processing policy in determining the order in which
requests are processed. The agency may establish
separate processing tracks for simple and complex
requests using FIFO processing within each track.
(ii) For purposes of such a multi-track system-
(I) a simple request shall be a request
requiring 10 days or less to make a
determination on whether to comply with such a
request; and
(II) a complex request shall be a request
requiring more than 10 days to make a
determination on whether to comply with such a
request.
(iii) A multitrack system shall not negate a claim of
due diligence under subparagraph (C), if FIFO
processing within each track is maintained and the
agency can show that it has reasonably allocated
resources to handle the processing for each track.
(E)(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 showing by the person making
such request of a compelling need for expedited access
to records, the agency determine within 10 days
(excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such a request, whether
to comply with such request. A request for records to
which the agency has granted expedited access shall be
processed as soon as practicable. A request for records
to which the agency has denied expedited access shall
be processed within the time limits under paragraph (6)
of this subsection.
(ii) A person whose request for expedited access has
not been decided within 10 days of its receipt by the
agency or has been denied shall be required to exhaust
administrative remedies. A request for expedited access
which has not been decided may be appealed to the head
of the agency within 15 days (excepting Saturdays,
Sundays, and legal public holidays) after its receipt
by the agency. A request for expedited access that has
been denied by the agency may be appealed to the head
of the agency within 5 days (excepting Saturdays,
Sundays, and legal public holidays) after the person
making such request receives notice of the agency's
denial. If an agency head has denied, affirmed a
denial, or failed to respond to a timely appeal of a
request for expedited access, a court which would have
jurisdiction of an action under paragraph 4(B) of this
subsection may, upon complaint, require the agency to
show cause why the request for expedited access should
not be granted, except that such review shall be
limited to the record before the agency.
(iii) The burden of demonstrating a compelling need
by a person making a request for expedited access may
be met by a showing, which such person certifies under
penalty of perjury to be true and correct to the best
of such person's knowledge and belief, that failure to
obtain the requested records within the timeframe for
expedited access under this paragraph would--
(I) threaten an individual's life or safety;
(II) result in the loss of substantial due
process rights and the information sought is
not otherwise available in a timely fashion; or
(III) affect public assessment of the nature
and propriety of actual or alleged governmental
actions that are the subject of widespread,
contemporaneous media coverage.
(b) This section does not apply to matters that are--
(1) (A) specifically authorized under criteria
established by an Executive order to be kept secret in
the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such
Executive order;
* * * * * * *
(9) geological and geophysical information and data,
including maps, concerning wells.
Any reasonable segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection, and the extent
of such deletion shall be indicated on the released portion of
the record at the place in the record where such deletion was
made.
* * * * * * *
[(f) For purposes of this section, 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.]
(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'' means all books, papers,
maps, photographs, machine-readable materials, or other
information or documentary materials, regardless of
physical form or characteristics, but does not
include--
(A) library and museum material acquired or
received and preserved solely for reference or
exhibition purposes;
(B) extra copies of documents preserved
solely for convenience of reference;
(C) stocks of publications and of processed
documents; or
(D) computer software which is obtained by an
agency under a licensing agreement prohibiting
its replications or distributions; and
(3) the term ``search'' means a manual or automated
review of agency records that is conducted for the
purpose of locating those records which are responsive
to a request under subsection (a)(3)(A) of this
section.
<greek-d>

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