[Congressional Bills 104th Congress]
[From the U.S. Government Printing Office]
[H.R. 3802 Received in Senate (RDS)]
104th CONGRESS
2d Session
H. R. 3802
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 18, 1996
Received
_______________________________________________________________________
AN ACT
To amend section 552 of title 5, United States Code, popularly known as
the Freedom of Information Act, to provide for public access to
information in an electronic format, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

f1f1e0d98b8f9d04e4e806749f2968baafe630e00920ca149a32ad3239cc22b6

This Act may be cited as the ``Electronic Freedom of Information
Act Amendments of 1996''.

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(a) Findings.--The Congress finds that--
(1) the purpose of section 552 of title 5, United States
Code, popularly known as 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.

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Section 552(f) of title 5, United States Code, is amended to read
as follows:
``(f) For purposes of this section, the term--
``(1) `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; and
``(2) `record' and any other term used in this section in
reference to information includes any information that would be
an agency record subject to the requirements of this section
when maintained by an agency in any format, including an
electronic format.''.

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OF RECORDS.
Section 552(a)(2) of title 5, United States Code, is amended--
(1) in the second sentence, by striking ``or staff manual
or instruction'' and inserting ``staff manual, instruction, or
copies of records referred to in subparagraph (D)'';
(2) by inserting before the period at the end of the third
sentence the following: ``, and the extent of such deletion
shall be indicated on the portion of the record which is made
available or published, unless including that indication would
harm an interest protected by the exemption in subsection (b)
under which the deletion is made'';
(3) by inserting after the third sentence the following:
``If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was
made.'';
(4) in subparagraph (B), by striking ``and'' after the
semicolon;
(5) by inserting after subparagraph (C) the following:
``(D) copies of all records, regardless of form or format,
which have been released to any person under paragraph (3) and
which, because of the nature of their subject matter, the
agency determines have become or are likely to become the
subject of subsequent requests for substantially the same
records; and
``(E) a general index of the records referred to under
subparagraph (D);'';
(6) by inserting after the fifth sentence the following:
``Each agency shall make the index referred to in subparagraph
(E) available by computer telecommunications by December 31,
1999.''; and
(7) by inserting after the first sentence the following:
``For records created on or after November 1, 1996, within one
year after such date, each agency shall make such records
available, including by computer telecommunications or, if
computer telecommunications means have not been established by
the agency, by other electronic means.''.

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Section 552(a)(3) of title 5, United States Code, is amended--
(1) by inserting ``(A)'' after ``(3)'';
(2) by striking ``(A)'' the second place it appears and
inserting ``(i)'';
(3) by striking ``(B)'' and inserting ``(ii)''; and
(4) by adding at the end the following new subparagraphs:
``(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by the
agency in that form or format. Each agency shall make reasonable
efforts to maintain its records in forms or formats that are
reproducible for purposes of this section.
``(C) In responding under this paragraph to a request for records,
an agency shall make reasonable efforts to search for the records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the agency's automated information
system.
``(D) For purposes of this paragraph, the term `search' means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.''.

09095b61b1a2c2f87bf22ba44fc65c0081709ed788ceda8edff208b1082160c7

Section 552(a)(4)(B) of title 5, United States Code, is amended by
adding at the end the following new sentence: ``In addition to any
other matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency concerning
the agency's determination as to technical feasibility under paragraph
(2)(C) and subsection (b) and reproducibility under paragraph
(3)(B).''.

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(a) Multitrack Processing.--Section 552(a)(6) of title 5, United
States Code, is amended by adding at the end the following new
subparagraph:
``(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
``(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in order to
qualify for faster processing.
``(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.''.
(b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United
States Code, is amended to read as follows:
``(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i) or clause
(ii) of subparagraph (A) may be extended by written notice to the
person making such request setting forth the unusual circumstances for
such extension and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result in an
extension for more than ten working days, except as provided in clause
(ii) of this subparagraph.
``(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the request
if the request cannot be processed within the time limit specified in
that clause and shall provide the person an opportunity to limit the
scope of the request so that it may be processed within that time limit
or an opportunity to arrange with the agency an alternative time frame
for processing the request or a modified request. Refusal by the person
to reasonably modify the request or arrange such an alternative time
frame shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of subparagraph (C).
``(iii) As used in this subparagraph, `unusual circumstances'
means, but only to the extent reasonably necessary to the proper
processing of the particular requests--
``(I) the need to search for and collect the requested
records from field facilities or other establishments that are
separate from the office processing the request;
``(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request; or
``(III) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or
among two or more components of the agency having substantial
subject-matter interest therein.
``(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of requestors acting in
concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated.''.
(c) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5,
United States Code, is amended by inserting ``(i)'' after ``(C)'', and
by adding at the end the following new clauses:
``(ii) For purposes of this subparagraph, the term `exceptional
circumstances' does not include a delay that results from a predictable
agency workload of requests under this section, unless the agency
demonstrates reasonable progress in reducing its backlog of pending
requests.
``(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a request
(or a modified request) under clause (ii) after being given an
opportunity to do so by the agency to whom the person made the request
shall be considered as a factor in determining whether exceptional
circumstances exist for purposes of this subparagraph.''.

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(a) Expedited Processing.--Section 552(a)(6) of title 5, United
States Code (as amended by section 7(a) of this Act), is further
amended by adding at the end the following new subparagraph:
``(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records--
``(I) in cases in which the person requesting the records
demonstrates a compelling need; and
``(II) in other cases determined by the agency.
``(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure--
``(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall
be provided to the person making the request, within 10 days
after the date of the request; and
``(II) expeditious consideration of administrative appeals
of such determinations of whether to provide expedited
processing.
``(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing under
this subparagraph. Agency action to deny or affirm denial of a request
for expedited processing pursuant to this subparagraph, and failure by
an agency to respond in a timely manner to such a request shall be
subject to judicial review under paragraph (4), except that the
judicial review shall be based on the record before the agency at the
time of the determination.
``(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a
request for records after the agency has provided a complete response
to the request.
``(v) For purposes of this subparagraph, the term `compelling need'
means--
``(I) that a failure to obtain requested records on an
expedited basis under this paragraph could reasonably be
expected to pose an imminent threat to the life or physical
safety of an individual; or
``(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government
activity.
``(vi) A demonstration of a compelling need by a person making a
request for expedited processing shall be made by a statement certified
by such person to be true and correct to the best of such person's
knowledge and belief.''.
(b) Extension of General Period for Determining Whether To Comply
With a Request.--Section 552(a)(6)(A)(i) of title 5, United States
Code, is amended by striking ``ten days'' and inserting ``20 days''.
(c) Estimation of Matter Denied.--Section 552(a)(6) of title 5,
United States Code (as amended by section 7 of this Act and subsection
(a) of this section), is further amended by adding at the end the
following new subparagraph:
``(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of any
requested matter the provision of which is denied, and shall provide
any such estimate to the person making the request, unless providing
such estimate would harm an interest protected by the exemption in
subsection (b) pursuant to which the denial is made.''.

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Section 552(b) of title 5, United States Code, is amended in the
matter following paragraph (9) by inserting after the period the
following: ``The amount of information deleted shall be indicated on
the released portion of the record, unless including that indication
would harm an interest protected by the exemption in this subsection
under which the deletion is made. If technically feasible, the amount
of the information deleted shall be indicated at the place in the
record where such deletion is made.''.

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Section 552(e) of title 5, United States Code, is amended to read
as follows:
``(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General of the United States a report which
shall cover the preceding fiscal year and which shall include--
``(A) the number of determinations made by the agency not
to comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
``(B)(i) the number of appeals made by persons under
subsection (a)(6), the result of such appeals, and the reason
for the action upon each appeal that results in a denial of
information; and
``(ii) a complete list of all statutes that the agency
relies upon to authorize the agency to withhold information
under subsection (b)(3), a description of whether a court has
upheld the decision of the agency to withhold information under
each such statute, and a concise description of the scope of
any information withheld;
``(C) the number of requests for records pending before the
agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the
agency as of that date;
``(D) the number of requests for records received by the
agency and the number of requests which the agency processed;
``(E) the median number of days taken by the agency to
process different types of requests;
``(F) the total amount of fees collected by the agency for
processing requests; and
``(G) the number of full-time staff of the agency devoted
to processing requests for records under this section, and the
total amount expended by the agency for processing such
requests.
``(2) Each agency shall make each such report available to the
public including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.
``(3) The Attorney General of the United States shall make each
report which has been made available by electronic means available at a
single electronic access point. The Attorney General of the United
States shall notify the Chairman and ranking minority member of the
Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the
Committees on Governmental Affairs and the Judiciary of the Senate, no
later than April 1 of the year in which each such report is issued,
that such reports are available by electronic means.
``(4) The Attorney General of the United States, in consultation
with the Director of the Office of Management and Budget, shall develop
reporting and performance guidelines in connection with reports
required by this subsection by October 1, 1997, and may establish
additional requirements for such reports as the Attorney General
determines may be useful.
``(5) The Attorney General of the United States shall submit an
annual report on or before April 1 of each calendar year which shall
include for the prior calendar year a listing of the number of cases
arising under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed
under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report
shall also include a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this
section.''.

927e92a8f95f80edf546295a41b46ef6db3e20b8b5eb9b6b4ebd0d9d9f5cad1e

Section 552 of title 5, United States Code, is amended by adding
after subsection (f) the following new subsection:
``(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for requesting
records or information from the agency, subject to the exemptions in
subsection (b), including--
``(1) an index of all major information systems of the
agency;
``(2) a description of major information and record locator
systems maintained by the agency; and
``(3) a handbook for obtaining various types and categories
of public information from the agency pursuant to chapter 35 of
title 44, and under this section.''.

84537e7ee31bd062648ee3cda9224ec9225e7a68ad0422abb07f23c8fcf02398

(a) In General.--Except as provided in subsection (b), this Act
shall take effect 180 days after the date of the enactment of this Act.
(b) Provisions Effective on Enactment.--Sections 7 and 8 shall take
effect one year after the date of the enactment of this Act.
Passed the House of Representatives September 17, 1996.
Attest:
ROBIN H. CARLE,
Clerk.

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Electronic Freedom of Information Amendments of 1996 — HR. 3802

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