[House Report 115-1046]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1046
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SETTLEMENT AGREEMENT INFORMATION DATABASE ACT OF 2018
_______
November 27, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 6777]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 6777) to amend chapter 3 of title
5, United States Code, to require the publication of settlement
agreements, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 2
Background and Need for Legislation.............................. 2
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 4
Statement of General Performance Goals and Objectives............ 5
Legislative History.............................................. 5
Committee Consideration.......................................... 5
Roll Call Votes.................................................. 5
Explanation of Amendments........................................ 5
Application of Law to the Legislative Branch..................... 5
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Federal Advisory Committee Act................................... 6
Unfunded Mandates Statement...................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 6
Section-by-Section Analysis...................................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Summary and Purpose of Legislation
H.R. 6777, the Settlement Agreement Information Database
Act of 2018, requires the establishment of a centralized,
publicly-available settlements database. The bill directs
federal agencies to publish information about settlement
agreements to the database. When settlement details are deemed
confidential, H.R. 6777 directs the heads of agencies to issue
a written public statement justifying any confidentiality
requirements preventing the release of the required
information.
Background and Need for Legislation
Federal agencies often resolve litigation by entering into
legally-binding consent decrees and settlement agreements in
order to avoid lengthy trials.\1\ This process has dictated an
``enormous range'' of policies across governmental programs,
states, and cities in ``special education, mental hospitals,
environmental protection, and prisons.''\2\ Settlement
agreements can require actions extending beyond the scope of
the original violation of federal law, and in some cases remain
in effect for decades.\3\
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\1\Ross Sandler & David Schoenbrod, Democracy By Decree: What
Happens When Courts Run Government, Yale University Press 4 (2003).
\2\Id. at 4.
\3\Michael E. DeBow, Gary J. Palmer, & John J. Park, Jr., Alabama
Policy Inst., Consent Decrees in Institutional Reform Litigation:
Strategies for State Legislatures (2008), https://
www.alabamapolicy.org/wp-content/uploads/2018/01/API-Research-Consent-
Decrees.pdf.
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The Committee examined the effect of the sue-and-settle
process on states and local governments in two subcommittee
joint hearings in May and July 2017.\4\ In the July 2017
hearing, City Administrator Carl Geffken testified before the
subcommittees on the economic impact of a consent decree on the
city of Fort Smith, Arkansas.\5\ Prior to the consent decree,
the city was subject to one of the Environmental Protection
Agency's (EPA) oldest administrative orders still in effect.\6\
According to Mr. Geffken, the Department of Justice (DOJ) and
the Arkansas State Attorney General ``browbeat and coerced Fort
Smith into accepting a consent decree'' to reform its sewer
systems by threatening millions of dollars in legal fees,
despite the city investing $200 million into compliance
efforts.\7\
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\4\Examining `Sue and Settle' Agreements: Part I: Hearing Before
the Subcomm. on Intergovernmental Affairs and the Subcomm. on the
Interior, Energy, & Environment of the H. Comm, on Oversight & Gov't
Reform, 115th Cong. (May 24, 2017); Examining `Sue and Settle'
Agreements: Part II: Hearing Before the Subcomm. on Intergovernmental
Affairs and the Subcomm. on the Interior, Energy, & Environment of the
H. Comm, on Oversight & Gov't Reform, 115th Cong. (July 25, 2017).
\5\Examining `Sue and Settle' Agreements: Part II: Hearing Before
the Subcomm. on Intergovernmental Affairs and the Subcomm. on the
Interior, Energy & Environment of the H. Comm, on Oversight & Gov't
Reform, 115th Cong. (July 25, 2017).
\6\Id.
\7\Id.
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The resulting consent decree caused further deleterious
effects from the imposition of unusual terms. While other
cities under similar orders had 20 years to achieve compliance,
Fort Smith's consent decree mandates a 12-year completion
date.\8\ The cost of the consent decree also exceeded federal
guidelines, costing more than 2 percent of the median household
income (MHI).\9\ Moreover, Fort Smith sewer utility bills
increased by 167 percent in 3 years to fund the provisions
required by the consent decree, while residents' incomes
simultaneously decreased by 11 percent.\10\ Ultimately, it is
projected to cost double the city's annual total budget for all
government activities to achieve full compliance.\11\
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\8\Id.
\9\Id.
\10\Examining `Sue and Settle' Agreements: Part II: Hearing Before
the H. Comm. On Oversight & Gov't Reform, 115th Cong. (2017) (Statement
of Carl E. Geffken, City Administrator, City of Fort Smith, Arkansas).
\11\Id., at 9.
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In the same hearing, former Michigan Governor John Engler
testified some Federal judges are unaware of the number of
consent decrees they enforce in their caseload, due to
inadequate recordkeeping.\12\
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\12\Id.
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Arbitrary and opaque settlement agreement provisions have
profound consequences on states, municipalities, and federal
entities, and prevent Congress and the public from fully
evaluating their impact. Federal agencies are generally not
required to publish information on settlement agreements.
Further, Federal agencies can seal decisions or determine the
terms of the settlement agreement are confidential with no
explanation to the public.\13\ There is no rule or regulation
mandating that the agencies explain why one was determined to
be confidential and another was not, leading to a further lack
of transparency and the appearance of an arbitrary process.\14\
This appearance is compounded by the agency practice of
designating some agreements as ``solely an Agreement in
Principle,'' which allows the agency to postpone publishing the
terms of the consent decree until an indeterminate later
date.\15\
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\13\Phineas Baxandall & Michelle Surka, Settling for a Lack of
Accountability? Which Federal Agencies Allow Companies to Write Off
Out-of-Court Settlements as Tax Deductions, and Which are Transparent
about it, U.S. Public Interest Research Group Education Fund (Dec.
2015), https://uspirgedfund.org/sites/pirg/files/reports/USPIRG_
SettlementsReport.pdf [hereinafter Baxandall & Surka].
\14\Id.
\15\Id.
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Most of the public's access to Federal settlement agreement
information is primarily determined by individual agency
discretion, most commonly issued in the form of a press
release.\16\ Recently, some Federal agencies have attempted to
increase accountability and transparency with respect to
settlement agreements.
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\16\Id.
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In October 2017, the EPA issued an agency-wide directive
modifying its settlement agreement practices, which requires:
1. Publishing any notices of intent to sue the agency
within 15 days of receiving the notice;
2. Publishing any complaints or petitions for review
in regard to an environmental law, regulation, or rule
in which the agency is a defendant or respondent in
federal court within 15 days of receipt;
3. Reaching out to and including any states and/or
regulated entities affected by potential settlements or
consent decrees;
4. Publishing a list of consent decrees and
settlement agreements that govern agency actions within
30 days, along with any attorney fees paid, and update
it within 15 days of any new consent decree or
settlement agreement;
5. Expressly forbidding the practice of entering into
any consent decrees that exceed the authority of the
courts;
6. Excluding attorney's fees and litigation costs
when settling with those suing the agency;
7. Providing sufficient time to issue or modify
proposed and final rules, take and consider public
comment; and
8. Publishing any proposed or modified consent
decrees and settlements for 30-day public comment, and
providing a public hearing on a proposed consent decree
or settlement when requested.\17\
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\17\EPA, Directive Promoting Transparency and Public Participation
in Consent Decrees and Settlement Agreements (2017).
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The Department of the Interior (Interior) also established
a policy mandating new practices to boost transparency.\18\ For
example, Interior will establish a ``publicly accessible
litigation webpage,'' which includes a searchable list of all
consent decrees and settlement agreements still in effect.\19\
The litigation webpage will be updated with any new settlement
agreements and decrees, and maintained in a way to maximize
public utility.\20\
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\18\Dep't of the Interior, Order No. 3368, Promoting Transparency
and Accountability in Consent Decrees and Settlement Agreements (2018).
\19\Id.
\20\Id.
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The Department of Justice, in contrast, has historically
lacked transparency in its settlement practices.\21\ The DOJ is
both the largest originator of settlements, as well as the main
negotiating agency for other Federal agencies.\22\ As such, the
DOJ has the greatest potential impact on federal settlement
agreement transparency practices. According to a report by the
Public Interest Research Group, with regard to DOJ settlements,
``the percent of publicly announced settlements with text
posted on line declined from 35 percent in 2012 to 25 percent
in 2014.''\23\
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\21\Baxandall & Surka, supra note 13.
\22\Id.
\23\Id., at 28.
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To extend transparency across the Federal government, the
Settlement Agreement Information Database Act (SAID Act)
requires establishment of an electronic and publicly-available
database of settlement agreements entered into by Federal
agencies. Similar to existing EPA and DOJ policies,\24\ H.R.
6777 requires federal agencies to submit settlement agreement
information into the database, including dates, payments,
awarding of attorney fees, and a list of State and local
governments directly affected by the agreement. In cases where
the terms of an agreement are deemed confidential, the bill
requires agency heads to issue a written public statement
justifying the nondisclosure.
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\24\Id.
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The SAID Act does not establish any novel or overly
burdensome requirements. Most of the information required for
posting is readily apparent on the face of the settlement
agreements and in the posted information that often accompanies
agreements, such as fact sheets and press releases.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the previous section.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to increase public access to
federal agency settlement agreement records.
Legislative History
On September 12, 2018, Representative Gary Palmer (R-AL)
introduced H.R. 6777, the Settlement Agreement Information
Database Act of 2018. H.R. 6777 was referred to the Committee
on Oversight and Government Reform. The Committee considered
H.R. 6777 at a business meeting on September 27, 2018, and
ordered the bill favorably reported to the House by unanimous
consent.
Committee Consideration
On September 27, 2018, the Committee met in open session
and, with a quorum being present, ordered the bill favorably
reported to the House by unanimous consent.
Roll Call Votes
There were no roll call votes requested or conducted during
Committee consideration of H.R. 6777.
Explanation of Amendments
There were no amendments to H.R. 6777 offered or adopted
during Committee consideration of the bill.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill is to increase public access to federal agency
settlement agreement records. As such, this bill does not
relate to employment or access to public services and
accommodations.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget Act of
1974 the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 18, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6777, the
Settlement Agreement Information Database Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 6777--Settlement Agreement Information Database Act of 2018
H.R. 6777 would establish new requirements for the public
disclosure of settlement agreements entered into by federal
agencies. Specifically, the legislation would require that the
text of such agreements be posted online. Under the bill, each
posted settlement would include a copy of the agreement, the
names of the parties involved, a description of the claims
settled, the amount to be paid and to whom it was paid, the
length of the agreement, and how the agreement came about. In
addition, H.R. 6777 would require the agencies to report on any
agreements that are confidential and the reasoning for that
arrangement.
CBO estimates that enacting H.R. 6777 would have no
significant effect on the federal budget because most of the
required information is already collected during the settlement
process and the cost of making it available online would not be
significant.
Enacting H.R. 6777 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) that are
authorized to use receipts from the sale of goods, fees, and
other collections to cover their operating costs; therefore,
pay-as-you-go procedures apply. Because most of those agencies
can adjust the amounts collected, CBO estimates that any net
changes in direct spending by those agencies would be
negligible. Enacting the bill would not affect revenues.
CBO estimates that enacting H.R. 6777 would not
significantly increase net direct spending or on-budget
deficits in any of the four consecutive 10-year periods
beginning in 2029.
H.R. 6777 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Section-by-Section Analysis
Section 1. Short title
Section 1 designates the short title of the bill as the
``Settlement Agreement Information Database Act of 2018.''
Section 2. Information regarding settlement agreements entered into by
Federal Agencies
Section 2 amends chapter 3 of title 5, United States Code,
by adding section 307, which establishes new information
disclosure requirements for Federal agencies regarding
settlement agreements.
Section 307. Information regarding settlement agreements
Section 307 requires the establishment of a centralized and
publicly available settlement agreement information database,
which will be overseen by the Director of the Office of
Management and Budget (OMB). OMB has one year to execute
database operations.
The head of each Executive agency is required to submit to
the database a list of each agency settlement agreement,
including: (1) the category of the settlement agreement; (2)
the date of entry; (3) a list of specific violations and a
description of the claims settled; (4) the awarding of
attorneys' fees and related costs; (5) the amount each settling
party is obligated to pay; (6) the projected duration of the
settlement agreement; (7) a list of State or local governments
that may be directly affected; (8) a summary of economic data
and methodology; (9) any applicable modifications; (10) notice
and comments; and (11) a copy of the settlement agreement. The
section clarifies it is the originating agency's responsibility
to submit such information.
The section includes an exemption of the disclosure of
information in circumstances where there is a confidentiality
agreement or other exemptions provided under the Freedom of
Information Act, as long as the appropriate citation is
provided. Agency heads are also required to issue a written
public statement explaining the sealing of information and
documents in circumstances where a settlement agreement
requires a confidentiality agreement.
The section further requires OMB to issue guidelines to
ensure a standardized approach to data and information sharing
from Federal agencies to the database, with such information
remaining publicly available for a period of five years after
the termination of the settlement agreement. Agency heads are
required to begin submitting information to the database not
later than 90 days after the issuance of the OMB guidance.
The section includes a clerical amendment to update the
table of sections and defines several terms used within the
section.
Section 3. Amendments to the Freedom of Information Act
Section 3 creates a new subparagraph (B) of section
552(a)(2) of title 5, United States Code, which extends
redactions and exemptions to settlement agreements, as defined
in section 307.
Section 4. Rule of construction
Section 4 clarifies the bill is not intended to require
public disclosure of agency information or records otherwise
protected from disclosure under the Freedom of Information Act.
Section 5. Effective date; applicability
Section 5 requires the application of the bill 180 days
after enactment, which will apply to any settlement agreement
entered into on or after enactment, as well as any settlement
agreement remaining in effect on or after enactment, to the
extent practicable.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, 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, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 3--POWERS
Sec.
301. Departmental regulations.
* * * * * * *
307. Information regarding settlement agreements.
* * * * * * *
Sec. 307. Information regarding settlement agreements
(a) Definitions.--In this section:
(1) Local government.--The term ``local government''
has the meaning given that term in section 6501 of
title 31.
(2) Order type.--The term ``order type'' means the
type of action or instrument used to settle a civil or
criminal judicial action.
(3) Settlement agreement.--The term ``settlement
agreement'' means a settlement agreement (including a
consent decree) that--
(A) is entered into by an Executive agency;
and
(B) relates to an alleged violation of
Federal civil or criminal law.
(4) State.--The term ``State'' means each of the
several States, the District of Columbia, each
territory or possession of the United States, and each
federally recognized Indian Tribe.
(b) Settlement Agreement Information Database.--
(1) Executive agency requirement.--
(A) In general.--Subject to subparagraph (B),
the head of each Executive agency shall, in
accordance with guidance issued pursuant to
paragraph (2), submit the following information
to the database established under paragraph
(3):
(i) A list of each settlement
agreement, in a categorized and
searchable format, entered into by the
Executive agency, as a party to a
lawsuit, which shall include, for each
settlement agreement--
(I) the order type of the
settlement agreement;
(II) the date on which the
parties entered into the
settlement agreement;
(III) a list of specific
violations that specify the
basis for the action taken,
with a description of the
claims each party settled under
the settlement agreement;
(IV) the amount of attorneys'
fees and other litigation costs
awarded, if any, including a
description of the statutory
basis for such an award;
(V) the amount each party
settling a claim under the
settlement agreement is
obligated to pay under the
settlement agreement;
(VI) the total amount the
settling parties are obligated
to pay under the settlement
agreement;
(VII) the amount, if any, the
settling party is obligated to
pay that is expressly specified
under the settlement agreement
as a civil or criminal penalty
or fine;
(VIII) any payment made under
the settlement agreement,
including a description of any
payment made to the Federal
Government;
(IX) the projected duration
of the settlement agreement, if
available;
(X) a list of State or local
governments that may be
directly affected by the terms
of the settlement agreement;
(XI) a brief description of
any economic data and
methodology used to justify the
terms of the settlement
agreement;
(XII) any modifications to
the settlement agreement, when
applicable;
(XIII) notice and comments,
when applicable; and
(XIV) whether the settlement
agreement is still under
judicial enforcement and any
period of time by which the
parties agreed to have certain
conditions met.
(ii) A copy of each--
(I) settlement agreement
entered into by the Executive
agency; and
(II) statement issued under
paragraph (4).
(B) Nondisclosure.--The requirement to submit
information or a copy of a settlement agreement
under subparagraph (A) shall not apply to the
extent the information or copy (or portion
thereof)--
(i) is subject to a confidentiality
provision that prohibits disclosure of
the information or copy (or portion
thereof); and
(ii) would not be disclosed under
section 552, if the Executive agency
provides a citation to the applicable
exemption.
(C) Clarification of responsible agency.--In
a case in which an Executive agency is acting
at the request or on behalf of another
Executive agency (referred to as the
originating agency), the originating agency is
responsible for submitting information under
subparagraph (A).
(2) Guidance.--The Director of the Office of
Management and Budget shall issue guidance for
Executive agencies to implement paragraph (1). Such
guidance shall include the following:
(A) Specific dates by which submissions must
be made, not less than twice a year.
(B) Data standards, including common data
elements and a common, nonproprietary,
searchable, machine-readable, platform
independent format.
(C) A requirement that the information and
documents required under paragraph (1) are
publicly available for a period starting on the
date of the settlement through not less than 5
years after the termination of the settlement
agreement.
(3) Establishment of database.--The Director of the
Office of Management and Budget, or the head of an
Executive agency designated by the Director, shall
establish and maintain a public, searchable,
downloadable database for Executive agencies to
directly upload and submit the information and
documents required under paragraph (1) for immediate
publication online.
(4) Statement of confidentiality.--If the head of an
Executive agency determines that a confidentiality
provision in a settlement agreement, or the sealing of
a settlement agreement, is required to protect the
public interest of the United States, the head of the
Executive agency may except the settlement agreement
from the requirement in paragraph (1) and shall issue a
written public statement stating why such action is
required to protect the public interest of the United
States, which shall explain--
(A) what interests confidentiality protects;
and
(B) why the interests protected by
confidentiality outweigh the public's interest
in knowing about the conduct of the Federal
Government and the expenditure of Federal
resources.
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
* * * * * * *
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 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) 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 in an electronic format--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the
adjudication of cases;
(B) each settlement agreement (as defined in section
307) entered into by an Executive agency, with
redactions for information that the agency may withhold
under paragraph (8) and subsections (b) and (c) of this
section;
[(B)] (C) those statements of policy and
interpretations which have been adopted by the agency
and are not published in the Federal Register;
[(C)] (D) administrative staff manuals and
instructions to staff that affect a member of the
public;
[(D)] (E) copies of all records, regardless of form
or format--
(i) that have been released to any person
under paragraph (3); and
(ii)(I) that 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; or
(II) that have been requested 3 or more
times; and
[(E)] (F) a general index of the records referred to
under subparagraph (D);
unless the materials are promptly published and copies offered
for sale. 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. 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, statement of policy,
interpretation, staff manual, instruction, or copies of records
referred to in subparagraph (D). 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,
unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where
the deletion was made. Each agency shall also maintain and make
available for public inspection in an electronic format 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.
Each agency shall make the index referred to in subparagraph
(E) available by computer telecommunications by December 31,
1999. A final order, opinion, statement 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) of this subsection, and except as
provided in subparagraph (E), each agency, upon any request for
records which (i) reasonably describes such records and (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) 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.
(E) An agency, or part of an agency, that is an element of
the intelligence community (as that term is defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)))
shall not make any record available under this paragraph to--
(i) any government entity, other than a State,
territory, commonwealth, or district of the United
States, or any subdivision thereof; or
(ii) a representative of a government entity
described in clause (i).
(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.
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review,
when records are requested for commercial use;
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the request is made by an
educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II),
fees shall be limited to reasonable standard charges
for document search and duplication.
In this clause, the term ``a representative of the news media''
means any person or entity that gathers information of
potential interest to a segment of the public, uses its
editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. In this clause,
the term ``news'' means information that is about current
events or that would be of current interest to the public.
Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators
of ``news'') who make their products available for purchase by
or subscription by or free distribution to the general public.
These examples are not all-inclusive. Moreover, as methods of
news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through
telecommunications services), such alternative media shall be
considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the
journalist can demonstrate a solid basis for expecting
publication through that entity, whether or not the journalist
is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the
Government may also consider the past publication record of the
requester in making such a determination.
(iii) Documents shall be furnished without any charge or at a
charge reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because
it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
requester.
(iv) Fee schedules shall provide for the recovery of only the
direct costs of search, duplication, or review. Review costs
shall include only the direct costs incurred during the initial
examination of a document for the purposes of determining
whether the documents must be disclosed under this section and
for the purposes of withholding any portions exempt from
disclosure under this section. Review costs may not include any
costs incurred in resolving issues of law or policy that may be
raised in the course of processing a request under this
section. No fee may be charged by any agency under this
section--
(I) if the costs of routine collection and processing
of the fee are likely to equal or exceed the amount of
the fee; or
(II) for any request described in clause (ii) (II) or
(III) of this subparagraph for the first two hours of
search time or for the first one hundred pages of
duplication.
(v) No agency may require advance payment of any fee unless
the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed
$250.
(vi) Nothing in this subparagraph shall supersede fees
chargeable under a statute specifically providing for setting
the level of fees for particular types of records.
(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)(I) Except as provided in subclause (II), an agency
shall not assess any search fees (or in the case of a requester
described under clause (ii)(II) of this subparagraph,
duplication fees) under this subparagraph if the agency has
failed to comply with any time limit under paragraph (6).
(II)(aa) If an agency has determined that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provided a timely written notice to the
requester in accordance with paragraph (6)(B), a failure
described in subclause (I) is excused for an additional 10
days. If the agency fails to comply with the extended time
limit, the agency may not assess any search fees (or in the
case of a requester described under clause (ii)(II) of this
subparagraph, duplication fees).
(bb) If an agency has determined that unusual circumstances
apply and more than 5,000 pages are necessary to respond to the
request, an agency may charge search fees (or in the case of a
requester described under clause (ii)(II) of this subparagraph,
duplication fees) if the agency has provided a timely written
notice to the requester in accordance with paragraph (6)(B) and
the agency has discussed with the requester via written mail,
electronic mail, or telephone (or made not less than 3 good-
faith attempts to do so) how the requester could effectively
limit the scope of the request in accordance with paragraph
(6)(B)(ii).
(cc) If a court has determined that exceptional circumstances
exist (as that term is defined in paragraph (6)(C)), a failure
described in subclause (I) shall be excused for the length of
time provided by the court order.
(B) On complaint, the district court of the United States in
the district in which the complainant resides, or has his
principal place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from
the complainant. In such a case the court shall determine the
matter de novo, and may examine the contents of such agency
records in camera to determine whether such records or any part
thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the
agency to sustain its action. 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).
(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon the
defendant of the pleading in which such complaint is made,
unless the court otherwise directs for good cause shown.
[(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8,
1984, 98 Stat. 3357.]
(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) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained relief
through either--
(I) a judicial order, or an enforceable written
agreement or consent decree; or
(II) a voluntary or unilateral change in position by
the agency, if the complainant's claim is not
insubstantial.
(F)(i) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding. The
Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and
recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(ii) The Attorney General shall--
(I) notify the Special Counsel of each civil action
described under the first sentence of clause (i); and
(II) annually submit a report to Congress on the
number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to
Congress on the actions taken by the Special Counsel under
clause (i).
(G) In the event of noncompliance with the order of the
court, the district court may punish for contempt the
responsible employee, and in the case of a uniformed service,
the responsible member.
(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 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of any such request whether to comply with such request
and shall immediately notify the person making such
request of--
(I) such determination and the reasons
therefor;
(II) the right of such person to seek
assistance from the FOIA Public Liaison of the
agency; and
(III) in the case of an adverse
determination--
(aa) the right of such person to
appeal to the head of the agency,
within a period determined by the head
of the agency that is not less than 90
days after the date of such adverse
determination; and
(bb) the right of such person to seek
dispute resolution services from the
FOIA Public Liaison of the agency or
the Office of Government Information
Services; 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 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.
The 20-day period under clause (i) shall commence on the date
on which the request is first received by the appropriate
component of the agency, but in any event not later than ten
days after the request is first received by any component of
the agency that is designated in the agency's regulations under
this section to receive requests under this section. The 20-day
period shall not be tolled by the agency except--
(I) that the agency may make one request to the
requester for information and toll the 20-day period
while it is awaiting such information that it has
reasonably requested from the requester under this
section; or
(II) if necessary to clarify with the requester
issues regarding fee assessment. In either case, the
agency's receipt of the requester's response to the
agency's request for information or clarification ends
the tolling period.
(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). To aid the requester, each agency
shall make available its FOIA Public Liaison, who shall assist
in the resolution of any disputes between the requester and the
agency, and notify the requester of the right of the requester
to seek dispute resolution services from the Office of
Government Information Services.
(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)(i) 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. 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
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.
(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.
(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.
(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.
(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.
(7) Each agency shall--
(A) establish a system to assign an individualized
tracking number for each request received that will
take longer than ten days to process and provide to
each person making a request the tracking number
assigned to the request; and
(B) establish a telephone line or Internet service
that provides information about the status of a request
to the person making the request using the assigned
tracking number, including--
(i) the date on which the agency originally
received the request; and
(ii) an estimated date on which the agency
will complete action on the request.
(8)(A) An agency shall--
(i) withhold information under this section only if--
(I) the agency reasonably foresees that
disclosure would harm an interest protected by
an exemption described in subsection (b); or
(II) disclosure is prohibited by law; and
(ii)(I) consider whether partial disclosure of
information is possible whenever the agency determines
that a full disclosure of a requested record is not
possible; and
(II) take reasonable steps necessary to segregate and
release nonexempt information; and
(B) Nothing in this paragraph requires disclosure of
information that is otherwise prohibited from
disclosure by law, or otherwise exempted from
disclosure under subsection (b)(3).
(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;
(2) related solely to the internal personnel rules
and practices of an agency;
(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that
statute--
(A)(i) requires that the matters be withheld
from the public in such a manner as to leave no
discretion on the issue; or
(ii) establishes particular criteria for
withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment of
the OPEN FOIA Act of 2009, specifically cites
to this paragraph.
(4) trade secrets and commercial or financial
information obtained from a person and privileged or
confidential;
(5) inter-agency or intra-agency memorandums or
letters that would not be available by law to a party
other than an agency in litigation with the agency,
provided that the deliberative process privilege shall
not apply to records created 25 years or more before
the date on which the records were requested;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or
information (A) could reasonably be expected to
interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an
impartial adjudication, (C) could reasonably be
expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to
disclose the identity of a confidential source,
including a State, local, or foreign agency or
authority or any private institution which furnished
information on a confidential basis, and, in the case
of a record or information compiled by criminal law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful
national security intelligence investigation,
information furnished by a confidential source, (E)
would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical
safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf
of, or for the use of an agency responsible for the
regulation or supervision of financial institutions; or
(9) geological and geophysical information and data,
including maps, concerning wells.
Any reasonably 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. The amount of
information deleted, and the exemption under which the deletion
is made, 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, and the exemption under which the deletion
is made, shall be indicated at the place in the record where
such deletion is made.
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and--
(A) the investigation or proceeding involves a
possible violation of criminal law; and
(B) there is reason to believe that (i) the subject
of the investigation or proceeding is not aware of its
pendency, and (ii) disclosure of the existence of the
records could reasonably be expected to interfere with
enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements
of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal
identifier are requested by a third party according to the
informant's name or personal identifier, the agency may treat
the records as not subject to the requirements of this section
unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to
records maintained by the Federal Bureau of Investigation
pertaining to foreign intelligence or counterintelligence, or
international terrorism, and the existence of the records is
classified information as provided in subsection (b)(1), the
Bureau may, as long as the existence of the records remains
classified information, treat the records as not subject to the
requirements of this section.
(d) This section does not authorize withholding of
information or limit the availability of records to the public,
except as specifically stated in this section. This section is
not authority to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency
shall submit to the Attorney General of the United States and
to the Director of the Office of Government Information
Services 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), the number of
occasions on which each statute was relied upon, 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 and average 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, based on the date
on which the requests were received by the agency;
(F) the average number of days for the agency to
respond to a request beginning on the date on which the
request was received by the agency, the median number
of days for the agency to respond to such requests, and
the range in number of days for the agency to respond
to such requests;
(G) based on the number of business days that have
elapsed since each request was originally received by
the agency--
(i) the number of requests for records to
which the agency has responded with a
determination within a period up to and
including 20 days, and in 20-day increments up
to and including 200 days;
(ii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 200
days and less than 301 days;
(iii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 300
days and less than 401 days; and
(iv) the number of requests for records to
which the agency has responded with a
determination within a period greater than 400
days;
(H) the average number of days for the agency to
provide the granted information beginning on the date
on which the request was originally filed, the median
number of days for the agency to provide the granted
information, and the range in number of days for the
agency to provide the granted information;
(I) the median and average number of days for the
agency to respond to administrative appeals based on
the date on which the appeals originally were received
by the agency, the highest number of business days
taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by
the agency to respond to an administrative appeal;
(J) data on the 10 active requests with the earliest
filing dates pending at each agency, including the
amount of time that has elapsed since each request was
originally received by the agency;
(K) data on the 10 active administrative appeals with
the earliest filing dates pending before the agency as
of September 30 of the preceding year, including the
number of business days that have elapsed since the
requests were originally received by the agency;
(L) the number of expedited review requests that are
granted and denied, the average and median number of
days for adjudicating expedited review requests, and
the number adjudicated within the required 10 days;
(M) the number of fee waiver requests that are
granted and denied, and the average and median number
of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency
for processing requests;
(O) 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;
(P) the number of times the agency denied a request
for records under subsection (c); and
(Q) the number of records that were made available
for public inspection in an electronic format under
subsection (a)(2).
(2) Information in each report submitted under paragraph (1)
shall be expressed in terms of each principal component of the
agency and for the agency overall.
(3) Each agency shall make each such report available for
public inspection in an electronic format. In addition, each
agency shall make the raw statistical data used in each report
available in a timely manner for public inspection in an
electronic format, which shall be made available--
(A) without charge, license, or registration
requirement;
(B) in an aggregated, searchable format; and
(C) in a format that may be downloaded in bulk.
(4) 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 Oversight and
Government Reform of the House of Representatives and the
Chairman and ranking minority member of the Committees on
Homeland Security and Governmental Affairs and the Judiciary of
the Senate, no later than March 1 of the year in which each
such report is issued, that such reports are available by
electronic means.
(5) 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.
(6)(A) The Attorney General of the United States shall submit
to the Committee on Oversight and Government Reform of the
House of Representatives, the Committee on the Judiciary of the
Senate, and the President a report on or before March 1 of each
calendar year, which shall include for the prior calendar
year--
(i) a listing of the number of cases arising under
this section;
(ii) a listing of--
(I) each subsection, and any exemption, if
applicable, involved in each case arising under
this section;
(II) the disposition of each case arising
under this section; and
(III) the cost, fees, and penalties assessed
under subparagraphs (E), (F), and (G) of
subsection (a)(4); and
(iii) a description of the efforts undertaken by the
Department of Justice to encourage agency compliance
with this section.
(B) The Attorney General of the United States shall make--
(i) each report submitted under subparagraph (A)
available for public inspection in an electronic
format; and
(ii) the raw statistical data used in each report
submitted under subparagraph (A) available for public
inspection in an electronic format, which shall be made
available--
(I) without charge, license, or registration
requirement;
(II) in an aggregated, searchable format; and
(III) in a format that may be downloaded in
bulk.
(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--
(A) any information that would be an agency
record subject to the requirements of this
section when maintained by an agency in any
format, including an electronic format; and
(B) any information described under
subparagraph (A) that is maintained for an
agency by an entity under Government contract,
for the purposes of records management.
(g) The head of each agency shall prepare and make available
for public inspection in an electronic format, 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.
(h)(1) There is established the Office of Government
Information Services within the National Archives and Records
Administration. The head of the Office shall be the Director of
the Office of Government Information Services.
(2) The Office of Government Information Services shall--
(A) review policies and procedures of administrative
agencies under this section;
(B) review compliance with this section by
administrative agencies; and
(C) identify procedures and methods for improving
compliance under this section.
(3) The Office of Government Information Services shall offer
mediation services to resolve disputes between persons making
requests under this section and administrative agencies as a
nonexclusive alternative to litigation and may issue advisory
opinions at the discretion of the Office or upon request of any
party to a dispute.
(4)(A) Not less frequently than annually, the Director of the
Office of Government Information Services shall submit to the
Committee on Oversight and Government Reform of the House of
Representatives, the Committee on the Judiciary of the Senate,
and the President--
(i) a report on the findings of the information
reviewed and identified under paragraph (2);
(ii) a summary of the activities of the Office of
Government Information Services under paragraph (3),
including--
(I) any advisory opinions issued; and
(II) the number of times each agency engaged
in dispute resolution with the assistance of
the Office of Government Information Services
or the FOIA Public Liaison; and
(iii) legislative and regulatory recommendations, if
any, to improve the administration of this section.
(B) The Director of the Office of Government Information
Services shall make each report submitted under subparagraph
(A) available for public inspection in an electronic format.
(C) The Director of the Office of Government Information
Services shall not be required to obtain the prior approval,
comment, or review of any officer or agency of the United
States, including the Department of Justice, the Archivist of
the United States, or the Office of Management and Budget
before submitting to Congress, or any committee or subcommittee
thereof, any reports, recommendations, testimony, or comments,
if such submissions include a statement indicating that the
views expressed therein are those of the Director and do not
necessarily represent the views of the President.
(5) The Director of the Office of Government Information
Services may directly submit additional information to Congress
and the President as the Director determines to be appropriate.
(6) Not less frequently than annually, the Office of
Government Information Services shall conduct a meeting that is
open to the public on the review and reports by the Office and
shall allow interested persons to appear and present oral or
written statements at the meeting.
(i) The Government Accountability Office shall conduct audits
of administrative agencies on the implementation of this
section and issue reports detailing the results of such audits.
(j)(1) Each agency shall designate a Chief FOIA Officer who
shall be a senior official of such agency (at the Assistant
Secretary or equivalent level).
(2) The Chief FOIA Officer of each agency shall, subject to
the authority of the head of the agency--
(A) have agency-wide responsibility for efficient and
appropriate compliance with this section;
(B) monitor implementation of this section throughout
the agency and keep the head of the agency, the chief
legal officer of the agency, and the Attorney General
appropriately informed of the agency's performance in
implementing this section;
(C) recommend to the head of the agency such
adjustments to agency practices, policies, personnel,
and funding as may be necessary to improve its
implementation of this section;
(D) review and report to the Attorney General,
through the head of the agency, at such times and in
such formats as the Attorney General may direct, on the
agency's performance in implementing this section;
(E) facilitate public understanding of the purposes
of the statutory exemptions of this section by
including concise descriptions of the exemptions in
both the agency's handbook issued under subsection (g),
and the agency's annual report on this section, and by
providing an overview, where appropriate, of certain
general categories of agency records to which those
exemptions apply;
(F) offer training to agency staff regarding their
responsibilities under this section;
(G) serve as the primary agency liaison with the
Office of Government Information Services and the
Office of Information Policy; and
(H) designate 1 or more FOIA Public Liaisons.
(3) The Chief FOIA Officer of each agency shall review, not
less frequently than annually, all aspects of the
administration of this section by the agency to ensure
compliance with the requirements of this section, including--
(A) agency regulations;
(B) disclosure of records required under paragraphs
(2) and (8) of subsection (a);
(C) assessment of fees and determination of
eligibility for fee waivers;
(D) the timely processing of requests for information
under this section;
(E) the use of exemptions under subsection (b); and
(F) dispute resolution services with the assistance
of the Office of Government Information Services or the
FOIA Public Liaison.
(k)(1) There is established in the executive branch the Chief
FOIA Officers Council (referred to in this subsection as the
``Council'').
(2) The Council shall be comprised of the following members:
(A) The Deputy Director for Management of the Office
of Management and Budget.
(B) The Director of the Office of Information Policy
at the Department of Justice.
(C) The Director of the Office of Government
Information Services.
(D) The Chief FOIA Officer of each agency.
(E) Any other officer or employee of the United
States as designated by the Co-Chairs.
(3) The Director of the Office of Information Policy at the
Department of Justice and the Director of the Office of
Government Information Services shall be the Co-Chairs of the
Council.
(4) The Administrator of General Services shall provide
administrative and other support for the Council.
(5)(A) The duties of the Council shall include the following:
(i) Develop recommendations for increasing compliance
and efficiency under this section.
(ii) Disseminate information about agency
experiences, ideas, best practices, and innovative
approaches related to this section.
(iii) Identify, develop, and coordinate initiatives
to increase transparency and compliance with this
section.
(iv) Promote the development and use of common
performance measures for agency compliance with this
section.
(B) In performing the duties described in subparagraph (A),
the Council shall consult on a regular basis with members of
the public who make requests under this section.
(6)(A) The Council shall meet regularly and such meetings
shall be open to the public unless the Council determines to
close the meeting for reasons of national security or to
discuss information exempt under subsection (b).
(B) Not less frequently than annually, the Council shall hold
a meeting that shall be open to the public and permit
interested persons to appear and present oral and written
statements to the Council.
(C) Not later than 10 business days before a meeting of the
Council, notice of such meeting shall be published in the
Federal Register.
(D) Except as provided in subsection (b), the records,
reports, transcripts, minutes, appendices, working papers,
drafts, studies, agenda, or other documents that were made
available to or prepared for or by the Council shall be made
publicly available.
(E) Detailed minutes of each meeting of the Council shall be
kept and shall contain a record of the persons present, a
complete and accurate description of matters discussed and
conclusions reached, and copies of all reports received,
issued, or approved by the Council. The minutes shall be
redacted as necessary and made publicly available.
(l) FOIA Public Liaisons shall report to the agency Chief
FOIA Officer and shall serve as supervisory officials to whom a
requester under this section can raise concerns about the
service the requester has received from the FOIA Requester
Center, following an initial response from the FOIA Requester
Center Staff. FOIA Public Liaisons shall be responsible for
assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
(m)(1) The Director of the Office of Management and Budget,
in consultation with the Attorney General, shall ensure the
operation of a consolidated online request portal that allows a
member of the public to submit a request for records under
subsection (a) to any agency from a single website. The portal
may include any additional tools the Director of the Office of
Management and Budget finds will improve the implementation of
this section.
(2) This subsection shall not be construed to alter the power
of any other agency to create or maintain an independent online
portal for the submission of a request for records under this
section. The Director of the Office of Management and Budget
shall establish standards for interoperability between the
portal required under paragraph (1) and other request
processing software used by agencies subject to this section.
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