[House Report 113-155]
[From the U.S. Government Printing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-155
======================================================================
FOIA OVERSIGHT AND IMPLEMENTATION ACT OF 2013
_______
July 16, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 1211]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1211) to amend section 552 of title
5, United States Code (commonly known as the Freedom of
Information Act), to provide for greater public access to
information, and for other purposes, having considered the
same, report favorably thereon with amendments and recommend
that the bill as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 3
Section-by-Section............................................... 7
Explanation of Amendments........................................ 8
Committee Consideration.......................................... 9
Application of Law to the Legislative Branch..................... 9
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 9
Statement of General Performance Goals and Objectives............ 9
Duplication of Federal Programs.................................. 9
Disclosure of Directed Rule Makings.............................. 10
Federal Advisory Committee Act................................... 10
Unfunded Mandate Statement....................................... 10
Earmark Identification........................................... 10
Committee Estimate............................................... 10
Budget Authority and Congressional Budget Office Cost Estimate... 10
Changes in Existing Law Made by the Bill as Reported............. 12
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 2, line 5, insert ``each place it appears'' before the
semicolon.
Page 2, line 13, strike ``proceeding'' and insert
``following''.
Page 3, line 5, insert ``and'' at the end.
Page 3, strike line 6 and all that follows through line 8.
Page 3, line 9, strike ``(4)'' and insert ``(3)''.
Page 7, line 14, insert ``of'' after the opening quotation
marks.
Page 7, line 18, strike ``new subclauses:'' and insert ``:
`of--'''.
Page 10, line 14, strike ``and''.
Page 10, line 17, strike the period, closing quotation
marks, and the semicolon and insert ``; and''.
Page 10, insert after line 17 the following:
``(S) the number of times the agency assessed a
search or duplication fee under subsection (a)(4)(A)
and did not comply with a time limit under subsection
(a)(6).'';
Page 13, after line 15, insert the following new subsection
(and redesignate subsequent subsections accordingly):
(g) Search or Duplication Fees.--Section 552(a)(4)(A)(viii)
of title 5, United States Code, is amended by adding at the end
the following new sentence: ``Any agency that does assess
search or duplication fees after failing to comply with a time
limit under paragraph (6) shall provide written notice to the
requester of the circumstance that justifies the fees. If an
agency fails to provide such notice, the agency may not assess
search or duplication fees.''.
Page 13, line 22, strike ``the implementation'' and insert
``compliance with and implementation of the requirements''.
Page 13, line 23, strike ``; and'' and insert a semicolon.
Page 14, strike lines 1 through 3, and insert the following:
``(2) catalog the number of exemptions under
subsection (b)(3) and agency use of such exemptions;
and
``(3) review and prepare a report on the processing
of requests by agencies for information pertaining to
an entity that has received assistance under title I of
the Emergency Economic Stabilization Act of 2008 (12
U.S.C. 5211 et seq.) during any period in which the
Government owns or owned more than 50 percent of the
stock of such entity.''.
At the end of the bill, add the following:
SEC. 4. INSPECTOR GENERAL REVIEW; ADVERSE ACTIONS.
(a) Inspector General Review.--
(1) In general.--The Inspector General of each agency
shall--
(A) periodically review compliance with the
requirements of section 552 of title 5, United
States Code, including the timely processing of
requests, assessment of fees and fee waivers,
and the use of exemptions under subsection (b)
of such section; and
(B) make recommendations the Inspector
General determines to be necessary to the head
of the agency, including recommendations for
disciplinary action.
(2) Agency defined.--In this subsection, the term
``agency'' has the meaning given that term under
section 552(f) of title 5, United States Code.
(b) Adverse Actions.--The withholding of information in a
manner inconsistent with the requirements of section 552 of
title 5, United States Code (including any rules, regulations,
or other implementing guidelines), as determined by the
appropriate supervisor, shall be a basis for disciplinary
action in accordance with subchapter I, II, or V of chapter 75
of such title, as the case may be.
Committee Statement and Views
PURPOSE AND SUMMARY
The purpose of H.R. 1211, the FOIA Oversight and
Implementation Act of 2013, is to strengthen the Freedom of
Information Act (FOIA) to increase transparency and
accountability in government. It amends FOIA to provide for
more proactive disclosure of records, encourages enhanced
agency compliance, and improves the FOIA process for both
agencies and requesters.
H.R. 1211 increases the amount of agency information made
available through proactive disclosure. Records requested under
FOIA more than three times will be posted online for public
inspection and copying. Each agency shall also review its
records to determine whether any records ought to be released
because they are in the public interest, and establish
procedures for identifying categories of records that can be
proactively disclosed to the public on a regular basis. These
provisions will increase the amount of information the public
can access without even filing a FOIA request.
H.R. 1211 establishes a single website, accessible to the
public at no cost, which will allow people to submit FOIA
requests, file appeals, and receive automated information about
the status of their requests in a single location.
H.R. 1211 establishes a presumption of openness for
agencies processing FOIA requests. Attorney General Eric
Holder's March 2009 Memorandum to agencies directed them to
disclose information whenever possible, and to not withhold
information simply because it can be legally withheld under a
FOIA exemption. H.R. 1211 would codify the presumption of
openness, making it a permanent requirement for agencies.
H.R. 1211 strengthens the role of the Office of Government
Information Services (OGIS), an entity created by the OPEN
Government Act of 2007. OGIS acts as a FOIA ombudsman for
agencies and requesters, and is also tasked with alternate
dispute resolution to resolve FOIA cases. H.R. 1211 provides
OGIS with direct reporting to Congress, without the need for
interagency review. OGIS would also be tasked with increased
review of compliance with FOIA, including the timely processing
of requests, fees and fee waivers, and the use of exemptions.
OGIS will submit an annual report to Congress on its review. It
will also hold at least one public meeting per year to allow
interested persons to appear and present oral or written
statements.
H.R. 1211 clarifies the right of any individual to appeal
an agency's determination regarding a FOIA request filed by
that individual. The agency must give requesters at least 90
days to appeal an adverse determination. A time limit for
appeals is not currently codified, so this provision will
strengthen requester rights to file appeals.
H.R. 1211 increases the amount of information reported by
agencies in annual FOIA reports. The bill requires each agency
to report how often it invoked law enforcement exclusions, how
often it engaged in dispute resolution, how often it made
information available to the public through proactive
disclosure, and how often it assessed a search or duplication
fee for a request when the agency did not comply with the
statutory time limits for responding to that request. The
reports would be sent to OGIS, as well as the Attorney General.
Additionally, the raw data used by agencies to complete their
annual FOIA reports will be made available online in a fully
useable, bulk-downloadable and machine-readable format.
The bill requires the Government Accountability Office
(GAO) to conduct audits of agency compliance with FOIA. It will
also catalog the number of exemptions under subsection (b)(3)
of FOIA. GAO will also review and report on agency processing
of FOIA requests seeking information about private entities
that receive or received assistance under the Emergency
Economic Stabilization Act of 2008 during any period in which
the government owned or owns more than 50 percent of the stock
of such entity.
H.R. 1211 increases the oversight responsibilities of
agency Chief FOIA Officers, requiring each agency Chief FOIA
Officer to annually review all aspects of FOIA compliance by
the agency. The bill also establishes a Chief FOIA Officers
Council, which shall be chaired by the Director of the Office
of Information Policy at the Department of Justice, and the
Director of OGIS. The Council is tasked with: developing
recommendations to increase FOIA compliance and efficiency;
sharing information on ideas, best practices, and innovative
approaches to improve FOIA; identifying ways to better
coordinate initiatives to increase transparency; and promoting
the development and use of performance measures for agency FOIA
compliance. The Council shall meet regularly, and will hold
annual meetings that are open to the public at which interested
persons are allowed to present oral and written statements. All
Council records, except any records relating to national
security, shall be made publicly available.
Agencies must update their FOIA regulations no later than
180 days after H.R. 1211 is enacted. Regulations must include
procedures for engaging in dispute resolution and procedures
for engaging with OGIS. The regulations shall be reviewed by
OGIS to ensure they are compliant and consistent with current
FOIA law. Any agency that fails to comply will have to submit a
report to Congress to explain its noncompliance. Agencies that
do not comply will also be reviewed by their Office of
Inspector General to evaluate agency compliance with FOIA law.
H.R. 1211 creates a pilot program to evaluate the use of a
centralized FOIA portal to receive, process, and publicly
disseminate records in response to FOIA requests. The portal
must allow people to submit FOIA requests to any participating
agency in one location, and to track the processing of their
requests. All records produced in response to requests are to
be placed automatically online and be made available to the
requester and the general public. The pilot requires three new
agencies to participate in the FOIA portal, and to use it to
track and process requests and post responsive records online.
The pilot will last for three years. At the end of the pilot,
the Office of Management and Budget will review the benefits of
the FOIA portal, including cost and resource savings; increased
efficiency, transparency, and accountability; and ability to
complete annual FOIA reports. It will also assess any change in
the amount of FOIA requests received. Each agency shall report
to Congress on its experience using the FOIA portal and any
related recommendations the agency considers appropriate.
BACKGROUND AND NEED FOR LEGISLATION
FOIA was enacted in 1966, after eleven years of legislative
development in the House of Representatives and almost six
years of consideration in the Senate.\1\ At the time of
enactment, FOIA was the third freedom of information law in the
world, and by far the most comprehensive.\2\ It established an
important precedent by giving the public a formal method to
request and receive information from the government.
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\1\Congressional Research Service, ``FOIA: Background and Policy
Options for the 113th Congress,'' March 8, 2013.
\2\U.S. House of Representatives Committee on Oversight and
Government Reform, ``A Citizen's Guide on Using the Freedom of
Information Act and the Privacy Act of 1974 to Request Government
Records,'' September 2012.
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FOIA establishes a presumption that records in the
possession of Executive Branch agencies and departments of the
U.S. Federal Government are accessible to the people. This
presumption was not always the approach to federal information
access policy. Before FOIA, those seeking information were
required to show a need for information. FOIA replaced the
``need to know'' standard with a ``right to know.'' As a
result, FOIA is often referred to as the embodiment of ``the
people's right to know'' about the activities and operations of
government.
Under FOIA, anyone may file a request for a copy of any
existing record at any federal agency for any reason.
Information requested under FOIA is required to be released
unless it falls under any of nine narrow exemptions to protect
certain information from disclosure. Dispute over requests for
information under FOIA may be appealed administratively,
resolved through mediation, or litigated in court.\3\
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\3\Congressional Research Service, ``FOIA: Background and Policy
Options for the 113th Congress.''
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Since its enactment, FOIA has been amended multiple times
in efforts to increase agency compliance with the requirements
of the act and improve the process. FOIA was amended in 1974,
1976, 1986, 1996, 2007, and 2010. Despite these amendments,
significant problems persist. H.R. 1211 helps to address many
of these issues.
One issue is the use of the nine statutory FOIA exemptions,
which allow for the withholding of records to protect sensitive
information from disclosure. There is concern that agencies are
overusing exemptions to protect records that should be
releasable under law. In March 2009, Attorney General Eric
Holder issued guidance stating that ``an agency should not
withhold information simply because it may do so legally,'' and
established a presumption of disclosure.\4\ Many agencies have
failed to adopt this practice fully, and withhold information
that could be released.
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\4\See Note 2, Supra.
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Fees and fee waivers are another problem that requires
further legislation. FOIA does not allow agencies to assess
search fees if the agency does not comply with specific
statutory time limits to respond to requesters. Additionally,
many requesters qualify for a waiver of fees. Agencies have not
fully complied with the statute. Some agencies charge excessive
fees, or engage in fee assessment practices designed to
dissuade requesters.\5\
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\5\Washington Examiner, ``EPA Inspector General Investigating
Claims Agency Used Fees to Block FOIA Requests,'' May 16, 2013. See
also: ``Suit: Spy Agency Flouting FOIA,'' Politico, February 22, 2012.
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The backlog of FOIA requests has increased in recent years,
and has led to significant delays in the processing of
requests. The number of FOIA requests rose from 597,415 in
Fiscal Year 2010 to 644,165 in Fiscal Year 2011, a 7.8 percent
increase.\6\ During that same time frame, backlogs increased
20.8 percent. From FY 2010 to FY 2011, the total backlog of
FOIA requests increased from 69,526 to 83,490.\7\ Agencies have
made efforts to reduce FOIA backlogs, but they continue to be a
consistent problem.
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\6\House Committee on Oversight and Government Reform, Testimony of
Melanie Ann Pustay, Hearing on FOIA in the 21st Century: Using
Technology to Improve Transparency in Government, March 21, 2012 (H.
Rept. 112-140).
\7\Department of Justice, ``Summary of Annual FOIA Reports for
Fiscal Year 2011,'' accessed May 5, 2013.
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Many agencies are failing to comply with FOIA requirements
to make frequently requested records publicly available online.
The Department of Justice issued guidance instructing agencies
to release records that have been requested three or more
times.\8\ The proactive disclosure of records in the public
interest has been limited though. Proactive disclosure could
reduce the number of FOIA requests, requiring less processing
time for agencies.
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\8\Department of Justice, Office of Information Policy (previously
Office of Information and Privacy), FOIA Post, ``FOIA Counselor Q&A:
`Frequently Requested' Records,'' accessed January 22, 2013.
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FOIA law encourages the use of alternate dispute resolution
to avoid lawsuits whenever possible. Each agency has a FOIA
Public Liaison, who is tasked with assisting ``in the
resolution of any disputes between the requester and the
agency.''\9\ The Office of Government Information Services was
also created to offer mediation services and work to resolve
disputes. Despite these actions, the number of FOIA lawsuits
continues to rise.\10\
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\9\P.L. 110-175.
\10\The FOIA Project, ``FOIA Lawsuits Increase During Obama
Administration,'' December 20, 2012.
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LEGISLATIVE HISTORY
H.R. 1211 was introduced on March 15, 2013, by Chairman
Issa, with Ranking Member Cummings as an original cosponsor.
On March 13, 2013, the Committee on Oversight and
Government Reform held a hearing on FOIA and related issues
entitled, ``Addressing Transparency in the Federal Bureaucracy:
Moving Toward A More Open Government.'' The Committee heard
testimony from representatives of transparency watchdog groups,
including Ms. Angela Canterbury, Director of Public Policy,
Project on Government Oversight; Mr. Jim Harper, Director of
Information Policy Studies, Cato Institute; Mr. Daniel Schuman,
Policy Counsel, The Sunlight Foundation; and Ms. Celia Wexler,
Senior Washington Representative, Center for Science and
Democracy, Union of Concerned Scientists.
On March 20, 2013, the Committee considered H.R. 1211.
Amendments offered by Reps. Duckworth, Turner, and Mica were
agreed to by voice vote. H.R. 1211, as amended, was then
adopted by voice vote and ordered reported favorably to the
House.
Section-by-Section
Section 1. Short title
This section is the short title of the bill, ``FOIA
Oversight and Implementation Act of 2013,'' or the ``FOIA
Act.''
Section 2. Freedom of Information Act Amendments
This section amends FOIA by--
(1) Increasing electronic accessibility by requiring
agencies to post more information online in publicly accessible
formats. Agencies will post information requested three or more
times online in a publicly accessible format, as well as other
records that would contribute to public interest. Annual
reports and the raw data of the reports will also be publicly
accessible without request, and there will be a single website
for the public to submit FOIA requests and receive information
about the status of requests.
(2) Putting into statute President Obama's and Attorney
General Holder's memorandums requiring agencies to adopt a
presumption of openness when responding to requests. Under the
Act, agencies may only withhold information if the disclosure
of such records could cause foreseeable harm. It places the
burden on agencies to demonstrate why information may be
withheld, instead of on the public to justify release. The FOIA
Act also puts into statute the President's recommendation to
utilize technology to increase transparency and evaluate
records to determine whether they should be publicly available.
(3) Strengthening the Office of Government Information
Services (OGIS) by giving it increased independence. OGIS shall
report directly to Congress without interagency review. It will
review agency compliance with all aspects of FOIA, and report
recommendations. OGIS will also hold public meetings at least
once a year.
(4) Requiring agencies to report more information in annual
reports. Agencies would for the first time have to report the
number of times they invoked law enforcement exclusions,
engaged in dispute resolution, and the number of records made
publicly available. Annual reports would be completed by March
1 of each year instead of April 1.
(5) Requiring the Government Accountability Office to
catalog all uses of (b)(3) exemptions, which are FOIA
exemptions created by other statutes. Currently, it is unknown
how many (b)(3) exemptions exist.
(6) Increasing responsibilities for OGIS, DOJ, and Chief
FOIA Officers to review FOIA compliance and make
recommendations. DOJ will have to report more information about
FOIA lawsuits. OGIS and Chief FOIA Officers will both review
FOIA compliance and make recommendations to improve the
process.
(7) Creating a Chief FOIA Officers Council, based on the
CIO Council. It shall be run jointly by OGIS and DOJ's Office
of Information Policy as co-chairs. All agency Chief FOIA
Officers shall be members of the Council. The Council will meet
regularly to review FOIA compliance and discuss improvements.
Records of the meetings shall be publicly available, and all
meetings shall be noticed in the Federal Register beforehand.
No less than once a year, the Council shall have a public
meeting where interested persons may submit statements in
writing or in person.
(8) Requiring each agency to update its FOIA regulations
within 180 days of enactment. The regulations shall include
procedures on dispute resolution and working with OGIS. OGIS
will review whether agencies comply with this, and if agencies
fail to update their regulations they will have to report to
Congress on their failure to do so and will be subject to a
review of their FOIA compliance by their Office of Inspector
General.
Section 3. Pilot program
The section establishes a pilot program to review
FOIAonline, the public portal that allows requesters to submit
and review requests for multiple agencies at a single location.
The pilot program will last for three years and will require
three additional agencies to use FOIAonline to process FOIA
requests and make records available online. At the end of the
pilot, agencies are to report to Congress on the results of the
program and make recommendations as to whether it will continue
to use FOIAonline.
Section 4. Inspector General review; Adverse actions
This section requires the Inspector General of each agency
to periodically review agency compliance with the requirements
of FOIA, including timely processing of requests, assessments
of fees and fee waivers, and the use of exemptions, and to make
any necessary recommendations to the agency head to improve the
process. Recommendations may include disciplinary action.
Additionally, the amendment would make the withholding of
information in a manner inconsistent with FOIA a basis for
disciplinary action.
Explanation of Amendments
Amendment offered by Ms. Duckworth
Ms. Duckworth's amendment requires agencies to report the
number of times they assessed a search or duplication fee for a
FOIA request when the agency failed to comply with FOIA request
response deadlines. This information would be included in
agencies' annual FOIA reports. The amendment would also require
agencies to notify a requester if the requester was assessed
search or duplication fees after the agency failed to comply
with time limits under FOIA, and inform the requester of the
circumstances that would justify the fees. If an agency fails
to inform the requester, it may not collect fees.
Amendment offered by Mr. Mica
Mr. Mica's amendment added a section to the end of the bill
that tasks the Inspector General of each agency with
periodically reviewing agency compliance with the requirements
of FOIA and making any necessary recommendations to the agency
head to improve the process--recommendations may include
disciplinary action. Additionally, the amendment would make the
withholding of information in a manner inconsistent with FOIA a
basis for disciplinary action.
Amendment offered by Mr. Turner
Mr. Turner's amendment requires the Government
Accountability Office to report on agencies' processing of FOIA
requests seeking information about entities that are owned or
have been owned by the government. Specifically, the report
would review requests for information on entities that have
received assistance under title I of the Emergency Economic
Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) during any
period the Government owned more than 50 percent of the stock
of the entity. This would cover Government sponsored
enterprises and would shed light on FOIA policy pertaining to
these entities.
Committee Consideration
On March 20, 2013, the Committee met in open session and
ordered reported favorably the bill, H.R. 1211, as amended, by
voice vote, a quorum being present.
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 provides for more proactive disclosure of records,
encourages enhanced agency compliance, and improves the FOIA
process for both agencies and requesters. Legislative branch
employees and their families, to the extent that they are
otherwise eligible for the benefits provided by this
legislation, have equal access to its benefits.
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 descriptive portions of this report.
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
goals and objectives are reflected in the descriptive portions
of this report.
Duplication of Federal Programs
No provision of H.R. 1211 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
The FOIA Oversight and Implementation Act will require
agencies to promulgate new regulations on procedures for
processing requests under FOIA. Agencies are already required
to have regulations on FOIA, but this Act will ensure these
regulations are current. Agencies will specifically have to
create new regulations on interactions with the Office of
Government Information Services, and procedures used for
dispute resolution services.
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 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 1211 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1211. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1211 from the Director of
Congressional Budget Office:
May 21, 2013.
Hon. Darrell Issa,
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. 1211, the FOIA
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact for this
estimate is Matthew Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1211--FOIA Act
Summary: H.R. 1211 would amend the Freedom of Information
Act (FOIA). FOIA generally allows any person to obtain federal
agency records. Specifically, the legislation would require the
Office of Management and Budget (OMB) to establish a single
FOIA website for making requests and checking on the status of
those requests; establish a Chief FOIA Officers Council to
review compliance with the act and to recommend improvements;
and require additional reports from the National Archives and
Records Administration (NARA) and other agencies.
CBO estimates that implementing H.R. 1211 would cost $20
million over the 2014-2018 period, assuming appropriation of
the necessary amounts. The legislation also could affect direct
spending by agencies not funded through annual appropriations
(such as the Tennessee Valley Authority). Therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net
increase in spending by those agencies would not be
significant. Enacting the bill would not affect revenues.
H.R. 1211 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1211 is shown in the following table.
The costs of this legislation fall within all budget functions
that contain salaries and expenses.
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By fiscal year, in millions of dollars--
---------------------------------------------
2014 2015 2016 2017 2018 2014-2018
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level..................................... 5 5 4 4 4 22
Estimated Outlays................................................. 4 4 4 4 4 20
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Basis of the estimate: For this estimate, CBO assumes that
the bill will be enacted by the end of fiscal year 2013, that
the necessary amounts will be appropriated for each year, and
that spending will follow historical patterns for FOIA
activities.
Enacted in 1966, FOIA was designed to enable anyone to
request, without explanation or justification, copies of
existing, identifiable, and unpublished records from the
executive branch. OMB issues guidelines to agencies on fees to
charge for providing requested information, while DOJ oversees
agency compliance with FOIA. In 2012, federal agencies
(excluding the Social Security Administration) received more
than 650,000 FOIA requests. In addition, DOJ reports that in
fiscal year 2012, agencies employed about 4,400 full-time staff
to fulfill FOIA requests and spent around $485 million on FOIA-
related activities.
CBO expects that OMB would expand the use of existing
websites that are currently used to fulfill FOIA requests. A
governmentwide website (FOIA.gov) is operated by the Department
of Justice, and FOIAonline.gov is a Web application operated by
the Environmental Protection Agency that allows the public to
track and search some FOIA requests. Nonetheless, CBO
anticipates that the workloads of most agencies would increase
to carry out the bill's new reporting requirements. We also
estimate that NARA would face additional costs to arrange for a
new annual meeting and to establish a Chief FOIA Officers
Council to review and improve the FOIA process. Based on the
costs of similar electronic filing systems and websites and a
review of the annual reports by 15 major agencies over the last
five years, CBO estimates that implementing H.R. 1211 would add
about 1 percent--around $5 million annually--to the
governmentwide costs of administering FOIA.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Enacting H.R. 1211 could affect net direct spending
for agencies not funded through the appropriations process, but
CBO estimates that such effects would not be significant in any
year.
Intergovernmental and private-sector impact: H.R. 1211
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal costs: Matthew Pickford;
Impact on state, local, and tribal governments: Elizabeth Cove
Delisle; Impact on private sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
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, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
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) * * *
(2) Each agency, in accordance with published rules,
shall make available [for public inspection and
copying] in an electronic, publicly accessible format--
(A) * * *
* * * * * * *
[(E) a general index of the records referred
to under subparagraph (D);]
(E) copies of all records, regardless of form
or format, that have been released three or
more times under paragraph (3); and
(F) a general index of the records referred
to under subparagraphs (D) and (E);
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)] subparagraphs (D) and (E).
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 and copying]
in an electronic, publicly accessible 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)] subparagraph
(F) 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) * * *
* * * * * * *
(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] the
Director of the Office of Management and Budget, in
consultation with the Director of the Office of Government
Information Services, and which shall provide for a uniform
schedule of fees for all agencies.
* * * * * * *
(viii) An agency shall not assess search fees (or in the case
of a requester described under clause (ii)(II), duplication
fees) under this subparagraph if the agency fails to comply
with any time limit under paragraph (6), if no unusual or
exceptional circumstances (as those terms are defined for
purposes of paragraphs (6)(B) and (C), respectively) apply to
the processing of the request. Any agency that does assess
search or duplication fees after failing to comply with a time
limit under paragraph (6) shall provide written notice to the
requester of the circumstance that justifies the fees. If an
agency fails to provide such notice, the agency may not assess
search or duplication fees.
* * * * * * *
(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 such determination and the reasons
therefor, and of the right of such person to appeal to
the head of the agency any adverse determination;
and:]of--
(I) such determination and the reasons
therefor;
(II) the right of such person to seek
assistance from the agency FOIA Public Liaison;
and
(III) the right of such person to appeal to
the head of the agency any adverse
determination, not later than 90 days after the
receipt of such adverse determination; and
(ii) make a determination with respect to any appeal
within twenty days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of such
appeal[.] and the right of such person to seek dispute
resolution services from the agency FOIA Public Liaison
or the Office of Government Information Services. 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) * * *
* * * * * * *
(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 automated information
about the status of a request to the person
making the request using the assigned tracking
number, including--
(i) * * *
* * * * * * *
(8) Disclosure of information for increased public
understanding of the government.--Each agency shall--
(A) review the records of such agency to
determine whether the release of the records
would be in the public interest because it is
likely to contribute significantly to public
understanding of the operations or activities
of the Government;
(B) for records determined to be in the
public interest under subparagraph (A),
reasonably segregate and redact any information
exempted from disclosure under subsection (b);
and
(C) make available in an electronic, publicly
accessible format, any records identified in
subparagraph (A), as modified pursuant to
subparagraph (B).
(9) Increased disclosure of information.--Each agency
shall--
(A) make information public to the greatest
extent possible through modern technology to--
(i) inform the public of the
operations and activities of the
Government; and
(ii) ensure timely disclosure of
information; and
(B) establish procedures for identifying
categories of records that may be disclosed
regularly and additional records of interest to
the public that are appropriate for public
disclosure, and for posting such records in an
electronic, publicly accessible format.
(b) This section does not apply to matters that would cause
foreseeable harm and that are--
(1) * * *
* * * * * * *
(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) * * *
* * * * * * *
(N) the total amount of fees collected by the agency
for processing requests[; and];
(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 invoked a law
enforcement exclusion under subsection (c);
(Q) the number of times the agency engaged in dispute
resolution with the assistance of the Office of
Government Information Services or the FOIA Public
Liaison;
(R) the number of records that were made available in
an electronic, publicly accessible format under
subsection (a)(2); and
(S) the number of times the agency assessed a search
or duplication fee under subsection (a)(4)(A) and did
not comply with a time limit under subsection (a)(6).
* * * * * * *
[(3) 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. In addition, each agency
shall make the raw statistical data used in its reports
available electronically to the public upon request.]
(3) Electronic accessibility of reports.--Each agency shall
make each such report available in an electronic, publicly
accessible format. In addition, each agency shall make the raw
statistical data used in its reports available in a timely
manner in an electronic, publicly accessible format. Such data
shall be--
(A) made available without charge, license, or
registration requirement;
(B) capable of being searched and aggregated; and
(C) permitted to be downloaded and 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 Government Reform
and Oversight] Committee on Oversight and Government Reform of
the House of Representatives and the Chairman and ranking
minority member of the Committees on [Governmental Affairs]
Homeland Security and Governmental Affairs and the Judiciary of
the Senate, no later than [April 1] 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 and the Director of the Office of Government Information
Services, 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) 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.]
(6) Attorney general foia report.--
(A) In general.--The Attorney General of the United
States shall submit to Congress and the President an
annual 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) each subsection under this section, each
paragraph of the subsection, and any exemption,
if applicable, 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); and
(iii) a description of the efforts undertaken
by the Department of Justice to encourage
agency compliance with this section.
(B) Electronic availability.--The Attorney General of
the United States--
(i) shall make each report described under
subparagraph (A) available in an electronic,
publicly accessible format; and
(ii) shall make the raw statistical data used
in each report available in an electronic,
publicly accessible format, which shall be--
(I) made available without charge,
license, or registration requirement;
(II) capable of being searched and
aggregated; and
(III) permitted to be downloaded,
including downloaded in bulk.
* * * * * * *
(g) The head of each agency shall prepare and [make publicly
available upon request] make available in an electronic,
publicly accessible format, reference material or a guide for
requesting records or information from the agency, subject to
the exemptions in subsection (b), including--
(1) * * *
* * * * * * *
[(h)(1) There is established the Office of Government
Information Services within the National Archives and Records
Administration.
[(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) recommend policy changes to Congress and the
President to improve the administration of 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 non-exclusive alternative to litigation and, at the
discretion of the Office, may issue advisory opinions if
mediation has not resolved the dispute.
[(i) The Government Accountability Office shall conduct
audits of administrative agencies on the implementation of this
section and issue reports detailing the results of such audits.
[(j) Each agency shall designate a Chief FOIA Officer who
shall be a senior official of such agency (at the Assistant
Secretary or equivalent level).
[(k) The Chief FOIA Officer of each agency shall, subject to
the authority of the head of the agency--
[(1) have agency-wide responsibility for efficient
and appropriate compliance with this section;
[(2) 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;
[(3) 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;
[(4) 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;
[(5) 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; and
[(6) designate one or more FOIA Public Liaisons.]
(h) The Office of Government Information Services.--
(1) Establishment.--There is established the Office
of Government Information Services within the National
Archives and Records Administration. The head of the
Office is the Director of the Office of Government
Information Services.
(2) Review of foia policy, procedure, and
compliance.--The Office of Government Information
Services shall--
(A) review policies and procedures of
agencies under this section;
(B) review compliance with this section by
agencies; and
(C) identify methods that improve compliance
under this section that may include--
(i) the timely processing of requests
submitted to agencies under this
section;
(ii) the system for assessing fees
and fee waivers under this section; and
(iii) the use of any exemption under
subsection (b); and
(D) review and provide guidance to agencies
on the use of fees and fee waivers.
(3) Mediation services.--The Office of Government
Information Services shall offer mediation services to
resolve disputes between persons making requests under
this section and agencies as a non-exclusive
alternative to litigation and, at the discretion of the
Office, may issue advisory opinions if mediation has
not resolved the dispute.
(4) Submission of report.--
(A) In general.--The Office of Government
Information Services shall not less than
annually submit to the committees described in
subparagraph (C) and the President a report on
the findings from the information reviewed and
identified under paragraph (2) and legislative
and regulatory recommendations to improve the
administration of this section.
(B) Electronic availability of reports.--The
Office shall make available any report
submitted under paragraph (A) in a publicly
accessible format.
(C) Congressional submission of report.--The
committees described in this subparagraph are
the following:
(i) The Committee on Oversight and
Government Reform of the House of
Representatives.
(ii) The Committees on Homeland
Security and Governmental Affairs and
the Judiciary of the Senate.
(D) Direct submission of report.--Any report
submitted under paragraph (A) shall be
submitted directly to the committees and the
President, without any requirement that any
officer or employee outside of the Office of
Government Information Services, including the
Archivist of the United States and the Director
of the Office of Management and Budget, review
such report.
(5) Submission of additional information.--The
Director of the Office of Government Information
Services may submit additional information to Congress
and the President that the Director determines to be
appropriate.
(6) Annual meeting required.--Not less than once a
year, the Office of Government Information Services
shall hold a meeting that is open to the public on the
review and reports by the Office and permit interested
persons to appear and present oral or written
statements at such meeting.
(i) Government Accountability Office.--The Government
Accountability Office shall--
(1) conduct audits of administrative agencies on
compliance with and implementation of the requirements
of this section and issue reports detailing the results
of such audits;
(2) catalog the number of exemptions under subsection
(b)(3) and agency use of such exemptions; and
(3) review and prepare a report on the processing of
requests by agencies for information pertaining to an
entity that has received assistance under title I of
the Emergency Economic Stabilization Act of 2008 (12
U.S.C. 5211 et seq.) during any period in which the
Government owns or owned more than 50 percent of the
stock of such entity.
(j) Chief FOIA Officer.--
(1) Designation.--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) Duties.--The Chief FOIA Officer of each agency
shall, subject to the authority of the head of the
agency--
(A) have agency-wide responsibility for
efficient and appropriate compliance with 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; and
(F) designate one or more FOIA Public
Liaisons.
(3) Compliance review required.--The Chief FOIA
Officer of each agency shall--
(A) review, not less than annually, all
aspects of the agency's administration of this
section to ensure compliance with the
requirements of this section, including--
(i) agency regulations;
(ii) disclosure of records required
under paragraphs (2), (8), and (9) of
subsection (a);
(iii) assessment of fees and
determination of eligibility for fee
waivers;
(iv) the timely processing of
requests for information under this
section;
(v) the use of exemptions under
subsection (b); and
(vi) dispute resolution services with
the assistance of the Office of
Government Information Services or the
FOIA Public Liaison; and
(B) make recommendations as necessary to
improve agency practices and compliance with
this section.
(k) Chief FOIA Officers Council.--
(1) Establishment.--There is established in the
executive branch the Chief FOIA Officers Council (in
this subsection, referred to as the ``Council'').
(2) Members.--The Council shall consist 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 at the National Archives
and Records Administration.
(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) Co-chairs.--The Director of the Office of
Information Policy at the Department of Justice and the
Director of the Office of Government Information
Services at the National Archives and Records
Administration shall be the Co-Chairs of the Council.
(4) Support services.--The Administrator of General
Services shall provide administrative and other support
for the Council.
(5) Consultation.--In performing its duties, the
Council shall consult regularly with members of the
public who make requests under this section.
(6) Duties.--The duties of the Council include the
following:
(A) Develop recommendations for increasing
compliance and efficiency under this section.
(B) Disseminate information about agency
experiences, ideas, best practices, and
innovative approaches related to this section.
(C) Identify, develop, and coordinate
initiatives to increase transparency and
compliance with this section.
(D) Promote the development and use of common
performance measures for agency compliance with
this section.
(7) Meetings.--
(A) Regular meetings.--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) Annual meetings.--Not less than once a
year, 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) Notice.--Not later than 10 business days
before a meeting of the Council, notice of such
meeting shall be published in the Federal
Register.
(D) Public availability of council records.--
Except as provided in subsection (b), the
records, reports, transcripts, minutes,
appendixes, 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) Minutes.--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.
* * * * * * *
(m) FOIA Web Site Required.--Not later than one year after
the date of enactment of this subsection, the Office of
Management and Budget shall ensure the existence and operation
of a single Web site, accessible by the public at no cost to
access, that allows the public to--
(1) submit requests for records under subsection
(a)(3); and
(2) receive automated information about the status of
a request under subsection (a)(7).
* * * * * * *
