Senate Judiciary Committee Report on FOIA Improvement Act of 2015

Calendar No. 17

114th Congress } ( Report
SENATE
1st Session } { 114-4
====================================================================

FOIA IMPROVEMENT ACT OF 2015

_______

February 23, 2015.--Ordered to be printed

_______

Mr. Grassley, from the Committee on the Judiciary,
submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany S. 337]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to which was referred the
bill (S. 337), the FOIA Improvement Act of 2015, having
considered the same, reports favorably thereon, without
amendment, and recommends that the bill do pass.

CONTENTS

Page
I. Background and Purpose of the FOIA Improvement Act of 2015.......1
II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................7
IV. Congressional Budget Office Cost Estimate.......................12
V. Regulatory Impact Evaluation....................................14
VI. Conclusion......................................................14
VII. Additional Views from Senator Sessions..........................15
VIII.Changes to Existing Law Made by the Bill, as Reported...........18

I. Background and Purpose of the FOIA Improvement Act of 2015

A. BACKGROUND AND THE NEED FOR LEGISLATION

In 1966, the Federal Government established a policy of
openness toward information within the control of the Executive
Branch, and a presumption that such records should be
accessible to the American public with the enactment of the
Freedom of Information Act (FOIA). Under FOIA, any member of
the public may request access to Government information, and
FOIA requesters do not have to show a need or reason for
seeking information. The Freedom of Information Act is used by
researchers, historians, journalists, educators, and the public
at large to gain access to Government-held information
affecting public policy, consumer safety, the environment, and
public health, among other things. It has become an
indispensable tool for ensuring our Government remains
transparent and accountable to the people. The Supreme Court
aptly observed that the ``[p]urpose of the FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption.''\1\
---------------------------------------------------------------------------
\1\NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
---------------------------------------------------------------------------
The public's statutory right to access information held by
the Executive Branch, however, is not absolute. The Freedom of
Information Act defines which agency records are subject to
disclosure and outlines mandatory disclosure procedures. The
Freedom of Information Act also includes, however, nine
exemptions to disclosure and three law enforcement record
exclusions that protect some records from disclosure to the
public.\2\
---------------------------------------------------------------------------
\2\5 U.S.C. Sec. 552 (2006), amended by OPEN Government Act of
2007, Pub. L. No. 110-175, 121 Stat. 2524.
---------------------------------------------------------------------------
Since its enactment, FOIA has been amended multiple times
in an effort to improve both transparency and efficiency.
Notably, under the OPEN Government Act of 2007, Congress
created the Office of Government Information Services (OGIS).
OGIS was designed to serve as the FOIA ombudsman--a resource
for information and assistance for FOIA requesters--and it was
tasked with helping to resolve disputes between Federal
agencies and FOIA requesters. OGIS was also charged with
reviewing FOIA policies and procedures, monitoring agency
compliance, and providing findings and recommendations to
Congress with respect to improving the administration of FOIA.
Notwithstanding the many improvements to the original
legislation, more needs to be done to ensure that FOIA remains
the nation's premier transparency law. In Fiscal Year 2013, the
Federal Government received over 700,000 FOIA requests, an 8%
increase from the previous fiscal year.\3\ As the number of
requests grows, so does the backlog of agency responses. A
response to a FOIA request is considered to be backlogged if it
has been pending with a Federal agency longer than the
statutorily prescribed deadline to respond. At the end of
Fiscal Year 2013, more than 95,000 responses to FOIA requests
were backlogged with a Federal agency--a 33% increase from
Fiscal Year 2012.\4\
---------------------------------------------------------------------------
\3\U.S. Department of Justice, Office of Information Policy,
Summary of Annual FOIA Reports for Fiscal Year 2013 at 2, July 23,
2014, available at http://www.justice.gov/sites/default/files/oip/
legacy/2014/07/23/fy2013-annual-report-summary.pdf.
\4\Id. at 8.
---------------------------------------------------------------------------
In addition to the growing backlog, there are concerns that
some agencies are overusing FOIA exemptions that allow, but do
not require, information to be withheld from disclosure.
Pursuant to FOIA, Federal agencies may only withhold documents,
or portions of documents, sought if they fall within one or
more of nine categories of exemptions established by the
statute. While some FOIA exemptions leave no discretion to an
agency in determining whether or not the information may be
disclosed, other exemptions allow for discretionary disclosures
permitting agencies to release the requested information even
if it meets the technical requirements of the exemption.\5\
There is a growing and troubling trend towards relying on these
discretionary exemptions to withhold large swaths of Government
information, even though no harm would result from disclosure.
For example, according to the OpenTheGovernment.org 2013
Secrecy Report, Federal agencies used Exemption 5, which
permits nondisclosure of information covered by litigation
privileges such as the attorney-client privilege, the attorney
work product doctrine, and the deliberative process privilege,
more than 79,000 times in 2012--a 41% increase from the
previous year.
---------------------------------------------------------------------------
\5\U.S. Department of Justice, Guide to the Freedom of Information
Act, 2009 Edition, at 686-692 (2009).
---------------------------------------------------------------------------
During the Clinton Administration, Attorney General Janet
Reno instructed agencies to make discretionary disclosures to
FOIA requesters, and to withhold records only if a reasonably
foreseeable harm existed from that release.\6\ In 2001, the
George W. Bush Administration reversed this policy with a
memorandum from Attorney General John Ashcroft that encouraged
agencies to limit discretionary disclosures of information, and
stated that the Department of Justice (DOJ) would defend
decisions to withhold information from requesters unless those
decisions ``lack[ed] a sound legal basis.''\7\ When President
Obama took office in 2009, agencies again were instructed to
take a more open approach to FOIA, and to deny a FOIA request
only if the agency reasonably foresees that disclosure would
harm an interest protected by one of the statutory
exemptions.\8\ This ever-changing guidance is undoubtedly
confusing to FOIA processors and requesters alike, and agencies
need clearer guidance regarding when to withhold information
covered by a discretionary FOIA exemption. Codification of this
policy also makes clear that FOIA, under any administration,
should be approached with a presumption of openness.
---------------------------------------------------------------------------
\6\Attorney General Janet Reno, Attorney General, Memorandum for
Heads of Departments and Agencies, Subject: The Freedom of Information
Act (Oct. 4, 1993).
\7\Attorney General John Ashcroft, Attorney General, Memorandum for
Heads of All Federal Departments and Agencies, Subject: The Freedom of
Information Act (Oct. 12, 2001).
\8\Attorney General Eric Holder, Memorandum for Heads of Executive
Departments and Agencies, Subject: Freedom of Information Act (March
19, 2009).
---------------------------------------------------------------------------
Finally, while OGIS has been largely successful in carrying
out its mission and serving as a bridge between Federal
agencies and FOIA requesters, it is hampered in one of its most
fundamental duties. Under the OPEN Government Act of 2007, OGIS
is charged with reviewing agency compliance with FOIA,
reviewing policies and procedures of administrative agencies
under the FOIA, and recommending policy changes to Congress and
the President to improve the administration of FOIA. Since its
inception, however, DOJ has required OGIS to submit its
findings and recommendations to several executive agencies for
final approval before receiving permission to deliver its
findings to Congress. This process runs contrary to Congress's
intent in creating OGIS, and raises questions about its
independence, as well as with the timeliness with which
Congress and the President can expect to receive its findings
and recommendations.

B. THE FOIA IMPROVEMENT ACT OF 2015

The FOIA Improvement Act of 2015 (``the FOIA Improvement
Act'') takes a bipartisan approach to building upon the
successes of previous FOIA reforms and aims to further
modernize the law. Most importantly, this measure codifies the
policy established in January 2009 by President Obama for
releasing Government information under FOIA. The bill mandates
that an agency may withhold information only if it reasonably
foresees a specific identifiable harm to an interest protected
by an exemption, or if disclosure is prohibited by law. This is
commonly referred to as the ``presumption of openness.'' As
President Obama noted when he issued his guidance, information
may not be withheld ``merely because public officials might be
embarrassed by disclosure, because errors and failures might be
revealed, or because of speculative or abstract fears.''\9\
---------------------------------------------------------------------------
\9\President Barack Obama, Memorandum for the Heads of Executive
Departments and Agencies, Subject: Freedom of Information Act (Jan. 21,
2009).
---------------------------------------------------------------------------
Further, the bill adds a sunset provision to limit the
applicability to Exemption 5 to documents created less than 25
years ago. This provision is consistent with the fundamental
goals of FOIA: encouraging both transparency and
accountability. Nevertheless, FOIA has long sought to strike
the proper balance between achieving its goals and avoiding
unintended consequences that might chill internal decision-
making between government employees. The sunset provision
continues to strike the proper balance between these two
concerns. The provision ensures government records be made
available to the public for their educational and historic
value, while providing sufficient time for agencies to protect
against the disclosure of their deliberative processes. The
world can change significantly over the span of 25 years, and
the public benefits derived from access to historical records
should continue to be given special consideration when weighted
against the government's interest in withholding information.
The FOIA Improvement Act also strengthens the role of the
Office of Government Information Services. First, it restores
Congress's original intent, contained in the OPEN Government
Act of 2007, that OGIS not be required to obtain the prior
approval or comment of any agency before submitting its
findings and recommendations to Congress and the President.
Second, the measure requires agencies to notify requesters of
the right to seek dispute resolution services from OGIS or the
agency's FOIA public liaison. This is designed to encourage
alternative dispute resolution in lieu of expensive and time-
consuming litigation. Third, it provides OGIS with the
authority to issue advisory opinions at its own discretion
following the completion of mediation services, which will
provide guidance for similar disputes going forward.
The FOIA Improvement Act also enhances the public's ability
to access information by requiring that certain records and
reports be made available in an electronic format, as well as
requiring the public posting of documents that have been
released under FOIA on three or more occasions. It additionally
mandates that agencies make proactive disclosure of documents
of general interest or use to the public an ongoing component
of their records management program. The legislation clarifies
FOIA's fee structure by prohibiting agencies from charging
search or duplication fees when the agency fails to meet the
notice requirements and time limits set by existing law, unless
a request is considered voluminous.
The FOIA Improvement Act mandates the creation of a Chief
FOIA Officers Council to develop recommendations for increasing
agency FOIA compliance and efficiency, disseminate information
about agency best practices, and coordinate initiatives to
increase transparency and open government. The Council is
modeled after the currently existing Chief Information Officers
Council.
The FOIA Improvement Act requires the Director of the
Office of Management and Budget (OMB) to consult with the
Attorney General to ensure the operation of a consolidated
online request portal. This portal will allow the public to
submit a FOIA request to any agency from a single website.
Currently, most federal agencies will accept an electronic FOIA
request via the web. However, requesters must either visit a
particular agency's website to determine how to submit a
request or access www.foia.gov and search for a specific
agency's details when submitting an online request. A
consolidated online request portal will remove this burden and
confusion. Moreover, the legislation provides that the new
consolidated online request portal does not prohibit any agency
from creating or maintaining an independent online portal for
receiving requests. Finally, the legislation ensures that
agencies retain the flexibility needed to process requests once
received from the consolidated online request portal.
Specifically, the Director of OMB is required to establish
standards for interoperability between the consolidated online
request portal and the software agencies currently use to
process requests. This requirement recognizes the different
needs and resources of agencies in processing and responding to
requests.
Finally, the FOIA Improvement Act enhances agency reporting
requirements under FOIA to ensure that Federal agencies provide
data needed to understand the frequency of the use of
exemptions. Under the legislation, Federal agencies must
include in their reports to Congress the number of instances
that an exemption was used to withhold documents, the number of
instances the agency made voluntary disclosures, and the number
of times the agency engaged in dispute resolution with the OGIS
or with the FOIA public liaison.
The FOIA Improvement Act is supported by more than 50
organizations ranging from librarians to public interest
organizations, including the American Association of Law
Libraries, the American Civil Liberties Union, the American
Library Association, the American Society of News Editors, the
Association of Research Libraries, the Center for Effective
Government, Government Accountability Project, the National
Freedom of Information Coalition, the National Security
Archive, the National Security Counselors,
OpenTheGovernment.org, People for the American Way, Project On
Government Oversight, Reporters Committee for Freedom of the
Press, Society of Professional Journalists, the Sunlight
Foundation, and the Sunshine in Government Initiative.

II. History of the Bill and Committee Consideration

A. HEARING

In the 113th Congress, Chairman Leahy convened on March 11,
2014, an oversight hearing entitled ``Open Government and
Freedom of Information: Reinvigorating the Freedom of
Information Act for the Digital Age.'' During the hearing,
witnesses from the FOIA and open government community testified
about the numerous challenges facing the Government in
fulfilling its promises of transparency under FOIA. Witnesses
in attendance included Miriam Nesbit, Director, Office of
Government Information Services, National Archives and Records
Administration; Melanie Pustay, Director, the Office of
Information Policy, Department of Justice; Amy Bennett,
Assistant Director, OpenTheGovernment.org; Dr. David Cuillier,
Director, Associate Professor, University of Arizona School of
Journalism and President of the Society of Professional
Journalists; and Daniel J. Metcalfe, Adjunct Professor of Law
and Executive Director, Collaboration on Government Secrecy,
American University Washington College of Law.
The hearing examined legislative proposals that would
reform FOIA and address impediments to the public's ability to
obtain Government information under that law. Several witnesses
raised concerns regarding the growing use of FOIA exemptions by
Federal agencies to withhold information from the public, and
that some Federal agencies had failed to promulgate FOIA
regulations--even though the Attorney General issued guidelines
instructing them to do so in 2009. The hearing also explored
the question of making OGIS more independent and allowing it to
make recommendations on improving the FOIA process directly to
Congress rather than having to submit the findings to a review
process through OMB and DOJ.

B. INTRODUCTION OF THE BILL

After numerous stakeholder meetings and obtaining feedback
from Government agencies, then-Chairman Leahy (D-VT) and
Senator John Cornyn (R-TX) introduced the FOIA Improvement Act
of 2014, S. 2520, on June 24, 2014, in the 113th Congress. The
bill was referred to the Committee on the Judiciary. Senators
Grassley (R-IA), Hirono (D-HI), Johanns (R-NE), Coons (D-DE),
Markey (D-MA), Ayotte (R-NH) and Tester (D-MT) later joined as
cosponsors of the legislation.
The Committee reported S. 2520, as amended by a substitute
amendment, favorably to the Senate by voice vote on November
20, 2014. The substitute amendment, offered by then-Chairman
Leahy and Senator Cornyn, eliminated the balancing test to
Exemption 5 originally proposed in the bill as introduced;
clarified that the ``presumption of openness'' applies only to
the discretionary exemptions of FOIA; and provided that Federal
agencies may not charge fees if they miss the statutory
deadline for responding to a FOIA request, unless the request
requires a response of more than 50,000 pages. The substitute
amendment was accepted by unanimous consent.
S. 2520 then passed the Senate by unanimous consent without
amendment on December 8, 2014.
The FOIA Improvement Act of 2015, S. 337, is a continuation
of the efforts in the 113th Congress. It was introduced on
February 2, 2015, by Senator Cornyn (R-TX), Chairman Grassley
(R-IA), and Ranking Member Leahy (D-VT). Senators Fischer (R-
NE) and Coons (D-DE) were later added as cosponsors. S. 337 is
nearly identical to S. 2520. One technical correction was made
to Section 2(1)(A)(ii), which changed ``not less than 3 times''
to ``3 or more times'' for additional clarity. The language was
otherwise unchanged from S. 2520.

C. COMMITTEE CONSIDERATION

The Committee considered the FOIA Improvement Act of 2015
on February 5, 2015, and voted to report the bill favorably to
the Senate by voice vote. S. 337 was then reported to the full
Senate on February 9, 2015.

III. Section-by-Section Analysis of the Bill

Section 1. Short title

This section provides that the legislation may be cited as
the ``FOIA Improvement Act of 2015.''

Section 2. Amendments to FOIA

This section details the changes made by the FOIA
Improvement Act to 5 U.S.C. Sec. 552, the Freedom of
Information Act (FOIA).
Electronic Accessibility--The FOIA Improvement Act amends
the existing requirements that certain records and reports be
made available for public inspection to mandate that records
available for public inspection be made available in an
electronic format in order to ease public access.
Frequently Requested Records--The current law requires that
Federal agencies post ``frequently requested'' records sought
under FOIA online. The FOIA Improvement Act clarifies that
``frequently requested'' documents include any document that
has been released under FOIA and has been requested three or
more times.
Fees Clarification--The FOIA Improvement Act clarifies that
agencies may not charge search or duplications fees when the
agency fails to meet the notice requirements and time limits
set by existing law, unless a request is considered voluminous.
Agencies have been prohibited from charging fees in cases where
the agency failed to meet the notice requirement and time
limits since the passage of the OPEN Government Act of 2007.
However, ambiguity in the language allowed agencies to continue
to charge fees in cases where they have not in fact met the
notice requirements and time limits for responding to a FOIA
request.
The changes in this section remove that ambiguity and make
clear that agencies may not charge search and duplication fees
unless more than 50,000 pages are necessary to respond to a
single request.
Presumption of Openness--The FOIA Improvement Act codifies
the policy established for releasing Government information
under FOIA by President Obama when he took office in January
2009 and confirmed by Attorney General Holder in a March 19,
2009, Memorandum to all Executive Departments and Agencies. The
standard mandates that an agency may withhold information only
if it reasonably foresees a specific identifiable harm to an
interest protected by an exemption, or if disclosure is
prohibited by law. This standard is commonly referred to as the
``Foreseeable Harm'' standard, or the ``Presumption of
Openness.'' President Obama's guidance on this standard states:

The Freedom of Information Act should be administered
with a clear presumption: In the face of doubt,
openness prevails. The Government should not keep
information confidential merely because public
officials might be embarrassed by disclosure, because
errors and failures might be revealed, or because of
speculative or abstract fears. Nondisclosure should
never be based on an effort to protect the personal
interests of Government officials at the expense of
those they are supposed to serve.\10\
---------------------------------------------------------------------------
\10\President Barack Obama, Memorandum for the Heads of Executive
Departments and Agencies, Subject: Freedom of Information Act (Jan. 21,
2009).

Under this standard, the content of a particular record
should be reviewed and a determination made as to whether the
agency reasonably foresees that disclosing that particular
document, given its age, content, and character, would harm an
interest protected by the applicable exemption. Agencies should
note that mere ``speculative or abstract fears,'' or fear of
embarrassment, are an insufficient basis for withholding
information.
It is the intent of Congress that agency decisions to
withhold information relating to current law enforcement
actions under the foreseeable harm standard be subject to
judicial review for abuse of discretion.
The foreseeable harm standard applies only to those FOIA
exemptions under which discretionary disclosures can be made.
Several FOIA exemptions by their own existing terms cover
information that is prohibited from disclosure or exempt from
disclosure under a law outside the four corners of FOIA.\11\
Such information is not subject to discretionary disclosure and
is therefore not subject to the foreseeable harm standard.
---------------------------------------------------------------------------
\11\See U.S. Department of Justice, Guide to the Freedom of
Information Act, 2009 Edition, at 687-689 (2009) (explaining that
classified information, information protected from disclosure by the
Trade Secrets Act, information protected by the Privacy Act, and
information protected from disclosure under an Exemption 3 statute are
not appropriate subjects of discretionary disclosure). Exemption 3
exempts from disclosure information that is ``specifically exempted
from disclosure by statute (other than section 552b of this title), if
that statute'' contains a non-discretionary disclosure prohibition or
``establishes particular criteria for withholding or refers to
particular types of matters to be withheld.'' 5 U.S.C.
Sec. 552(b)(3)(A). In addition, a statute enacted after the date of
enactment of the OPEN FOIA Act of 2009 can only serve as an Exemption 3
statute if it ``specifically cites'' to the Exemption 3 statute. Id.
Sec. 552(b)(3)(B).
---------------------------------------------------------------------------
For example, classified information is protected from
disclosure by Exemption 1, see 5 U.S.C. Sec. 552(b)(1), and
Federal criminal statutes make it unlawful to disclose
classified information, see e.g., 18 U.S.C. Sec. 798. Moreover,
Exemption 6 was ``intended to cover detailed Government records
on an individual which can be identified as applying to that
individual.''\12\ Such information is protected if disclosure
``would constitute a clearly unwarranted invasion of personal
privacy.''\13\ And Exemption 7(C)--``the law enforcement
counterpart to Exemption 6''\14\--protects information compiled
for law enforcement purposes the disclosure of which ``could
reasonably be expected to constitute an unwarranted invasion of
personal privacy.''\15\ Much of the information covered by
these privacy exemptions is subject to a disclosure prohibition
in the Privacy Act.\16\
---------------------------------------------------------------------------
\12\See H.R. Rep. No. 89-1497, at 11, quoted in Dep't of State v.
Wash. Post. Co., 456 U.S. 595, 602 (1982).
\13\5 U.S.C. Sec. 552(b)(6).
\14\U.S. Department of Justice, Guide to the Freedom of Information
Act, 2009 Edition, at 561 (2009).
\15\5 U.S.C. Sec. 552(b)(7)(C).
\16\As the Supreme Court explained in Department of Defense v.
Federal Labor Relations Auth., 510 U.S. 487, 494-95 (1994), information
protected by the Privacy Act's disclosure prohibition (5 U.S.C.
Sec. 552a(b)) cannot be disclosed unless an exemption under the Privacy
Act applies. One of those exemptions is for disclosure that is
``required under Section 552,'' referring to disclosure required by
FOIA. 5 U.S.C. Sec. 552a(b)(2). Thus, unless another Privacy Act
exemption applies, the Privacy Act itself prohibits disclosure of
information that is both (a) protected by the Privacy Act, and (b)
exempt from FOIA disclosure, such as under Exemptions 6 or 7(C). FLRA,
510 U.S. at 494 (``[U]nless FOIA would require release of the
addresses, their disclosure is `prohibited by law,' and the agencies
may not reveal them.''); see also Dep't of Defense v. Federal Labor
Relations Auth., 964 F.2d 26, 30-31 n.6 (D.C. Cir. 1992) (``[I]n
responding to a FOIA request for personal information about its
employees, a federal agency can only disclose information that it would
be required to disclose under the FOIA. For an agency to do otherwise
would violate the prohibition on disclosure in the Privacy Act.''). In
addition, as with other subparts of Exemption 7, the texts of Exemption
7(C) and 6 incorporate a reasonable harm standard that this legislation
is not meant to displace.
---------------------------------------------------------------------------
Other narrowly-drawn exemptions for information compiled
for law enforcement purposes within Exemption 7 already
incorporate a reasonable foreseeability of harm standard within
the text of the exemption. This legislation is not meant to
displace these exemptions.\17\ Among other things, these
exemptions protect against infringement of a defendant's right
to a fair trial, circumvention of the law, and risks to
confidential sources.\18\ As with the privacy exemptions, some
such information may be subject to a disclosure prohibition or
other exemption. These prohibitions or exemptions by their
express terms apply a standard equal to, or greater than,
reasonable foreseeability with respect to the harms they are
meant to protect against.\19\
---------------------------------------------------------------------------
\17\5 U.S.C. Sec. 552(b)(7). Such exemptions are contained in
subparagraphs of Exemption 7 other than subparagraph 7(C).
\18\Exemption 7(D) is critically important for all levels of law
enforcement. It is ``is meant to (1) protect confidential sources from
retaliation that may result from the disclosure of their participation
in law enforcement activities, and (2) ``encourage cooperation with law
enforcement agencies by enabling the agencies to keep their informants'
identities confidential.'' See Ortiz v. Dep't of Health and Human
Servs., 70 F.3d 729, 732 (2d Cir. 1995) (citing Brant Construction Co.
v. United States EPA, 778 F.2d 1258, 1262 (7th Cir. 1985), and United
Technologies Corp. v. NLRB, 777 F.2d 90, 94 (2d Cir. 1985)).
\19\Reasonable-foreseeability tests are imposed by Exemption 7(A)
(``could reasonably be expected to interfere with enforcement
proceedings''), 5 U.S.C. Sec. 552(b)(7)(A); Exemption 7(D) (``could
reasonably be expected to disclose the identity of a confidential
source . . . or information furnished by a confidential source''), id.
Sec. 552(b)(7)(D); Exemption 7(E) (``if such disclosure could
reasonably be expected to risk circumvention of the law''), id.
Sec. 552(b)(7)(E); and Exemption 7(F) (``could reasonably be expected
to endanger the life or physical safety of any individual''), id.
Sec. 552(b)(7)(F). A higher threshold than reasonable-foreseeability is
already imposed by Exemption (7)(B), which protects information the
disclosure of which ``would deprive a person of a right to a fair trial
or an impartial adjudication.'' Id. Sec. 552(b)(7)(B). As the Supreme
Court explained prior to the 1986 amendments, ``[t]he enumeration of
these categories of undesirable consequences indicates Congress
believed the harm of disclosing this type of information would outweigh
its benefits.'' FBI v. Abramson, 456 U.S. 615, 627-28 (1982).
---------------------------------------------------------------------------
Extreme care should be taken with respect to disclosure
under Exemption 8 which protects matters that are ``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.''\20\ Currently, financial regulators rely on
Exemption 8, and other relevant exemptions in Section 552(b),
to protect sensitive information received from regulated
entities, or prepared in connection with the regulation of such
entities, in fulfilling their goals of ensuring safety and
soundness of the financial system, compliance with federal
consumer financial law, and promoting fair, orderly, and
efficient financial markets. Exemption 8 was intended by
Congress, and has been interpreted by the courts, to be very
broadly construed to ensure the security of financial
institutions and to safeguard the relationship between the
banks and their supervising agencies.\21\ The D.C. Circuit has
gone so far as to state that in Exemption 8 Congress has
provided ``absolute protection regardless of the circumstances
underlying the regulatory agency's receipt or preparation of
examination, operating or condition reports.''\22\ Nothing in
this legislation shall be interpreted to compromise the
stability of any financial institution or the financial system,
disrupt the operation of financial markets or undermine
consumer protection efforts due to the release of confidential
information about individuals or information that a financial
institution may have, or encourage the release of confidential
information about individuals. This legislation is not intended
to lessen the protection under Exemption 8 created by Congress
and traditionally afforded by the courts.
---------------------------------------------------------------------------
\20\5 U.S.C. Sec. 552(b)(8).
\21\See, e.g., Consumers Union v. Heimann, 589 F.2d 531, 534 (D.C.
Cir. 1978) (identifying the primary reason for Exemption 8 was to
``ensure the security of financial institutions'' against the
possibility that ``disclosure of examination, operation, and condition
reports containing frank evaluations of the investigated banks might
undermine public confidence and cause unwarranted runs on banks,'' and
the secondary purpose was to ``safeguard the relationship between the
banks and their supervising agencies,'' because banks would be less
likely to cooperate with federal authorities if ``examinations were
made freely available to the public and to banking competitors.'').
\22\Gregory v. Federal Deposit Insurance Corporation, 631 F.2d 896,
898 (D.C. Cir. 1980).
---------------------------------------------------------------------------
Exemption 5--The FOIA Improvement Act amends Exemption 5 to
include a sunset provision, which would limit the application
of Exemption 5 to documents created less than 25 years ago.
Exemption 5 permits agencies to withhold from disclosure inter-
and intra-agency documents that would be exempt from discovery
in civil or criminal litigation. This includes but is not
limited to the attorney-client privilege, the attorney work
product doctrine, and deliberative process documents.
The amendment to Exemption 5 is consistent with the unique
relationship that government employees have with executive
branch agencies, as well as the duty imposed on government
employees to act in the public interest. The actions of
government lawyers, for example, are subject to a degree of
public scrutiny and review that is unknown within the context
of a private attorney and her private citizen--or even
corporate entity--client.\23\
---------------------------------------------------------------------------
\23\See, for example, In re Witness Before Special Grand Jury 2000-
2, 288 F.3d 289, 293 (7th Cir. 2002) (``First, government lawyers have
responsibilities and obligations different from those facing members of
the private bar. While the latter are appropriately concerned first and
foremost with protecting their clients--even those engaged in
wrongdoing--from criminal charges and public exposure, government
lawyers have a higher, competing duty to act in the public
interest.'').
---------------------------------------------------------------------------
Office of Government Information Services Independence--The
FOIA Improvement Act provides additional independence for the
Office of Government Information Services, created by the Open
Government Act of 2007. It gives OGIS the ability to report
directly to the Congress and the President without prior
approval from any other agency, including the DOJ or the OMB.
The bill also provides OGIS with the authority to issue
advisory opinions at its discretion at the completion of
mediation between a FOIA requester and an agency. The Committee
expects OGIS to use its full authority to issue advisory
opinions, particularly in instances where OGIS notices a
particular pattern of non-compliance with the law.
Dispute Resolution Services--The FOIA Improvement Act
requires agencies to notify FOIA requesters of the right to
seek dispute resolution services from OGIS or the agency's FOIA
public liaison.
Government Accountability Office--The FOIA Improvement Act
requires the GAO, in addition to its current responsibility of
auditing agency compliance with the FOIA, to catalog and report
on the statutory exemptions to FOIA that exist outside of 5
U.S.C. Sec. 552 (as incorporated into FOIA through Exemption
3),\24\ including the frequency with which the exemptions are
invoked. Furthermore, the bill requires the GAO to examine and
report on the use of Exemption 5 and examine the manner in
which those exemptions have been used by agencies.
---------------------------------------------------------------------------
\24\5 U.S.C. Sec. 552(b)(3).
---------------------------------------------------------------------------
Chief FOIA Officers Council--The FOIA Improvement Act
mandates creation of a council to develop recommendations for
increasing agency FOIA compliance and efficiency by Federal
agencies, disseminate information about agency best practices,
and coordinate initiatives to increase transparency and open
government. The Council is modeled after the currently existing
Chief Information Officers Council. The Committee believes
meetings of the Council and all materials generated in
preparation for or as a result of the Council's work should be
as open to the public as possible.
FOIA Reports--The FOIA Improvement Act requires agencies to
include in their annual FOIA reports (a) the number of times
documents have been exempted from disclosure as part of an
ongoing criminal investigation under 5 U.S.C. Sec. 552(c); (b)
the number of times the agency has engaged in dispute
resolution with OGIS or the FOIA public liaison; and (c) the
number of records the agency proactively discloses as required
by 5 U.S.C. Sec. 552(a)(2).
Consolidated Online Request Portal--The FOIA Improvement
Act requires the Director of OMB, in consultation with the
Attorney General, to ensure the operation of a consolidated
online request portal that allows the public to submit a FOIA
request to any agency from a single website. The legislation
provides that this requirement shall not be construed to alter
any other agency's power to create or maintain an independent
online portal for the submission of a FOIA request. Further,
the Director of OMB is instructed to establish standards for
interoperability between the new consolidated online request
portal and other request processing software used by agencies
subject to this section.

Section 3. Revision and issuance of regulations

This section requires agencies to review and issue
regulations on the procedures for disclosure of records under
section 552 of title 5, including procedures for dispute
resolution and engaging with the Office of Government
Information Services.

Section 4. Proactive disclosure through records management

This section amends section 3102 of title 44 of the United
States Code to make proactive disclosure an ongoing part of
agency record management by requiring the heads of agencies to
include in an agency's records management system procedures for
identifying records of general interest or use to the public
that are appropriate for public disclosure, and for making such
records publicly available in an electronic format.

Section 5. No additional funds authorized

No additional funds are authorized to carry out the
requirements of this Act and the amendments made by this Act.
Such requirements shall be carried out using amounts otherwise
authorized or appropriated.

IV. Congressional Budget Office Cost Estimate

The Committee sets forth, with respect to the bill, S. 337,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
February 17, 2015.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 337, the FOIA
Improvement Act of 2015.
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.

S. 337--FOIA Improvement Act of 2015

Summary: S. 337 would amend the Freedom of Information Act
(FOIA) and aims to provide easier access to government
documents. FOIA generally allows any person to obtain records
from federal agencies. Specifically, the legislation would:
establish a single website for making FOIA requests; direct
agencies to make records available in an electronic format;
reduce the number of exemptions agencies can use to withhold
information from the public; clarify procedures for handling
frequently requested documents and charging fees; establish the
Chief FOIA Officers Council; and require agencies to prepare
additional reports for the Congress on FOIA matters.
CBO estimates that implementing S. 337 would cost $20
million over the 2015-2020 period, assuming appropriation of
the necessary amounts. Enacting S. 337 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
changes direct spending by those agencies would not be
significant. Enacting the bill would not affect revenues.
S. 337 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 S. 337 is shown in the following table. The
costs of this legislation fall within all budget functions that
contain salaries and expenses.

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------
2015-
2015 2016 2017 2018 2019 2020 2020
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.................... 2 4 4 5 5 5 25
Estimated Outlays................................ 1 3 4 4 4 4 20
----------------------------------------------------------------------------------------------------------------

Basis of the estimate: For this estimate, CBO assumes that
the bill will be enacted in fiscal year 2015, 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. The Office of Management and Budget (OMB)
issues guidelines to agencies on what fees to charge for
providing information, while the Department of Justice (DOJ)
oversees agency compliance with FOIA. In 2013, federal agencies
(excluding the Social Security Administration) received more
than 704,000 FOIA requests. In addition, DOJ reports that in
fiscal year 2013, agencies employed about 4,200 full-time staff
to fulfill requests and spent $446 million on related
activities.
Some of the provisions of the bill would codify and expand
current practices related to FOIA. Presidential memoranda and
DOJ guidelines have directed agencies to provide more FOIA
information to the public on a timely basis. Under the bill,
CBO expects that OMB would expand the use of existing websites
that are currently used to fulfill FOIA requests.
CBO anticipates that the workloads of most agencies would
increase slightly to carry out the bill's new reporting
requirements. We also expect that agencies would incur
additional costs to organize and hold an annual FOIA meeting
and to establish a Chief FOIA Officers Council to review and
improve the FOIA process. Based on the costs of developing and
maintaining similar electronic filing systems and websites and
a review of the annual reports on FOIA activities submitted by
15 major agencies over the past five years, which provide
information on FOIA-related costs, CBO estimates that
implementing S. 337 would eventually cost $5 million annually--
a 1 percent increase in the governmentwide cost of
administering FOIA. We expect that most federal agencies would
face additional costs of significantly less than $0.5 million
per year.
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 S. 337 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-sctor impact: S. 337 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: Jon Sperl;
Impact on private sector: John Rodier.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

V. Regulatory Impact Evaluation

In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 337.

VI. Conclusion

Passage of the FOIA Improvement Act will ensure FOIA
remains our nation's premier transparency law. Codification of
the presumption of openness is long overdue, and will reaffirm
our commitment to promoting transparency and an open
government. Improvements to OGIS will help ensure that it
serves as a much-needed bridge between Federal agencies and
FOIA requesters, as well as a resource to Congress and the
President as we continue to evaluate and improve FOIA
administration. The passage and enactment of this important
legislation furthers the notions that government
accountability, best achieved through a strong commitment to
transparency laws, is in the interests of both the Government
and its citizenry alike.

VII. Additional Views

ADDITIONAL VIEWS FROM SENATOR SESSIONS

Since the Freedom of Information Act was first passed in
1966, it has been an invaluable tool for promoting government
accountability and transparency--``ensur[ing] an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.''\1\ The Committee is now
recommending a bill to the Senate that seeks to build on these
worthy goals. However, I am concerned that a provision in this
legislation could cause a decline in the effectiveness of
decisionmaking by government officials by chilling lawyers from
presenting in writing various options and concerns. The
historic strength, even sanctity, of the attorney-client
relationship has been a valued part of the American legal
tradition since the nation's founding. To allow a breach of
that private communication without specific cause and merely
upon the passage of time through FOIA is an enormous alteration
of this long-established principle.
---------------------------------------------------------------------------
\1\NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
---------------------------------------------------------------------------
Specifically, the bill would change the law so that
government documents that are currently covered by FOIA
Exemption 5 could potentially be disclosed after 25 years. FOIA
Exemption 5 provides that executive agencies do not have to
make public any ``inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other
than an agency in litigation with the agency.''\2\ Interpreting
this language, the Supreme Court has ``construe[d] Exemption 5
to exempt those documents, and only those documents, normally
privileged in the civil discovery context.''\3\ As such,
Exemption 5 is broad in its scope, ``encompassing both
statutory privileges and those commonly recognized by case
law,''\4\ including both the attorney-client and attorney work-
product privileges.
---------------------------------------------------------------------------
\2\5 U.S.C. 552(b)(5).
\3\NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
\4\Office of Information Policy, ``Guide to the Freedom of
Information Act,'' pg. 357, Dep't of Justice, Jul. 23, 2014, available
at: http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/
exemption5--1.pdf.
---------------------------------------------------------------------------
By subjecting such documents to potential disclosure, this
legislation could chill government lawyers from offering candid
advice and invite criminal defendants and their attorneys to
re-open and re-litigate long-resolved cases. As the Supreme
Court stated in Upjohn Co. v. United States:

The attorney-client privilege is the oldest of the
privileges for confidential communications known to the
common law. Its purpose is to encourage full and frank
communication between attorneys and their clients, and
thereby promote broader public interests in the
observance of law and administration of justice. The
privilege recognizes that sound legal advice or
advocacy serves public ends and that such advice or
advocacy depends upon the lawyer's being fully informed
by the client.\5\
---------------------------------------------------------------------------
\5\Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (internal
citations omitted).

These same goals and needs exist in the executive agency
context to the same extent that they exist in any other legal
context, which is why the Supreme Court has also recognized
``that an agency can be a `client' and agency lawyers can
function as `attorneys' within the relationship contemplated by
the [attorney-client] privilege . . .''\6\ Agency lawyers rely
on ``full and frank communication'' with their executive branch
clients in order to provide ``sound legal advice or advocacy.''
I am concerned that ``full and frank communication'' may be
chilled by the knowledge that all such communications could
become a matter of public record within a relatively short time
period. As the Supreme Court stated in United States v. Nixon,
``[h]uman experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the
detriment of the decision-making process.''\7\ Attorneys who
have prepared legal opinions in the past have felt free to
discuss credibility issues, unproven facts, character
judgments, and the like on the assumption that they would be
considered in the process but never suspecting they would be
made public on the mere showing of passage of time. This
concern is magnified by the fact that many government lawyers'
careers span well over 25 years. It would be unfortunate if a
young lawyer withheld sound legal advice, sanitizing or
reducing the content of his writings, for fear that he might be
criticized for such advice later on, or if an agency official
withheld information from lawyers out of similar concern.
---------------------------------------------------------------------------
\6\Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854,
863 (D.C. Cir. 1980).
\7\United States v. Nixon, 418 U.S. 683, 705 (1974).
---------------------------------------------------------------------------
In addition, litigation can often last well beyond 25
years. At the very least, this legislation raises the question
of whether documents related to ongoing litigation could be
disclosed to the public. There would be little certainty, as
the question of disclosure in such scenarios would presumably
be decided by a judge.
Finally, I am informed by both the Department of Justice
and the National Association of Assistant United States
Attorneys that the 25-year sunset provision on Exemption 5
could invite defendants and their lawyers to use FOIA as an
alternative discovery tool in attempts to re-open closed cases.
FOIA was designed by Congress as a public accountability
measure and not as an instrument of litigation. Preliminary
opinions, early research, and comments made before facts are
fully known when considered years later can create unfounded
issues resulting in prolonged re-litigation of cases concluded
on clear evidence.
While I support the overall purpose of the legislation, I
believe that these issues should be studied more closely. I
look forward to working with the sponsors and discussing these
matters to ensure potential unintended consequences do not
frustrate the bill's purpose. I applaud the Committee for its
continued efforts to ensure the transparent and accountable
governance that is so critical to the health of any democracy.

Jeff Sessions.
VIII. Changes to Existing Law Made by the Bill, as Reported

In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that it is
necessary to dispense with the requirement of paragraph 12 to
expedite the business of the Senate.

[all]