H.R. 1211 — Reported in House

IB Union Calendar No. 112 113th CONGRESS 1st Session H. R. 1211 [Report No. 113–155] IN THE HOUSE OF REPRESENTATIVES March 15, 2013 Mr. Issa (for himself and Mr. Cummings) introduced the following bill; which was referred to the Committee on Oversight and Government Reform July 16, 2013 Additional sponsor: Mr. Quigley July 16, 2013 Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed Omit the part struck through and insert the part printed in italic A BILL 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. 1. Short title This Act may be cited as the FOIA Oversight and Implementation Act of 2013 or the FOIA Act. 2. Freedom of Information Act amendments (a) Electronic accessibility Section 552 of title 5, United States Code is amended— (1) in subsection (a)— (A) in paragraph (2)— (i) by striking for public inspection and copying and inserting in an electronic, publicly accessible formateach place it appears; (ii) by striking subparagraph (E) and inserting the following new subparagraphs: (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); ; and (iii) in the matter proceedingfollowing subparagraph (F) (as added by clause (ii) of this subparagraph)— (I) by striking subparagraph (D) and inserting subparagraphs (D) and (E); and (II) by striking subparagraph (E) and inserting subparagraph (F); and (B) in paragraph (7)— (i) in subparagraph (A), by striking that will take longer than ten days to process; and (ii) in subparagraph (B), by inserting automated after provides; (2) in subsection (g), by striking make publicly available upon request and inserting make available in an electronic, publicly accessible format; and (3) in subsection (i), by striking the implementation and inserting compliance with and implementation of the requirements; and (4) (3) by adding at the end the following new subsection: (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). . (b) Presumption of openness Section 552(b) of title 5, United States Code, is amended in the matter preceding paragraph (1), by inserting that would cause foreseeable harm and after matters. (c) The Office of Government Information Services Section 552 of title 5, United States Code is amended— (1) in subsection (a)(4)(A)(i), by striking the Director of the Office of Management and Budget and inserting the Director of the Office of Management and Budget, in consultation with the Director of the Office of Government Information Services,; and (2) subsection (h) is amended to read as follows: (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. . (d) Public resources Section 552(a)(6)(A) of title 5, United States Code, is amended— (1) in clause (i), by striking 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 and inserting the following new subclauses: : “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 ; and (2) in clause (ii), by striking the period and inserting the following: and the right of such person to seek dispute resolution services from the agency FOIA Public Liaison or the Office of Government Information Services. (e) Additional disclosure of information requirements Section 552(a) of title 5, United States Code, is amended by adding at the end the following new paragraphs: (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. . (f) Agency FOIA report Section 552(e) of title 5, United States Code, is amended— (1) in paragraph (1)— (A) by inserting and to the Director of the Office of Government Information Services after the Attorney General of the United States; (B) in subparagraph (N), by striking ; and and inserting a semicolon; (C) in subparagraph (O), by striking the period and inserting a semicolon; and (D) by adding at the end the following new subparagraphs: (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; and (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). ; (2) by amending paragraph (3) to read as follows: (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. ; (3) in paragraph (4)— (A) by striking Committee on Government Reform and Oversight and inserting Committee on Oversight and Government Reform; (B) by striking Governmental Affairs and inserting Homeland Security and Governmental Affairs; and (C) by striking April 1 and inserting March 1; (4) in paragraph (5)— (A) by inserting and the Director of the Office of Government Information Services after the Director of the Office of Management and Budget; and (B) by striking by October 1, 1997; and (5) by amending paragraph (6) to read as follows: (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) 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.. (g) (h) Government Accountability Office Subsection (i) of section 552 of title 5, United States Code, is amended to read as follows: (i) Government Accountability Office The Government Accountability Office shall— (1) conduct audits of administrative agencies on the implementationcompliance with and implementation of the requirements of this section and issue reports detailing the results of such audits; and; (2) catalog the number of exemptions under subsection (b)(3) and agency use of such exemptions. (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. . (h) (i) Chief FOIA Officer responsibilities; Council; review Section 552 of title 5, United States Code is amended— (1) by striking subsections (j) and (k); and (2) by inserting after subsection (i), the following new subsections: (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. . (i) (j) Regulations (1) Revision of regulations Not later than 180 days after the date of the enactment of this Act, the head of each agency shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under section 552 of title 5, United States Code, in accordance with the amendments made by this section. The regulations of each agency shall include— (A) procedures for engaging in dispute resolution; and (B) procedures for engaging with the Office of Government Information Services. (2) Office of Government Information Services report Not later than 270 days after the date of the enactment of this Act, the Office of Government Information Services shall submit to Congress a report on agency compliance with the requirements of this subsection. (3) Report on noncompliance The head of any agency that does not meet the requirements of paragraph (1) shall submit to Congress a report on the reason for noncompliance not later than 270 days after the date of the enactment of this Act. (4) Inspector General review for noncompliance Any agency that fails to comply with the requirements of this subsection shall be reviewed by the Office of Inspector General of such agency for compliance with section 552 of title 5, United States Code. (5) Agency defined In this section, the term agency has the meaning given such term in section 552(f) of title 5, United States Code. 3. Pilot program (a) Establishment The Director of the Office of Management and Budget shall establish a pilot program for 3 years to review the benefits of FOIAonline to process requests and release information under section 552 of title 5, United States Code (commonly known as the Freedom of Information Act). (b) Plan required Not later than 90 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall establish a plan to evaluate FOIAonline at no less than 3 agencies that have not previously participated in FOIAonline, including at least one of the following: (1) An agency that receives more than 50,000 requests annually for information under section 552 of title 5, United States Code. (2) An agency that receives between 25,000 and 50,000 requests annually for information under such section. (3) An agency that receives 25,000 or fewer requests annually for information under such section. (c) Agency use of Web site Each agency selected under subsection (b) shall use FOIAonline to— (1) receive requests under section 552 of title 5, United States Code; (2) process requests received under such section; (3) track the status of requests submitted under such section; and (4) make records released available publicly on FOIAonline. (d) Review required The Director of the Office of Management and Budget shall, in consultation with the Attorney General, the Office of Government Information Services, and the head of each agency participating in the pilot program, review the benefits of FOIAonline, including— (1) any cost saving, resource saving, or efficiency gained through the use of FOIAonline; (2) any change in the amount of requests received under section 552 of title 5, United States Code; (3) any increase in transparency and accessibility to Government information; and (4) any changes in the ability to access and compile information needed for agency annual reports required under section 552 of title 5, United States Code. (e) Report required Not later than 3 months after the completion of the pilot program, the head of each agency participating in the program shall submit to Congress a report on the impact of the pilot program on agency processes under section 552 of title 5, United States Code, whether the agency will continue to participate in FOIAonline, and any recommendations the head of the agency considers appropriate to continue the use of FOIAonline. (f) Definitions In this section: (1) Agency The term agency has the meaning given such term in section 552(f) of title 5, United States Code. (2) FOIAonline The term FOIAonline means the electronic online portal FOIAonline.regulations.gov. 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. July 16, 2013 Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed