[104th Congress Public Law 231]
[From the U.S. Government Printing Office]
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[DOCID: f:publ231.104]
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ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996
[[Page 110 STAT. 3048]]
Public Law 104-231
104th Congress
An Act
To amend section 552 of title 5, United States Code, popularly known as
the Freedom of Information Act, to provide for public access to
information in an electronic format, and for other
purposes. <<NOTE: Oct. 2, 1996 - [H.R. 3802]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Electronic Freedom of
Information Act Amendments of 1996. Records. 5 USC 552
note.>> assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Freedom of Information Act
Amendments of 1996''.
SEC. 2. <<NOTE: 5 USC 552 note.>> FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) the purpose of section 552 of title 5, United States
Code, popularly known as the Freedom of Information Act, is to
require agencies of the Federal Government to make certain
agency information available for public inspection and copying
and to establish and enable enforcement of the right of any
person to obtain access to the records of such agencies, subject
to statutory exemptions, for any public or private purpose;
(2) since the enactment of the Freedom of Information Act in
1966, and the amendments enacted in 1974 and 1986, the Freedom
of Information Act has been a valuable means through which any
person can learn how the Federal Government operates;
(3) the Freedom of Information Act has led to the disclosure
of waste, fraud, abuse, and wrongdoing in the Federal
Government;
(4) the Freedom of Information Act has led to the
identification of unsafe consumer products, harmful drugs, and
serious health hazards;
(5) Government agencies increasingly use computers to
conduct agency business and to store publicly valuable agency
records and information; and
(6) Government agencies should use new technology to enhance
public access to agency records and information.
(b) Purposes.--The purposes of this Act are to--
(1) foster democracy by ensuring public access to agency
records and information;
(2) improve public access to agency records and information;
(3) ensure agency compliance with statutory time
limits; and
[[Page 110 STAT. 3049]]
(4) maximize the usefulness of agency records and
information collected, maintained, used, retained, and
disseminated by the Federal Government.
SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.
Section 552(f) of title 5, United States Code, is amended to read as
follows:
``(f) For purposes of this section, the term--
``(1) `agency' as defined in section 551(1) of this title
includes any executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency; and
``(2) `record' and any other term used in this section in
reference to information includes any information that would be
an agency record subject to the requirements of this section
when maintained by an agency in any format, including an
electronic format.''.
SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEXATION
OF RECORDS.
Section 552(a)(2) of title 5, United States Code, is amended--
(1) in the second sentence, by striking ``or staff manual or
instruction'' and inserting ``staff manual, instruction, or
copies of records referred to in subparagraph (D)'';
(2) by inserting before the period at the end of the third
sentence the following: ``, and the extent of such deletion
shall be indicated on the portion of the record which is made
available or published, unless including that indication would
harm an interest protected by the exemption in subsection (b)
under which the deletion is made'';
(3) by inserting after the third sentence the following:
``If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was
made.'';
(4) in subparagraph (B), by striking ``and'' after the
semicolon;
(5) by inserting after subparagraph (C) the following:
``(D) copies of all records, regardless of form or format,
which have been released to any person under paragraph (3) and
which, because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
``(E) a general index of the records referred to under
subparagraph (D);'';
(6) <<NOTE: Availability date.>> by inserting after the
fifth sentence the following: ``Each agency shall make the index
referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999.''; and
(7) <<NOTE: Availability date.>> by inserting after the
first sentence the following: ``For records created on or after
November 1, 1996, within one year after such date, each agency
shall make such records available, including by computer
telecommunications or, if computer telecommunications means have
not been established by the agency, by other electronic
means.''.
[[Page 110 STAT. 3050]]
SEC. 5. HONORING FORM OR FORMAT REQUESTS.
Section 552(a)(3) of title 5, United States Code, is amended--
(1) by inserting ``(A)'' after ``(3)'';
(2) by striking ``(A)'' the second place it appears and
inserting ``(i)'';
(3) by striking ``(B)'' and inserting ``(ii)''; and
(4) by adding at the end the following new subparagraphs:
``(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by the
agency in that form or format. Each agency shall make reasonable efforts
to maintain its records in forms or formats that are reproducible for
purposes of this section.
``(C) In responding under this paragraph to a request for records,
an agency shall make reasonable efforts to search for the records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the agency's automated information
system.
``(D) For purposes of this paragraph, the term `search' means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.''.
SEC. 6. STANDARD FOR JUDICIAL REVIEW.
Section 552(a)(4)(B) of title 5, United States Code, is amended by
adding at the end the following new sentence: ``In addition to any other
matters to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency concerning the
agency's determination as to technical feasibility under paragraph
(2)(C) and subsection (b) and reproducibility under paragraph (3)(B).''.
SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.
(a) Multitrack Processing.--Section 552(a)(6) of title 5, United
States Code, is amended by adding at the end the following new
subparagraph:
``(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
``(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in order to
qualify for faster processing.
``(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.''.
(b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United
States Code, is amended to read as follows:
``(B)(i) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the unusual circumstances for such extension
and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for
more than ten working days, except as provided in clause (ii) of this
subparagraph.
[[Page 110 STAT. 3051]]
``(ii) <<NOTE: Notification.>> With respect to a request for which a
written notice under clause (i) extends the time limits prescribed under
clause (i) of subparagraph (A), the agency shall notify the person
making the request if the request cannot be processed within the time
limit specified in that clause and shall provide the person an
opportunity to limit the scope of the request so that it may be
processed within that time limit or an opportunity to arrange with the
agency an alternative time frame for processing the request or a
modified request. Refusal by the person to reasonably modify the request
or arrange such an alternative time frame shall be considered as a
factor in determining whether exceptional circumstances exist for
purposes of subparagraph (C).
``(iii) As used in this subparagraph, `unusual circumstances' means,
but only to the extent reasonably necessary to the proper processing of
the particular requests--
``(I) the need to search for and collect the requested
records from field facilities or other establishments that are
separate from the office processing the request;
``(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request; or
``(III) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or
among two or more components of the agency having substantial
subject-matter interest therein.
``(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of requestors acting in
concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated.''.
(c) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5,
United States Code, is amended by inserting ``(i)'' after ``(C)'', and
by adding at the end the following new clauses:
``(ii) For purposes of this subparagraph, the term `exceptional
circumstances' does not include a delay that results from a predictable
agency workload of requests under this section, unless the agency
demonstrates reasonable progress in reducing its backlog of pending
requests.
``(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a request
(or a modified request) under clause (ii) after being given an
opportunity to do so by the agency to whom the person made the request
shall be considered as a factor in determining whether exceptional
circumstances exist for purposes of this subparagraph.''.
SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.
(a) Expedited Processing.--Section 552(a)(6) of title 5, United
States Code (as amended by section 7(a) of this Act), is further amended
by adding at the end the following new subparagraph:
``(E)(i) <<NOTE: Regulations.>> Each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, providing
for expedited processing of requests for records--
[[Page 110 STAT. 3052]]
``(I) in cases in which the person requesting the records
demonstrates a compelling need; and
``(II) in other cases determined by the agency.
``(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure--
``(I) <<NOTE: Notification.>> that a determination of
whether to provide expedited processing shall be made, and
notice of the determination shall be provided to the person
making the request, within 10 days after the date of the
request; and
``(II) expeditious consideration of administrative appeals
of such determinations of whether to provide expedited
processing.
``(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing under
this subparagraph. <<NOTE: Courts.>> Agency action to deny or affirm
denial of a request for expedited processing pursuant to this
subparagraph, and failure by an agency to respond in a timely manner to
such a request shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before the
agency at the time of the determination.
``(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a
request for records after the agency has provided a complete response to
the request.
``(v) For purposes of this subparagraph, the term `compelling need'
means--
``(I) that a failure to obtain requested records on an
expedited basis under this paragraph could reasonably be
expected to pose an imminent threat to the life or physical
safety of an individual; or
``(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government
activity.
``(vi) <<NOTE: Certification.>> A demonstration of a compelling need
by a person making a request for expedited processing shall be made by a
statement certified by such person to be true and correct to the best of
such person's knowledge and belief.''.
(b) Extension of General Period for Determining Whether To Comply
With a Request.--Section 552(a)(6)(A)(i) of title 5, United States Code,
is amended by striking ``ten days'' and inserting ``20 days''.
(c) Estimation of Matter Denied.--Section 552(a)(6) of title 5,
United States Code (as amended by section 7 of this Act and subsection
(a) of this section), is further amended by adding at the end the
following new subparagraph:
``(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of any
requested matter the provision of which is denied, and shall provide any
such estimate to the person making the request, unless providing such
estimate would harm an interest protected by the exemption in subsection
(b) pursuant to which the denial is made.''.
SEC. 9. COMPUTER REDACTION.
Section 552(b) of title 5, United States Code, is amended in the
matter following paragraph (9) by inserting after the period
[[Page 110 STAT. 3053]]
the following: ``The amount of information deleted shall be indicated on
the released portion of the record, unless including that indication
would harm an interest protected by the exemption in this subsection
under which the deletion is made. If technically feasible, the amount of
the information deleted shall be indicated at the place in the record
where such deletion is made.''.
SEC. 10. REPORT TO THE CONGRESS.
Section 552(e) of title 5, United States Code, is amended to read as
follows:
``(e)(1) On or before February 1 of each year, each agency shall
submit to the Attorney General of the United States a report which shall
cover the preceding fiscal year and which shall include--
``(A) the number of determinations made by the agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
``(B)(i) the number of appeals made by persons under
subsection (a)(6), the result of such appeals, and the reason
for the action upon each appeal that results in a denial of
information; and
``(ii) <<NOTE: Lists.>> a complete list of all statutes that
the agency relies upon to authorize the agency to withhold
information under subsection (b)(3), a description of whether a
court has upheld the decision of the agency to withhold
information under each such statute, and a concise description
of the scope of any information withheld;
``(C) the number of requests for records pending before the
agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the
agency as of that date;
``(D) the number of requests for records received by the
agency and the number of requests which the agency processed;
``(E) the median number of days taken by the agency to
process different types of requests;
``(F) the total amount of fees collected by the agency for
processing requests; and
``(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the
total amount expended by the agency for processing such
requests.
``(2) Each agency shall make each such report available to the
public including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.
``(3) The Attorney General of the United States shall make each
report which has been made available by electronic means available at a
single electronic access point. <<NOTE: Notification.>> The Attorney
General of the United States shall notify the Chairman and ranking
minority member of the Committee on Government Reform and Oversight of
the House of Representatives and the Chairman and ranking minority
member of the Committees on Governmental Affairs and the Judiciary of
the Senate, no later than April 1 of the year in which each such report
is issued, that such reports are available by electronic means.
``(4) <<NOTE: Guidelines.>> The Attorney General of the United
States, in consultation with the Director of the Office of Management
and Budget, shall
[[Page 110 STAT. 3054]]
develop reporting and performance guidelines in connection with reports
required by this subsection by October 1, 1997, and may establish
additional requirements for such reports as the Attorney General
determines may be useful.
``(5) <<NOTE: Lists.>> 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.''.
SEC. 11. REFERENCE MATERIALS AND GUIDES.
Section 552 of title 5, United States Code, is amended by adding
after subsection (f) the following new subsection:
``(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for requesting
records or information from the agency, subject to the exemptions in
subsection (b), including--
``(1) an index of all major information systems of the
agency;
``(2) a description of major information and record locator
systems maintained by the agency; and
``(3) a handbook for obtaining various types and categories
of public information from the agency pursuant to chapter 35 of
title 44, and under this section.''.
SEC. 12. <<NOTE: 5 USC 552 note.>> EFFECTIVE DATE.
(a) In General.--Except as provided in subsection (b), this Act
shall take effect 180 days after the date of the enactment of this Act.
(b) Provisions Effective on Enactment.--Sections 7 and 8 shall take
effect one year after the date of the enactment of this Act.
Approved October 2, 1996.
LEGISLATIVE HISTORY--H.R. 3802 (S. 1090):
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HOUSE REPORTS: No. 104-795 (Comm. on Government Reform and Oversight).
SENATE REPORTS: No. 104-272 accompanying S. 1090 (Comm. on the
Judiciary).
CONGRESSIONAL RECORD, Vol. 142 (1996):
Sept. 17, considered and passed House.
Sept. 18, considered and passed Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 32 (1996):
Oct. 2, Presidential statement.
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