Text: S.337 — 114th Congress (2015-2016)All Information (Except Text)

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Public Law No: 114-185 (06/30/2016)

 
[114th Congress Public Law 185]
[From the U.S. Government Publishing Office]



[[Page 537]]

                      FOIA IMPROVEMENT ACT OF 2016

[[Page 130 STAT. 538]]

Public Law 114-185
114th Congress

                                 An Act


 
To improve the Freedom of Information Act. <<NOTE: June 30, 2016 -  [S. 
                                 337]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: FOIA Improvement 
Act of 2016. 5 USC 101 note.>> 
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``FOIA Improvement Act of 2016''.
SEC. 2. AMENDMENTS TO FOIA.

    Section 552 of title 5, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2)--
                          (i) in the matter preceding subparagraph (A), 
                      by striking ``for public inspection and copying'' 
                      and inserting ``for public inspection in an 
                      electronic format'';
                          (ii) by striking subparagraph (D) and 
                      inserting the following:
            ``(D) copies of all records, regardless of form or format--
                    ``(i) that have been released to any person under 
                paragraph (3); and
                    ``(ii)(I) that because of the nature of their 
                subject matter, the agency determines have become or are 
                likely to become the subject of subsequent requests for 
                substantially the same records; or
                    ``(II) that have been requested 3 or more times; 
                and''; and
                          (iii) in the undesignated matter following 
                      subparagraph (E), by striking ``public inspection 
                      and copying current'' and inserting ``public 
                      inspection in an electronic format current'';
                    (B) in paragraph (4)(A), by striking clause (viii) 
                and inserting the following:
                    ``(viii)(I) Except as provided in subclause (II), an 
                agency shall not assess any search fees (or in the case 
                of a requester described under clause (ii)(II) of this 
                subparagraph, duplication fees) under this subparagraph 
                if the agency has failed to comply with any time limit 
                under paragraph (6).
                    ``(II)(aa) <<NOTE: Time period.>>  If an agency has 
                determined that unusual circumstances apply (as the term 
                is defined in paragraph (6)(B)) and the agency provided 
                a timely written notice to the requester in accordance 
                with paragraph (6)(B), a failure described in subclause 
                (I) is excused for an additional 10 days. If the agency 
                fails to comply with the extended time limit, the agency 
                may not assess any search

[[Page 130 STAT. 539]]

                fees (or in the case of a requester described under 
                clause (ii)(II) of this subparagraph, duplication fees).
                    ``(bb) If an agency has determined that unusual 
                circumstances apply and more than 5,000 pages are 
                necessary to respond to the request, an agency may 
                charge search fees (or in the case of a requester 
                described under clause (ii)(II) of this subparagraph, 
                duplication fees) if the agency has provided a timely 
                written notice to the requester in accordance with 
                paragraph (6)(B) and the agency has discussed with the 
                requester via written mail, electronic mail, or 
                telephone (or made not less than 3 good-faith attempts 
                to do so) how the requester could effectively limit the 
                scope of the request in accordance with paragraph 
                (6)(B)(ii).
                    ``(cc) If a court has determined that exceptional 
                circumstances exist (as that term is defined in 
                paragraph (6)(C)), a failure described in subclause (I) 
                shall be excused for the length of time provided by the 
                court order.'';
                    (C) in paragraph (6)--
                          (i) in subparagraph (A)(i), by striking 
                      ``making such request'' and all that follows 
                      through ``determination; and'' and inserting the 
                      following: ``making such request of--
                          ``(I) such determination and the reasons 
                      therefor;
                          ``(II) the right of such person to seek 
                      assistance from the FOIA Public Liaison of the 
                      agency; and
                          ``(III) <<NOTE: Time period.>>  in the case of 
                      an adverse determination--
                                    ``(aa) the right of such person to 
                                appeal to the head of the agency, within 
                                a period determined by the head of the 
                                agency that is not less than 90 days 
                                after the date of such adverse 
                                determination; and
                                    ``(bb) the right of such person to 
                                seek dispute resolution services from 
                                the FOIA Public Liaison of the agency or 
                                the Office of Government Information 
                                Services; and''; and
                          (ii) in subparagraph (B)(ii), by striking 
                      ``the agency.'' and inserting ``the agency, and 
                      notify the requester of the right of the requester 
                      to seek dispute resolution services from the 
                      Office of Government Information Services.''; and
                    (D) by adding at the end the following:

    ``(8)(A) An agency shall--
            ``(i) withhold information under this section only if--
                    ``(I) the agency reasonably foresees that disclosure 
                would harm an interest protected by an exemption 
                described in subsection (b); or
                    ``(II) disclosure is prohibited by law; and
            ``(ii)(I) consider whether partial disclosure of information 
        is possible whenever the agency determines that a full 
        disclosure of a requested record is not possible; and
            ``(II) take reasonable steps necessary to segregate and 
        release nonexempt information; and

    ``(B) Nothing in this paragraph requires disclosure of information 
that is otherwise prohibited from disclosure by law, or otherwise 
exempted from disclosure under subsection (b)(3).'';
            (2) in subsection (b), by amending paragraph (5) to read as 
        follows:

[[Page 130 STAT. 540]]

            ``(5) inter-agency or intra-agency memorandums or letters 
        that would not be available by law to a party other than an 
        agency in litigation with the agency, provided that the 
        deliberative process privilege shall not apply to records 
        created 25 years or more before the date on which the records 
        were requested;''; and
            (3) in subsection (e)--
                    (A) in paragraph (1)--
                          (i) in the matter preceding subparagraph (A), 
                      by inserting ``and to the Director of the Office 
                      of Government Information Services'' after 
                      ``United States'';
                          (ii) in subparagraph (N), by striking ``and'' 
                      at the end;
                          (iii) in subparagraph (O), by striking the 
                      period at the end and inserting a semicolon; and
                          (iv) by adding at the end the following:
            ``(P) the number of times the agency denied a request for 
        records under subsection (c); and
            ``(Q) the number of records that were made available for 
        public inspection in an electronic format under subsection 
        (a)(2).'';
                    (B) by striking paragraph (3) and inserting the 
                following:

    ``(3) <<NOTE: Reports. Public information. Electronic 
format. Data.>>  Each agency shall make each such report available for 
public inspection in an electronic format. In addition, each agency 
shall make the raw statistical data used in each report available in a 
timely manner for public inspection in an electronic format, which shall 
be made available--
            ``(A) without charge, license, or registration requirement;
            ``(B) in an aggregated, searchable format; and
            ``(C) in a format that may be downloaded in bulk.'';
                    (C) in paragraph (4)--
                          (i) by striking ``Government Reform and 
                      Oversight'' and inserting ``Oversight and 
                      Government Reform'';
                          (ii) by inserting ``Homeland Security and'' 
                      before ``Governmental Affairs''; and
                          (iii) by striking ``April'' and inserting 
                      ``March''; and
                    (D) by striking paragraph (6) and inserting the 
                following:

    ``(6)(A) <<NOTE: Reports. Deadline. Time period. Lists.>>  The 
Attorney General of the United States shall submit to the Committee on 
Oversight and Government Reform of the House of Representatives, the 
Committee on the Judiciary of the Senate, and the President a report on 
or before March 1 of each calendar year, which shall include for the 
prior calendar year--
            ``(i) a listing of the number of cases arising under this 
        section;
            ``(ii) a listing of--
                    ``(I) each subsection, and any exemption, if 
                applicable, involved in each case arising under this 
                section;
                    ``(II) the disposition of each case arising under 
                this section; and
                    ``(III) the cost, fees, and penalties assessed under 
                subparagraphs (E), (F), and (G) of subsection (a)(4); 
                and
            ``(iii) a description of the efforts undertaken by the 
        Department of Justice to encourage agency compliance with this 
        section.

    ``(B) <<NOTE: Public information. Electronic format.>>  The Attorney 
General of the United States shall make--

[[Page 130 STAT. 541]]

            ``(i) each report submitted under subparagraph (A) available 
        for public inspection in an electronic format; and
            ``(ii) the raw statistical data used in each report 
        submitted under subparagraph (A) available for public inspection 
        in an electronic format, which shall be made available--
                    ``(I) without charge, license, or registration 
                requirement;
                    ``(II) in an aggregated, searchable format; and
                    ``(III) in a format that may be downloaded in 
                bulk.'';
            (4) in subsection (g), in the matter preceding paragraph 
        (1), by striking ``publicly available upon request'' and 
        inserting ``available for public inspection in an electronic 
        format'';
            (5) in subsection (h)--
                    (A) in paragraph (1), by adding at the end the 
                following: ``The head of the Office shall be the 
                Director of the Office of Government Information 
                Services.'';
                    (B) in paragraph (2), by striking subparagraph (C) 
                and inserting the following:
            ``(C) identify procedures and methods for improving 
        compliance under this section.'';
                    (C) by striking paragraph (3) and inserting the 
                following:

    ``(3) The Office of Government Information Services shall offer 
mediation services to resolve disputes between persons making requests 
under this section and administrative agencies as a nonexclusive 
alternative to litigation and may issue advisory opinions at the 
discretion of the Office or upon request of any party to a dispute.''; 
and
                    (D) by adding at the end the following:

    ``(4)(A) Not less frequently than annually, the Director of the 
Office of Government Information Services shall submit to the Committee 
on Oversight and Government Reform of the House of Representatives, the 
Committee on the Judiciary of the Senate, and the President--
            ``(i) <<NOTE: Reports.>>  a report on the findings of the 
        information reviewed and identified under paragraph (2);
            ``(ii) <<NOTE: Summary.>>  a summary of the activities of 
        the Office of Government Information Services under paragraph 
        (3), including--
                    ``(I) any advisory opinions issued; and
                    ``(II) the number of times each agency engaged in 
                dispute resolution with the assistance of the Office of 
                Government Information Services or the FOIA Public 
                Liaison; and
            ``(iii) <<NOTE: Recommenda- tions.>>  legislative and 
        regulatory recommendations, if any, to improve the 
        administration of this section.

    ``(B) <<NOTE: Public information. Electronic format.>>  The Director 
of the Office of Government Information Services shall make each report 
submitted under subparagraph (A) available for public inspection in an 
electronic format.

    ``(C) The Director of the Office of Government Information Services 
shall not be required to obtain the prior approval, comment, or review 
of any officer or agency of the United States, including the Department 
of Justice, the Archivist of the United States, or the Office of 
Management and Budget before submitting to Congress, or any committee or 
subcommittee thereof, any reports, recommendations, testimony, or 
comments, if such submissions include a statement indicating that the 
views expressed therein

[[Page 130 STAT. 542]]

are those of the Director and do not necessarily represent the views of 
the President.
    ``(5) The Director of the Office of Government Information Services 
may directly submit additional information to Congress and the President 
as the Director determines to be appropriate.
    ``(6) <<NOTE: Deadline. Meeting. Public information.>>  Not less 
frequently than annually, the Office of Government Information Services 
shall conduct a meeting that is open to the public on the review and 
reports by the Office and shall allow interested persons to appear and 
present oral or written statements at the meeting.'';
            (6) by striking subsections (j) and (k), and inserting the 
        following:

    ``(j)(1) <<NOTE: 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) 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) <<NOTE: Recommenda- tions.>>  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) <<NOTE: Review. Reports.>>  review and report to the 
        Attorney General, through the head of the agency, at such times 
        and in such formats as the Attorney General may direct, on the 
        agency's performance in implementing this section;
            ``(E) facilitate public understanding of the purposes of the 
        statutory exemptions of this section by including concise 
        descriptions of the exemptions in both the agency's handbook 
        issued under subsection (g), and the agency's annual report on 
        this section, and by providing an overview, where appropriate, 
        of certain general categories of agency records to which those 
        exemptions apply;
            ``(F) offer training to agency staff regarding their 
        responsibilities under this section;
            ``(G) serve as the primary agency liaison with the Office of 
        Government Information Services and the Office of Information 
        Policy; and
            ``(H) <<NOTE: Designation.>>  designate 1 or more FOIA 
        Public Liaisons.

    ``(3) <<NOTE: Review. Deadline.>>  The Chief FOIA Officer of each 
agency shall review, not less frequently than annually, all aspects of 
the administration of this section by the agency to ensure compliance 
with the requirements of this section, including--
            ``(A) agency regulations;
            ``(B) disclosure of records required under paragraphs (2) 
        and (8) of subsection (a);
            ``(C) assessment of fees and determination of eligibility 
        for fee waivers;
            ``(D) the timely processing of requests for information 
        under this section;
            ``(E) the use of exemptions under subsection (b); and

[[Page 130 STAT. 543]]

            ``(F) dispute resolution services with the assistance of the 
        Office of Government Information Services or the FOIA Public 
        Liaison.

    ``(k)(1) <<NOTE: Establishment.>>  There is established in the 
executive branch the Chief FOIA Officers Council (referred to in this 
subsection as the `Council').

    ``(2) The Council shall be comprised of the following members:
            ``(A) The Deputy Director for Management of the Office of 
        Management and Budget.
            ``(B) The Director of the Office of Information Policy at 
        the Department of Justice.
            ``(C) The Director of the Office of Government Information 
        Services.
            ``(D) The Chief FOIA Officer of each agency.
            ``(E) Any other officer or employee of the United States as 
        designated by the Co-Chairs.

    ``(3) The Director of the Office of Information Policy at the 
Department of Justice and the Director of the Office of Government 
Information Services shall be the Co-Chairs of the Council.
    ``(4) The Administrator of General Services shall provide 
administrative and other support for the Council.
    ``(5)(A) The duties of the Council shall include the following:
            ``(i) Develop recommendations for increasing compliance and 
        efficiency under this section.
            ``(ii) Disseminate information about agency experiences, 
        ideas, best practices, and innovative approaches related to this 
        section.
            ``(iii) Identify, develop, and coordinate initiatives to 
        increase transparency and compliance with this section.
            ``(iv) Promote the development and use of common performance 
        measures for agency compliance with this section.

    ``(B) <<NOTE: Consultation.>>  In performing the duties described in 
subparagraph (A), the Council shall consult on a regular basis with 
members of the public who make requests under this section.

    ``(6)(A) <<NOTE: Public information.>>  The Council shall meet 
regularly and such meetings shall be open to the public unless the 
Council determines to close the meeting for reasons of national security 
or to discuss information exempt under subsection (b).

    ``(B) Not less frequently than annually, the Council shall hold a 
meeting that shall be open to the public and permit interested persons 
to appear and present oral and written statements to the Council.
    ``(C) <<NOTE: Deadline.>>  Not later than 10 business days before a 
meeting of the Council, notice of such meeting shall be published in the 
Federal Register.

    ``(D) Except as provided in subsection (b), the records, reports, 
transcripts, minutes, appendices, working papers, drafts, studies, 
agenda, or other documents that were made available to or prepared for 
or by the Council shall be made publicly available.
    ``(E) <<NOTE: Records.>>  Detailed minutes of each meeting of the 
Council shall be kept and shall contain a record of the persons present, 
a complete and accurate description of matters discussed and conclusions 
reached, and copies of all reports received, issued, or approved by the 
Council. The minutes shall be redacted as necessary and made publicly 
available.''; and
            (7) by adding at the end the following:

[[Page 130 STAT. 544]]

    ``(m)(1) <<NOTE: Consultation. Portal.>>  The Director of the Office 
of Management and Budget, in consultation with the Attorney General, 
shall ensure the operation of a consolidated online request portal that 
allows a member of the public to submit a request for records under 
subsection (a) to any agency from a single website. The portal may 
include any additional tools the Director of the Office of Management 
and Budget finds will improve the implementation of this section.

    ``(2) This subsection shall not be construed to alter the power of 
any other agency to create or maintain an independent online portal for 
the submission of a request for records under this section. The 
Director <<NOTE: Standards.>>  of the Office of Management and Budget 
shall establish standards for interoperability between the portal 
required under paragraph (1) and other request processing software used 
by agencies subject to this section.''.
SEC. 3. <<NOTE: 5 USC 552 note.>>  REVIEW AND ISSUANCE OF 
                    REGULATIONS.

    (a) <<NOTE: Deadline. Procedures.>>  In General.--Not later than 180 
days after the date of enactment of this Act, the head of each agency 
(as defined in section 551 of title 5, United States Code) 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 section 2.

    (b) Requirements.--The regulations of each agency shall include 
procedures for engaging in dispute resolution through the FOIA Public 
Liaison and the Office of Government Information Services.
SEC. 4. PROACTIVE DISCLOSURE THROUGH RECORDS MANAGEMENT.

    Section 3102 of title 44, United States Code, is amended--
            (1) by redesignating paragraphs (2) and (3) as paragraphs 
        (3) and (4); and
            (2) by inserting after paragraph (1) the following:
            ``(2) procedures for identifying records of general interest 
        or use to the public that are appropriate for public disclosure, 
        and for posting such records in a publicly accessible electronic 
        format;''.
SEC. 5. NO ADDITIONAL FUNDS AUTHORIZED.

    No additional funds are authorized to carry out the requirements of 
this Act or the amendments made by this Act. The requirements of this 
Act and the amendments made by this Act shall be carried out using 
amounts otherwise authorized or appropriated.
SEC. 6. <<NOTE: Effective date. 5 USC 552 note.>>  APPLICABILITY.

    This Act, and the amendments made by this Act, shall take effect on 
the date of enactment of this Act and shall apply to

[[Page 130 STAT. 545]]

any request for records under section 552 of title 5, United States 
Code, made after the date of enactment of this Act.

    Approved June 30, 2016.

LEGISLATIVE HISTORY--S. 337:
---------------------------------------------------------------------------

SENATE REPORTS: No. 114-4 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 162 (2016):
            Mar. 15, considered and passed Senate.
            June 13, considered and passed House.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2016):
            June 30, Presidential remarks.

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