[Senate Report 110-59]
[From the U.S. Government Printing Office]



                                                       Calendar No. 127
110th Congress                                                   Report
                                 SENATE
 1st Session                                                     110-59

======================================================================



 
                      OPEN GOVERNMENT ACT OF 2007

                                _______
                                

                 April 30, 2007.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 849]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 849), to promote accessibility, accountability, and 
openness in Government by strengthening section 552 of title 5, 
United States Code (commonly referred to as the Freedom of 
Information Act), and for other purposes, report favorably 
thereon without amendments, and recommends that the bill, 
without amendment, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose of the Openness Promotes Effectiveness in our National 
     Government Act (``OPEN Government'') of 2007.....................1
 II. History of the Bill and Committee Consideration..................5
III. Section-by-Section Summary of the Bill...........................6
 IV. Cost Estimate....................................................8
  V. Regulatory Impact Evaluation....................................12
 VI. Conclusion......................................................12
VII. Additional Views................................................13
VIII.Changes in Existing Law Made by the Bill as Reported............28


                 I. PURPOSE OF THE OPEN GOVERNMENT ACT

A. Summary

    Chairman Patrick Leahy and Senator John Cornyn introduced 
the Openness Promotes Effectiveness in our National Government 
Act (``OPEN Government'') of 2007 on March 13, 2007. This 
legislation is cosponsored by Senators Specter, Kerry, 
Feingold, Isakson, Cardin and Brown. This bipartisan 
legislation promotes and enhances public disclosure of 
government information pursuant to the Freedom of Information 
Act (``FOIA''). The legislation will strengthen FOIA by, (1) 
helping Americans to obtain timely responses to their FOIA 
requests, (2) improving transparency in the federal 
government's FOIA process, (3) providing an alternative to 
costly litigation for FOIA requesters and the government, and 
(4) promoting accountability for agency decisions to withhold 
information under FOIA.

B. Background and Need for Legislation

            1. Background
    With the enactment of FOIA, 5 U.S.C. Sec. 552, et seq., in 
1966, the Federal Government established a policy of openness 
toward information within its control. The FOIA establishes a 
presumptive right for the public to obtain identifiable, 
existing records of federal agencies. Any member of the public 
may use FOIA to request access to government information, and 
FOIA requesters do not have to show a need or reason for 
seeking information.
    When responding to FOIA requests, the burden of proof for 
withholding requested information rests with the federal 
department or agency seeking to deny the requests. Pursuant to 
FOIA, federal agencies may only withhold documents, or portions 
of documents, sought under FOIA if they fall within one or more 
of nine categories of exemptions established by the statute. 
The exemptions under FOIA allow federal agencies to withhold, 
among other things, information that relates solely to an 
agency's internal personnel rules and practices; internal 
government deliberative communications about a decision before 
an announcement; information about an individual that, if 
disclosed, would cause an unwarranted invasion of personal 
privacy; and law enforcement records, particularly with regard 
to ongoing investigations.
    The enforcement of FOIA has been affected by memoranda 
issued by the Department of Justice. Under the Clinton 
Administration, Attorney General Janet Reno instructed agencies 
to make discretionary disclosures to FOIA requesters, and to 
withhold records only if a foreseeable harm existed from that 
release \1\ In 2001, the Bush Administration reversed this 
policy with a memorandum from Attorney General John Ashcroft 
that encouraged agencies to limit discretionary disclosures of 
information, calling on them to exercise ``full and deliberate 
consideration of the institutional, commercial, and personal 
privacy interests that could be implicated by disclosure of the 
information.'' Similarly, the memo stated that the Department 
of Justice would defend decisions to withhold information from 
requesters unless those decisions ``lack a sound legal basis.'' 
\2\ In addition, on December 14, 2005, President Bush issued 
Executive Order No. 13392 on Improving Agency Disclosure of 
Information under FOIA.
---------------------------------------------------------------------------
    \1\ Janet Reno, Attorney General, Memorandum for Heads of 
Departments and Agencies, Subject: The Freedom of Information Act (Oct. 
4, 1993).
    \2\ John Ashcroft, Attorney General, Memorandum for Heads of All 
Federal Departments and Agencies, Subject: The Freedom of Information 
Act (Oct. 12, 2001).
---------------------------------------------------------------------------
            2. Need For Legislation
    Now in its fourth decade, the Freedom of Information Act 
remains an indispensable tool in shedding light on bad policies 
and government abuses. But, today, FOIA also faces challenges 
like never before. During the past six years, lax FOIA 
enforcement has undermined FOIA and eroded the public's right 
to know. As a result, there is an urgent need to update and 
strengthen FOIA.
    Chief among the problems with FOIA are the major delays 
encountered by FOIA requestors. According to a report by the 
National Security Archive, an independent non-governmental 
research institute, the oldest outstanding FOIA requests date 
back to 1989--before the collapse of the Soviet Union. And, 
while the number of FOIA requests submitted each year continues 
to rise, our federal agencies remain unable--or unwilling--to 
keep up with the demand. Recently, the Government 
Accountability Office found that federal agencies had 43 
percent more FOIA requests pending and outstanding in 2006, 
than they had in 2002.
    Although the Bush Administration has taken some helpful 
first steps to address the growing problem with FOIA delays, 
the President's Executive Order on FOIA, E.O. 13392 has not 
done enough to correct lax FOIA enforcement by federal 
agencies. More than a year after the President's directive to 
government agencies to improve their FOIA services, Americans 
who seek information under FOIA remain less likely to obtain 
it. For example, a recent study by the Coalition of Journalists 
for Open Government found that the percentage of FOIA 
requestors who obtained at least some of the information that 
they requested from the government fell by 31 percent last 
year. These and other shortcomings with the current FOIA policy 
demonstrate that the Congress must play an important role in 
preserving and strengthening FOIA.
            3. The OPEN Government Act
    This bipartisan bill contains commonsense reforms to update 
and strengthen FOIA. The OPEN Government Act addresses concerns 
with lax FOIA enforcement and compliance by helping Americans 
obtain timely responses to their FOIA requests and providing 
government officials with the tools that they need to ensure 
that our government remains open and accessible. Specifically, 
S. 849 addresses the growing backlog of FOIA requests and 
restores meaningful deadlines for agency action, by ensuring 
that the 20-day statutory clock runs immediately upon an 
agency's receipt of a request and by imposing consequences on 
federal agencies for missing the deadline. The bill also 
establishes a FOIA hotline service for all federal agencies, 
either by telephone or on the Internet, to enable requestors to 
track the status of their FOIA requests.
    To address concerns about the growing costs of FOIA 
litigation, the bill also contains an ombudsman provision that 
creates an Office of Government Information Services within the 
Administrative Conference of the United States, which would 
review agency FOIA compliance and offer mediation services for 
FOIA requestors. The bill also clarifies that FOIA applies to 
agency records that are held by outside private contractors, no 
matter where these records are located.
    The bill also addresses a relatively new concern that, 
under current law, federal agencies have an incentive to delay 
compliance with FOIA requests until just before a court 
decision that is favorable to a FOIA requestor. The Supreme 
Court's decision in Buckhannon Board and Care Home, Inc. v. 
West Virginia Dep't of Health and Human Resources, 532 U.S. 598 
(2001), eliminated the ``catalyst theory'' for attorneys'' fees 
recovery under certain federal civil rights laws. When applied 
to FOIA cases, Buckhannon precludes FOIA requesters from ever 
being eligible to recover attorneys fees under circumstances 
where an agency provides the records requested in the 
litigation just prior to a court decision that would have been 
favorable to the FOIA requestor. The bill clarifies that 
Buckhannon does not apply to FOIA cases.\3\
---------------------------------------------------------------------------
    \3\ In the additional views filed by Senator Kyl, he questions 
whether reversing Buckhannon is good policy. As a policy matter, 
Buckhannon raises serious and special concerns within the FOIA context. 
Under Buckhannon, it is now theoretically possible for an obstinate 
government agency to substantially deter many legitimate and 
meritorious FOIA requests. Here's how: A government agency refuses to 
disclose documents even though they are clearly subject to FOIA. The 
FOIA requestor has no choice but to undertake the time and expense of 
hiring an attorney to file suit to compel FOIA disclosure. Some time 
after the suit is filed, the government agency eventually decides to 
disclose the documents--thereby rendering the lawsuit moot. By doing 
so, the agency can cite Buckhannon for the proposition that, because 
there is no court-ordered judgment favoring the requestor, the 
requestor is not entitled to recover attorneys' fees. This 
straightforward application of the Buckhannon ruling effectively taxes 
all potential FOIA requestors. As a result, many attorneys could stop 
taking on FOIA clients--and many FOIA requestors could stop making even 
legitimate and public-minded FOIA requests--rather than pay what one 
might call the ``Buckhannon tax.'' The ``Buckhannon tax'' is not 
theoretical; it is a reality to FOIA requestors and litigators. In 
recent years, oversight hearings in both the House and Senate have 
exposed the reality of government stonewalling in FOIA cases. See 
Hearing before the Senate Committee on the Judiciary on ``Open 
Government: Reinvigorating the Freedom of Information Act'' Wednesday, 
March 14, 2007; House Government Reform Subcommittee on Government 
Management, Finance, and Accountability ``Information Policy in the 
21st Century: A Review of the Freedom of Information Act'' Wednesday, 
May 11, 2005 (discussing cases and examples where the government 
abandoned dubious legal positions with respect to exemptions and 
withholding of documents after unreasonable delay and often on the eve 
of trial).
---------------------------------------------------------------------------
    Finally, the bill enhances the agency reporting 
requirements under FOIA to ensure that federal agencies provide 
the information needed to understand FOIA delays and the bill 
also improves personnel policies for FOIA officials to enhance 
agency FOIA performance.
    The OPEN Government Act is supported by more than 25 
different organizations ranging from journalists to librarians 
to public interest organizations, including, the American 
Association of Law Libraries, American Civil Liberties Union, 
American Library Association, American Society of Newspaper 
Editors, Associated Press Managing Editors, Association of 
Health Care Journalists, Center for Democracy & Technology, 
Coalition of Journalists for Open Government, Committee of 
Concerned Journalists, Education Writers Association, 
Electronic Privacy Information Center, Federation of American 
Scientists/Project on Government Secrecy, Free Congress 
Foundation/Center for Privacy & Technology Policy, Freedom of 
Information Center/University of Missouri, The Freedom of 
Information Foundation of Texas, The Heritage Foundation/Center 
for Media and Public Policy, Information Trust, National 
Conference of Editorial Writers, National Freedom of 
Information Coalition, National Newspaper Association, National 
Security Archive/George Washington University, Newspaper 
Association of America, People for the American Way, Project on 
Government Oversight, Radio-Television News Directors 
Association, The Reporters Committee for Freedom of the Press, 
and the Society of Environmental Journalists.

          II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. Hearings

            1. March 15, 2005
    On March 15, 2005, the Subcommittee on Terrorism, 
Technology and Homeland Security held a hearing entitled, 
``Expanding Openness in Government and Freedom of 
Information.'' This hearing focused on three FOIA bills 
introduced during the 109th Congress, including an earlier 
version of the OPEN Government Act, S. 394,\4\ which Chairman 
Leahy and Senator Cornyn had introduced on February 16, 2005. 
During the hearing, witnesses from the FOIA requestor community 
and media, including Katherine M. ``Missy'' Cary, Assistant 
Attorney General of Texas and Chief, Open Records Division, 
Walter Mears, former Washington bureau chief and executive 
editor, Associated Press, Mark Tapscott, Director, Center for 
Media and Public Policy, The Heritage Foundation, Meredith 
Fuchs, General Counsel, National Security Archive, Thomas 
Susman, a longtime practicing FOIA lawyer, and Lisa Graves, a 
representative of the ACLU, discussed the need to reform FOIA 
and for Congress to enact the FOIA reforms contained in the 
OPEN Government Act.
---------------------------------------------------------------------------
    \4\ Senators Leahy and Cornyn introduced essentially identical FOIA 
reform legislation, S. 394, on February 16, 2005. The Judiciary 
Committee favorable reported that legislation on September 21, 2006. 
However the full Senate did not consider the measure before the 109th 
Congress adjourned.
---------------------------------------------------------------------------
            2. March 14, 2007
    On March 14, 2007, the full Judiciary Committee held a 
hearing on ``Open Government: Reinvigorating the Freedom of 
Information Act,'' which examined the OPEN Government Act of 
2007, S. 849, and other efforts to reinvigorate FOIA. The 
hearing also examined a new report by the National Security 
Archive which found that federal agencies are not complying 
with the Electronic Freedom of Information Act (``E-FOIA'') 
amendments of 1996. During this hearing, witnesses from the 
FOIA requestor community and media representatives, including, 
Meredith Fuchs, Katherine M. Carey, Sabina Haskell, Editor, 
Brattleboro Reformer, and Tom Curley, President and CEO of the 
Associated Press, Representing the Sunshine in Government 
Initiative, testified about the continuing need for Congress to 
enact FOIA reform legislation and endorsed the FOIA reforms 
contained in the OPEN Government Act.

B. Legislative History

    Senators Leahy and Cornyn introduced the OPEN Government 
Act, S. 849, on March 13, 2007. After the Committee hearing on 
this bill, the bill was considered by the Committee on April 
13, 2007. During that consideration, Senator Kyl noted some 
concerns and filed amendments. However, he agreed to proceed to 
report the bill without amendment, subject to additional 
negotiations with the bill's chief sponsors. The Committee 
agreed by unanimous consent to report the bill favorably to the 
Senate.

              III. SECTION-BY-SECTION SUMMARY OF THE BILL

Sec. 1. Short title

    OPEN Government Act of 2007.

Sec. 2. Findings

    The findings reiterate the intent of Congress upon enacting 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, as 
amended, and restate FOIA's presumption in favor of disclosure.

Sec. 3. Protection of fee status for news media

    This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear 
that independent journalists are not barred from obtaining fee 
waivers solely because they lack an institutional affiliation 
with a recognized news media entity. In determining whether to 
grant a fee waiver, an agency shall consider the prior 
publication history of the requestor. If the requestor has no 
prior publication history and no current affiliation with a 
news organization, the agency shall review the requestor's 
plans for disseminating the requested material and whether 
those plans include distributing the material to a reasonably 
broad audience.

Sec. 4. Recovery of attorney fees and litigation Costs

    This section, the so-called Buckhannon fix, amends 5 U.S.C. 
552(a)(4)(E) to clarify that a complainant has substantially 
prevailed in a FOIA lawsuit, and is eligible to recover 
attorney fees, if the complainant has obtained relief through a 
judicial or administrative order or if the pursuit of a claim 
was the catalyst for the voluntary or unilateral change in 
position by the opposing party. The section responds to the 
Supreme Court's ruling in Buckhannon Board and Care Home, Inc. 
v. West Virginia Dep't of Health and Human Resources, 532 U.S. 
598 (2001), which eliminated the ``catalyst theory'' of 
attorney fee recovery under certain Federal civil rights laws. 
Requestors have raised concerns that the holding in Buckhannon 
could be extended to FOIA cases. This section clarifies that 
Buckhannon's holding does not and should not apply to FOIA 
litigation.

Sec. 5. Disciplinary actions for arbitrary and capricious rejections of 
        requests

    The FOIA currently requires that when a court finds that 
agency personnel have acted arbitrarily or capriciously with 
respect to withholding documents, the Office of Special Counsel 
shall determine whether disciplinary action against the 
involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). 
This section of the bill amends FOIA to require the Attorney 
General to notify the Office of Special Counsel of any such 
court finding and to report the same to Congress. It further 
requires the Office of Special Counsel to report annually to 
Congress on any actions taken by the Special Counsel to 
investigate cases of this type.

Sec. 6. Time limits for agencies to act on requests

    The section clarifies that the 20-day time limit on 
responding to a FOIA request commences on the date on which the 
request is first received by the agency. Further, the section 
states that if the agency fails to respond within the 20-day 
limit, the agency may not then assert any FOIA exemption under 
5 U.S.C. 552(b), except under limited circumstances such as 
endangerment to national security or disclosure of personal 
private information protected by the Privacy Act of 1974, 
unless the agency can demonstrate, by clear and convincing 
evidence, good cause for failure to comply with the time 
limits.

Sec. 7. Individualized tracking numbers for requests and status 
        information

    Requires agencies to establish tracking systems by 
assigning a tracking number to each FOIA request; notifying a 
requestor of the tracking number within ten days of receiving a 
request; and establishing a telephone or Internet tracking 
system to allow requestors to easily obtain information on the 
status of their individual requests, including an estimated 
date on which the agency will complete action on the request.

Sec. 8. Specific citations in exemptions

    5 U.S.C. 552(b)(3) states that records specifically 
exempted from disclosure by statute are exempt from FOIA. This 
section of the bill provides that Congress may not create new 
statutory exemptions under this provision of FOIA, unless it 
does so explicitly. Accordingly, for any new statutory 
exemption to have effect, the statute must cite directly to 5 
U.S.C. 552(b)(3), thereby conveying congressional intent to 
create a new (b)(3) exemption.

Sec. 9. Reporting requirements

    This section adds to current reporting requirements by 
mandating disclosure of data on the 10 oldest active requests 
pending at each agency, including the amount of time elapsed 
since each request was originally filed, and requires 
additional breakdowns depending on the length of delay. This 
section further requires agencies to calculate and report on 
the average response times and range of response times of FOIA 
requests. (Current requirements mandate reporting on the median 
response time.) Finally, this section requires reports on the 
number of fee status requests that are granted and denied and 
the average number of days for adjudicating fee status 
determinations by individual agencies.

Sec. 10. Openness of agency records maintained by a private entity

    This section clarifies that agency records kept by private 
contractors licensed by the government to undertake 
recordkeeping functions remain subject to FOIA just as if those 
records were maintained by the relevant government agency.

Sec. 11. Office of Government Information Services

    This section establishes an Office of Government 
Information Services within the Administrative Conference of 
the U.S. Within that office will be appointed a FOIA ombudsman 
to review agency policies and procedures, audit agency 
performance, recommend policy changes, and mediate disputes 
between FOIA requestors and agencies. The establishment of an 
ombudsman will not impact the ability of requestors to litigate 
FOIA claims, but rather will serve to alleviate the need for 
litigation whenever possible.

Sec. 12. Accessibility of Critical Infrastructure Information

    This section requires reports on the implementation of the 
Critical Infrastructure Information Act of 2002, 6 U.S.C. 133. 
Reports shall be issued from the Comptroller General to the 
Congress on the number of private sector, state, and local 
agency submissions of CII data to the Department of Homeland 
Security and the number of requests for access to records. The 
Comptroller General will also be required to report on whether 
the nondisclosure of CII material has led to increased 
protection of critical infrastructure.

Sec. 13. Report on personnel policies related to FOIA

    This section requires the Office of Personnel Management to 
examine how FOIA can be better implemented at the agency level, 
including an assessment of whether FOIA performance should be 
considered as a factor in personnel performance reviews, 
whether a job classification series specific to FOIA and the 
Privacy Act should be considered, and whether FOIA awareness 
training should be provided to federal employees.

             IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    Summary: S. 849 would make several amendments to the 
Freedom of Information Act (FOIA), which generally allows any 
person the right to obtain federal agency records protected 
from disclosure. Specifically, the legislation would:
           Expand FOIA's definition of the news media;
           Require time limits for agencies to act upon 
        FOIA requests;
           Allow greater recovery of attorneys' fees 
        and litigation costs by FOIA requestors if information 
        is withheld by the government;
           Require agencies to provide tracking numbers 
        for FOIA requests and status information;
           Amend the types of information that are 
        exempt from disclosure under FOIA;
           Require federal agencies to prepare 
        additional reports to the Congress concerning FOIA 
        activities;
           Require new reports concerning agencies' 
        FOIA programs from the Government Accountability Office 
        (GAO), the Department of Justice (DOJ), the Office of 
        the Special Counsel (OSC), and the Office of Personnel 
        Management (OPM); and
           Establish an Office of Government 
        Information Services (OGIS) to review FOIA policies and 
        procedures, conduct audits, and offer mediation 
        services.
    CBO estimates that enacting this legislation would increase 
direct spending by $6 million in 2008 and $63 million over the 
2008-2017 period to reimburse citizens making FOIA requests for 
attorney's fees and litigation cost payments. CBO also 
estimates that enacting S. 849 would result in a loss of 
certain fees that are recorded in the budget as revenues, for a 
cost of less than $500,000 annually over the 2008-2017 period.
    In addition, we estimate that implementing the bill would 
increase costs subject to appropriation by $9 million in 2008 
and $57 million over the 2008-2012 period to establish the OGIS 
and implement new agency reporting requirements. S. 849 would 
codify and expand Executive Order 13392 that requires agencies 
to improve their FOIA operations, including improving 
efficiency and customer services.
    S. 849 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. 849 is shown in the following table. The 
costs of this legislation fall within budget function 800 
(general government) and all other budget functions that 
include federal salaries and expenses.
    Basis of estimate: For this estimate, CBO assumes that S. 
849 will be enacted before the start of 2008, that the 
necessary funds will be provided for each year, and that 
spending will follow historical patterns for similar programs.
    Enacted in 1966, FOIA was designed to enable any person--
individual or corporate, regardless of citizenship status--to 
request, without explanation or justification, access to 
existing, identifiable, and unpublished executive branch 
records on any topic. The Office of Management and Budget 
issues guidelines to agencies on fees to charge for providing 
copies of information requested, while DOJ oversees agency 
compliance with FOIA. Based on information from GAO for fiscal 
year 2005, federal agencies (excluding the Social Security 
Administration) received more than 2.5 million FOIA requests. 
In addition, DOJ reports that in fiscal year 2005, agencies 
devoted about 5,000 employee-years to processing and litigating 
FOIA requests at a cost of over $300 million.

----------------------------------------------------------------------------------------------------------------
                                                     By fiscal year, in millions of dollars--
                                 -------------------------------------------------------------------------------
                                   2008    2009    2010    2011    2012    2013    2014    2015    2016    2017
----------------------------------------------------------------------------------------------------------------
                                           CHANGES IN DIRECT SPENDING

Attorneys' Fees and Litigation
 Costs:
    Estimated Budget Authority..       6       6       6       6       7       7       7       7       7       7
    Estimated Outlays...........       6       6       6       6       6       6       6       7       7       7

                                               CHANGES IN REVENUES

FOIA Fees:
    Estimated Revenues..........       *       *       *       *       *       *       *       *       *       *

                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Office of Government Information
 Services:
    Estimated Authorization            3       6       6       7       7       7       7       8       8       8
     Level......................
    Estimated Outlays...........       3       5       6       6       7       7       7       8       8       8
FOIA Reporting Requirements:
    Estimated Authorization            4       5       5       5       6       6       6       6       6       7
     Level......................
    Estimated Outlays...........       3       5       5       5       6       6       6       6       6       7
Other Reports:
    Estimated Authorization            3       2       1       *       *       *       *       *       *       *
     Level......................
    Estimated Outlays...........       3       2       1       *       *       *       *       *       *       *
Total Changes:
    Estimated Authorization           10      13      12      12      13      13      13      14      14      15
     Level......................
    Estimated Outlays...........       9      12      12      11      13      13      13      14      14     15
----------------------------------------------------------------------------------------------------------------
NOTE: * = revenue loss or spending increase of less than $500,000.

Direct spending and revenues

    Attorneys' Fees and Litigation Costs. Under section 4, FOIA 
requestors would be entitled to recover any attorneys' fees and 
litigation costs incurred to receive requested information 
through a judicial or administrative order or because of a 
voluntary change in an agency's FOIA policies. Those payments 
would be made from the Judgment Fund (a permanent, indefinite 
appropriation for claims and judgments against the United 
States). The cost of implementing this section would depend on 
the number of successful challenges to FOIA requests that are 
either fully or partially denied and any changes in FOIA 
disclosure policies.
    Under current law, when a FOIA request is denied or 
partially granted, the requestor can administratively appeal 
the decision. If the administrative appeal is also denied, a 
requestor has the right to appeal the decision in federal 
court. Based on a review of FOIA decisions by federal courts 
over the 2001-2005 period, CBO estimates that about 350 FOIA 
cases are presented annually, and about 6 percent of 
complainants subsequently challenge agency decisions and are 
reimbursed for attorneys' fees and litigation costs. Those 
payments by the Judgment Fund cost about $3 million a year. In 
addition, based on information from 15 major agencies over the 
2001-2005 period, including the Departments of Veterans 
Affairs, Treasury, Defense, Labor, State, and Justice, CBO 
estimates that requestors successfully appeal about 1,000 FOIA 
cases each year.
    CBO estimates that the average cost of litigating a FOIA 
lawsuit or administrative appeal is about $6,000 per case. 
Assuming that agencies act on about 1,000 FOIA cases each year, 
CBO estimates that enacting this legislation would increase 
direct spending from the Judgment Fund by $30 million over the 
2008-2012 period and $63 million over the 2008-2017 period.
    FOIA Fees. FOIA requests from researchers associated with 
academic institutions and the news media are charged fees for 
the duplication of records that are larger than 100 pages. All 
other requestors are charged fees for research time and 
duplication costs after the first two hours of research and 100 
pages of copying. Those fees are recorded on the budget as 
revenues and deposited into the general fund of the Treasury. 
Section 3 would expand the definition of news media researchers 
to FOIA requestors who have no affiliation with a media outlet 
but have a publishing history. Based on a review of annual FOIA 
reports from 15 major agencies over the fiscal year 2003-2005 
period, CBO estimates that agencies collect about $4 million in 
FOIA fees annually. CBO expects that expanding the definition 
of the news media would reduce the amount of fees currently 
collected for retrieval of information. Based on information 
from some of the 15 major agencies, CBO estimates that the 
reduction in FOIA fees collected would be less than $500,000 
annually.

Spending subject to appropriation

    Office of Government Information Services. Section 11 would 
establish an Office of Government Information Services within 
the Administrative Conference of the United States. The office 
would review FOIA policies and practices, make recommendations, 
offer mediation services, and conduct audits of agency's FOIA 
programs.
    Based on information from DOJ and the cost of similar 
offices, CBO estimates that implementing this provision would 
cost $7 million annually for additional staff to conduct audits 
of FOIA programs. CBO expects that the new agency would take 
about two years to reach that level of effort. We estimate that 
operations of the new office would cost $27 million over the 
2008-2012 period, assuming appropriation of the necessary 
amounts.
    FOIA Reporting Requirements. Section 9 would add a number 
of additional reporting requirements to the annual FOIA reports 
submitted by all federal departments and agencies. This would 
include FOIA information on the time required to process 
requests, median and average processing time, expedited and 
appeal processing time, and the oldest pending requests. In 
addition, S. 849 would require each agency to provide the raw 
data used to compile their annual FOIA report. Based on the 
costs of similar reports, a review of annual reports by 15 
major agencies over the 2001-2005 period, and additional 
information from some of those agencies, CBO estimates that 
those reporting requirements would cost about $5 million 
annually and $24 million over the 2008-2012 period, assuming 
the appropriation of the necessary amounts.
    Other Reports. S. 849 would require new reports by a number 
of government agencies. GAO would be required to report on 
critical infrastructure information that is collected by the 
government from the private sector but is exempt from FOIA 
disclosure. DOJ and OSC would be required to report on legal 
actions related to the rejection of FOIA requests, and OPM 
would be required to produce a report on FOIA personnel 
policies. Based on the costs of similar reports, CBO estimates 
that implementing those provisions would cost $6 million over 
the 2008-2012 period, assuming the availability of appropriated 
funds.
    Other Provisions. Additional provisions would require 
providing tracking numbers for FOIA requests and would expand 
the provisions of Executive Order 13392 issued on December 14, 
2005. That order calls upon all federal agencies to improve 
their FOIA operations, including customer service and 
assistance. Specifically, the order requires agencies to 
develop FOIA improvement plans, designate a Chief FOIA officer, 
and establish FOIA requestor centers. Based on information from 
DOJ and a review of annual reports by 15 major agencies over 
the 2001-2005 period, CBO estimates that those provisions would 
not significantly increase agencies' costs to implement FOIA.
    Intergovernmental and Private-Sector Impact: S. 849 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO estimate: On March 12, 2007, CBO provided a 
cost estimate for H.R. 1309, the Freedom of Information Act 
Amendments of 2007, as ordered reported by the House Committee 
on Oversight and Government Reform on March 8, 2007. Both bills 
would amend the Freedom of Information Act but have different 
provisions, including provisions related to the structure of 
the OGIS and the payment of FOIA fees. CBO cost estimates for 
the two bills reflect those differences.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove; 
and Impact on the Private-Sector: Amy Petz.
    Estimate approved by: Peter H. Fontaine, 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. 849.

                             VI. CONCLUSION

    Passage and enactment of the OPEN Government Act of 2007, 
S. 849, is long overdue. This bipartisan legislation reaffirms 
the fundamental premise of FOIA--that government information 
belongs to all Americans. Open government is not a Democratic 
issue, or a Republican issue. It is an American issue.

                         VII. ADDITIONAL VIEWS

                              ----------                              


                   A. ADDITIONAL VIEWS OF SENATOR KYL

    Although the goals of the OPEN Government Act are laudable, 
the bill reported by the committee has a number of flaws that 
must be addressed. Chief among these is the bill's elimination 
of several FOIA exemptions--including for information that is 
privileged or law-enforcement sensitive--in cases where a 
Federal agency misses the statutory deadline for responding to 
a FOIA request. The Justice Department's Views Letter for this 
bill, using uncharacteristically strong language, describes 
this provision as a ``draconian remedy with enormous 
consequences.''
    Subsection (b) of FOIA exempts several categories of 
information from disclosure under FOIA. The OPEN Government 
Act, however, provides that if an agency does not comply with 
FOIA's 20-day decision deadline, then no FOIA exemptions shall 
apply unless disclosure of the information would harm national 
security, disclose personal private or proprietary information, 
or is otherwise precluded by law. Among the current, codified 
FOIA exemptions that would be defaulted under the OPEN 
Government Act if the 20-day deadline were missed are:

           information that is privileged in 
        litigation,
           law-enforcement information whose disclosure 
        could reasonably be expected to interfere with law-
        enforcement proceedings,
           information whose disclosure would deprive a 
        person of a fair trial,
           information whose disclosure could 
        reasonably be expected to disclose the identity of a 
        confidential source,
           information about the techniques and 
        procedures for law enforcement investigations and 
        prosecutions, and
           information whose disclosure could 
        reasonably be expected to endanger the life or physical 
        safety of an individual.

    Disclosing all of these types of information simply because 
a 20-day deadline was not met is a harsh and disproportionate 
remedy. Many of these disclosures would harm individuals who 
have no control whatsoever over the government's compliance 
with FOIA requests--individuals who would not even know that a 
FOIA request had been made. Should we really force disclosure 
of information ``whose disclosure could reasonably be expected 
to endanger the life or physical safety of an individual'' 
simply because a Federal employee did not meet a FOIA request 
deadline?
    The Justice Department's Views Letter addresses this issue 
as well. The letter states:

          Of greatest concern to the Department is the 
        automatic waiver of the existing exemption for law 
        enforcement information. The wholesale release of law 
        enforcement-related documents would have devastating 
        consequences for ongoing criminal investigations. 
        Sensitive law enforcement techniques could be exposed, 
        and the lives of witnesses, confidential informants, 
        and law enforcement officials would, without a doubt, 
        be placed in imminent danger. Indeed, the very system 
        of confidentiality inherent in the federal government's 
        law enforcement activities would be shattered by the 
        lack of predictability that this provision would yield.

    The Justice Department's letter also raises a number of 
other concerns about the OPEN Government Act that ought to be 
addressed. For example, the bill legislatively overrules the 
U.S. Supreme Court's decision in Buckhannon Board and Care Home 
v. West Virginia Dept. of Health and Human Services, 532 U.S. 
598 (2001), as that decision applies to FOIA. Buckhannon 
clarifies that a party suing the government is not entitled to 
attorney's fees under the standard fee-shifting statutes if the 
government voluntarily changed its position and gave the 
plaintiff what he wanted. The bill would reverse this rule and 
allow such a plaintiff to recover attorney's fees.
    If the government is forced to pay attorney's fees even if 
it settles a lawsuit without court action--if it is forced to 
pay even if it voluntarily or unilaterally agrees to turn over 
documents, enters into an agreement with the parties, or 
resolves the matter in administrative proceedings without going 
to court--then we may well find that the government is less 
inclined to settle FOIA lawsuits. By punishing the government 
for changing its position and handing over the requested 
information, this provision of the bill may undercut the 
broader purposes of the OPEN Government Act.
    Moreover, it is entirely reasonable and to be expected 
that, over the course of litigation or administrative 
proceedings, new information is uncovered that causes the 
government to reevaluate and reverse its initial denial of a 
FOIA request. The fee-shifting statute should not deter the 
government from acting on that new information and reversing 
its earlier FOIA denial. Also, sometimes an initial denial may 
be reversed for reasons beyond the control of the agency to 
which the request was made--for example, another part of the 
government might declassify the requested documents. In these 
types of situations, the government should not be punished for 
having initially denied the request.
    At the very least, a FOIA plaintiff should not be allowed 
to recover the costs of maintaining his litigation if the 
litigation itself was meritless. Even a meritless lawsuit may 
prove enough of a burden to persuade the government to change 
its position--or such a lawsuit may generate public pressure 
that results in such a change in position. That is all very 
well. But if the lawsuit itself was not legally sound, the 
plaintiff should not be compensated for bringing the 
litigation.
    The Justice Department's Views Letter raises a number of 
other important points. Rather than reiterate those points 
here, I simply include the letter as an attachment to this 
statement and urge anyone who is interested in this bill to 
read the letter.

                                                           Jon Kyl.
                              ----------                              

                                                    March 26, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department on S. 849, the ``Openness Promotes Effectiveness in 
our National Government Act of 2007'' or the ``OPEN Government 
Act of 2007,'' which amends the Freedom of Information Act 
(FOIA), 5 U.S.C. Sec. 552. The FOIA is a vital and continuously 
developing government disclosure mechanism that has been 
refined over time to accommodate both technological 
advancements and society's maturing interests in a transparent 
and fully responsible government. The Department is firmly 
committed to full compliance with the FOIA as a means of 
maintaining an open and accountable system of government, while 
also recognizing the importance of safeguarding national 
security, enhancing law enforcement effectiveness, respecting 
business confidentiality, and preserving personal privacy.
    As a sign of the Department's continued commitment to the 
FOIA, it serves as the lead agency in the implementation of 
Executive Order 13,392, ``Improving Agency Disclosure of 
Information,'' issued on December 14, 2005. This Order has 
immediately brought high visibility and focused attention on 
the FOIA by mandating the designation of a Chief FOIA Officer, 
FOIA Requester Service Centers, and FOIA Public Liaisons, in 
each agency. The Order has also focused on the improvement of 
FOIA processing by ensuring that agency FOIA operations are 
both ``citizen-centered'' and ``results-oriented.'' The 
benefits of instituting these policies are already felt 
Government-wide, as agencies have developed comprehensive FOIA 
improvement plans and have issued their first reports mandated 
by this Order.
    The Department opposes several sections of S. 849, as 
currently drafted, including, most importantly, section 6, 
which prevents the Government from relying on a number of FOIA 
exemptions, including exemptions for highly sensitive law 
enforcement information and privileged material, if the 
Government does not meet the statutory deadline for responding 
to requests. The Department also has concerns with section 3, 
which expands the definition of ``representative of the news 
media'' for purposes of assessing FOIA fees; and section 4, 
which reinstates the so-called ``catalyst theory'' for 
reimbursement of attorneys fees in FOIA litigation. More 
generally, the Department is very concerned about the 
substantial administrative and financial burdens that this 
legislation would impose upon the Executive branch, without 
authorizing the resources necessary to implement its statutory 
scheme.

Section 6--Time limits for agencies to act on requests

    Of grave concern to the Department is section 6(b) of the 
legislation, which prevents an agency from relying on a number 
of statutorily provided exemptions from FOIA unless it meets 
the twenty-day accelerated deadline established in section 6, 
or unless the agency can make a ``clear and convincing'' 
showing to a court that there was ``good cause'' for its 
failure to meet the applicable deadline. Although this 
provision preserves exemptions for national security 
information, Privacy Act-protected information, ``proprietary 
information,'' and information otherwise protected by law, 
section 6(b) eviscerates several critical exemptions in FOIA 
including exemptions for inter- or intra-agency memoranda and 
highly sensitive categories of law enforcement records, unless 
an agency persuades a court that it has good cause for failing 
to meet the deadline.
    Section 6 of S. 849 is a misguided attempt to remedy one 
perceived problem--compliance with the statutory response 
deadlines--with a measure that would eviscerate a central 
principle of FOIA--protection of sensitive information. While 
the basic purpose of FOIA is to ensure an informed citizenry, 
it balances society's strong interest in open government with 
other compelling public interests, such as protecting national 
security, enhancing the effectiveness of law enforcement, 
protecting sensitive business information, protecting internal 
agency deliberations and common law privileges and, not least, 
preserving personal privacy.
    This provision, which would establish that failure to meet 
an applicable deadline would lead to the automatic release of 
all information with only a few narrow exceptions, is a 
draconian remedy with enormous consequences. For example, the 
automatic waiver of privileges, including privileges for 
attorney-client and attorney work-product information that are 
incorporated in FOIA through Exemption 5 and well-established 
by common law for centuries, is unprecedented. This would 
frustrate the policy behind these privileges and, among other 
things, would doubtless create a chilling effect on policy 
discussions, create public confusion that could result from 
disclosure of reasons and rationales that were not the grounds 
for agency action, and cause the premature disclosure of 
proposed policies before they have been sufficiently 
considered. It would also greatly interfere with government 
attorneys' work in preparing for litigation, exposing their 
legal strategies, approaches, and views to their opposing 
counsel, thereby greatly undermining their ability to represent 
their client. It would also chill the exchange of information 
to government attorneys from their clients, reducing their 
ability to properly represent them.
    Of greatest concern to the Department is the automatic 
waiver of the existing exemption for law enforcement 
information. The wholesale release of law enforcement-related 
documents would have devastating consequences for ongoing 
criminal investigations. Sensitive law enforcement techniques 
could be exposed, and the lives of witnesses, confidential 
informants, and law enforcement officials would, without a 
doubt, be placed in imminent danger. Indeed, the very system of 
confidentiality inherent in the federal government's law 
enforcement activities would be shattered by the lack of 
predictability that this provision would yield. This is also 
troubling since there is greater convergence between law 
enforcement activities and homeland security activities.
    Further, under section 6(b), any person or organization 
with criminal intent (including terrorist organizations) could 
possibly gain access to internal military force protection 
information (i.e., information concerning the protection of the 
Pentagon reservation, munitions sites, and any other military 
installation) if an agency possessing such information were 
forced to automatically waive any applicable exemption. 
Disclosures of such highly sensitive information could have 
dire consequences for our military.
    Among the limited exceptions that section 6 would allow the 
government to invoke after the twenty-day deadline, the 
exception stated for ``personal private information'' would be 
inadequate in any event. Because this exception is limited to 
``personal private information protected by section 552a'' it 
would apply only to information protected by the Privacy Act. 
This lack of protection for information not protected by the 
Privacy Act could result in the public disclosure of personal 
information, such as third parties' social security numbers. 
Such a disclosure could have severe consequences for 
unsuspecting third parties, especially if the social security 
numbers were used for criminal purposes, such as identity 
theft. Under current law, personnel, medical, and similar files 
are exempt from FOIA if disclosure ``would constitute a clearly 
unwarranted invasion of personal privacy.'' 5 U.S.C. 
Sec. 552(b)(6); see also id. Sec. 552(b)(7)(C). This category 
of information is far broader than the information covered by 
the Privacy Act. The existing exemption has been interpreted by 
the courts to mean that a government decision-maker must 
balance the severity of the threat to an individual's privacy 
against the public interest in disclosure. See Dep't of the Air 
Force v. Rose, 425 U.S. 352 (1976). By narrowing this important 
exemption to protect only information covered by the Privacy 
Act, S. 849 repudiates the policy of balancing any individual's 
privacy interest against the public interests in disclosure. 
Thus, S. 849 will significantly limit personal privacy 
safeguards.
    Section 6(b) does contain a purported safety valve that 
would permit a court to waive the harsh application of the 
section if an agency ``demonstrates by clear and convincing 
evidence that there was good cause for the failure to comply 
with the applicable time limit provisions.'' However, by 
focusing on the agency's reason for failing to meet the twenty 
day deadline, rather than upon the potential harm that 
reasonably could be expected to be caused by the radical 
disclosures that would occur, this provision ignores the 
substantial public interest in avoiding the disclosure of 
highly sensitive records.
    Although section 6(b) would not eliminate the availability 
of the President's constitutional privilege to protect the 
interests covered by the statutory exemptions, section 6(b) 
would nonetheless raise substantial constitutional concerns 
that could make it unconstitutional as applied in particular 
circumstances. The uncertainty created by a system that depends 
on a court finding ``good cause'' for delay or upon the 
invocation of constitutional privilege would likely chill the 
candor of the constitutionally-protected deliberations of the 
Executive branch or otherwise harm the interests protected by 
the statutory exemptions in a way that could compromise the 
Executive's discharge of its constitutional functions. Rather 
than fostering responsible disclosure, this provision actually 
could well force agencies to deny requests by the twenty-day 
deadline in order to avoid waiving any exemptions, and thus 
needlessly increase appeals and litigation. In addition, this 
provision fails to take into account the complexity of many 
requests, the need to consult with other agencies, or the need 
to search for records in multiple locations, including at 
Federal records centers, all of which necessarily and 
reasonably add to the time it takes to respond to a request.\1\
---------------------------------------------------------------------------
    \1\ If enacted, the penalties imposed by section 6(b) would have an 
equally adverse effect on NARA's ability to protect under the FOIA 
records that are also subject to the Presidential Record Act (PRA). 
When processing requests for Presidential records, the PRA requires 
NARA to inform the former President of its intent to publicly disclose 
the requested records. In conjunction with this statutory requirement, 
Executive Order 13,233, ``Further Implementation of the Presidential 
Records Act,'' affords the former President (and the incumbent 
President) ninety days to conduct a records review. As a result of the 
drastic penalties contained in section 6(b) of S. 849, NARA would, 
after only twenty-days, forfeit its ability to protect certain records 
under the FOIA, even if such records contain sensitive private 
information not protected by the Privacy Act, including FBI background 
files and other law enforcement or investigatory information. 
Additionally, it would be an added burden for NARA to attempt to compel 
a court to waive this provision in an effort to protect information for 
which it already has a sound legal basis to withhold.
---------------------------------------------------------------------------
    The Department is also opposed to section 6(a) of S. 849, 
which would amend 5 U.S.C. Sec. 552(a)(6)(A)(i)by changing the 
twenty-day time limit so that it commences on the date that the 
request ``is first received by the agency.'' This represents a 
very significant change from current practice in which the 
twenty-day clock begins once the appropriate element of an 
agency has received the request in accordance with the agency's 
FOIA regulations. Beginning the twenty-day time limit as soon 
as a request ``is first received by the agency'' does not allow 
for the practical necessity of forwarding a request to an 
appropriate field office, division, or component, which could 
take several or more days.\2\ This provision is thus at odds 
with the longstanding practice at all Federal agencies, under 
regulations that have been duly promulgated and followed in 
accordance with the explicit direction of the Act itself. See 5 
U.S.C. Sec. 552(a)(3)(A). For example, Department of Justice 
FOIA regulations provide that ``[a] request will be considered 
[as] received as of the date it is received by the proper 
component's FOIA office.'' 28 C.F.R. Sec. 16.3 (2006). 
Additionally, given that agencies make addresses readily 
available on their Web sites and in their FOIA Reference 
Guides, it is not imposing any undue burden on a requester to 
direct his/her request to the appropriate office. Further, when 
a requester neglects to address his/her request properly, 
agencies routinely route the request to the proper office, so 
the requester is not penalized in any way for a failure to 
properly address a request. Conversely, this proposed change in 
the way the time periods are calculated penalizes the agency 
for something completely out of its control. Requesters will 
have no incentive to properly address their requests. More 
significantly, they will actually have an incentive to use the 
most obscure address possible in the hope that the time 
expended in properly routing it will render the agency unable 
to meet the response deadline.
---------------------------------------------------------------------------
    \2\ Importantly, additional mail processing time is required in the 
post-9/11 world because the Department, as well as other agencies, now 
must x-ray or irradiate incoming mail, including FOIA requests. Five 
days might pass while the request is being irradiated and before any 
program office of an agency receives the x-rayed mail.
---------------------------------------------------------------------------
    The Department is opposed to the second clause of section 
6(a) which states that the twenty-day time period to respond to 
a request ``shall not be tolled without the consent of the 
party filing the request.'' In the course of processing a FOIA 
request there are numerous occasions when an agency must stop 
its processing in order to get information from the requester, 
and the agency should not be penalized for the time it takes 
the requester to provide needed information to the agency. For 
example, after a request is first received by an agency the 
personnel responsible for processing it might determine that 
the request fails to reasonably describe the records that are 
being sought. In such situations agency personnel routinely go 
back to the requester for clarification of the request. 
Similarly, during the course of processing a request, the 
agency may determine that the search for responsive records 
will take longer than anticipated and so will cost more than 
the requester has agreed to pay. Again, in such situations the 
agency routinely goes back to the requester to see if the 
requester would like to narrow its request to reduce the fees 
owed, or to see if the requester will agree to pay the fees 
that are anticipated. In these situations, when the processing 
of the request is necessarily ``on hold'' while the agency 
awaits a decision by the requester, the time period for 
responding has traditionally been tolled. The language in 
section 6(a) would not allow that to happen without the consent 
of the requester. That means that absent consent--which is not 
likely to be given--the agency will be penalized for the 
failure of requesters to provide necessary information in order 
for their requests to be processed. Rather than having an 
incentive to respond quickly to the agency in order to get 
their request back on track, this provision will actually give 
requesters an incentive to delay responding to the agency's 
request for clarification, or for a commitment to pay fees, 
etc. because by doing so, they know that the twenty-day time 
period is ticking.
    We believe that the draconian penalties in section 6 not 
only are unwise, but are also unnecessary since Executive Order 
13,392 has improved FOIA operations by requiring agencies to 
review their administration of the FOIA and their compliance 
with the statutory deadlines. The Executive Order also requires 
agencies to implement improvement plans specifically focused on 
eliminating or reducing any backlog of FOIA requests. The 
Department's preliminary review of reports in this regard 
indicates that agencies overall are devoting increased 
resources to processing FOIA requests more efficiently and 
quickly, and indeed some agencies have already realized 
meaningful backlog reduction.

Section 3--Protection of fee status for news media

    Section 3 of the legislation, titled ``Protection of Fee 
Status for News Media,'' expands the definition of 
``representative of the news media,'' and thereby exempts a 
larger class of requesters from the obligation to pay what can 
sometimes be quite significant fees assessed for searching for 
responsive documents. The current law represents a carefully-
struck balance that establishes differing fee levels for 
different categories of requesters. For example, an agency is 
permitted to charge a requester for document search time, 
duplication, and review costs if the request is made for a 
``commercial use.'' 5 U.S.C. Sec. 552(a)(4)(A)(ii)(I). An 
agency may charge a requester only for document duplication if 
the request is made by an educational or non-commercial 
scientific institution, whose purpose is scholarly or 
scientific, or by a representative of the ``news media.'' 5 
U.S.C. Sec. 552(a)(4)(A)(ii)(II). Section 3 of the legislation 
amends subclause (II) so that an agency ``may not deny [to a 
representative of the news media] status solely on the basis of 
the absence of institutional associations of the requester, but 
shall consider the prior publication history of the requester'' 
including Internet publications. Most significantly, it would 
further require an agency, in the absence of such prior 
publication history, to ``consider the requestor's stated 
intent at the time the request is made to distribute 
information to a reasonably broad audience.'' Because it can be 
assumed that virtually all requesters claiming to be 
representatives of the news media will readily state that it is 
their ``intent'' to distribute the records to a broad audience, 
this expansion of the definition of ``representative of the 
news media'' would render the concept of ``representative of 
the news media'' virtually meaningless.
    Such an expansion of the definition of ``representative of 
the news media'' would have severe fiscal and other practical 
consequences for the Executive branch, and is ill-advised 
without empirical evidence that the current definition of 
``representative of the news media'' is insufficient to carry 
out FOIA's purposes. The increased taxpayer burden that would 
result from the changed definition should be undertaken only 
after careful review by Congress in light of limitations being 
imposed across the board on domestic discretionary spending. 
Indeed, the limitation in section 3 on the Government's ability 
to collect fees for FOIA processing seems inconsistent with the 
stated desire of many Members of Congress to improve FOIA 
timeliness. With no requirement that requesters pay search 
fees, they have no incentive to tailor their requests and so 
they are likely to make overly broad requests. This, in turn, 
will stretch agency resources and will increase the time it 
takes to process all requests. The Executive branch cannot 
process FOIA requests expeditiously without adequate manpower 
and resources, which is dependent on adequate funds, including 
FOIA processing fees deposited in the Treasury Department's 
general fund.

Section 4--Attorneys' fees

    Section 4 of the legislation would reinstate the so-called 
``catalyst theory'' for the reimbursement of FOIA litigation 
fees. Current law permits a court to assess reasonable 
attorneys' fees and litigation costs incurred when the 
complainant in a lawsuit challenging an agency's response (or 
lack thereof) to a FOIA request has ``substantially 
prevailed.'' Section 4 of S. 849 would amend 5 U.S.C. 
Sec. 552(a)(4)(E) by altering and expanding the definition of 
``substantially prevailed'' to include situations in which a 
``complainant has obtained relief through either (I) a judicial 
order, an administrative action, or an enforceable written 
agreement or consent decree; or (II) a voluntary or unilateral 
change in position by the opposing party, where the 
complainant's claim or defense was not frivolous.'' We 
understand this provision's intent to be the overruling of the 
Supreme Court's decision in Buckhannon Board & Care Home, Inc. 
v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598 
(2001), and of a number of recent court of appeals decisions 
that have applied Buckhannon to reject the catalyst theory as a 
basis for FOIA attorneys' fee awards. See OCAW v. Dep't of 
Energy, 288 F.3d 452 (D.C. Cir. 2002); Union of Needletrades v. 
INS, 336 F.3d 200 (2d Cir. 2003).
    The Department does not support the reinstatement of the 
catalyst theory, for many of the same reasons enunciated in 
Chief Justice Rehnquist's Buckhannon opinion. Proponents of the 
catalyst theory have argued that it is needed for two reasons. 
First, they argue that it would encourage plaintiffs with 
meritorious but expensive cases to bring suit. Second, they 
argue that it would prevent defendants from unilaterally 
mooting an action before judgment to avoid an award of 
attorneys' fees. As Chief Justice Rehnquist noted in his 
opinion in Buckhannon, however, ``these assertions . . . are 
entirely speculative and unsupported by any empirical 
evidence.'' Buckhannon, 532 U.S. at 608.
    More importantly, the Department is especially concerned 
that the catalyst theory, if reinstated, will serve as a 
disincentive to a Government agency's decision to voluntarily 
change decisions and procedures with respect to FOIA requests, 
because doing so could make the agency liable for a 
complainant's legal fees. Such a result would be inconsistent 
with FOIA's underlying purpose of promoting, rather than 
inhibiting, disclosure.
    Furthermore, it is unclear what is meant by the inclusion 
of an ``administrative action'' as a possible means by which a 
requester can obtain ``relief'' that would justify attorneys'' 
fees. If it is deemed to apply to a requester who receives 
documents through the administrative FOIA appeals process, that 
would be a major departure from long-standing administrative 
law practice and would severely undercut the traditional 
function of the administrative appeal process, which is 
designed to provide the requester with an avenue of further 
review at the agency, as well as provide the agency with a 
second opportunity to evaluate its response, thereby reducing 
the likelihood of a lawsuit. If this provision covers relief 
provided at the administrative appeal stage, this could 
increase the FOIA program costs dramatically, and would serve 
as a disincentive to release records at the administrative 
appeal stage.

Section 7--Tracking numbers

    Section 7 would require agencies to establish systems to 
assign an individualized tracking number to each request and to 
notify requesters of this number within ten days. In addition, 
the legislation mandates the establishment of a telephone line 
or Internet service to provide information about the status of 
the request, including receipt date and estimated completion 
date. The need for this provision has been mitigated by the 
issuance of the FOIA Executive Order which required that 
agencies establish FOIA Requester Service Centers to provide 
requesters with information concerning the status of their FOIA 
requests. In addition, supervisory personnel have been 
appointed as FOIA Public Liaisons to ensure that FOIA 
requesters receive appropriate assistance from the service 
centers. Moreover, many agencies which receive higher volumes 
of requests already notify requesters of assigned tracking 
numbers when they first acknowledge receipt of requests.

Section 8--Specific citations in exemptions

    Section 8 of S. 849 would amend FOIA's Exemption 3, which 
protects information otherwise statutorily exempted from 
disclosure, by requiring that newly enacted statutes that 
purport to limit public disclosure of information specifically 
cite to this section of S. 849. We believe this amendment is 
unnecessary. The current version of Exemption 3 was enacted in 
1976 (see Pub. L. No. 94-409) to limit Exemption 3's 
availability to specific categories of statutes: those that 
require agencies to withhold documents with no agency 
discretion, or, alternatively, that establish particular 
criteria for withholding or refer to particular types of 
matters to be withheld. The 1976 amendment to Exemption 3 has 
worked well now for over thirty years. Courts have recognized 
that the congressional intent to maintain the confidentiality 
of particular information is the central consideration in 
determining whether a statute falls within Exemption 3. In 
focusing on congressional intent, courts have avoided imposing 
additional requirements that Congress use any particular 
``magic words'' to establish a statute as an Exemption 3 
statute. Thus, the Census Act, the Internal Revenue Code, the 
National Security Act of 1947, and the grand jury secrecy rule, 
Fed. R. Crim. P. 6(e), to take several well-known examples, 
have been determined by the courts to qualify as Exemption 3 
statutes even though those statutes do not specifically refer 
to Exemption 3.
    Moreover, subsection (e)(1)(B)(ii) of FOIA now requires 
agencies to include in their annual FOIA reports a complete 
list of all statutes that the agency relies upon to authorize 
withholding under Exemption 3, together with other pertinent 
information concerning such withholding. Thus, Congress has a 
ready mechanism under current law, created in the 1996 e-FOIA 
amendments (Pub. L. No. 104-231), to determine how Exemption 3 
is being administered.
    Additionally, section 8 could unduly hamper Congress in the 
future or even constitute a hidden trap. For example, Congress 
has recently enacted appropriations laws to bar the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives from releasing 
certain sensitive law enforcement data to the public. Because 
congressional intent to maintain the confidentiality of such 
data is apparent from these appropriations laws, there is no 
reason to require, in addition, a specific reference to 
Exemption 3 in every subsequent annual appropriations law. Most 
significantly, Congress over the years has acted to revitalize 
certain export laws that periodically expire while Congress 
deliberates over policy matters. These statutes protect 
confidential business information submitted to the Government 
in connection with export applications, and the courts have 
upheld Exemption 3 protection for such matters, based upon the 
clear import of the overall statutory scheme. See Times Publ'g. 
Co. v. Dep't of Commerce, 236 F.3d 1286 (11th Cir. 2001). Under 
S. 849, such confidential business information would 
necessarily be subject to disclosure if Congress failed to meet 
the additional requirement imposed by S. 849. Additionally, if 
this provision is enacted, it is possible that there would be 
recurring disagreement as to whether subsequent nondisclosure 
statutes that do not clearly reference Exemption 3 have 
impliedly repealed or amended section 8. This sort of 
uncertainty would eviscerate what appears to be the central 
purpose of this provision.

Section 9--Reporting requirements

    Pursuant to the 1996 e-FOIA amendments (Pub. L. No. 104-
231), the Department of Justice has responsibility for 
collecting information from other Executive branch agencies 
concerning FOIA compliance, including the number of 
determinations not to comply with requests for records, the 
number of appeals, the number of pending requests, and the 
median time to process such requests. See 5 U.S.C. 
Sec. 552(e)(1). Section 9 expands the existing requirements in 
five principal areas: (1) Agencies' detailed response data 
based upon the date on which the request was originally 
received including the average number of days, the median 
number of days, and the range of dates to respond; (2) data 
concerning the 10 active requests with the earliest filing 
dates; (3) data concerning the 10 active administrative appeals 
with the earliest filing dates; (4) data concerning requests 
for expedited review; and (5) data on fee waiver requests.
    The Department believes that these new reporting 
requirements would be a largely unnecessary burden upon 
agencies that, as described above, cuts against the timeliness 
objectives pursued elsewhere in the bill. In addition, as 
described above, using the date a request is ``originally 
received by the agency'' as the starting point for determining 
time periods will result in a great distortion of the annual 
report statistics. If requesters misdirect requests, then the 
time spent correcting that error (i.e., the time spent 
forwarding the request to the proper office) would be counted 
against the agency's processing time. This will result in 
statistics that do not actually reflect processing time. 
Further, it is not clear that providing the additional data 
will provide any new or useful information regarding agency 
response times. Importantly, as part of their new Executive 
Order reporting requirements, agencies now report on the range 
of dates for both pending requests and consults. Moreover, 
there has been a great deal of focus on the ten oldest requests 
by agencies.

Section 10--Agency records maintained by a private entity:

    Current law defines an agency record as information that is 
``maintained by an agency in any format, including an 
electronic format.'' 5 U.S.C. Sec. 552(f)(2). The Supreme Court 
elaborated on this standard by holding that an ``agency 
record'' is a document ``. . . either created or obtained by an 
agency and under agency control at the time of the request.'' 
Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989). The 
Supreme Court has also held that Federal participation in, or 
funding of, the generation of information by a privately 
controlled organization does not render that information an 
``agency record'' under the terms of FOIA. See Forsham v. 
Harris, 445 U.S. 169 (1980).
    Section 10 of S. 849 amends the existing statutory 
definition in 5 U.S.C. Sec. 552(f)(2) to include information 
``that is maintained for an agency by an entity under a 
contract between the agency and the entity.'' The Department 
does not object to section 10 if its intention is solely to 
clarify that agency-generated records held by a Government 
contractor for records-management purposes are subject to FOIA. 
On the other hand, the Department would have very serious 
concerns if section 10 of S. 849 were intended to disturb over 
twenty-five years of settled law by overruling the Forsham and 
Tax Analysts decisions. At the very least, section 10 is 
ambiguous as currently drafted and should be clarified.

Section 11--Office of government information services

    The Department has significant questions and concerns about 
section 11, which would create an ``Office of Government 
Information Services'' within the Administrative Conference of 
the United States. This new office would be charged with 
responsibility for reviewing policies and procedures of 
agencies, conducting audits of those agencies, issuing reports, 
recommending policy changes to the President and Congress to 
improve the administration of the FOIA, and offering mediation 
services between requesters and administrative agencies.
    The Department is concerned about any intent that the 
proposed Office of Government Information Services would be 
given any sort of policymaking and adjudicative role with 
respect to FOIA compliance. Such a role is foreign to the 
traditional mission of the Administrative Conference of the 
United States, which was tasked with promoting improvements in 
the efficiency, adequacy, and fairness of procedures of the 
government's regulatory programs by conducting research and 
issuing reports. See 5 U.S.C. Sec. 594 (2000). Importantly, the 
aforementioned policymaking role remains appropriately placed 
with the Department of Justice, which has long held 
responsibility for ensuring compliance with the FOIA throughout 
the Executive branch. This role is all the more important, now 
that the Department serves as the lead agency in implementing 
Executive Order 13,392.
    Of additional concern is that the Office of Government 
Information Services would be authorized by S. 849 to provide 
mediation services between agencies and FOIA requesters. It 
should be noted that many FOIA disputes are not particularly 
well-suited to mediation because, inter alia, the two matters 
generally at issue in FOIA litigation--the adequacy of the 
search and the assertion of exemptions--are questions of law. 
Moreover, the authority given this Office under the bill may 
constitute the kind of significant authority that can only be 
exercised by officers duly appointed under the Appointments 
Clause, U.S. Const. art. II, sec. 2, cl. 2, and if that is the 
case, the provision would raise constitutional concerns.
    Further, the establishment of such an office would be 
unwarranted and redundant. Agencies routinely review their FOIA 
policies and procedures to ensure that they are adequately 
funded for the administration of the program. In fact, with the 
recent issuance of Executive Order 13,392, agencies are now 
required to scrutinize their processing of FOIA requests and 
report to the Department of Justice on their improvements made 
in that regard. Agencies then report any deficiencies in the 
implementation of their improvement plans to the Attorney 
General and the President's Management Council. Also, the 
Executive Order required agencies to appoint Chief FOIA 
Officers, who ``have agency-wide responsibility for efficient 
and appropriate compliance with the FOIA.'' This requirement 
ensures high-level visibility and accountability by an agency's 
``senior official.'' Further, the Department of Justice and the 
Government Accountability Office (GAO) already perform the 
function of holding agencies accountable, working quite well 
together. Indeed, there have been several GAO reports analyzing 
Government-wide administration of FOIA during just the past 
four years.
    Additionally, the creation of a separate, independent 
office to provide Ombudsmen-type services to requesters is 
unnecessary in light of all agencies' meeting the Executive 
Order's requirement to designate FOIA Public Liaisons and 
establish FOIA Requester Service Centers. The Public Liaisons 
and Requester Service Centers are there to provide information 
to the public about the status of their requests, to ensure 
that agencies use a ``service-oriented'' approach in responding 
to FOIA-related inquiries, and to resolve disputes.
    Finally, both sections 11 and 13 of the bill appear to 
require the submission of legislative recommendations to 
Congress by Executive branch agencies, requirements which 
conflict with the President's authority to submit only such 
legislative proposals as he deems ``necessary and expedient.'' 
See U.S. Const. art. II, sec. 3. Any such provisions in the 
bill should be precatory rather than mandatory.

Conclusion

    Since its enactment in 1966, FOIA has firmly established an 
effective statutory right of public access to Executive branch 
information in the Federal government. But the goal of 
achieving an informed citizenry is often counterpoised against 
other vital societal aims, such as the public's interest in 
effective and efficient operations of government; the prudent 
use of limited fiscal resources; and the preservation of the 
confidentiality and security of sensitive personal, commercial, 
and governmental information.
    Though tensions among these competing interests are 
characteristic of a democratic society, their resolution lies 
in providing a workable scheme that encompasses, balances, and 
appropriately protects all interests, while placing primary 
emphasis on the most responsible disclosure possible.
    Regrettably, S. 849, however well intentioned, does not 
provide a workable regime for effective, efficient compliance 
with the FOIA, nor does it provide a reasonable balance for the 
competing and equally compelling governmental aims involved 
here.
    Thank you for the opportunity to present our views. The 
Office of Management and Budget has advised us that from the 
perspective of the Administration's program, there is no 
objection to submission of this letter.
            Sincerely,
                                       Richard A. Hertling,
                                 Acting Assistant Attorney General.

                 B. ADDITIONAL VIEWS OF SENATOR CORNYN

                     The National Security Archive,
                          The George Washington University,
                                      Washington, DC, May 10, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
    Dear Senators Cornyn and Leahy: On April 23, 2004, 
Professor Ralph Begleiter, a University of Delaware professor 
and a former CNN correspondent, filed a Freedom of Information 
Act (FOIA) request seeking two categories of information: (1) 
copies of 361 photographic images of the honor ceremony at 
Dover Air Force Base for fallen U.S. military returning home to 
the United States that already had been released to another 
FOIA requester; and (2) similar images taken after October 7, 
2001 at any U.S. military facility.
    The unnecessarily prolonged history of this FOIA request 
demonstrates how plaintiffs often are forced to take the 
extreme measure of filing a lawsuit to get the government to 
release information (which in this case probably was not too 
hard to find or review). And then how, when faced with the 
obligation to respond in court to the unreasonable denial of 
the FOIA request or unnecessary delay in processing, the 
government sometimes simply releases the records. This 
litigation strategy imposes significant burdens on the FOIA 
requester, who must locate counsel and participate in 
litigation, but denies the requester any recompense for 
fulfilling the ``private attorney general'' role envisioned by 
the FOIA, since the absence of a final court ruling requiring 
the disclosure often denies the plaintiff statutory attorneys' 
fees.
    On June 30, 2004--48 business days after Professor 
Begleiter's request was filed and more than twice the response 
time permitted under the FOIA--Mr. Begleiter filed an 
administrative appeal of his April 23, 2004 FOIA request. The 
appeal was never acknowledged or responded to by the Air Force.
    As of September 2004--five months after the request was 
filed--Professor Begleiter had received no substantive response 
to the FOIA request or administrative appeal. Professor 
Begleiter then contacted each of the two FOIA personnel at the 
Department of Air Force who had acknowledged receipt of the 
FOIA request and was told by one person that there were no 
records and by another that the request was being processed. It 
was at that point that Professor Begleiter determined to file 
suit.
    On October 4, 2004, Professor Begleiter filed suit for the 
records requested on April 23, 2004, and in subsequent FOIA 
requests for similar images. On November 22, 2004, the Air 
Force provided Professor Begleiter a CD-ROM with the 361 images 
that had been released six months earlier to another FOIA 
requester and denied the remainder of his request claiming that 
it had no more responsive records. When Professor Begleiter 
demonstrated to the Air Force in an administrative appeal that 
its response was incorrect--since he had evidence that numerous 
other photographic images fitting the description in his FOIA 
request existed--the Air Force asked for additional time to 
search a range of components and agencies that had not been 
searched in the first place. Professor Begleiter, through 
counsel, agreed to provide the Air Force with additional time 
and the litigation was stayed at the end of December 2004 
pending completion of the search. At the end of February 2005, 
Professor Begleiter agreed to wait another 30 days for the 
search to be completed. On March 25, 2005, however, Professor 
Begleiter informed the court and the Air Force that his counsel 
was preparing a motion for summary judgment based on the Air 
Force's failure to process the FOIA request. In response to 
that notice, on April 8, 2005, the government advised Professor 
Begleiter's counsel that hundreds of additional images would 
soon be provided. Ninety-two images were provided on April 15, 
and an additional 268 images were provided on April 25, 2005. 
Professor Begleiter is in the process of deciding future steps 
in the lawsuit.
    It was not until he filed his lawsuit that Professor 
Begleiter obtained release of records that previously had been 
provided to another FOIA requester. It took an entire year, the 
filing of a lawsuit, and finally the notice that a summary 
judgment motion was being prepared to obtain any additional 
substantive response to the FOIA request. In my view, this sort 
of manipulation of the timing of records releases is a 
purposeful litigation strategy designed to put off release of 
information that someone does not want to release until the 
government knows that it can no longer resist because a court 
will not agree with the withholding. It is an attempt to evade 
FOINs attorney's fees provision by denying the FOIA requester a 
judicial decision ordering the release. It diverts FOIA 
requesters' resources unnecessarily into litigation that could 
be avoided by proper initial handling of FOIA requests.
    Please feel free to contact me with any questions you may 
have or for more information about Professor Begleiter's 
lawsuit.
    Thank you for your efforts to strengthen the accountability 
of our government agencies.
            Sincerely,
                                            Meredith Fuchs,
                                                   General Counsel.
                              ----------                              

                                      Law Office of
                                            Robert Ukeiley,
                                           Berea, KY, May 10, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
    Dear Senator Cornyn and Senator Leahy: It is my 
understanding that Congress is considering changing the 
language of the Freedom of Information Act (FOIA) to allow for 
the recovery of attorneys' fees and expenses if the agency 
turns over the requested documents after a suit is filed, 
regardless of whether or not a court orders the agency to turn 
over the documents. I think such a change would serve the 
public interest.
    In the following two cases, I filed suit, and shortly after 
I filed suit, the agency turned over the requested documents 
and I did not recovery attorney fees.
    Forest Guardians v. U.S. Fish and Wildlife Service, 04-N-
1396 (OES)(D.Colo. 2004)
    Forest Guardians v. U.S. Fish and Wildlife Service, 04-MW-
2529 (OES)(D.Colo. 2005)
    I generally represent my clients on a pro bono basis. 
However, I am no longer able to take most FOIA cases because I 
know it is highly likely that the agency will turn over the 
documents after I file suit and then refuse to pay attorneys' 
fees and expenses.
    Thank you for your consideration of this important issue.
            Sincerely,
                                                    Robert Ukeiley.

       VIII. CHANGES IN 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.