A legislative proposal to amend the Freedom
of Information Act in a number of important procedural respects has been
reintroduced in the
United States Senate and is expected to be the subject of active legislative consideration during the spring.
In late November, Senators Patrick J. Leahy
(D. Vt.) and Hank Brown (R. Colo.) introduced S. 1782, entitled the "Electronic
Information Improvement Act of 1993," which addresses both "electronic record" FOIA issues and the longstanding problem area of backlogs
of FOIA requests under the Act.
This current FOIA amendment bill is substantially
identical to one considered in the previous Congress, S. 1940, which was
the subject of a
Senate subcommittee hearing in the spring of 1992. See FOIA Update, Spring 1992, at 1. A companion bill to S. 1940 that contained
substantive revisions of FOIA exemptions (S. 1939, 102d Cong.) has not been reintroduced.
"Electronic Record" Provisions
The provisions of S. 1782 would update the
Freedom of Information Act so as to explicitly address the maintenance
and disclosure of records
by federal agencies in electronic form.
Toward that end, S. 1782 would define the
term "record" under the Act--for the first time--to specifically include
"computer programs" and all
related "electronic information . . . regardless of physical form or characteristics." Likewise, it would add a definition of the term "search" to the
Act, one specifying that it includes "a manual or automated examination to locate records." A separate provision, under the heading of
"computer redaction," would require that any deletion of information "be indicated on the released portion of the record at the place where such
deletion is made."
Another major provision of the bill would
address the form or format in which records are disclosed under the Act.
Where a requested record
is maintained by an agency in multiple record forms, it would allow the FOIA requester to choose his or her preferred form of disclosure.
Further, the bill would require agencies to "make reasonable efforts to provide records in an electronic form requested by any person, even
where such records are not usually maintained in such form."
Additional provisions would require agencies
to publish indices of information stored in an "electronic form" and to
formally consider the utility
of FOIA access at the time of new database or database system creation.
Most of the other provisions of S. 1782 relate
to difficulties in meeting the Act's time limits and to the problem of
FOIA backlogs at many
agencies. The bill would authorize courts to award FOIA requesters both "out-of-pocket expenses" and reasonable attorneys fees incurred at
the administrative level in any case in which an agency fails to meet a time limit of the Act. Similarly, it would give courts the discretion to
impose a "civil penalty for delay" of up to $75 per day for time-limit noncompliance. Another provision of the bill would explicitly preclude
"routine agency backlogs" from serving as grounds for an extension of the Act's time limits. On the other hand, S. 1782 would permit agencies
certified as in "substantial compliance" with the Act's time limits to retain half of the FOIA fees they collect, with the funds then "expended to
offset the costs" of that compliance.
A separate provision of S. 1782 would afford
expedited access to FOIA requesters based upon a "compelling need" standard
establish a five-day time limit for the making of decisions on whether to grant expedited access when requested. Other provisions of the bill
address such procedural matters as the content of administrative denial notifications and the creation of individual agency listings of Exemption
3 statutes. (See pages 2-3 of this issue of FOIA Update for the full text of all of S. 1782's provisions.)
The provisions of S. 1782 will be considered
in the Senate first by the Senate Judiciary Committee's Subcommittee on
Technology and the
Law, which is chaired by Senator Leahy. No subcommittee hearing on S. 1782 is anticipated, but the bill's provisions should be the subject of
extensive discussions and efforts to reach a consensus among interested parties. In anticipation of this legislative process, the Office of
Management and Budget is circulating S. 1782 to federal agencies for individual agency comment and the inter-agency coordination of views.