Number: 110-2
Date: April 19, 2007 

Senate Judiciary Committee Reports Out Favorably S.849,

the Openness Promotes Effectiveness in our National Government

Act of 2007

On April 12, 2007 the Senate Judiciary Committee ordered S. 849, the Openness Promotes Effectiveness in our National Government Act of 2007, to be reported favorably without amendment. This bill is similar to H.R.1309, the Freedom of Information Act Amendments of 2007 (Legislative Bulletin 110-1) which passed the House on March 14, 2007.

Among other things, the Committee Reported bill would:

•  Require Federal agencies, including SSA, to consider additional factors when determining whether a FOIA requestor is a member of the news media, and therefore eligible for a waiver of fees for document search and review. Agencies would be required to consider prior publication history of the requester, including books, articles, newsletters, television and radio broadcasts, and Internet publications. If the requester has no prior publication history or current affiliation, the agency would be required to consider the requester's stated intent to distribute information to a reasonably broad audience and to grant a fee waiver in those circumstances.

•  Expand the definition of “substantially prevail” for the purpose of the recovery of attorney fees and other litigation costs from the Claims and Judgment Fund of the U.S. Treasury. “Substantially prevail” would include, in addition to situations in which the claimant has obtained relief from the agency through voluntary or enforceable decisions or orders, those situations in which the claimant has obtained relief from the agency through voluntary or unilateral changes in position by the agency.

• Strengthen provisions in current law that authorize disciplinary action against government officials who deny records to FOIA requesters, by directing the Attorney General to:

•  Notify the Special Counsel of civil actions taken for certain rejections of requests for agency records;

•  Annually submit reports to Congress on the number of these actions taken; and,

•  Require the Special Counsel to submit annual reports to Congress on the actions taken by the Special Counsel regarding these civil actions.

•  Require that the 20-day statutory time limit for responding to requestors with regard to a determination of whether the agency will comply with such request to begin immediately upon agency receipt of the FOIA request. An agency's failure to comply with this 20-day statutory time limit would result in the forfeit of certain exemptions from disclosure currently included in the FOIA. In addition, agencies would be prohibited from charging requester fees for document search, duplication, or review if the agency fails to comply with the 20-day statutory time limit. Exemptions would be granted only if complying with the time limit would endanger national security, would disclose private information protected by FOIA, or is otherwise prohibited by law. This provision would apply only to FOIA requests filed on or after the effective date of this amendment.

•  Require each Federal agency (including SSA) to assign a tracking number and to notify the requester of such tracking number for each FOIA request within 10 days after receiving such request. In addition, would require Federal agencies (including SSA) to establish a telephone line or Internet service that provides information about the status of requests, including the date on which the agency received the request and an estimated date on which the agency will complete action on the request. These provisions would take effect one year after the date of enactment and would apply only to FOIA requests filed on or after that effective date.

•  Prohibit Congress from creating new statutory exemptions under FOIA unless it does so explicitly by requiring new statutory exemptions to specifically cite section 552(b) of the FOIA.

•  For purposes of the annual FOIA compliance reports, require Federal agencies (including SSA) to provide additional information about timeframes for responding to requests with a determination, including:

• The number of requests that the agency has responded to within the required 20 days;

• Information about the timeframes for providing granted information to requesters;

•  Data regarding agency responsiveness to administrative appeals;

•  Data on the 10 active requests and administrative appeals with the earliest filing dates pending at the agency; and,

•  Data regarding agency responsiveness to expedited review requests; and data regarding agency grants of fee waivers. 

•  Extend the definition of “record,” to include Federal contractors who maintain, as agreed to by the contracting agency, any information that would be an agency record subject to the requirements of FOIA, in any format (including electronic format).

•  Establish the Office of Government Information Services within the Administrative Conference of the U.S. The Office would:

• Review FOIA policies and procedures of administrative agencies;

• Audit agencies on FOIA procedures and compliance;

•  Recommend policy changes to Congress and the President; and,

•  Offer mediation services between requestors and agencies as an alternative to litigation.

This provision would take effect one year after enactment.

•  Strengthen provisions in current law that authorize disciplinary action against government officials who deny records to FOIA requesters, by directing the Attorney General to:

• Notify the Special Counsel of civil actions taken for certain rejections of requests for agency records;

• Annually submit reports to Congress on the number of these actions taken; and,

•  Require the Special Counsel to submit annual reports to Congress on the actions taken by the Special Counsel regarding these civil actions.