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115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-93
======================================================================
FANNIE AND FREDDIE OPEN RECORDS ACT OF 2017
_______
April 24, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1694]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1694) to require additional
entities to be subject to the requirements of section 552 of
title 5, United States Code (commonly referred to as the
Freedom of Information Act), and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 4
Explanation of Amendments........................................ 4
Committee Consideration.......................................... 5
Roll Call Votes.................................................. 5
Application of Law to the Legislative Branch..................... 5
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 5
Statement of General Performance Goals and Objectives............ 5
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Federal Advisory Committee Act................................... 5
Unfunded Mandate Statement....................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
Budget Authority and Congressional Budget Office Cost Estimate... 6
Changes in Existing Law Made by the Bill, as Reported............ 8
Additional Views................................................. 26
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SEC. 1. SHORT TITLE.
This Act may be cited as the ``Fannie and Freddie Open Records Act of
2017''.
SEC. 2. APPLICABILITY OF FOIA.
(a) Applicability to Government Sponsored Entities in
Conservatorship.--Section 552 of title 5, United States Code (commonly
referred to as the Freedom of Information Act), is amended by adding at
the end the following new subsection:
``(n) The Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation shall comply with agency requirements under
this section during any period such enterprise is under conservatorship
or receivership pursuant to section 1367 of the Federal Housing
Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C.
4617).''.
(b) Effective Date; Applicability.--The amendment made by subsection
(a) shall be effective on the date of the enactment of this Act and
shall apply with respect to any request filed under section 552(a)(3)
of title 5, United States Code, on or after such effective date,
relating to any record created before, on, or after the date of the
enactment of this Act.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 1694, the Fannie and Freddie Open Records Act of 2017,
applies the Freedom of Information Act (FOIA) to the Federal
National Mortgage Association (Fannie Mae) and the Federal Home
Loan Mortgage Corporation (Freddie Mac) while they remain under
the conservatorship of the Federal Housing Finance Agency
(FHFA). The Fannie and Freddie Open Records Act of 2017
furthers the Committee's efforts to ensure the American people
know what activities the government performs with their
taxpayer dollars.
BACKGROUND AND NEED FOR LEGISLATION
Fannie Mae and Freddie Mac are federally-chartered, for-
profit institutions. Congress created Fannie Mae in 1938 on the
heels of the Great Depression and Freddie Mac in 1970\1\ to
stimulate home ownership and support the expanding housing
market.\2\
---------------------------------------------------------------------------
\1\A 1938 amendment to the National Housing Act created Fannie Mae.
The 1970 Emergency Home Finance Act created Freddie Mac to help thrifts
(organizations that accept savings account deposits and invest most of
the proceeds in mortgages) manage the challenges associated with
interest rate risk. See, Federal Housing Finance Agency Office of the
Inspector General, A Brief History of the Housing Government-Sponsored
Enterprises, last accessed March 12th, available at https://
www.fhfaoig.gov/Content/Files/History%20of%20the%20Government%20
Sponsored%20Enterprises.pdf.
\2\Id.
---------------------------------------------------------------------------
To stabilize the housing market in the aftershock of the
financial crisis, the FHFA used its authority in 2008 to place
Fannie Mae and Freddie Mac into its conservatorship.\3\ In
conservatorship, the government takes control of a failing
financial institution with the goal of returning it to
financial health and stockholder control.\4\ In the process,
the FHFA redirected $187.5 billion to Fannie Mae and Freddie
Mac.\5\ At the time, the taxpayer-financed Fannie and Freddie
bailout was considered ``the most sweeping government
intervention in private financial markets in decades.''\6\
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\3\P.L. 110-289, Section 1117.
\4\Congressional Research Service, ``Fannie Mae, Freddie Mac, and
FOIA: Information Access Policy for the Government-Sponsored
Enterprises'', R42080 (Nov. 10, 2011).
\5\Bloomberg, Quick Take--Fannie Mae and Freddie Mac, last accessed
March 12th, available at https://www.bloomberg.com/quicktake/fannie-
mae-and-freddie-mac-irbtxzdk.
\6\Zachary Goldfarb, Treasury to Rescue Fannie and Freddie,
Washington Post (Sept. 7, 2008), available at http://
www.washingtonpost.com/wp-dyn/content/article/2008/09/06/
AR2008090602540.html?hpid=topnews.
---------------------------------------------------------------------------
Enacted in 1966, the FOIA established the public's right to
know by creating a presumption that the public has access to
federal agency records.\7\ The statute authorizing the FHFA's
conservatorship over Fannie and Freddie, section 4617 of title
12, United States Code, granted the FHFA the power to exercise
``all rights, titles, powers, and privileges of the regulated
entity, and of any stockholder, officer, or director of such
regulated entity with respect to the regulated entity and the
assets of the regulated entity.''\8\ As such, when the FHFA
took over as conservator, Fannie and Freddie's records became
the equivalent of FHFA's ``agency records'' for purposes of
FOIA. H.R. 1694 will allow the FHFA to withhold agency records
under FOIA's nine exemptions. Under the bill, Fannie Mae and
Freddie Mac will be treated like any other agency for purposes
of section 552 of title 5, United States Code. The exemptions
to disclosure in subsection (b) and the presumption of openness
under subsection (a)(8) are equally applicable to Fannie Mae
and Freddie Mac as any other agency required to comply with
FOIA.
---------------------------------------------------------------------------
\7\The Freedom of Information Act, 5 U.S.C. Sec. 552, and Pub. L.
110-175, 121 Stat. 2524, and Pub. L. 111-83, Section 564, 123, Stat.
2142, 2184; see also, U.S. Congress, House Committee of the Whole House
on the State of the Union, Clarifying and Protecting the Right of the
Public to Information, 89th Cong. 2nd sess. May 9, 1966, H.Rpt. 1497
(Washington: GPO, 1966).
\8\See 12 U.S.C. Sec. 4617(b)(2)(A)(i).
---------------------------------------------------------------------------
There is precedent for applying FOIA to a nongovernmental
entity. Congress conferred FOIA applicability to a quasi-
governmental entity--the National Railroad Passenger
Corporation (Amtrak)--when it amended the Rail Passenger
Service Act to include a provision explicitly applying FOIA to
Amtrak. The bill report for the amendment stated, ``in view of
the substantial Federal funds which are going to Amtrak, the
taxpaying public is entitled to access the information about
the conduct of Amtrak affairs.''\9\
---------------------------------------------------------------------------
\9\Wendy Ginsberg and Eric Weiss, Fannie Mae, Freddie Mac, and
FOIA: Information Access Policy for the Government-Sponsored
Enterprises (Nov. 10, 2011), available at file:///C:/Users/mdoocy/
Downloads/nps61-073012-38%20(7).pdf.
---------------------------------------------------------------------------
LEGISLATIVE HISTORY
On March 23, 2017, Representative Jason Chaffetz (R-UT),
Chairman of the House Committee on Oversight and Government
Reform, introduced H.R. 1694, the Fannie and Freddie Open
Records Act of 2017, with Representatives Ron DeSantis (R-FL),
Steve Russell (R-OK), John J. Duncan, Jr. (R-TN), Thomas Massie
(R-KY), Blake Farenthold (R-TX), James Comer (R-KY), Rod Blum
(R-IA), and Darrell Issa (R-CA). H.R. 1694 was referred to the
Committee on Oversight and Government Reform. On March 23,
2017, the Committee held a hearing entitled, ``Legislative
Proposals for Fostering Transparency.'' H.R. 1694 was one of
three bills discussed. The Committee considered H.R. 1694 at a
business meeting on March 28, 2017 and ordered the bill
reported favorably, as amended, by voice vote.
On January 5, 2017, Representative Chaffetz introduced a
related bill, H.R. 298, the Fannie Mae and Freddie Mac
Transparency Act of 2017, with Representative Thomas Massie (R-
KY). H.R. 298 was referred to the House Committee on Financial
Services. Representative Chaffetz introduced identical bills in
the 114th, 112th, and 111th Congresses.
In the 114th Congress, Representative Chaffetz introduced
H.R. 1577, the Fannie Mae and Freddie Mac Transparency Act of
2015, on March 24, 2015. H.R. 1577 was referred to the House
Committee on Financial Services.
In the 112th Congress, Representative Chaffetz introduced
H.R. 463, the Fannie Mae and Freddie Mac Transparency Act of
2011 on January 26, 2011, with Representatives Darrell Issa (R-
CA), Jeff Flake (R-AZ), Jeb Hensarling (R-TX), Ron Paul (R-TX),
Spencer Bachus (R-AL), Todd Platts (R-PA), Ted Poe (R-TX), Mike
Rogers (R-MI), Adrian Smith (R-NE), Connie Mack (R-FL), and
Mike Quigley (D-IL). There were 19 total cosponsors of H.R.
463. H.R. 463 was referred to the House Committee on Financial
Services and subsequently to the Subcommittee on Capital
Markets and Government Sponsored Enterprises. On May 25, 2011,
the Subcommittee held a hearing on H.R. 463. The Subcommittee
considered H.R. 463 at a mark-up session on July 12, 2011 and
referred the bill to the Full Committee by voice vote.
In the 111th Congress, Representative Chaffetz introduced
H.R. 5539, the Fannie Mae and Freddie Mac Transparency Act of
2010, on June 16, 2010, with Representatives John Conyers (D-
MI), Lamar Smith (R-TX), Darrell Issa (R-CA), Spencer Bachus
(R-AL), Jeb Hensarling (R-TX), Edward Royce (R-CA), Bob
Goodlatte (R-VA), Judy Biggert (R-IL), Thomas Rooney (R-FL),
and Cynthia Lummis (R-WY). There were 22 total cosponsors of
H.R. 5539. The bill was referred to the House Committee on
Financial Services.
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Fannie and Freddie
Open Records Act of 2017.''
Section 2. Applicability of FOIA
Section 2 amends section 552 of title 5, (the Freedom of
Information Act, or FOIA), United States Code, by adding a new
subsection (n) to clarify that section 552 applies to the
Federal National Mortgage Association (Fannie Mae) and the
Federal Home Loan Mortgage Corporation (Freddie Mac) during any
period during which either entity is under conservatorship or
receivership of the Federal Housing Finance Agency (FHFA).
Subparagraph (b) makes the date of enactment of the bill
the date of effect. The records that are applicable to FOIA are
``any record[s] created before, on, or after the date of
enactment of this Act.''
Explanation of Amendments
During Committee consideration of the bill, Chairman Jason
Chaffetz offered an amendment in the nature of a substitute to
address technical drafting concerns and more appropriately
reflect the bill's intent. The amendment in the nature of a
substitute was adopted by voice vote.
Committee Consideration
On March 28, 2017, the Committee met in open session and
ordered reported favorably the bill, H.R. 1694, as amended, by
voice vote, a quorum being present.
Roll Call Votes
There were no roll call votes requested or conducted during
Full Committee consideration of H.R. 1694.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill applies the Freedom of Information Act to Fannie Mae
and Freddie Mac while they remain under the conservatorship of
the FHFA. As such, this bill does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to require additional
entities to be subject to the requirements of section 552 of
title 5, United States Code (commonly referred to as the
Freedom of Information Act), and for other purposes.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of section 551 or title 5, United States Code.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act of 1995, P.L. 104-4) requires a statement
as to whether the provisions of the reported include unfunded
mandates. In compliance with this requirement, the Committee
has included below a letter received from the Congressional
Budget Office.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(2)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974, which the Committee has included below.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for this bill from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 21, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1694, the Fannie
and Freddie Open Records Act 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1694--Fannie and Freddie Open Records Act of 2017
H.R. 1694 would amend the Freedom of Information Act (FOIA)
to make its provisions apply to Fannie Mae and Freddie Mac when
the two entities are in federal conservatorship or
receivership. Under current law, Fannie Mae and Freddie Mac
(the entities) are not subject to FOIA because they are not
federal agencies. Under the bill, the two entities would be
directed to accept and process FOIA requests from the public
and to release information to satisfy those requests as long as
they are in federal conservatorship.
Based on information provided by the two entities, the
Federal Housing Finance Agency (FHFA), and annual FOIA costs
incurred by other federal agencies, CBO estimates that
administrative costs for Fannie Mae, Freddie Mac, and FHFA
would increase under the bill. All of the net costs would be
borne by Fannie Mae and Freddie Mac because FHFA would assess
fees on the two entities to cover its costs. CBO estimates that
enacting the legislation would increase direct spending by $10
million over the 2018-2027 period; therefore, pay-as-you go
procedures apply. Enacting the bill would not affect revenues.
Fannie Mae's and Freddie Mac's administrative costs would
increase because each entity would need to hire staff to review
FOIA requests, gather relevant information, evaluate the
information to determine if it is exempt from disclosure under
FOIA, and release the nonexempt information to satisfy such
requests. Each entity also would need to expand data processing
tools and systems to electronically search and compile relevant
data and documents. Finally, the entities would need to hire
staff to handle appeals that arise when information is withheld
because the entity considers it to be exempt from disclosure
under FOIA.
Based on an analysis of information provided by the
entities and FHFA, and the costs incurred by federal agencies
to comply with FOIA, CBO estimates that administrative costs
would increase by $40 million in 2018 because Fannie Mae and
Freddie Mac likely would employ outside firms to accept,
evaluate, and respond to FOIA requests while simultaneously
building internal capacity to perform that work with their own
employees. Once the organization's internal FOIA offices are
operating, administrative costs would total about $30 million
annually, CBO estimates. Those estimates include additional
costs for FHFA to review requests received by Fannie Mae and
Freddie Mac that include information FHFA has shared with them
in its capacity as their regulator. In total, CBO estimates
that over the next 10 years Fannie Mae's and Freddie Mac's
administrative costs would increase by $310 million.
Administrative costs for Fannie Mae, Freddie Mac, and FHFA
in recent years have totaled about $5 billion annually. Under
the bill, CBO expects that the entities would cover the
increase in costs by reducing other administrative expenses (by
about $20 million per year), increasing fees charged for
providing loan guarantees (by about $10 million a year), and
reducing the portion of fees that would be available to cover
the costs of its loan guarantees. On that basis, CBO estimates
that enacting the bill would increase Fannie Mae's and Freddie
Mac's subsidy costs by about $10 million over the 2018-2027
period.\1\
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\1\Under the Federal Credit Reform Act the cost of loan guarantees
is recorded in the federal budget by estimating a subsidy cost for
those guarantees. The subsidy cost is calculated by estimating all
future cash flows associated with a guarantee, including the potential
for default and fees paid in exchange for the guarantee, and converting
those cash flows into a present value figure. CBO estimates the subsidy
cost of Fannie Mae's and Freddie Mac's guarantees using a fair-value
methodology to discount future cash flows associated with those
guarantees. For a more detailed description of how CBO accounts for the
cost of Fannie Mae and Freddie Mac in the budget, see Congressional
Budget Office, CBO's Budgetary Treatment of Fannie Mae and Freddy Mac,
Background Paper (January 2010).
---------------------------------------------------------------------------
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays that
are subject to those pay-as-you-go procedures are shown in the
following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 1694, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM ON MARCH 28, 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2017-2022 2017-2027
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE IN THE DEFICIT
Statutory Pay-As-You-Go Impact............ 0 2 1 1 1 1 1 1 0 0 0 6 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBO estimates that enacting H.R. 1694 would not increase
net direct spending or on-budget deficits by more than $5
billion in any of the four consecutive 10-year periods
beginning in 2028.
H.R. 1694 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
* * * * * * *
Sec. 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) Each agency shall separately state and currently publish
in the Federal Register for the guidance of the public--
(A) descriptions of its central and field
organization and the established places at which, the
employees (and in the case of a uniformed service, the
members) from whom, and the methods whereby, the public
may obtain information, make submittals or requests, or
obtain decisions;
(B) statements of the general course and method by
which its functions are channeled and determined,
including the nature and requirements of all formal and
informal procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be obtained,
and instructions as to the scope and contents of all
papers, reports, or examinations;
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability
formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the
foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by
reference therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with published rules, shall
make available for public inspection in an electronic format--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the
adjudication of cases;
(B) those statements of policy and interpretations
which have been adopted by the agency and are not
published in the Federal Register;
(C) administrative staff manuals and instructions to
staff that affect a member of the public;
(D) copies of all records, regardless of form or
format--
(i) that have been released to any person
under paragraph (3); and
(ii)(I) that because of the nature of their
subject matter, the agency determines have
become or are likely to become the subject of
subsequent requests for substantially the same
records; or
(II) that have been requested 3 or more
times; and
(E) a general index of the records referred to under
subparagraph (D);
unless the materials are promptly published and copies offered
for sale. For records created on or after November 1, 1996,
within one year after such date, each agency shall make such
records available, including by computer telecommunications or,
if computer telecommunications means have not been established
by the agency, by other electronic means. To the extent
required to prevent a clearly unwarranted invasion of personal
privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy,
interpretation, staff manual, instruction, or copies of records
referred to in subparagraph (D). However, in each case the
justification for the deletion shall be explained fully in
writing, and the extent of such deletion shall be indicated on
the portion of the record which is made available or published,
unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where
the deletion was made. Each agency shall also maintain and make
available for public inspection in an electronic format current
indexes providing identifying information for the public as to
any matter issued, adopted, or promulgated after July 4, 1967,
and required by this paragraph to be made available or
published. Each agency shall promptly publish, quarterly or
more frequently, and distribute (by sale or otherwise) copies
of each index or supplements thereto unless it determines by
order published in the Federal Register that the publication
would be unnecessary and impracticable, in which case the
agency shall nonetheless provide copies of such index on
request at a cost not to exceed the direct cost of duplication.
Each agency shall make the index referred to in subparagraph
(E) available by computer telecommunications by December 31,
1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency
only if--
(i) it has been indexed and either made available or
published as provided by this paragraph; or
(ii) the party has actual and timely notice of the
terms thereof.
(3)(A) Except with respect to the records made available
under paragraphs (1) and (2) of this subsection, and except as
provided in subparagraph (E), each agency, upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make
the records promptly available to any person.
(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or
format requested by the person if the record is readily
reproducible by the agency in that form or format. Each agency
shall make reasonable efforts to maintain its records in forms
or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for
records, an agency shall make reasonable efforts to search for
the records in electronic form or format, except when such
efforts would significantly interfere with the operation of the
agency's automated information system.
(D) For purposes of this paragraph, the term ``search'' means
to review, manually or by automated means, agency records for
the purpose of locating those records which are responsive to a
request.
(E) An agency, or part of an agency, that is an element of
the intelligence community (as that term is defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)))
shall not make any record available under this paragraph to--
(i) any government entity, other than a State,
territory, commonwealth, or district of the United
States, or any subdivision thereof; or
(ii) a representative of a government entity
described in clause (i).
(4)(A)(i) In order to carry out the provisions of this
section, each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, specifying the schedule
of fees applicable to the processing of requests under this
section and establishing procedures and guidelines for
determining when such fees should be waived or reduced. Such
schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment,
by the Director of the Office of Management and Budget and
which shall provide for a uniform schedule of fees for all
agencies.
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review,
when records are requested for commercial use;
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the request is made by an
educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II),
fees shall be limited to reasonable standard charges
for document search and duplication.
In this clause, the term ``a representative of the news media''
means any person or entity that gathers information of
potential interest to a segment of the public, uses its
editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. In this clause,
the term ``news'' means information that is about current
events or that would be of current interest to the public.
Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators
of ``news'') who make their products available for purchase by
or subscription by or free distribution to the general public.
These examples are not all-inclusive. Moreover, as methods of
news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through
telecommunications services), such alternative media shall be
considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the
journalist can demonstrate a solid basis for expecting
publication through that entity, whether or not the journalist
is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the
Government may also consider the past publication record of the
requester in making such a determination.
(iii) Documents shall be furnished without any charge or at a
charge reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because
it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
requester.
(iv) Fee schedules shall provide for the recovery of only the
direct costs of search, duplication, or review. Review costs
shall include only the direct costs incurred during the initial
examination of a document for the purposes of determining
whether the documents must be disclosed under this section and
for the purposes of withholding any portions exempt from
disclosure under this section. Review costs may not include any
costs incurred in resolving issues of law or policy that may be
raised in the course of processing a request under this
section. No fee may be charged by any agency under this
section--
(I) if the costs of routine collection and processing
of the fee are likely to equal or exceed the amount of
the fee; or
(II) for any request described in clause (ii) (II) or
(III) of this subparagraph for the first two hours of
search time or for the first one hundred pages of
duplication.
(v) No agency may require advance payment of any fee unless
the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed
$250.
(vi) Nothing in this subparagraph shall supersede fees
chargeable under a statute specifically providing for setting
the level of fees for particular types of records.
(vii) In any action by a requester regarding the waiver of
fees under this section, the court shall determine the matter
de novo: Provided, That the court's review of the matter shall
be limited to the record before the agency.
(viii)(I) Except as provided in subclause (II), an agency
shall not assess any search fees (or in the case of a requester
described under clause (ii)(II) of this subparagraph,
duplication fees) under this subparagraph if the agency has
failed to comply with any time limit under paragraph (6).
(II)(aa) If an agency has determined that unusual
circumstances apply (as the term is defined in paragraph
(6)(B)) and the agency provided a timely written notice to the
requester in accordance with paragraph (6)(B), a failure
described in subclause (I) is excused for an additional 10
days. If the agency fails to comply with the extended time
limit, the agency may not assess any search fees (or in the
case of a requester described under clause (ii)(II) of this
subparagraph, duplication fees).
(bb) If an agency has determined that unusual circumstances
apply and more than 5,000 pages are necessary to respond to the
request, an agency may charge search fees (or in the case of a
requester described under clause (ii)(II) of this subparagraph,
duplication fees) if the agency has provided a timely written
notice to the requester in accordance with paragraph (6)(B) and
the agency has discussed with the requester via written mail,
electronic mail, or telephone (or made not less than 3 good-
faith attempts to do so) how the requester could effectively
limit the scope of the request in accordance with paragraph
(6)(B)(ii).
(cc) If a court has determined that exceptional circumstances
exist (as that term is defined in paragraph (6)(C)), a failure
described in subclause (I) shall be excused for the length of
time provided by the court order.
(B) On complaint, the district court of the United States in
the district in which the complainant resides, or has his
principal place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from
the complainant. In such a case the court shall determine the
matter de novo, and may examine the contents of such agency
records in camera to determine whether such records or any part
thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the
agency to sustain its action. In addition to any other matters
to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon the
defendant of the pleading in which such complaint is made,
unless the court otherwise directs for good cause shown.
(E)(i) The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the
complainant has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained relief
through either--
(I) a judicial order, or an enforceable written
agreement or consent decree; or
(II) a voluntary or unilateral change in position by
the agency, if the complainant's claim is not
insubstantial.
(F)(i) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding. The
Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and
recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(ii) The Attorney General shall--
(I) notify the Special Counsel of each civil action
described under the first sentence of clause (i); and
(II) annually submit a report to Congress on the
number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to
Congress on the actions taken by the Special Counsel under
clause (i).
(G) In the event of noncompliance with the order of the
court, the district court may punish for contempt the
responsible employee, and in the case of a uniformed service,
the responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the final
votes of each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall--
(i) determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of any such request whether to comply with such request
and shall immediately notify the person making such
request of--
(I) such determination and the reasons
therefor;
(II) the right of such person to seek
assistance from the FOIA Public Liaison of the
agency; and
(III) in the case of an adverse
determination--
(aa) the right of such person to
appeal to the head of the agency,
within a period determined by the head
of the agency that is not less than 90
days after the date of such adverse
determination; and
(bb) the right of such person to seek
dispute resolution services from the
FOIA Public Liaison of the agency or
the Office of Government Information
Services; and
(ii) make a determination with respect to any appeal
within twenty days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of such
appeal. If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall
notify the person making such request of the provisions
for judicial review of that determination under
paragraph (4) of this subsection.
The 20-day period under clause (i) shall commence on the date
on which the request is first received by the appropriate
component of the agency, but in any event not later than ten
days after the request is first received by any component of
the agency that is designated in the agency's regulations under
this section to receive requests under this section. The 20-day
period shall not be tolled by the agency except--
(I) that the agency may make one request to the
requester for information and toll the 20-day period
while it is awaiting such information that it has
reasonably requested from the requester under this
section; or
(II) if necessary to clarify with the requester
issues regarding fee assessment. In either case, the
agency's receipt of the requester's response to the
agency's request for information or clarification ends
the tolling period.
(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i)
or clause (ii) of subparagraph (A) may be extended by written
notice to the person making such request setting forth the
unusual circumstances for such extension and the date on which
a determination is expected to be dispatched. No such notice
shall specify a date that would result in an extension for more
than ten working days, except as provided in clause (ii) of
this subparagraph.
(ii) With respect to a request for which a written notice
under clause (i) extends the time limits prescribed under
clause (i) of subparagraph (A), the agency shall notify the
person making the request if the request cannot be processed
within the time limit specified in that clause and shall
provide the person an opportunity to limit the scope of the
request so that it may be processed within that time limit or
an opportunity to arrange with the agency an alternative time
frame for processing the request or a modified request. Refusal
by the person to reasonably modify the request or arrange such
an alternative time frame shall be considered as a factor in
determining whether exceptional circumstances exist for
purposes of subparagraph (C). To aid the requester, each agency
shall make available its FOIA Public Liaison, who shall assist
in the resolution of any disputes between the requester and the
agency, and notify the requester of the right of the requester
to seek dispute resolution services from the Office of
Government Information Services.
(iii) As used in this subparagraph, ``unusual circumstances''
means, but only to the extent reasonably necessary to the
proper processing of the particular requests--
(I) the need to search for and collect the requested
records from field facilities or other establishments
that are separate from the office processing the
request;
(II) the need to search for, collect, and
appropriately examine a voluminous amount of separate
and distinct records which are demanded in a single
request; or
(III) the need for consultation, which shall be
conducted with all practicable speed, with another
agency having a substantial interest in the
determination of the request or among two or more
components of the agency having substantial subject-
matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to
notice and receipt of public comment, providing for the
aggregation of certain requests by the same requestor, or by a
group of requestors acting in concert, if the agency reasonably
believes that such requests actually constitute a single
request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests
involve clearly related matters. Multiple requests involving
unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be
deemed to have exhausted his administrative remedies with
respect to such request if the agency fails to comply with the
applicable time limit provisions of this paragraph. If the
Government can show exceptional circumstances exist and that
the agency is exercising due diligence in responding to the
request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any
determination by an agency to comply with a request for
records, the records shall be made promptly available to such
person making such request. Any notification of denial of any
request for records under this subsection shall set forth the
names and titles or positions of each person responsible for
the denial of such request.
(ii) For purposes of this subparagraph, the term
``exceptional circumstances'' does not include a delay that
results from a predictable agency workload of requests under
this section, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a
request (or a modified request) under clause (ii) after being
given an opportunity to do so by the agency to whom the person
made the request shall be considered as a factor in determining
whether exceptional circumstances exist for purposes of this
subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to
notice and receipt of public comment, providing for multitrack
processing of requests for records based on the amount of work
or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest
multitrack processing an opportunity to limit the scope of the
request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records--
(I) in cases in which the person requesting the
records demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure--
(I) that a determination of whether to provide
expedited processing shall be made, and notice of the
determination shall be provided to the person making
the request, within 10 days after the date of the
request; and
(II) expeditious consideration of administrative
appeals of such determinations of whether to provide
expedited processing.
(iii) An agency shall process as soon as practicable any
request for records to which the agency has granted expedited
processing under this subparagraph. Agency action to deny or
affirm denial of a request for expedited processing pursuant to
this subparagraph, and failure by an agency to respond in a
timely manner to such a request shall be subject to judicial
review under paragraph (4), except that the judicial review
shall be based on the record before the agency at the time of
the determination.
(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a
complete response to the request.
(v) For purposes of this subparagraph, the term ``compelling
need'' means--
(I) that a failure to obtain requested records on an
expedited basis under this paragraph could reasonably
be expected to pose an imminent threat to the life or
physical safety of an individual; or
(II) with respect to a request made by a person
primarily engaged in disseminating information, urgency
to inform the public concerning actual or alleged
Federal Government activity.
(vi) A demonstration of a compelling need by a person making
a request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best of
such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an
agency shall make a reasonable effort to estimate the volume of
any requested matter the provision of which is denied, and
shall provide any such estimate to the person making the
request, unless providing such estimate would harm an interest
protected by the exemption in subsection (b) pursuant to which
the denial is made.
(7) Each agency shall--
(A) establish a system to assign an individualized
tracking number for each request received that will
take longer than ten days to process and provide to
each person making a request the tracking number
assigned to the request; and
(B) establish a telephone line or Internet service
that provides information about the status of a request
to the person making the request using the assigned
tracking number, including--
(i) the date on which the agency originally
received the request; and
(ii) an estimated date on which the agency
will complete action on the request.
(8)(A) An agency shall--
(i) withhold information under this section only if--
(I) the agency reasonably foresees that
disclosure would harm an interest protected by
an exemption described in subsection (b); or
(II) disclosure is prohibited by law; and
(ii)(I) consider whether partial disclosure of
information is possible whenever the agency determines
that a full disclosure of a requested record is not
possible; and
(II) take reasonable steps necessary to segregate and
release nonexempt information; and
(B) Nothing in this paragraph requires disclosure of
information that is otherwise prohibited from
disclosure by law, or otherwise exempted from
disclosure under subsection (b)(3).
(b) This section does not apply to matters that are--
(1)(A) specifically authorized under criteria
established by an Executive order to be kept secret in
the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such
Executive order;
(2) related solely to the internal personnel rules
and practices of an agency;
(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that
statute--
(A)(i) requires that the matters be withheld
from the public in such a manner as to leave no
discretion on the issue; or
(ii) establishes particular criteria for
withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment of
the OPEN FOIA Act of 2009, specifically cites
to this paragraph.
(4) trade secrets and commercial or financial
information obtained from a person and privileged or
confidential;
(5) inter-agency or intra-agency memorandums or
letters that would not be available by law to a party
other than an agency in litigation with the agency,
provided that the deliberative process privilege shall
not apply to records created 25 years or more before
the date on which the records were requested;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or
information (A) could reasonably be expected to
interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an
impartial adjudication, (C) could reasonably be
expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to
disclose the identity of a confidential source,
including a State, local, or foreign agency or
authority or any private institution which furnished
information on a confidential basis, and, in the case
of a record or information compiled by criminal law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful
national security intelligence investigation,
information furnished by a confidential source, (E)
would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical
safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf
of, or for the use of an agency responsible for the
regulation or supervision of financial institutions; or
(9) geological and geophysical information and data,
including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection. The amount of
information deleted, and the exemption under which the deletion
is made, shall be indicated on the released portion of the
record, unless including that indication would harm an interest
protected by the exemption in this subsection under which the
deletion is made. If technically feasible, the amount of the
information deleted, and the exemption under which the deletion
is made, shall be indicated at the place in the record where
such deletion is made.
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and--
(A) the investigation or proceeding involves a
possible violation of criminal law; and
(B) there is reason to believe that (i) the subject
of the investigation or proceeding is not aware of its
pendency, and (ii) disclosure of the existence of the
records could reasonably be expected to interfere with
enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements
of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal
identifier are requested by a third party according to the
informant's name or personal identifier, the agency may treat
the records as not subject to the requirements of this section
unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to
records maintained by the Federal Bureau of Investigation
pertaining to foreign intelligence or counterintelligence, or
international terrorism, and the existence of the records is
classified information as provided in subsection (b)(1), the
Bureau may, as long as the existence of the records remains
classified information, treat the records as not subject to the
requirements of this section.
(d) This section does not authorize withholding of
information or limit the availability of records to the public,
except as specifically stated in this section. This section is
not authority to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency
shall submit to the Attorney General of the United States and
to the Director of the Office of Government Information
Services a report which shall cover the preceding fiscal year
and which shall include--
(A) the number of determinations made by the agency
not to comply with requests for records made to such
agency under subsection (a) and the reasons for each
such determination;
(B)(i) the number of appeals made by persons under
subsection (a)(6), the result of such appeals, and the
reason for the action upon each appeal that results in
a denial of information; and
(ii) a complete list of all statutes that the agency
relies upon to authorize the agency to withhold
information under subsection (b)(3), the number of
occasions on which each statute was relied upon, a
description of whether a court has upheld the decision
of the agency to withhold information under each such
statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before
the agency as of September 30 of the preceding year,
and the median and average number of days that such
requests had been pending before the agency as of that
date;
(D) the number of requests for records received by
the agency and the number of requests which the agency
processed;
(E) the median number of days taken by the agency to
process different types of requests, based on the date
on which the requests were received by the agency;
(F) the average number of days for the agency to
respond to a request beginning on the date on which the
request was received by the agency, the median number
of days for the agency to respond to such requests, and
the range in number of days for the agency to respond
to such requests;
(G) based on the number of business days that have
elapsed since each request was originally received by
the agency--
(i) the number of requests for records to
which the agency has responded with a
determination within a period up to and
including 20 days, and in 20-day increments up
to and including 200 days;
(ii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 200
days and less than 301 days;
(iii) the number of requests for records to
which the agency has responded with a
determination within a period greater than 300
days and less than 401 days; and
(iv) the number of requests for records to
which the agency has responded with a
determination within a period greater than 400
days;
(H) the average number of days for the agency to
provide the granted information beginning on the date
on which the request was originally filed, the median
number of days for the agency to provide the granted
information, and the range in number of days for the
agency to provide the granted information;
(I) the median and average number of days for the
agency to respond to administrative appeals based on
the date on which the appeals originally were received
by the agency, the highest number of business days
taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by
the agency to respond to an administrative appeal;
(J) data on the 10 active requests with the earliest
filing dates pending at each agency, including the
amount of time that has elapsed since each request was
originally received by the agency;
(K) data on the 10 active administrative appeals with
the earliest filing dates pending before the agency as
of September 30 of the preceding year, including the
number of business days that have elapsed since the
requests were originally received by the agency;
(L) the number of expedited review requests that are
granted and denied, the average and median number of
days for adjudicating expedited review requests, and
the number adjudicated within the required 10 days;
(M) the number of fee waiver requests that are
granted and denied, and the average and median number
of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency
for processing requests;
(O) the number of full-time staff of the agency
devoted to processing requests for records under this
section, and the total amount expended by the agency
for processing such requests;
(P) the number of times the agency denied a request
for records under subsection (c); and
(Q) the number of records that were made available
for public inspection in an electronic format under
subsection (a)(2).
(2) Information in each report submitted under paragraph (1)
shall be expressed in terms of each principal component of the
agency and for the agency overall.
(3) Each agency shall make each such report available for
public inspection in an electronic format. In addition, each
agency shall make the raw statistical data used in each report
available in a timely manner for public inspection in an
electronic format, which shall be made available--
(A) without charge, license, or registration
requirement;
(B) in an aggregated, searchable format; and
(C) in a format that may be downloaded in bulk.
(4) The Attorney General of the United States shall make each
report which has been made available by electronic means
available at a single electronic access point. The Attorney
General of the United States shall notify the Chairman and
ranking minority member of the Committee on Oversight and
Government Reform of the House of Representatives and the
Chairman and ranking minority member of the Committees on
Homeland Security and Governmental Affairs and the Judiciary of
the Senate, no later than March 1 of the year in which each
such report is issued, that such reports are available by
electronic means.
(5) The Attorney General of the United States, in
consultation with the Director of the Office of Management and
Budget, shall develop reporting and performance guidelines in
connection with reports required by this subsection by October
1, 1997, and may establish additional requirements for such
reports as the Attorney General determines may be useful.
(6)(A) The Attorney General of the United States shall submit
to the Committee on Oversight and Government Reform of the
House of Representatives, the Committee on the Judiciary of the
Senate, and the President a report on or before March 1 of each
calendar year, which shall include for the prior calendar
year--
(i) a listing of the number of cases arising under
this section;
(ii) a listing of--
(I) each subsection, and any exemption, if
applicable, involved in each case arising under
this section;
(II) the disposition of each case arising
under this section; and
(III) the cost, fees, and penalties assessed
under subparagraphs (E), (F), and (G) of
subsection (a)(4); and
(iii) a description of the efforts undertaken by the
Department of Justice to encourage agency compliance
with this section.
(B) The Attorney General of the United States shall make--
(i) each report submitted under subparagraph (A)
available for public inspection in an electronic
format; and
(ii) the raw statistical data used in each report
submitted under subparagraph (A) available for public
inspection in an electronic format, which shall be made
available--
(I) without charge, license, or registration
requirement;
(II) in an aggregated, searchable format; and
(III) in a format that may be downloaded in
bulk.
(f) For purposes of this section, the term--
(1) ``agency'' as defined in section 551(1) of this
title includes any executive department, military
department, Government corporation, Government
controlled corporation, or other establishment in the
executive branch of the Government (including the
Executive Office of the President), or any independent
regulatory agency; and
(2) ``record'' and any other term used in this
section in reference to information includes--
(A) any information that would be an agency
record subject to the requirements of this
section when maintained by an agency in any
format, including an electronic format; and
(B) any information described under
subparagraph (A) that is maintained for an
agency by an entity under Government contract,
for the purposes of records management.
(g) The head of each agency shall prepare and make available
for public inspection in an electronic format, reference
material or a guide for requesting records or information from
the agency, subject to the exemptions in subsection (b),
including--
(1) an index of all major information systems of the
agency;
(2) a description of major information and record
locator systems maintained by the agency; and
(3) a handbook for obtaining various types and
categories of public information from the agency
pursuant to chapter 35 of title 44, and under this
section.
(h)(1) There is established the Office of Government
Information Services within the National Archives and Records
Administration. The head of the Office shall be the Director of
the Office of Government Information Services.
(2) The Office of Government Information Services shall--
(A) review policies and procedures of administrative
agencies under this section;
(B) review compliance with this section by
administrative agencies; and
(C) identify procedures and methods for improving
compliance under this section.
(3) The Office of Government Information Services shall offer
mediation services to resolve disputes between persons making
requests under this section and administrative agencies as a
nonexclusive alternative to litigation and may issue advisory
opinions at the discretion of the Office or upon request of any
party to a dispute.
(4)(A) Not less frequently than annually, the Director of the
Office of Government Information Services shall submit to the
Committee on Oversight and Government Reform of the House of
Representatives, the Committee on the Judiciary of the Senate,
and the President--
(i) a report on the findings of the information
reviewed and identified under paragraph (2);
(ii) a summary of the activities of the Office of
Government Information Services under paragraph (3),
including--
(I) any advisory opinions issued; and
(II) the number of times each agency engaged
in dispute resolution with the assistance of
the Office of Government Information Services
or the FOIA Public Liaison; and
(iii) legislative and regulatory recommendations, if
any, to improve the administration of this section.
(B) The Director of the Office of Government Information
Services shall make each report submitted under subparagraph
(A) available for public inspection in an electronic format.
(C) The Director of the Office of Government Information
Services shall not be required to obtain the prior approval,
comment, or review of any officer or agency of the United
States, including the Department of Justice, the Archivist of
the United States, or the Office of Management and Budget
before submitting to Congress, or any committee or subcommittee
thereof, any reports, recommendations, testimony, or comments,
if such submissions include a statement indicating that the
views expressed therein are those of the Director and do not
necessarily represent the views of the President.
(5) The Director of the Office of Government Information
Services may directly submit additional information to Congress
and the President as the Director determines to be appropriate.
(6) Not less frequently than annually, the Office of
Government Information Services shall conduct a meeting that is
open to the public on the review and reports by the Office and
shall allow interested persons to appear and present oral or
written statements at the meeting.
(i) The Government Accountability Office shall conduct audits
of administrative agencies on the implementation of this
section and issue reports detailing the results of such audits.
(j)(1) Each agency shall designate a Chief FOIA Officer who
shall be a senior official of such agency (at the Assistant
Secretary or equivalent level).
(2) The Chief FOIA Officer of each agency shall, subject to
the authority of the head of the agency--
(A) have agency-wide responsibility for efficient and
appropriate compliance with this section;
(B) monitor implementation of this section throughout
the agency and keep the head of the agency, the chief
legal officer of the agency, and the Attorney General
appropriately informed of the agency's performance in
implementing this section;
(C) recommend to the head of the agency such
adjustments to agency practices, policies, personnel,
and funding as may be necessary to improve its
implementation of this section;
(D) review and report to the Attorney General,
through the head of the agency, at such times and in
such formats as the Attorney General may direct, on the
agency's performance in implementing this section;
(E) facilitate public understanding of the purposes
of the statutory exemptions of this section by
including concise descriptions of the exemptions in
both the agency's handbook issued under subsection (g),
and the agency's annual report on this section, and by
providing an overview, where appropriate, of certain
general categories of agency records to which those
exemptions apply;
(F) offer training to agency staff regarding their
responsibilities under this section;
(G) serve as the primary agency liaison with the
Office of Government Information Services and the
Office of Information Policy; and
(H) designate 1 or more FOIA Public Liaisons.
(3) The Chief FOIA Officer of each agency shall review, not
less frequently than annually, all aspects of the
administration of this section by the agency to ensure
compliance with the requirements of this section, including--
(A) agency regulations;
(B) disclosure of records required under paragraphs
(2) and (8) of subsection (a);
(C) assessment of fees and determination of
eligibility for fee waivers;
(D) the timely processing of requests for information
under this section;
(E) the use of exemptions under subsection (b); and
(F) dispute resolution services with the assistance
of the Office of Government Information Services or the
FOIA Public Liaison.
(k)(1) There is established in the executive branch the Chief
FOIA Officers Council (referred to in this subsection as the
``Council'').
(2) The Council shall be comprised of the following members:
(A) The Deputy Director for Management of the Office
of Management and Budget.
(B) The Director of the Office of Information Policy
at the Department of Justice.
(C) The Director of the Office of Government
Information Services.
(D) The Chief FOIA Officer of each agency.
(E) Any other officer or employee of the United
States as designated by the Co-Chairs.
(3) The Director of the Office of Information Policy at the
Department of Justice and the Director of the Office of
Government Information Services shall be the Co-Chairs of the
Council.
(4) The Administrator of General Services shall provide
administrative and other support for the Council.
(5)(A) The duties of the Council shall include the following:
(i) Develop recommendations for increasing compliance
and efficiency under this section.
(ii) Disseminate information about agency
experiences, ideas, best practices, and innovative
approaches related to this section.
(iii) Identify, develop, and coordinate initiatives
to increase transparency and compliance with this
section.
(iv) Promote the development and use of common
performance measures for agency compliance with this
section.
(B) In performing the duties described in subparagraph (A),
the Council shall consult on a regular basis with members of
the public who make requests under this section.
(6)(A) The Council shall meet regularly and such meetings
shall be open to the public unless the Council determines to
close the meeting for reasons of national security or to
discuss information exempt under subsection (b).
(B) Not less frequently than annually, the Council shall hold
a meeting that shall be open to the public and permit
interested persons to appear and present oral and written
statements to the Council.
(C) Not later than 10 business days before a meeting of the
Council, notice of such meeting shall be published in the
Federal Register.
(D) Except as provided in subsection (b), the records,
reports, transcripts, minutes, appendices, working papers,
drafts, studies, agenda, or other documents that were made
available to or prepared for or by the Council shall be made
publicly available.
(E) Detailed minutes of each meeting of the Council shall be
kept and shall contain a record of the persons present, a
complete and accurate description of matters discussed and
conclusions reached, and copies of all reports received,
issued, or approved by the Council. The minutes shall be
redacted as necessary and made publicly available.
(l) FOIA Public Liaisons shall report to the agency Chief
FOIA Officer and shall serve as supervisory officials to whom a
requester under this section can raise concerns about the
service the requester has received from the FOIA Requester
Center, following an initial response from the FOIA Requester
Center Staff. FOIA Public Liaisons shall be responsible for
assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
(m)(1) The Director of the Office of Management and Budget,
in consultation with the Attorney General, shall ensure the
operation of a consolidated online request portal that allows a
member of the public to submit a request for records under
subsection (a) to any agency from a single website. The portal
may include any additional tools the Director of the Office of
Management and Budget finds will improve the implementation of
this section.
(2) This subsection shall not be construed to alter the power
of any other agency to create or maintain an independent online
portal for the submission of a request for records under this
section. The Director of the Office of Management and Budget
shall establish standards for interoperability between the
portal required under paragraph (1) and other request
processing software used by agencies subject to this section.
(n) The Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation shall comply with agency
requirements under this section during any period such
enterprise is under conservatorship or receivership pursuant to
section 1367 of the Federal Housing Enterprises Financial
Safety and Soundness Act of 1992 (12 U.S.C. 4617).
* * * * * * *
ADDITIONAL VIEWS
Fannie Mae and Freddie Mac should be transparent and
accountable. Congress and taxpayers have a right to information
about these entities. There are issues, however, that the
Committee must work out before this bill goes to the floor for
a vote.
The Freedom of Information Act (FOIA) applies to government
agencies. The law imposes a number of requirements that make
sense in the context of an agency but that may not make sense
in the context of private companies.
A report issued in 2011 by the Congressional Research
Service raised several issues that Congress should consider
before applying FOIA to Fannie Mae and Freddie Mac. For
example, CRS stated:
One basic consideration is that FOIA currently
applies only to executive branch government agencies
and certain other government entities, including the
U.S. Postal Service. Only one private company, Amtrak,
has been required to implement FOIA. . . . As part of
the government, agencies are subject to many other
laws, regulations, policies, and executive orders that
require formalized methods of recordkeeping and public
access. These requirements--which include the
rulemaking process, open meetings requirements, and
records maintenance--would add time and costs to GSE
operations and have not historically been required of
Fannie Mae and Freddie Mac.\1\
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\1\Congressional Research Service, Fannie Mae, Freddie Mac, and
FOIA: Information Access Policy for the Government Sponsored
Enterprises (Nov. 10, 2011) (R42080).
The Federal Housing Finance Agency also raised concerns to
the Committee, including whether and when Fannie Mae and
Freddie Mac would be able to use (1) exemption 4 under FOIA,
which protects ``trade secrets and commercial or financial
information obtained from a person,'' or (2) exemption 8 under
FOIA, which protects records related to financial institutions.
The Committee, if it is to act responsibly, must carefully
consider and address these issues.
Elijah E. Cummings,
Ranking Member.
[all]