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15 FOIA Update 1 (1994)

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U.S. Department of Justice
Office of Information and Privacy

Vol. XV, No. 1
   Winter 1994

                FOTA UPDATE

Senate FOTA Bill Reintroduced

    A legislative proposal to amend the Freedom of Infor-
mation Act in a number of important procedural respects has
been reintroduced in the United States Senate and is expect-
ed 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 Freedom of Information Improvement Act of
1993, which addresses both electronic record FOIA is-
sues and the longstanding problem area of backlogs of FOIA
requests under the Act.
    This current FOIA amendment bill is substantially ident-
ical 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 revi-
sions 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
    Toward that end, S. 1782 would define the term rec-
ord under the Act--for the first time--to specifically include
computer programs and all related electronic information
• . . regardless of physical form or characteristics. Like-
wise, 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

       Legislative Update

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.
              Backlog-Related Provisions
    Most of the other provisions of S. 1782 relate to diffi-
culties in meeting the Act's time limits and to the problem
of FOIA backlogs at many agencies. The bill would author-
ize courts to award FOIA requesters both out-of-pocket ex-
penses and reasonable attorneys fees incurred at the admin-
istrative 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 and would 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 Subcom-
mittee on Technology and the Law, which is chaired by
Senator Leahy. No subcommittee hearing on S. 1782 is an-
ticipated, 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.

The four center pages of this issue of FOIA Update con-
tain an updated list of the principal FOIA administrative
and legal contacts at federal agencies. (Multiple changes
for components of the Department of Defense should par-
ticularly be noted.)

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