Pub.L. 104-232 To provide for the extension of the Parole Commission to oversee cases of prisoners sentenced under prior law, to reduce the size of the Parole Commission, and for other purposes. <> ...

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[[Page 3047]]

        ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996

[[Page 110 STAT. 3048]]

Public Law 104-231
104th Congress

                                 An Act


 
To amend section 552 of title 5, United States Code, popularly known as 
    the Freedom of Information Act, to provide for public access to 
           information in an electronic format, and for other 
            purposes. <<NOTE: Oct. 2, 1996 -  [H.R. 3802]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Electronic Freedom of 
Information Act Amendments of 1996. Records. 5 USC 552 
note.>> assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Electronic Freedom of Information Act 
Amendments of 1996''.

SEC. 2. <<NOTE: 5 USC 552 note.>> FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that--
            (1) the purpose of section 552 of title 5, United States 
        Code, popularly known as the Freedom of Information Act, is to 
        require agencies of the Federal Government to make certain 
        agency information available for public inspection and copying 
        and to establish and enable enforcement of the right of any 
        person to obtain access to the records of such agencies, subject 
        to statutory exemptions, for any public or private purpose;
            (2) since the enactment of the Freedom of Information Act in 
        1966, and the amendments enacted in 1974 and 1986, the Freedom 
        of Information Act has been a valuable means through which any 
        person can learn how the Federal Government operates;
            (3) the Freedom of Information Act has led to the disclosure 
        of waste, fraud, abuse, and wrongdoing in the Federal 
        Government;
            (4) the Freedom of Information Act has led to the 
        identification of unsafe consumer products, harmful drugs, and 
        serious health hazards;
            (5) Government agencies increasingly use computers to 
        conduct agency business and to store publicly valuable agency 
        records and information; and
            (6) Government agencies should use new technology to enhance 
        public access to agency records and information.

    (b) Purposes.--The purposes of this Act are to--
            (1) foster democracy by ensuring public access to agency 
        records and information;
            (2) improve public access to agency records and information;
            (3) ensure agency compliance with statutory time 
        limits; and

[[Page 110 STAT. 3049]]

            (4) maximize the usefulness of agency records and 
        information collected, maintained, used, retained, and 
        disseminated by the Federal Government.

SEC. 3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.

    Section 552(f) of title 5, United States Code, is amended to read as 
follows:
    ``(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 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.''.

SEC. 4. INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEXATION 
            OF RECORDS.

    Section 552(a)(2) of title 5, United States Code, is amended--
            (1) in the second sentence, by striking ``or staff manual or 
        instruction'' and inserting ``staff manual, instruction, or 
        copies of records referred to in subparagraph (D)'';
            (2) by inserting before the period at the end of the third 
        sentence the following: ``, 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'';
            (3) by inserting after the third sentence the following: 
        ``If technically feasible, the extent of the deletion shall be 
        indicated at the place in the record where the deletion was 
        made.'';
            (4) in subparagraph (B), by striking ``and'' after the 
        semicolon;
            (5) by inserting after subparagraph (C) the following:
            ``(D) copies of all records, regardless of form or format, 
        which have been released to any person under paragraph (3) and 
        which, 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; and
            ``(E) a general index of the records referred to under 
        subparagraph (D);'';
            (6) <<NOTE: Availability date.>> by inserting after the 
        fifth sentence the following: ``Each agency shall make the index 
        referred to in subparagraph (E) available by computer 
        telecommunications by December 31, 1999.''; and
            (7) <<NOTE: Availability date.>> by inserting after the 
        first sentence the following: ``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.''.

[[Page 110 STAT. 3050]]

SEC. 5. HONORING FORM OR FORMAT REQUESTS.

    Section 552(a)(3) of title 5, United States Code, is amended--
            (1) by inserting ``(A)'' after ``(3)'';
            (2) by striking ``(A)'' the second place it appears and 
        inserting ``(i)'';
            (3) by striking ``(B)'' and inserting ``(ii)''; and
            (4) by adding at the end the following new subparagraphs:

    ``(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.''.

SEC. 6. STANDARD FOR JUDICIAL REVIEW.

    Section 552(a)(4)(B) of title 5, United States Code, is amended by 
adding at the end the following new sentence: ``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).''.

SEC. 7. ENSURING TIMELY RESPONSE TO REQUESTS.

    (a) Multitrack Processing.--Section 552(a)(6) of title 5, United 
States Code, is amended by adding at the end the following new 
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.''.
    (b) Unusual Circumstances.--Section 552(a)(6)(B) of title 5, United 
States Code, is amended to read as follows:
    ``(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.

[[Page 110 STAT. 3051]]

    ``(ii) <<NOTE: Notification.>> 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).

    ``(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) Exceptional Circumstances.--Section 552(a)(6)(C) of title 5, 
United States Code, is amended by inserting ``(i)'' after ``(C)'', and 
by adding at the end the following new clauses:
    ``(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.''.

SEC. 8. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.

    (a) Expedited Processing.--Section 552(a)(6) of title 5, United 
States Code (as amended by section 7(a) of this Act), is further amended 
by adding at the end the following new subparagraph:
    ``(E)(i) <<NOTE: Regulations.>> Each agency shall promulgate 
regulations, pursuant to notice and receipt of public comment, providing 
for expedited processing of requests for records--

[[Page 110 STAT. 3052]]

            ``(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) <<NOTE: Notification.>> 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. <<NOTE: Courts.>> 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) <<NOTE: Certification.>> 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.''.

    (b) Extension of General Period for Determining Whether To Comply 
With a Request.--Section 552(a)(6)(A)(i) of title 5, United States Code, 
is amended by striking ``ten days'' and inserting ``20 days''.
    (c) Estimation of Matter Denied.--Section 552(a)(6) of title 5, 

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