Congressional Documents
                                                       Calendar No. 406
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-272
_______________________________________________________________________


 
       ELECTRONIC FREEDOM OF INFORMATION IMPROVEMENT ACT OF 1995

                                _______


                  May 15, 1996.--Ordered to be printed

Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1090]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1090) to amend title 5, United States Code, section 
552, commonly called the Freedom of Information Act, to provide 
for public access to information in an electronic format, and 
for other purposes, having considered the same, reports 
favorably thereon and recommends that the bill, as amended, do 
pass.

                                CONTENTS

                                                                   Page
  I. Explanation of amendment.........................................4
 II. Purpose..........................................................5
III. Legislative history..............................................5
 IV. Vote of the committee............................................6
  V. Discussion.......................................................6
 VI. Detailed discussion of the bill..................................9
VII. Regulatory impact statement.....................................20
VIII.Cost estimate...................................................20

 IX. Additional views of Senator Leahy...............................23
  X. Changes in existing law.........................................33

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that--
          (1) the purpose of 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
          (4) maximize the usefulness of agency records and information 
        collected, maintained, used, retained, and disseminated by the 
        Federal Government.

SEC. 3. PUBLIC INFORMATION AVAILABILITY.

  Section 552(a)(1) of title 5, United States Code, is amended--
          (1) in the matter before subparagraph (A) by inserting 
        ``including by computer telecommunications, or if computer 
        telecommunications means are not available, by other electronic 
        means,'' after ``Federal Register'';
          (2) by striking out ``and'' at the end of subparagraph (D);
          (3) by redesignating subparagraph (E) as subparagraph (F); 
        and
          (4) by inserting after subparagraph (D) the following new 
        subparagraph:
          ``(E) a complete list of all statutes that the agency head or 
        general counsel relies upon to authorize the agency to withhold 
        information under subsection (b)(3) of this section, together 
        with a specific description of the scope of the information 
        covered; and''.

SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEX OF 
                    RECORDS MADE AVAILABLE TO THE PUBLIC.

  Section 552(a)(2) of title 5, United States Code, is amended--
          (1) in the matter before subparagraph (A) by inserting ``, 
        including, within 1 year after the date of the enactment of the 
        Electronic Freedom of Information Improvement Act of 1996, by 
        computer telecommunications, or if computer telecommunications 
        means are not available, by other electronic means,'' after 
        ``copying'';
          (2) in subparagraph (B) by striking out ``and'' after the 
        semicolon;
          (3) by adding after subparagraph (C) the following new 
        subparagraphs:
                  ``(D) an index of all major information systems 
                containing agency records regardless of form or format 
                unless such an index is provided as otherwise required 
                by law;
                  ``(E) a description of any new major information 
                system with a statement of how such system shall 
                enhance agency operations under this section;
                  ``(F) an index of all records which are made 
                available to any person under paragraph (3) of this 
                subsection; and
                  ``(G) copies of all records, regardless of form or 
                format, which because of the nature of their subject 
                matter, have become or are likely to become the subject 
                of subsequent requests for substantially the same 
                records under paragraph (3) of this subsection;'';
          (4) in the second sentence by striking out ``or staff manual 
        or instruction'' and inserting in lieu thereof ``staff manual, 
        instruction, or index or copies of records, which are made 
        available under paragraph (3) of this subsection''; and
          (5) in the third sentence by inserting ``and the extent of 
        such deletion shall be indicated on the portion of the record 
        which is made available or published at the place in the record 
        where such deletion was made'' after ``explained fully in 
        writing''.

SEC. 5. HONORING FORMAT REQUESTS.

  Section 552(a)(3) of title 5, United States Code, is amended by--
          (1) inserting ``(A)'' after ``(3)'';
          (2) inserting ``(A) through (F)'' after ``under paragraphs 
        (1) and (2)'';
          (3) striking out ``(A) reasonably'' and inserting in lieu 
        thereof ``(i) reasonably'';
          (4) striking out ``(B)'' and inserting in lieu thereof 
        ``(ii)''; and
          (5) adding at the end thereof the following new 
        subparagraphs:
          ``(B) An agency shall, as requested by any person, provide 
        records in any form or format in which such records are 
        maintained by that agency.
          ``(C) An agency shall make reasonable efforts to search for 
        records in electronic form or format and provide records in the 
        form or format requested by any person, including in an 
        electronic form or format, even where such records are not 
        usually maintained but are available in such form or format.''.

SEC. 6. DELAYS.

  (a) Fees.--Section 552(a)(4)(A) of title 5, United States Code, is 
amended by adding at the end thereof the following new clause:
  ``(viii) If at an agency's request, the Comptroller General 
determines that the agency annually has either provided responsive 
documents or denied requests in substantial compliance with the 
requirements of paragraph (6)(A), one-half of the fees collected under 
this section shall be credited to the collecting agency and expended to 
offset the costs of complying with this section through staff 
development and acquisition of additional request processing resources. 
The remaining fees collected under this section shall be remitted to 
the Treasury as general funds or miscellaneous receipts.''.
  (b) Demonstration of Circumstances for Delay.--Section 552(a)(4)(E) 
of title 5, United States Code, is amended--
          (1) by inserting ``(i)'' after ``(E)''; and
          (2) by adding at the end thereof the following new clause:
          ``(ii) Any agency not in compliance with the time limits set 
        forth in this subsection shall demonstrate to a court that the 
        delay is warranted under the circumstances set forth under 
        paragraph (6) (B) or (C) of this subsection.''.
  (c) Period for Agency Decision To Comply With Request.--Section 
552(a)(6)(A)(i) is amended by striking out ``ten days'' and inserting 
in lieu thereof ``twenty days''.
  (d) Agency Backlogs.--Section 552(a)(6)(C) of title 5, United States 
Code, is amended by inserting after the second sentence the following: 
``As used in this subparagraph, for requests submitted pursuant to 
paragraph (3) after the date of the enactment of the Electronic Freedom 
of Information Improvement Act of 1996, the term `exceptional 
circumstances' means circumstances that are unforeseen and shall not 
include delays that result from a predictable workload, including any 
ongoing agency backlog, in the ordinary course of processing requests 
for records.''.
  (e) Notification of Denial.--The last sentence of section 
552(a)(6)(C) of title 5, United States Code, is amended to read: ``Any 
notification of any full or partial 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 and the total 
number of denied records and pages considered by the agency to have 
been responsive to the request.''.
  (f) Multitrack FIFO Processing and Expedited Access.--Section 
552(a)(6) of title 5, United States Code, is amended by adding at the 
end thereof the following new subparagraphs:
          ``(D)(i) Each agency shall adopt a first-in, first-out 
        (hereafter in this subparagraph referred to as FIFO) processing 
        policy in determining the order in which requests are 
        processed. The agency may establish separate processing tracks 
        for simple and complex requests using FIFO processing within 
        each track.
          ``(ii) For purposes of such a multitrack system--
                  ``(I) a simple request shall be a request requiring 
                10 days or less to make a determination on whether to 
                comply with such a request; and
                  ``(II) a complex request shall be a request requiring 
                more than 10 days to make a determination on whether to 
                comply with such a request.
          ``(iii) A multitrack system shall not negate a claim of due 
        diligence under subparagraph (C), if FIFO processing within 
        each track is maintained and the agency can show that it has 
        reasonably allocated resources to handle the processing for 
        each track.
          ``(E)(i) Each agency shall promulgate regulations, pursuant 
        to notice and receipt of public comment, providing that upon 
        receipt of a request for expedited access to records and a 
        showing by the person making such request of a compelling need 
        for expedited access to records, the agency determine within 10 
        days (excepting Saturdays, Sundays, and legal public holidays) 
        after the receipt of such a request, whether to comply with 
        such request. A request for records to which the agency has 
        granted expedited access shall be processed as soon as 
        practicable. A request for records to which the agency has 
        denied expedited access shall be processed within the time 
        limits under paragraph (6) of this subsection.
          ``(ii) A person whose request for expedited access has not 
        been decided within 10 days of its receipt by the agency or has 
        been denied shall be required to exhaust administrative 
        remedies. A request for expedited access which has not been 
        decided may be appealed to the head of the agency within 15 
        days (excepting Saturdays, Sundays, and legal public holidays) 
        after its receipt by the agency. A request for expedited access 
        that has been denied by the agency may be appealed to the head 
        of the agency within 5 days (excepting Saturdays, Sundays, and 
        legal public holidays) after the person making such request 
        receives notice of the agency's denial. If an agency head has 
        denied, affirmed a denial, or failed to respond to a timely 
        appeal of a request for expedited access, a court which would 
        have jurisdiction of an action under paragraph (4)(B) of this 
        subsection may, upon complaint, require the agency to show 
        cause why the request for expedited access should not be 
        granted, except that such review shall be limited to the record 
        before the agency.
          ``(iii) The burden of demonstrating a compelling need by a 
        person making a request for expedited access may be met by a 
        showing, which such person certifies under penalty of perjury 
        to be true and correct to the best of such person's knowledge 
        and belief, that failure to obtain the requested records within 
        the timeframe for expedited access under this paragraph would--
                  ``(I) threaten an individual's life or safety;
                  ``(II) result in the loss of substantial due process 
                rights and the information sought is not otherwise 
                available in a timely fashion; or
                  ``(III) affect public assessment of the nature and 
                propriety of actual or alleged governmental actions 
                that are the subject of widespread, contemporaneous 
                media coverage.''.

SEC. 7. COMPUTER REDACTION.

  Section 552(b) of title 5, United States Code, is amended by 
inserting before the period in the sentence following paragraph (9) the 
following: ``, and the extent of such deletion shall be indicated on 
the released portion of the record at the place in the record where 
such deletion was made''.

SEC. 8. DEFINITIONS.

  Section 552(f) of title 5, United States Code, is amended to read as 
follows:
  ``(f) For purposes of this section--
          ``(1) the term `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;
          ``(2) the term `record' means all books, papers, maps, 
        photographs, machine-readable materials, or other information 
        or documentary materials, regardless of physical form or 
        characteristics, but does not include--
                  ``(A) library and museum material acquired or 
                received and preserved solely for reference or 
                exhibition purposes;
                  ``(B) extra copies of documents preserved solely for 
                convenience of reference;
                  ``(C) stocks of publications and of processed 
                documents; or
                  ``(D) computer software which is obtained by an 
                agency under a licensing agreement prohibiting its 
                replication or distribution; and
          ``(3) the term `search' means a manual or automated review of 
        agency records that is conducted for the purpose of locating 
        those records which are responsive to a request under 
        subsection (a)(3)(A) of this section.''.

                      I. Explanation of Amendment

    Inasmuch as all of the text of S. 1090 after the enacting 
clause was stricken and new language was incorporated as a 
single amendment, the contents of this report constitute an 
explanation of the amendment made by the Committee on the 
Judiciary.

                              II. Purpose

    The Freedom of Information Act (FOIA) makes Government 
information available, with certain exceptions, to anyone who 
requests it. The statute is consistent with our democratic form 
of government by furthering the interests of citizens in 
knowing what their Government is doing.
    Over the 30 years of its existence, the FOIA has led to 
numerous disclosures of waste and fraud in the Government. 
Today, the FOIA is in the midst of a new challenge. The 
phenomenon of Federal executive department and agency records 
being produced and retained in electronic formats has grown at 
a fast rate during the past several years as Government use of 
personal computers and digital storage media, such as CD-ROM's 
(compact disk read-only memory), has become more widespread. 
Agency records are no longer created exclusively on pieces of 
paper and placed in filing cabinets. Computers make it easier 
and more efficient to manage the tremendous amount of 
information collected, stored, and used by the Government.
    The FOIA was created at a time when agency records were 
predominantly produced on paper. The efficient operation of the 
FOIA requires that the form or format of an agency record 
constitutes no impediment to the public accessibility of 
requested information. Furthermore, the electronic information 
technology currently being used by executive departments and 
agencies should be applied in a manner that promotes efficiency 
in responding to FOIA requests. This objective includes using 
technology to provide requesters with information in the form 
most useful to them.
    An underlying goal of S. 1090 is to encourage electronic 
access to Government information available under the FOIA, 
including requests made pursuant to section 552(a)(3). This 
shall make it easier for citizens to access Government 
information on a timely basis, and shall further efficient 
Government agency compliance with the FOIA.
    S. 1090, the Electronic Freedom of Information Improvement 
Act of 1996, amends the FOIA to address these considerations 
and other information access issues prompted by the electronic 
information phenomenon.

                        III. Legislative History

    A bill to clarify the application of the FOIA to agency 
records in electronic forms or formats, S. 1940, the Electronic 
Freedom of Information Improvement Act of 1991, was introduced 
by Senator Patrick Leahy for himself and Senator Hank Brown on 
November 7, 1991. It was referred to the Committee on the 
Judiciary, and a hearing on the bill was held by the 
Subcommittee on Technology and the Law on April 30, 1992.
    Testifying before the Subcommittee was Steven R. 
Schlesinger, Director, Office of Policy Development, Department 
of Justice, accompanied by Daniel Metcalfe, Co-director, Office 
of Information and Privacy, Department of Justice. The 
Subcommittee also received testimony from a panel of witnesses, 
which included Peter Prichard, editor, USA Today, appearing on 
behalf of the American Newspaper Publishers Association, 
American Society of Newspaper Editors, Society of Professional 
Journalists/Sigma Delta Chi, National Newspaper Association, 
National Association of Broadcasters, Radio-Television News 
Directors Association, and Reporters Committee for Freedom of 
the Press; Scott Marshall, director, Governmental Relations 
Department, American Foundation for the Blind; Sybil McShane, 
director of Library and Information Services, Vermont State 
Department of Libraries; and Thomas M. Susman, a practicing 
attorney with Ropes & Gray, appearing on behalf of the American 
Bar Association.\1\ The Subcommittee took no further action on 
S. 1940 prior to the final adjournment of the 102d Congress.
---------------------------------------------------------------------------
    \1\ The Electronic Freedom of Information Improvement Act: Hearing 
before the Subcommittee on Technology and the Law of the Committee on 
the Judiciary, 102d Cong., 2d sess. (1992) (hereafter ``1992 
Hearing'').
---------------------------------------------------------------------------
    A related bill, S. 1939, the Freedom of Information 
Improvement Act of 1991, was also introduced by Senator Leahy 
on November 7, 1991. This bill contained amendments to the FOIA 
concerning matters other than agency records in electronic 
forms or formats. S. 1939 was also referred to the Committee on 
the Judiciary, but no action was taken on it during the 102d 
Congress.
    A slightly modified version of S. 1940 was introduced by 
Senator Leahy for himself and Senator Brown on November 22, 
1993, as S. 1782, the Electronic Freedom of Information 
Improvement Act of 1993. It was referred to the Committee on 
the Judiciary. Senator John Kerry of Massachusetts cosponsored 
the bill on April 11, 1994. A revised version of S. 1782 was 
unanimously approved by the Subcommittee on Technology and the 
Law on June 29, 1994, and by the Committee on the Judiciary on 
August 11, 1994. The bill then passed the Senate by unanimous 
consent on August 25, 1995. No further action on the bill was 
taken in the 103rd Congress.
    On July 28, 1995, Senators Leahy, Brown, and Kerry 
introduced S. 1090, the Electronic Freedom of Information 
Improvement Act of 1995, which varied slightly from the version 
passed by the Senate in the 103d Congress. S. 1090 was referred 
to the Committee on the Judiciary and, on October 6, 1995, to 
the Subcommittee on Terrorism, Technology and Government 
Information. The Subcommittee favorably reported the bill on 
March 14, 1996. Following consultation with the Office of 
Management and Budget, revisions were made to S.1090 in the 
form of a substitute amendment.

                       IV. Vote of the Committee

    On April 25, 1996, with a quorum present, by voice vote, 
the Committee on the Judiciary unanimously ordered the 
Committee substitute to S. 1090 favorably reported.

                             V. Discussion

    The FOIA was initially enacted in 1966 after many years of 
congressional committee examination of impediments to public 
access to information from the executive departments and 
agencies of the Federal Government.<SUP>2 The FOIA was first 
amended in 1974. The changes made by the amendments included 
requiring that a requester only ``reasonably describe'' the 
records being sought; allowing an agency to furnish documents 
without charge or at a reduced cost if it determined that such 
an action would be in the public interest; allowing a court to 
conduct an in camera review of contested materials to determine 
if they were being properly withheld; establishing specific 
response times for agency action; allowing a judge to award 
attorney fees and litigation costs where a private complainant 
had ``substantially prevailed'' in seeking records from an 
agency; prescribing that a court may take notice of ``arbitrary 
and capricious'' withholding of agency documents and require 
that a civil service investigation take place in order to 
determine if disciplinary action is warranted; expanding and 
clarifying the definition of agencies covered by the FOIA; and 
specifying that any record containing segregable portions of 
withholdable information shall be released with the necessary 
deletions. In addition, exemptions in the Act pertaining to 
classified information and law enforcement materials were 
narrowed and made more specific in terms of their application.
---------------------------------------------------------------------------
    \2\ House. Availability of Information From Federal Departments and 
Agencies: Hearings before the House Committee on Government Operations, 
84th-86th Congresses, U.S. Govt. Print. Off., 1956-1959.
---------------------------------------------------------------------------
    In 1976, when adopting another open government law--the 
Government in the Sunshine Act--Congress once again amended the 
FOIA.<SUP>3 The change was a limited one, prompted by a 1975 
decision of the Supreme Court, which broadly interpreted the 
types of information falling within the ambit of the third 
exemption of the FOIA.<SUP>4 The FOIA amendment contained in 
the Sunshine Act modified the third exemption to limit its 
application to information specifically excepted from 
disclosure by statutes mandating protection ``in such a manner 
as to leave no discretion on the issue'' or establishing 
particular criteria or referring to particular types of 
information to be withheld.<SUP>5
---------------------------------------------------------------------------
    \3\ For the legislative history of the Government in the Sunshine 
Act and its amendment to the FOI Act, see Senate Committee on 
Government Operations and House Committee on Government Operations. 
Government in the Sunshine Act--S. 5 (Public Law 94-409). Source Book: 
Legislative History, Texts, and Other Documents. Joint committee print, 
94th Congress, 2d ses. Washington, U.S. Govt. Print. Off., 1976.
    \4\ Administrator, Federal Aviation Administration v. Robertson, 
422 U.S. 255 (1975).
    \5\ 90 Stat. 1241, at 1247.
---------------------------------------------------------------------------
    Senate attempts to further amend the FOIA were unsuccessful 
during the 97th and 98th Congresses. In the closing days of the 
99th Congress, however, FOIA amendments were attached to an 
omnibus anti-drug abuse bill during Senate debate on the 
measure.<SUP>6 These amendments strengthened protection for law 
enforcement records and created new fee and fee waiver 
arrangements. Three categories of fees were established: for 
commercial users of the Act, for scholarly or scientific 
researchers and news media representatives, and for all other 
users. No fees were to be charged if the costs of routine 
collection and processing of the fee were likely to equal or 
exceed the amount of the fee or, in the case of requesters 
other than commercial users of the Act, for the first 2 hours 
of search time or for the first 100 pages of document 
duplication. In addition, records were to be furnished without 
charge or at a reduced charge if disclosure of the information 
was in the public interest because it was likely to contribute 
significantly to public understanding of the operations or 
activities of the Government and otherwise was not primarily in 
the commercial interest of the requester.
---------------------------------------------------------------------------
    \6\ See Harold C. Relyea. ``U.S. Freedom of Information Act 
Reforms--1986,'' 9 Journal of Media Law and Practice, 6-12 (March 
1988).
---------------------------------------------------------------------------
    The FOIA has become a popular tool used by various quarters 
of American society--the press, business, scholars, attorneys, 
consumers, and others. Recent agency annual reports on the 
administration of the Act, covering 1992 operations, indicate 
an annual volume of almost 600,000 requests. The response to a 
request may involve paper or, increasingly, information in an 
electronic format.
    In 1955, when congressional hearings laying the groundwork 
for the FOIA were held on the availability of information from 
Federal departments and agencies, the Federal Government had 45 
computers. Ten years later, when the Senate passed its version 
of the FOIA, the inventory had risen to 1,826 computers. Only 5 
years elapsed before the Government's holdings jumped to 5,277 
computers, resulting in hundreds of thousands of automated 
files and many data banks of agency records.<SUP>7
---------------------------------------------------------------------------
    \7\ Alan F. Westin and Michael A. Baker. Data banks in a Free 
Society. New York: Quadrangle Books, 1972, pp. 29-30.
---------------------------------------------------------------------------
    In succeeding years, the phenomenon of agency records being 
produced and retained in electronic formats grew at a highly 
expansive rate as Government use of personal computers and 
digital storage media, such as CD-ROMs (compact disk read-only 
memory), became more and more widespread.<SUP>8 In fiscal year 
1994, the Federal Government reportedly counted almost 25,250 
small computers (costing $10,000 to $100,000 each), 8,500 
medium computers (costing $100,000 to $1,000,000 each), and 890 
large computers (costing more than $1,000,000 each) in use. 
Personal computers had proliferated throughout the Federal 
executive establishment. In 1995, the General Services 
Administration had more than 19,300 PCS in its inventory, but 
only 16,700 employees.<SUP>9 The Social Security Administration 
was preparing to upgrade computer systems in 1,300 offices 
nationwide, installing 2,700 local area networks (LANs) and 
90,000 new desktop computers.<SUP>10 In a related development, 
during the past 3 years, more than 800 Federal sites have been 
set up on the World Wide Web.<SUP>11
---------------------------------------------------------------------------
    \8\ See House Committee on Government Operations. Electronic 
Collection and Dissemination of Information by Federal Agencies: A 
Policy Overview, H.R. Rept. No. 99-560, 99th Cong., 2d sess. (1986); 
U.S. Office of Technology Assessment. Informing the Nation: Federal 
Information Dissemination in an Electronic Age. Washington, DC. October 
1988.
    \9\ Kevin Pwer, ``GSA Calls for Halt in Buying New PCS,'' 14 
Government Computer News. 1 (Apr. 3, 1995).
    \10\ Ted Bunker, ``Reinventing Government,'' LAN Magazine. 158 
(October 1995).
    \11\ Lisa Corbin, ``Cyberocracy,'' 28 Government Executive. 12 ( 
January 1996).
---------------------------------------------------------------------------
    The FOIA should stay abreast of these developments to 
promote uniformity among agencies, minimize uncertainty among 
FOIA requesters, and avoid potential disagreements between the 
two. That is the principal purpose of S. 1090, the Electronic 
Freedom of Information Improvement Act of 1996.
    Certainly, innovations are underway to promote greater 
dissemination of Government information through an electronic 
information ``superhighway.'' <SUP>12 For example, the 104th 
Congress created the ``Thomas'' on-line service, providing 
access to numerous legislative resources, including the text of 
legislation and the Congressional Record. The U.S. Geological 
Survey has published data on the World Wide Web about rising 
rivers and potential flood conditions; the White House provides 
daily briefings and speeches on-line; and the Security and 
Exchange Commission's EDGAR system provides electronic access 
to corporate and financial data on American companies. Such 
laudable dissemination occurs on the initiative of Government 
officials, and the Paperwork Reduction Act of 1995 reflects 
congressional understanding that wider use of electronic 
dissemination has become an integral part of Government 
information activity. The FOIA provides access to Government 
information sought at the initiative of individuals. Government 
dissemination of more varieties and greater amounts of its 
information holdings via a ``superhighway'' may reduce the 
volume of FOIA requests, but in no way diminishes the need for 
the FOIA to embrace agency records regardless of their form or 
format.
---------------------------------------------------------------------------
    \12\ See U. S. Information Infrastructure Task Force, The National 
Information Infrastructure: Agenda for Action. Washington, DC. Sept. 
15, 1993; U.S. Information Infrastructure Task Force's Committee on 
Applications and Technology. Putting the Information Infrastructure to 
Work. Washington, DC, May 1994; U.S. Information Infrastructure Task 
Force's Committee on Applications and Technology, The Information 
Infrastructure: Reaching Society's Goals. Washington, DC, September 
1994; U.S. Advisory Council on the National Infrastructure. A Nation of 
Opportunity: Realizing the Promise of the Information Superhighway, 
Washington, DC, January 1996.
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                  VI. Detailed Discussion of the Bill

    The FOIA requires agencies to make different types of 
information available to the public through publication in the 
Federal Register, in public reading rooms, and in response to 
specific requests. The Electronic Freedom of Information 
Improvement Act of 1996, S. 1090 as amended, would enhance 
electronic access to, and expand the information forms or 
formats used in making each category of information available 
under the FOIA. The new requirements of these amendments are 
intended to apply prospectively from the date of enactment.

                              1. Findings

    Section 2, setting forth the findings and purposes of the 
bill, makes clear that the purpose of the FOIA is to require 
agencies of the Federal Government to make records available to 
the public through public inspection and upon the request of 
any person for any public or private use. The findings also 
cite the role of the FOIA in leading to the disclosure of 
information about Government operations and consumer health and 
safety. For example, in 1993, the FOIA was used to uncover 
human radiation experiments conducted under Government auspices 
in the decades after World War II. Press reports on these 
experiments prompted the Department of Energy to conduct a 
review for purposes of declassifying millions of pages of 
secret documents on the Government's past activities in this 
area.
    Finally, the findings acknowledge the increased use of 
computers by Federal agencies, and exhort agencies to use this 
technology to enhance public access.

                              2. Purposes

    The purposes of the bill are to ensure and improve public 
access to agency records and information, and maximize the 
usefulness of those records and information to the public.
    The bill is also intended to promote agency compliance with 
statutory time limits. Chronic delays in receiving responses to 
FOIA requests are the largest single complaint of persons using 
the FOIA to obtain Federal agency records and information.

                   3. Public Information Availability

    Section 3 of the bill amends 5 U.S.C. 552(a)(1) to require 
that the Federal Register be available not only in paper form, 
but also ``by computer telecommunications means,'' and, if such 
means are not available, the Federal Register must be available 
by alternative ``electronic means,'' such as CD-ROM or on disk. 
Agencies should strive to meet their responsibilities under 5 
U.S.C. 552(a)(1),and, to the maximum extent practicable, under 
5 U.S.C. 552(a)(2) as well, through electronic means.
    The Government Printing Office Electronic Information 
Access Enhancement Act of 1993 <SUP>13 (hereafter referred to 
as the ``GPO Access Act'') already requires the Superintendent 
of Documents to provide ``on-line access'' to the Congressional 
Record, the Federal Register, and certain other publications to 
the public.
---------------------------------------------------------------------------
    \13\ Public Law 103-40; 107 Stat. 112.
---------------------------------------------------------------------------
    The term ``computer telecommunications'' is meant to be 
synonymous with on-line access. This term was used by Congress 
in describing the obligations of the Environmental Protection 
Agency (EPA) to make its Toxic Release Inventory publicly 
available pursuant to the Emergency Planning and Community 
Right-to-Know Act, Title III of the Superfund Amendments 
Reauthorization Act of 1986.<SUP>14 Although neither that Act 
nor its legislative history defines the term, the Environmental 
Protection Agency has understood and implemented its duty in 
terms of providing public on-line access to its database. The 
Paperwork Reduction Act of 1995 reflects congressional intent 
generally that wider use of electronic dissemination is an 
integral part of Government information activity.
---------------------------------------------------------------------------
    \14\ Public Law 99-499; 100 Stat. 1728.
---------------------------------------------------------------------------
    The FOIA currently requires that each agency publish in the 
Federal Register, ``for the guidance of the public,'' such 
information as descriptions of its organization, from whom, and 
methods whereby, the public may obtain information, and 
statements of general policy. The bill would require agencies 
also to publish in the Federal Register a complete list of 
statutes which require the agency to withhold information under 
5 U.S.C. 552(b)(3), along with a specific description of the 
scope of the information covered.
    This section 3 requirement would serve an informational and 
notice function for the public regarding claimed agency 
withholding authorities. In addition, this provision would 
assist congressional oversight to insure that (b)(3) 
withholding exemptions are not abused. This provision in no way 
prohibits an agency from relying on a statute, where 
appropriate, to withhold records or information. Nor would this 
provision prevent an agency from relying on an unlisted statute 
to deny information in appropriate cases.

            4. Materials Made Available In Electronic Format

    Section 4 of the bill would make it easier to identify and 
locate agency records and would enhance electronic access to 
the information which an agency must ``make available for 
public inspection and copying'' under 5 U.S.C. 552(a)(2). 
Agencies are already encouraged to establish public reading 
rooms to facilitate the availability of materials to the 
public. Agencies should strive to make information available 
through electronic means wherever practicable, and the bill 
promotes this goal for those records subject to the FOIA. 
Public access to agency records and information should be 
enhanced through electronic means.
    Under section 4 of the bill, materials required to be 
publicly available under 552(a)(2) must be made available, 
within 1 year of enactment, ``by computer telecommunications,'' 
as well as in hard copy. If an agency cannot make these 
materials available by computer telecommunications, then the 
materials should be made available in some other electronic 
form, such as CD-ROM or on disk. The bill thus treats materials 
required to be disclosed pursuant to 5 U.S.C. 552 (a)(2) in the 
same manner as it treats (a)(1) materials, which are required 
to be published in the Federal Register and, under the GPO 
Access Act, to be made available to the public electronically.
    The implementation of the electronic access requirements 
for 552(a)(2) material is deferred for 1 year to allow agencies 
time to arrange compliance. Deferred implementation is not 
provided in section 3 of the bill for materials required to be 
disclosed pursuant to 5 U.S.C. 552(a)(1), since agencies 
already have an obligation to make this information available 
electronically on-line under the GPO Access Act.

        5. Indices and Descriptions of Major Information Systems

    Three categories of materials are currently required to be 
made available under 5 U.S.C. 552(a)(2): final opinions and 
orders made in adjudicated cases, agency policies and 
interpretations which are not published in the Federal 
Register, and administrative staff manuals and instructions to 
staff that affect a member of the public.
    Section 4 of the bill would expand these categories of 
materials and require agencies to make available for public 
inspection and copying, in the same manner as other materials 
made available under 5 U.S.C. 552(a)(2), an index of all major 
information systems containing agency records, unless such an 
index is already made publicly available as otherwise required 
by law. Such an index shall help the public locate and access 
information held by particular agencies.
    Requiring on-line access to an index of major information 
systems is fully consistent with the requirement of the 
Paperwork Reduction Act of 1995 and revised guidelines in OMB 
Circular A-130, which provide uniform government-wide 
information management policies. Specifically, 44 U.S.C. S.3506 
and section 8a(5)(d)(iv) of the Circular A-130, July 15, 1994, 
direct agencies to assist the public in finding Government 
information. Agencies may accomplish this by specifying and 
disseminating ``locator'' information about the content, 
format, uses, limitations, location and means of access 
associated with particular records.
    This requirement would also supplement the Government 
Information Locator Service (GILS) identifying public 
information resources throughout the Federal Government, 
describing the information available in those resources, and 
providing assistance in obtaining the information.<SUP>15 
Access to GILS contents would be available through each agency 
through public and private information services on-line, and by 
other electronic media.
---------------------------------------------------------------------------
    \15\ 44 U.S.C. 3511, 109 Stat. 180.
---------------------------------------------------------------------------
    Section 4 of the bill would also require agencies to make 
publicly available a description of any new major information 
system, together with a statement of how the system shall 
enhance agency operations under the FOIA. The purpose of this 
provision is to require agencies to use the development of new 
major information systems as opportunities to enhance FOIA 
administration. Agencies should make use of electronic 
information technology in order to administer their 
responsibilities under the FOIA most efficiently. Indeed, at 
the time of ``major information system'' establishment, 
agencies should consider both the potential FOIA availability 
of the information involved as well as the affirmative 
availability of the information apart from the FOIA.
    Agencies are subject to a similar requirement under 44 
U.S.C. 3506 and section 8a(1) of OMB Circular A-130, which 
direct agencies to plan from the outset for each step in the 
information life cycle. Such planning includes providing for 
public access to records where required or appropriate.
    The term ``major information system'' is familiar to 
Federal agencies since it is defined in OMB Circular A-130. As 
defined in OMB Circular A-130, ```major information system' 
means an information system that requires special management 
attention because of its importance to an agency mission; its 
high development, operating, or maintenance costs; or its 
significant role in the administration of agency programs, 
finances, property, or other resources.'' In accordance with 
OMB Circular A-130, agencies should already be establishing 
inventories of their ``major information systems.'' <SUP>16 
This new requirement under S. 1090 is not overlapping but, 
instead, is a consistent and coordinated legislative 
requirement to support administrative efforts already underway.
---------------------------------------------------------------------------
    \16\ OMB Circular No. A-130, sec. 9a(5), p. 15 (July 15, 1994).
---------------------------------------------------------------------------
    Certain kinds of records identified in nine exemptions may 
be excluded from disclosure under the FOIA. These exemptions 
would therefore apply to the index, which is required to be 
made publicly available under the bill. Thus, an agency is not 
required to identify the existence of a particular database or 
electronic system in the exceptional circumstance in which its 
existence is itself a sensitive, exempt fact. For example, a 
new investigatory database, the existence of which necessarily 
reflects the existence of an ongoing law enforcement 
investigation protected under Exemption 7(a), would be exempt 
from disclosure on the index.

            6. index of records made available to the public

    Section 4 of the bill would require that an index of any 
records released as the result of requests for records pursuant 
to 5 U.S.C. 552(a)(3) must be made available for public 
inspection and copying under 552(a)(2). This provision shall 
assist requesters in determining which records have been the 
subject of prior FOIA requests. Since requests for records 
provided in response to prior requests are more readily 
identified by the agency without the need for new searches, 
this list may assist agencies in complying with the FOIA time 
limits. This should also reduce costs to agencies in preparing 
responses. This does not, however, relieve agencies of their 
obligations to conduct an adequate search for, or justify 
withholding of, responsive records as required by the FOIA.
    In addition, copies of records, which, because of the 
nature of their subject matter, an agency determines have been 
or shall likely be the subject of subsequent FOIA requests, 
must be made available for public inspection and copying in the 
same manner as the materials required to made available under 
paragraph (a)(2).
    As a practical matter, this would mean that copies of 
records released in response to FOIA requests on a subject of 
popular interest, such as the assassinations of Martin Luther 
King, Jr., and President Kennedy, or on human radiation 
experiments conducted by the Government, must subsequently be 
treated as materials subject to release under 5 U.S.C. 
552(a)(2) and made available for public inspection and copying, 
including by computer telecommunications or other electronic 
means. This would reduce the number of duplicative FOIA 
requests for the same records requiring separate agency 
responses.
    The General Accounting Office has found that certain 
Federal agencies, including the International Trade 
Administration at the Department of Commerce and the State 
Department, are already taking steps to make available for 
public inspection and copying in their reading rooms materials 
released in response to specific requests under the FOIA. ``The 
State Department, for example, places previously released 
material in the reading room when it believes the documents 
shall be of topical or recurrent public interest. Such 
documents include information relating to the Jonestown 
massacre, the Grenada invasion, and the Cuban missile crisis.'' 
<SUP>17
---------------------------------------------------------------------------
    \17\ U.S. General Accounting Office, ``Freedom of Information Act: 
Agency Reading Rooms'', GAO/GGD-89-84BR, May 1989, at p. 6.
---------------------------------------------------------------------------
    The purpose of this provision in the bill is to prompt 
agencies to make information available affirmatively on their 
own initiative in order to meet anticipated public demand for 
it. In other words, FOIA processes should not be incumbered by 
requests for routinely available records or information that 
can more efficiently be made available to the public through 
affirmative dissemination means.
    We recognize that an agency's practical ability to make 
records and information affirmatively available to the public 
apart from the FOIA is far greater as to nonexempt records than 
to any record or information that is partially exempt and 
requires redaction. Nevertheless, once released in response to 
a specific request under the FOIA, complying with the new 
requirement of making the previously released material, even in 
a redacted form, available for public inspection and copying 
should not be a burdensome undertaking.
    Requiring, as a standard practice among all Federal 
agencies, that popular, previously released FOIA records be 
made available for public inspection and copying, including by 
computer telecommunications, would take a significant step 
toward on-line FOIA requests and responses. This shall increase 
agency efficiency and reduce workload. Of course, not all 
individuals have access to computers or the computer networks, 
such as the Internet, or are near public reading rooms. Thus, 
requesters shall still be able to access previously released 
FOIA records through the normal FOIA process.
    Current law permits an agency to delete identifying details 
from material made available under 5 U.S.C. 552(a)(2), ``[t]o 
the extent required to prevent a clearly unwarranted invasion 
of personal privacy.'' Section 4 would make clear that agencies 
retain the same discretion to delete identifying details from 
the index and copies of records released in response to FOIA 
requests and made available under this section of the bill, to 
prevent a clearly unwarranted invasion of personal privacy.
    The final part of section 4 would, consistent with the 
``Computer Redaction'' requirement in section 7 of the bill, 
require that any withholding deletions made in electronic 
records prior to their public disclosure must be indicated 
within the disclosed records at the place(s) and to the extent 
of their occurrence.
    Nothing in this section precludes an agency from 
classifying information previously released under a FOIA 
request.

                      7. honoring format requests

    Section 5 of the bill directs agencies to provide records 
to requesters in any form or format in which the agency 
maintains those records. At the same time, the bill also 
directs agencies to make reasonable efforts to honor the format 
requests of requesters.
    The amendments to section 552(a)(3) contained in section 5 
of the bill, as amended, override the holding in Dismukes v. 
Department of the Interior,<SUP>18 that an agency ``has no 
obligation under the FOIA to accommodate plaintiff's preference 
[but] need only provide responsive, nonexempt information in a 
reasonably accessible form.'' This precedent, which has been 
followed in at least one subsequent case, see Baizer v. U.S. 
Department of the Air Force, 887 F. Supp. 225, 229 (N.D. Cal. 
1995), presents a reason for Congress to enact legislation to 
clarify the rights of requesters with respect to the form and 
format of the released record.
---------------------------------------------------------------------------
    \18\ 603 F. Supp. 760, 763 (D.D.C. 1984).
---------------------------------------------------------------------------
    The bill's requirement to make records available in the 
form or format requested by any person where such records are 
not usually maintained in the requested form or format, is 
subject to a ``reasonable efforts'' qualification. In some 
cases, this could relieve the agency of the requirement if it 
would prove onerous. To clarify the meaning of ``reasonable,'' 
the bill makes clear that requests for an electronic version of 
records should be honored, even for records that are not 
normally maintained or stored in electronic form, if they are, 
nevertheless, available in the requested electronic version.
    This requirement applies to choices between conventional 
record forms (e.g., paper, microfiche, or electronic) as well 
as to choices between existing electronic formats. As a general 
rule, the decision whether to disclose requested records or 
information in a new requested form, whether electronic or 
other form, is a matter of administrative discretion. In 
exercising that discretion, agencies should consider 
administrative efficiency and the existence of identified 
public demands for the information. Consistent with current 
practice, a FOIA requester generally should be entitled to 
obtain a paper printout of any nonexempt electronic records--or 
any readily retrievable nonexempt part of such records--if the 
requester prefers.
    The ``reasonable efforts'' qualification would apply to any 
situation in which the original form of a record cannot readily 
be handled without damage to it, such as may be the case with 
archival records, where an existing copy form is used instead. 
Likewise, the ``reasonable efforts'' qualification could 
relieve agencies of the obligation of releasing the original 
form of partially exempt records in circumstances where 
agencies need to handle the records in a certain form for 
purposes of redaction and, therefore, cannot readily disclose 
them, as redacted, in a previously existing form.
    This section also directs agencies to make ``reasonable 
efforts to search for records in electronic form or format.'' 
What constitutes a ``reasonable effort'' shall vary with the 
circumstances under which the records are held. We recognize 
that both agency computer program development resources and 
agency computer system operation resources are highly valuable 
and finite. Both of these categories of agency resources shall 
be impinged upon by the level of new search activity required 
under the amendments. Agencies should search for and retrieve 
data according to new specifications where such retrieval 
activity does not disrupt agency functions.
    The Office of Management and Budget has suggested 2 hours 
as the amount of time an agency should reasonably spend on 
computer program development time to accommodate a requester's 
request for a particular form or format. In certain 
circumstances, and for certain agencies, 2 hours of computer 
development time may be the maximum amount of time that is 
reasonable. Other agencies may determine that significantly 
more or less than 2 hours is reasonable under the 
circumstances.
    Agencies may, as permitted by 5 U.S.C. 552 (a)(4)(A), 
charge appropriate fees to recover copying costs, regardless of 
what medium is used for duplication. Thus, if an agency is 
requested to produce duplicate CD-ROM's and has the capability 
to do so, it may assess an appropriate fee to recover the 
reasonable costs for copying the record in that form. ``Copying 
costs'' include the costs to agencies when they do not maintain 
the records in the requested format and must put the records in 
that format. A requester's refusal to pay the direct costs of 
copying in the requested form or format would be a factor in 
determining whether it is reasonable for the agency to comply 
with the format request.

                               8. delays

    Section 6 of the bill addresses the single most frequent 
complaint about the operation of the FOIA, namely, agency 
delays in responding to FOIA requests. A 1986 House report 
cited a number of reasons for the delays, including inadequate 
resources, unnecessary bureaucratic complexity, poor 
organization of agency records, and lack of interest by 
agencies in disclosure.\19\
---------------------------------------------------------------------------
    \19\ House Committee on Government Operations. Freedom of 
Information Act Amendment of 1986. pp.11-12, H.R. 99-832, 99th Cong., 
2d sess.
---------------------------------------------------------------------------
    These delays have persisted. In an October 1993 memorandum 
to all Heads of Departments and Agencies, Attorney General 
Janet Reno acknowledged the delay problem and the cause for 
FOIA backlogs, stating:
    Many Federal departments and agencies are often unable to 
meet the Act's ten-day time limit for processing FOIA requests, 
and some agencies--especially those dealing with high-volume 
demands for particularly sensitive records--maintain large FOIA 
backlogs greatly exceeding the mandated time period. The 
reasons for this may vary, but principally it appears to be a 
problem of too few resources in the face of too heavy a 
workload. This is a serious problem--one of growing concern and 
frustration to both FOIA requesters and Congress, and to agency 
FOIA officers as well.
    Indeed, out of a total of 75 agencies responding to a 
Department of Justice request for backlog information in 
February 1994, only 28 agencies reported no backlog.
    The bill contains provisions intended to help agencies 
comply with statutory time limits by doubling the time allowed 
for a determination on requests for records, providing 
financial incentives for compliance, directing agencies to make 
more information available on-line and to use better record 
management techniques, such as multi-track processing, 
publishing prior requests to avoid new searches, and making 
available in public reading rooms those records likely to be 
the subject of duplicative FOIA requests.
    (a) Retention of Half the FOIA Fees.--The bill would permit 
agencies that comply with statutory time limits to retain one-
half of the FOIA fees they collect and direct them to use those 
fees to enhance the FOIA request processing function. While the 
purpose of this provision is to give agencies an incentive to 
comply with the time limits, the Committee recognizes that FOIA 
fees do not cover the cost of compliance.
    (b) Demonstration of Circumstances for Delay.--This section 
would require agencies not in compliance with the statutory 
time limits to demonstrate that the delay is warranted under 
the standards for ``unusual'' or ``exceptional'' circumstances 
set forth in 5 U.S.C. Sec. 552(a)(6)(B) and (C) of the FOIA, 
the only circumstances that excuse compliance with the time 
limits.
    (c) Doubling of Statutory Time Limit.--Currently, the FOIA 
allows agencies 10 working days to make initial determinations 
on requests for information possessed by the Government. 
Compliance with the 10-day rule is a practical impossibility 
for the majority of agencies. The bill, therefore, doubles the 
allowable time period for making an initial determination to 20 
working days, while leaving intact the current 10-working day 
statutory extension for cases involving ``unusual 
circumstances.''
    (d) Agency Backlogs.--Under the FOIA, a court may grant an 
agency additional time to respond to FOIA requests beyond the 
statutory time limit, if the agency can show that ``exceptional 
circumstances exist and that the agency is exercising due 
diligence in responding to the request.'' The FOIA does not 
limit the additional time permitted. The Committee encourages 
agencies to reduce backlogs. The bill would clarify that 
``exceptional circumstances'' should be demonstrated by more 
than the usual backlog of pending requests, but good faith 
efforts to address and reduce an unusually large backlog may be 
relevant to a determination of whether ``exceptional 
circumstances'' exist.
    (e) Notification of Denial.--Currently, the FOIA requires 
agencies to provide requesters with the names and titles or 
positions of any person responsible for denial of a request for 
records. The bill would amend this requirement to also require 
disclosure to requesters of the total number of records and 
pages that the agency considered responsive to the request, but 
nevertheless withheld.
    (f) Multi-track FIFO Processing.--An agency commitment to 
process requests on a first-come, first-served basis has been 
held to satisfy the requirement that an agency exercise due 
diligence in dealing with backlogs of FOIA requests.<SUP>20 
Some agencies have taken the position that they must process 
requests on an FIFO basis, even if this procedure may result in 
lengthy delays for simple requests due to the prior receipt and 
processing of complex requests. This section encourages 
agencies to implement multi-track processing systems for FOIA 
requests to reduce backlog.
---------------------------------------------------------------------------
    \20\ Open America v. Watergate Special Prosecution Force, 547 F.2d 
605 (D.C. Cir. 1976).
---------------------------------------------------------------------------
    Simple requests are those requiring 10 days or less to 
process. Such requests may include requests for only a few 
specific documents that are easily accessed or which, by their 
nature would not normally be exempt from the requester (e.g., 
request for a copy of one's own birth certificate or 
naturalization certificate). Complex requests are those for 
which it is estimated that the records sought would take more 
than 10 days to locate, review, and prepare for disclosure. 
Such requests may include requests from files requiring line-
by-line review of numerous pages of personal information, 
classified information, or investigative files, particularly 
those that are of current or of recent investigations, that 
require careful coordination with investigative personnel.
    Under a two-track system some simple requests shall be 
processed ahead of more complex ones which may have been 
received earlier. Agencies may have more than two tracks, for 
example, in the event that they receive requests for expedited 
access, which may be processed on their own track.
    (g) Expedited Access.--The bill provides for a requester to 
obtain expedited access to records where the requester 
demonstrates a compelling need, as defined by the bill. Once 
such a need is demonstrated, and the request for expedited 
access is granted, the agency must then proceed to process that 
request ``as soon as practicable.'' No specific number of days 
for compliance is imposed by the bill since, depending upon the 
complexity of the request, the time needed for compliance may 
vary. The goal is not to get the request for expedited access 
processed within a specific time frame, but to give the request 
priority for processing more quickly than otherwise would 
occur.
    In the event the agency uses a single-track FIFO procedure, 
the expedited request should be processed first. If more than 
one expedited access request is granted and pending, the agency 
should have a separate track to process them on a FIFO basis. A 
FOIA request to which expedited access has been denied should 
be processed in the order it was received relative to other 
FOIA requests. S. 1090, as amended, would permit a requester to 
seek limited judicial review based on the same record before 
the agency of an agency's denial of an expedited access 
request, but only when the requester has complied with the 
strict time limits under paragraph (4)(E)(ii).
    This section adds statutory substance to the term 
``compelling need'' for purposes of obtaining expedited access. 
The first two criteria, in which an individual's life or safety 
would be threatened, embody bases for expedited access which 
have been accepted by some courts and acknowledged by the 
Justice Department at least since 1983. The third basis for 
expedited access would arise when failure to obtain such access 
would affect public assessment of the nature and propriety of 
actual or alleged governmental actions that are the subject of 
widespread, contemporaneous media coverage. This is a reworking 
of the new ``Discretion to Promote Public Accountability'' 
standard for expedited access which the Department of Justice, 
Office of Information and Privacy, distributed to all agencies 
in a February 1, 1994, memorandum. Media coverage is not in 
itself sufficient for expedition. In order to ensure that this 
shall not become a routine incantation among requesters, this 
ground for expedition requires ``widespread, contemporaneous 
media coverage'' to be shown in support of a request asserting 
its applicability. FOIA is not a substitute for a means of 
civil discovery. FOIA requests related to ongoing civil 
litigation do not receive expedited access under the criteria 
established in the bill simply because parties may need 
information for use in civil litigation.
    The requester would be required to declare, under penalty 
of perjury, the truth and correctness of the requester's 
statements of compelling need in support of a request for 
expedited access. This is the same requirement generally used 
to certify the correctness of information provided to the 
government on documents ranging from income tax returns to 
applications for fishing licenses.

                         9. Computer Redaction

    Section 7 of the bill would require that any withholding 
deletions made in electronic records prior to their public 
disclosure must be indicated within the disclosed records at 
the place(s) and to the extent of their occurrence. This would 
ensure that the requester receives notice of the amount of 
material deleted and the location of the deletion when records 
are provided to a requester in electronic form or as a hard 
copy print of electronic information.
    Agencies are not required to aggregate, compact, or modify 
electronic data in any way in order to release it to FOIA 
requesters in nonexempt form. Agencies may do so as a matter of 
administrative discretion, just as FOIA requesters may modify 
their requests in order to encompass only nonexempt data.

                            10. Definitions

    The FOIA already defines the term ``agency'' and section 8 
of S 1090, as amended, would add definitions of ``record'' and 
``search'' to the FOIA.
    (a) Record.--The FOIA currently does not define ``record.'' 
A determination of what constitutes an ``agency record'' in 
particular instances shall depend upon a number of factors 
identified by the Supreme Court in Department of Justice v. Tax 
Analysts.<SUP>21 Any item containing information that is in the 
possession and control of an agency is usually considered to be 
an agency record under FOIA.
---------------------------------------------------------------------------
    \21\ 492 U.S. 136, 144-45 (1989).
---------------------------------------------------------------------------
    At the outset, it is important to note that the FOIA is not 
an independent basis for requiring agencies to maintain records 
or information; other statutes and regulations establish such 
requirements. For example, the FOIA does not dictate the 
records an agency must preserve under the Federal Records Act, 
but only those subject to release. At the same time, agencies 
should not convert any information into a form not required to 
be preserved for the purpose of altering its status under the 
FOIA.
    As defined in the bill, ``record'' refers to all books, 
papers, maps, photographs, machine-readable materials, or other 
information or documentary materials, regardless of physical 
form or characteristics. The term expressly does not include 
library and museum material acquired or received and preserved 
solely for reference or exhibition purposes, extra copies of 
documents preserved only for convenience of reference, stocks 
of publications and of processed documents, or computer 
software which is obtained by an agency under a licensing 
agreement prohibiting its replication or distribution.
    This definition is a modified version of the definition of 
``record'' in the Federal Records Act (``FRA'').<SUP>22 The new 
definition in the FOIA is not necessarily tied to any 
definition of ``record'' that is used for purposes of other 
statutes, including the Federal Records Act. Similar to that in 
the FRA, the proposed definition of ``record'' under the FOIA 
expressly excludes reference items that have been acquired or 
received by the Government solely for reference purposes. This 
is consistent with current law that, for example, library 
reference materials are not subject to the FOIA.<SUP>23
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    \22\ 44 U.S.C.A. 3301.
    \23\ See Dept. Of Justice v. Tax Analysts, 492 U.S. 136 (1988).
---------------------------------------------------------------------------
    (b) Search.--The bill makes it clear that a search of 
computerized records that requires application of codes or some 
form of programming to retrieve information would not amount to 
the creation of a new record.
    As defined in the Act, `` `search' means a manual or 
automated review of agency records that is conducted for the 
purpose of locating those records which are responsive to a 
request under subsection (a)(3)(A) of this section.'' Under 
FOIA, an agency is not required to create documents that do not 
exist. Because computer records may be located in a database 
rather than in a file cabinet, the question is whether a 
computer search is analogous to a search for paper records. 
Computerized records may require the application of codes or 
some form of programming to retrieve the information. Any other 
interpretation would make it virtually impossible to get 
records that are maintained completely in an electronic form 
because some manipulation of the information likely would be 
necessary to search for the record.
    This definition further clarifies that a search for records 
is only made with regard to FOIA requests under 5 U.S.C. 
552(a)(3)(A).

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b), Rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that no significant additional 
regulatory impact or impact on personal privacy would be 
incurred in carrying out the provisions of this legislation.

                          VIII. Cost Estimate

    The Committee accepts the cost estimate of the 
Congressional Budget Office.
    The Congressional Budget Office estimate follows:
                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 13, 1996.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 1090, the Electronic Freedom of Information 
Improvement Act of 1996, as ordered reported by the Senate 
Committee on the Judiciary on April 25, 1996. CBO estimates 
that enacting this bill would allow agencies to spend between 
$4 million and $5 million over the 1997-2002 period out of fee 
income expected under current law. Such expenditures would 
constitute new direct spending; therefore, pay-as-you-go 
procedures would apply.
    Bill purpose. S. 1090 would amend the Freedom of 
Information Act (FOIA) to:
          Require that agencies make available for public 
        inspection and reproduction copies of any records that, 
        because of the nature of their subject matter, are 
        likely to elicit additional requests;
          Require that agencies provide information in the form 
        requested (for example, paper or computer disk), if the 
        information is already available in that form;
          Authorize agencies to retain and spend one-half of 
        any fees collected under FOIA, provided that they 
        comply with the statutory tie limits for responding to 
        such requests; and
          Expand the amount of time an agency has to respond to 
        a FOIA request from 10 days to 20 days.
    Federal Budgetary Impact. Many of the bill's provisions are 
similar to those already required by the Office of Management 
and Budget (OMB Circular No. A-130), and therefore are not 
expected to affect agencies' budgets. Some provisions, however, 
could change the way certain agencies' respond to FOIA 
requests. For instance, the bill would require that agencies 
make available for public inspection and reproduction copies of 
any records that--because of the nature of their subject 
matter--are likely to elicit additional requests. The bill also 
would require that agencies provide information in the form 
requested, if the information is already available in that 
form. The first provision could reduce agencies' costs, while 
the second provision might increase agencies' costs, but CBO 
cannot estimate the extent of these impacts. Any change in 
spending from either provision would be subject to 
appropriation actions.
    To provide an incentive to reduce delays, S. 1090 would 
allow eligible agencies to keep half of the fees currently 
charged for processing FOIA requests and to spend those funds 
on resources used to comply with FOIA's time limits. In 1992 
(the most recent year for which complete tabulations of 
agencies' annual reports on FOIA activities are available), 
agencies spent about $108 million processing FOIA requests, 
while charging about $8 million in fees. Under current law, 
these fees are deposited in the Treasury. Because the bill 
would expand the amount of time agencies have to respond to 
requests from 10 days to 20 days, we estimate that about 45 out 
of the 75 agencies included in the Department of Justice's 1994 
report on agency backlogs under FOIA would meet the bill's 
requirement for ``substantial compliance'' and would thus be 
eligible to retain half of any fees they charge. These 
agencies, however, account for only about 10 percent of the 
total fees collected. Thus, if this provision had been in 
effect for 1992, they would have retained only about $0.4 
million. By contrast, four agencies--all with large backlogs--
accounted for almost 75 percent of the total fees collected in 
1992.
    Assuming that costs for processing FOIA requests continue 
to grow at historical rates and that fees as a proportion of 
those costs also remain at their historical rates, CBO 
estimates that agencies would be eligible to retain about $0.6 
million of fees collected during fiscal year 1996. Under the 
bill, however, spending of these funds would not occur until 
fiscal year 1997. Estimated outlays would rise gradually to 
about $1 million by 2002, and we estimate that direct spending 
from this provision would total between $4 million and $5 
million over the 1997-2002 period. The following table 
summarizes the estimated budgetary impact of the bill.

                                           CHANGES IN DIRECT SPENDING                                           
                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                        1997      1998      1999      2000      2001      2002  
----------------------------------------------------------------------------------------------------------------
Estimated Budget Authority..........................         1         1         1         1         1         1
Estimated Outlays...................................         1         1         1         1         1         1
----------------------------------------------------------------------------------------------------------------

    This estimate assumes that S. 1090 would be enacted by the 
end of fiscal year 1996.
    Pay-as-you-go statement. Section 252 of the Balanced Budget 
and Emergency Deficit Control Act of 1985 sets up pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts through 1998. S. 1090 would affect direct spending by 
authorizing eligible agencies to retain and spend on-half of 
any fees collected under FOIA. As a result, CBO estimates that 
outlays would increase by about $1 million in 1997 and $1 
million in 1998.
    Mandates statement. S. 1090 contains no intergovernmental 
or private sector mandates as defined in Public Law 104-4 and 
would impose no direct costs on state, local, or tribal 
governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The staff contact is John R. Righter.
            Sincerely,
                                         June E. O'Neill, Director.
                 IX. ADDITIONAL VIEWS OF SENATOR LEAHY

    A number of points were not addressed in the Committee's 
report that would be helpful to provide additional guidance to 
agencies on implementing the Electronic Freedom of Information 
Act. As one of the authors of this legislation, I submit these 
additional views to supplement the report of the Committee.

                            I. Introduction

    The emerging National Information Infrastructure (NII) 
consists of interconnected computer networks and databases that 
can put vast amounts of information at users' fingertips. Such 
an information infrastructure can be used to give the public 
easy access to the immense volumes of information generated and 
held by the Government. Individual Federal agencies are already 
contributing to the development of the NII by using technology 
to make Government information more easily accessible to our 
citizens. For example, FedWorld, a bulletin board available on 
the Internet, provides a gateway to more than 60 Federal 
agencies.
    The Electronic Freedom of Information Improvement Act would 
contribute to that information flow by increasing on-line 
access to Government information, including agency regulations, 
opinions, and policy statements, and agency records that have 
been previously released in response to FOIA requests and that 
are the subject of repeated requests. This electronic FOIA bill 
is an important step forward in using technology to make 
government more accessible and accountable to our citizens.

                  II. Legislative History of the FOIA

    The Committee report notes, without elaboration, that the 
FOIA was enacted in 1966 after many years of examination of the 
impediments to providing the public with access to Government 
records. Prior to 1966, the prevailing public access law, 
section 3 of the Administrative Procedure Act of 1946, was 
being interpreted in ways to restrict the availability of 
information.\1\ The so-called ``housekeeping'' law, dating from 
the earliest days of the Republic and authorizing a department 
head to prescribe regulations for the custody, use, and 
preservation of department records, papers, and property, was 
also being used to restrict information sought by the 
public.\2\ Indeed, a considerable number of laws, regulations, 
and rules restraining legal access to public records were 
identified.
---------------------------------------------------------------------------
    \1\ 60 Stat. 237, at 238. Francis E. Rourke. Secrecy and Publicity: 
Dilemmas of Democracy. Baltimore: The Johns Hopkins Press, 1961, pp. 
57-58.
    \2\ See 1 Stat. 28, 49, 65; these and similar provisions were 
consolidated in the Revised Statutes of the United States (1878) at 
section 161, which is presently located in the United States Code at 5 
U.S.C. 301 (1994). Rourke, Secrecy and Publicity: Dilemmas of 
Democracy, pp. 47-49.
---------------------------------------------------------------------------
    The author of one of the earliest and most thorough studies 
of this protective bulwark stated the resulting dilemma 
dramatically and concisely:

          Public business is the public's business. The people 
        have the right to know. Freedom of information is their 
        just heritage. Without that the citizens of a democracy 
        have but changed their kings.\3\
---------------------------------------------------------------------------
    \3\ Harold L. Cross. The People's Right to Know. Morningside 
Heights: Columbia University Press, 1953, p. xiii.

    An initial effort in support of the people's right to know 
came to fruition in 1958 when Congress enacted an amendment to 
the ``housekeeping'' law stating that it ``does not authorize 
withholding information from the public or limiting the 
availability of records to the public.'' \4\
---------------------------------------------------------------------------
    \4\ 72 Stat. 547. Rourke, Secrecy and Publicity, pp. 59-60.
---------------------------------------------------------------------------
    Shortly thereafter, work was begun on drafting legislation 
to amend section 3 of the Administrative Procedure Act with a 
general statute requiring the disclosure of unpublished agency 
records requested by the public. Such a bill was introduced, 
considered, and approved in the Senate during the 88th 
Congress, when the movement for what would become the Freedom 
of Information Act began in earnest.\5\ The House, however, 
took no action on such a measure before sine die adjournment. 
The Senate turned to such legislation again in the 89th 
Congress, and adopted a revised and refined version of the 
earlier bill on October 23, 1965. The House subsequently passed 
this bill on June 20, 1966.
---------------------------------------------------------------------------
    \5\ For the legislative history of the Freedom of Information Act 
of 1966, see Senate Committee on the Judiciary, Freedom of Information 
Act Source Book: Legislative Materials, Cases, Articles, S. Doc. No. 
93-82, 93d Cong., 2d sess. (1974).
---------------------------------------------------------------------------
    Signing the FOIA into law on July 4, 1966, \6\ President 
Johnson declared:
---------------------------------------------------------------------------
    \6\ 80 Stat. 250.

          This legislation springs from one of our most 
        essential principles: A democracy works best when the 
        people have all the information that the security of 
        the Nation permits. No one should be able to pull 
        curtains of secrecy around decisions which can be 
        revealed without injury to the public interest.\7\
---------------------------------------------------------------------------
    \7\ Public Papers of the Presidents of the United States: Lyndon B. 
Johnson, 1966. Book 2. Washington, U.S. Govt. Print. Off., 1967, p. 
699.

    In accordance with the provisions of the Act, the FOIA 
became operative on July 4, 1967, by which time it had been 
codified as section 552 of title 5, United States Code.\8\
---------------------------------------------------------------------------
    \8\ 81 Stat. 54; 5 U.S.C. 552 (1970).
---------------------------------------------------------------------------
    During House and Senate committee consideration of 
legislation leading to the FOIA, no executive department or 
agency representative had testified in support of the 
proposals. Congressional oversight of the administration and 
operation of the Act would reveal that this distaste for the 
legislation had transformed into hostility toward the statute 
during its initial implementation.
    A 1972 report by the House Committee on Government 
Operations, based upon oversight proceedings conducted by one 
of its subcommittees earlier in the year, characterized the 
situation in the following words:

          The efficient operation of the Freedom of Information 
        Act has been hindered by 5 years of foot-dragging by 
        the Federal bureaucracy. The widespread reluctance of 
        the bureaucracy to honor the public's legal right to 
        know has been obvious in parts of two administrations. 
        This reluctance has been overcome in a few agencies by 
        continued pressure from appointed officials at the 
        policy making level and in some other agencies through 
        public hearings and other oversight activities by the 
        Congress.\9\

    \9\ House Committee on Government Operations, Administration of the 
Freedom of Information Act, H. Rept. 92-1419, 92d Cong., 2d sess. 
(1972), pp. 8-9.

    Curiously, it was often argued that the FOIA was not a 
primary program of the departments and agencies, a contention 
that sadly ignored the importance of Government information 
accessibility for the citizens of a democracy. Consequently, 
FOIA administration suffered from a lack of resources and a 
lack of immediacy so that requests languished, awaiting a 
response.
    A reform bill to strengthen the FOIA was introduced in the 
House at the outset of the 93d Congress in early 1973.\10\ A 
companion proposal was offered in the Senate in March, and the 
House legislation received a committee hearing in May. No 
department or agency witness expressed any support for the 
proposed amendments. By the end of 1973, the House bill had 
been refined, was reported from committee in February 1974, and 
was adopted by the House in March. Shortly thereafter, in May, 
a Senate counterpart bill was reported, strengthened during 
floor debate, and adopted. Conferees were then named to 
reconcile the differences between the two measures amending the 
FOIA.
---------------------------------------------------------------------------
    \10\ For the legislative history of the 1974 amendments to the FOIA 
Act, see House Committee on Government Operations and Senate Committee 
on the Judiciary. Freedom of Information Act and Amendments of 1974 
(Public Law 93-502). Source Book: Legislative History, Texts, and Other 
Documents. Joint committee print, 94th Cong., 1st sess. Washington, 
U.S. Govt. Print. Off., 1975.
---------------------------------------------------------------------------
    These were tumultuous times in the Federal Government and 
the Nation. During the 20 months that the FOIA amendments moved 
through the two Houses of Congress, various congressional 
committees and a Special Prosecutor were pursuing inquiries 
into a burglary at the Democratic National Committee 
headquarters in the Watergate apartment complex in Washington, 
DC. By the end of 1973, the involvement of current and former 
high-level officials of the Nixon administration in this and 
related matters had been revealed.
    The following year, articles of impeachment against 
President Nixon were under development in the House. 
Accountability and the availability of Government information 
became issues of mounting importance for Congress and the 
public. A crux point was reached when the President refused to 
provide certain Oval Office tape recordings subpoenaed by the 
Special Prosecutor. The dispute came before the Supreme Court, 
which, in a unanimous opinion of July 24, 1974, affirmed a 
district court order requiring the President to provide the 
subpoenaed tapes.\11\ A week later, the House Committee on the 
Judiciary approved three articles of impeachment of President 
Nixon. Ten days later, he resigned.
---------------------------------------------------------------------------
    \11\ United States v. Nixon, 418 U.S. 683 (1974).
---------------------------------------------------------------------------
    The FOIA amendments of 1974, which are summarized in the 
Committee's report, were not developed in response to the 
Watergate incident. However, they gained legislative momentum 
as congressional investigators probed Watergate and related 
matters. President Nixon resigned shortly after the conferees 
on the FOIA amendments began their deliberations in August. The 
new President, Gerald Ford, sent a letter to the conferees 
indicating his reservations about some of the amendments. The 
conferees pressed on, resolved their differences, and placed 
their report before their respective chambers. The Senate gave 
approval on October 1; the House voted acceptance on October 7; 
and the compromise legislation was sent to President Ford the 
next day.
    On October 17, the President returned the bill to the House 
without his approval and characterized the legislation as 
``unconstitutional and unworkable.'' \12\ However, he had 
underestimated congressional support for the amendments. On 
November 20, the House voted 371-31 to reject the Presidential 
veto. The next day, the Senate completed action on the 
legislation, voting 65-27 to override the President's 
objections. The 1974 amendments then became law, taking effect 
on February 19, 1975.\13\
---------------------------------------------------------------------------
    \12\ Public Papers of the Presidents of the United States: Gerald 
R. Ford, 1974. Washington, U.S. Govt. Print. Off., 1975, pp. 374-376.
    \13\ 88 Stat. 1561.
---------------------------------------------------------------------------
    These amendments and their manner of adoption, as well as 
subsequent amendments to the FOIA detailed in the Committee 
report, provide a clear indication of congressional support for 
and commitment to the FOIA and its proper administration.

                III. Supplemental Discussion of the Bill

                              1. Findings

    The findings set forth in section 2 of the bill makes clear 
that the FOIA requires Federal agencies to make records 
available to the public in specified ways, including upon the 
request of any person for any public or private use. As Justice 
Ginsburg commented, ``the identity and particular purpose of 
the requester is irrelevant under FOIA. * * * This main rule 
serves as a check against selection among requesters, by 
agencies and reviewing courts, according to idiosyncratic 
estimations of the request's or requester's worthiness.'' 
<SUP>14
---------------------------------------------------------------------------
    \14\ U.S. Department of Defense v. Federal Labor Relations 
Authority, ---- U.S. ----, 114 S. Ct. 1006, 1019 (1994)(Ginsburg, J., 
concurring).
---------------------------------------------------------------------------
    This finding is intended to address concerns that the 
reasoning of the Supreme Court in Department of Justice v. 
Reporters Committee <SUP>15 and the U.S. Department of Defense 
v. Federal Labor Relations Authority <SUP>16 analyzed the 
purpose of the FOIA too narrowly. The purpose of the FOIA is 
not limited to making agency records and information available 
to the public only in cases where such material would shed 
light on the activities and operations of Government. Effort by 
the courts to articulate a ``core purpose'' for which 
information should be released imposes a limitation on the FOIA 
which Congress did not intend and which cannot be found in its 
language,<SUP>17 and distorts the broader import of the Act in 
effectuating Government openness.
---------------------------------------------------------------------------
    \15\ 489 U.S. 749 (1989).
    \16\ 114 S.Ct. 1006, 773-775, 1012-13 (1994).
    \17\ U.S. Department of Defense v. FCRA, supra, 114 S.Ct. at 1018-
1019 (Ginsburg, J., concurring).
---------------------------------------------------------------------------
    While the intended use of the records by the requester is 
normally irrelevant in determining whether to grant access to 
the requested records, it may properly be considered in 
assessing the potential consequences of disclosure where the 
public interest in disclosure must be balanced against an 
asserted privacy interest in denying access to such records.

                2. Records Made Available to the Public

    The Congress has indicated its intent through laws, such as 
the Paperwork Reduction Act of 1995, that wider use of 
electronic dissemination is an integral part of Government 
information activity. Such dissemination occurs on the 
initiative of Government officials. The FOIA, by contrast, also 
provides access to Government information sought on the 
initiative of the people.
    The Committee report correctly notes that the Government 
Information Locator Service (GILS) is a helpful tool for 
providing access to public information resources in the Federal 
Government. Significantly, many Federal agencies are also 
establishing sites on the World Wide Web to educate the public 
about their mission and facilitate access to information about 
the agency. Agencies should be encouraged to establish a FOIA 
requester section on their Web site homepage to facilitate on-
line access to 552(a)(1), (a)(2), and (a)(3) materials. For 
example, by accessing an agency's Web site, requesters in the 
future may be able to browse through an index of major computer 
systems maintained by the agency, an index of records made 
availably to the public, and copies of records previously 
released pursuant to FOIA requests.
    In short, these World Wide Web sites could be used to 
provide on-line access to the materials that agencies are 
disseminating both electronically and in more conventional form 
to the public. In fact, the Department of Defense has specified 
that all homepages must be accompanied by a GILS record that 
tells the public how to access other DOD material. We urge 
Federal agencies to continue progress in this area.

                      3. Honoring Format Requests

    Section 5 of the bill requires that Federal agencies 
provide records to requesters in any form or format in which 
the agency maintains those records, and that Federal agencies 
make reasonable efforts to search for and honor the format 
requests of requesters. In many cases, the vast amounts of 
information held in Government databases would only be usable 
if disclosed in an electronic form. Such information disclosed 
in paper form would be unmanageable. Nevertheless, a FOIA 
requester should be entitled to obtain a paper ``printout'' of 
any nonexempt electronic records--or any readily retrievable 
nonexempt part of such records--if the requester so prefers, 
consistent with current practice.
    The Committee report points out that what constitutes a 
``reasonable effort'' to search for records in electronic form 
or format will vary with the circumstances under which the 
records are held. In responding to FOIA requests seeking only 
specified portions of databases, agencies should search for and 
retrieve data in the same manner used in the ordinary course of 
agency business with their existing retrieval-programming 
capability for the database involved. When requesters seek to 
have data retrieved according to specifications other than 
those ordinarily used by agencies for data retrieval from the 
database system involved, agencies should comply with such 
requests where they can reasonably and efficiently do so. We 
recognize that this requirement, in tandem with the ``record'' 
status of agency software, holds some potential for compelled 
software creation.
    Agencies should be required to search for and retrieve data 
according to new specifications where such retrieval activity 
does not disrupt agency functions.
    Agencies should make use of the capability to redact exempt 
information through electronic means, including through the 
acquisition of software packages for those purposes, wherever 
it is more efficient to do so. Where redactions are made by 
electronic means, the requirement in section 7 of the bill 
remains that the requester should be notified of the extent and 
location of the redactions. This principle should apply to 
redaction in conventional record form, in which case the extent 
of redactions ordinarily can be shown on the face of partially 
disclosed records.

                       4. Delays: Agency Backlogs

    The bill would clarify the meaning of ``exceptional 
circumstances'' warranting an extension of the statutory time 
limit for responding to requests under the FOIA. Specifically, 
under the bill, the term ``exceptional circumstances'' would 
mean ``circumstances that are unforeseen and shall not include 
delays that result from a predictable workload, including any 
ongoing agency backlog, in the ordinary course of processing 
requests for records.''
    In Open America v. Watergate Special Prosecution 
Force,<SUP>18 the court held that exceptional circumstances 
exist when the agency can show it has inadequate resources to 
process FOIA requests within statutory time limits and the 
agency is exercising due diligence by processing requests on a 
``first-in, first-out'' basis. Relying upon overly broad dictum 
in this case, agencies have employed the exceptional 
circumstances-due diligence exception to obtain judicial 
approval for lengthy delays whenever they have a backlog.
---------------------------------------------------------------------------
    \18\ 547 F.2d 605 (D.C. Cir. 1976).
---------------------------------------------------------------------------
    Backlogs of requests for records under the FOIA should not 
give agencies an automatic excuse to ignore the time limits. 
This is exactly the wrong incentive to clear up such backlogs.
    The bill would not overturn Open America, but would clarify 
its holding. In Open America, the court granted additional time 
because the agency had a truly exceptional, 3000-percent 
increase in FOIA requests in 1 year. The bill would not change 
the outcome in Open America--exceptional, unforeseen workload 
increases would still warrant additional time to respond to 
FOIA requests.
    Consistent with Judge Leventhal's concurring opinion in 
Open America, the bill would clarify that ``exceptional 
circumstances'' must be demonstrated by more than the mere 
number or backlog of pending requests. This clarification would 
apply prospectively to requests for agency records submitted 
after the date of enactment of this Act.
    The agency must show the extraordinary size or complexity 
of the requested records at issue; affirmative steps the agency 
is taking to reduce the backlog (such as applying for 
additional funding, training or reassigning additional 
personnel, or implementing new processing procedures); efforts 
to expedite release of the requested records, including by the 
partial release of records expressly covered by the FOIA and 
plainly outside the scope of any exemption; and concrete 
obstacles to locating or otherwise processing the requested 
records, including cases in which a substantial proportion of 
the requested records can reasonably be expected to involve 
information that may be exempt under 5 U.S.C. 552(b) (1), (6), 
or (7). The mere fact that the requested records are those of 
an agency with law enforcement or national security missions, 
such as the Federal Bureau of Investigation or Central 
Intelligence Agency, should not be sufficient in itself to 
demonstrate that the records can reasonably be expected to fall 
within the scope of those exemptions.

                         5. Definitions: Record

    The new definition of ``record'' in the bill includes 
``machine-readable materials or other information or 
documentary materials, regardless of physical form or 
characteristics.'' As a general rule, information maintained in 
electronic form should be no less subject to the FOIA than 
information maintained in conventional paper record form. 
Indeed, among Federal agencies, there is little disagreement 
that FOIA covers all Government records, regardless of the form 
in which they are maintained or stored by the agency. The 
Department of Justice agrees that computer database records are 
agency records subject to the FOIA.\19\
---------------------------------------------------------------------------
    \19\ 1992 Hearing, at 33.
---------------------------------------------------------------------------
    However, a question may arise as to what, exactly, 
constitutes a ``record'' when public records are in an 
electronic format. For example, most Government agencies 
maintain large databases comprising millions of pieces of 
information. A specific ``record'' may not be created until a 
query is formed and the software associated with the database 
manipulates the information, which in turn compiles the record 
formulated by the query. Because the database itself is a 
public record, then any record created from information stored 
in that database is also a public record.
    The process of retrieving the information, however, may 
result in the creation of a new document when the data is 
printed out on paper or written on computer tape or disk. This 
may be the only way computerized data is retrievable, even if 
it means a new document must be created.
    Moreover, material in a database that is constantly being 
updated or modified is dynamic and continuously changing. It 
should, nonetheless, be subject to the FOIA. Agencies may have 
to develop special procedures to accommodate FOIA applicability 
to such data on a ``snapshot'' basis, while at the same time 
duly impairing the operation of the electronic system involved. 
Any such nonexempt data for which there is an anticipated 
public demand is likely to be made available affirmatively 
under section 4 of S. 1090, thereby removing any potential FOIA 
complications for that data.
    The proposed definition of ``record'' in the bill would 
cover electronic mail, in accordance with current case law and 
regulations. Recognizing that ``the widespread and easy use of 
e-mail has made it an important tool for the conduct of 
Government business'' and that ``nearly all Federal agencies 
now use e-mail to transact Government business,'' the National 
Archives and Records Administration issued regulations, 
effective on September 27, 1995, setting forth regulations for 
the identification and preservation of e-mail messages that 
constitute Federal records.
     Electronic mail has also been held subject to the FOIA by 
courts that have considered this issue. In Armstrong v. 
Executive Office of President,<SUP>20 the court based its 
definition of ``records'' on the language contained in 44 
U.S.C.A. 3301, and concluded that, if a document qualifies as a 
record, then the FRA prohibits an agency from discarding it by 
fiat. Communications stored in electronic communications 
systems constituted Federal records because the FRA's 
definition of ``records'' includes material ``regardless of 
physical form or characteristics.'' The court concluded that 
substantive communications otherwise meeting the definition of 
Federal ``records'' that had been saved on electronic mail came 
within the FRA's purview. Thus, the court held the mere 
existence of paper printouts of electronic communications for 
Government agencies does not affect the record status of 
electronic material unless paper versions include all 
significant material contained in the electronic records. 
Electronic documents retain their status as Federal records 
after the creation of paper printouts and all FRA obligations 
concerning management and preservations of records apply.
---------------------------------------------------------------------------
    \20\ 1 F.3d 1274, 1278 (D.C. Cir. 1993).
---------------------------------------------------------------------------
    Electronic mail is used not just by Federal employees to 
conduct official business, but also in circumstances where the 
employees may have an expectation of privacy or 
confidentiality. This expectation may be compromised if the 
messages are preserved as records and released to the public 
under the FOIA. What constitutes an appropriate use of e-mail 
systems by Federal employees and what legitimate expectations 
of privacy those employees may have in particular e-mail 
messages are important questions, but not policy determinations 
to be made under the FOIA. Indeed, the National Archive and 
Records Administration has concluded that ``E-mail records are 
no more and no less important than other records. Agency 
personnel must apply the same decision making process to e-mail 
that they apply to other documentary materials regardless of 
the media used to create them.'' <SUP>21
---------------------------------------------------------------------------
    \21\ 60 Fed. Reg. 44634, 44635 (Aug. 28, 1995).
---------------------------------------------------------------------------
    Electronic information or material maintained outside of 
the Government that is accessed electronically by an agency, 
but merely viewed by agency employees, should not be deemed to 
come into the agency's possession and control by virtue of such 
electronic access. Any such data on a networked computer, 
however, that is retrieved into an agency database by an agency 
employee or agent, or is printed out in paper form, becomes 
subject to the Act. Rules governing the circumstances under 
which agencies may merely view, and not preserve, data 
distributed over networked computers in the performance of 
their functions should be established through legal and policy 
mechanisms other than the FOIA.
    As a general rule, computer software should also be treated 
as a ``record'' subject to the FOIA. ``Computer software'' may 
be regarded as the computer programs, routines, and symbolic 
languages that control the functioning and direct the operation 
of computer hardware. Software that is generated totally at 
Government expense, and in which there exists no private 
proprietary interest, should be subject to the FOIA and 
disclosed if not covered by a FOIA exemption (e.g., Exemption 2 
which can protect against circumvention of computer-system 
security).<SUP>22 Such software should be made available at 
direct cost under the FOIA, absent any specific congressional 
authorization for the charging of a greater fee.
---------------------------------------------------------------------------
    \22\ See Cleary, Gottlieb, Steen & Hamilton v. Dept. of Health and 
Human Services, 844 F. Supp. 770 (D.D.C. 1993) (computer program 
created by agency employee is an agency ``record'' under the FOIA but 
under the circumstances were exempt from disclosure under the 
deliberative process privilege in Exemption 5).
---------------------------------------------------------------------------
    Any software that is generated by an outside party under a 
Government contract, in which the Government has retained all 
proprietary interest, should likewise be subject to the FOIA. 
Any software that is generated by an agency and furnished to an 
outside party ``exclusively'' under a cooperative agreement 
should be treated under the Act in accordance with the 
provisions of any specific congressional enactment pertaining 
to such agreement.
    Any software that is generated by an outside party under a 
Government contract, in which the party retains some or all of 
the proprietary interest, should be subject to disclosure under 
the FOIA only insofar as is compatible with that proprietary 
interest, as well as the interests protected by any other 
applicable FOIA exemption, such as Exemption 2 or 3.
    Any computer software that has been acquired by the 
Government, and from an outside proprietary interest holder 
under a licensing agreement that prohibits the software's 
copying or distribution is excluded by the definition of a 
``record'' under the bill. The most effective handling of an 
FOIA request for such software would be for the agency simply 
to identify the software as commercially available.
    In circumstances where acquired software is not made 
commercially available by the outside proprietary interest 
holder, or the software has been customized and is therefore 
not commercially available in the exact form in which it is 
requested, both the circumstances of the acquisition and of the 
proprietary interest shall have to be examined in order to 
determine the software's status under the FOIA. Specifically, a 
determination shall have to be made whether release is 
permitted under the licensing agreement under which the agency 
obtained the software, and whether such release is consistent 
with the copyright or patent laws.
    If the licensing agreement or other legal impediment bars 
release of the requested computer software, agencies should 
make efforts to segregate proprietary from nonproprietary 
information in order to comply with the FOIA.
    If an agency maintains an electronic information system in 
such a way that objectively understandable access to any 
nonexempt information in it is dependent upon a computer 
program or software that is unavailable to the public, then the 
agency must upon request, pursuant to the new requirement in 
section 5 of the bill, take all reasonable steps to convert the 
data in order to afford FOIA access to it in a requested 
electronic form.
    Agencies should make efforts to avoid this situation and 
seek instead to obtain computer programs or software that are 
available to the public either commercially or by release under 
the FOIA. Agencies certainly should not use licensing 
agreements to circumvent public access to electronic 
information under the FOIA. Efforts to do so would be short-
sighted given the additional time, expense, and efforts that 
must be undertaken by agencies to convert information from an 
unreleasable electronic form to a releasable electronic form.

                             IV. Conclusion

    Making Government information readily available 
electronically can help to revitalize citizens' interest in 
learning what their Government is doing and better their 
understanding of the reasons underlying Government actions. The 
Electronic Freedom of Information Improvement Act of 1996 is an 
important step forward in using technology to make Government 
more accessible and accountable to our citizens.
    In addition, this bill takes steps to cure the lengthy 
delays in obtaining responses to requests for agency records 
under the FOIA. The American taxpayer has paid for the 
collection and maintenance of these records and should get 
prompt access to it upon request. That is what the law requires 
and that is the standard of service Government agencies should 
meet. Long delays in access can mean no access at all.
                                                     Patrick Leahy.
        X. Changes in Existing Law Made by the Bill, As Amended

    In compliance with paragraph 12, rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new matter is printed in 
italic, existing law in which no change is proposed is shown in 
roman):

                           UNITED STATES CODE

          * * * * * * *

             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

          * * * * * * *

                  CHAPTER 5--ADMINISTRATIVE PROCEDURE

                    Subchapter I--General Provisions

          * * * * * * *

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 including by computer 
        telecommunications, or if computer telecommunications 
        means are not available, by other electronic means, 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) a complete list of all statutes that the 
                agency head or general counsel relies upon to 
                authorize the agency to withhold information 
                under subsection (b)(3) of this section, 
                together with a specific description of the 
                scope of the information covered; and
                  (F) 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 and copying, 
        including, within 1 year after the date of the 
        enactment of the Electronic Freedom of Information 
        Improvement Act of 1996, by computer 
        telecommunications, or if computer telecommunications 
        means are not available, by other electronic means--
                  (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; [and]
                  (C) administrative staff manuals and 
                instructions to staff that affect a member of 
                the public;
                  (D) an index of all major information systems 
                containing agency records regardless of form or 
                format unless such an index is provided as 
                otherwise required by law;
                  (E) a description of any new major 
                information system with a statement of how such 
                system shall enhance agency operations under 
                this section;
                  (F) an index of all records which are made 
                available to any person under paragraph (3) of 
                this subsection; and
                  (G) copies of all records, regardless of form 
                or format, which because of the nature of their 
                subject matter, have become or are likely to 
                become the subject of subsequent requests for 
                substantially the same records under paragraph 
                (3) of this subsection;
        unless the materials are promptly published and copies 
        offered for sale. 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, statements of 
        policy, interpretation, [or staff manual or 
        instruction] staff manual, instruction, or index or 
        copies of records, which are made available under 
        paragraph (3) of this subsection. 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 at the place where such deletion 
        was made. Each agency shall also maintain and make 
        available for public inspection and copying 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. A final order, opinion, statements 
        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)(A) through (F) 
        of this subsection, each agency, upon any request for 
        records which [(A) reasonably] (i) reasonably describes 
        such records and [(B)] (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) An agency shall, as requested by any person, 
        provide records in any form or format in which such 
        records are maintained by that agency.
          (C) An agency shall make reasonable efforts to search 
        for records in electronic form or format and provide 
        records in the form or format requested by any person, 
        including in an electronic form or format, even where 
        such records are not usually maintained but are 
        available in such form or format.
          (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.
          * * * * * * *
          (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) If at an agency's request, the Comptroller 
        General determines that the agency annually has either 
        provided responsive documents or denied requests in 
        substantial compliance with the requirements of 
        paragraph (6)(A), one-half of the fees collected under 
        this section shall be credited to the collecting agency 
        and expended to offset the costs of complying with this 
        section through staff development and acquisition of 
        additional request processing resources. The remaining 
        fees collected under this section shall be remitted to 
        the Treasury as general funds or miscellaneous 
        receipts.
          * * * * * * *
          (D) Repealed.
          (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) Any agency not in compliance with the time 
        limits set forth in this subsection shall demonstrate 
        to a court that the delay is warranted under the 
        circumstances set forth under paragraph (6) (B) or (C) 
        of this subsection.
          * * * * * * *
          (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 [ten days] twenty days 
                (excepting Saturdays, Sundays, and legal public 
                holidays) after the receipt of any such request 
                whether to comply with such a request and shall 
                immediately notify the person making such 
                request of such determination and the reasons 
                therefor, and of the right of such person to 
                appeal to the head of the agency any adverse 
                determination; 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 the 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.
          * * * * * * *
          (C) 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. As used in this subparagraph, for requests 
        submitted pursuant to paragraph (3) after the date of 
        the enactment of the Electronic Freedom of Information 
        Improvement Act of 1996, the term ``exceptional 
        circumstances'' means circumstances that are unforeseen 
        and shall not include delays that result from a 
        predictable workload, including any ongoing agency 
        backlog, in the ordinary course of processing requests 
        for 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 requests 
        for records under this subsection shall set forth the 
        names and titles or positions of each person 
        responsible for the denial of such request.] Any 
        notification of any full or partial 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 and the 
        total number of denied records and pages considered by 
        the agency to have been responsive to the request.
          (D)(i) Each agency shall adopt a first-in, first-out 
        (hereafter in this subparagraph referred to as FIFO) 
        processing policy in determining the order in which 
        requests are processed. The agency may establish 
        separate processing tracks for simple and complex 
        requests using FIFO processing within each track.
          (ii) For purposes of such a multi-track system-
                  (I) a simple request shall be a request 
                requiring 10 days or less to make a 
                determination on whether to comply with such a 
                request; and
                  (II) a complex request shall be a request 
                requiring more than 10 days to make a 
                determination on whether to comply with such a 
                request.
          (iii) A multitrack system shall not negate a claim of 
        due diligence under subparagraph (C), if FIFO 
        processing within each track is maintained and the 
        agency can show that it has reasonably allocated 
        resources to handle the processing for each track.
          (E)(i) Each agency shall promulgate regulations, 
        pursuant to notice and receipt of public comment, 
        providing that upon receipt of a request for expedited 
        access to records and a showing by the person making 
        such request of a compelling need for expedited access 
        to records, the agency determine within 10 days 
        (excepting Saturdays, Sundays, and legal public 
        holidays) after the receipt of such a request, whether 
        to comply with such request. A request for records to 
        which the agency has granted expedited access shall be 
        processed as soon as practicable. A request for records 
        to which the agency has denied expedited access shall 
        be processed within the time limits under paragraph (6) 
        of this subsection.
          (ii) A person whose request for expedited access has 
        not been decided within 10 days of its receipt by the 
        agency or has been denied shall be required to exhaust 
        administrative remedies. A request for expedited access 
        which has not been decided may be appealed to the head 
        of the agency within 15 days (excepting Saturdays, 
        Sundays, and legal public holidays) after its receipt 
        by the agency. A request for expedited access that has 
        been denied by the agency may be appealed to the head 
        of the agency within 5 days (excepting Saturdays, 
        Sundays, and legal public holidays) after the person 
        making such request receives notice of the agency's 
        denial. If an agency head has denied, affirmed a 
        denial, or failed to respond to a timely appeal of a 
        request for expedited access, a court which would have 
        jurisdiction of an action under paragraph 4(B) of this 
        subsection may, upon complaint, require the agency to 
        show cause why the request for expedited access should 
        not be granted, except that such review shall be 
        limited to the record before the agency.
          (iii) The burden of demonstrating a compelling need 
        by a person making a request for expedited access may 
        be met by a showing, which such person certifies under 
        penalty of perjury to be true and correct to the best 
        of such person's knowledge and belief, that failure to 
        obtain the requested records within the timeframe for 
        expedited access under this paragraph would--
                  (I) threaten an individual's life or safety;
                  (II) result in the loss of substantial due 
                process rights and the information sought is 
                not otherwise available in a timely fashion; or
                  (III) affect public assessment of the nature 
                and propriety of actual or alleged governmental 
                actions that are the subject of widespread, 
                contemporaneous media coverage.
    (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;
           * * * * * * *
          (9) geological and geophysical information and data, 
        including maps, concerning wells.
Any reasonable 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, and the extent 
of such deletion shall be indicated on the released portion of 
the record at the place in the record where such deletion was 
made.
           * * * * * * *
    [(f) For purposes of this section, the term ``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.]
    (f) For purposes of this section--
          (1) the term ``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.
          (2) the term ``record'' means all books, papers, 
        maps, photographs, machine-readable materials, or other 
        information or documentary materials, regardless of 
        physical form or characteristics, but does not 
        include--
                  (A) library and museum material acquired or 
                received and preserved solely for reference or 
                exhibition purposes;
                  (B) extra copies of documents preserved 
                solely for convenience of reference;
                  (C) stocks of publications and of processed 
                documents; or
                  (D) computer software which is obtained by an 
                agency under a licensing agreement prohibiting 
                its replications or distributions; and
          (3) the term ``search'' means a manual or automated 
        review of agency records that is conducted for the 
        purpose of locating those records which are responsive 
        to a request under subsection (a)(3)(A) of this 
        section.

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