So the bill was passed. The Clerk announced the following pairs: Mr. Annunzio with Mr. Owens. Mr. Rooney of New York with Mr. Pickle. Mr. Cotter with Mr. Anderson of Illinois. Mr. Rangel with Mr. Gude. Mr. Brasco with Mr. Arends. Mr. McKay with Mr. Brotzman. Mr. Podell with Mr. Price of Texas. Mr. Metcalfe with Mr. Reid. Mr. Teague with Mr. Montgomery. Mr. Pepper with Mr. Rhodes. Mr. Kluczynski with Mr. Johnson of Colorado. Mr. Carey of New York with Mr. McEwen. Mr. Clay with Mr. Rees. Mrs. Collins of Illinois with Mr. Runnels. Mr. Stuckey with Mr. Robison of New York. Mr. Dorn with Mr. Young of Illinois. Mr. Murphy of Illinois with Mr. Charles Wilson of Texas. The result of the vote was announced as above recorded. A motion to reconsider was laid on the table. B. SENATE DEBATE AND VOTES, MAY 30. 1974; PAGES S9310-S9343 AMENDMENT OF FREEDOM OF INFORMATION ACT The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to the consideration of S. 2543, which the clerk will state by title. The assistant legislative clerk read the bill by title, as follows: A bill (S. 2543) to amend section 552 of title V, United States Code, commonly known as the Freedom of Information Act. The Senate proceeded to consider the bill, which had been reported from the Committee on the Judiciary with an amendment to strike out all after the enacting clause and insert: That (a) the (fourth sentence of section 552(a) (2) of title 5, United States Code, is deleted and the following substituted in lieu thereof: “Each agency shall 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 publish, quarterly or more frequently, each index 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 comparable to that charged had the index been published." (b)(1) Section 552(a)(3) of title 5, United States Code, is amended to read as follows: "(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which reasonably describes such records and which is made in accordance with published rules stating the time, place, fees, and procedures to be followed, shall make the records promptly available to any person.”. (2) Section 552(a) of such title 5 is amended by redesignating paragraph (4) as paragraph (5) and by inserting immediately after paragraph (3) the following new paragraph: “(4)(A) In order to carry out the provisions of this section, the Director of the Office of Management and Budget shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees ap plicable to all agencies. Such fees shall be limited to reasonable standard charges for document search and duplication and provide recovery of only the direct costs of such search and duplication. Documents may be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. But such fees shall ordinarily not be charged whenever "(i) the person requesting the records is an indigent individual; "(ii) such fees would amount, in the aggregate, for a request or series of related requests, to less than $3; (iii) the records requested are not found; or "(iv) the records located are determined by the agency to be exempt from disclosure under subsection (b). "(B)(i) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall consider the case de novo, with such in camera examination of the requested records as it finds appropriate to determine whether such records or any part thereof may be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. "(ii) In determining whether a document is in fact specifically required by an Executive order or statute to be kept secret in the interest of national defense or foreign policy, a court may review the contested document in camera if it is unable to resolve the matter on the basis of affidavits and other information submitted by the parties. In conjunction with its in camera examination, the court may consider further argument, or an ex parte showing by the Government, in explanation of the withholding. If there has been filed in the record an affidavit by the head of the agency certifying that he has personally examined the documents withheld and has determined after such examination that they should be withheld under the criteria established by a statute or Executive order referred to in subsection (b)(1) of this section, the court shall sustain such withholding unless, following its in camera examination, it finds the withholding is without a reasonable basis under such criteria. "(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within forty days after the service upon the United States attorney of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown. "(D) Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this subsection, and appeals therefrom, take precedence on the docket over all causes and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way. ་ "(E) 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. In exercising its discretion under this paragraph, the court shall consider the benefit to the public, if any, deriving from the case, the commercial benefit to the complainant and the nature of his interest in the records sought, and whether the Government's withholding of the records sought had a reasonable basis in law. "(F) Whenever records are ordered by the court to be made available under this section, the court shall on motion by the complainant find whether the withholding of such records was without reasonable basis in law and which federal officer or employee was responsible for the withholding. Before such findings are made, any officers or employees named in the complainant's motion shall be personally served a copy of such motion and shall have 20 days in which to respond thereto, and shall be afforded an opportunity to be heard by the court. If such findings are made, the court shall, upon consideration of the recommendation of the agency, direct that an appropriate official of the agency which employs such responsible officer or employee suspend such officer or employee without pay for a period of not more than 60 days or take other appropriate disciplinary or corrective action against him. "(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.". (c) Section 552(a) of title 5, United States Code, is amended by adding at the end thereof the following new paragraph: "(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 (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of 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 such appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or 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. "(B) Upon the written certification by the head of an agency setting forth in detail hi personal findings that a regulation of the kind specified in this paragraph 3 is necessitated by such factors as the volume of requests, the volume of records involved, and the dispersion and transfer of such records, and with the approval in writing of the Attorney General, the time limit prescribed in clause (i) for initial determinations may by regulation be extended with respect to specified types of records of specified components of such agency so as not to exceed thirty working days. Any such certification shall be effective only for periods of fifteen months following publication thereof in the Federal Register. "(C) In unusual circumstances as specified in this subparagraph, the time limits prescribed pursuant to subparagraph (A), but not those prescribed pursuant to subparagraph (B), may be extended by written notice to the requester setting forth the reasons for such extension and the data on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than 10 days. As used in this subparagraph, 'unusual circumstances' means, but only to the extent reasonably necessary to the proper processing of the particular request "(i) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; "(ii) the need to assign professional or managerial personnel with sufficient experience to assist in efforts to locate records that have been requested in categorical terms, or with sufficient competence and discretion to aid in determining by examination of large numbers of records whether they are exempt from compulsory disclosure under this section and if so, whether they should nevertheless be made available as a matter of sound policy with or without appropriate deletions; "(iii) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein, in order to resolve novel and difficult questions of law or policy; and "(iv) the death, resignation, illness, or unavailability due to exceptional circumstances that the agency could not reasonably foresee and control, of key personnel whose assistance is required in processing the request and who would ordinarily be readily available for such duties. "(D) Whenever practicable, requests and appeals shall be processed more rapidly than required by the time periods specified under (i) and (ii) of subparagraph (A) and paragraphs (B) and (C). Upon receipt of a request for specially expedited processing accompanied by a substantial showing of a public interest in a priority determination of the request, including but not limited, to requests made for use of any person engaged in the collection and dissemination of news, an agency may by regulation or otherwise provide for special procedures or the waiver of regular procedures. "(E) An agency may by regulation transfer part of the number of days of the time limit prescribed in (A) (ii) to the time limit prescribed in (A) (i). In the event of such a transfer, the provisions of paragraph (C) shall apply to the time limits prescribed under such clauses as modified by such transfer. 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 provision of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.' SEC. 2. (a) Section 552(b)(1) of title 5, United States Code, is amended to read as follows: "(1) specifically required by an Executive order or statute to be kept secret in the interest of national defense or foreign policy and are in fact covered by such order or statute;". (b) Section 552(b) of title 5, United States Code, is amended by adding at the end the following "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.' SEC. 3. Section 552 of title 5, United States Code, is amended by adding at the end thereof the following new subsections: |