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II

97TH CONGRESS

1st SESSION

S. 1751

To amend the Freedom of Information Act, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 20 (legislative day, OCTOBER 14), 1981 Mr. Hatch (by request) introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

A BILL

To amend the Freedom of Information Act, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the “Freedom of Information

4 Improvements Act of 1981".

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AMENDMENTS RELATING TO THE OBLIGATION TO MAKE

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RECORDS AVAILABLE

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SEC. 2. Section 552(a) of title 5, United States Code, is

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(1) by adding in subparagraph (A)“, if the final opinions or orders are cited, used, or relied on as precedent by the agency" after “cases";

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and

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(2) by striking out “a clearly unwarranted"

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in the second sentence and inserting in lieu thereof "an unwarranted";

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(b) by amending paragraph (3) to read as follows: "(3)(A) Except with respect to the records made availa

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10 ble under paragraphs (1) and (2) of this subsection, each 11 Agency, upon any request by any United States person for 12 records which (i) reasonably describes such records and (i) is 13 made in accordance with published rules stating the time, 14 place, fees (if any), and procedures to be followed, shall make

15 the records promptly available to the requester.

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“(B) A requester shall not make or maintain a request

17 under this paragraph for records relating to the subject 18 matter of any ongoing judicial or adjudicatory administrative 19 proceeding (civil or criminal) to which the requester, or any 20 person upon whose behalf the requester acts in making the 21 request, is a party. 22 “(C) An agency may require by regulation that each 23 request for records under this section include declarations by 24 the requester that the requester, or any person upon whose 25 behalf the requester acts in making the request, is—

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"(i) a United States person as defined in this sec

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"(ü) not barred by subsection (a)(3)(B) from

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5 A request that does not comply with any such regulation 6 requirement is not a proper request under this section."; and 7

(c) by adding the following new paragraphs at the

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(7) An agency is not required to disclose any material

10 requested under this subsection which consists of newspaper 11 clippings, magazine articles, court records, publications avail12 able from the Government Printing Office, or any similar 13 items which are in the public record or otherwise publicly 14 available, but the agency shall inform the requester of the 15 nature of such public source materials. 16 “(8) Nothing in this section shall be deemed applicable

17 in any way to the informant records maintained by a law

18 enforcement agency under an informant's name or personal 19 identifier, whenever access to such records is sought by a 20 third party according to the informant's name or personal 21 identifier.".

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AMENDMENTS RELATING TO FEES

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SEC. 3. Paragraph (4)(A) of section 552(a) of title 5,

24 United States Code, is amended

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(a) by striking out the second sentence and insert

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ing in lieu thereof the following: “The schedule may provide for the payment of all costs reasonably attributable to responding to the request, including the costs of searching for, reviewing, and duplicating requested records. If the requested records contain commercially valuable technological or reference information, generated or acquired by the Government at substantial cost to the public, fees may be charged which reflect the fair market value or royalties or both, in addition to or in lieu of any processing fees otherwise chargeable, taking into account such factors as the estimated commercial value of the information, its cost to the Gov

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ernment, and any public interest served by its disclo

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(b) by adding after the word “determines" in the

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last sentence ", in the exercise of its discretion,".

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AMENDMENTS RELATING TO THE ADMINISTRATIVE

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RIGHTS OF SUBMITTERS OF INFORMATION

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SEC. 4. Paragraph (4) of section 552(a) of title 5, United

21 States Code, is amended

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(a) by redesignating subparagraph (B) as subparagraph (E), and by redesignating subparagraphs (C) through (G) as subparagraphs (J) through (N), respectively; and

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(b) by adding after subparagraph (A) the following 2 new subparagraphs: 3 "(B) Each agency shall promulgate regulations, pursu4 ant to notice and receipt of public comment, specifying proce5 dures by which6

“(i) a submitter may be required to designate, at 7 the time of submission, any information consisting of 8 trade secrets, commercial or financial information, or 9 other commercially valuable information, which is 10 exempt from disclosure under subsection (b)(4); 11

“(i) the agency shall notify the submitter that a 12

request has been made for information provided by the 13 submitter within a reasonable time prior to a decision

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to release any such information;

"(i) the submitter may, within ten working days of the forwarding of such notification, submit to the

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agency written objection to such disclosure specifying all grounds upon which it is contended that the infor

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mation should not be disclosed; and

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"(iv) the agency shall notify the submitter of any

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final decision to release such information.

22 "(C) An agency is not required to notify a submitter 23 pursuant to subparagraph (B) if24

"(i) the information requested is not designated by 25 the submitter as exempt from disclosure in accordance

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