Lewis Barbe vs. US - Freedom of Information Act

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Presentation Description

For a situation filed by Lewis Barbe versus the United States. The Court of Appeals Fifth Circuit requested the Sectary of Labor to turn over principles, understudy Manuel, arranging slides, get prepared movies and there visual assistants and materials utilized as a bit of arranging reviewers of OSHA to him

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In a law suit filed by Lewis Barbe versus the United States. The Court of Appeals Fifth Circuit ordered the Sectary of Labor to turn over instructions student Manuel training slides training films and there visual aids and materials used in training inspectors of OSHA to him. This court case helped in the Freedom of Information Act Law as follows: 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 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 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-- 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

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D copies of all records regardless of form or format which have been released to any person under paragraph 3 and which because of the nature of their subject matter the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records and E a general index of the records referred to under subparagraph D unless the materials are promptly published and copies offered for sale. For records created on or after November 1 1996 within one year after such date each agency shall make such records available including by computer telecommunications or if computer telecommunications means have not been established by the agency by other electronic means. 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 statement of policy interpretation or staff manual or instruction staff manual instruction or copies of records referred to in subparagraph D. 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 unless including that indication would harm an interest protected by the exemption in subsection b under which the deletion is made. If technically feasible the extent of the deletion shall be indicated at the place in the record where the 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 an index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph E available by computer telecommunications by December 31 1999. A final order opinion statement 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. 3A Except with respect to the records made available under paragraphs 1 and 2 of this subsection each agency upon request for records which A 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 In making any record available to a person under this paragraph an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. C In responding under this paragraph to a request for records an agency shall make reasonable efforts to search for the records in electronic form or format except when such efforts would significantly interfere with the operation of the agencys automated information system. D For purposes of this paragraph the term "search" means to review manually or by automated means agency records for the purpose of locating those records which are responsive to a request.

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4Ai 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. ii Such agency regulations shall provide that-- I fees shall be limited to reasonable standard charges for document search duplication and review when records are requested for commercial use II fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research or a representative of the news media and III for any request not described in I or II fees shall be limited to reasonable standard charges for document search and duplication. iii Documents shall be furnished without any charge or at a charge reduced below the fees established under clause ii if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. iv Fee schedules shall provide for the recovery of only the direct costs of search duplication or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section-- I if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee or II for any request described in clause iiII or III of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication. v No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion or the agency has determined that the fee will exceed 250. vi Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. 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 courts review of the matter shall be limited to the record before the agency. B 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

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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 determine the matter de novo and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall 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. In addition to any other matters to which a court accords substantial weight a court shall accord substantial weight to an affidavit of an agency concerning the agencys determination as to technical feasibility under paragraph 2C and subsection b and reproducibility under paragraph 3B. C Notwithstanding any other provision of law the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made unless the court otherwise directs for good cause shown. D Except as to cases 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 cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.Repealed by Pub. L. 98-620 Title IV 4022 Nov. 8 1984 98 Stat. 3335 3357. 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. F Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel after investigation and consideration of the evidence submitted shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. 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. 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. 6A 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 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

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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. B In unusual circumstances as specified in this subparagraph the time limits prescribed in either clause i or clause ii of subparagraph A may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. 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 search for collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request or iii the need for consultation which shall be conducted with all practicable speed with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein. Bi In unusual circumstances as specified in this subparagraph the time limits prescribed in either clause i or clause ii of subparagraph A may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days except as provided in clause ii of this subparagraph. ii With respect to a request for which a written notice under clause i extends the time limits prescribed under clause i of subparagraph A the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph C. iii As used in this subparagraph "unusual circumstances" means but only to the extent reasonably necessary to the proper processing of the particular requests-- I the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request II the need to search for collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request or III the need for consultation which shall be conducted with all practicable speed with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

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iv Each agency may promulgate regulations pursuant to notice and receipt of public comment providing for the aggregation of certain requests by the same requestor or by a group of requestors acting in concert if the agency reasonably believes that such requests actually constitute a single request which would otherwise satisfy the unusual circumstances specified in this subparagraph and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. Ci 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. 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. ii For purposes of this subparagraph the term "exceptional circumstances" does not include a delay that results from a predictable agency workload of requests under this section unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. iii Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing the request or a modified request under clause ii after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph. Di Each agency may promulgate regulations pursuant to notice and receipt of public comment providing for multitrack processing of requests for records based on the amount of work or time or both involved in processing requests. ii Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing. iii This subparagraph shall not be considered to affect the requirement under subparagraph C to exercise due diligence. Ei Each agency shall promulgate regulations pursuant to notice and receipt of public comment providing for expedited processing of requests for records-- I in cases in which the person requesting the records demonstrates a compelling need and II in other cases determined by the agency. ii Notwithstanding clause i regulations under this subparagraph must ensure-- I that a determination of whether to provide expedited processing shall be made and notice of the determination shall be provided to the person making the request within 10 days after the date of the request and

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II expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing. iii An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph 4 except that the judicial review shall be based on the record before the agency at the time of the determination. iv A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. v For purposes of this subparagraph the term "compelling need" means-- I that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or II with respect to a request made by a person primarily engaged in disseminating information urgency to inform the public concerning actual or alleged Federal Government activity. vi A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such persons knowledge and belief. F In denying a request for records in whole or in part an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied and shall provide any such estimate to the person making the request unless providing such estimate would harm an interest protected by the exemption in subsection b pursuant to which the denial is made. b This section does not apply to matters that are-- 1A 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 2 related solely to the internal personnel rules and practices of an agency 3 specifically exempted from disclosure by statute other than section 552b of this title provided that such statute A requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or B establishes particular criteria for withholding or refers to particular types of matters to be withheld 4 trade secrets and commercial or financial information obtained from a person and privileged or confidential 5 inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency 6 personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy

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7 records or information compiled for law enforcement purposes but only to the extent that the production of such law enforcement records or information A could reasonably be expected to interfere with enforcement proceedings B would deprive a person of a right to a fair trial or an impartial adjudication C could reasonably be expected to constitute an unwarranted invasion of personal privacy D could reasonably be expected to disclose the identity of a confidential source including a State local or foreign agency or authority or any private institution which furnished information on a confidential basis and in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation information furnished by a confidential source E would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law or F could reasonably be expected to endanger the life or physical safety of any individual 8 contained in or related to examination operating or condition reports prepared by on behalf of or for the use of an agency responsible for the regulation or supervision of financial institutions or 9 geological and geophysical information and data including maps concerning wells. 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. The amount of information deleted shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible the amount of the information deleted shall be indicated at the place in the record where such deletion is made. c1 Whenever a request is made which involves access to records described in subsection b7A and-- A the investigation or proceeding involves a possible violation of criminal law and B there is reason to believe that i the subject of the investigation or proceeding is not aware of its pendency and ii disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings the agency may during only such time as that circumstance continues treat the records as not subject to the requirements of this section. 2 Whenever informant records maintained by a criminal law enforcement agency under an informants name or personal identifier are requested by a third party according to the informants name or personal identifier the agency may treat the records as not subject to the requirements of this section unless the informants status as an informant has been officially confirmed. 3 Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence or international terrorism and the existence of the records is classified information as provided in subsection b1 the Bureau may as long as the existence of the records remains classified information treat the records as not subject to the requirements of this section. d This section does not authorize the withholding of information or limit the availability of records to the public except as specifically stated in this section. This section is not authority to withhold information from Congress.

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e On or before March 1 of each calendar year each agency shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include-- 1 the number of determinations made by such agency not to comply with requests for records made to such agency under subsection a and the reasons for each such determination 2 the number of appeals made by persons under subsection a6 the result of such appeals and the reason for the action upon each appeal that results in a denial of information 3 the names and titles or positions of each person responsible for the denial of records requested under this section and the number of instances of participation for each 4 the results of each proceeding conducted pursuant to subsection a4F including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken 5 a copy of every rule made by such agency regarding this section 6 a copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section and 7 such other information as indicates efforts to administer fully this section. The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section the exemption involved in each case the disposition of such case and the cost fees and penalties assessed under subsections a4E F and G. Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. e1 On or before February 1 of each year each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include-- A the number of determinations made by the agency not to comply with requests for records made to such agency under subsection a and the reasons for each such determination Bi the number of appeals made by persons under subsection a6 the result of such appeals and the reason for the action upon each appeal that results in a denial of information and ii a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection b3 a description of whether a court has upheld the decision of the agency to withhold information under each such statute and a concise description of the scope of any information withheld C the number of requests for records pending before the agency as of September 30 of the preceding year and the median number of days that such requests had been pending before the agency as of that date D the number of requests for records received by the agency and the number of requests which the agency processed

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E the median number of days taken by the agency to process different types of requests F the total amount of fees collected by the agency for processing requests and G the number of full-time staff of the agency devoted to processing requests for records under this section and the total amount expended by the agency for processing such requests. 2 Each agency shall make each such report available to the public including by computer telecommunications or if computer telecommunications means have not been established by the agency by other electronic means. 3 The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate no later than April 1 of the year in which each such report is issued that such reports are available by electronic means. 4 The Attorney General of the United States in consultation with the Director of the Office of Management and Budget shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1 1997 and may establish additional requirements for such reports as the Attorney General determines may be useful. 5 The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section the exemption involved in each case the disposition of such case and the cost fees and penalties assessed under subparagraphs E F and G of subsection a4. Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. f For purposes of this section the term "agency" as defined in section 5511 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 the term-- 1 "agency" as defined in section 5511 of this title includes any executive department military department Government corporation Government controlled corporation or other establishment in the executive branch of the Government including the Executive Office of the President or any independent regulatory agency and 2 "record" and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format including an electronic format. g The head of each agency shall prepare and make publicly available upon request reference material or a guide for requesting records or information from the agency subject to the exemptions in subsection b including —

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1 an index of all major information systems of the agency 2 a description of major information and record locator systems maintained by the agency and 3 a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44 and under this section. Section 12. Effective Date not to be codified. a Except as provided in subsection b this Act shall take effect 180 days after the date of the enactment of this Act March 31 1997. b Sections 7 and 8 shall take effect one year after the date of the enactment of this Act October 2 1997. Below is the full text of the statement issued by President Clinton upon signing the 1996 FOIA amendments into law on October 2 1996: I am pleased to sign into law today H.R. 3802 the "Electronic Freedom of Information Act Amendments of 1996." This bill represents the culmination of several years of leadership by Senator Patrick Leahy to bring this important law up to date. Enacted in 1966 the Freedom of Information Act FOIA was the first law to establish an effective legal right of access to government information underscoring the crucial need in a democracy for open access to government information by citizens. In the last 30 years citizens scholars and reporters have used FOIA to obtain vital and valuable government information. Since 1966 the world has changed a great deal. Records are no longer principally maintained in paper format. Now they are maintained in a variety of technologies including CD ROM and computer tapes and diskettes making it easier to put more information on-line. My Administration has launched numerous initiatives to bring more government information to the public. We have established World Wide Web pages which identify and link information resources throughout the Federal Government. An enormous range of documents and data including the Federal budget is now available on-line or in electronic format making government more accessible than ever. And in the last year we have declassified unprecedented amounts of national security material including information on nuclear testing. The legislation I sign today brings FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format. This law also broadens public access to government information by placing more material on-line and expanding the role of the agency reading room. As the Government actively disseminates more information I hope that there will be less need to use FOIA to obtain government information. This legislation not only affirms the importance but also the challenge of maintaining openness in government. In a period of government downsizing the numbers of requests continue to rise. In addition

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growing numbers of requests are for information that must be reviewed for declassification or in which there is a proprietary interest or a privacy concern. The result in many agencies is huge backlogs of requests. In this Act the Congress recognized that with todays limited resources it is frequently difficult to respond to a FOIA request within the 10 days formerly required in the law. This legislation extends the legal response period to 20 days. More importantly it recognizes that many FOIA requests are so broad and complex that they cannot possibly be completed even within this longer period and the time spent processing them only delays other requests. Accordingly H.R. 3802 establishes procedures for an agency to discuss with requesters ways of tailoring large requests to improve responsiveness. This approach explicitly recognizes that FOIA works best when agencies and requesters work together. Our country was founded on democratic principles of openness and accountability and for 30 years FOIA has supported these principles. Today the "Electronic Freedom of Information Act Amendments of 1996" reforges an important link between the United States Government and the American people.

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