106th CONGRESS
2d SESSION

_____. ______

To amend chapter 35 of title 44, United States Code, for the purpose of enhancing the quality of the uses of information by Executive Branch agencies by directing the Office of Management and Budget to oversee such uses, and to establish a private right of action for a person to seek judicial review of violations of such chapter 35 by any agency that is subject to such chapter.

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IN THE ______ OF THE UNITED STATES
_____, 2000

[Mr.] [Ms.]________________ introduced the following bill; which was read twice and referred to the Committee on _________________.

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To amend chapter 35 of title 44, United States Code, for the purpose of enhancing the quality of the uses of information by Executive Branch agencies by directing the Office of Management and Budget to oversee such uses, and to establish a private right of action for a person to seek judicial review of violations of such chapter 35 by any agency that is subject to such chapter.

This Act may be cited as the "Paperwork Reduction Act Improvement Act of 2000".

The principal purposes of this Act are to amend chapter 35 of title 44, United States Code, for the purpose of enhancing the quality of the uses of information by Executive Branch agencies by directing the Office of Management and Budget to oversee such uses, and to establish a private right of action for a person to seek judicial review of violations of such chapter 35 by any agency that is subject to such chapter.

The Congress finds that--

(1) the Office of Management and Budget in the Executive Office of the President (OMB) filed an affidavit in litigation in Federal district court asserting that, after OMB has approved a collection of information pursuant to chapter 35 of title 44, United States Code (sometimes referred to herein as the Paperwork Reduction Act of 1995 or the PRA), for a stated agency purpose, "the PRA does not require an agency to obtain OMB approval in order for the agency to use information that it collects in additional ('new') ways";

(2) OMB in effect has stated that it has no legal duty to determine whether such new uses of information collected by a Federal agency are "necessary to the proper performance of the functions of the agency" or whether they have "practical utility" as required by 44 U.S.C. § 3508;

(3) the Executive Branch, through the Department of Justice (DOJ), filed a legal brief in litigation in Federal district court asserting that "the PRA confers no private right of action for persons to file suit seeking to challenge alleged violations of the Act";

(4) the Executive Branch, through DOJ, asserts that the only remedy for violations of the PRA by an agency is the "public protection" provision in § 3512, which protects persons from penalty for failing to comply with a collection of information requirement if the collection document does not display an OMB approval number;

(5) the "public protection" provision provides a defense to a respondent only in limited circumstances, namely, in an enforcement action; the "public protection" provision does nothing to compel an agency to comply with numerous other PRA procedural and substantive requirements, for example, applicable statutory requirements that an agency provide public notice and opportunity for public comment during the preparation and review of a proposed collection of information;

(6) Congress significantly amended the PRA in 1995 to add statutory opportunities for public participation in the process for preparing, reviewing, and approving proposed collections of information; however, DOJ asserts that no person has any legal right under the PRA or under the Administrative Procedure Act (5 U.S.C. § 551 et seq.) to go to court to enforce agencies' compliance with those statutory provisions; and therefore

(7) Congress finds it is necessary to amend the PRA to assure:

(a) that OMB shall be responsible for overseeing Federal agencies' uses of information that is collected;

(b) that Federal agencies must first seek OMB review and approval pursuant to the PRA before initiating a new use that is substantively or materially different from the use originally approved by OMB in connection with the collection of the information; and

(c) that interested persons may obtain judicial review in Federal court to compel Federal agencies to comply with the applicable procedural and substantive requirements of the PRA.

SEC. 4. OVERSEEING FEDERAL AGENCIES' USES OF INFORMATION THAT IS COLLECTED PURSUANT TO THE PAPERWORK REDUCTION ACT.

(a) Section 3502(3) of chapter 35 of title 44, United States Code (commonly referred to as the "Paperwork Reduction Act"), is amended--

(1) by striking "and" following paragraph (A)(ii);

(2) by redesignating paragraph (B) as paragraph (C); and

(3) by adding after paragraph (A) the following new paragraph (B):

"(B) includes the agency's plan for the use or uses (whether by or for the agency, third parties, or the public) of the information described in paragraph (A); and".

(b) Section 3507(a) of such chapter is amended by striking "revision" and inserting in lieu thereof the word "modification".

(c) Section 3507(h)(3) of such chapter is amended by adding, following "information", the words "or the agency's use of such information".

(d) Section 3508 of such chapter is amended--

(1) by adding, following the word "utility" in the first sentence thereof, the words "for the use or uses planned by the agency";

(2) by adding, following the first appearance of the word "information" in the third sentence thereof, the words "or any use of such information"; and

(3) by adding, at the end of the third sentence thereof, the words "or such use of the information".

Section 3507(d)(6) of chapter 35 of title 44, United States Code, is amended by adding at the end the following new sentences:

"Any person may bring a civil action in the district court of the United States in the district in which the person resides or has his principal place of business, or in which the agency in question has its headquarters, or in the District of Columbia, to obtain judicial review of any decision by the Director pursuant to this Act (other than a decision described in the preceding sentence) or to enforce compliance by any agency with the requirements of this Act. The court shall have jurisdiction to issue declaratory judgments, to order injunctive relief, and to order such other relief as the court finds appropriate. The burden is on the Director or the agency to sustain his or its action. The court may assess against the United States reasonable attorneys fees and other litigation costs reasonably incurred in any case under this Act in which the complainant has prevailed or substantially prevailed."