IN THE SENATE OF THE UNITED STATES
March 22, 2022
Mr. Lankford introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To amend chapter 3 of title 5, United States Code, to require the publication of settlement agreements, and for other purposes.
This Act may be cited as the
Settlement Agreement Information Database Act of 2022.
In this Act:
The term Executive agency has the meaning given the term in section 105 of title 5, United States Code.
The term settlement agreement has the meaning given the term in section 307 of title 5, United States Code, as added by section 3(a) of this Act.
Information regarding settlement agreements entered into by Federal agencies
Requirements for settlement agreements
Chapter 3 of title 5, United States Code, is amended by adding at the end the following:
Information regarding settlement agreements
In this section:
The term local government has the meaning given the term in section 6501 of title 31.
The term order type means the type of action or instrument used to settle a civil or criminal judicial action.
The term settlement agreement means a settlement agreement, including a consent decree, that—
is entered into by an Executive agency; and
relates to an alleged violation of Federal civil or criminal law.
The term State means each of the several States, the District of Columbia, each territory or possession of the United States, and each federally recognized Indian Tribe.
Settlement agreement information database
Executive agency requirement
Subject to subparagraph (B), the head of each Executive agency shall, in accordance with guidance issued pursuant to paragraph (2), submit the following information to the database established under paragraph (3):
A list of each settlement agreement, in a categorized and searchable format, entered into by the Executive agency, as a party to a lawsuit, which shall include, for each settlement agreement—
the order type of the settlement agreement;
the date on which the parties entered into the settlement agreement;
a list of specific violations that specify the basis for the action taken, with a description of the claims each party settled under the settlement agreement;
the amount of attorneys’ fees and other litigation costs awarded, if any, including a description of the statutory basis for such an award;
the amount each party settling a claim under the settlement agreement is obligated to pay under the settlement agreement;
the total amount the settling parties are obligated to pay under the settlement agreement;
the amount, if any, the settling party is obligated to pay that is expressly specified under the settlement agreement as a civil or criminal penalty or fine;
any payment made under the settlement agreement, including a description of any payment made to the Federal Government;
the projected duration of the settlement agreement, if available;
a list of State or local governments that may be directly affected by the terms of the settlement agreement;
a brief description of any economic data and methodology used to justify the terms of the settlement agreement;
any modifications to the settlement agreement, when applicable;
notice and comments, when applicable; and
whether the settlement agreement is still under judicial enforcement and any period of time by which the parties agreed to have certain conditions met.
A copy of each—
settlement agreement entered into by the Executive agency; and
statement issued under paragraph (4).
The requirement to submit information or a copy of a settlement agreement under subparagraph (A) shall not apply to the extent the information or copy (or portion thereof)—
is subject to a confidentiality provision that prohibits disclosure of the information or copy (or portion thereof); and
would not be disclosed under section 552, if the Executive agency provides a citation to the applicable exemption.
Clarification of responsible agency
In a case in which an Executive agency is acting at the request or on behalf of another Executive agency (referred to as the originating agency), the originating agency is responsible for submitting information under subparagraph (A).
The Director of the Office of Management and Budget shall issue guidance for Executive agencies to implement paragraph (1), which shall include the following:
Specific dates by which submissions must be made, not less than twice a year.
Data standards, including common data elements and a common, nonproprietary, searchable, machine-readable, platform independent format.
A requirement that the information and documents required under paragraph (1) are publicly available for a period starting on the date of the settlement through not less than 5 years after the termination of the settlement agreement.
Establishment of database
The Director of the Office of Management and Budget, or the head of an Executive agency designated by the Director, shall establish and maintain a public, searchable, downloadable database for Executive agencies to directly upload and submit the information and documents required under paragraph (1) for immediate publication online.
Statement of confidentiality
If the head of an Executive agency determines that a confidentiality provision in a settlement agreement, or the sealing of a settlement agreement, is required to protect the public interest of the United States, the head of the Executive agency may except the settlement agreement from the requirement in paragraph (1) and shall issue a written public statement stating why such action is required to protect the public interest of the United States, which shall explain—
what interests confidentiality protects; and
why the interests protected by confidentiality outweigh the public’s interest in knowing about the conduct of the Federal Government and the expenditure of Federal resources.
Technical and conforming amendment
The table of sections for chapter 3 of title 5, United States Code, is amended by adding at the end the following:
307. Information regarding settlement agreements.
Deadline To establish database
Not later than 1 year after the date of enactment of this Act, the Director of the Office of Management and Budget shall—
issue the guidance required under section 307(b)(2) of title 5, United States Code, as added by subsection (a); and
establish the settlement agreement information database required under section 307(b)(3) of title 5, United States Code, as added by subsection (a).
Deadline for first submission
Not later than 90 days after the date on which the Director issues the guidance required under section 307(b)(2) of title 5, United States Code, as added by subsection (a), the head of each Executive agency shall begin submitting information to the database established under such section 307.
Amendments to the Freedom of Information Act
Section 552(a) of title 5, United States Code, is amended—
in paragraph (2)—
by redesignating subparagraphs (B) through (E) as subparagraphs (C) through (F), respectively;
by inserting after subparagraph (A) the following:
each settlement agreement, as defined in section 307, entered into by an Executive agency, with redactions for information that the agency may withhold under paragraph (8) and subsections (b) and (c) of this section;
in subparagraph (F), as so redesignated, by striking
subparagraph (D) and inserting
subparagraph (E); and
in the flush text following subparagraph (F), as so redesignated—
subparagraph (D) and inserting
subparagraph (E); and
subparagraph (E) and inserting
subparagraph (F); and
in paragraph (4)(B), by striking
paragraph (2)(C) and inserting
Rule of construction
Nothing in this Act, or the amendments made by this Act, shall be construed to require the disclosure of information or records that any agency may properly withhold from public disclosure under section 552 of title 5, United States Code (commonly known as the
Freedom of Information Act).
Effective date; applicability
This Act shall—
be effective on the date that is 180 days after the date of enactment of this Act; and
with respect to any settlement agreement entered into on or after the date of the enactment of this Act; and
to the extent practicable, any such settlement agreement that remains in effect on or after the date of enactment of this Act.
Determination of budgetary effects
The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010, shall be determined by reference to the latest statement titled
Budgetary Effects of PAYGO Legislation for this Act, submitted for printing in the Congressional Record by the Chairman of the House Budget Committee, provided that such statement has been submitted prior to the vote on passage.