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-CITE-
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND
EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 -
ADMINISTRATIVE PROCEDURE
SUBCHAPTER II -
ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552.
Public information; agency rules, opinions, orders, records, and proceedings
-STATUTE-
(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;
(C) administrative staff manuals and instructions to
staff that affect a member of the public;
(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, 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 such 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.
(3)(A) Except with respect to the records made
available under paragraphs (1) and (2) of this subsection, and except as
provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (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 agency's 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.
(E) An agency, or part of an agency, that is an element of the intelligence
community (as that term is defined in section 3(4) of the National Security Act
of 1947 (50 U.S.C. 401a(4))) shall not make any record
available under this paragraph to -
(i) any government entity, other than a State, territory,
commonwealth, or district of the
(ii) a
representative of a government entity described in clause (i).
(4)(A)(i)
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.
In this clause, the term "a
representative of the news media" means any person or entity that gathers
information of potential interest to a segment of the public, uses its
editorial skills to turn the raw materials into a distinct work, and
distributes that work to an audience. In this clause, the term "news"
means information that is about current events or that would be of current
interest to the public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of periodicals (but
only if such entities qualify as disseminators of "news") who make their
products available for purchase by or subscription by or free distribution to
the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve
(for example, the adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be considered to be
news-media entities. A freelance journalist shall be regarded as working for a news-media
entity if the journalist can demonstrate a solid basis for expecting
publication through that entity, whether or not the journalist is actually
employed by the entity. A publication contract would present a solid basis for
such an expectation; the Government may also consider the past publication
record of the requester in making such a determination.
(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 (ii) (II) 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 court's review of
the matter shall be limited to the record before the agency.
(viii) An agency shall not assess
search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the
agency fails to comply with any time limit under paragraph (6), if no unusual
or exceptional circumstances (as those terms are defined for purposes of paragraphs
(6)(B) and (C), respectively) apply to the processing of the request.
(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 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 agency's determination as to
technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(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) Repealed. Pub. L.
98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98 Stat. 3357.]
(E)(i) The court may assess against the
(ii) For purposes of this subparagraph, a complainant has substantially
prevailed if the complainant has obtained relief through either -
(I) a judicial order, or an
enforceable written agreement or consent decree; or
(II) a
voluntary or unilateral change in position by the agency, if the complainant's
claim is not insubstantial.
(F)(i)
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.
(ii) The Attorney General shall -
(I) notify the Special Counsel of
each civil action described under the first sentence of clause (i); and
(II) annually
submit a report to Congress on the number of such civil actions in the
preceding year.
(iii) The Special Counsel shall
annually submit a report to Congress on the actions taken by the Special
Counsel under clause (i).
(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.
(6)(A) Each agency, upon any request for records made under paragraph (1), (2),
or (3) of this subsection, shall -
(i)
determine within 20 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 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.
The 20-day period under clause (i) shall commence on
the date on which the request is first received by the appropriate component of
the agency, but in any event not later than ten days after the request is first
received by any component of the agency that is designated in the agency's
regulations under this section to receive requests under this section. The
20-day period shall not be tolled by the agency except -
(I) that the agency may make one
request to the requester for information and toll the 20-day period while it is
awaiting such information that it has reasonably requested from the requester under
this section; or
(II) if
necessary to clarify with the requester issues regarding fee assessment. In
either case, the agency's receipt of the requester's response to the agency's
request for information or clarification ends the tolling period.
(B)(i) 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. To aid the requester, each agency shall make
available its FOIA Public Liaison, who shall assist in the resolution of any
disputes between the requester and the agency. 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.
(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.
(C)(i) 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 a 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.
(D)(i)
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.
(E)(i)
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
(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
(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 person's 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.
(7) Each agency shall -
(A) establish a system to assign an
individualized tracking number for each request received that will take longer
than ten days to process and provide to each person making a request the
tracking number assigned to the request; and
(B) establish
a telephone line or Internet service that provides information about the status
of a request to the person making the request using the assigned tracking number,
including -
(i) the date on which the agency originally received the
request; and
(ii) an
estimated date on which the agency will complete action on the request.
_________________________________________________________
(b) This section does not apply to matters that are -
(1)(A) 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;
(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 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, and the
exemption under which the deletion is made, 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, and the
exemption under which the deletion is made, shall be indicated at the place in
the record where such deletion is made.
_________________________________________________________
(c)(1) Whenever a request is made which involves access to records
described in subsection (b)(7)(A) 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 informant's name or personal identifier are requested by a third party
according to the informant's name or personal identifier, the agency may treat
the records as not subject to the requirements of this section unless the
informant's 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 (b)(1), 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 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.
_________________________________________________________
(e)(1) On or before February 1 of each year, each agency shall submit
to the Attorney General of the
(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;
(B)(i) the number of appeals made by persons under subsection (a)(6),
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 (b)(3), the number of occasions on
which each statute was relied upon, 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 and average 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;
(E) the
median number of days taken by the agency to process different types of
requests, based on the date on which the requests were received by the agency;
(F) the average number of days for the agency to respond to a request beginning
on the date on which the request was received by the agency, the median number
of days for the agency to respond to such requests, and the range in number of
days for the agency to respond to such requests;
(G) based on the number of business days that have
elapsed since each request was originally received by the agency -
(i) the
number of requests for records to which the agency has responded with a
determination within a period up to and including 20 days, and in 20-day
increments up to and including 200 days;
(ii) the number of requests for records to which the
agency has responded with a determination within a period greater than 200 days
and less than 301 days;
(iii) the number of requests for records to which the agency has responded with
a determination within a period greater than 300 days and less than 401 days;
and
(iv) the
number of requests for records to which the agency has responded with a
determination within a period greater than 400 days;
(H) the average number of days for the agency to provide
the granted information beginning on the date on which the request was
originally filed, the median number of days for the agency to provide the
granted information, and the range in number of days for the agency to provide
the granted information;
(I) the median and average number of days for the agency to
respond to administrative appeals based on the date on which the appeals
originally were received by the agency, the highest number of business days
taken by the agency to respond to an administrative appeal, and the lowest
number of business days taken by the agency to respond to an administrative
appeal;
(J) data on the 10 active requests with the earliest filing
dates pending at each agency, including the amount of time that has elapsed
since each request was originally received by the agency;
(K) data on the 10 active administrative appeals with the
earliest filing dates pending before the agency as of September 30 of the
preceding year, including the number of business days that have elapsed since
the requests were originally received by the agency;
(L) the number of expedited review
requests that are granted and denied, the average and median number of days for
adjudicating expedited review requests, and the number adjudicated within the
required 10 days;
(M) the
number of fee waiver requests that are granted and denied, and the average and
median number of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency for
processing requests; and
(O) 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) Information in each report submitted under paragraph
(1) shall be expressed in terms of each principal component of the agency and
for the agency overall.
(3) 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. In addition, each agency shall make the raw statistical
data used in its reports available electronically to the public upon
request.
(4) The Attorney General of the
(5) The Attorney General of the
(6) 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 (a)(4). 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 -
(1) "agency" as defined in section 551(1) 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 -
(A) 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; and
(B) any
information described under subparagraph (A) that is maintained for an agency by
an entity under Government contract, for the purposes of records management.
_________________________________________________________
(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 -
(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.
_________________________________________________________
(h)(1) There is established the Office of Government
Information Services within the National Archives and Records Administration.
(2) The Office of Government Information Services shall -
(A) review policies and procedures of administrative
agencies under this section;
(B) review
compliance with this section by administrative agencies; and
(C) recommend
policy changes to Congress and the President to improve the administration of
this section.
(3) The Office of Government Information Services shall
offer mediation services to resolve disputes between persons making requests
under this section and administrative agencies as a non-exclusive alternative to
litigation and, at the discretion of the Office, may issue advisory opinions if
mediation has not resolved the dispute.
_________________________________________________________
(i) The Government Accountability Office shall conduct audits
of administrative agencies on the implementation of this section and issue
reports detailing the results of such audits.
_________________________________________________________
(j) Each agency shall designate a Chief FOIA Officer who shall
be a senior official of such agency (at the Assistant Secretary or equivalent
level).
_________________________________________________________
(k) The Chief FOIA Officer of each agency shall, subject to
the authority of the head of the agency -
(1) have
agency-wide responsibility for efficient and appropriate compliance with this
section;
(2) monitor implementation of this
section throughout the agency and keep the head of the agency, the chief legal
officer of the agency, and the Attorney General appropriately informed of the
agency's performance in implementing this section;
(3) recommend to the head of the agency such adjustments to
agency practices, policies, personnel, and funding as may be necessary to
improve its implementation of this section;
(4) review and report to the
Attorney General, through the head of the agency, at such times and in such
formats as the Attorney General may direct, on the agency's performance in
implementing this section;
(5) facilitate public understanding of the purposes of the
statutory exemptions of this section by including concise descriptions of the
exemptions in both the agency's handbook issued under subsection (g), and the
agency's annual report on this section, and by providing an overview, where
appropriate, of certain general categories of agency records to which those
exemptions apply; and
(6) designate
one or more FOIA Public Liaisons.
_________________________________________________________
(l) FOIA Public Liaisons shall report to the agency Chief FOIA
Officer and shall serve as supervisory officials to whom a requester under this
section can raise concerns about the service the requester has received from the
_________________________________________________________
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub.
L. 90-23, Sec. 1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, Secs. 1-3,
Nov. 21, 1974, 88 Stat. 1561-1564; Pub. L. 94-409, Sec. 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-454,
title IX, Sec. 906(a)(10), Oct.
13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98
Stat. 3357; Pub. L. 99-570, title I, Secs. 1802,
1803, Oct. 27, 1986, 100 Stat. 3207-48, 3207-49; Pub. L. 104-231, Secs. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054; Pub. L.
107-306, title III, Sec. 312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110-175,
Secs. 3, 4(a), 5, 6(a)(1),
(b)(1), 7(a), 8-10(a), 12, Dec. 31, 2007, 121 Stat. 2525-2530.)
-MISC1-
HISTORICAL AND REVISION NOTES
1966 ACT
--------------------------------------------------------------------
Derivation
--------------------------------------------------------------------
5 U.S.C. 1002. June 11, 1946,
ch. 324, Sec. 3, 60 Stat.
238.
--------------------------------------------------------------------
In subsection (b)(3), the words "formulated and" are omitted as
surplusage. In the last sentence
of subsection (b), the words "in any manner" are omitted as surplusage since the prohibition is all
inclusive.
Standard changes are made to conform with the definitions applicable and the style of
this title as outlined in the preface to the report.
1967 ACT
Section 1 [of Pub. L. 90-23] amends section 552 of title 5, United States
Code, to reflect Public Law 89-487. In subsection (a)(1)(A), the words "employees (and in the case of a
uniformed service, the member)" are substituted for "officer" to retain the
coverage of Public Law 89-487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words "A final order * * * may be relied
on * * * only if" are substituted for "No final order * * * may be relied upon *
* * unless"; and the words "a party other than an agency" and "the party" are
substituted for "a private party" and "the private party", respectively, on
authority of the definition of "private party" in 5 App. U.S.C.
1002(g).
In subsection (a)(3), the words "the responsible employee, and in
the case of a uniformed service, the responsible member" are substituted for
"the responsible officers" to retain the coverage of Public Law 89-487 and to
conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In subsection (a)(4), the words "shall maintain and make available
for public inspection a record" are substituted for "shall keep a record * * *
and that record shall be available for public inspection".
In subsection (b)(5) and (7), the words "a party other than
an agency" are substituted for "a private party" on authority of the definition
of "private party" in 5 App. U.S.C. 1002(g).
In subsection (c), the words "This section does not
authorize" and "This section is not authority" are substituted for "Nothing in
this section authorizes" and "nor shall this section be authority",
respectively.
5 App. U.S.C. 1002(g), defining
"private party" to mean a party other than an agency, is omitted since the words
"party other than an agency" are substituted for the words "private party"
wherever they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing
the effective date, is omitted as unnecessary. That effective date is prescribed
by section 4 of this bill.
-COD-
CODIFICATION
Section 552 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2243 of Title 7,
Agriculture.
-MISC2-
AMENDMENTS
2007 - Subsec. (a)(4)(A)(ii). Pub. L. 110-175, Sec. 3,
inserted concluding provisions.
Subsec. (a)(4)(A)(viii). Pub. L. 110-175, Sec. 6(b)(1)(A), added cl. (viii).
Subsec. (a)(4)(E). Pub. L. 110-175, Sec. 4(a), designated existing
provisions as cl. (i) and added
cl. (ii).
Subsec. (a)(4)(F). Pub. L. 110-175, Sec. 5, designated existing
provisions as cl. (i) and added
cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110-175, Sec. 6(a)(1), inserted concluding
provisions.
Subsec. (a)(6)(B)(ii). Pub. L. 110-175, Sec. 6(b)(1)(B), inserted after the first
sentence "To aid the requester, each agency shall make available its FOIA Public
Liaison, who shall assist in the resolution of any disputes between the
requester and the agency."
Subsec. (a)(7). Pub. L. 110-175, Sec. 7(a), added par.
(7). Subsec. (b). Pub. L. 110-175, Sec. 12, in concluding provisions, inserted ",
and the exemption under which the deletion is made," after "The amount of
information deleted" in second sentence and after "the amount of the information
deleted" in third sentence.
Subsec. (e)(1)(B)(ii). Pub. L. 110-175, Sec. 8(a)(1), inserted "the number of occasions
on which each statute was relied upon," after "subsection (b)(3),".
Subsec. (e)(1)(C). Pub. L. 110-175, Sec. 8(a)(2), inserted "and average" after
"median".
Subsec. (e)(1)(E). Pub. L. 110-175, Sec. 8(a)(3), inserted before semicolon ", based
on the date on which the requests were received by the agency".
Subsec. (e)(1)(F) to (O). Pub. L. 110-175, Sec. 8(a)(4), (5), added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.
Subsec. (e)(2). Pub. L. 110-175, Sec. 8(b)(2), added par. (2).
Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 110-175, Sec. 8(b)(1), (c), redesignated par. (2) as (3) and inserted at end "In addition, each agency
shall make the raw statistical data used in its reports available electronically
to the public upon request."
Former par. (3) redesignated (4).
Subsec. (e)(4) to (6). Pub. L. 110-175, Sec. 8(b)(1), redesignated pars. (3) to (5) as (4) to (6),
respectively.
Subsec. (f)(2). Pub. L. 110-175, Sec. 9, added par. (2) and struck out former par. (2) which read as follows: " '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."
Subsecs. (h) to (l). Pub. L. 110-175, Sec. 10(a), added subsecs. (h) to (l).
2002 - Subsec. (a)(3)(A). Pub. L. 107-306, Sec. 312(1),
inserted "and except as provided in subparagraph (E)," after "of this
subsection,".
Subsec. (a)(3)(E). Pub. L. 107-306, Sec. 312(2), added
subpar. (E).
1996 - Subsec. (a)(2). Pub. L. 104-231, Sec. 4(4), (5), in
first sentence struck out "and" at end of subpar. (B) and inserted subpars. (D) and (E).
Pub. L. 104-231, Sec. 4(7), inserted after first
sentence "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."
Pub. L. 104-231, Sec. 4(1), in second sentence
substituted "staff manual, instruction, or copies of records referred to in
subparagraph (D)" for "or staff manual or instruction".
Pub. L. 104-231, Sec. 4(2), inserted before period
at end of third sentence ", 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".
Pub. L. 104-231, Sec. 4(3), inserted after third
sentence "If technically feasible, the extent of the deletion shall be indicated
at the place in the record where the deletion was made."
Pub. L. 104-231, Sec. 4(6), which directed the
insertion of the following new sentence after the fifth sentence "Each agency
shall make the index referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999.", was executed by making the insertion
after the sixth sentence, to reflect the probable intent of Congress and the
addition of a new sentence by section 4(3) of Pub. L. 104-231.
Subsec. (a)(3). Pub. L. 104-231, Sec. 5, inserted subpar.
(A) designation after "(3)", redesignated subpars. (A) and (B) as cls. (i) and
(ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104-231, Sec. 6, inserted at
end "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 agency's determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph
(3)(B)."
Subsec. (a)(6)(A)(i). Pub. L. 104-231, Sec. 8(b), substituted "20
days" for "ten days".
Subsec. (a)(6)(B). Pub. L. 104-231, Sec. 7(b), amended
subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "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."
Subsec. (a)(6)(C). Pub. L. 104-231, Sec. 7(c), designated
existing provisions as cl. (i)
and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104-231, Sec. 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104-231, Sec. 8(a), (c), added subpars. (E) and (F).
Subsec. (b). Pub. L. 104-231, Sec. 9, inserted at end of
closing provisions "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."
Subsec. (e). Pub. L. 104-231, Sec. 10, amended subsec. (e) generally, revising and restating provisions
relating to reports to Congress.
Subsec. (f). Pub. L. 104-231, Sec. 3, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "For purposes of
this section, the term 'agency' as defined in section 551(1) 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."
Subsec. (g). Pub. L. 104-231, Sec. 11, added subsec. (g).
1986 - Subsec. (a)(4)(A). Pub. L. 99-570, Sec. 1803,
amended subpar. (A) generally.
Prior to amendment, subpar. (A)
read as follows: "In order to
carry out the provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, specifying a
uniform schedule of fees applicable to all constituent units of such agency.
Such fees shall be limited to reasonable standard charges for document search
and duplication and provide for recovery of only the direct costs of such search
and duplication. Documents shall 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."
Subsec. (b)(7). Pub. L. 99-570, Sec. 1802(a), amended par.
(7) generally. Prior to amendment,
par. (7) read as follows:
"investigatory records compiled for law
enforcement purposes, but only to the extent that the production of such records
would (A) interfere with enforcement proceedings, (B) deprive a person of a
right to a fair trial or an impartial adjudication, (C) constitute an
unwarranted invasion of personal privacy, (D) disclose the identity of a
confidential source and, in the case of a record 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, confidential
information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel;".
Subsecs. (c) to (f).
Pub. L. 99-570, Sec. 1802(b),
added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
1984 - Subsec. (a)(4)(D). Pub. L. 98-620 repealed subpar.
(D) which provided for precedence
on the docket and expeditious disposition of district court proceedings
authorized by subsec. (a).
1978 - Subsec. (a)(4)(F). Pub. L. 95-454 substituted
references to the Special Counsel for references to the Civil Service Commission
wherever appearing and reference to his findings for reference to its
findings.
1976 - Subsec. (b)(3). Pub. L. 94-409 inserted provision
excluding section 552b of this title from applicability of exemption from
disclosure and provision setting forth conditions for statute specifically
exempting disclosure.
1974 - Subsec. (a)(2). Pub. L. 93-502, Sec. 1(a),
substituted provisions relating to maintenance and availability of current
indexes, for provisions relating to maintenance and availability of a current
index, and inserted provisions relating to publication and distribution of
copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93-502, Sec. 1(b)(1), substituted
provisions requiring requests to reasonably describe records for provisions
requiring requests, for identifiable records, and struck out provisions setting
forth procedures to enjoin agencies from withholding the requested records and
ordering their production.
Subsec. (a)(4), (5). Pub. L. 93-502, Sec. 1(b)(2), added par. (4) and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93-502, Sec. 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93-502, Sec. 2(a), designated existing provisions as cl. (A),
substituted "authorized under criteria established by an" for "required by", and
added cl. (B). Subsec. (b)(7). Pub. L. 93-502, Sec. 2(b), substituted
provisions relating to exemption for investigatory records compiled for law
enforcement purposes, for provisions relating to exemption for investigatory
files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93-502, Sec. 2(c), inserted
provision relating to availability of segregable portion of records.
Subsecs. (d), (e). Pub. L. 93-502, Sec. 3, added subsecs. (d) and (e).
1967 - Subsec. (a). Pub. L. 90-23 substituted introductory statement
requiring every agency to make available to the public certain information for
former introductory provision excepting from disclosure (1) any function of the
Subsec. (a)(1). Pub. L. 90-23 incorporated provisions of:
former subsec. (b)(1) in (A),
inserting requirement of publication of names of officers as sources of
information and provision for public to obtain decisions, and striking out
publication requirement for delegations by the agency of final authority; former
subsec. (b)(2), introductory
part, in (B); former subsec.
(b)(2), concluding part, in (C), inserting publication requirement for rules of
procedure and descriptions of forms available or the places at which forms may
be obtained; former subsec.
(b)(3), introductory part, in (D), inserting
requirement of general applicability of substantive rules and interpretations,
added clause (E), substituted exemption of any person from failure to
resort to any matter or from being adversely affected by any
matter required to be published in the Federal Register but not so published for
former subsec. (b)(3), concluding
part, excepting from publication rules addressed to and served upon named
persons in accordance with laws and final sentence reading "A person may not be
required to resort to organization or procedure not so published" and inserted
provision deeming matter, which is reasonably available, as published in the
Federal Register when such matter is incorporated by reference in the Federal
Register with the approval of its Director.
Subsec. (a)(2). Pub. L. 90-23 incorporated provisions of
former subsec. (c), provided for
public copying of records, struck out requirement of agency publication of final
opinions or orders and authority for secrecy and withholding of opinions and
orders required for good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec. (b) of this section, designated existing subsec. (c) as clause (A), including
provision for availability of concurring and dissenting opinions, inserted
provisions for availability of policy statements and interpretations in clause
(B) and staff manuals and instructions in clause (C), deletion of personal
identifications from records to protect personal privacy with written
justification therefor, and
provision for indexing and prohibition of use of records not indexed against any
private party without actual and timely notice of the terms thereof.
Subsec. (a)(3). Pub. L. 90-23 incorporated provisions of former
subsec. (d) and substituted provisions requiring identifiable
agency records to be made available to any person upon request and compliance
with rules as to time, place, and procedure for inspection, and payment of fees
and provisions for Federal district court proceedings de novo for enforcement by contempt of
noncompliance with court's orders with the burden on the agency and docket
precedence for such proceedings for former provisions requiring matters of
official record to be made available to persons properly and directly concerned
except information held confidential for good cause shown, the latter provision superseded by
subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90-23 added par. (4). Subsec. (b). Pub. L. 90-23 added subsec. (b) which superseded provisions excepting from disclosure any function of the
contained in subsec.
(c), and information held confidential for good cause found, contained in former
subsec. (d) of this section.
Subsec. (c). Pub. L. 90-23 added subsec. (c). -CHANGE- CHANGE OF NAME
Committee on Governmental Affairs of Senate changed to Committee on Homeland
Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate
Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004. Committee on Government Reform and Oversight of House of
Representatives changed to Committee on Government Reform of House of
Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government
Reform of House of Representatives changed to Committee on Oversight and
Government Reform of House of Representatives by House Resolution No. 6, One
Hundred Tenth Congress, Jan. 5,
2007.
-MISC3-
EFFECTIVE DATE OF 2007 AMENDMENT
Pub. L. 110-175, Sec. 6(a)(2), Dec. 31, 2007, 121 Stat. 2526,
provided that: "The amendment made by this subsection [amending this section]
shall take effect 1 year after the date of enactment of this Act [Dec. 31,
2007]."
Pub. L. 110-175, Sec. 6(b)(2), Dec. 31, 2007, 121 Stat. 2526, provided that:
"The amendment made by this subsection [amending this section] shall take effect
1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to
requests for information under section 552 of title 5, United States Code, filed
on or after that effective date."
Pub. L. 110-175, Sec. 7(b), Dec. 31, 2007, 121 Stat.
2527, provided that: "The amendment made by this section [amending this section]
shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007]
and apply to requests for information under section 552 of title 5, United
States Code, filed on or after that effective date."
Pub. L. 110-175, Sec. 10(b), Dec. 31, 2007, 121 Stat. 2530,
provided that: "The amendments made by this section [amending this section]
shall take effect on the date of enactment of this Act [Dec. 31, 2007]."
EFFECTIVE DATE OF 1996 AMENDMENT
Section 12 of Pub. L. 104-231 provided that:
"(a) In
General. - Except as provided in subsection (b), this Act [amending this section
and enacting provisions set out as notes below] shall take effect 180 days after
the date of the enactment of this Act [Oct. 2, 1996].
"(b) Provisions Effective on
Enactment [sic]. - Sections 7 and 8 [amending this section] shall take effect
one year after the date of the enactment of this Act [Oct. 2, 1996]."
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99-570 provided that:
"(a) The amendments made by section 1802
[amending this section] shall be effective on the date of enactment of this Act
[Oct. 27, 1986], and shall apply with respect to any requests for records,
whether or not the request was made prior to such date, and shall apply to any
civil action pending on such date.
"(b)(1) The
amendments made by section 1803 [amending this section] shall be effective 180
days after the date of enactment of this Act [Oct. 27, 1986], except that
regulations to implement such amendments shall be promulgated by such 180th
day.
"(2) The amendments made by
section 1803 [amending this section] shall apply with respect to any requests
for records, whether or not the request was made prior to such date, and shall
apply to any civil action pending on such date, except that review charges
applicable to records requested for commercial use shall not be applied by an
agency to requests made before the effective date specified in paragraph (1) of
this subsection or before the agency has finally issued its regulations."
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases
pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an
Effective Date note under section 1657 of Title 28, Judiciary and Judicial
Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective 90 days after
Oct. 13, 1978, see section 907 of Pub. L.
95-454, set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after
Sept. 13, 1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93-502 provided that: "The
amendments made by this Act [amending this section] shall take effect on the
ninetieth day beginning after the date of enactment of this Act [Nov. 21,
1974]."
EFFECTIVE DATE OF 1967 AMENDMENT
Section 4 of Pub. L. 90-23 provided that: "This Act [amending this section]
shall be effective July 4, 1967, or on the date of enactment [June 5, 1967],
whichever is later."
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-231 provided that: "This Act [amending this section
and enacting provisions set out as notes under this section] may be cited as the
'Electronic Freedom of Information Act Amendments of 1996'."
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99-570 provided that: "This subtitle [subtitle N (Secs. 1801-1804) of title I of Pub. L.
99-570, amending this section and enacting provisions set out as a note under
this section] may be cited as the 'Freedom of Information Reform Act of
1986'."
SHORT TITLE
This section is popularly known as the "Freedom of
Information Act".
FINDINGS
Pub. L. 110-175, Sec. 2, Dec. 31, 2007, 121 Stat. 2524,
provided that: "Congress finds that - "(1) the Freedom of Information Act
[probably means Pub. L. 89-487 which amended section 1002 of former Title 5,
Executive Departments and Government Officers and Employees, see Historical and
Revision notes above] was signed into law on July 4, 1966, because the American
people believe that -
"(A) our constitutional democracy, our system of self-government, and our commitment to
popular sovereignty depends upon the consent of the governed;
"(B) such
consent is not meaningful unless it is informed consent; and
"(C) as
Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), 'The effective
functioning of a free government like ours depends largely on the force of an
informed public opinion. This calls for the widest possible understanding of the
quality of government service rendered by all elective or appointed public
officials or employees.';
"(2) the
American people firmly believe that our system of government must itself be
governed by a presumption of openness;
"(3) the Freedom of Information Act establishes a 'strong
presumption in favor of disclosure' as noted by the United States Supreme Court
in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption
that applies to all agencies governed by that Act;
"(4) 'disclosure, not secrecy, is
the dominant objective of the Act,' as noted by the United States Supreme Court
in Department of Air Force v. Rose (425
"(5) in practice, the Freedom of Information Act has not
always lived up to the ideals of that Act; and
"(6) Congress should regularly review section 552 of title
5, United States Code (commonly referred to as the Freedom of Information Act),
in order to determine whether further changes and improvements are necessary to
ensure that the Government remains open and accessible to the American people
and is always based not upon the 'need to know' but upon the fundamental
'right to know'."
LIMITATION ON AMOUNTS OBLIGATED OR EXPENDED FROM CLAIMS
AND
JUDGMENT FUND
Pub. L. 110-175, Sec. 4(b), Dec. 31, 2007, 121 Stat.
2525, provided
that: "Notwithstanding section 1304 of title 31, United States Code, no amounts
may be obligated or expended from the Claims and Judgment Fund of the United
States Treasury to pay the costs resulting from fees assessed under section
552(a)(4)(E) of title 5, United States Code. Any such amounts
shall be paid only from funds annually appropriated for any authorized purpose
for the Federal agency against which a claim or judgment has been rendered."
NONDISCLOSURE OF CERTAIN PRODUCTS OF COMMERCIAL SATELLITE
OPERATIONS
Pub. L. 108-375, div. A, title IX, Sec. 914, Oct.
28, 2004, 118 Stat. 2029, provided that:
"(a) Mandatory Disclosure Requirements Inapplicable. -
The requirements to make information available under section 552 of title 5,
United States Code, shall not apply to land remote sensing information.
"(b) Land Remote Sensing
Information Defined. - In this section,
the
term 'land remote sensing information' -
"(1) means any data that - "(A) are collected by land remote sensing;
and "(B) are prohibited from sale to customers other than the United States
Government and United States Government-approved customers for reasons of
national security pursuant to the terms of an operating license issued pursuant
to the Land Remote Sensing Policy Act of 1992 (15 U.S.C. 5601 et seq.); and
"(2) includes
any imagery and other product that is derived from such data and which is
prohibited from sale to customers other than the United States Government and
United States Government-approved customers for reasons of national security
pursuant to
the terms of an operating license described in paragraph (1)(B).
"(c) State or Local Government Disclosures. - Land
remote sensing information provided by the head of a department or agency of the
"(d)
Safeguarding Information. - The head of each department or agency of the
United States having land remote sensing information within that department or
agency or providing such information to a State, local, or tribal government shall take such actions,
commensurate with the sensitivity of that information, as are necessary to
protect that information from disclosure other than in accordance with this
section and other applicable law.
"(e)
Additional Definition. - In this section, the term 'land remote sensing'
has the meaning given such term in section 3 of the Land Remote Sensing Policy
Act of 1992 (15 U.S.C. 5602).
"(f)
Disclosure to Congress. - Nothing in this section shall be construed to
authorize the withholding of information from the appropriate committees of
Congress."
DISCLOSURE OF ARSON, EXPLOSIVE, OR FIREARM
RECORDS
Pub. L. 108-7, div. J, title VI, Sec. 644, Feb. 20,
2003, 117 Stat. 473, provided that: "No funds appropriated under this Act or any
other Act with respect to any fiscal year shall be available to take any action
based upon any provision of 5 U.S.C. 552 with respect to records collected or
maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal,
State, local, or foreign law enforcement agencies in connection with arson or
explosives incidents or the tracing of a firearm, except that such records may
continue to be disclosed to the extent and in the manner that records so
collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior
to the date of the enactment of this Act [Feb. 20, 2003]."
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL GOVERNMENT
Pub. L. 106-567, title VIII, Dec. 27, 2000, 114 Stat. 2864, as
amended by Pub. L. 108-199, div. H, Sec. 163, Jan. 23, 2004, 118 Stat. 452; Pub.
L. 109-5, Sec. 1, Mar. 25, 2005, 119 Stat. 19, provided that:
"SEC. 801. SHORT
TITLE.
"This title may be cited as the 'Japanese
Imperial Government Disclosure Act of 2000'.
"SEC. 802. DESIGNATION.
"(a) Definitions. - In this section:
"(1)
Agency. - The term 'agency' has the meaning given such term under section
551 of title 5, United States Code.
"(2)
Interagency group. - The term 'Interagency Group' means the Nazi War
Crimes and Japanese Imperial Government Records Interagency Working Group
established under subsection (b).
"(3)
Japanese imperial government records. - The term 'Japanese Imperial
Government records' means classified records or portions of records that pertain
to any person with respect to whom the United States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or otherwise participated in the
experimentation on, and persecution of, any person because of race, religion,
national origin, or political opinion, during the period beginning September 18,
1931, and ending on December 31, 1948, under the direction of, or in association
with -
"(A) the Japanese Imperial
Government;
"(B) any
government in any area occupied by the military forces of the Japanese Imperial
Government;
"(C) any
government established with the assistance or cooperation of the Japanese
Imperial Government; or
"(D) any
government which was an ally of the Japanese Imperial Government.
"(4) Record. - The term 'record' means a Japanese Imperial Government
record.
"(b) Establishment of Interagency Group. -
"(1) In general. - Not later than 60 days after the date
of the enactment of this Act [Dec. 27, 2000], the President shall designate the
Working Group established under the Nazi War Crimes Disclosure Act (Public Law
105-246; 5 U.S.C. 552 note) to also carry out the purposes of this title with
respect to Japanese Imperial Government records, and that Working Group shall
remain in existence for 6 years after the date on which this title takes effect.
Such Working Group is redesignated as the 'Nazi War Crimes and Japanese
Imperial Government Records Interagency Working Group'.
"(2) Membership. - [Amended
Pub. L. 105-246, set out as a note below.]
"(c) Functions. - Not later than 1 year after the date of the enactment of
this Act [Dec. 27, 2000], the Interagency Group shall, to the greatest extent
possible consistent with section 803 -
"(1) locate, identify, inventory,
recommend for declassification, and make available to the public at the
National Archives and Records Administration, all
classified Japanese Imperial Government records of the
"(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public; and
"(3) submit a report to Congress, including
the Committee on Government Reform [now Committee on Oversight and Government
Reform] and the Permanent Select Committee on Intelligence of the House of
Representatives, and the Committee on the Judiciary and the Select Committee on
Intelligence of the Senate, describing all such records, the disposition of such
records, and the activities of the Interagency Group and agencies under this
section.
"(d)
Funding. - There is authorized to be appropriated such sums as may be
necessary to carry out the provisions of this title.
"SEC. 803. REQUIREMENT OF
DISCLOSURE OF RECORDS.
"(a) Release
of Records. - Subject to subsections (b), (c), and (d), the Japanese Imperial
Government Records Interagency Working Group shall release in their entirety
Japanese Imperial Government records.
"(b) Exemptions. - An agency head may exempt from release under subsection
(a) specific information, that
would -
"(1) constitute an unwarranted invasion of personal
privacy;
"(2) reveal
the identity of a confidential human source, or reveal information about an
intelligence source or method when the unauthorized disclosure of that source or
method would damage the national security interests of the
"(3) reveal information that would assist in the
development or use of weapons of mass destruction;
"(4) reveal information that would impair
"(5) reveal information that would impair the application
of state-of-the-art technology within a
"(6) reveal
"(7) reveal information that would impair relations between
the
"(8) reveal
information that would impair the current ability of United States Government
officials to protect the President, Vice President, and other officials for whom
protection services are authorized in the interest of national security;
"(9) reveal information that would impair current
national security emergency preparedness plans; or
"(10) violate
a treaty or other international agreement.
"(c) Applications of Exemptions. -
"(1) In general. - In applying the exemptions provided in
paragraphs (2) through (10) of subsection (b), there shall be a presumption that
the public interest will be served by disclosure and release of the records of
the Japanese Imperial Government. The exemption may be asserted only when the
head of the agency that maintains the records determines that disclosure and
release would be harmful to a specific interest identified in the exemption. An
agency head who makes such a determination shall promptly report it to the
committees of Congress with appropriate jurisdiction, including the Committee on
the Judiciary and the Select Committee on Intelligence of the Senate and the
Committee on Government Reform [now Committee on Oversight and Government
Reform] and the Permanent Select Committee on Intelligence of the House of
Representatives.
"(2) Application of title 5. - A determination by an agency head to apply an exemption
provided in paragraphs (2) through (9) of subsection (b) shall be subject to the
same standard of review that applies in the case of records withheld under
section 552(b)(1) of title 5, United States Code.
"(d) Records Related to
Investigations or Prosecutions. - This section shall not apply to records -
"(1) related
to or supporting any active or inactive investigation, inquiry, or prosecution
by the Office of Special Investigations of the Department of Justice; or "(2)
solely in the possession, custody, or control of the Office of Special
Investigations.
"SEC. 804. EXPEDITED
PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.
"For purposes of expedited processing under section
552(a)(6)(E) of title 5, United States Code, any person who was persecuted in
the manner described in section 802(a)(3) and who requests a Japanese Imperial
Government record shall be deemed to have a compelling need for such record.
"SEC. 805. EFFECTIVE
DATE.
"The provisions of this title shall take effect on the date
that is 90 days after the date of the enactment of this Act [Dec. 27,
2000]."
NAZI WAR CRIMES DISCLOSURE
Pub. L. 105-246, Oct. 8, 1998, 112 Stat. 1859, as amended by
Pub. L. 106-567, Sec. 802(b)(2),
Dec. 27, 2000, 114 Stat. 2865, provided that:
"SECTION 1. SHORT
TITLE.
"This Act may be cited as the 'Nazi War Crimes Disclosure
Act'.
"SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY
WORKING GROUP.
"(a) Definitions. - In this section the term -
"(1) 'agency' has the meaning given such term under section
551 of title 5, United States Code;
"(2) 'Interagency Group' means the Nazi War Criminal
Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial
Government Records Interagency Working Group, see section 802(b)(1) of Pub. L.
106-567, set out above] established under subsection (b);
"(3) 'Nazi war criminal records'
has the meaning given such term under section 3 of this Act; and
"(4) 'record' means a Nazi war criminal record.
"(b) Establishment of Interagency Group. -
"(1) In
general. - Not later than 60 days after the date of enactment of this Act [Oct.
8, 1998], the President shall establish the Nazi War Criminal Records
Interagency Working Group, which shall remain in existence for 3 years after the
date the Interagency Group is established.
"(2) Membership. - The President shall appoint to
the Interagency Group individuals whom the President determines will most
completely and effectively carry out the functions of the Interagency Group
within the time limitations provided in this section, including the Director of
the Holocaust Museum, the Historian of the Department of State, the Archivist of
the United States, the head of any other agency the President considers
appropriate, and no more than 4 other persons who shall be members of the
public, of whom 3 shall be persons appointed under the provisions of this Act in
effect on October 8, 1998..[sic] The head of an agency appointed by the
President may designate an appropriate officer to serve on the Interagency Group
in lieu of the head of such agency.
"(3) Initial meeting. - Not later than 90 days after
the date of enactment of this Act, the Interagency Group shall hold an initial
meeting and begin the functions required under this section.
"(c) Functions. - Not later than 1 year after the
date of enactment of this Act [Oct. 8, 1998], the Interagency Group shall, to
the greatest extent possible consistent with section 3 of this Act -
"(1) locate, identify, inventory,
recommend for declassification, and make available to the public at the
National Archives and Records Administration,
all classified Nazi war criminal records of the
"(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public; and
"(3) submit a report to Congress, including the Committee
on the Judiciary of the Senate and the Committee on Government Reform and
Oversight [now Committee on Oversight and Government Reform] of the House of
Representatives, describing all such records, the disposition of such records,
and the activities of
the Interagency Group and agencies under this section.
"(d)
Funding. - There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act.
"SEC.
3. REQUIREMENT OF DISCLOSURE OF
RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.
"(a) Nazi War Criminal Records. - For purposes of this
Act, the term 'Nazi war criminal records' means classified records or portions
of records that -
"(1) pertain to any person with respect to
whom the United States Government, in its sole discretion, has grounds to
believe ordered, incited, assisted, or otherwise participated in the persecution
of any person because of race, religion, national origin, or political opinion,
during the period beginning on March 23, 1933, and ending on May 8, 1945, under
the direction of, or in association with -
"(A) the Nazi government of
"(B) any government in any area occupied by the military
forces of the Nazi government of
"(C) any government established with the assistance or
cooperation of the Nazi government of
"(D) any government which was an ally of the Nazi
government of
"(2) pertain to any transaction as to which
the United States Government, in its sole discretion, has grounds to believe -
"(A) involved assets taken from persecuted
persons during the period beginning on March 23, 1933, and ending on May 8,
1945, by, under the direction of, on behalf of, or under authority granted by
the Nazi government of Germany or any nation then allied with that government;
and
"(B) such transaction was completed without the assent of
the owners of those assets or their heirs or assigns or other legitimate
representatives.
"(b)
Release of Records. -
"(1) In general. - Subject to paragraphs (2), (3), and
(4), the Nazi War Criminal Records Interagency Working Group shall release in
their entirety Nazi war criminal records that are described in subsection
(a).
"(2) Exception for privacy, etc. - An agency head may
exempt from release under paragraph (1) specific information, that would -
"(A) constitute a clearly unwarranted invasion of personal
privacy;
"(B) reveal
the identity of a confidential human source, or reveal information about the
application of an intelligence source or method, or reveal the identity of a
human intelligence source when the unauthorized disclosure of that source would
clearly and demonstrably damage the national security interests of the
"(C) reveal information that would assist in the
development or use of weapons of mass destruction;
"(D) reveal information that would impair
"(E) reveal information that would impair the application
of state-of-the-art technology within a
"(F) reveal actual
"(G) reveal information that would seriously and
demonstrably impair relations between the
"(H) reveal information that would clearly and
demonstrably impair the current ability of United States Government officials to
protect the President, Vice President, and other officials for whom protection
services, in the interest of national security, are authorized;
"(I) reveal information that would seriously
and demonstrably impair current national security emergency preparedness
plans; or
"(J) violate a treaty or international agreement.
"(3)
Application of exemptions. -
"(A) In
general. - In applying the exemptions listed in subparagraphs (B) through
(J) of paragraph (2), there shall be a presumption that the public interest in
the release of Nazi war criminal records will be served by disclosure and
release of the records. Assertion of such exemption may only be made when the
agency head determines that disclosure and release would be harmful to a
specific interest identified in the exemption. An agency head who makes such a
determination shall promptly report it to the committees of Congress
with appropriate
jurisdiction, including the Committee on the Judiciary of the Senate and the
Committee on Government Reform and Oversight [now Committee on Oversight and
Government Reform] of the House of Representatives. The exemptions set forth in
paragraph (2) shall constitute the only authority pursuant to which an agency
head may exempt records otherwise subject to release under paragraph (1).
"(B)
Application of title 5. - A determination by an agency head to apply an
exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be
subject to the same standard of review that applies in the case of records
withheld under section 552(b)(1) of title 5, United States Code.
"(4)
Limitation on application. - This subsection shall not apply to records -
"(A) related to or supporting any active or
inactive investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
"(B) solely in the possession, custody, or control of
that office.
"(c)
Inapplicability of National Security Act of 1947 Exemption. -
Section 701(a) of the National Security Act of
1947 (50 U.S.C. 431[(a)]) shall not apply to any operational file, or any
portion of any operational file, that constitutes a Nazi war criminal record
under section 3 of this Act.
"SEC.
4. EXPEDITED PROCESSING OF FOIA
REQUESTS FOR NAZI WAR CRIMINAL RECORDS.
"(a) Expedited Processing. - For purposes of expedited
processing under section 552(a)(6)(E) of title 5, United States Code, any
requester of a Nazi war criminal record shall be deemed to have a compelling
need for such record.
"(b)
Requester. - For purposes of this section, the term 'requester' means any
person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war
criminal record.
"SEC.
5. EFFECTIVE DATE.
"This Act and the amendments made by this Act
shall take effect on the date that is 90 days after the date of enactment of
this Act [Oct. 8, 1998]."
CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE; PUBLIC
ACCESS TO INFORMATION IN ELECTRONIC FORMAT
Section
2 of Pub. L. 104-231 provided that:
"(a) Findings. - The Congress finds that -
"(1) the purpose of section 552 of title 5,
United States Code, popularly known as the Freedom of Information Act, is to
require agencies of the Federal Government to make certain agency information
available for public inspection and copying and to establish and enable
enforcement of the right of any person to obtain access to the records of such
agencies, subject to statutory exemptions, for any public or private purpose;
"(2) since the enactment of the Freedom of Information Act
in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information
Act has been a valuable means through which any person can learn how the Federal
Government operates;
"(3) the
Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and
wrongdoing in the Federal Government;
"(4) the
Freedom of Information Act has led to the identification of unsafe consumer
products, harmful drugs, and serious health hazards;
"(5) Government agencies increasingly use computers to
conduct agency business and to store publicly valuable agency records and
information; and
"(6) Government agencies should use new technology to
enhance public access to agency records and information.
"(b) Purposes. - The purposes of this Act [see Short
Title of 1996 Amendment note above] are to -
"(1) foster democracy by ensuring public access to agency
records and information;
"(2) improve public access to
agency records and information;
"(3) ensure
agency compliance with statutory time limits; and
"(4) maximize
the usefulness of agency records and information collected, maintained, used,
retained, and disseminated by the Federal Government."
FREEDOM OF INFORMATION ACT EXEMPTION FOR
CERTAIN OPEN SKIES TREATY
DATA
Pub. L. 103-236, title V, Sec. 533, Apr. 30, 1994,
108 Stat. 480, provided that:
"(a) In General. - Data with respect to a foreign
country collected by sensors during observation flights conducted in connection
with the Treaty on Open Skies, including flights conducted prior to entry into
force of the treaty, shall be exempt from disclosure under the Freedom of
Information Act -
"(1) if the country has not
disclosed the data to the public; and
"(2) if the
country has not, acting through the Open Skies Consultative Commission or any
other diplomatic channel, authorized the
"(b)
Statutory Construction. - This section constitutes a specific exemption
within the meaning of section 552(b)(3) of title 5, United States Code.
"(c)
Definitions. - For the purposes of this section -
"(1) the term 'Freedom of Information Act'
means the provisions of section 552 of title 5, United States Code;
"(2) the term 'Open Skies Consultative
Commission' means the commission established pursuant to Article X of the Treaty
on Open Skies; and
"(3) the term 'Treaty on Open Skies' means the Treaty on
Open Skies, signed at
-EXEC-
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or nonexistence is
itself classified or when it was originally classified by another agency, see
Ex. Ord. No. 12958, Sec. 3.7, Apr. 17, 1995, 60 F.R. 19835, set out as a note
under section 435 of Title 50, War and National Defense.
EXECUTIVE ORDER NO. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which
related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb.
17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this
title.
EX.
ORD. NO. 12600. PREDISCLOSURE NOTIFICATION PROCEDURES FOR CONFIDENTIAL
COMMERCIAL INFORMATION
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution and statutes of
the United States of America, and in order to provide predisclosure notification procedures under the
Freedom of Information
Act [5 U.S.C. 552] concerning confidential commercial information, and to make
existing agency notification provisions more uniform, it is hereby ordered as
follows:
Section 1. The head of each Executive department and
agency subject to the Freedom of Information Act [5 U.S.C. 552] shall, to the
extent permitted by law, establish procedures to notify submitters of records
containing confidential commercial information as described in section 3 of this
Order, when those records are requested under the Freedom of Information Act
[FOIA], 5 U.S.C. 552, as amended, if after reviewing the request, the responsive
records, and any appeal by the requester, the department or agency determines
that it may be required to disclose the records. Such notice requires that an
agency use good-faith efforts to advise
submitters of confidential commercial information of the procedures established
under this Order. Further, where notification of a voluminous number of
submitters is required, such notification may be accomplished by posting or
publishing the notice in a place reasonably calculated to accomplish
notification. Sec.
2. For purposes of this Order, the following definitions apply:
(a) "Confidential commercial information"
means records provided to the government by a submitter that arguably contain
material exempt from release under Exemption 4 of the Freedom of Information
Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to
cause substantial competitive harm.
(b) "Submitter" means any person or entity
who provides confidential
commercial information to the government. The term "submitter" includes, but is
not limited to, corporations, state governments, and foreign governments.
Sec. 3. (a) For confidential commercial information
submitted prior to January 1, 1988, the head of each Executive department or
agency shall, to the extent permitted by law, provide a submitter with notice
pursuant to section 1 whenever:
(i) the records are less than 10 years old
and the information has been designated by the submitter as confidential
commercial information; or
(ii) the
department or agency has reason to believe that disclosure of the information
could reasonably be expected to cause substantial competitive harm.
(b) For confidential commercial
information submitted on or after January 1, 1988, the head of each Executive
department or agency shall, to the extent permitted by law, establish procedures
to permit submitters of confidential commercial information to designate, at the
time the information is submitted to the Federal government or a reasonable time
thereafter, any information the disclosure of which the submitter claims could
reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the
expiration, after a specified period of time or changes in circumstances, of
designations of competitive harm made by submitters. Additionally, such
procedures may permit the agency to designate specific classes of information
that will be treated by the agency as if the information had been so designated
by the submitter. The head of each Executive department or agency shall, to the
extent permitted by law, provide the submitter notice in accordance with section
1 of this Order whenever the department or agency determines that it may be
required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the
disclosure of which the department or agency has reason to believe could
reasonably be expected to cause substantial competitive harm.
Sec. 4. When notification is made pursuant to
section 1, each agency's procedures shall, to the extent permitted by law,
afford the submitter a reasonable period of time in which the submitter or its
designee may object to the disclosure of any specified portion of the
information and to state all grounds upon which disclosure is opposed.
Sec. 5. Each agency shall give careful consideration
to all such specified grounds for nondisclosure prior to making an
administrative determination of the issue. In all instances when the agency
determines to disclose the requested records, its procedures shall provide that
the agency give the submitter a written statement briefly explaining why the
submitter's objections are not sustained. Such statement shall, to the extent
permitted by law, be provided a reasonable number of days prior to a specified
disclosure date.
Sec. 6. Whenever a FOIA requester brings suit
seeking to compel disclosure of confidential commercial information, each
agency's procedures shall require that the submitter be promptly notified.
Sec.
7. The designation and notification procedures required by this Order
shall be established by regulations, after notice and public comment. If similar
procedures or regulations already exist, they should be reviewed for conformity
and revised where necessary. Existing procedures or regulations need not be
modified if they are in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be followed
if:
(a) The agency determines that the information
should not be disclosed;
(b) The information has been published or has been
officially made available to the public;
(c) Disclosure of the information is required by law (other
than 5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1)
was adopted pursuant to notice and public comment, (2) specifies narrow classes
of records submitted to the agency that are to be released under the Freedom of
Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances
for notice when the submitter provides written justification, at the time
the information is submitted or a reasonable time thereafter, that disclosure of
the information could reasonably be expected to cause substantial competitive
harm;
(e) The information requested is
not designated by the submitter as exempt from disclosure in accordance with
agency regulations promulgated pursuant to section 7, when the submitter had an
opportunity to do so at the time of submission of the information or a
reasonable time thereafter, unless the agency has substantial reason to believe
that disclosure of the information would result in competitive harm; or
(f) The designation made by the submitter in accordance
with agency regulations promulgated pursuant to section 7 appears obviously
frivolous; except that, in such case, the agency must provide the submitter with
written notice of any final administrative disclosure determination within a
reasonable number of days prior to the specified disclosure date.
Sec. 9.
Whenever an agency notifies a submitter that it may be required to disclose
information pursuant to section 1 of this Order, the agency shall also notify
the requester that notice and an opportunity to comment are being provided the
submitter. Whenever an agency notifies a submitter of a final decision pursuant
to section 5 of this Order, the agency shall also notify the requester.
Sec. 10. This Order is intended only to improve the
internal management of the Federal government, and is not intended to create any
right or benefit, substantive or procedural, enforceable at law by a party
against the
Ronald Reagan.
EX. ORD. NO.
13110. NAZI WAR CRIMES AND JAPANESE IMPERIAL GOVERNMENT RECORDS INTERAGENCY
WORKING GROUP Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided: By the
authority vested in me as President by the Constitution and the laws of the
United States of America, including the Nazi War Crimes Disclosure Act (Public
Law 105-246) (the "Act") [5 U.S.C. 552 note], it is hereby ordered as follows:
Section
1. Establishment of Working
Group. There is hereby established the Nazi War Criminal Records
Interagency Working Group [now Nazi War Crimes and Japanese Imperial Government
Records Interagency Working Group] (Working Group). The function of the Group
shall be to locate, inventory, recommend for declassification, and make available to the public at the National Archives
and Records Administration all classified Nazi war criminal records of the
Sec. 2. Schedule. The Working Group should complete its work
to the greatest extent possible and report to the Congress within 1 year.
Sec. 3. Membership.
(a) The Working Group shall be composed of the following
members: (1)
Archivist of the United States (who shall serve as Chair of the Working Group);
(2) Secretary of Defense; (3) Attorney General; (4) Director of Central
Intelligence; (5) Director of the Federal Bureau of Investigation; (6) Director
of the United States Holocaust Memorial Museum; (7) Historian of the Department
of State; and (8) Three other persons appointed by the President.
(b) The Senior Director for
Records and Access Management of the National Security Council will serve as the
liaison to and attend the meetings of the Working Group. Members of the Working
Group who are full-time Federal officials may serve on the Working Group through
designees.
Sec. 4. Administration.
(a) To the extent permitted by law and subject to the
availability of appropriations, the National Archives and Records Administration
shall provide the Working Group with funding, administrative services,
facilities, staff, and other support services necessary for the performance of
the functions of the Working Group.
(b) The Working Group shall
terminate 3 years from the date of this Executive order.
William J. Clinton.
EX. ORD. NO. 13392. IMPROVING AGENCY DISCLOSURE OF INFORMATION Ex. Ord.
No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided: By the authority vested in me
as President by the Constitution and the laws of the United States of America,
and to ensure appropriate agency disclosure of information, and consistent with
the goals of section 552 of title 5, United States Code, it is hereby ordered as
follows:
Section 1. Policy.
(a) The effective functioning of our constitutional
democracy depends upon the participation in public life of a citizenry that is
well informed. For nearly four decades, the Freedom of Information Act (FOIA) [5
U.S.C. 552] has provided an important means through which the public can obtain
information regarding the activities of Federal agencies. Under the FOIA, the
public can obtain records from any Federal agency, subject to the exemptions
enacted by the Congress to protect information that must be held in confidence
for the Government to function effectively or for other purposes.
(b) FOIA requesters are seeking a
service from the Federal Government and should be treated as such. Accordingly,
in responding to a FOIA request, agencies shall respond courteously and
appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with
citizen-centered ways to learn about the FOIA process, about agency records that
are publicly available (e.g., on the agency's website), and about the status of
a person's FOIA request and appropriate information about the agency's response.
(c) Agency FOIA operations shall be both results-oriented
and produce results. Accordingly, agencies shall process requests under the FOIA
in an efficient and appropriate manner and achieve tangible, measurable
improvements in FOIA processing. When an agency's FOIA program does not produce
such results, it should be reformed, consistent with available resources
appropriated by the Congress and applicable law, to increase efficiency and
better reflect the policy goals and objectives of this order.
(d) A citizen-centered and
results-oriented approach will improve service and performance, thereby
strengthening compliance with the FOIA, and will help avoid disputes and related
litigation.
Sec.
2. Agency Chief FOIA
Officers.
(a) Designation. The head of each agency shall designate
within 30 days of the date of this order a senior official of such agency (at
the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer
of that agency. The head of the agency shall promptly notify the Director of the
Office of Management and Budget (OMB Director) and the Attorney General of such
designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency
shall, subject to the authority of the head of the agency:
(i) have agency-wide responsibility for
efficient and appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency,
including through the use of meetings with the public to the extent deemed
appropriate by the agency's Chief FOIA Officer, and keep the head of the agency,
the chief legal officer of the agency, and the Attorney General appropriately
informed of the agency's performance in implementing the FOIA, including the
extent to which the agency meets the milestones in the agency's plan under
section 3(b) of this order and training and reporting standards established
consistent with applicable law and this order;
(iii) recommend to the head of the agency such adjustments
to agency
practices, policies, personnel, and funding as may be necessary to carry
out the policy set forth in section 1 of this order;
(iv) review and report, through
the head of the agency, at such times and in such formats as the Attorney
General may direct, on the agency's performance in implementing the FOIA;
and
(v) facilitate public understanding of the purposes of the
FOIA's statutory exemptions by
including concise descriptions of the exemptions in both the agency's FOIA
handbook issued under section 552(g) of title 5, United States Code, and the
agency's annual FOIA report, and by providing an overview, where appropriate, of
certain general categories of agency records to which those exemptions
apply.
(c)
(i) Each agency shall establish one or more FOIA
Requester Service Centers (Center), as appropriate, which shall serve as the
first place that a FOIA requester can contact to seek information concerning the
status of the person's FOIA request and appropriate information about the
agency's FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from
FOIA requesters;
(ii) The agency Chief FOIA Officer
shall designate one or more agency officials, as appropriate, as FOIA Public
Liaisons, who may serve in the Center or who may serve in a separate office.
FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA
requester can raise concerns about the service the FOIA requester has received
from the Center, following an initial response from the Center staff. FOIA
Public Liaisons shall seek to ensure a service-oriented response to FOIA
requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall
assist, as appropriate, in reducing delays, increasing transparency and
understanding of the status of requests, and resolving disputes. FOIA Public
Liaisons shall report to the agency Chief FOIA Officer on their activities and
shall perform their duties consistent with applicable law and agency
regulations;
(iii) In addition to the services
to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency
Chief FOIA Officer shall also consider what other FOIA-related assistance to the
public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public
Liaisons, the agency shall use, as appropriate, existing agency staff and
resources. A Center shall have appropriate staff to receive and respond to
inquiries from FOIA requesters;
(v) As determined by the agency
Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency
shall post appropriate information about its Center or Centers on the agency's
website, including contact information for its FOIA Public Liaisons. In the case
of an agency without a website, the agency shall publish the information on the
Firstgov.gov website or, in the case of any agency with neither a website nor
the capability to post on the Firstgov.gov website, in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency has
in place a method (or methods), including through the use of the Center, to
receive and respond promptly and appropriately to inquiries from FOIA requesters
about the status of their requests.
The Chief FOIA Officer shall also
consider, in consultation with the FOIA Public Liaisons, as appropriate, whether
the agency's implementation of other means (such as tracking numbers for
requests, or an agency telephone or Internet hotline) would be appropriate for
responding to status inquiries.
Sec. 3. Review, Plan, and Report.
(a) Review. Each agency's Chief FOIA Officer shall conduct
a review of the agency's FOIA operations to determine whether agency practices
are consistent with the policies set forth in section 1 of this order. In
conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and
statistical benchmarks where appropriate, the agency's administration of the
FOIA, including the agency's expenditure of resources on FOIA compliance and the
extent to which, if any, requests for records have not been responded to within
the statutory time limit (backlog);
(ii) review the processes and practices by which the
agency assists and informs the public regarding the FOIA process;
(iii) examine
the agency's:
(A) use of information technology in responding to FOIA
requests, including without limitation the tracking of FOIA requests and
communication with requesters;
(B) practices
with respect to requests for expedited processing; and
(C) implementation of multi-track processing if used by
such agency;
(iv) review the agency's policies
and practices relating to the availability of public information through
websites and other means, including the use of websites to make available the
records escribed in section
552(a)(2) of title 5, United
States Code; and (v) identify ways to eliminate or reduce its FOIA backlog,
onsistent with available
resources and taking into consideration the volume and complexity of the FOIA
requests pending with the agency.
(b) Plan.
(i) Each
agency's Chief FOIA Officer shall develop, in consultation as appropriate with
the staff of the agency (including the FOIA Public Liaisons), the Attorney
General, and the OMB Director, an agency-specific plan to ensure that the
agency's administration of the FOIA is in accordance with applicable law and
the policies set forth in section 1 of this order. The plan,
which shall be submitted to the head of the agency for approval, shall address
the agency's implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the
agency will implement to eliminate or reduce the agency's FOIA backlog,
including (as applicable) changes that will make the processing of FOIA requests
more streamlined and effective, as well as increased reliance on the
dissemination of records that can be made available to the public through a
website or other means that do not require the public to make a request for the
records under the FOIA.
(iii) The plan shall also include
activities to increase public awareness of FOIA processing, including as
appropriate, expanded use of the agency's Center and its FOIA Public
Liaisons.
(iv) The plan shall also include,
taking appropriate account of the resources available to the agency and the
mission of the agency, concrete milestones, with specific timetables and
outcomes to be achieved, by which the head of the agency, after consultation
with the OMB Director, shall measure and evaluate the agency's
success in the implementation of the plan.
(c) Agency Reports to the Attorney
General and OMB Director.
(i) The head
of each agency shall submit a report, no later than 6 months from the date of
this order, to the Attorney General and the OMB Director that summarizes the
results of the review under section 3(a) of this order and encloses a copy of
the agency's plan under section 3(b) of this order. The agency shall publish a
copy of the agency's report on the agency's website or, in the case of an agency
without a website, on the Firstgov.gov website, or, in the case of any agency
with neither a website nor the capability to publish on the Firstgov.gov
website, in the Federal Register.
(ii) The head of each agency shall include in the agency's
annual FOIA reports for fiscal years 2006 and 2007 a report on the agency's
development and implementation of its plan under section 3(b) of this order and
on the agency's performance in meeting the milestones set forth in that plan,
consistent with any related
guidelines the Attorney General may issue under section 552(e) of
title 5, United States Code.
(iii) If the agency does not meet
a milestone in its plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report
to the Attorney General;
(B) explain in the annual report the reasons for the
agency's failure to meet the milestone;
(C) outline in the annual report the steps that the
agency has already taken, and will be taking, to address the deficiency; and
(D) report
this deficiency to the President's Management Council.
Sec. 4. Attorney General.
(a) Report. The Attorney General, using the reports
submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by
agencies in their annual FOIA reports for fiscal year 2005, shall submit to the
President, no later than 10 months from the date of this order, a report on
agency FOIA implementation. The Attorney General shall consult the OMB Director in
the preparation of the report and shall include in the report appropriate
recommendations on administrative or other agency actions for continued agency
dissemination and release of public information. The Attorney General shall
thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008,
that provide the President with an update on the agencies' implementation of the
FOIA and of their plans under section 3(b) of this order.
(b) Guidance. The Attorney General
shall issue such instructions and guidance to the heads of departments and
agencies as may be appropriate to implement sections 3(b) and 3(c) of this
order.
Sec. 5. OMB Director. The OMB Director may issue
such instructions to the heads of agencies as are necessary to implement this
order, other than sections 3(b) and 3(c) of this order.
Sec. 6. Definitions.
As used in this order:
(a) the term "agency" has the same
meaning as the term "agency" under section 552(f)(1) of title 5, United States
Code; and
(b) the term "record" has the same meaning as
the term "record" under section 552(f)(2) of title 5, United States Code.
Sec. 7. General Provisions.
(a) The agency reviews under
section 3(a) of this order and agency plans under section 3(b) of this order
shall be conducted and developed in accordance with applicable law and
applicable guidance issued by the President, the Attorney General, and the OMB
Director, including the laws and guidance regarding information technology and
the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with
applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect
the functions of the OMB Director relating to budget, legislative, or
administrative proposals; and
(iii) is intended only to improve the internal management
of the executive branch and is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity by a
party against the United States, its departments, agencies, instrumentalities,
or entities, its officers or employees, or any other person.
George W. Bush.
Office of the
Law Revision Counsel,