The U.S. Freedom of Information
Act
Bookmark Index
- Section (a) Each agency shall make available
to the public information
- Each agency shall separately state and
currently publish in the Federal Register for the guidance of the public--
- Each agency, in accordance with published
rules, shall make available for public inspection and copying--
- Each agency, upon any request for records shall
make the records promptly available to any person.
- Each agency shall promulgate regulations
specifying the schedule of fees applicable to the processing of requests
- 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.
- Each agency, upon any request for records;
within 20 days shall comply or notify of denial with reasons therefor, and of
the right to appeal
- Section (b) Applies to confidential
materials and the segregation of confidential materials for public
inspection
- Section (c) Whenever a request is made which
involves access to records described in subsection (b)(7)(A) and--
- Section (d) Does not authorize the
withholding of information or limit the availability of records to the public,
except as specifically stated in this section.
- Section (e)(1) On or before February 1 of
each year, each agency shall submit to the Attorney General of the United
States a report covering the preceding fiscal year
- Section (f) Defines the terms "agency" and
"record"
- Section (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--
The Freedom of Information Act
5 U.S.C. § 552 As Amended in
2002
§ 552. Public information; agency rules,
opinions, orders, records, and proceedings
(a) Each agency shall make available to the public
information as follows:
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(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.
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(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 an
index on request at a cost not to exceed the direct cost of duplication. Each
agency shall make the index referred to in subparagraph (E) available by
computer telecommunications by December 31, 1999. A final order, opinion,
statement of policy, interpretation, or staff manual or instruction that
affects a member of the public may be relied on, used, or cited as precedent by
an agency against a party other than an agency only if--
(i) it has been indexed and either made
available or published as provided by this paragraph; or
(ii) the party has actual and timely notice
of the terms thereof.
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(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 United States, or any
subdivision thereof; or
(ii) a representative of a government entity
described in clause (i).
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(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.
(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.
(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 other wise
directs for good cause is shown.
(D) Repealed by Pub. L. 98-620, Title IV,
402(2), Nov. 8, 1984, 98 Stat. 3335, 3357.
(E) The court may assess against the United
States reasonable attorney fees and other litigation costs reasonably incurred
in any case under this section in which the complainant has substantially
prevailed.
(F) Whenever the court orders the production of
any agency records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other litigation costs,
and the court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel acted
arbitrarily or capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine whether disciplinary
action is warranted against the officer or employee who was primarily
responsible for the withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency concerned and
shall send copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the
order of the court, the district court may punish for contempt the responsible
employee, and in the case of a uniformed service, the responsible member.
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(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 twenty days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of any such
request whether to comply with such request and shall immediately notify the
person making such request of such determination and the reasons therefor, and
of the right of such person to appeal to the head of the agency any adverse
determination; and
(ii) make a determination with respect to any
appeal within twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the denial of the
request for records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(B)(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. 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 the request (or a modified request) under clause (ii) after being
given an opportunity to do so by the agency to whom the person made the request
shall be considered as a factor in determining whether exceptional
circumstances exist for purposes of this subparagraph.
(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 United States
shall not have jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a complete response to
the request.
(v) For purposes of this subparagraph, the
term "compelling need" means--
(I) that a failure to obtain requested
records on an expedited basis under this paragraph could reasonably be expected
to pose an imminent threat to the life or physical safety of an individual;
or
(II) with respect to a request made by a
person primarily engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by
a person making a request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best of such 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.
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(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 a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source, (E)
would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law, or (F) could reasonably be expected to endanger the
life or physical safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial institutions;
or
(9) geological and geophysical information and
data, including maps, concerning wells.
Any reasonably segregable portion of a record shall
be provided to any person requesting such record after deletion of the portions
which are exempt under this subsection. The amount of information deleted shall
be indicated on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in this subsection
under which the deletion is made. If technically feasible, the amount of the
information deleted shall be indicated at the place in the record where such
deletion is made.
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(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 the withholding
of information or limit the availability of records to the public, except as
specifically stated in this section. This section is not authority to withhold
information from Congress.
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(e)(1) On or before February 1 of each year, each
agency shall submit to the Attorney General of the United States a report which
shall cover the preceding fiscal year and which shall include--
(A) the number of determinations made by the
agency not to comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(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), a description of whether a court has upheld the decision of
the agency to withhold information under each such statute, and a concise
description of the scope of any information withheld;
(C) the number of requests for records pending
before the agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the agency as of that
date;
(D) the number of requests for records received
by the agency and the number of requests which the agency processed;
(E) the median number of days taken by the
agency to process different types of requests;
(F) the total amount of fees collected by the
agency for processing requests; and
(G) the number of full-time staff of the agency
devoted to processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
(2) Each agency shall make each such report
available to the public including by computer telecommunications, or if
computer telecommunications means have not been established by the agency, by
other electronic means.
(3) The Attorney General of the United States
shall make each report which has been made available by electronic means
available at a single electronic access point. The Attorney General of the
United States shall notify the Chairman and ranking minority member of the
Committee on Government Reform and Oversight of the House of Representatives
and the Chairman and ranking minority member of the Committees on Governmental
Affairs and the Judiciary of the Senate, no later than April 1 of the year in
which each such report is issued, that such reports are available by electronic
means.
(4) The Attorney General of the United States, in
consultation with the Director of the Office of Management and Budget, shall
develop reporting and performance guidelines in connection with reports
required by this subsection by October 1, 1997, and may establish additional
requirements for such reports as the Attorney General determines may be
useful.
(5) The Attorney General of the United States
shall submit an annual report on or before April 1 of each calendar year which
shall include for the prior calendar year a listing of the number of cases
arising under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (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.
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(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 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.
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Published by:
Rob Cross
mailto:editor@357news.com |
