
Freedom of Information Act
by Matthew Madia, 4/2/2007
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:
(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 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.
(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).
(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.
(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.
(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.
(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.
(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.
(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.
(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.
