Freedom of Information Act
5 U.S.C. § 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 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 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 otherwise directs for good cause shown.
[(D) Repealed. Pub.L. 98-620, Title IV, § 402(2),
Nov. 8, 1984, 98 Stat. 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 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 therefore, 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 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 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 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 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.
top of page
