(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, 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.
(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.]
(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 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--