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; and
- (C) administrative staff manuals and instructions to staff that
affect a member of the public; unless the materials are promptly
published and copies offered for sale. 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, or staff manual or
instruction. However, in each case the justification for the deletion
shall be explained fully in writing. 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. 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) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any
request for records which (A) reasonably describes such records and
(B) 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.
- (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 -
- (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 -
- (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.
- (C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the defendant of the
pleading in which such complaint is made, unless the court otherwise directs
for good cause shown.
- ((D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8,
1984, 98 Stat. 3357.)
- (E) 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 ten 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) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making such
request setting forth the reasons for such extension and the date on which a
determination is expected to be dispatched. No such notice shall specify a
date that would result in an extension for more than ten working days. As
used in this subparagraph, 'unusual circumstances' means, but only to the
extent reasonably necessary to the proper processing of the particular
request -
- (i) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the office
processing the request;
- (ii) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in a
single request; or
- (iii) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
- (C) 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.
- (b) This section does not apply to matters that are -
- (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.
- (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) On or before March 1 of each calendar year, each agency shall submit a
report covering the preceding calendar year to the Speaker of the House of
Representatives and President of the Senate for referral to the appropriate
committees of the Congress. The report shall include -
- (1) the number of determinations made by such agency not to comply
with requests for records made to such agency under subsection (a) and the
reasons for each such determination;
- (2) 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;
- (3) the names and titles or positions of each person responsible
for the denial of records requested under this section, and the number of
instances of participation for each;
- (4) the results of each proceeding conducted pursuant to subsection
(a)(4)(F), including a report of the disciplinary action taken against the
officer or employee who was primarily responsible for improperly
withholding records or an explanation of why disciplinary action was not
taken;
- (5) a copy of every rule made by such agency regarding this
section;
- (6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this section;
and
- (7) such other information as indicates efforts to administer fully
this section.
The Attorney General shall submit an annual report on or before March 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
subsections (a)(4)(E), (F), and (G). 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 '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.
|