Office of Information and Privacy Fall 1996
The Freedom of Information Act
5 U.S.C. § 552, As Amended By
Public Law No. 104-231, 110 Stat. 2422
Below is the full text of the Freedom of Information Act
in a form showing all amendments to the statute made by the "Electronic
Freedom of Information Act Amendments of 1996." All newly
enacted provisions are in boldface type.
§ 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;
(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, or staff
manual or instruction, 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, each agency,
upon request for records which (A) (i)
reasonably describes such records and (B)
(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) Except as to cases the court considers of greater
importance, proceedings before the district court, as authorized
by this subsection, and appeals therefrom, take precedence on
the docket over all cases and shall be assigned for hearing
and trial or for argument at the earliest
practicable date and expedited in every way. 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 ten days 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) 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.
(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) 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.
(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 "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.
(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.
* * * * *
Section 12. Effective Date [not to be codified].
(a) Except as provided in subsection (b), this Act shall
take effect 180 days after the date of the enactment of this Act
[March 31, 1997].
(b) Sections 7 and 8 shall take effect one year after the
date of the enactment of this Act [October 2, 1997].
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