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FOIA Statute
THE FREEDOM OF INFORMATION ACT
5 U.S.C. § 552
As Amended
§ 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish
in the Federal Register for the guidance of the public--
(A) descriptions of its central and field organization and
the established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby,
the public may obtain information, make submittals or requests, or obtain
decisions;
(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements
of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the
terms thereof, a person may not in any manner be required to resort to,
or be adversely affected by, a matter required to be published in the
Federal Register and not so published. For the purpose of this paragraph,
matter reasonably available to the class of persons affected thereby is
deemed published in the Federal Register when incorporated by reference
therein with the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make available
for public inspection and copying--
(A) final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect
a member of the public;
(D) copies of all records, regardless of form or format, which have
been released to any person under paragraph (3) and which, because
of the nature of their subject matter, the agency determines have
become or are likely to become the subject of subsequent requests
for substantially the same records; and
(E) a general index of the records referred to under subparagraph
(D);
unless the materials are promptly published and copies offered for sale.
For records created on or after November 1, 1996, within one year after
such date, each agency shall make such records available, including by
computer telecommunications or, if computer telecommunications means have
not been established by the agency, by other electronic means. To the
extent required to prevent a clearly unwarranted invasion of personal
privacy, an agency may delete identifying details when it makes available
or publishes an opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in subparagraph (D). However,
in each case the justification for the deletion shall be explained fully
in writing, and the extent of such deletion shall be indicated on the
portion of the record which is made available or published, unless including
that indication would harm an interest protected by the exemption in subsection
(b) under which the deletion is made. If technically feasible, the extent
of the deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make available
for public inspection and copying current indexes providing identifying
information for the public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph to be made available
or published. Each agency shall promptly publish, quarterly or more frequently,
and distribute (by sale or otherwise) copies of each index or supplements
thereto unless it determines by order published in the Federal Register
that the publication would be unnecessary and impracticable, in which
case the agency shall nonetheless provide copies of an index on request
at a cost not to exceed the direct cost of duplication. Each agency shall
make the index referred to in subparagraph (E) available by computer telecommunications
by December 31, 1999. A final order, opinion, statement of policy, interpretation,
or staff manual or instruction that affects a member of the public may
be relied on, used, or cited as precedent by an agency against a party
other than an agency only if--
(i) it has been indexed and either made available or published
as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs
(1) and (2) of this subsection, 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 other
wise directs for good cause is shown.
(D) Repealed by Pub. L. 98-620, Title IV, 402(2), Nov. 8, 1984, 98
Stat. 3335, 3357.
(E) The court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case under
this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the
United States reasonable attorney fees and other litigation costs,
and the court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding,
the Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special Counsel,
after investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative.
The administrative authority shall take the corrective action that
the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and
in the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each
member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall--
(i) determine within twenty days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the reasons
therefor, and of the right of such person to appeal to the head
of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after
the receipt of such appeal. If on appeal the denial of the request
for records is in whole or in part upheld, the agency shall notify
the person making such request of the provisions for judicial review
of that determination under paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the unusual circumstances for such extension
and the date on which a determination is expected to be dispatched.
No such notice shall specify a date that would result in an extension
for more than ten working days, except as provided in clause (ii)
of this subparagraph.
(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an opportunity
to limit the scope of the request so that it may be processed within
that time limit or an opportunity to arrange with the agency an
alternative time frame for processing the request or a modified
request. Refusal by the person to reasonably modify the request
or arrange such an alternative time frame shall be considered as
a factor in determining whether exceptional circumstances exist
for purposes of subparagraph (C).
(iii) As used in this subparagraph, "unusual circumstances" means,
but only to the extent reasonably necessary to the proper processing
of the particular requests--
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted with
all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial subject matter interest
therein.
(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of
certain requests by the same requestor, or by a group of requestors
acting in concert, if the agency reasonably believes that such requests
actually constitute a single request, which would otherwise satisfy
the unusual circumstances specified in this subparagraph, and the
requests involve clearly related matters. Multiple requests involving
unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request
if the agency fails to comply with the applicable time limit provisions
of this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding
to the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any determination
by an agency to comply with a request for records, the records shall
be made promptly available to such person making such request. Any
notification of denial of any request for records under this subsection
shall set forth the names and titles or positions of each person responsible
for the denial of such request.
(ii) For purposes of this subparagraph, the term "exceptional circumstances"
does not include a delay that results from a predictable agency
workload of requests under this section, unless the agency demonstrates
reasonable progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request
or arrange an alternative time frame for processing the request
(or a modified request) under clause (ii) after being given an opportunity
to do so by the agency to whom the person made the request shall
be considered as a factor in determining whether exceptional circumstances
exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing
of requests for records based on the amount of work or time (or both)
involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making
a request that does not qualify for the fastest multitrack processing
an opportunity to limit the scope of the request in order to qualify
for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement
under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, providing for expedited processing
of requests for records--
(I) in cases in which the person requesting the records demonstrates
a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph
must ensure--
(I) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided
to the person making the request, within 10 days after the date
of the request; and
(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing
under this subparagraph. Agency action to deny or affirm denial
of a request for expedited processing pursuant to this subparagraph,
and failure by an agency to respond in a timely manner to such a
request shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before
the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction
to review an agency denial of expedited processing of a request
for records after the agency has provided a complete response to
the request.
(v) For purposes of this subparagraph, the term "compelling need"
means--
(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected to pose
an imminent threat to the life or physical safety of an individual;
or
(II) with respect to a request made by a person primarily engaged
in disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a
request for expedited processing shall be made by a statement certified
by such person to be true and correct to the best of such person's
knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency
shall make a reasonable effort to estimate the volume of any requested
matter the provision of which is denied, and shall provide any such
estimate to the person making the request, unless providing such estimate
would harm an interest protected by the exemption in subsection (b)
pursuant to which the denial is made.
(b) This section does not apply to matters that are--
(1)(A) specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive
order;
(2) related solely to the internal personnel rules and practices of
an agency;
(3) specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information (A) could reasonably be expected to interfere with enforcement
proceedings, (B) would deprive a person of a right to a fair trial or
an impartial adjudication, (C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source, including
a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case
of a record or information compiled by a criminal law enforcement authority
in the course of a criminal investigation or by an agency conducting
a lawful national security intelligence investigation, information furnished
by a confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the
law, or (F) could reasonably be expected to endanger the life or physical
safety of any individual;
(8) contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency responsible
for the regulation or supervision of financial institutions; or
(9) geological and geophysical information and data, including maps,
concerning wells.
Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are
exempt under this subsection. The amount of information deleted shall
be indicated on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in this subsection
under which the deletion is made. If technically feasible, the amount
of the information deleted shall be indicated at the place in the record
where such deletion is made.
(c)(1) Whenever a request is made which involves access to records described
in subsection (b)(7)(A) and--
(A) the investigation or proceeding involves a possible violation
of criminal law; and
(B) there is reason to believe that (i) the subject of the investigation
or proceeding is not aware of its pendency, and (ii) disclosure of
the existence of the records could reasonably be expected to interfere
with enforcement proceedings, the agency may, during only such time
as that circumstance continues, treat the records as not subject to
the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement
agency under an informant's name or personal identifier are requested
by a third party according to the informant's name or personal identifier,
the agency may treat the records as not subject to the requirements
of this section unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to records maintained
by the Federal Bureau of Investigation pertaining to foreign intelligence
or counterintelligence, or international terrorism, and the existence
of the records is classified information as provided in subsection (b)(1),
the Bureau may, as long as the existence of the records remains classified
information, treat the records as not subject to the requirements of
this section.
(d) This section does not authorize the withholding of information or
limit the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold information
from Congress.
(e)(1) On or before February 1 of each year, each agency shall submit
to the Attorney General of the United States a report which shall cover
the preceding fiscal year and which shall include--
(A) the number of determinations made by the agency not to comply
with requests for records made to such agency under subsection (a)
and the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection (a)(6),
the result of such appeals, and the reason for the action upon each
appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon
to authorize the agency to withhold information under subsection
(b)(3), a description of whether a court has upheld the decision
of the agency to withhold information under each such statute, and
a concise description of the scope of any information withheld;
(C) the number of requests for records pending before the agency
as of September 30 of the preceding year, and the median number of
days that such requests had been pending before the agency as of that
date;
(D) the number of requests for records received by the agency and
the number of requests which the agency processed;
(E) the median number of days taken by the agency to process different
types of requests;
(F) the total amount of fees collected by the agency for processing
requests; and
(G) the number of full-time staff of the agency devoted to processing
requests for records under this section, and the total amount expended
by the agency for processing such requests.
(2) Each agency shall make each such report available to the public
including by computer telecommunications, or if computer telecommunications
means have not been established by the agency, by other electronic means.
(3) The Attorney General of the United States shall make each report
which has been made available by electronic means available at a single
electronic access point. The Attorney General of the United States shall
notify the Chairman and ranking minority member of the Committee on
Government Reform and Oversight of the House of Representatives and
the Chairman and ranking minority member of the Committees on Governmental
Affairs and the Judiciary of the Senate, no later than April 1 of the
year in which each such report is issued, that such reports are available
by electronic means.
(4) The Attorney General of the United States, in consultation with
the Director of the Office of Management and Budget, shall develop reporting
and performance guidelines in connection with reports required by this
subsection by October 1, 1997, and may establish additional requirements
for such reports as the Attorney General determines may be useful.
(5) The Attorney General of the United States shall submit an annual
report on or before April 1 of each calendar year which shall include
for the prior calendar year a listing of the number of cases arising
under this section, the exemption involved in each case, the disposition
of such case, and the cost, fees, and penalties assessed under subparagraphs
(E), (F), and (G) of subsection (a)(4). Such report shall also include
a description of the efforts undertaken by the Department of Justice
to encourage agency compliance with this section.
(f) For purposes of this section, the term--
(1) "agency" as defined in section 551(1) of this title includes any
executive department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive branch
of the Government (including the Executive Office of the President),
or any independent regulatory agency; and
(2) "record" and any other term used in this section in reference to
information includes any information that would be an agency record
subject to the requirements of this section when maintained by an agency
in any format, including an electronic format.
(g) The head of each agency shall prepare and make publicly available
upon request, reference material or a guide for requesting records or
information from the agency, subject to the exemptions in subsection (b),
including--
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained
by the agency; and
(3) a handbook for obtaining various types and categories of public
information from the agency pursuant to chapter 35 of title 44, and
under this section.
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