Freedom of Information Act, 5 USC § 552

 

THE FREEDOM OF INFORMATION ACT

5 U.S.C. § 552

As Amended in 2002

§ 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, and except as provided in subparagraph (E), each

  agency, upon any request for records which (i) reasonably describes such

  records and (ii) is made in accordance with published rules stating the time,

  place, fees (if any), and procedures to be followed, shall make the records

  promptly available to any person.

    (B) In making any record available to a person under this paragraph, an

    agency shall provide the record in any form or format requested by the

    person if the record is readily reproducible by the agency in that form or

    format. Each agency shall make reasonable efforts to maintain its records in

    forms or formats that are reproducible for purposes of this section.

    (C) In responding under this paragraph to a request for records, an agency

    shall make reasonable efforts to search for the records in electronic form

    or format, except when such efforts would significantly interfere with the

    operation of the agency's automated information system.

    (D) For purposes of this paragraph, the term "search" means to review,

    manually or by automated means, agency records for the purpose of locating

    those records which are responsive to a request.

    (E) An agency, or part of an agency, that is an element of the intelligence

    community (as that term is defined in section 3(4) of the National Security

    Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under

    this paragraph to--

      (i) any government entity, other than a State, territory, commonwealth, or

      district of the United States, or any subdivision thereof; or

 

      (ii) a representative of a government entity described in clause (i).

  (4)(A)(i) In order to carry out the provisions of this section, each agency

  shall promulgate regulations, pursuant to notice and receipt of public

  comment, specifying the schedule of fees applicable to the processing of

  requests under this section and establishing procedures and guidelines for

  determining when such fees should be waived or reduced. Such schedule shall

  conform to the guidelines which shall be promulgated, pursuant to notice and

  receipt of public comment, by the Director of the Office of Management and

  Budget and which shall provide for a uniform schedule of fees for all

  agencies.

      (ii) Such agency regulations shall provide that--

        (I) fees shall be limited to reasonable standard charges for document

        search, duplication, and review, when records are requested for

        commercial use;

        (II) fees shall be limited to reasonable standard charges for document

        duplication when records are not sought for commercial use and the

        request is made by an educational or noncommercial scientific

        institution, whose purpose is scholarly or scientific research; or a

        representative of the news media; and

        (III) for any request not described in (I) or (II), fees shall be

        limited to reasonable standard charges for document search and

        duplication.

      (iii) Documents shall be furnished without any charge or at a charge

      reduced below the fees established under clause (ii) if disclosure of the

      information is in the public interest because it is likely to contribute

      significantly to public understanding of the operations or activities of

      the government and is not primarily in the commercial interest of the

      requester.

      (iv) Fee schedules shall provide for the recovery of only the direct costs

      of search, duplication, or review. Review costs shall include only the

      direct costs incurred during the initial examination of a document for the

      purposes of determining whether the documents must be disclosed under this

      section and for the purposes of withholding any portions exempt from

      disclosure under this section. Review costs may not include any costs

      incurred in resolving issues of law or policy that may be raised in the

      course of processing a request under this section. No fee may be charged

      by any agency under this section--

        (I) if the costs of routine collection and processing of the fee are

        likely to equal or exceed the amount of the fee; or

        (II) for any request described in clause (ii)(II) or (III) of this

        subparagraph for the first two hours of search time or for the first one

        hundred pages of duplication.

      (v) No agency may require advance payment of any fee unless the requester

      has previously failed to pay fees in a timely fashion, or the agency has

      determined that the fee will exceed $250.

      (vi) Nothing in this subparagraph shall supersede fees chargeable under a

      statute specifically providing for setting the level of fees for

      particular types of records.

      (vii) In any action by a requester regarding the waiver of fees under this

      section, the court shall determine the matter de novo, provided that the

      court's review of the matter shall be limited to the record before the

      agency.

    (B) On complaint, the district court of the United States in the district in

    which the complainant resides, or has his principal place of business, or in

    which the agency records are situated, or in the District of Columbia, has

    jurisdiction to enjoin the agency from withholding agency records and to

    order the production of any agency records improperly withheld from the

    complainant. In such a case the court shall determine the matter de novo,

    and may examine the contents of such agency records in camera to determine

    whether such records or any part thereof shall be withheld under any of the

    exemptions set forth in subsection (b) of this section, and the burden is on

    the agency to sustain its action. In addition to any other matters to which

    a court accords substantial weight, a court shall accord substantial weight

    to an affidavit of an agency concerning the agency's determination as to

    technical feasibility under paragraph (2)(C) and subsection (b) and

    reproducibility under paragraph (3)(B).

    (C) Notwithstanding any other provision of law, the defendant shall serve an

    answer or otherwise plead to any complaint made under this subsection within

    thirty days after service upon the defendant of the pleading in which such

    complaint is made, unless the court 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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Last Updated December 23, 2002

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