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.
[back to top]
Go to:
DOJ FOIA Page
//
Justice Department Home Page
Last Updated
December 23, 2002
usdoj/jmd/ls/caf
|
