With Electronic Freedom of Information Act Amendments of 1996 Chapter
5 U.S. Code, Sec. 552, as Amended by Public Law No. 104-231 - 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 such 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 otherwise
directs for good cause shown.
[ (D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984,
98 Stat. 3357.]
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the
court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special Counsel,
after investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the
Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and in
the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each
member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall--
(i) determine within 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 a 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 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 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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