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8000 - Miscellaneous Statutes and Regulations
SUBCHAPTER II.—ADMINISTRATIVE
PROCEDURE
§ 551. Definitions.
For the purpose of this subchapter--
(1) "agency" means each authority of the Government of the
United States, whether or not it is within or subject to review by
another agency, but does not include--
(A) the Congress;
{{2-28-97 p.8023}}
(B) the courts of the United States;
(C) the governments of the territories or possessions of the
United States;
(D) the government of the District of Columbia; or except as to
the requirements of section 552 of this title--
(E) agencies composed of representatives of the parties or of
representatives of organizations of the parties to the disputes
determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or
in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and 1744 of
title 12; chapter 2 of title 41; subchapter II of chapter 471 of title
49; or sections 1884, 1891--1902, and former section 1641(b)(2), of
title 50, appendix;
(2) "person" includes an individual, partnership,
corporation, association, or public or private organization other than
an agency;
(3) "party" includes a person or agency named or admitted
as a party, or properly seeking and entitled as of right to be admitted
as a party, in an agency proceeding, and a person or agency admitted by
an agency as a party for limited purposes;
(4) "rule" means the whole or a part of an agency statement
of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and
includes the approval or prescription for the future of rates, wages,
corporate or financial structures or reorganizations thereof, prices,
facilities, appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing on any of the
foregoing;
(5) "rule making" means agency process for formulating,
amending, or repealing a rule;
(6) "order" means the whole or a part of a final
disposition, whether affirmative, negative, injunctive, or declaratory
in form, of an agency in a matter other than rule making but including
licensing;
(7) "adjudication" means agency process for the formulation
of an order;
(8) "license" includes the whole or a part of an agency
permit, certificate, approval, registration, charter, membership,
statutory exemption or other form of permission;
(9) "licensing" includes agency process respecting the
grant, renewal, denial, revocation, suspension, annulment, withdrawal,
limitation, amendment, modification, or conditioning of a license;
(10) "sanction" includes the whole or a part of an agency--
(A) prohibition, requirement, limitation, or other condition
affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution,
compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) "relief" includes the whole or a part of an agency--
(A) grant of money, assistance, license, authority, exemption,
exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege,
exemption, or exception; or
(C) taking of other action on the application or petition of, and
beneficial to, a person;
(12) "agency proceeding" means an agency process as defined
by paragraphs (5), (7), and (9) of this section;
(13) "agency action" includes the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act; and
{{2-28-97 p.8024}}
(14) "ex parte communication" means an oral or written
communication not on the public record with respect to which reasonable
prior notice to all parties is not given, but it shall not include
requests for status reports on any matter or proceeding covered by this
subchapter.
[Codified to 5 U.S.C. 551]
[Source: Section 551 of the Act of September 6, 1966 (Pub. L. No.
89--554; 80 Stat. 381), effective September 6, 1966, as amended by
section 4(b) of the Act of September 13, 1976 (Pub. L. No. 94--409; 90
Stat. 1247), effective March 11, 1977; section 5(a) of the Act of July
5, 1994 (Pub. L. No. 103--272; 108 Stat. 1373), effective July 5,
1994]
§ 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
{{2-29-08 p.8025}}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 procedure 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.
{{2-29-08 p.8026}}
In this clause, the term "a representative of the news media"
means any person or entity that gathers information of potential
interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work, and distributes that work to an
audience. In this clause, the term "news" means information that
is about current events or that would be of current interest to the
public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
"news") who make their products available for purchase by or
subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
shall be considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the journalist
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Government may also consider the past publication
record of the requester in making such a determination.
(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.
(viii) An agency shall not assess search fees (or in the case of
a requester described under clause (ii)(II), duplication fees) under
this subparagraph if the agency fails to comply with any limit under
paragraph (6), if no unusual or exceptional circumstances (as those
terms are defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request.
(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 complaint. 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
{{4-30-08 p.8027}}after service upon the defendant
of the pleading in which such complaint is made, unless the court
otherwise directs for good cause shown.
(D) Except as to cases the court considers of greater importance,
proceedings before the district court, as authorized by this
subsection, and appeals therefrom, take precedence on the docket over
all cases and shall be assigned for hearing and trial or for argument
at the earliest practicable date and expedited in every way.
(E)(i) 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.
(ii) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained relief through
either--
(I) a judicial order, or an enforceable written agreement or
consent decree; or
(II) a voluntary or unilateral change in position by the agency,
if the complainant's claim is not substantial.
(F)(i) 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 Civil Service Commission 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 Commission, after investigation and consideration of
the evidence submitted, shall submit its 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 Commission recommends.
(ii) The Attorney General shall--
(I) notify the Special Counsel of each civil action described
under the first sentence of clause (i); and
(II) annually submit a report to Congress on the number of such
civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to
Congress on the actions taken by the Special Counsel under clause (i).
(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 20 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.
The 20-day period under clause (i) shall commence on the date on
which the request is first received by the appropriate component of the
agency, but in any event no later than ten days after the request is
first received by any component of the agency that is designated in the
agency's regulations under this section to receive requests under this
section. The 20-day period shall not be tolled by the agency except--
(I) that the agency may make one request to the requester for
information and toll the 20-day period while it is awaiting such
information that it has reasonably requested from the requester under
this section; or
{{4-30-08 p.8028}}
(II) if necessary to clarify with the requester issues regarding
fee assessment. In either case, the agency's receipt of the
requester's response to the agency's request for information or
clarification ends the tolling period.
(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. To aid the requester,
each agency shall make available its FOIA Public Liaison, who shall
assist in the resolution of any disputes between the requester and the
agency. 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.
{{2-29-08 p.8029}}
(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.
(7) Each agency shall--
(A) establish a system to assign an individualized tracking
number for each request received that will take longer than ten days to
process and provide to each person making a request the tracking number
assigned to the request; and
(B) establish a telephone line or Internet service that provides
information about the status of a request to the person making the
request using the assigned tracking number, including--
(i) the date on which the agency originally received the request;
and
(ii) an estimated date on which the agency will complete action
on the request.
(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;
{{2-29-08 p.8030}}
(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. The amount of information deleted, and the
exemption under which the deletion is made, 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, and the exemption under which the deletion is
made, shall be indicated at the place in the record where such deletion
is made.
Any reasonable 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.
(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--
{{2-29-08 p.8031}}
(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), the number of occasions on which each statute was relied upon,
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 and average
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, based on the date on which the requests
were received by the agency;
(F) the average number of days for the agency to respond to a
request beginning on the date on which the request was received by the
agency, the median number of days for the agency to respond to such
requests, and the range in number of days for the agency to respond to
such requests;
(G) based on the number of business days that have elapsed since
each request was originally received by the agency--
(i) the number of requests for records to which the agency has
responded with a determination within a period of up to and including
20 days, and in 20-day increments up to and including 200 days;
(ii) the number of requests for records to which the agency has
responded with a determination within a period greater than 200 days
and less than 301 days;
(iii) the number of requests for records to which the agency has
responded with a determination within a period greater than 300 days
and less than 401 days; and
(iv) the number of requests for records to which the agency has
responded with a determination within a period greater than 400 days;
(H) the average number of days for the agency to provide the
granted information beginning on the date on which the request was
originally filed, the median number of days for the agency to provide
the granted information, and the range in number of days for the agency
to provide the granted information;
(I) the median and average number of days for the agency to
respond to administrative appeals based on the date on which the
appeals originally were received by the agency, the highest number of
business days taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by the agency to
respond to an administrative appeal;
(J) data on the 10 active requests with the earliest filing dates
pending at each agency, including the amount of time that has elapsed
since each request was originally received by the agency;
(K) data on the 10 active administrative appeals with the
earliest filing dates pending before the agency as of September 30 of
the preceding year, including the number of business days that have
elapsed since the requests were originally received by the agency;
(L) the number of expedited review requests that are granted and
denied, the average and median number of days for adjudicating
expedited review requests, and the number adjudicated within the
required 10 days;
(M) the number of fee waiver requests that are granted and
denied, and the average and median number of days for adjudicating fee
waiver determinations;
(N) the total amount of fees collected by the agency for
processing requests; and
(O) 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.
{{2-29-08 p.8032}}
(2) Information in each report submitted under paragraph (1)
shall be expressed in terms of each principal component of the agency
and for the agency overall.
(3) 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. In addition, each agency shall make the raw
statistical data used in its reports available electronically to the
public upon request.
(4) 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.
(5) 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.
(6) 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--
(A) 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; and
(B) any information described under subparagraph (A) that is
maintained for an agency by an entity under Government contract, for
the purposes of records management.
(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.
(h)(1) There is established the Office of Government Information
Services within the National Archives and Records Administration.
(2) The Office of Government Information Services shall--
(A) review policies and procedures of administrative agencies
under this section;
(B) review compliance with this section by administrative
agencies; and
(C) recommend policy changes to Congress and the President to
improve the administration of this section.
(3) The Office of Government Information Services shall offer
mediation services to resolve disputes between persons making requests
under this section and administrative agencies as a nonexclusive
alternative to litigation and, at the discretion of the Office, may
issue advisory opinions if mediation has not resolved the dispute.
(i) The Government Accountability Office shall conduct audits of
administrative agencies on the implementation of this section and issue
reports detailing the results of such audits.
{{4-30-08 p.8032.01}}
(j) Each agency shall designate a Chief FOIA Officer who shall be a
senior official of such agency (at the Assistant Secretary or
equivalent level).
(k) The Chief FOIA Officer of each agency shall, subject to the
authority of the head of the agency--
(1) have agency-wide responsibility for efficient and appropriate
compliance with this section;
(2) monitor implementation of this section throughout the agency
and keep the head of the agency, the chief legal officer of the agency,
and the Attorney General appropriately informed of the agency's
performance in implementing this section;
(3) recommend to the head of the agency such adjustments to
agency practices, policies, personnel, and funding as may be necessary
to improve its implementation of this section;
(4) review and report to the Attorney General, through the head
of the agency, at such times and in such formats as the Attorney
General may direct, on the agency's performance in implementing this
section;
(5) facilitate public understanding of the purposes of the
statutory exemptions of this section by including concise descriptions
of the exemptions in both the agency's handbook issued under
subsection (g), and the agency's annual report on this section, and by
providing an overview, where appropriate, of certain general categories
of agency records to which those exemptions apply; and
(6) designate one or more FOIA Public Liaisons.
(l) FOIA Public Liaisons shall report to the agency
Chief FOIA Officer and shall serve as supervisory officials to whom a
requester under this section can raise concerns about the service the
requester has received from the FOIA Requester Center, following an
initial response from the FOIA Requester Center Staff. FOIA Public
Liaisons shall be responsible for assisting in reducing delays,
increasing transparency and understanding of the status of requests,
and assisting in the resolution of disputes.
[Codified to 5 U.S.C. 552]
[Source: Section 552 of the Act of September 6, 1966 (Pub. L. No.
89--554; 80 Stat. 383), effective September 6, 1966, as amended by
section 1 of the Act of June 5, 1967 (Pub. L. No. 90--23; 81 Stat. 54),
effective July 4, 1967; the Act of November 21, 1974 (Pub. L. No.
93--502; 88 Stat. 1561--1564), effective February 19, 1975; section
5(b) of the Act of September 13, 1976; Pub. L. No. 94--409; 90 Stat.
1247), effective March 11, 1977; sections 1802 and 1803 of subtitle N
of title I of the Act of October 27, 1986 (Pub. L. No. 99--570; 100
Stat. 3207--48--3207--50), with amendments to section 552(b)(7) and
(c)--(f) effective on the date of enactment (October 27, 1986) with
respect to any requests for records, whether or not the request was
made prior to such date, and shall apply to any civil action pending on
such date, and amendments to section 552(a)(4)(A) effective April 25,
1987 with respect to any requests for records, whether or not the
request was made prior to such date, and shall apply to any civil
action pending on such date, except that review changes applicable to
records requested for commercial use shall not be applied by an agency
to requests made before April 25, 1987 or before the agency has finally
issued its regulations; sections 4--11 of the Act of October 2, 1997
(Pub. L. No. 104--231; 110 Stat. 3049--3054), effective March 31, 1997,
except that sections 7 and 8 are effective November 1, 1997; sections
4(a), and 5 of the Act of December 31, 2007 (Pub. L. No. 110--175; 121
Stat. 2425 and 2526), effective December 31, 2007; sections 6(a)(1),
6(b)(1), and 7(a) of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2526 and 2527), effective December 31, 2008;
sections 8, 9, and 10(a) of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2527--2529), effective December 31, 2007]
NOTES
Freedom of Information Act. Section 552 of title 5, United
States Code, is popularly known as the Freedom of Information Act.
Implementing Regulations. FDIC regulations, entitled
"Part 309--Disclosure of
Information," implements section 552
of title 5, United States Code.
{{4-30-08 p.8032.02}}
Quarterly Index to Records. The following statement was issued
by the Board of Directors of the Federal Deposit Insurance Corporation
on June 19, 1975 (40 Fed. Reg. 26734):
Determination and Order of Impracticability of
Publication. Section 552(a)(2) of title 5, United States Code, as
amended by the Act of November 21, 1974 (Pub. L. No. 93-502; 88 Stat.
1561), requires each agency of the Federal Government to "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
[section 552(a)(2)] to be made available or published." In
addition, each agency must "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."
Since July 4, 1967, the Corporation has maintained an index of
matters required to be indexed by section 552(a)(2). The index has been
available for public inspection and copying, pursuant to
§ 309.1(a)(3)(ii) of the Corporation's rules and regulations (12 CFR
309.1(a)(3)(ii), at the Office of the Executive Secretary, Federal
Deposit Insurance Corporation, 550 17th Street N.W., Washington, D.C.
20429. To date, the Corporation has received only a minimal number of
requests either for access to or copies of the index.
Moreover, few of the matters referenced in the index--such as
routine final opinions and orders issued in connection with
applications of insured State nonmember banks which involve the
application of statutory factors to particular facts and circumstances
generally unique to each individual bank--are of such precedential
significance as to warrant the expense of publication of the index in
relation to its value to the public.
The Board of Directors of the Federal Deposit Insurance Corporation
has therefore determined and hereby orders that publication by the
Corporation of the index pursuant to section 552(a)(2) is unnecessary
and impracticable. Upon request, however, copies of the index or
pertinent portions thereof will be provided at a cost not to exceed the
direct cost of duplication.
OPEN Government Act of 2007. Section 1 of the Act of December
31, 2007 (Pub. L. No. 110--175; 121 Stat. 2524) provides that the Act
may be cited as the OPEN Government Act of 2007.
Findings and Purpose of the "OPEN Government Act of
2007". Section 1 of the Act of December 31, 2007 (Pub. L. No.
121 Stat. 2524) provides as follows:
SEC. 2. FINDINGS.
Congress finds that--
(1) the Freedom of Information Act was signed into law on July 4,
1966, because the American people believe that--
(A) our constitutional democracy, our system of self-government,
and our commitment to popular sovereignty depends upon the consent of
the governed;
(B) such consent is not meaningful unless it is informed consent;
and
(C) as Justice Black noted in his concurring opinion in Barr v.
Matteo (360 U.S. 564 (1959)), "The effective functioning of a free
government like ours depends largely on the force of an informed public
opinion. This calls for the widest possible understanding of the
quality of government service rendered by all elective or appointed
public officials or employees.";
(2) the American people firmly believe that our system of
government must itself be governed by a presumption of openness;
(3) the Freedom of Information Act establishes a "strong
presumption in favor of disclosure" as noted by the United States
Supreme Court in United States Department of State v. Ray (502 U.S. 164
(1991)), a presumption that applies to all agencies governed by the
Act;
(4) "disclosure, not secrecy, is the dominant objective of the
Act," as noted by the United States Supreme Court in Department of
Air Force v. Rose (425 U.S. 352 (1976));
(5) in practice, the Freedom of Information Act has not always
lived up to the ideals of that Act; and
{{2-29-08 p.8032.03}}
(6) Congress should regularly review section 552 of title 5,
United States Code (commonly referred to as the Freedom of Information
Act), in order to determine whether further changes and improvements
are necessary to ensure that the Government remains open and accessible
to the American people and is always based not upon the "need to
know" but upon the fundamental "right to know".
[Codified to 5 U.S.C. 552 note]
[Source: section 2 of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2524), effective December 31, 2007]
* * * * *
Recovery of Attorney Fees and Litigation Costs. Section 4(b)
of the Act of December 31, 2007 (Pub. L. No. 121 Stat. 2524) provide as
follows:
(b) LIMITATION.--Notwithstanding section 1304 of title 31,
United States Code, no amounts may be obligated or expended from the
Claims and Judgment Fund of the United States Treasury to pay the costs
resulting from fees assessed under section 552(a)(4)(E) of title 5,
United States Code. Any such amounts shall be paid only from funds
annually appropriated for any authorized purpose for the Federal agency
against which a claim or judgment has been rendered.
[Codified to 5 U.S.C. 552 note]
[Source: Section 4(b) of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2525), effective December 31, 2007]
* * * * *
SEC. 6. The amendments made by this subsection shall take effect 1
year after the date of enactment of this Act.
(2) EFFECTIVE DATE AND APPLICATION.--The amendment made by this
subsection shall take effect 1 year after the date of enactment of this
Act and apply to requests for information under section 552 of title 5,
United States Code, filed on or after that effective date.
[Codified to 5 U.S.C. 552 note]
[Source: Section 6(a)(2) and 6(b)(2) of the Act of December 31,
2007 (Pub. L. No. 110--175; 121 Stat. 2526), effective December 31,
2008]
SEC. 7. (b) EFFECTIVE DATE AND APPLICATION.--The amendment made by
this section shall take effect 1 year after the date of enactment of
this Act and apply to requests for information under section 552 of
title 5, United States Code, filed on or after that effective date.
[Codified to 5 U.S.C. 552 note]
[Source: Section 7(b) of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2527), effective December 31, 2008]
* * * * *
SEC. 10. The amendments made by this section shall take effect on
the date of enactment of this Act.
[Codified to 5 U.S.C. 552 note]
[Source: Sections 10 of the Act of December 31, 2007 (Pub. L. No.
110--175; 121 Stat. 2530), effective December 31,
2008]
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