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
(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
(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
(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
(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
(4) The Attorney General of
the
(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.