FOIA

THE FREEDOM OF INFORMATION ACT

5 U.S.C. § 552 As Amended

§ 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;

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(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

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(ii) the party has actual and timely notice of the terms thereof. (3)(A) Except with respect to the records made available under par­agraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and proce­dures to be followed, shall make the records promptly available to any person.

(B) In making any record available to a person under this para­graph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make rea­sonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would sig­nificantly interfere with the operation of the agency's automated information system.

(D) For purposes of this paragraph, the term \"search\" means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a re­quest.

(E) An agency, or part of an agency, that is an element of the in­telligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to -­

(i) any government entity, other than a State, territory, com­monwealth, or district of the United States, or any subdivision thereof; or

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

(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing proce­dures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of pub­lic comment, by the Director of the Office of Management and Budg­et and which shall provide for a uniform schedule of fees for all agencies.

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(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.

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(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 is shown. [(D) Repealed by Pub. L. 98-620, Title IV, § 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

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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 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.

(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

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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

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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 or 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

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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

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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

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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 de­

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cision 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] 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

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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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