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1992-11-02
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TEXT OF THE FREEDOM OF INFORMATION ACT
1.01 The Freedom of Information Act, 5 U.S.C. 552, As Amended
by Public Law No. 99-570, 1801-1804 (1986)
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 organizations 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) 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 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
Federal Register.
(2) Each ag3agency, 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; and
(C) administrative staff manuals and instructions to staff
that affect a member of the public; unless the materials are
promptly published and copies offered for sale. 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, or staff manual or instruction.
However, in each case the justification for the deletion
shall be explained fully in writing. 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 impractical, 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. 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) Except with respect to the records made available under
paragraphs (1) and (2) of the subsection, each agency, upon
any request for records which (A) reasonably describes such
records and (B) 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.
(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 the 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 al 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
(iii) 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 cost of search, duplication, or review. Review
costs shall include only the direct costs incurred during the
initial examination of documents for the purpose of
determining whether the documents must be disclosed under
this section and for the purpose 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 fees may be charged by any
agency under this section--
(I) if the cost of routine collection and processing fees
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 100 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.
(C) Notwithstanding any other provision of law, the
defendant shall serve an answer or otherwise plead to any
complaint made under this subsection within 30 days after
service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for
good cause shown.
(D) [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.]
Repealed. Pub.L. 98-620, title IV|402(2), Nov. 8, 1984, 98
Stat. 3335, 3357.
(E) The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in which
the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and
assesses against the United States reasonable attorney fees
and other litigation costs, and the court additionally issues
a written finding that the circumstances surrounding the
withholding raise questions whether agency personnel acted
arbitrarily or capriciously with respect to the withholding,
the Special Counsel shall promptly initiate a proceeding to
determine whether disciplinary action is warranted against
the officer or employee who was primarily responsible for the
withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his
findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings
and recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the
court, the district court may punish for contempt the
responsible employee, and in the case of a uniformed service,
the responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the
final votes of each member in every agency proceeding.
(6)(A) Each agency, upon request for records made under
paragraph (1), (2), OR (3) of this section, shall--
(i) determine within ten 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 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 a
request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(B) 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
reasons 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. As used in this subparagraph,
"unusual circumstances" means, but only to the extent
reasonably necessary to the proper processing of the
particular request--
(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.
(C) 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
fourth the names and titles or positions of each person
responsible for the denial of such 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 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 matter 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 of information compiled for law enforcement
purposes, but 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 of information compiled by a criminal law
enforcement authority in the course of a criminal
investigation, or by any 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 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.
(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 a 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
reasonable be expected to interfere with enforcement
proceedings, the agency may, during only such time as the
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 the 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) On or before March1 of each calendar year, each agency
shall submit a report covering the preceding calendar year
to the Speaker of the House of Representatives and President
of the Senate for referral to the appropriate committees of
the Congress. The report shall include--
(1) the number of determinations made by an agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(2) 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;
(3) the names and titles or positions of each person
responsible for the denial of records requested under this
section, and the number of instances of participation for
each;
(4) the results of each proceeding conducted pursuant to
subsection (a)(4)(F), including a report of the disciplinary
action taken against the officer or employee who who was
primarily responsible for improperly withholding records or
an explanation of why disciplinary action was not taken;
(5) a copy of every rule made by such agency regarding this
section;
(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under
this section, and;
(7) such other information as indicates efforts to fully
administer this section.
The Attorney General shall submit an annual report on or
before March 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 subsections (a)(4)(E).(F), and (G).
Such reports shall also include a description of the effort
undertaken by the Department of Justice to encourage agency
compliance with this section.
(F) For the purpose of this section, the term "agency" as
defined in section 551(1) of this title includes any
executive 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.
================ end of document ================
EFFECTIVE DATES
(a)The amendments made by section 1802 [the modification of
Exemption 7 and the addition of the new subsection (c)] shall
be effective on the date of enactment of this Act [October
27,1986], and shall apply 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.
(b)(1) The amendments made by section 1803 [the new fee and
fee waiver provisions] shall be effective 180 days after the
enactment of this Act [April 25,1987], except that
regulations to implement such amendments shall be promulgated
by such 180th day.
(2) The amendments made by section 1803 shall apply with
respect to any request 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 charges
applicable to records requested for commercial use shall not
be applied by an agency to requests made before the
effective date specified in paragraph (1) of this
subsection or before the agency has finally issued its
regulations.
******
