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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;
(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, each agency, upon any
request for records which (i) reasonably describes such records
and (ii) is made in accordance with published rules stating the
time, place, fees (if any), and procedures to be followed, shall
make the records promptly available to any person.
(B) In making any record available to a person under this paragraph,
an agency shall provide the record in any form or format requested
by the person if the record is readily reproducible by the agency
in that form or format. Each agency shall make reasonable efforts
to maintain its records in forms or formats that are reproducible
for purposes of this section.
(C) In responding under this paragraph to a request for records,
an agency shall make reasonable efforts to search for the records
in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency's automated
information system.
(D) For purposes of this paragraph, the term "search"
means to review, manually or by automated means, agency records
for the purpose of locating those records which are responsive
to a request.
(4)(A)(i) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying the schedule of fees applicable
to the processing of requests under this section and establishing
procedures and guidelines for determining when such fees should
be waived or reduced. Such schedule shall conform to the guidelines
which shall be promulgated, pursuant to notice and receipt of
public comment, by the Director of the Office of Management and
Budget and which shall provide for a uniform schedule of fees
for all agencies.
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard charges
for document search, duplication, and review, when records
are requested for commercial use;
(II) fees shall be limited to reasonable standard charges
for document duplication when records are not sought for
commercial use and the request is made by an educational
or noncommercial scientific institution, whose purpose is
scholarly or scientific research; or a representative of
the news media; and
(III) for any request not described in (I) or (II), fees
shall be limited to reasonable standard charges for document
search and duplication.
(iii) Documents shall be furnished without any charge or
at a charge reduced below the fees established under clause
(ii) if disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only
the direct costs of search, duplication, or review. Review
costs shall include only the direct costs incurred during
the initial examination of a document for the purposes of
determining whether the documents must be disclosed under
this section and for the purposes of withholding any portions
exempt from disclosure under this section. Review costs may
not include any costs incurred in resolving issues of law
or policy that may be raised in the course of processing a
request under this section. No fee may be charged by any agency
under this section--
(I) if the costs of routine collection and processing of
the fee are likely to equal or exceed the amount of the
fee; or
(II) for any request described in clause (ii)(II) or (III)
of this subparagraph for the first two hours of search time
or for the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless
the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed
$250.
(vi) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level
of fees for particular types of records.
(vii) In any action by a requester regarding the waiver of
fees under this section, the court shall determine the matter
de novo, provided that the court's review of the matter shall
be limited to the record before the agency.
(B) On complaint, the district court of the United States in
the district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated,
or in the District of Columbia, has jurisdiction to enjoin the
agency from withholding agency records and to order the production
of any agency records improperly withheld from the complainant.
In such a case the court shall determine the matter de novo,
and may examine the contents of such agency records in camera
to determine whether such records or any part thereof shall
be withheld under any of the exemptions set forth in subsection
(b) of this section, and the burden is on the agency to sustain
its action. In addition to any other matters to which a court
accords substantial weight, a court shall accord substantial
weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility under paragraph (2)(C)
and subsection (b) and reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon
the defendant of the pleading in which such complaint is made,
unless the court 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 United States reasonable
attorney fees and other litigation costs reasonably incurred
in any case under this section in which the complainant has
substantially prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or capriciously
with respect to the withholding, the Special Counsel shall promptly
initiate a proceeding to determine whether disciplinary action
is warranted against the officer or employee who was primarily
responsible for the withholding. The Special Counsel, after
investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative
authority of the agency concerned and shall send copies of the
findings and recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court,
the district court may punish for contempt the responsible employee,
and in the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and
make available for public inspection a record of the final votes
of each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall--
(i) determine within twenty days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately
notify the person making such request of such determination
and the reasons therefor, and of the right of such person
to appeal to the head of the agency any adverse determination;
and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the
denial of the request for records is in whole or in part upheld,
the agency shall notify the person making such request of
the provisions for judicial review of that determination under
paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii)
of subparagraph (A) may be extended by written notice to the
person making such request setting forth the unusual circumstances
for such extension and the date on which a determination is
expected to be dispatched. No such notice shall specify a date
that would result in an extension for more than ten working
days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice
under clause (i) extends the time limits prescribed under
clause (i) of subparagraph (A), the agency shall notify the
person making the request if the request cannot be processed
within the time limit specified in that clause and shall provide
the person an opportunity to limit the scope of the request
so that it may be processed within that time limit or an opportunity
to arrange with the agency an alternative time frame for processing
the request or a modified request. Refusal by the person to
reasonably modify the request or arrange such an alternative
time frame shall be considered as a factor in determining
whether exceptional circumstances exist for purposes of subparagraph
(C).
(iii) As used in this subparagraph, "unusual circumstances"
means, but only to the extent reasonably necessary to the
proper processing of the particular requests--
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request; or
(III) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request
or among two or more components of the agency having substantial
subject matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to
notice and receipt of public comment, providing for the aggregation
of certain requests by the same requestor, or by a group of
requestors acting in concert, if the agency reasonably believes
that such requests actually constitute a single request, which
would otherwise satisfy the unusual circumstances specified
in this subparagraph, and the requests involve clearly related
matters. Multiple requests involving unrelated matters shall
not be aggregated.
(C)(i) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be
deemed to have exhausted his administrative remedies with respect
to such request if the agency fails to comply with the applicable
time limit provisions of this paragraph. If the Government can
show exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request, the court
may retain jurisdiction and allow the agency additional time
to complete its review of the records. Upon any determination
by an agency to comply with a request for records, the records
shall be made promptly available to such person making such
request. Any notification of denial of any request for records
under this subsection shall set forth the names and titles or
positions of each person responsible for the denial of such
request.
(ii) For purposes of this subparagraph, the term "exceptional
circumstances" does not include a delay that results
from a predictable agency workload of requests under this
section, unless the agency demonstrates reasonable progress
in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope
of a request or arrange an alternative time frame for processing
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 United States shall not have
jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a complete
response to the request.
(v) For purposes of this subparagraph, the term "compelling
need" means--
(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected
to pose an imminent threat to the life or physical safety
of an individual; or
(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform
the public concerning actual or alleged Federal Government
activity.
(vi) A demonstration of a compelling need by a person making
a request for expedited processing shall be made by a statement
certified by such person to be true and correct to the best
of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part,
an agency shall make a reasonable effort to estimate the volume
of any requested matter the provision of which is denied, and
shall provide any such estimate to the person making the request,
unless providing such estimate would harm an interest protected
by the exemption in subsection (b) pursuant to which the denial
is made.
(b) This section does not apply to matters that are--
(1)(A) specifically authorized under criteria established by
an Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and practices
of an agency;
(3) specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires
that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters
to be withheld;
(4) trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency;
(6) personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(7) records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere
with enforcement proceedings, (B) would deprive a person of a
right to a fair trial or an impartial adjudication, (C) could
reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose
the identity of a confidential source, including a State, local,
or foreign agency or authority or any private institution which
furnished information on a confidential basis, and, in the case
of a record or information compiled by 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 United States a report which
shall cover the preceding fiscal year and which shall include--
(A) the number of determinations made by the agency not to
comply with requests for records made to such agency under subsection
(a) and the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies
upon to authorize the agency to withhold information under
subsection (b)(3), a description of whether a court has upheld
the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the agency
as of September 30 of the preceding year, and the median number
of days that such requests had been pending before the agency
as of that date;
(D) the number of requests for records received by the agency
and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for processing
requests; and
(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the
total amount expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the
public including by computer telecommunications, or if computer
telecommunications means have not been established by the agency,
by other electronic means.
(3) The Attorney General of the United States shall make each
report which has been made available by electronic means available
at a single electronic access point. The Attorney General of the
United States shall notify the Chairman and ranking minority member
of the Committee on Government Reform and Oversight of the House
of Representatives and the Chairman and ranking minority member
of the Committees on Governmental Affairs and the Judiciary of
the Senate, no later than April 1 of the year in which each such
report is issued, that such reports are available by electronic
means.
(4) The Attorney General of the United States, in consultation
with the Director of the Office of Management and Budget, shall
develop reporting and performance guidelines in connection with
reports required by this subsection by October 1, 1997, and may
establish additional requirements for such reports as the Attorney
General determines may be useful.
(5) The Attorney General of the United States shall submit an
annual report on or before April 1 of each calendar year which
shall include for the prior calendar year a listing of the number
of cases arising under this section, the exemption involved in
each case, the disposition of such case, and the cost, fees, and
penalties assessed under subparagraphs (E), (F), and (G) of subsection
(a)(4). Such report shall also include a description of the efforts
undertaken by the Department of Justice to encourage agency compliance
with this section.
(f) For purposes of this section, the term--
(1) "agency" as defined in section 551(1) of this title
includes any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency;
and
(2) "record" and any other term used in this section
in reference to information includes any information that would
be an agency record subject to the requirements of this section
when maintained by an agency in any format, including an electronic
format.
(g) The head of each agency shall prepare and make publicly available
upon request, reference material or a guide for requesting records
or information from the agency, subject to the exemptions in subsection
(b), including--
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems
maintained by the agency; and
(3) a handbook for obtaining various types and categories of
public information from the agency pursuant to chapter 35 of title
44, and under this section.
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