1974 Amendments to the Freedom of Information Act

ATTACHMENT B --1974 Amendments to the Freedom of Information Act

Public Law 93-502

93rd Congress, H. R. 12471

November 21, 1974

An Act

To amend section 552 of title 5, United States Code,

known as the Freedom of Information Act.

Be it enacted by the Senate and House of Representatives of the United States of America in

Congress assembled, That (a) the fourth sentence of section 552(a)(2) of title 5, United States

Code, is amended to read as follows: "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.".

(b)(1) Section 552(a)(3) of title 5, United States Code, is amended to read as follows:

"(3) Except with respect to the records made available under paragraphs (1) and (2) of this

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, fee (if any),

and procedures to be followed, shall made the records promptly available to any person.".

(2) Section 552(a) of title 5, United States Code, is amended by redesignating paragraph (4) and

all references thereto, as paragraph (5) and by inserting immediately after paragraph (3) the

following new paragraph:

"(4)(A) In order to carry out the provisions of this section, each agency shall promulgate

regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of

fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable

standard charges for document search and duplication and provide for recovery of only the direct

costs of such search and duplication. Documents shall be furnished without charge or at a

reduced charge where the agency determines that waiver or reduction of the fees is in the public

interest because furnishing the information can be considered as

primarily benefitting the general public.

"(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 thirty 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.

"(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 Civil Service Commission shall promptly

initiate a proceeding to determine whether disciplinary action is warranted against the officer or

employee who was primarily responsible for the withholding. The Commission, after

investigation and consideration of the evidence submitted, shall submit 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 Commission 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.".

(c) Section 552(a) of title 5, United States Code, is amended by adding at the end thereof the

following paragraph:

"(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this

subsection, 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 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) 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)(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.

SEC. 2. (a) Section 552(b)(1) of title 5, United States Code, is amended to read as follows:

"(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;"

(b) Section 552(b)(7) of title 5, United States Code, is amended to read as follows:

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the

production of such records would (A) interfere with enforcement proceedings, (B) deprive a

person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted

invasion of personal privacy, (D) disclose the identity of a confidential source, and in the case of

a record 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,

confidential information furnished only by the confidential source, (E) disclose investigative

techniques and procedures, or (F) endanger the life or physical safety of law enforcement

personnel:".

(c) Section 552(b) of title 5, United States Code, is amended by adding at the end the following:

"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.".

Sec. 3 Section 552 of title 5, United States Code, is amended by adding at the end thereof the

following new subsections:

"(d) On or before March 1 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 such 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 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 administer fully 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 report shall also include a

description of the efforts undertaken by the Department of Justice to encourage agency

compliance with this section.

"(e) For purposes of this section, the term '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.".

Sec. 4. The amendments made by this Act shall take effect on the ninetieth day beginning after

the date of the enactment of this Act.

Carl Albert
Speaker of the House of Representatives.

James O. Eastland
President of the Senate pro tempore.

IN THE HOUSE OF REPRESENTATIVES, U.S.,

November 20, 1974.

The House of Representatives having proceeded to reconsider the bill (H.R. 12471) entitled "An

Act to amend section 552 of title 5, United States Code, known as the Freedom of Information

Act," returned by the President of the United States with his objections, to the House of

Representatives, in which it originated, it was

Resolved, That the said bill pass, two-thirds of the House of Representatives agreeing to pass the

same.

Attest:

W. PAT JENNINGS

Clerk.

By W. Raymond Colley

I certify that this Act originated in the House of Representatives.

W. Pat Jennings
Clerk.

By W. Raymond Colley

IN THE SENATE OF THE UNITED STATES,

November 21, 1974

The Senate having proceeded to reconsider the bill (H.R. 12471) entitled "An Act to amend

section 552 of title 5, United States Code, known as the Freedom of Information Act," returned

by the President of the United States with his objections, to the House of Representatives, in

which it originated, it was

Resolved, That the said bill pass, two-thirds of the Senators present having voted in the

affirmative.

Attest:

FRANCIS R. VALEO
Secretary.

___________________________

LEGISLATIVE HISTORY:

HOUSE REPORTS:

No. 93-876 (Comm. On Government Operations) and No. 93-1380 (Comm.

of Conference).

SENATE REPORTS:

No. 93-854 accompanying S. 2543

(Comm. On the Judiciary) and No. 93-122 (Comm. On Conference).

CONGRESSIONAL RECORD, Vol. 120 (1974):

Mar. 14, considered and passed House.

May 30, considered and passed Senate, amended in lieu of S. 2543

Oct. 1, Senate agreed to conference report.

Oct. 7, House agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 10, No. 42:

Oct. 17, vetoed; Presidential message.

CONGRESSIONAL RECORD, Vol. 120 (1974):

Nov. 20, House overrode veto.

Nov. 21, Senate overrode veto.

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