Appendix A to AG's Memo on the Public Information Section of the APA

APPENDIX A

COMPARATIVE TEXTS: Public Law 89-487 and Public Law 90-23

PUBLICATION IN THE FEDERAL REGISTER

New Public Law 90-23

(Sec. 552 of title 5, United States Code, as amended by Public Law 90-23)

§ 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.

Old Public Law 89-487

(Sec. 3 of Administrative Procedure Act, as amended by Public Law 89-487)

SEC. 3. Every agency shall make available to the public the following information:

(A) PUBLICATION IN THE FEDERAL REGISTER. -- Every 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 officers from whom, and

the methods whereby, the public may secure information, make submittals or requests, or obtain

decisions; (B) statements of the general course and methods 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) every amendment, revision, or repeal of the foregoing. Except to the extent

that a person has actual and timely notice of the terms thereof, no person shall 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 purposes of this subsection, matter which is reasonably

available to the class of persons affected thereby shall be deemed published in the Federal

Register when incorporated by reference therein with the approval of the Director of the Federal

register.

AGENCY OPINIONS AND ORDERS

New Public Law 90-23

(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; 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 a current index 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. 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.

Old Public Law 89-487

(b) AGENCY OPINIONS AND ORDERS. -- Every agency shall, in accordance with published

rules, make available for public inspection and copying (A) all final opinions (including

concurring and dissenting opinions) and all 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 any member of the public, unless such 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: Provided, That in

every case the justification for the deletion must be fully explained in writing. Every agency also

shall maintain and make available for public inspection and copying a current index providing

identifying information for the public as to any matter which is issued, adopted, or promulgated

after the effective date of this Act which is required by this subsection to be made available or

published. No final order, opinion, statement of policy, interpretation, or staff manual or

instruction that affects any member of the public may be relied upon, used or cited as precedent

by an agency against any private party unless it has been indexed and either made available or

published as provided by this subsection or unless that private party shall have actual and timely

notice of the terms thereof.

AGENCY RECORDS

New Public Law 90-23

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

subsection, each agency, on request for identifiable records made in accordance with published

rules stating the time, place, fees to the extent authorized by statute and procedure to be followed,

shall make the records promptly available to any person. 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, has jurisdiction to enjoin the agency from

withholding agency records and to order the production of any agency records improperly

withheld from the complaint. In such a case the court shall determine the matter de novo and the

burden is on the agency to sustain its action. 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. Except as to causes the court considers of greater

importance, proceedings before the district court, as authorized by this paragraph, take

precedence on the docket over all other causes and shall be assigned for hearing and trial at the

earliest practicable date and expedited in every way.

Old Public Law 89-487

(c) AGENCY RECORDS. -- Except with respect to the records made available pursuant to

subsections (a) and (b), every agency shall, upon request for identifiable records made in

accordance with published rules stating the time, place, fees to the extent authorized by statute

and procedure to be followed, make such records promptly available to any person. Upon

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 shall have

jurisdiction to enjoin the agency from the withholding of agency records and to order the

production of any agency records improperly withheld from the complainant. In such cases the

court shall determine the matter de novo and the burden shall be upon the agency to sustain its

action. In the event of noncompliance with the court's order, the district court may punish the

responsible officers for contempt. Except as to those causes which the court deems of greater

importance, proceedings before the district court as authorized by this subsection shall take

precedence on the docket over all other causes and shall be assigned for hearing and trial at the

earliest practicable date and expedited in every way.

AGENCY PROCEEDINGS

New Public Law 90-23

(4) 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.

Old Public Law 89-487

(d) AGENCY PROCEEDINGS. -- Every agency having more than one member shall keep a

record of the final votes of each member in every agency proceeding and such record shall be

available for public inspection.

EXEMPTIONS

New Public Law 90-23

(b) This section does not apply to matters that are--

(1) specifically required by Executive order to be kept secret in the interest of national defense or

foreign policy;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute;

(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) investigatory files compiled for law enforcement purposes except to the extent available by

law to a party other than an agency;

(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.

Old Public Law 89-487

(e) EXEMPTIONS. -- The provisions of this section shall not be applicable to matters that are (1)

specifically required by Executive order to be kept secret in the interest of the national defense or

foreign policy; (2) related solely to the internal personnel rules and practices of any agency; (3)

specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial

information obtained from any person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a private patty 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) investigatory files

compiled for law enforcement purposes except to the extent available by law to a private party;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf

of, or for the use of any agency responsible for the regulation or supervision of financial

institutions; and (9) geological or geophysical information and data (including maps) concerning

wells.

LIMITATIONS

New Public Law 90-23

(c) 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.

Old Public Law 89-487

(f) LIMITATION OF EXEMPTIONS. -- Nothing in this section authorizes withholding of

information or limiting the availability of records to the public except as specifically stated in this

section, nor shall this section be authority to withhold information from Congress.

MISCELLANEOUS

New Public Law 90-23

Sec. 2 The analysis of chapter 5 of title 5, United States Code, is amended by striking out:

"552. Publication of information, rules, opinions, orders, and public records."

And inserting in place thereof:

"552. Public information; agency rules, opinions, orders, records, and proceedings."

Sec. 3. The Act of July 4, 1966 (Public Law 89-487, 80 Stat. 250), is repealed.

Old Public Law 89-487

(g) PRIVATE PARTY. -- As used in this section, "private party" means any party other than an

agency.

EFFECTIVE DATE

New Public Law 90-23

Sec. 4. This Act shall be effective July 4, 1967, or on the date of enactment, whichever is later.

Old Public Law 89-487

(h) EFFECTIVE DATE. -- This amendment shall become effective one year following the date

of the enactment of this Act.

Go to: 1967 AG Memo // Reference Materials // FOIA Home Page

// Justice Department Home Page