Vol. III, No. 1
Text of Freeedom of Information ActShowing Changes Proposed in S. 1751/H.R. 4805
(Added words are italicized; deleted words are bracketed.)
§ 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[;], if the final opinions or orders are cited, used, or relied on as precedent by the agency;
(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 an [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 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. 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 by any United States person for records which [(A)] (i) reasonably describes such records and [(B)] (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] the requester.
(B) A requester shall not make or maintain a request under this paragraph for records relating to the subject matter of an ongoing judicial or adjudicatory administrative proceeding (civil or criminal) to which the requester, or any person upon whose behalf the requester acts in making the request, is a party
(C) An agency may require by regulation that each request for records under this section include declarations by the requester that the requester, or any person upon whose behalf the requester acts in making the request, is:
(i) a United States person as defined in this section, and
(ii) not barred by subsection (a) (3) (B) from making the request.
A request that does not comply with any such regulation requirement is not a proper request under this section.
(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. The schedule may provide for the payment of all costs reasonably attributable to responding to the request, including the costs of searching for, reviewing, and duplicating requested records. [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.] If the requested records contain commercially valuable technological or reference information, generated or acquired by the government at substantial cost to the public, fees may be charged which reflect the fair market value or royalties or both, in addition to or in lieu of any processing fees otherwise chargeable, taking into account such factors as the estimated commercial value of the information, its cost to the government, and any public interest served by its disclosure. Documents shall be furnished without charge or at a reduced charge where the agency determines, in the exercise of its discretion, that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.
(B) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying procedures by which--
(i) a submitter may be required to designate, at the time of submission, any information consisting of trade secrets, commercial or financial information, or other commercially valuable information, which is exempt from disclosure under subsection (b)(4);
(ii) the agency shall notify the submitter that a request has been made for information provided by the submitter within a reasonable time prior to a decision to release any such information;
(iii) the submitter may, within 10 working day of the forwarding of such notification, submit to the agency written objection to such disclosure specifying all grounds upon which it is contended that the information should not be disclosed; and
(iv) the agency shall notify the submitter of any final decision to release such information.
(C) An agency is not required to notify a submitter pursuant to subparagraph (B) if--
(i) the information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to paragraph (4)(B)(i), if such designation is required by the agency;
(ii) the agency determines, prior to giving such notice, that the request should be denied;
(iii) the disclosure is required by law (other than this section); or
(iv) the information lawfully has been published or otherwise made available to the public.
(D) If a submitter has objected pursuant to subparagraph (B)(iii), to disclosure of information that the agency determines to be exempt from disclosure under subsection (b)(4), the agency shall not release such information unless the agency determines in writing that the failure to disclose the records would injure an overriding public interest and disclosure is not otherwise prohibited by law.
[(B)] (E) On complaint filed by a requester within 90 days from the date of final agency action or by a submitter prior to the release of submitted information, 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--
(i) to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from [the complainant.] the requester; or
(ii) to enjoin the agency from any disclosure of records which was objected to by a submitter under subparagraph (B)(iii) or which would have been objected to had notice been given as required by subparagraph (B)(ii).
(F) In an action based on a complaint--
(i) by a requester, the court shall have jurisdiction over any submitter of information contained in the requested records, and any such submitter may intervene as of right in the action; and
(ii) by a submitier, the court shall have jurisdiction over any requester of records containing information which the submitter seeks to have withheld, and any such requester may intervene as a matter of right in the action.
(G) The agency that is the subject of the complaint shall promptly, upon service of a complaint--
(i) seeking the production of records, notify each submitter of information contained in the requested records that the complaint was filed; and
(ii) seeking the withholding of records, notify each requester of the records that the complaint was filed.
(H) In any action in which a requester is an intervenor or is joined the court shall on timely motion of the requester transfer the action to a district court which would have had jurisdiction had the action been brought by the requester, unless the court otherwise directs for good cause shown.
(I) In a case in which a record is withheld under subsection (b)(1), the court shall not enjoin the agency from withholding such record unless the agency's action is found to be arbitrary or capricious. In [such a case] all other cases, the court shall determine the matter de novo [,]. [and] The court may examine the contents of [such] requested 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] T[t]he burden is on the agency to sustain its action to withhold information and the burden is on any submitter seeking the withholding of information. The court shall maintain under seal any affidavit or record submitted in camera to the court in support of the applicability of any exemption, and shall stay any order requiring the release of records pending final judicial resolution of any appeal from such order.
[(C)](J) 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)] (K) 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)] (L) The court may assess against the United States or any submitter who is a party to the litigation reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the [complainant] requester has substantially prevailed.
[(F)] (M) 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 the 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 employees or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.
[(G)] (N) 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 subsection for records which are sufficiently identified and limited that no more than eight working hours of search and review time are required to respond to the request, and which do not contain trade secrets, commercial or financial information, or other commercially valuable information provided by a submitter, shall--
(i) determine within ten working 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 working 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 the 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.]
(B) Except as provided in subparagraph (A), each agency, upon any request for records made under paragraph (1), (2) or (3) of this subsection shall--
(i) within thirty working days after the receipt of the request--
(a) determine whether to comply with such request, in whole or in part, and immediately notify the requester of such determination and the reasons therefor, and of the requester's right to appeal to the head of the agency any adverse determination; or
(b) notify the requester of the estimated time period required for such determination, and the reasons therefor, such time period to be established in accordance with agency regulations promulgated hereunder but not to exceed one year; and
(ii) within thirty working days after the receipt of an appeal--
(a) make a determination of the appeal; or
(b) notify the requester of the estimated time period required for such determination, and the reasons therefor, such time period to be established in accordance with agency regulations promulgated hereunder but not to exceed six months.
If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the requester of the provisions for judicial review of that determination under paragraph (4) of this subsection.
(C) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the time periods under subparagraph (B). Such regulations shall provide for the shortest practicable time periods and shall take into account all relevant factors, including but not limited to--
(i) the volume of requests and appeals received by the agency;
(ii) the resources available to the agency for the processing of such requests and appeals;
(iii) the volume of records required to be searched to locate all records responsive to the request or appeal;
(iv) the volume of responsive records required to be reviewed for release pursuant to the request or appeal;
(v) the need to search for or review records maintained in field facilities or other establishments that are separate from the agency office processing the request or appeal;
(vi) the character of the records requested;
(vii) the need for consultation, which shall be conducted with all practicable speed, with another agency or among two or more components of the agency having substantial subject matter interest therein; and
(viii) the need for notification of submitters of information and for consideration of any objections to disclosure made by such submitters.
(D) Each agency shall promulgate regulations pursuant to notice and receipt of public comment, by which a requester who demonstrates a compelling need for expedited access to records and whose request for information will primarily benefit the general public may, as a matter of the agency's discretion, be given processing priority over other requesters.
[(C)] (E) Any [person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection] requester 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 a requester files a complaint under paragraph (4)(E), the administrative remedies of a submitter of information contained in the records which are the subject of the request shall be deemed to have been exhausted.
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 a person making such request.] the requester, except that if disclosure of records is objected to by a submitter pursuant to paragraph (4)(B)(iii), the agency shall not disclose the records for fifteen working days after notice of the final decision to release the requested information has been forwarded to the submitter. 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.
(7) An agency is not required to disclose any material requested under this subsection which consists of newspaper clippings, magazine articles, court records, publications available from the Government Printing Office, or any similar items which are in the public record or otherwise publicly available, but the agency shall inform the requester of the nature of such public source material.
(8) Nothing in this section shall be deemed applicable in any way to the informant records maintained by a law enforcement agency under an informant's name or personal identifier, whenever access to such records is sought by a third party according to the informant's name or personal identifier.
(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 [;], including such materials as (A) manuals and instructions to investigators, inspectors, auditors, and negotiators, and (B) examination material used solely to determine individual qualifications for employment, promotion, and licensing;
(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 or other commercially valuable information, obtained from [a] any person [and] if the information is privileged or [confidential] if its release may impair either the legitimate competitive, financial, or business interests of any person or the government's ability to obtain such information in the future;
(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] records or information concerning individuals the release of which would constitute an [clearly] unwarranted invasion of personal privacy[;], including compilations of lists of names and addresses that could be used for solicitation purposes;
(7) [investigatory] records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information would (A) [interfere with] reveal investigatory information relating to an ongoing investigation or enforcement proceeding[s], (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) tend to disclose the identity of a confidential source, including any foreign, state, or other public agency or authority or any private institution that 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, [confidential] information furnished [only] by [the] a confidential source, (E) disclose [investigative] techniques, [and] procedures, guidelines, or priorities for law enforcement investigations or prosecutions, [or] (F) endanger the life or physical safety of [law enforcement personnel] any natural person, or (G) disclose information relating to such categories of investigations of terrorism, organized crime, or foreign counterintelligence as are defined by the Attorney General by regulation or order;
(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[.];
(10) records generated by the United States or any party in connection with the settlement of a legal action in which the United States is a party or has an interest; or
(11) technical data that may not be exported lawfully outside the United States without an approval, authorization, or a license from an agency, unless the requester has obtained the appropriate approval, authorization, or license.
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) 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.
(d) On or before March 1 of each calendar year, each agency shall submit a report covering the preceding fiscal [calendar] year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. This 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)](M), 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] fiscal 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)](L), [(F)](M), and [(G)](N). 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]--
(1) "agency" as defined in section 551(l) 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;
(2) "submitter" means any person who has submitted to an agency (other than an intelligence agency) trade secrets, commercial or financial information (other than personal financial information), or other commercially valuable information, in which the person has a commercial or proprietary interest;
(3) "requester" means any person who makes or causes to be made, or on whose behalf is made, a proper request for disclosure of records under subsection (a);
(4) "United States person" means a citizen of the United States or an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20)), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association that is a foreign power, as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801(a));
(5) "working days" means every day excluding Saturdays, Sundays, and federal legal holidays;
(6) "record" means existing documentation of information in any form, including computer tapes and discs, but does not include system software or documentation created for the personal convenience of any government employee or official.
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