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Coalition for Networked Information
Information Policies: A Compilation of Position Statements, Principles,
Statutes, and Other Pertinent Statements
Freedom of Information Act
Congressional Quarterly
1414 22nd Street, N.W.
Washington, D.C. 20037
202-887-8500
Source: Federal Regulatory Directory, Sixth Edition,
Congressional Quarterly, Washington, D.C.
The 1966 Freedom of Information Act (PL 89-487) requires
executive branch agencies and independent commissions to make
available to citizens, upon request, all documents and records -- except
those which fall into the following exempt categories:
- Secret national security or foreign policy information.
- Internal personnel practices.
- Information exempted by law;
- Trade secrets or other confidential commercial or
financial information;
- Interagency or intraagency memos;
- Personal information, personnel or medical files;
- Law enforcement investigatory information;
- Geological and geophysical information.
Following passage of the bill, studies of its operation noted that
major problems in obtaining information were bureaucratic delay, the
cost of bringing suit to force disclosure, and excessive charges levied by
the agencies for finding and providing the requested information.
Congress in 1974 amended the act to remove some of the obstacles to
public access.
Chief among the provisions of the amendments were those
allowing a federal judge to review a decision of the government to
classify certain material. Another provision set deadlines for the
agency to respond to a request for information under the law. Another
amendment permitted judges to order payment of attorneys' fees and
court costs for plaintiffs who won suits brought for information under
the act.
As amended in 1974, the act:
- Required federal agencies to publish their indexes of
final opinions on settlements of internal cases, policy statements
and administrative staff manuals -- or, if the indexes were not
published, to furnish them upon request to any person for the cost
of duplication. The 1966 law simply required agencies to make
such indexes available for public inspection and copying.
- Reworded a provision of the 1966 law to require agencies
to release unlisted documents to someone requesting them with a
reasonable description. This change was to ensure that an agency
could not refuse to provide material simply because the
applicant could not give its precise title.
- Directed each agency to publish a uniform set of fees for
providing documents at the cost of finding and copying them; the
amendment allowed waiver or reduction of those fees when, in
the public interest.
- Empowered federal district courts to order agencies to
produce improperly withheld documents -- and to examine the
contested materials privately (in camera) to determine if they
were properly exempted under one of the nine categories. This
amendment removed the barrier to court review which the
Supreme Court had pointed out, giving courts the power to hold
that a document had been improperly classified and therefore
should be released. The government was required to prove that
contested material was properly classified.
- Set time limits for agency responses to requests: 10
working days for an initial request; 20 working days for an
appeal from an initial refusal to produce documents; a possible 10
working-day extension which could be granted only once in a
single case.
- Set a 30-day time limit for an agency response to a
complaint filed in court under the act; provided that such cases
should be given priority attention by the courts at the appeal, as
well as at the trial, level.
- Allowed courts to order the government to pay attorneys'
fees and court costs for persons winning suits against them under
the act.
- Authorized a court to find that an agency employee
acted capriciously or arbitrarily in withholding information.
Such a finding would set into action Civil Service Commission
proceedings to determine the need for disciplinary action. If the
commission found such a need, the relevant agency would take
the disciplinary action which the commission recommended.
- Amended the wording of the national defense and
national security exemption to make clear that it applied only to
properly classified information, clarifying congressional intent
to allow review of the decision to stamp something "classified."
- Amended the wording of the law enforcement exemption
to allow withholding only of information which, if disclosed,
would interfere with enforcement proceedings, deprive someone
of a fair trial or hearing, invade personal privacy in an
unwarranted way, disclose the identity of a confidential source,
disclose investigative techniques or endanger law enforcement
personnel. The amendment also protected from disclosure all
information from a confidential source obtained by a criminal
law enforcement agency or by an agency conducting a lawful
national security investigation.
- Provided that segregable non-exempt portions of
requested material be released after deletion of the exempt
portions.
- Required an annual agency report to Congress including a
list of all agency decisions to withhold information requested
under the act, the reasons, the appeals, the results, all relevant
rules, the fee schedule and the names of officials responsible for
each denial of information.
- Required an annual report from the attorney general to
Congress listing the number of cases arising under the act, the
exemption involved in each, and the disposition, costs, fees and
penalties of each.
All agencies of the executive branch have issued regulations to
implement the Freedom of Information Act, which may be found in the
Code of Federal Regulations (consult the general index of the
code under "Freedom of Information").
The following is the text of the Freedom of Information Act as it
appears in the U.S. Code, Title 5, Chapter, Subchapter II, section 552.
Section 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 full
organization and the established places of 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 channelled 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, examinations;
(D) substantive rules of general
applicability adopted as authorized by law, and
elements of general policy or interpretations of
general applicability formulated and adopted by
the agency; and
(E) each amendment, revision, or request 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, or be
adversely affected by, a matter required to be published in the Federal
Register and so published. For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby 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; 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
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 --
(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, fees (if any), and procedures to be
followed, shall make the records promptly available to any
person.
(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 fee is in
the public interest because furnishing the information can
be considered as primarily benefiting 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 its 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.
(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) or 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) or subparagraph (A) may be extended by
written notice to the person making such request setting
forth the reasons for such extension and the data 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 to comply with a request
for records, the records shall be made promptly available
to such persons 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.
(b) This section does not apply to matters that are --
(1)
(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), 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) 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 investigation
techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel.
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf, 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.
(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 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 the requests for records made to such agency under
subsection 9a 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 or 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 subsection (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.
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