The Freedom of Information Act

 

 

THE FREEDOM OF INFORMATION ACT 

5 U.S.C. § 552 

As Amended 

§ 552. Public information; agency rules, opinions, orders, records, and pro­ 

ceedings 

(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 es­ 

tablished 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 availa­ 

ble; 

(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 author­ 

ized 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 ad­ 

versely affected by, a matter required to be published in the Federal Regis­ 

ter and not so published.  For the purpose of this paragraph, matter reason­ 

ably 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; 

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(B) those statements of policy and interpretations which have 

been adopted by the agency and are not published in the Feder­ 

al Register; 

(C) administrative staff manuals and instructions to staff that af­ 

fect 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 subpara­ 

graph (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 in­ 

dication 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 dis­ 

tribute (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.  Each agency shall make the 

index referred to in subparagraph (E) available by computer telecommuni­ 

cations 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 

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(ii) the party has actual and timely notice of the terms thereof. 

(3)(A) Except with respect to the records made available under par­ 

agraphs (1) and (2) of this subsection, and except as provided in 

subparagraph (E), 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 proce­ 

dures to be followed, shall make the records promptly available to 

any person. 

(B)  In making any record available to a person under this para­ 

graph, 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 rea­ 

sonable 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 sig­ 

nificantly 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 re­ 

quest. 

(E)  An agency, or part of an agency, that is an element of the in­ 

telligence community (as that term is defined in section 3(4) of 

the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not 

make any record available under this paragraph to -­ 

(i) any government entity, other than a State, territory, com­ 

monwealth, or district of the United States, or any subdivision 

thereof; or 

(ii) a representative of a government entity described in 

clause (i). 

(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 proce­ 

dures 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 pub­ 

lic comment, by the Director of the Office of Management and Budg­ 

et and which shall provide for a uniform schedule of fees for all 

agencies. 

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(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 com­ 

mercial 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 pri­ 

marily in the commercial interest of the requester. 

(iv) Fee schedules shall provide for the recovery of only the di­ 

rect costs of search, duplication, or review.  Review costs shall 

include only the direct costs incurred during the initial exami­ 

nation 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 disclo­ 

sure 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 fash­ 

ion, 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. 

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(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 ac­ 

tion.  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, un­ 

less the court otherwise directs for good cause is shown. 

[(D) Repealed by Pub. L. 98-620, Title IV, § 402(2), Nov. 8, 1984, 

98 Stat. 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 sub­ 

stantially prevailed. 

(F)  Whenever the court orders the production of any agency rec­ 

ords improperly withheld from the complainant and assesses 

against the United States reasonable attorney fees and other liti­ 

gation costs, and the court additionally issues a written finding 

that the circumstances surrounding the withholding raise ques­ 

tions 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 pri­ 

marily responsible for the withholding.  The Special Counsel, af­ 

ter investigation and consideration of the evidence submitted, 

shall submit his findings and recommendations to the adminis­ 

trative authority of the agency concerned and shall send copies 

of the findings and recommendations to the officer or employee 

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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 em­ 

ployee, 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 para­ 

graph (1), (2), or (3) of this subsection, shall -­ 

(i)  determine within 20 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 de­ 

nial of the request for records is in whole or in part upheld, the 

agency shall notify the person making such request of the pro­ 

visions for judicial review of that determination under para­ 

graph (4) of this subsection. 

(B)(i)  In unusual circumstances as specified in this subpara­ 

graph, 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 circum­ 

stances for such extension and the date on which a determina­ 

tion 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 rea­ 

sonably modify the request or arrange such an alternative 

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time frame shall be considered as a factor in determining 

whether exceptional circumstances exist for purposes of sub­ 

paragraph (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 exam­ 

ine 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 sub­ 

stantial subject matter interest therein. 

(iv) Each agency may promulgate regulations, pursuant to no­ 

tice and receipt of public comment, providing for the aggrega­ 

tion 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 re­ 

spect to such request if the agency fails to comply with the ap­ 

plicable time limit provisions of this paragraph.  If the Govern­ 

ment 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 determina­ 

tion by an agency to comply with a request for records, the rec­ 

ords shall be made promptly available to such person making 

such request.  Any notification of denial of any request for rec­ 

ords under this subsection shall set forth the names and titles or 

positions of each person responsible for the denial of such re­ 

quest. 

(ii)  For purposes of this subparagraph, the term “exceptional 

circumstances” does not include a delay that results from a 

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predictable agency workload of requests under this section, 

unless the agency demonstrates reasonable progress in re­ 

ducing 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 per­ 

son made the request shall be considered as a factor in deter­ 

mining whether exceptional circumstances exist for purposes 

of this subparagraph. 

(D)(i) Each agency may promulgate regulations, pursuant to no­ 

tice and receipt of public comment, providing for multitrack 

processing of requests or records based on the amount of work 

or time (or both) involved in processing requests. 

(ii) Regulations under this subparagraph may provide a per­ 

son making a request that does not qualify for the fastest mul­ 

titrack processing an opportunity to limit the scope of the re­ 

quest in order to qualify for faster processing. 

(iii)  This subparagraph shall not be considered to affect the 

requirement under subparagraph (C) to exercise due dili­ 

gence. 

(E)(i) Each agency shall promulgate regulations, pursuant to no­ 

tice and receipt of public comment, providing for expedited proc­ 

essing 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 sub­ 

paragraph 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 proc­ 

essing. 

(iii) An agency shall process as soon as practicable any re­ 

quest for records to which the agency has granted expedited 

processing under this subparagraph.  Agency action to deny 

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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 re­ 

view under paragraph (4), except that the judicial review shall 

be based on the record before the agency at the time of the de­ 

termination. 

(iv)  A district court of the United States shall not have juris­ 

diction 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 expedi­ 

ted basis under this paragraph could reasonably be ex­ 

pected 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 state­ 

ment 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, un­ 

less 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 Exec­ 

utive 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 

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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 with­ 

held; 

(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 liti­ 

gation 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 confi­ 

dential source, including a State, local, or foreign agency or author­ 

ity or any private institution which furnished information on a confi­ 

dential basis, and, in the case of a record or information compiled by 

criminal law enforcement authority in the course of a criminal in­ 

vestigation 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 en­ 

forcement investigations or prosecutions, or would disclose guide­ 

lines for law enforcement investigations or prosecutions if such dis­ 

closure 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 respon­ 

sible 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 per­ 

son requesting such record after deletion of the portions which are exempt 

under this subsection.  The amount of information deleted shall be indica­ 

ted on the released portion of the record, unless including that indication 

would harm an interest protected by the exemption in this subsection un­ 

der which the deletion is made.  If technically feasible, the amount of the 

information deleted shall be indicated at the place in the record where 

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such deletion is made. 

(c)(1) Whenever a request is made which involves access to records de­ 

scribed 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 investiga­ 

tion or proceeding is not aware of its pendency, and (ii) disclo­ 

sure of the existence of the records could reasonably be expect­ 

ed 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 en­ 

forcement 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 for­ 

eign intelligence or counterintelligence, or international terrorism, 

and the existence of the records is classified information as provid­ 

ed 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 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 Con­ 

gress. 

(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 subsec­ 

tion (b)(3), a description of whether a court has upheld the de­ 

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cision of the agency to withhold information under each such 

statute, and a concise description of the scope of any informa­ 

tion withheld; 

(C)  the number of requests for records pending before the agen­ 

cy 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 process­ 

ing requests; and 

(G)  the number of full-time staff of the agency devoted to proc­ 

essing 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 telecom­ 

munications means have not been established by the agency, by 

other electronic means. 

(3) The Attorney General of the United States shall make each re­ 

port 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 mem­ 

ber of the Committee on Government [Reform] of the House of Rep­ 

resentatives and the Chairman and ranking minority member of the 

Committees on Governmental Affairs and the Judiciary of the Sen­ 

ate, 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 re­ 

quired by this subsection by October 1, 1997, and may establish ad­ 

ditional requirements for such reports as the Attorney General de­ 

termines may be useful. 

(5)  The Attorney General of the United States shall submit an annu­ 

al report on or before April 1 of each calendar year which shall in­ 

clude 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 

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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 ex­ 

ecutive 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 rec­ 

ord 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 infor­ 

mation from the agency, subject to the exemptions in subsection (b), in­ 

cluding -­ 

(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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