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 --

(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 terms thereof.

(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)
(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;

(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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