-CITE-
5 USC Sec. 552 01/19/04
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 552. Public information; agency rules, opinions, orders,
records, and proceedings
-STATUTE-
(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;
(B) those statements of policy and interpretations which have
been adopted by the agency and are not published in the Federal
Register;
(C) administrative staff manuals and instructions to staff that
affect 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
subparagraph (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 indication 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 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. Each agency shall make the index referred to in
subparagraph (E) available by computer telecommunications 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
(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, 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 procedures to be followed, shall make the records
promptly available to any person.
(B) In making any record available to a person under this
paragraph, 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
reasonable 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
significantly 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
request.
(E) An agency, or part of an agency, that is an element of the
intelligence 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,
commonwealth, 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 procedures 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 public comment, by the Director of the Office of
Management and Budget and which shall provide for a uniform
schedule of fees for all agencies.
(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 commercial
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 primarily
in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the
direct costs of search, duplication, or review. Review costs shall
include only the direct costs incurred during the initial
examination 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 disclosure 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 fashion, 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.
(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 action. 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, unless
the court otherwise directs for good cause shown.
[(D) Repealed. Pub. L. 98-620, title IV, Sec. 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 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 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
employee 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
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) 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
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)(i) In unusual circumstances as specified in this
subparagraph, 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
circumstances 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, 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 reasonably modify the
request or arrange such an alternative time frame shall be
considered as a factor in determining whether exceptional
circumstances exist for purposes of subparagraph (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 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.
(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation 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 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 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 person 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.
(ii) For purposes of this subparagraph, the term "exceptional
circumstances" does not include a delay that results from a
predictable agency workload of requests under this section, unless
the agency demonstrates reasonable progress in reducing 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 a
request (or a modified request) under clause (ii) after being given
an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for multitrack processing
of requests for records based on the amount of work or time (or
both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person
making a request that does not qualify for the fastest multitrack
processing an opportunity to limit the scope of the request in
order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing 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
subparagraph 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 processing.
(iii) An agency shall process as soon as practicable any request
for records to which the agency has granted expedited processing
under this subparagraph. Agency action to deny 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 review under paragraph (4),
except that the judicial review shall be based on the record before
the agency at the time of the determination.
(iv) A district court of the United States shall not have
jurisdiction 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 expedited
basis under this paragraph could reasonably be expected 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 statement
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, unless
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
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), 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
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) 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 confidential source,
including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal
investigation 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 enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure 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 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. The amount of information
deleted shall be indicated on the released portion of the record,
unless including that indication would harm an interest protected
by the exemption in this subsection under which the deletion is
made. If technically feasible, the amount of the information
deleted shall be indicated at the place in the record where such
deletion is made.
(c)(1) Whenever a request is made which involves access to
records described 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
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected 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
enforcement 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
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided 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 Congress.
(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
subsection (b)(3), a description of whether a court has upheld
the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the
agency 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
processing requests; and
(G) the number of full-time staff of the agency devoted to
processing 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
telecommunications means have not been established by the agency,
by other electronic means.
(3) The Attorney General of the United States shall make each
report 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 member
of the Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the
Committees on Governmental Affairs and the Judiciary of the Senate,
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 required by this subsection by October 1, 1997, and may
establish additional requirements for such reports as the Attorney
General determines may be useful.
(5) The Attorney General of the United States shall submit an
annual report on or before April 1 of 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 subparagraphs (E), (F), and (G) of
subsection (a)(4). Such 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 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; and
(2) "record" and any other term used in this section in
reference to information includes any information that would be
an agency record 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 information from the agency, subject to the
exemptions in subsection (b), including -
(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.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, Sec.
1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, Secs. 1-3, Nov. 21,
1974, 88 Stat. 1561-1564; Pub. L. 94-409, Sec. 5(b), Sept. 13,
1976, 90 Stat. 1247; Pub. L. 95-454, title IX, Sec. 906(a)(10),
Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, Sec.
402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title I, Secs.
1802, 1803, Oct. 27, 1986, 100 Stat. 3207-48, 3207-49; Pub. L.
104-231, Secs. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054; Pub. L.
107-306, title III, Sec. 312, Nov. 27, 2002, 116 Stat. 2390.)
-MISC1-
HISTORICAL AND REVISION NOTES
1966 ACT
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Derivation U.S. Code Revised Statutes and
Statutes at Large
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5 U.S.C. 1002. June 11, 1946, ch. 324,
Sec. 3, 60 Stat. 238.
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In subsection (b)(3), the words "formulated and" are omitted as
surplusage. In the last sentence of subsection (b), the words "in
any manner" are omitted as surplusage since the prohibition is all
inclusive.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
1967 ACT
Section 1 [of Pub. L. 90-23] amends section 552 of title 5,
United States Code, to reflect Public Law 89-487.
In subsection (a)(1)(A), the words "employees (and in the case of
a uniformed service, the member)" are substituted for "officer" to
retain the coverage of Public Law 89-487 and to conform to the
definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words "A final
order * * * may be relied on * * * only if" are substituted for "No
final order * * * may be relied upon * * * unless"; and the words
"a party other than an agency" and "the party" are substituted for
"a private party" and "the private party", respectively, on
authority of the definition of "private party" in 5 App. U.S.C.
1002(g).
In subsection (a)(3), the words "the responsible employee, and in
the case of a uniformed service, the responsible member" are
substituted for "the responsible officers" to retain the coverage
of Public Law 89-487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In subsection (a)(4), the words "shall maintain and make
available for public inspection a record" are substituted for
"shall keep a record * * * and that record shall be available for
public inspection".
In subsection (b)(5) and (7), the words "a party other than an
agency" are substituted for "a private party" on authority of the
definition of "private party" in 5 App. U.S.C. 1002(g).
In subsection (c), the words "This section does not authorize"
and "This section is not authority" are substituted for "Nothing in
this section authorizes" and "nor shall this section be authority",
respectively.
5 App. U.S.C. 1002(g), defining "private party" to mean a party
other than an agency, is omitted since the words "party other than
an agency" are substituted for the words "private party" wherever
they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted
as unnecessary. That effective date is prescribed by section 4 of
this bill.
-COD-
CODIFICATION
Section 552 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2243
of Title 7, Agriculture.
-MISC2-
AMENDMENTS
2002 - Subsec. (a)(3)(A). Pub. L. 107-306, Sec. 312(1), inserted
"and except as provided in subparagraph (E)," after "of this
subsection,".
Subsec. (a)(3)(E). Pub. L. 107-306, Sec. 312(2), added subpar.
(E).
1996 - Subsec. (a)(2). Pub. L. 104-231, Sec. 4(4), (5), in first
sentence struck out "and" at end of subpar. (B) and inserted
subpars. (D) and (E).
Pub. L. 104-231, Sec. 4(7), inserted after first sentence "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."
Pub. L. 104-231, Sec. 4(1), in second sentence substituted "staff
manual, instruction, or copies of records referred to in
subparagraph (D)" for "or staff manual or instruction".
Pub. L. 104-231, Sec. 4(2), inserted before period at end of
third sentence ", and the extent of such deletion shall be
indicated on the portion of the record which is made available or
published, unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made".
Pub. L. 104-231, Sec. 4(3), inserted after third sentence "If
technically feasible, the extent of the deletion shall be indicated
at the place in the record where the deletion was made."
Pub. L. 104-231, Sec. 4(6), which directed the insertion of the
following new sentence after the fifth sentence "Each agency shall
make the index referred to in subparagraph (E) available by
computer telecommunications by December 31, 1999.", was executed by
making the insertion after the sixth sentence, to reflect the
probable intent of Congress and the addition of a new sentence by
section 4(3) of Pub. L. 104-231.
Subsec. (a)(3). Pub. L. 104-231, Sec. 5, inserted subpar. (A)
designation after "(3)", redesignated subpars. (A) and (B) as cls.
(i) and (ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104-231, Sec. 6, inserted at end "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)."
Subsec. (a)(6)(A)(i). Pub. L. 104-231, Sec. 8(b), substituted "20
days" for "ten days".
Subsec. (a)(6)(B). Pub. L. 104-231, Sec. 7(b), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows: "In
unusual circumstances as specified in this subparagraph, 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 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."
Subsec. (a)(6)(C). Pub. L. 104-231, Sec. 7(c), designated
existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104-231, Sec. 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104-231, Sec. 8(a), (c), added
subpars. (E) and (F).
Subsec. (b). Pub. L. 104-231, Sec. 9, inserted at end of closing
provisions "The amount of information deleted shall be indicated on
the released portion of the record, unless including that
indication would harm an interest protected by the exemption in
this subsection under which the deletion is made. If technically
feasible, the amount of the information deleted shall be indicated
at the place in the record where such deletion is made."
Subsec. (e). Pub. L. 104-231, Sec. 10, amended subsec. (e)
generally, revising and restating provisions relating to reports to
Congress.
Subsec. (f). Pub. L. 104-231, Sec. 3, amended subsec. (f)
generally. Prior to amendment, subsec. (f) read as follows: "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."
Subsec. (g). Pub. L. 104-231, Sec. 11, added subsec. (g).
1986 - Subsec. (a)(4)(A). Pub. L. 99-570, Sec. 1803, amended
subpar. (A) generally. Prior to amendment, subpar. (A) read as
follows: "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."
Subsec. (b)(7). Pub. L. 99-570, Sec. 1802(a), amended par. (7)
generally. Prior to amendment, par. (7) read as follows:
"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
investigative techniques and procedures, or (F) endanger the life
or physical safety of law enforcement personnel;".
Subsecs. (c) to (f). Pub. L. 99-570, Sec. 1802(b), added subsec.
(c) and redesignated former subsecs. (c) to (e) as (d) to (f),
respectively.
1984 - Subsec. (a)(4)(D). Pub. L. 98-620 repealed subpar. (D)
which provided for precedence on the docket and expeditious
disposition of district court proceedings authorized by subsec.
(a).
1978 - Subsec. (a)(4)(F). Pub. L. 95-454 substituted references
to the Special Counsel for references to the Civil Service
Commission wherever appearing and reference to his findings for
reference to its findings.
1976 - Subsec. (b)(3). Pub. L. 94-409 inserted provision
excluding section 552b of this title from applicability of
exemption from disclosure and provision setting forth conditions
for statute specifically exempting disclosure.
1974 - Subsec. (a)(2). Pub. L. 93-502, Sec. 1(a), substituted
provisions relating to maintenance and availability of current
indexes, for provisions relating to maintenance and availability of
a current index, and inserted provisions relating to publication
and distribution of copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93-502, Sec. 1(b)(1), substituted
provisions requiring requests to reasonably describe records for
provisions requiring requests, for identifiable records, and struck
out provisions setting forth procedures to enjoin agencies from
withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93-502, Sec. 1(b)(2), added par. (4)
and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93-502, Sec. 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93-502, Sec. 2(a), designated existing
provisions as cl. (A), substituted "authorized under criteria
established by an" for "required by", and added cl. (B).
Subsec. (b)(7). Pub. L. 93-502, Sec. 2(b), substituted provisions
relating to exemption for investigatory records compiled for law
enforcement purposes, for provisions relating to exemption for
investigatory files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93-502, Sec. 2(c), inserted
provision relating to availability of segregable portion of
records.
Subsecs. (d), (e). Pub. L. 93-502, Sec. 3, added subsecs. (d) and
(e).
1967 - Subsec. (a). Pub. L. 90-23 substituted introductory
statement requiring every agency to make available to the public
certain information for former introductory provision excepting
from disclosure (1) any function of the United States requiring
secrecy in the public interest or (2) any matter relating to
internal management of an agency, covered in subsec. (b)(1) and (2)
of this section.
Subsec. (a)(1). Pub. L. 90-23 incorporated provisions of: former
subsec. (b)(1) in (A), inserting requirement of publication of
names of officers as sources of information and provision for
public to obtain decisions, and striking out publication
requirement for delegations by the agency of final authority;
former subsec. (b)(2), introductory part, in (B); former subsec.
(b)(2), concluding part, in (C), inserting publication requirement
for rules of procedure and descriptions of forms available or the
places at which forms may be obtained; former subsec. (b)(3),
introductory part, in (D), inserting requirement of general
applicability of substantive rules and interpretations, added
clause (E), substituted exemption of any person from failure to
resort to any matter or from being adversely affected by any matter
required to be published in the Federal Register but not so
published for former subsec. (b)(3), concluding part, excepting
from publication rules addressed to and served upon named persons
in accordance with laws and final sentence reading "A person may
not be required to resort to organization or procedure not so
published" and inserted provision deeming matter, which is
reasonably available, as published in the Federal Register when
such matter is incorporated by reference in the Federal Register
with the approval of its Director.
Subsec. (a)(2). Pub. L. 90-23 incorporated provisions of former
subsec. (c), provided for public copying of records, struck out
requirement of agency publication of final opinions or orders and
authority for secrecy and withholding of opinions and orders
required for good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec. (b) of this
section, designated existing subsec. (c) as clause (A), including
provision for availability of concurring and dissenting opinions,
inserted provisions for availability of policy statements and
interpretations in clause (B) and staff manuals and instructions in
clause (C), deletion of personal identifications from records to
protect personal privacy with written justification therefor, and
provision for indexing and prohibition of use of records not
indexed against any private party without actual and timely notice
of the terms thereof.
Subsec. (a)(3). Pub. L. 90-23 incorporated provisions of former
subsec. (d) and substituted provisions requiring identifiable
agency records to be made available to any person upon request and
compliance with rules as to time, place, and procedure for
inspection, and payment of fees and provisions for Federal district
court proceedings de novo for enforcement by contempt of
noncompliance with court's orders with the burden on the agency and
docket precedence for such proceedings for former provisions
requiring matters of official record to be made available to
persons properly and directly concerned except information held
confidential for good cause shown, the latter provision superseded
by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90-23 added par. (4).
Subsec. (b). Pub. L. 90-23 added subsec. (b) which superseded
provisions excepting from disclosure any function of the United
States requiring secrecy in the public interest or any matter
relating to internal management of an agency, formerly contained in
former subsec. (a), final opinions or orders required for good
cause to be held confidential and not cited as precedents, formerly
contained in subsec. (c), and information held confidential for
good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90-23 added subsec. (c).
-CHANGE-
CHANGE OF NAME
Committee on Government Reform and Oversight of House of
Representatives changed to Committee on Government Reform of House
of Representatives by House Resolution No. 5, One Hundred Sixth
Congress, Jan. 6, 1999.
-MISC3-
EFFECTIVE DATE OF 1996 AMENDMENT
Section 12 of Pub. L. 104-231 provided that:
"(a) In General. - Except as provided in subsection (b), this Act
[amending this section and enacting provisions set out as notes
below] shall take effect 180 days after the date of the enactment
of this Act [Oct. 2, 1996].
"(b) Provisions Effective on Enactment [sic]. - Sections 7 and 8
[amending this section] shall take effect one year after the date
of the enactment of this Act [Oct. 2, 1996]."
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99-570 provided that:
"(a) The amendments made by section 1802 [amending this section]
shall be effective on the date of enactment of this Act [Oct. 27,
1986], and shall apply with respect to any requests for records,
whether or not the request was made prior to such date, and shall
apply to any civil action pending on such date.
"(b)(1) The amendments made by section 1803 [amending this
section] shall be effective 180 days after the date of enactment of
this Act [Oct. 27, 1986], except that regulations to implement such
amendments shall be promulgated by such 180th day.
"(2) The amendments made by section 1803 [amending this section]
shall apply with respect to any requests for records, whether or
not the request was made prior to such date, and shall apply to any
civil action pending on such date, except that review charges
applicable to records requested for commercial use shall not be
applied by an agency to requests made before the effective date
specified in paragraph (1) of this subsection or before the agency
has finally issued its regulations."
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases pending on
Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an
Effective Date note under section 1657 of Title 28, Judiciary and
Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective 90 days after Oct. 13,
1978, see section 907 of Pub. L. 95-454, set out as a note under
section 1101 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93-502 provided that: "The amendments made
by this Act [amending this section] shall take effect on the
ninetieth day beginning after the date of enactment of this Act
[Nov. 21, 1974]."
EFFECTIVE DATE OF 1967 AMENDMENT
Section 4 of Pub. L. 90-23 provided that: "This Act [amending
this section] shall be effective July 4, 1967, or on the date of
enactment [June 5, 1967], whichever is later."
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-231 provided that: "This Act [amending
this section and enacting provisions set out as notes under this
section] may be cited as the 'Electronic Freedom of Information Act
Amendments of 1996'."
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99-570 provided that: "This subtitle
[subtitle N (Secs. 1801-1804) of title I of Pub. L. 99-570,
amending this section and enacting provisions set out as a note
under this section] may be cited as the 'Freedom of Information
Reform Act of 1986'."
SHORT TITLE
This section is popularly known as the "Freedom of Information
Act".
DISCLOSURE OF ARSON, EXPLOSIVE, OR FIREARM RECORDS
Pub. L. 108-7, div. J, title VI, Sec. 644, Feb. 20, 2003, 117
Stat. 473, provided that: "No funds appropriated under this Act or
any other Act with respect to any fiscal year shall be available to
take any action based upon any provision of 5 U.S.C. 552 with
respect to records collected or maintained pursuant to 18 U.S.C.
846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State,
local, or foreign law enforcement agencies in connection with arson
or explosives incidents or the tracing of a firearm, except that
such records may continue to be disclosed to the extent and in the
manner that records so collected, maintained, or obtained have been
disclosed under 5 U.S.C. 552 prior to the date of the enactment of
this Act [Feb. 20, 2003]."
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL GOVERNMENT
Pub. L. 106-567, title VIII, Dec. 27, 2000, 114 Stat. 2864,
provided that:
"SEC. 801. SHORT TITLE.
"This title may be cited as the 'Japanese Imperial Government
Disclosure Act of 2000'.
"SEC. 802. DESIGNATION.
"(a) Definitions. - In this section:
"(1) Agency. - The term 'agency' has the meaning given such
term under section 551 of title 5, United States Code.
"(2) Interagency group. - The term 'Interagency Group' means
the Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group established under subsection (b).
"(3) Japanese imperial government records. - The term 'Japanese
Imperial Government records' means classified records or portions
of records that pertain to any person with respect to whom the
United States Government, in its sole discretion, has grounds to
believe ordered, incited, assisted, or otherwise participated in
the experimentation on, and persecution of, any person because of
race, religion, national origin, or political opinion, during the
period beginning September 18, 1931, and ending on December 31,
1948, under the direction of, or in association with -
"(A) the Japanese Imperial Government;
"(B) any government in any area occupied by the military
forces of the Japanese Imperial Government;
"(C) any government established with the assistance or
cooperation of the Japanese Imperial Government; or
"(D) any government which was an ally of the Japanese
Imperial Government.
"(4) Record. - The term 'record' means a Japanese Imperial
Government record.
"(b) Establishment of Interagency Group. -
"(1) In general. - Not later than 60 days after the date of the
enactment of this Act [Dec. 27, 2000], the President shall
designate the Working Group established under the Nazi War Crimes
Disclosure Act (Public Law 105-246; 5 U.S.C. 552 note) to also
carry out the purposes of this title with respect to Japanese
Imperial Government records, and that Working Group shall remain
in existence for 3 years after the date on which this title takes
effect. Such Working Group is redesignated as the 'Nazi War
Crimes and Japanese Imperial Government Records Interagency
Working Group'.
"(2) Membership. - [Amended Pub. L. 105-246, set out as a note
below.]
"(c) Functions. - Not later than 1 year after the date of the
enactment of this Act [Dec. 27, 2000], the Interagency Group shall,
to the greatest extent possible consistent with section 803 -
"(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified
Japanese Imperial Government records of the United States;
"(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
"(3) submit a report to Congress, including the Committee on
Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives, and the Committee
on the Judiciary and the Select Committee on Intelligence of the
Senate, describing all such records, the disposition of such
records, and the activities of the Interagency Group and agencies
under this section.
"(d) Funding. - There is authorized to be appropriated such sums
as may be necessary to carry out the provisions of this title.
"SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.
"(a) Release of Records. - Subject to subsections (b), (c), and
(d), the Japanese Imperial Government Records Interagency Working
Group shall release in their entirety Japanese Imperial Government
records.
"(b) Exemptions. - An agency head may exempt from release under
subsection (a) specific information, that would -
"(1) constitute an unwarranted invasion of personal privacy;
"(2) reveal the identity of a confidential human source, or
reveal information about an intelligence source or method when
the unauthorized disclosure of that source or method would damage
the national security interests of the United States;
"(3) reveal information that would assist in the development or
use of weapons of mass destruction;
"(4) reveal information that would impair United States
cryptologic systems or activities;
"(5) reveal information that would impair the application of
state-of-the-art technology within a United States weapon system;
"(6) reveal United States military war plans that remain in
effect;
"(7) reveal information that would impair relations between the
United States and a foreign government, or undermine ongoing
diplomatic activities of the United States;
"(8) reveal information that would impair the current ability
of United States Government officials to protect the President,
Vice President, and other officials for whom protection services
are authorized in the interest of national security;
"(9) reveal information that would impair current national
security emergency preparedness plans; or
"(10) violate a treaty or other international agreement.
"(c) Applications of Exemptions. -
"(1) In general. - In applying the exemptions provided in
paragraphs (2) through (10) of subsection (b), there shall be a
presumption that the public interest will be served by disclosure
and release of the records of the Japanese Imperial Government.
The exemption may be asserted only when the head of the agency
that maintains the records determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with appropriate
jurisdiction, including the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the Committee
on Government Reform and the Permanent Select Committee on
Intelligence of the House of Representatives.
"(2) Application of title 5. - A determination by an agency
head to apply an exemption provided in paragraphs (2) through (9)
of subsection (b) shall be subject to the same standard of review
that applies in the case of records withheld under section
552(b)(1) of title 5, United States Code.
"(d) Records Related to Investigations or Prosecutions. - This
section shall not apply to records -
"(1) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
"(2) solely in the possession, custody, or control of the
Office of Special Investigations.
"SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL
GOVERNMENT RECORDS.
"For purposes of expedited processing under section 552(a)(6)(E)
of title 5, United States Code, any person who was persecuted in
the manner described in section 802(a)(3) and who requests a
Japanese Imperial Government record shall be deemed to have a
compelling need for such record.
"SEC. 805. EFFECTIVE DATE.
"The provisions of this title shall take effect on the date that
is 90 days after the date of the enactment of this Act [Dec. 27,
2000]."
NAZI WAR CRIMES DISCLOSURE
Pub. L. 105-246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub.
L. 106-567, Sec. 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided
that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Nazi War Crimes Disclosure Act'.
"SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY
WORKING GROUP.
"(a) Definitions. - In this section the term -
"(1) 'agency' has the meaning given such term under section 551
of title 5, United States Code;
"(2) 'Interagency Group' means the Nazi War Criminal Records
Interagency Working Group [redesignated Nazi War Crimes and
Japanese Imperial Government Records Interagency Working Group,
see section 802(b)(1) of Pub. L. 106-567, set out above]
established under subsection (b);
"(3) 'Nazi war criminal records' has the meaning given such
term under section 3 of this Act; and
"(4) 'record' means a Nazi war criminal record.
"(b) Establishment of Interagency Group. -
"(1) In general. - Not later than 60 days after the date of
enactment of this Act [Oct. 8, 1998], the President shall
establish the Nazi War Criminal Records Interagency Working
Group, which shall remain in existence for 3 years after the date
the Interagency Group is established.
"(2) Membership. - The President shall appoint to the
Interagency Group individuals whom the President determines will
most completely and effectively carry out the functions of the
Interagency Group within the time limitations provided in this
section, including the Director of the Holocaust Museum, the
Historian of the Department of State, the Archivist of the United
States, the head of any other agency the President considers
appropriate, and no more than 4 other persons who shall be
members of the public, of whom 3 shall be persons appointed under
the provisions of this Act in effect on October 8, 1998..[sic]
The head of an agency appointed by the President may designate an
appropriate officer to serve on the Interagency Group in lieu of
the head of such agency.
"(3) Initial meeting. - Not later than 90 days after the date
of enactment of this Act, the Interagency Group shall hold an
initial meeting and begin the functions required under this
section.
"(c) Functions. - Not later than 1 year after the date of
enactment of this Act [Oct. 8, 1998], the Interagency Group shall,
to the greatest extent possible consistent with section 3 of this
Act -
"(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified Nazi
war criminal records of the United States;
"(2) coordinate with agencies and take such actions as
necessary to expedite the release of such records to the public;
and
"(3) submit a report to Congress, including the Committee on
the Judiciary of the Senate and the Committee on Government
Reform and Oversight [now Committee on Government Reform] of the
House of Representatives, describing all such records, the
disposition of such records, and the activities of the
Interagency Group and agencies under this section.
"(d) Funding. - There are authorized to be appropriated such sums
as may be necessary to carry out the provisions of this Act.
"SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS
WHO COMMITTED NAZI WAR CRIMES.
"(a) Nazi War Criminal Records. - For purposes of this Act, the
term 'Nazi war criminal records' means classified records or
portions of records that -
"(1) pertain to any person with respect to whom the United
States Government, in its sole discretion, has grounds to believe
ordered, incited, assisted, or otherwise participated in the
persecution of any person because of race, religion, national
origin, or political opinion, during the period beginning on
March 23, 1933, and ending on May 8, 1945, under the direction
of, or in association with -
"(A) the Nazi government of Germany;
"(B) any government in any area occupied by the military
forces of the Nazi government of Germany;
"(C) any government established with the assistance or
cooperation of the Nazi government of Germany; or
"(D) any government which was an ally of the Nazi government
of Germany; or
"(2) pertain to any transaction as to which the United States
Government, in its sole discretion, has grounds to believe -
"(A) involved assets taken from persecuted persons during the
period beginning on March 23, 1933, and ending on May 8, 1945,
by, under the direction of, on behalf of, or under authority
granted by the Nazi government of Germany or any nation then
allied with that government; and
"(B) such transaction was completed without the assent of the
owners of those assets or their heirs or assigns or other
legitimate representatives.
"(b) Release of Records. -
"(1) In general. - Subject to paragraphs (2), (3), and (4), the
Nazi War Criminal Records Interagency Working Group shall release
in their entirety Nazi war criminal records that are described in
subsection (a).
"(2) Exception for privacy, etc. - An agency head may exempt
from release under paragraph (1) specific information, that would
-
"(A) constitute a clearly unwarranted invasion of personal
privacy;
"(B) reveal the identity of a confidential human source, or
reveal information about the application of an intelligence
source or method, or reveal the identity of a human
intelligence source when the unauthorized disclosure of that
source would clearly and demonstrably damage the national
security interests of the United States;
"(C) reveal information that would assist in the development
or use of weapons of mass destruction;
"(D) reveal information that would impair United States
cryptologic systems or activities;
"(E) reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system;
"(F) reveal actual United States military war plans that
remain in effect;
"(G) reveal information that would seriously and demonstrably
impair relations between the United States and a foreign
government, or seriously and demonstrably undermine ongoing
diplomatic activities of the United States;
"(H) reveal information that would clearly and demonstrably
impair the current ability of United States Government
officials to protect the President, Vice President, and other
officials for whom protection services, in the interest of
national security, are authorized;
"(I) reveal information that would seriously and demonstrably
impair current national security emergency preparedness plans;
or
"(J) violate a treaty or international agreement.
"(3) Application of exemptions. -
"(A) In general. - In applying the exemptions listed in
subparagraphs (B) through (J) of paragraph (2), there shall be
a presumption that the public interest in the release of Nazi
war criminal records will be served by disclosure and release
of the records. Assertion of such exemption may only be made
when the agency head determines that disclosure and release
would be harmful to a specific interest identified in the
exemption. An agency head who makes such a determination shall
promptly report it to the committees of Congress with
appropriate jurisdiction, including the Committee on the
Judiciary of the Senate and the Committee on Government Reform
and Oversight [now Committee on Government Reform] of the House
of Representatives. The exemptions set forth in paragraph (2)
shall constitute the only authority pursuant to which an agency
head may exempt records otherwise subject to release under
paragraph (1).
"(B) Application of title 5. - A determination by an agency
head to apply an exemption listed in subparagraphs (B) through
(I) of paragraph (2) shall be subject to the same standard of
review that applies in the case of records withheld under
section 552(b)(1) of title 5, United States Code.
"(4) Limitation on application. - This subsection shall not
apply to records -
"(A) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of Special
Investigations of the Department of Justice; or
"(B) solely in the possession, custody, or control of that
office.
"(c) Inapplicability of National Security Act of 1947 Exemption.
- Section 701(a) of the National Security Act of 1947 (50 U.S.C.
431[(a)]) shall not apply to any operational file, or any portion
of any operational file, that constitutes a Nazi war criminal
record under section 3 of this Act.
"SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR
CRIMINAL RECORDS.
"(a) Expedited Processing. - For purposes of expedited processing
under section 552(a)(6)(E) of title 5, United States Code, any
requester of a Nazi war criminal record shall be deemed to have a
compelling need for such record.
"(b) Requester. - For purposes of this section, the term
'requester' means any person who was persecuted in the manner
described under section 3(a)(1) of this Act who requests a Nazi war
criminal record.
"SEC. 5. EFFECTIVE DATE.
"This Act and the amendments made by this Act shall take effect
on the date that is 90 days after the date of enactment of this Act
[Oct. 8, 1998]."
CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE; PUBLIC ACCESS TO
INFORMATION IN ELECTRONIC FORMAT
Section 2 of Pub. L. 104-231 provided that:
"(a) Findings. - The Congress finds that -
"(1) the purpose of section 552 of title 5, United States Code,
popularly known as the Freedom of Information Act, is to require
agencies of the Federal Government to make certain agency
information available for public inspection and copying and to
establish and enable enforcement of the right of any person to
obtain access to the records of such agencies, subject to
statutory exemptions, for any public or private purpose;
"(2) since the enactment of the Freedom of Information Act in
1966, and the amendments enacted in 1974 and 1986, the Freedom of
Information Act has been a valuable means through which any
person can learn how the Federal Government operates;
"(3) the Freedom of Information Act has led to the disclosure
of waste, fraud, abuse, and wrongdoing in the Federal Government;
"(4) the Freedom of Information Act has led to the
identification of unsafe consumer products, harmful drugs, and
serious health hazards;
"(5) Government agencies increasingly use computers to conduct
agency business and to store publicly valuable agency records and
information; and
"(6) Government agencies should use new technology to enhance
public access to agency records and information.
"(b) Purposes. - The purposes of this Act [see Short Title of
1996 Amendment note above] are to -
"(1) foster democracy by ensuring public access to agency
records and information;
"(2) improve public access to agency records and information;
"(3) ensure agency compliance with statutory time limits; and
"(4) maximize the usefulness of agency records and information
collected, maintained, used, retained, and disseminated by the
Federal Government."
FREEDOM OF INFORMATION ACT EXEMPTION FOR CERTAIN OPEN SKIES TREATY
DATA
Pub. L. 103-236, title V, Sec. 533, Apr. 30, 1994, 108 Stat. 480,
provided that:
"(a) In General. - Data with respect to a foreign country
collected by sensors during observation flights conducted in
connection with the Treaty on Open Skies, including flights
conducted prior to entry into force of the treaty, shall be exempt
from disclosure under the Freedom of Information Act -
"(1) if the country has not disclosed the data to the public;
and
"(2) if the country has not, acting through the Open Skies
Consultative Commission or any other diplomatic channel,
authorized the United States to disclose the data to the public.
"(b) Statutory Construction. - This section constitutes a
specific exemption within the meaning of section 552(b)(3) of title
5, United States Code.
"(c) Definitions. - For the purposes of this section -
"(1) the term 'Freedom of Information Act' means the provisions
of section 552 of title 5, United States Code;
"(2) the term 'Open Skies Consultative Commission' means the
commission established pursuant to Article X of the Treaty on
Open Skies; and
"(3) the term 'Treaty on Open Skies' means the Treaty on Open
Skies, signed at Helsinki on March 24, 1992."
-EXEC-
CLASSIFIED NATIONAL SECURITY INFORMATION
For provisions relating to a response to a request for
information under this section when the fact of its existence or
nonexistence is itself classified or when it was originally
classified by another agency, see Ex. Ord. No. 12958, Sec. 3.7,
Apr. 17, 1995, 60 F.R. 19835, set out as a note under section 435
of Title 50, War and National Defense.
EXECUTIVE ORDER NO. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related
to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291,
Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under
section 601 of this title.
EX. ORD. NO. 12600. PREDISCLOSURE NOTIFICATION PROCEDURES FOR
CONFIDENTIAL COMMERCIAL INFORMATION
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution
and statutes of the United States of America, and in order to
provide predisclosure notification procedures under the Freedom of
Information Act [5 U.S.C. 552] concerning confidential commercial
information, and to make existing agency notification provisions
more uniform, it is hereby ordered as follows:
Section 1. The head of each Executive department and agency
subject to the Freedom of Information Act [5 U.S.C. 552] shall, to
the extent permitted by law, establish procedures to notify
submitters of records containing confidential commercial
information as described in section 3 of this Order, when those
records are requested under the Freedom of Information Act [FOIA],
5 U.S.C. 552, as amended, if after reviewing the request, the
responsive records, and any appeal by the requester, the department
or agency determines that it may be required to disclose the
records. Such notice requires that an agency use good-faith efforts
to advise submitters of confidential commercial information of the
procedures established under this Order. Further, where
notification of a voluminous number of submitters is required, such
notification may be accomplished by posting or publishing the
notice in a place reasonably calculated to accomplish notification.
Sec. 2. For purposes of this Order, the following definitions
apply:
(a) "Confidential commercial information" means records provided
to the government by a submitter that arguably contain material
exempt from release under Exemption 4 of the Freedom of Information
Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be
expected to cause substantial competitive harm.
(b) "Submitter" means any person or entity who provides
confidential commercial information to the government. The term
"submitter" includes, but is not limited to, corporations, state
governments, and foreign governments.
Sec. 3. (a) For confidential commercial information submitted
prior to January 1, 1988, the head of each Executive department or
agency shall, to the extent permitted by law, provide a submitter
with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information
has been designated by the submitter as confidential commercial
information; or
(ii) the department or agency has reason to believe that
disclosure of the information could reasonably be expected to cause
substantial competitive harm.
(b) For confidential commercial information submitted on or after
January 1, 1988, the head of each Executive department or agency
shall, to the extent permitted by law, establish procedures to
permit submitters of confidential commercial information to
designate, at the time the information is submitted to the Federal
government or a reasonable time thereafter, any information the
disclosure of which the submitter claims could reasonably be
expected to cause substantial competitive harm. Such agency
procedures may provide for the expiration, after a specified period
of time or changes in circumstances, of designations of competitive
harm made by submitters. Additionally, such procedures may permit
the agency to designate specific classes of information that will
be treated by the agency as if the information had been so
designated by the submitter. The head of each Executive department
or agency shall, to the extent permitted by law, provide the
submitter notice in accordance with section 1 of this Order
whenever the department or agency determines that it may be
required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason
to believe could reasonably be expected to cause substantial
competitive harm.
Sec. 4. When notification is made pursuant to section 1, each
agency's procedures shall, to the extent permitted by law, afford
the submitter a reasonable period of time in which the submitter or
its designee may object to the disclosure of any specified portion
of the information and to state all grounds upon which disclosure
is opposed.
Sec. 5. Each agency shall give careful consideration to all such
specified grounds for nondisclosure prior to making an
administrative determination of the issue. In all instances when
the agency determines to disclose the requested records, its
procedures shall provide that the agency give the submitter a
written statement briefly explaining why the submitter's objections
are not sustained. Such statement shall, to the extent permitted by
law, be provided a reasonable number of days prior to a specified
disclosure date.
Sec. 6. Whenever a FOIA requester brings suit seeking to compel
disclosure of confidential commercial information, each agency's
procedures shall require that the submitter be promptly notified.
Sec. 7. The designation and notification procedures required by
this Order shall be established by regulations, after notice and
public comment. If similar procedures or regulations already exist,
they should be reviewed for conformity and revised where necessary.
Existing procedures or regulations need not be modified if they are
in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be
followed if:
(a) The agency determines that the information should not be
disclosed;
(b) The information has been published or has been officially
made available to the public;
(c) Disclosure of the information is required by law (other than
5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1) was
adopted pursuant to notice and public comment, (2) specifies narrow
classes of records submitted to the agency that are to be released
under the Freedom of Information Act [5 U.S.C. 552], and (3)
provides in exceptional circumstances for notice when the submitter
provides written justification, at the time the information is
submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(e) The information requested is not designated by the submitter
as exempt from disclosure in accordance with agency regulations
promulgated pursuant to section 7, when the submitter had an
opportunity to do so at the time of submission of the information
or a reasonable time thereafter, unless the agency has substantial
reason to believe that disclosure of the information would result
in competitive harm; or
(f) The designation made by the submitter in accordance with
agency regulations promulgated pursuant to section 7 appears
obviously frivolous; except that, in such case, the agency must
provide the submitter with written notice of any final
administrative disclosure determination within a reasonable number
of days prior to the specified disclosure date.
Sec. 9. Whenever an agency notifies a submitter that it may be
required to disclose information pursuant to section 1 of this
Order, the agency shall also notify the requester that notice and
an opportunity to comment are being provided the submitter.
Whenever an agency notifies a submitter of a final decision
pursuant to section 5 of this Order, the agency shall also notify
the requester.
Sec. 10. This Order is intended only to improve the internal
management of the Federal government, and is not intended to create
any right or benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its officers,
or any person.
Ronald Reagan.
EX. ORD. NO. 13110. NAZI WAR CRIMES AND JAPANESE IMPERIAL
GOVERNMENT RECORDS INTERAGENCY WORKING GROUP
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the Constitution
and the laws of the United States of America, including the Nazi
War Crimes Disclosure Act (Public Law 105-246) (the "Act") [5
U.S.C. 552 note], it is hereby ordered as follows:
Section 1. Establishment of Working Group. There is hereby
established the Nazi War Criminal Records Interagency Working Group
[now Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group] (Working Group). The function of the
Group shall be to locate, inventory, recommend for
declassification, and make available to the public at the National
Archives and Records Administration all classified Nazi war
criminal records of the United States, subject to certain
designated exceptions as provided in the Act. The Working Group
shall coordinate with agencies and take such actions as necessary
to expedite the release of such records to the public.
Sec. 2. Schedule. The Working Group should complete its work to
the greatest extent possible and report to the Congress within 1
year.
Sec. 3. Membership. (a) The Working Group shall be composed of
the following members:
(1) Archivist of the United States (who shall serve as Chair of
the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the
National Security Council will serve as the liaison to and attend
the meetings of the Working Group. Members of the Working Group who
are full-time Federal officials may serve on the Working Group
through designees.
Sec. 4. Administration. (a) To the extent permitted by law and
subject to the availability of appropriations, the National
Archives and Records Administration shall provide the Working Group
with funding, administrative services, facilities, staff, and other
support services necessary for the performance of the functions of
the Working Group.
(b) The Working Group shall terminate 3 years from the date of
this Executive order.
William J. Clinton.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 551, 552a, 552b, 566,
574, 1216, 7133 of this title; title 2 sections 472, 501, 502;
title 6 section 133; title 7 sections 12, 450i, 499f, 608d, 948,
1314g, 1314i, 1508, 1636, 1637b, 1642, 2279b, 5651, 5662, 7035,
8401; title 8 section 1182; title 10 sections 128, 130b, 130c,
1034, 1102, 1506, 2304, 2305, 2306a, 2328, 2371, 4595, 7582, 9594;
title 12 sections 1786, 1818, 1828, 1831o, 4611; title 14 section
645; title 15 sections 18a, 57b-2, 78m, 78o-5, 78q, 78w, 78x,
78dd-1, 78dd-2, 79z-5c, 80a-30, 80b-10a, 278n, 638, 719d, 773, 796,
1314, 1335a, 2055, 2217, 2613, 3364, 3710a, 4019, 4104, 4107, 4305,
4403, 4606, 4912, 5104, 5308, 7006, 7215, 7306; title 16 sections
973j, 1402, 3844, 4304, 5937; title 18 sections 207, 208, 1838;
title 19 sections 1333, 1431, 1509, 1625, 1677f, 2418, 3315; title
20 sections 1078, 1087-2, 9576, 9622; title 21 sections 350c, 350d,
355a, 360c, 360j, 360bbb-3, 379, 379f, 830, 1904, 1908; title 22
sections 2200a, 3902, 4355, 4415, 4604, 4607, 4833, 5841, 6713,
6744; title 25 sections 450c, 450k, 1951, 2716; title 26 sections
6103, 6110, 7611, 7803; title 28 sections 594, 1657; title 29
sections 1310, 1343, 2635; title 30 section 1604; title 31 sections
716, 1352, 3729, 3733, 5319; title 33 sections 524, 941, 1513;
title 35 sections 202, 209; title 38 sections 501, 502, 7451; title
39 sections 410, 3016; title 41 sections 253, 253b, 254b, 423, 706;
title 42 sections 262a, 263b, 300i-2, 300v-2, 300aa-25, 300hh-12,
405, 1306, 1314, 1320c-9, 2167, 2168, 2454, 2996d, 4332, 5916,
5919, 6272-6274, 7135, 7412, 8103, 9122, 9208, 9660, 10704, 13385;
title 44 sections 2201, 2204, 2206, 3501, 3504, 3505, 3506, 3538,
3549; title 46 sections 4309, 6305, 7702, 9303; title 46 App.
section 1705; title 49 sections 106, 114, 706, 10706, 10709, 11162,
14123, 40110, 44921; title 50 sections 431, 432, 432a, 432b; title
50 App. sections 463, 2158, 2159, 2170, 2406, 2411.
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"Buk" Frank
