National Council on Disability Document Archive

Right to federal records -- FOIA.TXT

Posted by: Jamal Mazrui
Date Mailed: Thursday, July 24th 1997 09:12 AM

                     YOUR RIGHT TO FEDERAL RECORDS

                         Questions and Answers
                   on the Freedom of Information Act
                          and the Privacy Act



                             November 1996

                         A joint publication of


U.S. General Services Administration      U.S. Department of Justice
Washington, DC 20405                            Washington, DC 20530


At the time of this publication's printing, the Electronic Freedom of
Information Act Amendments of 1996 became Public Law 104-231.  P.L.
104-231 amends the Freedom of Information Act to provide for public
access to information in an electronic format, and for other purposes.
For details on how this amendment may affect your search for
information, please contact the Freedom of Information Act Officer at
the agency in which the records are being sought.


Table of Contents
The Freedom of Information Act
What the Freedom of Information Act is and how to use it..............1

The Privacy Act
What the Privacy Act is and how to use it.............................7

A Comparison of the Freedom of Information Act and the Privacy Act
Relationship between the two acts and deciding which to use...........11

Other Sources of Information .........................................12

Federal Information Center ...........................................14

Text of the Freedom of Information Act................................15



Introduction

This brochure provides basic guidance about the Freedom of Information
Act (FOIA) and the Privacy Act of 1974, to assist members of the public
in exercising their rights.  It uses a question-and-answer format to
present information about these laws in a clear, simple manner.  The
brochure is not intended to be a comprehensive treatment of the complex
issues associated with the FOIA and the Privacy Act.  It also does not
discuss the availability of federal agency information electronically,
although many federal agencies maintain Internet World Wide Web sites at
which a wide range of information is readily available.

The questions answered in this brochure are those frequently asked by
persons who contact the Federal Information Center (FIC) for information
on the FOIA and the Privacy Act.  The answers were compiled by the FIC
and the Consumer Information Center (CIC) of the U.S. General Services
Administration.  They were reviewed by the Department of Justice, the
agency responsible for coordinating the administration of the FOIA and
encouraging agency compliance with it.  The Office of Management and
Budget (OMB), which has a similar responsibility for the Privacy Act,
reviewed the answers to questions on that act.

The FOIA, enacted in 1966, provides that any person has the right to
request access to federal agency records or information. Federal
agencies are required to disclose records upon receiving a written
request for them, except for those records that are protected from
disclosure by the nine exemptions and three exclusions of the FOIA. This
right of access is enforceable in court.

The Privacy Act is another federal law regarding federal government
records or information about individuals.  The Privacy Act establishes
certain controls over how the executive branch agencies of the federal
government gather, maintain, and disseminate personal information.  The
Privacy Act also can be used to obtain access to information, but it
pertains only to records that the federal government keeps about
individual U.S. citizens and lawfully admitted permanent resident
aliens.  The FOIA, on the other hand, covers all records in the
possession and control of federal executive branch agencies.

This brochure contains information about the most significant provisions
of the FOIA and the Privacy Act.  We hope you find it helpful.


The Freedom of Information Act What information is available under the
FOIA?

The FOIA provides access to all federal agency records (or portions of
those records), except for those records that are protected from
disclosure by nine exemptions and three exclusions (reasons for which an
agency may withhold records from a requester).

The exemptions cover (1) classified national defense and foreign
relations information, (2) internal agency rules and practices, (3)
information that is prohibited from disclosure by another law, (4) trade
secrets and other confidential business information, (5) inter-agency or
intra-agency communications that are protected by legal privileges, (6)
information involving matters of personal privacy, (7) certain
information compiled for law enforcement purposes, (8) information
relating to the supervision of financial institutions, and (9)
geological information on wells.  The three exclusions, which are rarely
used, pertain to especially sensitive law enforcement and national
security matters.

Even if information is exempt from disclosure under the FOIA, the agency
still may disclose it as a matter of administrative discretion when that
is not prohibited by any law and would not cause any foreseeable harm.
The full text of the FOIA is printed beginning on page 15 of this
brochure.

The FOIA does not apply to Congress, the courts, or the immediate office
of the White House, nor does it apply to records of state or local
governments.  However, nearly all state governments have their own
FOIA-type statutes.  You may request information about a state's records
access law by writing to the office of the attorney general of that
state.

The FOIA does not require a private organization or business to release
any information directly to the public, whether it has been submitted to
the federal government or not.  However, information submitted to the
federal government by such organizations or companies can be available
through a FOIA request if it is not protected by a FOIA exemption, such
as the one covering trade secrets and confidential business information.

Under the FOIA, you may request and receive by mail a copy of any record
that is in an agency's files and is not covered by one of the exemptions
or exclusions.  For example, suppose you have heard that a certain toy
has been recalled as a safety hazard and you want to know the details.
The Consumer Product Safety Commission could help you by providing
copies of the recall documents.  Perhaps you want to read the latest
inspection report on conditions at a nursing home certified for
Medicare.  Your local Social Security office keeps such records on file.
Or you might want to know whether the Department of Veterans Affairs has
a file that mentions you.  In all of these examples, you could use the
FOIA to request information from the appropriate federal agency.  (See
the discussion below on how to find the right agency office and
address.)

When you make a FOIA request, you must describe the records that you
want as clearly and specifically as possible.  If the agency cannot
identify and locate records that you have requested with a reasonable
amount of effort, it will not be able to assist you.  While agencies
strive to handle all FOIA requests in a customer-friendly fashion, with
no unnecessary bureaucratic hurdles, the FOIA does not require them to
do research for you, to analyze data, to answer written questions, or in
any other way to create records in order to respond to a request.


Whom do I contact in the federal government with my request?  How do I
get the right address?

No one office of the federal government handles all FOIA requests.  Each
FOIA request must be made to the particular agency that has the records
that you want.  For example, if you want to know about an investigation
of motor vehicle defects, write to the Department of Transportation.  If
you want information about a work-related accident at a nearby
manufacturing plant, write to the Department of Labor (at its office in
the region where the accident occurred).  Most of the larger federal
agencies have several FOIA offices.  Some have one for each major bureau
or component; others have one for each region of the country.

You may have to do a little research to find the proper agency office to
handle your FOIA request, but you will save time in the long run if you
send your request directly to the most appropriate office.  For
assistance, you can contact the Federal Information Center (FIC).  The
FIC is specially prepared to help you find the right agency, the right
office, and the right address.  The FIC is administered by the U.S.
General Services Administration.  Information on how to contact the FIC
begins on page 14.

The U.S. Government Manual, the official handbook of the federal
government, may also be useful.  It describes the programs within each
federal agency and lists the names of top personnel and agency
addresses.  The Manual is available at most public libraries and can be
purchased from the Superintendent of Documents.  (Ordering instructions
are on page __.)  Additionally, each agency publishes FOIA regulations
in the Code of Federal Regulations (CFR) that contain the mailing
addresses of its FOIA offices.  (For example, the Department of
Justice's FOIA regulations can be found in Volume 28 of the CFR, Part
16.) The CFR is available at most public libraries.



How do I request information under the FOIA?

All you have to do to make a FOIA request is write a letter to the
agency.  (For the quickest possible handling, mark both your letter and
the envelope "Freedom of Information Act Request.")  Although you do not
have to give a record's name or title, you should identify the records
that you want as specifically as possible to increase the likelihood
that the agency will be able to locate them.  Any facts or clues you can
furnish about the time, place, authors, events, subjects, and other
details of the records will be helpful to the agency in deciding where
to search and in determining which records respond to your request,
saving you and the government time and money.

As a general rule, FOIA requesters are not required to state the reasons
why they are making their requests.  You may do so if you think it might
help the agency to locate the records. If you are not sure whether the
records you want are exempt from disclosure, you may request them
anyway.  Agencies often have the legal discretion to disclose exempt
information and, in line with the government's openness policy, they are
encouraged to do so whenever possible.

A sample request is shown below.  Keep a copy of your request.  You may
need to refer to it in further correspondence with the agency.



Sample FOIA Request Letter

Date

Freedom of Information Act Request Agency Head or FOIA Officer Name of
agency or agency component Address (see discussion above on whom to
contact)



Dear __________:

Under the Freedom of Information Act, 5 U.S.C. subsection 552, I am
requesting access to [identify the records as clearly and specifically
as possible].

If there are any fees for searching for or copying the records, please
let me know before you fill my request.  [Or, please supply the records
without informing me of the cost if the fees do not exceed $______,
which I agree to pay.]

If you deny all or any part of this request, please cite each specific
exemption you think justifies your refusal to release the information
and notify me of appeal procedures available under the law.

Optional:  If you have any questions about handling this request, you
may telephone me at ___________ (home phone) or at ___________ (office
phone).

Sincerely,


Name Address



What about costs for getting records under the FOIA?

The FOIA permits agencies to charge fees to FOIA requesters.  For
noncommercial requesters, an agency may charge only for the actual cost
of searching for records and the cost of making copies. Search fees
usually range from $10 to $30 per hour, depending upon the salary levels
of the personnel needed for the search.  The charge for copying
documents can be as little as 10 cents per page at some agencies, but
may be considerably more at other agencies.

For noncommercial requests, agencies will not charge for the first two
hours of search time or for the first 100 pages of document copying.
Agencies also will not charge if the total cost is minimal.  An agency
should notify you before proceeding with a request that will involve
large fees, unless your request letter already states your willingness
to pay fees as large as that amount. If fees are charged, you may
request a waiver of those fees if you can show that the records, when
disclosed to you, will contribute significantly to the public's
understanding of the operations or activities of the government.



How long will it take to answer my request?

Under the FOIA, federal agencies are required to respond to your request
within 10 working days of receipt (excluding Saturdays, Sundays, and
federal holidays).  If you have not received a response by the end of
that time (allowing for mailing time), you may telephone the agency or
write a follow-up letter to ask about the status of your request.
Sometimes an agency may need more than 10 working days to find the
records, examine them, possibly consult other persons or agencies,
decide whether to disclose all of the information requested, and prepare
the records for disclosure.  Agencies may extend this 10-day period up
to 10 more working days, with written notice to you.  Some agencies,
particularly law enforcement agencies, receive large numbers of
requests, many of which involve voluminous records or require
exceptional care to process.  If an agency has a backlog of requests
that were received before yours and has assigned a reasonable portion of
its staff to work on the backlog, the agency ordinarily will handle
requests on a first- come, first-served basis and may not respond to all
requests within the statutory time period.


What happens if the agency denies my request?

If the agency locates records in response to your request, it can
withhold them (or any portion of them) only if they are exempt from
disclosure.  If an agency denies your request, in whole or in part, it
must tell you the reason(s) for the denial in writing and inform you of
your right to appeal to a higher decisionmaking level within the agency.


How do I appeal a denial?

All that is necessary to appeal a denial is to promptly send a letter to
the agency.  Most agencies require that appeals be made within 30 to 45
days after you receive notification of a denial. The denial letter
should tell you the office to which your appeal letter should be
addressed.  For the quickest possible handling, you should mark both
your request letter and the envelope "Freedom of Information Act
Appeal."

To appeal, simply ask the agency to review your FOIA request and its
denial decision.  It is a good idea also to give your reason(s) for
believing that the denial was wrong.  Be sure to refer to any pertinent
communications you have had with the agency on the request and include
any number the agency may have assigned to your request.  It can save
time in acting on your appeal if you include copies of your FOIA request
and the agency's denial letter.  You do not need to enclose copies of
any documents released to you.  Under the FOIA, the agency has 20
working days (excluding Saturdays, Sundays, and federal holidays) to
decide your appeal.  Under certain circumstances, it may also take an
extension of up to 10 working days.  At some agencies, as with initial
requests, some appeals may take longer to decide.


What can I do if my appeal is denied?

If the agency denies your appeal, or does not respond within the
statutory time period, you may take the matter to court.  The agency's
denial letter should tell you that you can file a FOIA lawsuit in the
U.S. District Court where you live, where you have your principal place
of business, where the documents are kept, or in the District of
Columbia.  In court, the agency will have to prove that any withheld
information is covered by one of the exemptions listed in the act.  If
you win a substantial portion of your case and your lawsuit is found to
be a matter of public interest, the court may require the government to
pay court costs and reasonable attorney's fees for you.




The Privacy Act
What is the Privacy Act?

The federal government compiles a wide range of information on
individuals.  For example, if you were ever in the military or employed
by a federal agency, there should be records of your service.  If you
have ever applied for a federal benefit or received a student loan
guaranteed by the government, you are probably the subject of a file.
There are records on every individual who has ever paid income taxes or
received a check from Social Security or Medicare.

The Privacy Act, passed by Congress in 1974, establishes certain
controls over what personal information is collected by the federal
government and how it is used.  The act guarantees three primary rights:
(1) the right to see records about oneself, subject to the Privacy Act's
exemptions; (2) the right to amend that record if it is inaccurate,
irrelevant, untimely, or incomplete; and (3) the right to sue the
government for violations of the statute, including permitting others to
see your records, unless specifically permitted by the act.

The act also provides for certain limitations on agency information
practices, such as requiring that information about an individual be
collected from that individual to the greatest extent practicable;
requiring agencies to ensure that their records are relevant, accurate,
timely, and complete; and prohibiting agencies from maintaining
information describing how an individual exercises his or her First
Amendment rights unless the individual consents to it, a statute permits
it, or it is within the scope of an authorized law enforcement
investigation.


What information may I request under the Privacy Act?

The Privacy Act applies only to records about individuals  maintained by
agencies in the executive branch of the federal government.  It applies
to these records only if they are in a "system of records," which means
they are retrieved by an individual's name, social security number, or
some other personal identifier. In other words, the Privacy Act does not
apply to information about individuals in records that are filed under
other subjects, such as organizations or events, unless the agency also
indexes and retrieves them by individual names or other personal
identifiers.

There are 10 exemptions to the Privacy Act under which an agency can
withhold certain kinds of information from you.  Examples of exempt
records are those containing classified information on national security
and those concerning criminal investigations.  Another exemption often
used by agencies is that which protects information that would identify
a confidential source.  For example, if an investigator questions a
person about your qualifications for federal employment and that person
agrees to answer only if his identity is protected, then his name or any
information that would identify him can be withheld.  The 10 exemptions
are set out in the act.

If you are interested in more details, you should read the Privacy Act
in its entirety.  Though the act is too lengthy to publish as part of
this brochure, it is readily available.  It is printed in the U.S. Code
(Section 552a of Title 5), which can be found in many public and school
libraries.  You may also order a copy of the Privacy Act of 1974, Public
Law 93-579, from the Superintendent of Documents.  (Ordering
instructions are on page 12.)



Whom do I contact in the federal government with my request?  How do I
get the right address?

As with the FOIA, no one office handles all Privacy Act requests. To
locate the proper agency to handle your request, follow the same
guidelines as for the Freedom of Information Act.


How do I know if an agency has a file on me?

If you think a particular agency has a file pertaining to you, you may
write to the Privacy Act Officer or head of the agency.  Agencies are
generally required to inform you, upon request, whether or not they have
files on you.  In addition, agencies are required to report publicly the
existence of all systems of records they keep on individuals.  The
Office of the Federal Register publishes a listing of each agency's
systems of records notices, including exemptions, as well as its Privacy
Act regulations.  The multi-volume work, Privacy Act Issuance's
Compilation, is updated every two years and can be found in most large
reference and university libraries.



How do I request information under the Privacy Act?

Write a letter to the agency that you believe may have a file pertaining
to you.  Address your request to the Privacy Act Officer or head of the
agency, such as "Secretary, Department of Health and Human Services." Be
sure to write "Privacy Act Request" clearly on both the letter and the
envelope.

Most agencies require some proof of identity before they will give you
your records.  Therefore, it is a good idea to enclose proof of identity
(such as a copy of your driver's license) with your full name and
address.  Do not send the original documents.  Remember to sign your
request for information, since your signature is a form of
identification.  If an agency needs more proof of identity before
releasing your files, it will let you know.

Give as much information as possible as to why you believe the agency
has records about you. The agency should process your request or contact
you for additional information.

A sample request is shown below.  Keep a copy of your request.  You may
need to refer to it in further correspondence with the agency.



Sample Privacy Act Request Letter

Date


Agency Head or FOIA Officer Name of agency or agency component Address
(see discussion above on whom to contact)



Dear __________:

Under the Freedom of Information Act, 5 U.S.C. subsection 552, and the
Privacy Act, 5 U.S.C. subsection 552a, I am requesting access to
[identify the records as clearly and specifically as possible].

If there are any fees for searching for or copying the records, please
let me know before you fill my request.  [Or, please supply the records
without informing me of the cost if the fees do not exceed $______,
which I agree to pay.]

If you deny all or any part of this request, please cite each specific
exemption you think justifies your refusal to release the information
and notify me of appeal procedures available under the law.

Optional:  If you have any questions about handling this request, you
may telephone me at ___________ (home phone) or at ___________ (office
phone).

Sincerely,


Name Address



What about costs for getting records under the Privacy Act?

Under the Privacy Act, an agency can charge only for the cost of copying
records for you, not for time spent locating them.



How long will it take to answer my request?

Under the terms of the Privacy Act, the agency is not required to reply
to a request within a given period of time.  However, most agencies have
adopted the 10-day period in their regulations.  If you do not receive
any response within 4 weeks or so, you might wish to write again,
enclosing a copy of your original request.


What if I find that a federal agency has incorrect information about me
in the files?

The Privacy Act requires agencies maintaining personal information about
individuals to keep complete, accurate, timely, and relevant files.  If,
after seeing your file, you believe that it contains incorrect
information and should be amended, write to the agency official who
released the record to you.  Include all pertinent documentation for
each change you are requesting.  The agency will let you know if further
proof is needed.  The act requires an agency to notify you of the
receipt of such an amendment request within 10 working days of receipt.
If your request for amendment is granted, the agency will tell you
precisely what will be done to amend the record.  You may appeal any
denial.  Even if an agency denies your appeal, you have the right to
submit a statement explaining why you think the record is wrong and the
agency must attach your statement to the record involved.  The agency
must also inform you of your right to go to court and have a judge
review the denial of your appeal.

What can I do if I am denied information requested under the Privacy
Act?

There is no required procedure for Privacy Act appeals, but an agency
should advise you of its own appeal procedure when it makes a denial.
Should the agency deny your appeal, you may take the matter to court. If
you win your case, you may be awarded court costs and attorney's fees.




A Comparison of the Freedom of Information Act and the Privacy Act What
is the relationship between the FOIA and the Privacy Act?

Although the two laws were enacted for different purposes, there is some
similarity in their provisions. Both the FOIA and the Privacy Act give
people the right to request access to records held by agencies of the
federal government.  The FOIA's access rights are given to "any person,"
but the Privacy Act's access rights are given only to the individual who
is the subject of the records sought (if that individual is a U.S.
citizen or a lawfully admitted permanent resident alien).

The FOIA applies to all records of federal agencies.  The Privacy Act,
however, applies to only those federal agency records that are in
"systems of records" containing information about individuals that is
retrieved by the use of a name or personal identifier.  Each law has a
somewhat different set of fees, time limits, and exemptions from its
right of access.

If the information you want pertains to the activities of a federal
agency, an organization, or some person other than yourself, you should
make your request under the FOIA, which covers all agency records.  If
the information you want is about yourself, you should make the request
also under the Privacy Act, which covers most records of agencies that
pertain to individuals.  Sometimes you can use the FOIA to get records
about yourself that are not in a Privacy Act "system of records."  If
you are in doubt about which law applies or would better suit your
needs, you may refer to both in your request letter.  If you request
records about yourself and the Privacy Act applies, the agency should
process the request under both the FOIA and the Privacy Act and withhold
requested information from you only if it is exempt under both laws.


Can I request information about other people?

Yes, but it might be withheld to protect their personal privacy. The
FOIA contains two very important provisions concerning personal privacy:
Exemption 6 and Exemption 7(C).  They protect you from others who may
seek information about you, but they also may block you if you seek
information about others. The FOIA's Exemption 6 permits an agency to
withhold information about individuals if disclosing it would be "a
clearly unwarranted invasion of personal privacy."  This includes, for
example, almost all of the information in medical and financial benefit
files and much of the information in personnel files. Exemption 7(C)
similarly protects personal privacy interests in law enforcement
records.  To decide whether to withhold information under these two FOIA
privacy exemptions, an agency must balance personal privacy interests
against any public interest that would be served by disclosure.  Neither
Exemption 6 nor Exemption 7(C) can be used to deny you access to
information about yourself, only to deny you information about other
persons.



Other Sources of Information

The General Services Adminstration's Consumer Information Center (CIC)
publishes the free Consumer Information Catalog which lists more than
200 free and low-cost federal booklets on a wide variety of consumer
topics.  For a free copy of the Catalog, write to Consumer Information
Catalog, Pueblo, CO 81009, or call (719) 948-4000.  The Catalog is also
available through the CIC's Internet site at www.gsa.pueblo.gov or an
electronic bulletin board system at (202) 208-7679.

U.S. Government Manual This is the official handbook of the federal
government.  Published by the National Archives and Records
Administration, it describes the programs in each federal agency, lists
the names of top personnel, the mailing address, and a general
information telephone number.  It is available in most public libraries
or can be purchased for $36.00 by sending a check or money order to the
Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954.
To order by telephone, call (202) 512-1800.  The stock number is
069-000-00069-0.



The Privacy Act of 1974

This act gives citizens the right to see files about themselves, subject
to its exemptions; to request an amendment if the record is inaccurate,
irrelevant, untimely, or incomplete; and to sue the government for
permitting others to see their files unless specifically permitted by
the act.  A complete copy of the Privacy Act can be found as Section
552a of Title 5 of the U.S. Code.  Or you may order a copy of the
Privacy Act, Public Law 93-579, from the Superintendent of Documents,
P.O. Box 371954, Pittsburgh, PA 15250-7954, for $2.50.  To order by
telephone, call (202) 512-1800.  The stock number is 022-003-90866-8.

A Citizens Guide on Using the Freedom of Information Act and the Privacy
Act of 1974 To Request Government Records

This booklet, written by the Committee on Government Reform and
Oversight, U.S. House of Representatives, provides a much more detailed
explanation of the Freedom of Information Act and the Privacy Act than
this brochure.  It may be purchased for $3.00 from the Superintendent of
Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. To order by
telephone, call (202) 512-1800.  The stock number is 052-071-01129-3.

Freedom of Information Act Guide and Privacy Act Overview

This book is updated annually (in mid-fall) by the Justice Department's
Office of Information and Privacy. The "Justice Department's Guide to
the Freedom of Information Act," is a comprehensive summary of the law
that includes a discussion of the nine FOIA exemptions and its most
important procedural aspects.  The "Privacy Act Overview," prepared in
coordination with the Office of Management and Budget, is a discussion
of the provisions of the Privacy Act.  The book also contains the texts
of both statutes.  It may be purchased for $3.00 from the Superintendent
of Documents, P.O. Box 371954, Pittsburgh, PA 15250- 7954.  To order by
telephone, call (202) 512-1800.  The stock number is 052-071-01129-3.
Text versions are also available on the Justice Department's website at
http://www.usdoj.gov/oip/.

Freedom of Information Case List

This book, updated biennially (in even-numbered years) by the Justice
Department's Office of Information and Privacy, contains lists of cases
decided under the Freedom of Information Act, the Privacy Act, the
Government in the Sunshine Act, and the Federal Advisory Committee Act.
The book includes the texts of those four statutes and a list of related
law review articles.  It may be purchased for $(need to check in Nov.)
from the Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA
15250-7954.  To order by telephone, call (202) 512-1800.  The stock
number is 027-000-01372-4.


FOIA Update

This newsletter contains information and guidance for federal agencies
and is published quarterly by the Justice Department's Office of
Information and Privacy.  It is available from the Superintendent of
Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. To order by
telephone, call (202) 512-1800. The stock number is 727-002-00000-6. The
annual subscription price is $5.00 domestic and $6.25 foreign. Selected
portions are available on the Justice Department's Internet site at
http://www.usdoj.gov/oip/foi-upd.htm.



Federal Information Center

The Federal Information Center (FIC), administered by the General
Services Administration, can help you find information about the federal
government's agencies, services, and programs.  You may call the FIC for
assistance in contacting the proper federal agency with your Freedom of
Information Act or Privacy Act request.

Simply call 800-688-9889 toll-free from anywhere in the United States.
Users of text telephones (TDD/TTY) may also call toll-free at
800-326-2996.

The FIC is open from 9 a.m. to 5 p.m., local time, except in Alaska (8
a.m. to 4 p.m.) and Hawaii (7 a.m. to 3 p.m.).





The Freedom of Information Act, 5 U.S.C.  552

Public information; agency rules, opinions, orders, records, and
proceedings

(a) Each agency shall make available to the public information as
follows:

(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public--

(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may obtain information, make submittals or requests, or obtain
decisions;

(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at
which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.  Except to the
extent that a person has actual and timely notice of the terms thereof,
a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register
and not so published.  For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein
with the approval of the Director of the Federal Register.

(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying--

(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;

(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 the terms thereof.

(3) Except with respect to the records made available under paragraphs
(1) and (2) of the 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)(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 the 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 cost 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.

(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.]  Repealed. Pub. L. 98-620,
Title IV,  402(2), Nov. 8, 1984, 98 Stat. 3335, 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 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) 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.

(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
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.

(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 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) records or information compiled for law enforcement purposes, but 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 a 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.

(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
the 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) 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
requests for records made to such agency under subsection (a) and the
reasons for each such determination;

(2) the number of appeals made by persons under subsection (a)(6), the
result of such appeals, and the reason for the action upon each appeal
that results in a denial of information;

(3) the names and titles or positions of each person responsible for the
denial of records requested under this section, and the number of
instances of participation for each;

(4) the results of each proceeding conducted pursuant to subsection
(a)(4)(F), including a report of the disciplinary action taken against
the officer or employee who was primarily responsible for improperly
withholding records or an explanation of why disciplinary action was not
taken;

(5) a copy of every rule made by such agency regarding this section;

(6) a copy of the fee schedule and the total amount of fees collected by
the agency for making records available under this section; and

(7) such other information as indicates efforts to administer fully this
section.

The Attorney General shall submit an annual report on or before March 1
of each calendar year which shall include for the prior calendar year a
listing of the number of cases arising under this section, the exemption
involved in each case, the disposition of such case, and the cost, fees,
and penalties assessed under subsections (a)(4)(E), (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.

(f) 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.






Updated June 17 ,1997
usdoj-/jmd/irm/css/mlb

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