Title 5 — Government Organization and Employees — § 552. Public information
Summary
This is section 552 of title 5 of the United States Code, "Public information; agency rules, opinions, orders, records, and proceedings," the Freedom of Information Act, as printed with its statutory notes. The section sets out what each agency must make available to the public and requires an agency to determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of a request whether to comply. It lets requesters seek dispute resolution services from the Office of Government Information Services and requires each agency to report every year to the Attorney General of the United States and to that office's Director. The notes give short titles of amendments and executive branch guidance that agencies should act promptly and in a spirit of cooperation.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Page 109 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
cies, as appropriate and consistent with applicable law. (B) those statements of policy and interpre-
In addition, any personnel positions, committees, task tations which have been adopted by the agen-
forces, or other entities established pursuant to the Ex- cy and are not published in the Federal Reg-
ecutive Orders identified in section 2 of this order, in-
cluding the regulatory reform officer positions and reg-
ister;
ulatory reform task forces established by sections 2 and (C) administrative staff manuals and in-
3 of Executive Order 13777 [former 5 U.S.C. 601 note], structions to staff that affect a member of the
shall be abolished, as appropriate and consistent with public;
applicable law. (D) copies of all records, regardless of form
SEC. 4. General Provisions. (a) Nothing in this order or format—
shall be construed to impair or otherwise affect: (i) that have been released to any person
(i) the authority granted by law to an executive de-
partment or agency, or the head thereof; or
under paragraph (3); and
(ii) the functions of the Director of the Office of Man- (ii)(I) that because of the nature of their
agement and Budget relating to budgetary, administra- subject matter, the agency determines have
tive, or legislative proposals. become or are likely to become the subject
(b) This order shall be implemented in a manner con- of subsequent requests for substantially the
sistent with applicable law and subject to the avail- same records; or
ability of appropriations. (II) that have been requested 3 or more
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforce- times; and
able at law or in equity by any party against the (E) a general index of the records referred to
United States, its departments, agencies, or entities, under subparagraph (D);
its officers, employees, or agents, or any other person.
J.R. BIDEN, JR. unless the materials are promptly published and
copies offered for sale. For records created on or
§ 552. Public information; agency rules, opinions, after November 1, 1996, within one year after
orders, records, and proceedings such date, each agency shall make such records
(a) Each agency shall make available to the available, including by computer telecommuni-
public information as follows: cations or, if computer telecommunications
(1) Each agency shall separately state and cur- means have not been established by the agency,
rently publish in the Federal Register for the by other electronic means. To the extent re-
guidance of the public— quired to prevent a clearly unwarranted inva-
(A) descriptions of its central and field orga- sion of personal privacy, an agency may delete
nization and the established places at which, identifying details when it makes available or
the employees (and in the case of a uniformed publishes an opinion, statement of policy, inter-
service, the members) from whom, and the pretation, staff manual, instruction, or copies of
methods whereby, the public may obtain infor- records referred to in subparagraph (D). How-
mation, make submittals or requests, or ob- ever, in each case the justification for the dele-
tain decisions; tion shall be explained fully in writing, and the
(B) statements of the general course and extent of such deletion shall be indicated on the
method by which its functions are channeled portion of the record which is made available or
and determined, including the nature and re- published, unless including that indication
quirements of all formal and informal proce- would harm an interest protected by the exemp-
dures available; tion in subsection (b) under which the deletion
(C) rules of procedure, descriptions of forms is made. If technically feasible, the extent of the
available or the places at which forms may be deletion shall be indicated at the place in the
obtained, and instructions as to the scope and record where the deletion was made. Each agen-
contents of all papers, reports, or examina- cy shall also maintain and make available for
tions; public inspection in an electronic format cur-
(D) substantive rules of general applicability rent indexes providing identifying information
adopted as authorized by law, and statements for the public as to any matter issued, adopted,
of general policy or interpretations of general or promulgated after July 4, 1967, and required
applicability formulated and adopted by the by this paragraph to be made available or pub-
agency; and lished. Each agency shall promptly publish,
(E) each amendment, revision, or repeal of quarterly or more frequently, and distribute (by
the foregoing. sale or otherwise) copies of each index or supple-
Except to the extent that a person has actual ments thereto unless it determines by order
and timely notice of the terms thereof, a person published in the Federal Register that the publi-
may not in any manner be required to resort to, cation would be unnecessary and impracticable,
or be adversely affected by, a matter required to in which case the agency shall nonetheless pro-
be published in the Federal Register and not so vide copies of such index on request at a cost not
published. For the purpose of this paragraph, to exceed the direct cost of duplication. Each
matter reasonably available to the class of per- agency shall make the index referred to in sub-
sons affected thereby is deemed published in the paragraph (E) available by computer tele-
Federal Register when incorporated by reference communications by December 31, 1999. A final
therein with the approval of the Director of the order, opinion, statement of policy, interpreta-
Federal Register. tion, or staff manual or instruction that affects
(2) Each agency, in accordance with published a member of the public may be relied on, used,
rules, shall make available for public inspection or cited as precedent by an agency against a
in an electronic format— party other than an agency only if—
(A) final opinions, including concurring and (i) it has been indexed and either made avail-
dissenting opinions, as well as orders, made in able or published as provided by this para-
the adjudication of cases; graph; or
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 110
(ii) the party has actual and timely notice of (III) for any request not described in (I) or
the terms thereof. (II), fees shall be limited to reasonable stand-
(3)(A) Except with respect to the records made ard charges for document search and duplica-
available under paragraphs (1) and (2) of this tion.
subsection, and except as provided in subpara- In this clause, the term ‘‘a representative of the
graph (E), each agency, upon any request for news media’’ means any person or entity that
records which (i) reasonably describes such gathers information of potential interest to a
records and (ii) is made in accordance with pub- segment of the public, uses its editorial skills to
lished rules stating the time, place, fees (if any), turn the raw materials into a distinct work, and
and procedures to be followed, shall make the distributes that work to an audience. In this
records promptly available to any person. clause, the term ‘‘news’’ means information that
(B) In making any record available to a person is about current events or that would be of cur-
under this paragraph, an agency shall provide rent interest to the public. Examples of news-
the record in any form or format requested by media entities are television or radio stations
the person if the record is readily reproducible broadcasting to the public at large and pub-
by the agency in that form or format. Each lishers of periodicals (but only if such entities
agency shall make reasonable efforts to main- qualify as disseminators of ‘‘news’’) who make
tain its records in forms or formats that are re- their products available for purchase by or sub-
producible for purposes of this section. scription by or free distribution to the general
(C) In responding under this paragraph to a re- public. These examples are not all-inclusive.
quest for records, an agency shall make reason- Moreover, as methods of news delivery evolve
able efforts to search for the records in elec- (for example, the adoption of the electronic dis-
tronic form or format, except when such efforts semination of newspapers through telecommuni-
would significantly interfere with the operation cations services), such alternative media shall
of the agency’s automated information system. be considered to be news-media entities. A free-
(D) For purposes of this paragraph, the term lance journalist shall be regarded as working for
‘‘search’’ means to review, manually or by auto- a news-media entity if the journalist can dem-
mated means, agency records for the purpose of onstrate a solid basis for expecting publication
locating those records which are responsive to a through that entity, whether or not the jour-
request. nalist is actually employed by the entity. A pub-
(E) An agency, or part of an agency, that is an lication contract would present a solid basis for
element of the intelligence community (as that such an expectation; the Government may also
term is defined in section 3(4) of the National consider the past publication record of the re-
Security Act of 1947 (50 U.S.C. 401a(4))) 1 shall quester in making such a determination.
not make any record available under this para- (iii) Documents shall be furnished without any
graph to— charge or at a charge reduced below the fees es-
(i) any government entity, other than a tablished under clause (ii) if disclosure of the in-
State, territory, commonwealth, or district of formation is in the public interest because it is
the United States, or any subdivision thereof; likely to contribute significantly to public un-
or derstanding of the operations or activities of the
(ii) a representative of a government entity government and is not primarily in the commer-
described in clause (i). cial interest of the requester.
(4)(A)(i) In order to carry out the provisions of (iv) Fee schedules shall provide for the recov-
this section, each agency shall promulgate regu- ery of only the direct costs of search, duplica-
lations, pursuant to notice and receipt of public tion, or review. Review costs shall include only
comment, specifying the schedule of fees appli- the direct costs incurred during the initial ex-
cable to the processing of requests under this amination of a document for the purposes of de-
section and establishing procedures and guide- termining whether the documents must be dis-
lines for determining when such fees should be closed under this section and for the purposes of
waived or reduced. Such schedule shall conform withholding any portions exempt from disclo-
to the guidelines which shall be promulgated, sure under this section. Review costs may not
pursuant to notice and receipt of public com- include any costs incurred in resolving issues of
ment, by the Director of the Office of Manage- law or policy that may be raised in the course of
ment and Budget and which shall provide for a processing a request under this section. No fee
uniform schedule of fees for all agencies. may be charged by any agency under this sec-
(ii) Such agency regulations shall provide tion—
that— (I) if the costs of routine collection and proc-
(I) fees shall be limited to reasonable stand- essing of the fee are likely to equal or exceed
ard charges for document search, duplication, the amount of the fee; or
and review, when records are requested for (II) for any request described in clause (ii)
commercial use; (II) or (III) of this subparagraph for the first
(II) fees shall be limited to reasonable stand- two hours of search time or for the first one
ard charges for document duplication when hundred pages of duplication.
records are not sought for commercial use and (v) No agency may require advance payment of
the request is made by an educational or non- any fee unless the requester has previously
commercial scientific institution, whose pur- failed to pay fees in a timely fashion, or the
pose is scholarly or scientific research; or a agency has determined that the fee will exceed
representative of the news media; and $250.
(vi) Nothing in this subparagraph shall super-
1 See References in Text note below. sede fees chargeable under a statute specifically
Page 111 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
providing for setting the level of fees for par- [(D) Repealed. Pub. L. 98–620, title IV, § 402(2),
ticular types of records. Nov. 8, 1984, 98 Stat. 3357.]
(vii) In any action by a requester regarding (E)(i) The court may assess against the United
the waiver of fees under this section, the court States reasonable attorney fees and other litiga-
shall determine the matter de novo: Provided, tion costs reasonably incurred in any case under
That the court’s review of the matter shall be this section in which the complainant has sub-
limited to the record before the agency. stantially prevailed.
(viii)(I) Except as provided in subclause (II), an (ii) For purposes of this subparagraph, a com-
agency shall not assess any search fees (or in the plainant has substantially prevailed if the com-
case of a requester described under clause (ii)(II) plainant has obtained relief through either—
of this subparagraph, duplication fees) under (I) a judicial order, or an enforceable written
this subparagraph if the agency has failed to agreement or consent decree; or
comply with any time limit under paragraph (6). (II) a voluntary or unilateral change in posi-
(II)(aa) If an agency has determined that un- tion by the agency, if the complainant’s claim
usual circumstances apply (as the term is de- is not insubstantial.
fined in paragraph (6)(B)) and the agency pro-
vided a timely written notice to the requester in (F)(i) Whenever the court orders the produc-
accordance with paragraph (6)(B), a failure de- tion of any agency records improperly withheld
scribed in subclause (I) is excused for an addi- from the complainant and assesses against the
tional 10 days. If the agency fails to comply with United States reasonable attorney fees and
the extended time limit, the agency may not as- other litigation costs, and the court addition-
sess any search fees (or in the case of a requester ally issues a written finding that the cir-
described under clause (ii)(II) of this subpara- cumstances surrounding the withholding raise
graph, duplication fees). questions whether agency personnel acted arbi-
(bb) If an agency has determined that unusual trarily or capriciously with respect to the with-
circumstances apply and more than 5,000 pages holding, the Special Counsel shall promptly ini-
are necessary to respond to the request, an agen- tiate a proceeding to determine whether dis-
cy may charge search fees (or in the case of a re- ciplinary action is warranted against the officer
quester described under clause (ii)(II) of this or employee who was primarily responsible for
subparagraph, duplication fees) if the agency the withholding. The Special Counsel, after in-
has provided a timely written notice to the re- vestigation and consideration of the evidence
quester in accordance with paragraph (6)(B) and submitted, shall submit his findings and rec-
the agency has discussed with the requester via ommendations to the administrative authority
written mail, electronic mail, or telephone (or of the agency concerned and shall send copies of
made not less than 3 good-faith attempts to do the findings and recommendations to the officer
so) how the requester could effectively limit the or employee or his representative. The adminis-
scope of the request in accordance with para- trative authority shall take the corrective ac-
graph (6)(B)(ii). tion that the Special Counsel recommends.
(cc) If a court has determined that exceptional (ii) The Attorney General shall—
circumstances exist (as that term is defined in (I) notify the Special Counsel of each civil
paragraph (6)(C)), a failure described in sub- action described under the first sentence of
clause (I) shall be excused for the length of time clause (i); and
provided by the court order. (II) annually submit a report to Congress on
(B) On complaint, the district court of the the number of such civil actions in the pre-
United States in the district in which the com- ceding year.
plainant resides, or has his principal place of
business, or in which the agency records are sit- (iii) The Special Counsel shall annually sub-
uated, or in the District of Columbia, has juris- mit a report to Congress on the actions taken by
diction to enjoin the agency from withholding the Special Counsel under clause (i).
agency records and to order the production of (G) In the event of noncompliance with the
any agency records improperly withheld from order of the court, the district court may punish
the complainant. In such a case the court shall for contempt the responsible employee, and in
determine the matter de novo, and may examine the case of a uniformed service, the responsible
the contents of such agency records in camera member.
to determine whether such records or any part (5) Each agency having more than one member
thereof shall be withheld under any of the ex- shall maintain and make available for public in-
emptions set forth in subsection (b) of this sec- spection a record of the final votes of each mem-
tion, and the burden is on the agency to sustain ber in every agency proceeding.
its action. In addition to any other matters to (6)(A) Each agency, upon any request for
which a court accords substantial weight, a records made under paragraph (1), (2), or (3) of
court shall accord substantial weight to an affi- this subsection, shall—
davit of an agency concerning the agency’s de- (i) determine within 20 days (excepting Sat-
termination as to technical feasibility under urdays, Sundays, and legal public holidays)
paragraph (2)(C) and subsection (b) and repro- after the receipt of any such request whether
ducibility under paragraph (3)(B). to comply with such request and shall imme-
(C) Notwithstanding any other provision of diately notify the person making such request
law, the defendant shall serve an answer or oth- of—
erwise plead to any complaint made under this (I) such determination and the reasons
subsection within thirty days after service upon therefor;
the defendant of the pleading in which such (II) the right of such person to seek assist-
complaint is made, unless the court otherwise ance from the FOIA Public Liaison of the
directs for good cause shown. agency; and
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 112
(III) in the case of an adverse determina- request or arrange such an alternative time
tion— frame shall be considered as a factor in deter-
(aa) the right of such person to appeal to mining whether exceptional circumstances exist
the head of the agency, within a period de- for purposes of subparagraph (C).
termined by the head of the agency that is (iii) As used in this subparagraph, ‘‘unusual
not less than 90 days after the date of such circumstances’’ means, but only to the extent
adverse determination; and reasonably necessary to the proper processing of
(bb) the right of such person to seek dis- the particular requests—
pute resolution services from the FOIA (I) the need to search for and collect the re-
Public Liaison of the agency or the Office quested records from field facilities or other
of Government Information Services; and establishments that are separate from the of-
(ii) make a determination with respect to fice processing the request;
(II) the need to search for, collect, and ap-
any appeal within twenty days (excepting Sat-
propriately examine a voluminous amount of
urdays, Sundays, and legal public holidays)
separate and distinct records which are de-
after the receipt of such appeal. If on appeal
manded in a single request; or
the denial of the request for records is in
(III) the need for consultation, which shall
whole or in part upheld, the agency shall no-
be conducted with all practicable speed, with
tify the person making such request of the
another agency having a substantial interest
provisions for judicial review of that deter-
in the determination of the request or among
mination under paragraph (4) of this sub-
two or more components of the agency having
section.
substantial subject-matter interest therein.
The 20-day period under clause (i) shall com-
(iv) Each agency may promulgate regulations,
mence on the date on which the request is first
pursuant to notice and receipt of public com-
received by the appropriate component of the
ment, providing for the aggregation of certain
agency, but in any event not later than ten days
requests by the same requestor, or by a group of
after the request is first received by any compo-
requestors acting in concert, if the agency rea-
nent of the agency that is designated in the
sonably believes that such requests actually
agency’s regulations under this section to re-
constitute a single request, which would other-
ceive requests under this section. The 20-day pe-
wise satisfy the unusual circumstances specified
riod shall not be tolled by the agency except—
in this subparagraph, and the requests involve
(I) that the agency may make one request to
clearly related matters. Multiple requests in-
the requester for information and toll the 20-
volving unrelated matters shall not be aggre-
day period while it is awaiting such informa-
gated.
tion that it has reasonably requested from the
(C)(i) Any person making a request to any
requester under this section; or
agency for records under paragraph (1), (2), or (3)
(II) if necessary to clarify with the requester
of this subsection shall be deemed to have ex-
issues regarding fee assessment. In either case,
hausted his administrative remedies with re-
the agency’s receipt of the requester’s re-
spect to such request if the agency fails to com-
sponse to the agency’s request for information
ply with the applicable time limit provisions of
or clarification ends the tolling period.
this paragraph. If the Government can show ex-
(B)(i) In unusual circumstances as specified in ceptional circumstances exist and that the agen-
this subparagraph, the time limits prescribed in cy is exercising due diligence in responding to
either clause (i) or clause (ii) of subparagraph the request, the court may retain jurisdiction
(A) may be extended by written notice to the and allow the agency additional time to com-
person making such request setting forth the plete its review of the records. Upon any deter-
unusual circumstances for such extension and mination by an agency to comply with a request
the date on which a determination is expected for records, the records shall be made promptly
to be dispatched. No such notice shall specify a available to such person making such request.
date that would result in an extension for more Any notification of denial of any request for
than ten working days, except as provided in records under this subsection shall set forth the
clause (ii) of this subparagraph. names and titles or positions of each person re-
(ii) With respect to a request for which a writ- sponsible for the denial of such request.
ten notice under clause (i) extends the time lim- (ii) For purposes of this subparagraph, the
its prescribed under clause (i) of subparagraph term ‘‘exceptional circumstances’’ does not in-
(A), the agency shall notify the person making clude a delay that results from a predictable
the request if the request cannot be processed agency workload of requests under this section,
within the time limit specified in that clause unless the agency demonstrates reasonable
and shall provide the person an opportunity to progress in reducing its backlog of pending re-
limit the scope of the request so that it may be quests.
processed within that time limit or an oppor- (iii) Refusal by a person to reasonably modify
tunity to arrange with the agency an alter- the scope of a request or arrange an alternative
native time frame for processing the request or time frame for processing a request (or a modi-
a modified request. To aid the requester, each fied request) under clause (ii) after being given
agency shall make available its FOIA Public Li- an opportunity to do so by the agency to whom
aison, who shall assist in the resolution of any the person made the request shall be considered
disputes between the requester and the agency, as a factor in determining whether exceptional
and notify the requester of the right of the re- circumstances exist for purposes of this subpara-
quester to seek dispute resolution services from graph.
the Office of Government Information Services. (D)(i) Each agency may promulgate regula-
Refusal by the person to reasonably modify the tions, pursuant to notice and receipt of public
Page 113 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
comment, providing for multitrack processing of exemption in subsection (b) pursuant to which
requests for records based on the amount of the denial is made.
work or time (or both) involved in processing re- (7) Each agency shall—
quests. (A) establish a system to assign an individ-
(ii) Regulations under this subparagraph may ualized tracking number for each request re-
provide a person making a request that does not ceived that will take longer than ten days to
qualify for the fastest multitrack processing an process and provide to each person making a
opportunity to limit the scope of the request in request the tracking number assigned to the
order to qualify for faster processing. request; and
(iii) This subparagraph shall not be considered (B) establish a telephone line or Internet
to affect the requirement under subparagraph service that provides information about the
(C) to exercise due diligence. status of a request to the person making the
(E)(i) Each agency shall promulgate regula- request using the assigned tracking number,
tions, pursuant to notice and receipt of public including—
comment, providing for expedited processing of (i) the date on which the agency originally
requests for records— received the request; and
(I) in cases in which the person requesting (ii) an estimated date on which the agency
the records demonstrates a compelling need; will complete action on the request.
and
(II) in other cases determined by the agency. (8)(A) An agency shall—
(i) withhold information under this section
(ii) Notwithstanding clause (i), regulations only if—
under this subparagraph must ensure— (I) the agency reasonably foresees that dis-
(I) that a determination of whether to pro- closure would harm an interest protected by
vide expedited processing shall be made, and an exemption described in subsection (b); or
notice of the determination shall be provided (II) disclosure is prohibited by law; and
to the person making the request, within 10
days after the date of the request; and (ii)(I) consider whether partial disclosure of
(II) expeditious consideration of administra- information is possible whenever the agency
tive appeals of such determinations of whether determines that a full disclosure of a re-
to provide expedited processing. quested record is not possible; and
(II) take reasonable steps necessary to seg-
(iii) An agency shall process as soon as prac- regate and release nonexempt information;
ticable any request for records to which the and
agency has granted expedited processing under
this subparagraph. Agency action to deny or af- (B) Nothing in this paragraph requires disclo-
firm denial of a request for expedited processing sure of information that is otherwise prohibited
pursuant to this subparagraph, and failure by an from disclosure by law, or otherwise exempted
agency to respond in a timely manner to such a from disclosure under subsection (b)(3).
request shall be subject to judicial review under (b) This section does not apply to matters that
paragraph (4), except that the judicial review are—
shall be based on the record before the agency at (1)(A) specifically authorized under criteria
the time of the determination. established by an Executive order to be kept
(iv) A district court of the United States shall secret in the interest of national defense or
not have jurisdiction to review an agency denial foreign policy and (B) are in fact properly clas-
of expedited processing of a request for records sified pursuant to such Executive order;
after the agency has provided a complete re- (2) related solely to the internal personnel
sponse to the request. rules and practices of an agency;
(v) For purposes of this subparagraph, the (3) specifically exempted from disclosure by
term ‘‘compelling need’’ means— statute (other than section 552b of this title),
(I) that a failure to obtain requested records if that statute—
on an expedited basis under this paragraph (A)(i) requires that the matters be with-
could reasonably be expected to pose an immi- held from the public in such a manner as to
nent threat to the life or physical safety of an leave no discretion on the issue; or
individual; or (ii) establishes particular criteria for with-
(II) with respect to a request made by a per- holding or refers to particular types of mat-
son primarily engaged in disseminating infor- ters to be withheld; and
mation, urgency to inform the public con- (B) if enacted after the date of enactment
cerning actual or alleged Federal Government of the OPEN FOIA Act of 2009, specifically
activity. cites to this paragraph.
(vi) A demonstration of a compelling need by (4) trade secrets and commercial or financial
a person making a request for expedited proc- information obtained from a person and privi-
essing shall be made by a statement certified by leged or confidential;
such person to be true and correct to the best of (5) inter-agency or intra-agency memoran-
such person’s knowledge and belief. dums or letters that would not be available by
(F) In denying a request for records, in whole law to a party other than an agency in litiga-
or in part, an agency shall make a reasonable ef- tion with the agency, provided that the delib-
fort to estimate the volume of any requested erative process privilege shall not apply to
matter the provision of which is denied, and records created 25 years or more before the
shall provide any such estimate to the person date on which the records were requested;
making the request, unless providing such esti- (6) personnel and medical files and similar
mate would harm an interest protected by the files the disclosure of which would constitute
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 114
a clearly unwarranted invasion of personal cy may treat the records as not subject to the
privacy; requirements of this section unless the inform-
(7) records or information compiled for law ant’s status as an informant has been officially
enforcement purposes, but only to the extent confirmed.
that the production of such law enforcement (3) Whenever a request is made which involves
records or information (A) could reasonably be access to records maintained by the Federal Bu-
expected to interfere with enforcement pro- reau of Investigation pertaining to foreign intel-
ceedings, (B) would deprive a person of a right ligence or counterintelligence, or international
to a fair trial or an impartial adjudication, (C) terrorism, and the existence of the records is
could reasonably be expected to constitute an classified information as provided in subsection
unwarranted invasion of personal privacy, (D) (b)(1), the Bureau may, as long as the existence
could reasonably be expected to disclose the of the records remains classified information,
identity of a confidential source, including a treat the records as not subject to the require-
State, local, or foreign agency or authority or ments of this section.
any private institution which furnished infor- (d) This section does not authorize with-
mation on a confidential basis, and, in the holding of information or limit the availability
case of a record or information compiled by of records to the public, except as specifically
criminal law enforcement authority in the stated in this section. This section is not au-
course of a criminal investigation or by an thority to withhold information from Congress.
agency conducting a lawful national security (e)(1) On or before February 1 of each year,
intelligence investigation, information fur- each agency shall submit to the Attorney Gen-
nished by a confidential source, (E) would dis- eral of the United States and to the Director of
close techniques and procedures for law en- the Office of Government Information Services a
forcement investigations or prosecutions, or report which shall cover the preceding fiscal
would disclose guidelines for law enforcement year and which shall include—
investigations or prosecutions if such disclo- (A) the number of determinations made by
sure could reasonably be expected to risk cir- the agency not to comply with requests for
cumvention of the law, or (F) could reasonably records made to such agency under subsection
be expected to endanger the life or physical (a) and the reasons for each such determina-
safety of any individual; tion;
(8) contained in or related to examination, (B)(i) the number of appeals made by persons
operating, or condition reports prepared by, on under subsection (a)(6), the result of such ap-
behalf of, or for the use of an agency respon- peals, and the reason for the action upon each
sible for the regulation or supervision of finan- appeal that results in a denial of information;
cial institutions; or and
(9) geological and geophysical information (ii) a complete list of all statutes that the
and data, including maps, concerning wells. agency relies upon to authorize the agency to
withhold information under subsection (b)(3),
Any reasonably segregable portion of a record
the number of occasions on which each statute
shall be provided to any person requesting such
was relied upon, a description of whether a
record after deletion of the portions which are
court has upheld the decision of the agency to
exempt under this subsection. The amount of in-
withhold information under each such statute,
formation deleted, and the exemption under
and a concise description of the scope of any
which the deletion is made, shall be indicated on
information withheld;
the released portion of the record, unless includ-
(C) the number of requests for records pend-
ing that indication would harm an interest pro-
ing before the agency as of September 30 of the
tected by the exemption in this subsection
preceding year, and the median and average
under which the deletion is made. If technically
number of days that such requests had been
feasible, the amount of the information deleted,
pending before the agency as of that date;
and the exemption under which the deletion is (D) the number of requests for records re-
made, shall be indicated at the place in the ceived by the agency and the number of re-
record where such deletion is made. quests which the agency processed;
(c)(1) Whenever a request is made which in- (E) the median number of days taken by the
volves access to records described in subsection agency to process different types of requests,
(b)(7)(A) and— based on the date on which the requests were
(A) the investigation or proceeding involves
received by the agency;
a possible violation of criminal law; and (F) the average number of days for the agen-
(B) there is reason to believe that (i) the
cy to respond to a request beginning on the
subject of the investigation or proceeding is
date on which the request was received by the
not aware of its pendency, and (ii) disclosure
agency, the median number of days for the
of the existence of the records could reason-
agency to respond to such requests, and the
ably be expected to interfere with enforcement
range in number of days for the agency to re-
proceedings,
spond to such requests;
the agency may, during only such time as that (G) based on the number of business days
circumstance continues, treat the records as not that have elapsed since each request was origi-
subject to the requirements of this section. nally received by the agency—
(2) Whenever informant records maintained by (i) the number of requests for records to
a criminal law enforcement agency under an in- which the agency has responded with a de-
formant’s name or personal identifier are re- termination within a period up to and in-
quested by a third party according to the in- cluding 20 days, and in 20-day increments up
formant’s name or personal identifier, the agen- to and including 200 days;
Page 115 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
(ii) the number of requests for records to (A) without charge, license, or registration
which the agency has responded with a de- requirement;
termination within a period greater than 200 (B) in an aggregated, searchable format; and
days and less than 301 days; (C) in a format that may be downloaded in
(iii) the number of requests for records to bulk.
which the agency has responded with a de-
(4) The Attorney General of the United States
termination within a period greater than 300
days and less than 401 days; and shall make each report which has been made
(iv) the number of requests for records to available by electronic means available at a sin-
which the agency has responded with a de- gle electronic access point. The Attorney Gen-
termination within a period greater than 400 eral of the United States shall notify the Chair-
days; man and ranking minority member of the Com-
mittee on Oversight and Government Reform of
(H) the average number of days for the agen- the House of Representatives and the Chairman
cy to provide the granted information begin- and ranking minority member of the Commit-
ning on the date on which the request was tees on Homeland Security and Governmental
originally filed, the median number of days for Affairs and the Judiciary of the Senate, no later
the agency to provide the granted informa- than March 1 of the year in which each such re-
tion, and the range in number of days for the port is issued, that such reports are available by
agency to provide the granted information; electronic means.
(I) the median and average number of days (5) The Attorney General of the United States,
for the agency to respond to administrative in consultation with the Director of the Office of
appeals based on the date on which the appeals Management and Budget, shall develop report-
originally were received by the agency, the ing and performance guidelines in connection
highest number of business days taken by the with reports required by this subsection by Oc-
agency to respond to an administrative ap- tober 1, 1997, and may establish additional re-
peal, and the lowest number of business days quirements for such reports as the Attorney
taken by the agency to respond to an adminis- General determines may be useful.
trative appeal; (6)(A) The Attorney General of the United
(J) data on the 10 active requests with the
States shall submit to the Committee on Over-
earliest filing dates pending at each agency,
sight and Government Reform of the House of
including the amount of time that has elapsed
Representatives, the Committee on the Judici-
since each request was originally received by
ary of the Senate, and the President a report on
the agency;
(K) data on the 10 active administrative ap- or before March 1 of each calendar year, which
peals with the earliest filing dates pending be- shall include for the prior calendar year—
(i) a listing of the number of cases arising
fore the agency as of September 30 of the pre-
under this section;
ceding year, including the number of business
(ii) a listing of—
days that have elapsed since the requests were
(I) each subsection, and any exemption, if
originally received by the agency;
(L) the number of expedited review requests applicable, involved in each case arising
that are granted and denied, the average and under this section;
median number of days for adjudicating expe- (II) the disposition of each case arising
dited review requests, and the number adju- under this section; and
dicated within the required 10 days; (III) the cost, fees, and penalties assessed
(M) the number of fee waiver requests that under subparagraphs (E), (F), and (G) of sub-
are granted and denied, and the average and section (a)(4); and
median number of days for adjudicating fee (iii) a description of the efforts undertaken
waiver determinations; by the Department of Justice to encourage
(N) the total amount of fees collected by the agency compliance with this section.
agency for processing requests;
(O) the number of full-time staff of the agen- (B) The Attorney General of the United States
cy devoted to processing requests for records shall make—
under this section, and the total amount ex- (i) each report submitted under subpara-
pended by the agency for processing such re- graph (A) available for public inspection in an
quests; electronic format; and
(P) the number of times the agency denied a (ii) the raw statistical data used in each re-
request for records under subsection (c); and port submitted under subparagraph (A) avail-
(Q) the number of records that were made able for public inspection in an electronic for-
available for public inspection in an electronic mat, which shall be made available—
format under subsection (a)(2). (I) without charge, license, or registration
requirement;
(2) Information in each report submitted under
(II) in an aggregated, searchable format;
paragraph (1) shall be expressed in terms of each
and
principal component of the agency and for the
(III) in a format that may be downloaded
agency overall.
(3) Each agency shall make each such report in bulk.
available for public inspection in an electronic (f) For purposes of this section, the term—
format. In addition, each agency shall make the (1) ‘‘agency’’ as defined in section 551(1) of
raw statistical data used in each report avail- this title includes any executive department,
able in a timely manner for public inspection in military department, Government corpora-
an electronic format, which shall be made avail- tion, Government controlled corporation, or
able— other establishment in the executive branch of
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 116
the Government (including the Executive Of- (iii) legislative and regulatory recommenda-
fice of the President), or any independent reg- tions, if any, to improve the administration of
ulatory agency; and this section.
(2) ‘‘record’’ and any other term used in this (B) The Director of the Office of Government
section in reference to information includes— Information Services shall make each report
(A) any information that would be an submitted under subparagraph (A) available for
agency record subject to the requirements of public inspection in an electronic format.
this section when maintained by an agency (C) The Director of the Office of Government
in any format, including an electronic for- Information Services shall not be required to ob-
mat; and tain the prior approval, comment, or review of
(B) any information described under sub- any officer or agency of the United States, in-
paragraph (A) that is maintained for an cluding the Department of Justice, the Archi-
agency by an entity under Government con- vist of the United States, or the Office of Man-
tract, for the purposes of records manage- agement and Budget before submitting to Con-
ment. gress, or any committee or subcommittee there-
of, any reports, recommendations, testimony, or
(g) The head of each agency shall prepare and
comments, if such submissions include a state-
make available for public inspection in an elec-
ment indicating that the views expressed there-
tronic format, reference material or a guide for
in are those of the Director and do not nec-
requesting records or information from the
essarily represent the views of the President.
agency, subject to the exemptions in subsection (5) The Director of the Office of Government
(b), including— Information Services may directly submit addi-
(1) an index of all major information sys- tional information to Congress and the Presi-
tems of the agency; dent as the Director determines to be appro-
(2) a description of major information and priate.
record locator systems maintained by the (6) Not less frequently than annually, the Of-
agency; and fice of Government Information Services shall
(3) a handbook for obtaining various types conduct a meeting that is open to the public on
and categories of public information from the the review and reports by the Office and shall
agency pursuant to chapter 35 of title 44, and allow interested persons to appear and present
under this section. oral or written statements at the meeting.
(h)(1) There is established the Office of Gov- (i) The Government Accountability Office
ernment Information Services within the Na- shall conduct audits of administrative agencies
tional Archives and Records Administration. on the implementation of this section and issue
The head of the Office shall be the Director of reports detailing the results of such audits.
(j)(1) Each agency shall designate a Chief
the Office of Government Information Services.
FOIA Officer who shall be a senior official of
(2) The Office of Government Information
such agency (at the Assistant Secretary or
Services shall—
equivalent level).
(A) review policies and procedures of admin- (2) The Chief FOIA Officer of each agency
istrative agencies under this section; shall, subject to the authority of the head of the
(B) review compliance with this section by agency—
administrative agencies; and (A) have agency-wide responsibility for effi-
(C) identify procedures and methods for im- cient and appropriate compliance with this
proving compliance under this section. section;
(3) The Office of Government Information (B) monitor implementation of this section
Services shall offer mediation services to re- throughout the agency and keep the head of
solve disputes between persons making requests the agency, the chief legal officer of the agen-
under this section and administrative agencies cy, and the Attorney General appropriately in-
as a nonexclusive alternative to litigation and formed of the agency’s performance in imple-
may issue advisory opinions at the discretion of menting this section;
(C) recommend to the head of the agency
the Office or upon request of any party to a dis-
such adjustments to agency practices, poli-
pute.
cies, personnel, and funding as may be nec-
(4)(A) Not less frequently than annually, the
essary to improve its implementation of this
Director of the Office of Government Informa-
section;
tion Services shall submit to the Committee on (D) review and report to the Attorney Gen-
Oversight and Government Reform of the House eral, through the head of the agency, at such
of Representatives, the Committee on the Judi- times and in such formats as the Attorney
ciary of the Senate, and the President— General may direct, on the agency’s perform-
(i) a report on the findings of the informa- ance in implementing this section;
tion reviewed and identified under paragraph (E) facilitate public understanding of the
(2); purposes of the statutory exemptions of this
(ii) a summary of the activities of the Office section by including concise descriptions of
of Government Information Services under the exemptions in both the agency’s handbook
paragraph (3), including— issued under subsection (g), and the agency’s
(I) any advisory opinions issued; and annual report on this section, and by pro-
(II) the number of times each agency en- viding an overview, where appropriate, of cer-
gaged in dispute resolution with the assist- tain general categories of agency records to
ance of the Office of Government Informa- which those exemptions apply;
tion Services or the FOIA Public Liaison; (F) offer training to agency staff regarding
and their responsibilities under this section;
Page 117 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
(G) serve as the primary agency liaison with (C) Not later than 10 business days before a
the Office of Government Information Services meeting of the Council, notice of such meeting
and the Office of Information Policy; and shall be published in the Federal Register.
(H) designate 1 or more FOIA Public Liai- (D) Except as provided in subsection (b), the
sons. records, reports, transcripts, minutes, appen-
(3) The Chief FOIA Officer of each agency shall dices, working papers, drafts, studies, agenda, or
review, not less frequently than annually, all as- other documents that were made available to or
pects of the administration of this section by prepared for or by the Council shall be made
the agency to ensure compliance with the re- publicly available.
(E) Detailed minutes of each meeting of the
quirements of this section, including—
Council shall be kept and shall contain a record
(A) agency regulations;
(B) disclosure of records required under of the persons present, a complete and accurate
paragraphs (2) and (8) of subsection (a); description of matters discussed and conclusions
(C) assessment of fees and determination of reached, and copies of all reports received,
eligibility for fee waivers; issued, or approved by the Council. The minutes
(D) the timely processing of requests for in- shall be redacted as necessary and made publicly
formation under this section; available.
(E) the use of exemptions under subsection (l) FOIA Public Liaisons shall report to the
(b); and agency Chief FOIA Officer and shall serve as su-
(F) dispute resolution services with the as- pervisory officials to whom a requester under
sistance of the Office of Government Informa- this section can raise concerns about the service
tion Services or the FOIA Public Liaison. the requester has received from the FOIA Re-
quester Center, following an initial response
(k)(1) There is established in the executive from the FOIA Requester Center Staff. FOIA
branch the Chief FOIA Officers Council (referred Public Liaisons shall be responsible for assisting
to in this subsection as the ‘‘Council’’). in reducing delays, increasing transparency and
(2) The Council shall be comprised of the fol- understanding of the status of requests, and as-
lowing members: sisting in the resolution of disputes.
(A) The Deputy Director for Management of (m)(1) The Director of the Office of Manage-
the Office of Management and Budget. ment and Budget, in consultation with the At-
(B) The Director of the Office of Information torney General, shall ensure the operation of a
Policy at the Department of Justice. consolidated online request portal that allows a
(C) The Director of the Office of Government
member of the public to submit a request for
Information Services.
records under subsection (a) to any agency from
(D) The Chief FOIA Officer of each agency.
(E) Any other officer or employee of the a single website. The portal may include any ad-
United States as designated by the Co-Chairs. ditional tools the Director of the Office of Man-
agement and Budget finds will improve the im-
(3) The Director of the Office of Information plementation of this section.
Policy at the Department of Justice and the Di- (2) This subsection shall not be construed to
rector of the Office of Government Information alter the power of any other agency to create or
Services shall be the Co-Chairs of the Council. maintain an independent online portal for the
(4) The Administrator of General Services submission of a request for records under this
shall provide administrative and other support section. The Director of the Office of Manage-
for the Council. ment and Budget shall establish standards for
(5)(A) The duties of the Council shall include interoperability between the portal required
the following: under paragraph (1) and other request processing
(i) Develop recommendations for increasing software used by agencies subject to this sec-
compliance and efficiency under this section. tion.
(ii) Disseminate information about agency
experiences, ideas, best practices, and innova- (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L.
tive approaches related to this section. 90–23, § 1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502,
(iii) Identify, develop, and coordinate initia- §§ 1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L.
tives to increase transparency and compliance 94–409, § 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L.
with this section. 95–454, title IX, § 906(a)(10), Oct. 13, 1978, 92 Stat.
(iv) Promote the development and use of 1225; Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984,
common performance measures for agency 98 Stat. 3357; Pub. L. 99–570, title I, §§ 1802, 1803,
compliance with this section. Oct. 27, 1986, 100 Stat. 3207–48, 3207–49; Pub. L.
104–231, §§ 3–11, Oct. 2, 1996, 110 Stat. 3049–3054;
(B) In performing the duties described in sub- Pub. L. 107–306, title III, § 312, Nov. 27, 2002, 116
paragraph (A), the Council shall consult on a Stat. 2390; Pub. L. 110–175, §§ 3, 4(a), 5, 6(a)(1),
regular basis with members of the public who (b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat.
make requests under this section. 2525–2530; Pub. L. 111–83, title V, § 564(b), Oct. 28,
(6)(A) The Council shall meet regularly and 2009, 123 Stat. 2184; Pub. L. 114–185, § 2, June 30,
such meetings shall be open to the public unless 2016, 130 Stat. 538.)
the Council determines to close the meeting for
reasons of national security or to discuss infor- HISTORICAL AND REVISION NOTES
mation exempt under subsection (b). 1966 ACT
(B) Not less frequently than annually, the
Revised Statutes and
Council shall hold a meeting that shall be open Derivation U.S. Code
Statutes at Large
to the public and permit interested persons to
appear and present oral and written statements .................. 5 U.S.C. 1002. June 11, 1946, ch. 324, § 3, 60
Stat. 238.
to the Council.
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 118
In subsection (b)(3), the words ‘‘formulated and’’ are Subsec. (a)(2)(D). Pub. L. 114–185, § 2(1)(A)(ii), added
omitted as surplusage. In the last sentence of sub- subpar. (D) and struck out former subpar. (D) which
section (b), the words ‘‘in any manner’’ are omitted as read as follows: ‘‘copies of all records, regardless of
surplusage since the prohibition is all inclusive. form or format, which have been released to any person
Standard changes are made to conform with the defi- under paragraph (3) and which, because of the nature of
nitions applicable and the style of this title as outlined their subject matter, the agency determines have be-
in the preface to the report. come or are likely to become the subject of subsequent
requests for substantially the same records; and’’.
1967 ACT Subsec. (a)(4)(A)(viii). Pub. L. 114–185, § 2(1)(B), added
Section 1 [of Pub. L. 90–23] amends section 552 of title cl. (viii) and struck out former cl. (viii) which read as
5, United States Code, to reflect Public Law 89–487. follows: ‘‘An agency shall not assess search fees (or in
In subsection (a)(1)(A), the words ‘‘employees (and in the case of a requester described under clause (ii)(II),
the case of a uniformed service, the member)’’ are sub- duplication fees) under this subparagraph if the agency
stituted for ‘‘officer’’ to retain the coverage of Public fails to comply with any time limit under paragraph
Law 89–487 and to conform to the definitions in 5 U.S.C. (6), if no unusual or exceptional circumstances (as
2101, 2104, and 2105. those terms are defined for purposes of paragraphs
In the last sentence of subsection (a)(2), the words ‘‘A (6)(B) and (C), respectively) apply to the processing of
final order * * * may be relied on * * * only if’’ are sub- the request.’’
stituted for ‘‘No final order * * * may be relied upon Subsec. (a)(6)(A)(i). Pub. L. 114–185, § 2(1)(C)(i), sub-
* * * unless’’; and the words ‘‘a party other than an stituted ‘‘making such request of—’’ for ‘‘making such
agency’’ and ‘‘the party’’ are substituted for ‘‘a private request of such determination and the reasons therefor,
party’’ and ‘‘the private party’’, respectively, on au- and of the right of such person to appeal to the head of
thority of the definition of ‘‘private party’’ in 5 App. the agency any adverse determination; and’’ and added
U.S.C. 1002(g). subcls. (I) to (III).
In subsection (a)(3), the words ‘‘the responsible em- Subsec. (a)(6)(B)(ii). Pub. L. 114–185, § 2(1)(C)(ii), sub-
ployee, and in the case of a uniformed service, the re- stituted ‘‘the agency, and notify the requester of the
sponsible member’’ are substituted for ‘‘the responsible right of the requester to seek dispute resolution serv-
officers’’ to retain the coverage of Public Law 89–487 ices from the Office of Government Information Serv-
and to conform to the definitions in 5 U.S.C. 2101, 2104, ices.’’ for ‘‘the agency.’’
and 2105. Subsec. (a)(8). Pub. L. 114–185, § 2(1)(D), added par. (8).
In subsection (a)(4), the words ‘‘shall maintain and Subsec. (b)(5). Pub. L. 114–185, § 2(2), amended par. (5)
make available for public inspection a record’’ are sub- generally. Prior to amendment, par. (5) read as follows:
stituted for ‘‘shall keep a record * * * and that record ‘‘inter-agency or intra-agency memorandums or letters
shall be available for public inspection’’. which would not be available by law to a party other
In subsection (b)(5) and (7), the words ‘‘a party other than an agency in litigation with the agency;’’.
than an agency’’ are substituted for ‘‘a private party’’ Subsec. (e)(1). Pub. L. 114–185, § 2(3)(A)(i), in introduc-
on authority of the definition of ‘‘private party’’ in 5 tory provisions, inserted ‘‘and to the Director of the Of-
App. U.S.C. 1002(g). fice of Government Information Services’’ after
In subsection (c), the words ‘‘This section does not ‘‘United States’’.
authorize’’ and ‘‘This section is not authority’’ are sub- Subsec. (e)(1)(P), (Q). Pub. L. 114–185, § 2(3)(A)(ii)–(iv),
stituted for ‘‘Nothing in this section authorizes’’ and added subpars. (P) and (Q).
Subsec. (e)(3). Pub. L. 114–185, § 2(3)(B), added par. (3)
‘‘nor shall this section be authority’’, respectively.
and struck out former par. (3) which read as follows:
5 App. U.S.C. 1002(g), defining ‘‘private party’’ to
‘‘Each agency shall make each such report available to
mean a party other than an agency, is omitted since
the public including by computer telecommunications,
the words ‘‘party other than an agency’’ are sub-
or if computer telecommunications means have not
stituted for the words ‘‘private party’’ wherever they
been established by the agency, by other electronic
appear in revised 5 U.S.C. 552.
means. In addition, each agency shall make the raw
5 App. U.S.C. 1002(h), prescribing the effective date, is
statistical data used in its reports available electroni-
omitted as unnecessary. That effective date is pre-
cally to the public upon request.’’
scribed by section 4 of this bill.
Subsec. (e)(4). Pub. L. 114–185, § 2(3)(C), substituted
‘‘Oversight and Government Reform’’ for ‘‘Government
Editorial Notes Reform and Oversight’’ and ‘‘March’’ for ‘‘April’’ and
REFERENCES IN TEXT inserted ‘‘Homeland Security and’’ before ‘‘Govern-
mental Affairs’’.
The National Security Act of 1947, referred to in sub- Subsec. (e)(6). Pub. L. 114–185, § 2(3)(D), added par. (6)
sec. (a)(3)(E), is act July 26, 1947, ch. 343, 61 Stat. 495, and struck out former par. (6) which read as follows:
which was formerly classified principally to chapter 15 ‘‘The Attorney General of the United States shall sub-
(§ 401 et seq.) of Title 50, War and National Defense, mit an annual report on or before April 1 of each cal-
prior to editorial reclassification in chapter 44 (§ 3001 et endar year which shall include for the prior calendar
seq.) of Title 50. Section 3 of the Act is now classified year a listing of the number of cases arising under this
to section 3003 of Title 50. For complete classification section, the exemption involved in each case, the dis-
of this Act to the Code, see Tables. position of such case, and the cost, fees, and penalties
The date of enactment of the OPEN FOIA Act of 2009, assessed under subparagraphs (E), (F), and (G) of sub-
referred to in subsec. (b)(3)(B), is the date of enactment section (a)(4). Such report shall also include a descrip-
of Pub. L. 111–83, which was approved Oct. 28, 2009. tion of the efforts undertaken by the Department of
CODIFICATION Justice to encourage agency compliance with this sec-
tion.’’
Section 552 of former Title 5, Executive Departments Subsec. (g). Pub. L. 114–185, § 2(4), in introductory pro-
and Government Officers and Employees, was trans- visions, substituted ‘‘available for public inspection in
ferred to section 2243 of Title 7, Agriculture. an electronic format’’ for ‘‘publicly available upon re-
AMENDMENTS quest’’.
Subsec. (h)(1). Pub. L. 114–185, § 2(5)(A), inserted at
2016—Subsec. (a)(2). Pub. L. 114–185, § 2(1)(A)(i), in in- end ‘‘The head of the Office shall be the Director of the
troductory provisions, substituted ‘‘for public inspec- Office of Government Information Services.’’
tion in an electronic format’’ for ‘‘for public inspection Subsec. (h)(2)(C). Pub. L. 114–185, § 2(5)(B), added sub-
and copying’’. par. (C) and struck out former subpar. (C) which read as
Pub. L. 114–185, § 2(1)(A)(iii), in concluding provisions, follows: ‘‘recommend policy changes to Congress and
substituted ‘‘public inspection in an electronic format the President to improve the administration of this
current’’ for ‘‘public inspection and copying current’’. section.’’
Page 119 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
Subsec. (h)(3). Pub. L. 114–185, § 2(5)(C), added par. (3) Subsec. (a)(3)(E). Pub. L. 107–306, § 312(2), added sub-
and struck out former par. (3) which read as follows: par. (E).
‘‘The Office of Government Information Services shall 1996—Subsec. (a)(2). Pub. L. 104–231, § 4(4), (5), in first
offer mediation services to resolve disputes between sentence struck out ‘‘and’’ at end of subpar. (B) and in-
persons making requests under this section and admin- serted subpars. (D) and (E).
istrative agencies as a non-exclusive alternative to liti- Pub. L. 104–231, § 4(7), inserted after first sentence
gation and, at the discretion of the Office, may issue ‘‘For records created on or after November 1, 1996, with-
advisory opinions if mediation has not resolved the dis- in one year after such date, each agency shall make
pute.’’ such records available, including by computer tele-
Subsec. (h)(4) to (6). Pub. L. 114–185, § 2(5)(D), added communications or, if computer telecommunications
pars. (4) to (6). means have not been established by the agency, by
Subsec. (j). Pub. L. 114–185, § 2(6), added subsec. (j) and other electronic means.’’
struck out former subsec. (j) which read as follows: Pub. L. 104–231, § 4(1), in second sentence substituted
‘‘Each agency shall designate a Chief FOIA Officer who ‘‘staff manual, instruction, or copies of records referred
shall be a senior official of such agency (at the Assist- to in subparagraph (D)’’ for ‘‘or staff manual or instruc-
ant Secretary or equivalent level).’’ tion’’.
Subsec. (k). Pub. L. 114–185, § 2(6), added subsec. (k) Pub. L. 104–231, § 4(2), inserted before period at end of
and struck out former subsec. (k) which related to au- third sentence ‘‘, and the extent of such deletion shall
thority and responsibilities of the Chief FOIA Officer. be indicated on the portion of the record which is made
Subsec. (m). Pub. L. 114–185, § 2(7), added subsec. (m). available or published, unless including that indication
2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and would harm an interest protected by the exemption in
struck out former par. (3) which read as follows: ‘‘spe- subsection (b) under which the deletion is made’’.
cifically exempted from disclosure by statute (other Pub. L. 104–231, § 4(3), inserted after third sentence ‘‘If
than section 552b of this title), provided that such stat- technically feasible, the extent of the deletion shall be
ute (A) requires that the matters be withheld from the indicated at the place in the record where the deletion
public in such a manner as to leave no discretion on the was made.’’
issue, or (B) establishes particular criteria for with- Pub. L. 104–231, § 4(6), which directed the insertion of
holding or refers to particular types of matters to be the following new sentence after the fifth sentence
withheld;’’. ‘‘Each agency shall make the index referred to in sub-
2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, § 3, inserted paragraph (E) available by computer telecommuni-
concluding provisions. cations by December 31, 1999.’’, was executed by making
Subsec. (a)(4)(A)(viii). Pub. L. 110–175, § 6(b)(1)(A), the insertion after the sixth sentence, to reflect the
added cl. (viii). probable intent of Congress and the addition of a new
Subsec. (a)(4)(E). Pub. L. 110–175, § 4(a), designated ex-
sentence by section 4(3) of Pub. L. 104–231.
isting provisions as cl. (i) and added cl. (ii). Subsec. (a)(3). Pub. L. 104–231, § 5, inserted subpar. (A)
Subsec. (a)(4)(F). Pub. L. 110–175, § 5, designated exist-
designation after ‘‘(3)’’, redesignated subpars. (A) and
ing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110–175, § 6(a)(1), inserted (B) as cls. (i) and (ii), respectively, and added subpars.
concluding provisions. (B) to (D).
Subsec. (a)(6)(B)(ii). Pub. L. 110–175, § 6(b)(1)(B), in- Subsec. (a)(4)(B). Pub. L. 104–231, § 6, inserted at end
serted after the first sentence ‘‘To aid the requester, ‘‘In addition to any other matters to which a court ac-
each agency shall make available its FOIA Public Liai- cords substantial weight, a court shall accord substan-
son, who shall assist in the resolution of any disputes tial weight to an affidavit of an agency concerning the
between the requester and the agency.’’ agency’s determination as to technical feasibility
Subsec. (a)(7). Pub. L. 110–175, § 7(a), added par. (7). under paragraph (2)(C) and subsection (b) and reproduc-
Subsec. (b). Pub. L. 110–175, § 12, in concluding provi- ibility under paragraph (3)(B).’’
sions, inserted ‘‘, and the exemption under which the Subsec. (a)(6)(A)(i). Pub. L. 104–231, § 8(b), substituted
deletion is made,’’ after ‘‘The amount of information ‘‘20 days’’ for ‘‘ten days’’.
deleted’’ in second sentence and after ‘‘the amount of Subsec. (a)(6)(B). Pub. L. 104–231, § 7(b), amended sub-
the information deleted’’ in third sentence. par. (B) generally. Prior to amendment, subpar. (B)
Subsec. (e)(1)(B)(ii). Pub. L. 110–175, § 8(a)(1), inserted read as follows: ‘‘In unusual circumstances as specified
‘‘the number of occasions on which each statute was re- in this subparagraph, the time limits prescribed in ei-
lied upon,’’ after ‘‘subsection (b)(3),’’. ther clause (i) or clause (ii) of subparagraph (A) may be
Subsec. (e)(1)(C). Pub. L. 110–175, § 8(a)(2), inserted extended by written notice to the person making such
‘‘and average’’ after ‘‘median’’. request setting forth the reasons for such extension and
Subsec. (e)(1)(E). Pub. L. 110–175, § 8(a)(3), inserted be- the date on which a determination is expected to be
fore semicolon ‘‘, based on the date on which the re- dispatched. No such notice shall specify a date that
quests were received by the agency’’. would result in an extension for more than ten working
Subsec. (e)(1)(F) to (O). Pub. L. 110–175, § 8(a)(4), (5), days. As used in this subparagraph, ‘unusual cir-
added subpars. (F) to (M) and redesignated former sub- cumstances’ means, but only to the extent reasonably
pars. (F) and (G) as (N) and (O), respectively. necessary to the proper processing of the particular re-
Subsec. (e)(2). Pub. L. 110–175, § 8(b)(2), added par. (2). quest—
Former par. (2) redesignated (3). ‘‘(i) the need to search for and collect the requested
Subsec. (e)(3). Pub. L. 110–175, § 8(b)(1), (c), redesig- records from field facilities or other establishments
nated par. (2) as (3) and inserted at end ‘‘In addition, that are separate from the office processing the re-
each agency shall make the raw statistical data used in quest;
its reports available electronically to the public upon ‘‘(ii) the need to search for, collect, and appro-
request.’’ Former par. (3) redesignated (4). priately examine a voluminous amount of separate
Subsec. (e)(4) to (6). Pub. L. 110–175, § 8(b)(1), redesig- and distinct records which are demanded in a single
nated pars. (3) to (5) as (4) to (6), respectively. request; or
Subsec. (f)(2). Pub. L. 110–175, § 9, added par. (2) and ‘‘(iii) the need for consultation, which shall be con-
struck out former par. (2) which read as follows: ducted with all practicable speed, with another agen-
‘‘ ‘record’ and any other term used in this section in cy having a substantial interest in the determination
reference to information includes any information that of the request or among two or more components of
would be an agency record subject to the requirements the agency having substantial subject-matter inter-
of this section when maintained by an agency in any est therein.’’
format, including an electronic format.’’ Subsec. (a)(6)(C). Pub. L. 104–231, § 7(c), designated ex-
Subsecs. (h) to (l). Pub. L. 110–175, § 10(a), added sub- isting provisions as cl. (i) and added cls. (ii) and (iii).
secs. (h) to (l). Subsec. (a)(6)(D). Pub. L. 104–231, § 7(a), added subpar.
2002—Subsec. (a)(3)(A). Pub. L. 107–306, § 312(1), in- (D).
serted ‘‘and except as provided in subparagraph (E),’’ Subsec. (a)(6)(E), (F). Pub. L. 104–231, § 8(a), (c), added
after ‘‘of this subsection,’’. subpars. (E) and (F).
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 120
Subsec. (b). Pub. L. 104–231, § 9, inserted at end of clos- Subsec. (a)(4), (5). Pub. L. 93–502, § 1(b)(2), added par.
ing provisions ‘‘The amount of information deleted (4) and redesignated former par. (4) as (5).
shall be indicated on the released portion of the record, Subsec. (a)(6). Pub. L. 93–502, § 1(c), added par. (6).
unless including that indication would harm an inter- Subsec. (b)(1). Pub. L. 93–502, § 2(a), designated exist-
est protected by the exemption in this subsection under ing provisions as cl. (A), substituted ‘‘authorized under
which the deletion is made. If technically feasible, the criteria established by an’’ for ‘‘required by’’, and
amount of the information deleted shall be indicated at added cl. (B).
the place in the record where such deletion is made.’’ Subsec. (b)(7). Pub. L. 93–502, § 2(b), substituted provi-
Subsec. (e). Pub. L. 104–231, § 10, amended subsec. (e) sions relating to exemption for investigatory records
generally, revising and restating provisions relating to compiled for law enforcement purposes, for provisions
reports to Congress. relating to exemption for investigatory files compiled
Subsec. (f). Pub. L. 104–231, § 3, amended subsec. (f) for law enforcement purposes.
generally. Prior to amendment, subsec. (f) read as fol- Subsec. (b), foll. par. (9). Pub. L. 93–502, § 2(c), inserted
lows: ‘‘For purposes of this section, the term ‘agency’ provision relating to availability of segregable portion
as defined in section 551(1) of this title includes any ex- of records.
ecutive department, military department, Government Subsecs. (d), (e). Pub. L. 93–502, § 3, added subsecs. (d)
corporation, Government controlled corporation, or and (e).
other establishment in the executive branch of the 1967—Subsec. (a). Pub. L. 90–23 substituted introduc-
Government (including the Executive Office of the tory statement requiring every agency to make avail-
President), or any independent regulatory agency.’’ able to the public certain information for former intro-
Subsec. (g). Pub. L. 104–231, § 11, added subsec. (g). ductory provision excepting from disclosure (1) any
1986—Subsec. (a)(4)(A). Pub. L. 99–570, § 1803, amended function of the United States requiring secrecy in the
subpar. (A) generally. Prior to amendment, subpar. (A) public interest or (2) any matter relating to internal
read as follows: ‘‘In order to carry out the provisions of management of an agency, covered in subsec. (b)(1) and
this section, each agency shall promulgate regulations, (2) of this section.
pursuant to notice and receipt of public comment, Subsec. (a)(1). Pub. L. 90–23 incorporated provisions
specifying a uniform schedule of fees applicable to all of: former subsec. (b)(1) in (A), inserting requirement of
constituent units of such agency. Such fees shall be publication of names of officers as sources of informa-
limited to reasonable standard charges for document tion and provision for public to obtain decisions, and
search and duplication and provide for recovery of only striking out publication requirement for delegations by
the direct costs of such search and duplication. Docu- the agency of final authority; former subsec. (b)(2), in-
ments shall be furnished without charge or at a reduced troductory part, in (B); former subsec. (b)(2), con-
charge where the agency determines that waiver or re- cluding part, in (C), inserting publication requirement
duction of the fee is in the public interest because fur- for rules of procedure and descriptions of forms avail-
nishing the information can be considered as primarily able or the places at which forms may be obtained;
benefiting the general public.’’ former subsec. (b)(3), introductory part, in (D), insert-
Subsec. (b)(7). Pub. L. 99–570, § 1802(a), amended par. ing requirement of general applicability of substantive
(7) generally. Prior to amendment, par. (7) read as fol- rules and interpretations, added clause (E), substituted
lows: ‘‘investigatory records compiled for law enforce- exemption of any person from failure to resort to any
ment purposes, but only to the extent that the produc- matter or from being adversely affected by any matter
tion of such records would (A) interfere with enforce-
required to be published in the Federal Register but not
ment proceedings, (B) deprive a person of a right to a
so published for former subsec. (b)(3), concluding part,
fair trial or an impartial adjudication, (C) constitute
excepting from publication rules addressed to and
an unwarranted invasion of personal privacy, (D) dis-
served upon named persons in accordance with laws and
close the identity of a confidential source and, in the
final sentence reading ‘‘A person may not be required
case of a record compiled by a criminal law enforce-
to resort to organization or procedure not so pub-
ment authority in the course of a criminal investiga-
lished’’ and inserted provision deeming matter, which
tion, or by an agency conducting a lawful national se-
is reasonably available, as published in the Federal
curity intelligence investigation, confidential informa-
Register when such matter is incorporated by reference
tion furnished only by the confidential source, (E) dis-
in the Federal Register with the approval of its Direc-
close investigative techniques and procedures, or (F)
tor.
endanger the life or physical safety of law enforcement
Subsec. (a)(2). Pub. L. 90–23 incorporated provisions of
personnel;’’.
Subsecs. (c) to (f). Pub. L. 99–570, § 1802(b), added sub- former subsec. (c), provided for public copying of
sec. (c) and redesignated former subsecs. (c) to (e) as (d) records, struck out requirement of agency publication
to (f), respectively. of final opinions or orders and authority for secrecy
1984—Subsec. (a)(4)(D). Pub. L. 98–620 repealed subpar. and withholding of opinions and orders required for
(D) which provided for precedence on the docket and good cause to be held confidential and not cited as
expeditious disposition of district court proceedings au- precedents, latter provision now superseded by subsec.
thorized by subsec. (a). (b) of this section, designated existing subsec. (c) as
1978—Subsec. (a)(4)(F). Pub. L. 95–454 substituted ref- clause (A), including provision for availability of con-
erences to the Special Counsel for references to the curring and dissenting opinions, inserted provisions for
Civil Service Commission wherever appearing and ref- availability of policy statements and interpretations in
erence to his findings for reference to its findings. clause (B) and staff manuals and instructions in clause
1976—Subsec. (b)(3). Pub. L. 94–409 inserted provision (C), deletion of personal identifications from records to
excluding section 552b of this title from applicability of protect personal privacy with written justification
exemption from disclosure and provision setting forth therefor, and provision for indexing and prohibition of
conditions for statute specifically exempting disclo- use of records not indexed against any private party
sure. without actual and timely notice of the terms thereof.
1974—Subsec. (a)(2). Pub. L. 93–502, § 1(a), substituted Subsec. (a)(3). Pub. L. 90–23 incorporated provisions of
provisions relating to maintenance and availability of former subsec. (d) and substituted provisions requiring
current indexes, for provisions relating to maintenance identifiable agency records to be made available to any
and availability of a current index, and inserted provi- person upon request and compliance with rules as to
sions relating to publication and distribution of copies time, place, and procedure for inspection, and payment
of indexes or supplements thereto. of fees and provisions for Federal district court pro-
Subsec. (a)(3). Pub. L. 93–502, § 1(b)(1), substituted pro- ceedings de novo for enforcement by contempt of non-
visions requiring requests to reasonably describe compliance with court’s orders with the burden on the
records for provisions requiring requests, for identifi- agency and docket precedence for such proceedings for
able records, and struck out provisions setting forth former provisions requiring matters of official record
procedures to enjoin agencies from withholding the re- to be made available to persons properly and directly
quested records and ordering their production. concerned except information held confidential for
Page 121 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
good cause shown, the latter provision superseded by ‘‘(a) The amendments made by section 1802 [amending
subsec. (b) of this section. this section] shall be effective on the date of enactment
Subsec. (a)(4). Pub. L. 90–23 added par. (4). of this Act [Oct. 27, 1986], and shall apply with respect
Subsec. (b). Pub. L. 90–23 added subsec. (b) which su- to any requests for records, whether or not the request
perseded provisions excepting from disclosure any func- was made prior to such date, and shall apply to any
tion of the United States requiring secrecy in the pub- civil action pending on such date.
lic interest or any matter relating to internal manage- ‘‘(b)(1) The amendments made by section 1803 [amend-
ment of an agency, formerly contained in former sub- ing this section] shall be effective 180 days after the
sec. (a), final opinions or orders required for good cause date of enactment of this Act [Oct. 27, 1986], except that
to be held confidential and not cited as precedents, for- regulations to implement such amendments shall be
merly contained in subsec. (c), and information held promulgated by such 180th day.
confidential for good cause found, contained in former ‘‘(2) The amendments made by section 1803 [amending
subsec. (d) of this section. this section] shall apply with respect to any requests
Subsec. (c). Pub. L. 90–23 added subsec. (c). for records, whether or not the request was made prior
to such date, and shall apply to any civil action pend-
Statutory Notes and Related Subsidiaries ing on such date, except that review charges applicable
CHANGE OF NAME to records requested for commercial use shall not be
applied by an agency to requests made before the effec-
Committee on Oversight and Government Reform of tive date specified in paragraph (1) of this subsection or
House of Representatives changed to Committee on before the agency has finally issued its regulations.’’
Oversight and Reform of House of Representatives by
House Resolution No. 6, One Hundred Sixteenth Con- EFFECTIVE DATE OF 1984 AMENDMENT
gress, Jan. 9, 2019. Committee on Oversight and Reform Amendment by Pub. L. 98–620 not applicable to cases
of House of Representatives changed to Committee on pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620,
Oversight and Accountability of House of Representa- set out as an Effective Date note under section 1657 of
tives by House Resolution No. 5, One Hundred Eight- Title 28, Judiciary and Judicial Procedure.
eenth Congress, Jan. 9, 2023.
EFFECTIVE DATE OF 1978 AMENDMENT
EFFECTIVE DATE OF 2016 AMENDMENT
Amendment by Pub. L. 95–454 effective 90 days after
Pub. L. 114–185, § 6, June 30, 2016, 130 Stat. 544, pro-
Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as
vided that: ‘‘This Act [amending this section and sec-
a note under section 1101 of this title.
tion 3102 of Title 44, Public Printing and Documents,
and enacting provisions set out as notes under this sec- EFFECTIVE DATE OF 1976 AMENDMENT
tion and section 101 of this title], and the amendments
made by this Act, shall take effect on the date of enact- Amendment by Pub. L. 94–409 effective 180 days after
ment of this Act [June 30, 2016] and shall apply to any Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as
request for records under section 552 of title 5, United an Effective Date note under section 552b of this title.
States Code, made after the date of enactment of this EFFECTIVE DATE OF 1974 AMENDMENT
Act.’’
Pub. L. 93–502, § 4, Nov. 21, 1974, 88 Stat. 1564, provided
EFFECTIVE DATE OF 2007 AMENDMENT that: ‘‘The amendments made by this Act [amending
Pub. L. 110–175, § 6(a)(2), Dec. 31, 2007, 121 Stat. 2526, this section] shall take effect on the ninetieth day be-
provided that: ‘‘The amendment made by this sub- ginning after the date of enactment of this Act [Nov.
section [amending this section] shall take effect 1 year 21, 1974].’’
after the date of enactment of this Act [Dec. 31, 2007].’’
Pub. L. 110–175, § 6(b)(2), Dec. 31, 2007, 121 Stat. 2526, EFFECTIVE DATE OF 1967 AMENDMENT
provided that: ‘‘The amendment made by this sub- Pub. L. 90–23, § 4, June 5, 1967, 81 Stat. 56, provided
section [amending this section] shall take effect 1 year that: ‘‘This Act [amending this section] shall be effec-
after the date of enactment of this Act [Dec. 31, 2007] tive July 4, 1967, or on the date of enactment [June 5,
and apply to requests for information under section 552 1967], whichever is later.’’
of title 5, United States Code, filed on or after that ef-
fective date.’’ SHORT TITLE OF 1996 AMENDMENT
Pub. L. 110–175, § 7(b), Dec. 31, 2007, 121 Stat. 2527, pro- Pub. L. 104–231, § 1, Oct. 2, 1996, 110 Stat. 3048, provided
vided that: ‘‘The amendment made by this section that: ‘‘This Act [amending this section and enacting
[amending this section] shall take effect 1 year after provisions set out as notes under this section] may be
the date of enactment of this Act [Dec. 31, 2007] and cited as the ‘Electronic Freedom of Information Act
apply to requests for information under section 552 of Amendments of 1996’.’’
title 5, United States Code, filed on or after that effec-
tive date.’’ SHORT TITLE OF 1986 AMENDMENT
Pub. L. 110–175, § 10(b), Dec. 31, 2007, 121 Stat. 2530, pro-
Pub. L. 99–570, title I, § 1801, Oct. 27, 1986, 100 Stat.
vided that: ‘‘The amendments made by this section
3207–48, provided that: ‘‘This subtitle [subtitle N
[amending this section] shall take effect on the date of
(§§ 1801–1804) of title I of Pub. L. 99–570, amending this
enactment of this Act [Dec. 31, 2007].’’
section and enacting provisions set out as a note under
EFFECTIVE DATE OF 1996 AMENDMENT this section] may be cited as the ‘Freedom of Informa-
tion Reform Act of 1986’.’’
Pub. L. 104–231, § 12, Oct. 2, 1996, 110 Stat. 3054, pro-
vided that: SHORT TITLE
‘‘(a) IN GENERAL.—Except as provided in subsection
(b), this Act [amending this section and enacting provi- This section is popularly known as the ‘‘Freedom of
sions set out as notes below] shall take effect 180 days Information Act’’.
after the date of the enactment of this Act [Oct. 2, REVIEW AND ISSUANCE OF REGULATIONS
1996].
‘‘(b) PROVISIONS EFFECTIVE ON ENACTMENT [sic].—Sec- Pub. L. 114–185, § 3, June 30, 2016, 130 Stat. 544, pro-
tions 7 and 8 [amending this section] shall take effect vided that:
one year after the date of the enactment of this Act ‘‘(a) IN GENERAL.—Not later than 180 days after the
[Oct. 2, 1996].’’ date of enactment of this Act [June 30, 2016], the head
of each agency (as defined in section 551 of title 5,
EFFECTIVE DATE OF 1986 AMENDMENT United States Code) shall review the regulations of
Pub. L. 99–570, title I, § 1804, Oct. 27, 1986, 100 Stat. such agency and shall issue regulations on procedures
3207–50, provided that: for the disclosure of records under section 552 of title 5,
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 122
United States Code, in accordance with the amend- ‘‘(f) EFFECTIVE DATE.—This section shall take effect
ments made by section 2 [amending this section]. on the date of enactment of this Act [Oct. 28, 2009] and
‘‘(b) REQUIREMENTS.—The regulations of each agency apply to any protected document.’’
shall include procedures for engaging in dispute resolu-
tion through the FOIA Public Liaison and the Office of FINDINGS
Government Information Services.’’ Pub. L. 110–175, § 2, Dec. 31, 2007, 121 Stat. 2524, pro-
vided that: ‘‘Congress finds that—
TREATMENT OF INFORMATION IN CATCH A SERIAL
‘‘(1) the Freedom of Information Act [probably
OFFENDER PROGRAM FOR CERTAIN PURPOSES
means Pub. L. 89–487 which amended section 1002 of
Pub. L. 116–92, div. A, title V, § 550, Dec. 20, 2019, 133 former Title 5, Executive Departments and Govern-
Stat. 1379, provided that: ment Officers and Employees, see Historical and Re-
‘‘(a) TREATMENT UNDER FOIA.—Victim disclosures vision notes above] was signed into law on July 4,
under the Catch a Serial Offender Program shall be 1966, because the American people believe that—
withheld from public disclosure under paragraph (b)(3) ‘‘(A) our constitutional democracy, our system of
of section 552 of title 5, United States Code (commonly self-government, and our commitment to popular
referred to as the ‘Freedom of Information Act’). sovereignty depends upon the consent of the gov-
‘‘(b) PRESERVATION OF RESTRICTED REPORT.—The erned;
transmittal or receipt in connection with the Catch a ‘‘(B) such consent is not meaningful unless it is
Serial Offender Program of a report on a sexual assault informed consent; and
that is treated as a restricted report shall not operate ‘‘(C) as Justice Black noted in his concurring
to terminate its treatment or status as a restricted re- opinion in Barr v. Matteo (360 U.S. 564 (1959)), ‘The
port.’’ effective functioning of a free government like ours
depends largely on the force of an informed public
PROTECTED NATIONAL SECURITY DOCUMENTS opinion. This calls for the widest possible under-
Pub. L. 111–83, title V, § 565, Oct. 28, 2009, 123 Stat. standing of the quality of government service ren-
2184, provided that: dered by all elective or appointed public officials or
‘‘(a) SHORT TITLE.—This section may be cited as the employees.’;
‘Protected National Security Documents Act of 2009’. ‘‘(2) the American people firmly believe that our
‘‘(b) Notwithstanding any other provision of the law system of government must itself be governed by a
to the contrary, no protected document, as defined in presumption of openness;
subsection (c), shall be subject to disclosure under sec- ‘‘(3) the Freedom of Information Act establishes a
tion 552 of title 5, United States Code[,] or any pro- ‘strong presumption in favor of disclosure’ as noted
ceeding under that section. by the United States Supreme Court in United States
‘‘(c) DEFINITIONS.—In this section: Department of State v. Ray (502 U.S. 164 (1991)), a pre-
‘‘(1) PROTECTED DOCUMENT.—The term ‘protected sumption that applies to all agencies governed by
document’ means any record— that Act;
‘‘(A) for which the Secretary of Defense has ‘‘(4) ‘disclosure, not secrecy, is the dominant objec-
issued a certification, as described in subsection tive of the Act,’ as noted by the United States Su-
(d), stating that disclosure of that record would en- preme Court in Department of Air Force v. Rose (425
danger citizens of the United States, members of U.S. 352 (1976));
the United States Armed Forces, or employees of ‘‘(5) in practice, the Freedom of Information Act
the United States Government deployed outside the has not always lived up to the ideals of that Act; and
United States; and ‘‘(6) Congress should regularly review section 552 of
‘‘(B) that is a photograph that— title 5, United States Code (commonly referred to as
‘‘(i) was taken during the period beginning on the Freedom of Information Act), in order to deter-
September 11, 2001, through January 22, 2009; and mine whether further changes and improvements are
‘‘(ii) relates to the treatment of individuals en- necessary to ensure that the Government remains
gaged, captured, or detained after September 11, open and accessible to the American people and is al-
2001, by the Armed Forces of the United States in ways based not upon the ‘need to know’ but upon the
operations outside of the United States. fundamental ‘right to know’.’’
‘‘(2) PHOTOGRAPH.—The term ‘photograph’ encom- LIMITATION ON AMOUNTS OBLIGATED OR EXPENDED
passes all photographic images, whether originals or FROM CLAIMS AND JUDGMENT FUND
copies, including still photographs, negatives, digital
images, films, video tapes, and motion pictures. Pub. L. 110–175, § 4(b), Dec. 31, 2007, 121 Stat. 2525, pro-
‘‘(d) CERTIFICATION.— vided that: ‘‘Notwithstanding section 1304 of title 31,
‘‘(1) IN GENERAL.—For any photograph described United States Code, no amounts may be obligated or
under subsection (c)(1), the Secretary of Defense shall expended from the Claims and Judgment Fund of the
issue a certification if the Secretary of Defense deter- United States Treasury to pay the costs resulting from
mines that disclosure of that photograph would en- fees assessed under section 552(a)(4)(E) of title 5, United
danger citizens of the United States, members of the States Code. Any such amounts shall be paid only from
United States Armed Forces, or employees of the funds annually appropriated for any authorized purpose
United States Government deployed outside the for the Federal agency against which a claim or judg-
United States. ment has been rendered.’’
‘‘(2) CERTIFICATION EXPIRATION.—A certification and
NONDISCLOSURE OF CERTAIN PRODUCTS OF COMMERCIAL
a renewal of a certification issued pursuant to sub-
SATELLITE OPERATIONS
section (d)(3) shall expire 3 years after the date on
which the certification or renewal, [sic] is issued by Pub. L. 108–375, div. A, title IX, § 914, Oct. 28, 2004, 118
the Secretary of Defense. Stat. 2029, provided that:
‘‘(3) CERTIFICATION RENEWAL.—The Secretary of De- ‘‘(a) MANDATORY DISCLOSURE REQUIREMENTS INAPPLI-
fense may issue— CABLE.—The requirements to make information avail-
‘‘(A) a renewal of a certification at any time; and able under section 552 of title 5, United States Code,
‘‘(B) more than 1 renewal of a certification. shall not apply to land remote sensing information.
‘‘(4) NOTICE TO CONGRESS.—The Secretary of Defense ‘‘(b) LAND REMOTE SENSING INFORMATION DEFINED.—In
shall provide Congress a timely notice of the Sec- this section, the term ‘land remote sensing informa-
retary’s issuance of a certification and of a renewal of tion’—
a certification. ‘‘(1) means any data that—
‘‘(e) RULE OF CONSTRUCTION.—Nothing in this section ‘‘(A) are collected by land remote sensing; and
shall be construed to preclude the voluntary disclosure ‘‘(B) are prohibited from sale to customers other
of a protected document. than the United States Government and United
Page 123 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
States Government-approved customers for reasons grounds to believe ordered, incited, assisted, or other-
of national security pursuant to the terms of an op- wise participated in the experimentation on, and per-
erating license issued pursuant to the Land Remote secution of, any person because of race, religion, na-
Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et tional origin, or political opinion, during the period
seq.) [now 51 U.S.C. 60101 et seq.]; and beginning September 18, 1931, and ending on Decem-
‘‘(2) includes any imagery and other product that is ber 31, 1948, under the direction of, or in association
derived from such data and which is prohibited from with—
sale to customers other than the United States Gov- ‘‘(A) the Japanese Imperial Government;
ernment and United States Government-approved ‘‘(B) any government in any area occupied by the
customers for reasons of national security pursuant military forces of the Japanese Imperial Govern-
to the terms of an operating license described in ment;
paragraph (1)(B). ‘‘(C) any government established with the assist-
‘‘(c) STATE OR LOCAL GOVERNMENT DISCLOSURES.— ance or cooperation of the Japanese Imperial Gov-
Land remote sensing information provided by the head ernment; or
of a department or agency of the United States to a ‘‘(D) any government which was an ally of the
State, local, or tribal government may not be made Japanese Imperial Government.
available to the general public under any State, local, ‘‘(4) RECORD.—The term ‘record’ means a Japanese
or tribal law relating to the disclosure of information Imperial Government record.
or records. ‘‘(b) ESTABLISHMENT OF INTERAGENCY GROUP.—
‘‘(d) SAFEGUARDING INFORMATION.—The head of each ‘‘(1) IN GENERAL.—Not later than 60 days after the
department or agency of the United States having land date of the enactment of this Act [Dec. 27, 2000], the
remote sensing information within that department or President shall designate the Working Group estab-
agency or providing such information to a State, local, lished under the Nazi War Crimes Disclosure Act
or tribal government shall take such actions, commen- (Public Law 105–246; 5 U.S.C. 552 note) to also carry
surate with the sensitivity of that information, as are out the purposes of this title with respect to Japa-
necessary to protect that information from disclosure nese Imperial Government records, and that Working
other than in accordance with this section and other Group shall remain in existence for 6 years after the
applicable law. date on which this title takes effect. Such Working
‘‘(e) ADDITIONAL DEFINITION.—In this section, the Group is redesignated as the ‘Nazi War Crimes and
term ‘land remote sensing’ has the meaning given such Japanese Imperial Government Records Interagency
term in section 3 of the Land Remote Sensing Policy Working Group’.
‘‘(2) MEMBERSHIP.—[Amended Pub. L. 105–246, set
Act of 1992 ([former] 15 U.S.C. 5602) [now 51 U.S.C.
out as a note below.]
60101].
‘‘(c) FUNCTIONS.—Not later than 1 year after the date
‘‘(f) DISCLOSURE TO CONGRESS.—Nothing in this sec-
of the enactment of this Act [Dec. 27, 2000], the Inter-
tion shall be construed to authorize the withholding of
agency Group shall, to the greatest extent possible con-
information from the appropriate committees of Con-
sistent with section 803—
gress.’’
‘‘(1) locate, identify, inventory, recommend for de-
DISCLOSURE OF ARSON, EXPLOSIVE, OR FIREARM classification, and make available to the public at
RECORDS the National Archives and Records Administration,
all classified Japanese Imperial Government records
Pub. L. 108–7, div. J, title VI, § 644, Feb. 20, 2003, 117 of the United States;
Stat. 473, provided that: ‘‘No funds appropriated under ‘‘(2) coordinate with agencies and take such actions
this Act or any other Act with respect to any fiscal as necessary to expedite the release of such records to
year shall be available to take any action based upon the public; and
any provision of 5 U.S.C. 552 with respect to records ‘‘(3) submit a report to Congress, including the
collected or maintained pursuant to 18 U.S.C. 846(b), Committee on Government Reform [now Committee
923(g)(3) or 923(g)(7), or provided by Federal, State, on Oversight and Accountability] and the Permanent
local, or foreign law enforcement agencies in connec- Select Committee on Intelligence of the House of
tion with arson or explosives incidents or the tracing of Representatives, and the Committee on the Judiciary
a firearm, except that such records may continue to be and the Select Committee on Intelligence of the Sen-
disclosed to the extent and in the manner that records ate, describing all such records, the disposition of
so collected, maintained, or obtained have been dis- such records, and the activities of the Interagency
closed under 5 U.S.C. 552 prior to the date of the enact- Group and agencies under this section.
ment of this Act [Feb. 20, 2003].’’ ‘‘(d) FUNDING.—There is authorized to be appropriated
such sums as may be necessary to carry out the provi-
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL
sions of this title.
GOVERNMENT
‘‘SEC. 803. REQUIREMENT OF DISCLOSURE OF
Pub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864, RECORDS.
as amended by Pub. L. 108–199, div. H, § 163, Jan. 23, 2004, ‘‘(a) RELEASE OF RECORDS.—Subject to subsections
118 Stat. 452; Pub. L. 109–5, § 1, Mar. 25, 2005, 119 Stat. 19, (b), (c), and (d), the Japanese Imperial Government
provided that: Records Interagency Working Group shall release in
‘‘SEC. 801. SHORT TITLE. their entirety Japanese Imperial Government records.
‘‘This title may be cited as the ‘Japanese Imperial ‘‘(b) EXEMPTIONS.—An agency head may exempt from
Government Disclosure Act of 2000’. release under subsection (a) specific information, that
would—
‘‘SEC. 802. DESIGNATION. ‘‘(1) constitute an unwarranted invasion of personal
‘‘(a) DEFINITIONS.—In this section: privacy;
‘‘(1) AGENCY.—The term ‘agency’ has the meaning ‘‘(2) reveal the identity of a confidential human
given such term under section 551 of title 5, United source, or reveal information about an intelligence
States Code. source or method when the unauthorized disclosure of
‘‘(2) INTERAGENCY GROUP.—The term ‘Interagency that source or method would damage the national se-
Group’ means the Nazi War Crimes and Japanese Im- curity interests of the United States;
perial Government Records Interagency Working ‘‘(3) reveal information that would assist in the de-
Group established under subsection (b). velopment or use of weapons of mass destruction;
‘‘(3) JAPANESE IMPERIAL GOVERNMENT RECORDS.—The ‘‘(4) reveal information that would impair United
term ‘Japanese Imperial Government records’ means States cryptologic systems or activities;
classified records or portions of records that pertain ‘‘(5) reveal information that would impair the ap-
to any person with respect to whom the United plication of state-of-the-art technology within a
States Government, in its sole discretion, has United States weapon system;
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 124
‘‘(6) reveal United States military war plans that section 802(b)(1) of Pub. L. 106–567, set out above] es-
remain in effect; tablished under subsection (b);
‘‘(7) reveal information that would impair relations ‘‘(3) ‘Nazi war criminal records’ has the meaning
between the United States and a foreign government, given such term under section 3 of this Act; and
or undermine ongoing diplomatic activities of the ‘‘(4) ‘record’ means a Nazi war criminal record.
United States; ‘‘(b) ESTABLISHMENT OF INTERAGENCY GROUP.—
‘‘(8) reveal information that would impair the cur- ‘‘(1) IN GENERAL.—Not later than 60 days after the
rent ability of United States Government officials to date of enactment of this Act [Oct. 8, 1998], the Presi-
protect the President, Vice President, and other offi- dent shall establish the Nazi War Criminal Records
cials for whom protection services are authorized in Interagency Working Group, which shall remain in
the interest of national security; existence for 3 years after the date the Interagency
‘‘(9) reveal information that would impair current Group is established.
national security emergency preparedness plans; or ‘‘(2) MEMBERSHIP.—The President shall appoint to
‘‘(10) violate a treaty or other international agree- the Interagency Group individuals whom the Presi-
ment. dent determines will most completely and effectively
‘‘(c) APPLICATIONS OF EXEMPTIONS.— carry out the functions of the Interagency Group
‘‘(1) IN GENERAL.—In applying the exemptions pro- within the time limitations provided in this section,
vided in paragraphs (2) through (10) of subsection (b), including the Director of the Holocaust Museum, the
there shall be a presumption that the public interest Historian of the Department of State, the Archivist
will be served by disclosure and release of the records of the United States, the head of any other agency
of the Japanese Imperial Government. The exemption the President considers appropriate, and no more
may be asserted only when the head of the agency than 4 other persons who shall be members of the
that maintains the records determines that disclo- public, of whom 3 shall be persons appointed under
sure and release would be harmful to a specific inter- the provisions of this Act in effect on October 8,
est identified in the exemption. An agency head who 1998..[sic] The head of an agency appointed by the
makes such a determination shall promptly report it President may designate an appropriate officer to
to the committees of Congress with appropriate juris- serve on the Interagency Group in lieu of the head of
diction, including the Committee on the Judiciary such agency.
and the Select Committee on Intelligence of the Sen- ‘‘(3) INITIAL MEETING.—Not later than 90 days after
ate and the Committee on Government Reform [now the date of enactment of this Act, the Interagency
Committee on Oversight and Accountability] and the Group shall hold an initial meeting and begin the
Permanent Select Committee on Intelligence of the functions required under this section.
‘‘(c) FUNCTIONS.—Not later than 1 year after the date
House of Representatives.
of enactment of this Act [Oct. 8, 1998], the Interagency
‘‘(2) APPLICATION OF TITLE 5.—A determination by
Group shall, to the greatest extent possible consistent
an agency head to apply an exemption provided in
with section 3 of this Act—
paragraphs (2) through (9) of subsection (b) shall be
‘‘(1) locate, identify, inventory, recommend for de-
subject to the same standard of review that applies in
classification, and make available to the public at
the case of records withheld under section 552(b)(1) of
the National Archives and Records Administration,
title 5, United States Code.
all classified Nazi war criminal records of the United
‘‘(d) RECORDS RELATED TO INVESTIGATIONS OR PROS-
States;
ECUTIONS.—This section shall not apply to records—
‘‘(2) coordinate with agencies and take such actions
‘‘(1) related to or supporting any active or inactive
as necessary to expedite the release of such records to
investigation, inquiry, or prosecution by the Office of
the public; and
Special Investigations of the Department of Justice; ‘‘(3) submit a report to Congress, including the
or Committee on the Judiciary of the Senate and the
‘‘(2) solely in the possession, custody, or control of Committee on Government Reform and Oversight
the Office of Special Investigations. [now Committee on Oversight and Accountability] of
‘‘SEC. 804. EXPEDITED PROCESSING OF REQUESTS the House of Representatives, describing all such
FOR JAPANESE IMPERIAL GOVERNMENT records, the disposition of such records, and the ac-
RECORDS. tivities of the Interagency Group and agencies under
‘‘For purposes of expedited processing under section this section.
552(a)(6)(E) of title 5, United States Code, any person ‘‘(d) FUNDING.—There are authorized to be appro-
who was persecuted in the manner described in section priated such sums as may be necessary to carry out the
802(a)(3) and who requests a Japanese Imperial Govern- provisions of this Act.
ment record shall be deemed to have a compelling need ‘‘SEC. 3. REQUIREMENT OF DISCLOSURE OF
for such record. RECORDS REGARDING PERSONS WHO COM-
‘‘SEC. 805. EFFECTIVE DATE. MITTED NAZI WAR CRIMES.
‘‘The provisions of this title shall take effect on the ‘‘(a) NAZI WAR CRIMINAL RECORDS.—For purposes of
date that is 90 days after the date of the enactment of this Act, the term ‘Nazi war criminal records’ means
this Act [Dec. 27, 2000].’’ classified records or portions of records that—
‘‘(1) pertain to any person with respect to whom the
NAZI WAR CRIMES DISCLOSURE United States Government, in its sole discretion, has
grounds to believe ordered, incited, assisted, or other-
Pub. L. 105–246, Oct. 8, 1998, 112 Stat. 1859, as amended wise participated in the persecution of any person be-
by Pub. L. 106–567, § 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, cause of race, religion, national origin, or political
provided that: opinion, during the period beginning on March 23,
‘‘SECTION 1. SHORT TITLE. 1933, and ending on May 8, 1945, under the direction
‘‘This Act may be cited as the ‘Nazi War Crimes Dis- of, or in association with—
closure Act’. ‘‘(A) the Nazi government of Germany;
‘‘(B) any government in any area occupied by the
‘‘SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL military forces of the Nazi government of Germany;
RECORDS INTERAGENCY WORKING GROUP. ‘‘(C) any government established with the assist-
‘‘(a) DEFINITIONS.—In this section the term— ance or cooperation of the Nazi government of Ger-
‘‘(1) ‘agency’ has the meaning given such term many; or
under section 551 of title 5, United States Code; ‘‘(D) any government which was an ally of the
‘‘(2) ‘Interagency Group’ means the Nazi War Crimi- Nazi government of Germany; or
nal Records Interagency Working Group [redesig- ‘‘(2) pertain to any transaction as to which the
nated Nazi War Crimes and Japanese Imperial Gov- United States Government, in its sole discretion, has
ernment Records Interagency Working Group, see grounds to believe—
Page 125 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
‘‘(A) involved assets taken from persecuted per- ‘‘(A) related to or supporting any active or inac-
sons during the period beginning on March 23, 1933, tive investigation, inquiry, or prosecution by the
and ending on May 8, 1945, by, under the direction Office of Special Investigations of the Department
of, on behalf of, or under authority granted by the of Justice; or
Nazi government of Germany or any nation then al- ‘‘(B) solely in the possession, custody, or control
lied with that government; and of that office.
‘‘(B) such transaction was completed without the ‘‘(c) INAPPLICABILITY OF NATIONAL SECURITY ACT OF
assent of the owners of those assets or their heirs 1947 EXEMPTION.—Section 701(a) of the National Secu-
or assigns or other legitimate representatives. rity Act of 1947 (50 U.S.C. 431[(a)]) [now 50 U.S.C.
‘‘(b) RELEASE OF RECORDS.— 3141(a)] shall not apply to any operational file, or any
‘‘(1) IN GENERAL.—Subject to paragraphs (2), (3), and portion of any operational file, that constitutes a Nazi
(4), the Nazi War Criminal Records Interagency war criminal record under section 3 of this Act.
Working Group shall release in their entirety Nazi
‘‘SEC. 4. EXPEDITED PROCESSING OF FOIA RE-
war criminal records that are described in subsection
QUESTS FOR NAZI WAR CRIMINAL RECORDS.
(a).
‘‘(2) EXCEPTION FOR PRIVACY, ETC.—An agency head ‘‘(a) EXPEDITED PROCESSING.—For purposes of expe-
may exempt from release under paragraph (1) specific dited processing under section 552(a)(6)(E) of title 5,
information, that would— United States Code, any requester of a Nazi war crimi-
‘‘(A) constitute a clearly unwarranted invasion of nal record shall be deemed to have a compelling need
personal privacy; for such record.
‘‘(B) reveal the identity of a confidential human ‘‘(b) REQUESTER.—For purposes of this section, the
source, or reveal information about the application term ‘requester’ means any person who was persecuted
of an intelligence source or method, or reveal the in the manner described under section 3(a)(1) of this
identity of a human intelligence source when the Act who requests a Nazi war criminal record.
unauthorized disclosure of that source would clear- ‘‘SEC. 5. EFFECTIVE DATE.
ly and demonstrably damage the national security ‘‘This Act and the amendments made by this Act
interests of the United States; shall take effect on the date that is 90 days after the
‘‘(C) reveal information that would assist in the date of enactment of this Act [Oct. 8, 1998].’’
development or use of weapons of mass destruction;
‘‘(D) reveal information that would impair United CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE;
States cryptologic systems or activities; PUBLIC ACCESS TO INFORMATION IN ELECTRONIC FOR-
‘‘(E) reveal information that would impair the ap- MAT
plication of state-of-the-art technology within a
Pub. L. 104–231, § 2, Oct. 2, 1996, 110 Stat. 3048, provided
United States weapon system;
‘‘(F) reveal actual United States military war that:
plans that remain in effect; ‘‘(a) FINDINGS.—The Congress finds that—
‘‘(G) reveal information that would seriously and ‘‘(1) the purpose of section 552 of title 5, United
demonstrably impair relations between the United States Code, popularly known as the Freedom of In-
States and a foreign government, or seriously and formation Act, is to require agencies of the Federal
demonstrably undermine ongoing diplomatic ac- Government to make certain agency information
tivities of the United States; available for public inspection and copying and to es-
‘‘(H) reveal information that would clearly and tablish and enable enforcement of the right of any
demonstrably impair the current ability of United person to obtain access to the records of such agen-
States Government officials to protect the Presi- cies, subject to statutory exemptions, for any public
dent, Vice President, and other officials for whom or private purpose;
protection services, in the interest of national secu- ‘‘(2) since the enactment of the Freedom of Infor-
rity, are authorized; mation Act in 1966, and the amendments enacted in
‘‘(I) reveal information that would seriously and 1974 and 1986, the Freedom of Information Act has
demonstrably impair current national security been a valuable means through which any person can
emergency preparedness plans; or learn how the Federal Government operates;
‘‘(J) violate a treaty or international agreement. ‘‘(3) the Freedom of Information Act has led to the
‘‘(3) APPLICATION OF EXEMPTIONS.— disclosure of waste, fraud, abuse, and wrongdoing in
‘‘(A) IN GENERAL.—In applying the exemptions the Federal Government;
listed in subparagraphs (B) through (J) of para- ‘‘(4) the Freedom of Information Act has led to the
graph (2), there shall be a presumption that the identification of unsafe consumer products, harmful
public interest in the release of Nazi war criminal drugs, and serious health hazards;
records will be served by disclosure and release of ‘‘(5) Government agencies increasingly use com-
the records. Assertion of such exemption may only puters to conduct agency business and to store pub-
be made when the agency head determines that dis- licly valuable agency records and information; and
closure and release would be harmful to a specific ‘‘(6) Government agencies should use new tech-
interest identified in the exemption. An agency nology to enhance public access to agency records
head who makes such a determination shall and information.
promptly report it to the committees of Congress ‘‘(b) PURPOSES.—The purposes of this Act [see Short
with appropriate jurisdiction, including the Com- Title of 1996 Amendment note above] are to—
mittee on the Judiciary of the Senate and the Com- ‘‘(1) foster democracy by ensuring public access to
mittee on Government Reform and Oversight [now agency records and information;
Committee on Oversight and Accountability] of the ‘‘(2) improve public access to agency records and in-
House of Representatives. The exemptions set forth formation;
in paragraph (2) shall constitute the only authority ‘‘(3) ensure agency compliance with statutory time
pursuant to which an agency head may exempt limits; and
records otherwise subject to release under para- ‘‘(4) maximize the usefulness of agency records and
graph (1). information collected, maintained, used, retained,
‘‘(B) APPLICATION OF TITLE 5.—A determination by and disseminated by the Federal Government.’’
an agency head to apply an exemption listed in sub-
FREEDOM OF INFORMATION ACT EXEMPTION FOR
paragraphs (B) through (I) of paragraph (2) shall be
CERTAIN OPEN SKIES TREATY DATA
subject to the same standard of review that applies
in the case of records withheld under section Pub. L. 103–236, title V, § 533, Apr. 30, 1994, 108 Stat.
552(b)(1) of title 5, United States Code. 480, provided that:
‘‘(4) LIMITATION ON APPLICATION.—This subsection ‘‘(a) IN GENERAL.—Data with respect to a foreign
shall not apply to records— country collected by sensors during observation flights
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 126
conducted in connection with the Treaty on Open ernment. The term ‘‘submitter’’ includes, but is not
Skies, including flights conducted prior to entry into limited to, corporations, state governments, and for-
force of the treaty, shall be exempt from disclosure eign governments.
under the Freedom of Information Act— SEC. 3. (a) For confidential commercial information
‘‘(1) if the country has not disclosed the data to the submitted prior to January 1, 1988, the head of each Ex-
public; and ecutive department or agency shall, to the extent per-
‘‘(2) if the country has not, acting through the Open mitted by law, provide a submitter with notice pursu-
Skies Consultative Commission or any other diplo- ant to section 1 whenever:
matic channel, authorized the United States to dis- (i) the records are less than 10 years old and the infor-
close the data to the public. mation has been designated by the submitter as con-
‘‘(b) STATUTORY CONSTRUCTION.—This section con- fidential commercial information; or
stitutes a specific exemption within the meaning of (ii) the department or agency has reason to believe
section 552(b)(3) of title 5, United States Code. that disclosure of the information could reasonably be
‘‘(c) DEFINITIONS.—For the purposes of this section— expected to cause substantial competitive harm.
‘‘(1) the term ‘Freedom of Information Act’ means (b) For confidential commercial information sub-
the provisions of section 552 of title 5, United States mitted on or after January 1, 1988, the head of each Ex-
Code; ecutive department or agency shall, to the extent per-
‘‘(2) the term ‘Open Skies Consultative Commis- mitted by law, establish procedures to permit submit-
sion’ means the commission established pursuant to ters of confidential commercial information to des-
Article X of the Treaty on Open Skies; and ignate, at the time the information is submitted to the
‘‘(3) the term ‘Treaty on Open Skies’ means the Federal government or a reasonable time thereafter,
Treaty on Open Skies, signed at Helsinki on March any information the disclosure of which the submitter
24, 1992.’’ claims could reasonably be expected to cause substan-
tial competitive harm. Such agency procedures may
Executive Documents provide for the expiration, after a specified period of
CLASSIFIED NATIONAL SECURITY INFORMATION time or changes in circumstances, of designations of
competitive harm made by submitters. Additionally,
For provisions relating to a response to a request for such procedures may permit the agency to designate
information under this section when the fact of its ex- specific classes of information that will be treated by
istence or nonexistence is itself classified or when it the agency as if the information had been so designated
was originally classified by another agency, see Ex. by the submitter. The head of each Executive depart-
Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as ment or agency shall, to the extent permitted by law,
a note under section 3161 of Title 50, War and National provide the submitter notice in accordance with sec-
Defense. tion 1 of this Order whenever the department or agency
EXECUTIVE ORDER NO. 12174 determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which (ii) the disclosure of which the department or agency
related to minimizing Federal paperwork, was revoked has reason to believe could reasonably be expected to
by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, for- cause substantial competitive harm.
merly set out as a note under section 601 of this title. SEC. 4. When notification is made pursuant to section
1, each agency’s procedures shall, to the extent per-
EX. ORD. NO. 12600. PREDISCLOSURE NOTIFICATION PROCE-
mitted by law, afford the submitter a reasonable period
DURES FOR CONFIDENTIAL COMMERCIAL INFORMATION
of time in which the submitter or its designee may ob-
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, pro- ject to the disclosure of any specified portion of the in-
vided: formation and to state all grounds upon which disclo-
By the authority vested in me as President by the sure is opposed.
Constitution and statutes of the United States of SEC. 5. Each agency shall give careful consideration
America, and in order to provide predisclosure notifica- to all such specified grounds for nondisclosure prior to
tion procedures under the Freedom of Information Act making an administrative determination of the issue.
[5 U.S.C. 552] concerning confidential commercial infor- In all instances when the agency determines to disclose
mation, and to make existing agency notification pro- the requested records, its procedures shall provide that
visions more uniform, it is hereby ordered as follows: the agency give the submitter a written statement
SECTION 1. The head of each Executive department briefly explaining why the submitter’s objections are
and agency subject to the Freedom of Information Act not sustained. Such statement shall, to the extent per-
[5 U.S.C. 552] shall, to the extent permitted by law, es- mitted by law, be provided a reasonable number of days
tablish procedures to notify submitters of records con- prior to a specified disclosure date.
taining confidential commercial information as de- SEC. 6. Whenever a FOIA requester brings suit seek-
scribed in section 3 of this Order, when those records ing to compel disclosure of confidential commercial in-
are requested under the Freedom of Information Act formation, each agency’s procedures shall require that
[FOIA], 5 U.S.C. 552, as amended, if after reviewing the the submitter be promptly notified.
request, the responsive records, and any appeal by the SEC. 7. The designation and notification procedures
requester, the department or agency determines that it required by this Order shall be established by regula-
may be required to disclose the records. Such notice re- tions, after notice and public comment. If similar pro-
quires that an agency use good-faith efforts to advise cedures or regulations already exist, they should be re-
submitters of confidential commercial information of viewed for conformity and revised where necessary. Ex-
the procedures established under this Order. Further, isting procedures or regulations need not be modified if
where notification of a voluminous number of submit- they are in compliance with this Order.
ters is required, such notification may be accomplished SEC. 8. The notice requirements of this Order need
by posting or publishing the notice in a place reason- not be followed if:
ably calculated to accomplish notification. (a) The agency determines that the information
SEC. 2. For purposes of this Order, the following defi- should not be disclosed;
nitions apply: (b) The information has been published or has been
(a) ‘‘Confidential commercial information’’ means officially made available to the public;
records provided to the government by a submitter (c) Disclosure of the information is required by law
that arguably contain material exempt from release (other than 5 U.S.C. 552);
under Exemption 4 of the Freedom of Information Act, (d) The disclosure is required by an agency rule that
5 U.S.C. 552(b)(4), because disclosure could reasonably (1) was adopted pursuant to notice and public comment,
be expected to cause substantial competitive harm. (2) specifies narrow classes of records submitted to the
(b) ‘‘Submitter’’ means any person or entity who pro- agency that are to be released under the Freedom of In-
vides confidential commercial information to the gov- formation Act [5 U.S.C. 552], and (3) provides in excep-
Page 127 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
tional circumstances for notice when the submitter SEC. 4. Administration. (a) To the extent permitted by
provides written justification, at the time the informa- law and subject to the availability of appropriations,
tion is submitted or a reasonable time thereafter, that the National Archives and Records Administration
disclosure of the information could reasonably be ex- shall provide the Working Group with funding, admin-
pected to cause substantial competitive harm; istrative services, facilities, staff, and other support
(e) The information requested is not designated by services necessary for the performance of the functions
the submitter as exempt from disclosure in accordance of the Working Group.
with agency regulations promulgated pursuant to sec- (b) The Working Group shall terminate 3 years from
tion 7, when the submitter had an opportunity to do so the date of this Executive order.
at the time of submission of the information or a rea- WILLIAM J. CLINTON.
sonable time thereafter, unless the agency has substan-
tial reason to believe that disclosure of the information EX. ORD. NO. 13392. IMPROVING AGENCY DISCLOSURE OF
would result in competitive harm; or INFORMATION
(f) The designation made by the submitter in accord- Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, pro-
ance with agency regulations promulgated pursuant to vided:
section 7 appears obviously frivolous; except that, in By the authority vested in me as President by the
such case, the agency must provide the submitter with Constitution and the laws of the United States of
written notice of any final administrative disclosure America, and to ensure appropriate agency disclosure
determination within a reasonable number of days of information, and consistent with the goals of section
prior to the specified disclosure date. 552 of title 5, United States Code, it is hereby ordered
SEC. 9. Whenever an agency notifies a submitter that as follows:
it may be required to disclose information pursuant to SECTION 1. Policy.
section 1 of this Order, the agency shall also notify the (a) The effective functioning of our constitutional de-
requester that notice and an opportunity to comment mocracy depends upon the participation in public life
are being provided the submitter. Whenever an agency of a citizenry that is well informed. For nearly four
notifies a submitter of a final decision pursuant to sec- decades, the Freedom of Information Act (FOIA) [5
tion 5 of this Order, the agency shall also notify the re- U.S.C. 552] has provided an important means through
quester. which the public can obtain information regarding the
SEC. 10. This Order is intended only to improve the activities of Federal agencies. Under the FOIA, the
internal management of the Federal government, and public can obtain records from any Federal agency,
is not intended to create any right or benefit, sub- subject to the exemptions enacted by the Congress to
stantive or procedural, enforceable at law by a party protect information that must be held in confidence for
against the United States, its agencies, its officers, or the Government to function effectively or for other
any person. purposes.
RONALD REAGAN. (b) FOIA requesters are seeking a service from the
Federal Government and should be treated as such. Ac-
EX. ORD. NO. 13110. NAZI WAR CRIMES AND JAPANESE IM-
cordingly, in responding to a FOIA request, agencies
PERIAL GOVERNMENT RECORDS INTERAGENCY WORKING
shall respond courteously and appropriately. Moreover,
GROUP
agencies shall provide FOIA requesters, and the public
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided: in general, with citizen-centered ways to learn about
By the authority vested in me as President by the the FOIA process, about agency records that are pub-
Constitution and the laws of the United States of licly available (e.g., on the agency’s website), and
America, including the Nazi War Crimes Disclosure Act about the status of a person’s FOIA request and appro-
(Public Law 105–246) (the ‘‘Act’’) [5 U.S.C. 552 note], it priate information about the agency’s response.
is hereby ordered as follows: (c) Agency FOIA operations shall be both results-ori-
SECTION 1. Establishment of Working Group. There is ented and produce results. Accordingly, agencies shall
hereby established the Nazi War Criminal Records process requests under the FOIA in an efficient and ap-
Interagency Working Group [now Nazi War Crimes and propriate manner and achieve tangible, measurable im-
Japanese Imperial Government Records Interagency provements in FOIA processing. When an agency’s
Working Group] (Working Group). The function of the FOIA program does not produce such results, it should
Group shall be to locate, inventory, recommend for de- be reformed, consistent with available resources appro-
classification, and make available to the public at the priated by the Congress and applicable law, to increase
National Archives and Records Administration all clas- efficiency and better reflect the policy goals and objec-
sified Nazi war criminal records of the United States, tives of this order.
subject to certain designated exceptions as provided in (d) A citizen-centered and results-oriented approach
the Act. The Working Group shall coordinate with will improve service and performance, thereby
agencies and take such actions as necessary to expedite strengthening compliance with the FOIA, and will help
the release of such records to the public. avoid disputes and related litigation.
SEC. 2. Schedule. The Working Group should complete SEC. 2. Agency Chief FOIA Officers.
its work to the greatest extent possible and report to (a) Designation. The head of each agency shall des-
the Congress within 1 year. ignate within 30 days of the date of this order a senior
SEC. 3. Membership. (a) The Working Group shall be official of such agency (at the Assistant Secretary or
composed of the following members: equivalent level), to serve as the Chief FOIA Officer of
(1) Archivist of the United States (who shall serve as that agency. The head of the agency shall promptly no-
Chair of the Working Group); tify the Director of the Office of Management and
(2) Secretary of Defense; Budget (OMB Director) and the Attorney General of
(3) Attorney General; such designation and of any changes thereafter in such
(4) Director of Central Intelligence; designation.
(5) Director of the Federal Bureau of Investigation; (b) General Duties. The Chief FOIA Officer of each
(6) Director of the United States Holocaust Memorial agency shall, subject to the authority of the head of
Museum; the agency:
(7) Historian of the Department of State; and (i) have agency-wide responsibility for efficient and
(8) Three other persons appointed by the President. appropriate compliance with the FOIA;
(b) The Senior Director for Records and Access Man- (ii) monitor FOIA implementation throughout the
agement of the National Security Council will serve as agency, including through the use of meetings with the
the liaison to and attend the meetings of the Working public to the extent deemed appropriate by the agen-
Group. Members of the Working Group who are full- cy’s Chief FOIA Officer, and keep the head of the agen-
time Federal officials may serve on the Working Group cy, the chief legal officer of the agency, and the Attor-
through designees. ney General appropriately informed of the agency’s
§ 552 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 128
performance in implementing the FOIA, including the SEC. 3. Review, Plan, and Report.
extent to which the agency meets the milestones in the (a) Review. Each agency’s Chief FOIA Officer shall
agency’s plan under section 3(b) of this order and train- conduct a review of the agency’s FOIA operations to
ing and reporting standards established consistent with determine whether agency practices are consistent
applicable law and this order; with the policies set forth in section 1 of this order. In
(iii) recommend to the head of the agency such ad- conducting this review, the Chief FOIA Officer shall:
justments to agency practices, policies, personnel, and (i) evaluate, with reference to numerical and statis-
funding as may be necessary to carry out the policy set tical benchmarks where appropriate, the agency’s ad-
forth in section 1 of this order; ministration of the FOIA, including the agency’s ex-
(iv) review and report, through the head of the agen- penditure of resources on FOIA compliance and the ex-
cy, at such times and in such formats as the Attorney tent to which, if any, requests for records have not been
General may direct, on the agency’s performance in im- responded to within the statutory time limit (backlog);
plementing the FOIA; and (ii) review the processes and practices by which the
(v) facilitate public understanding of the purposes of agency assists and informs the public regarding the
the FOIA’s statutory exemptions by including concise FOIA process;
descriptions of the exemptions in both the agency’s (iii) examine the agency’s:
FOIA handbook issued under section 552(g) of title 5, (A) use of information technology in responding to
United States Code, and the agency’s annual FOIA re- FOIA requests, including without limitation the
port, and by providing an overview, where appropriate, tracking of FOIA requests and communication with
of certain general categories of agency records to requesters;
which those exemptions apply. (B) practices with respect to requests for expedited
(c) FOIA Requester Service Center and FOIA Public Liai- processing; and
sons. In order to ensure appropriate communication (C) implementation of multi-track processing if
with FOIA requesters: used by such agency;
(i) Each agency shall establish one or more FOIA Re- (iv) review the agency’s policies and practices relat-
quester Service Centers (Center), as appropriate, which ing to the availability of public information through
shall serve as the first place that a FOIA requester can websites and other means, including the use of websites
contact to seek information concerning the status of to make available the records described in section
the person’s FOIA request and appropriate information 552(a)(2) of title 5, United States Code; and
about the agency’s FOIA response. The Center shall in- (v) identify ways to eliminate or reduce its FOIA
clude appropriate staff to receive and respond to in- backlog, consistent with available resources and taking
quiries from FOIA requesters; into consideration the volume and complexity of the
(ii) The agency Chief FOIA Officer shall designate one FOIA requests pending with the agency.
or more agency officials, as appropriate, as FOIA Pub- (b) Plan.
lic Liaisons, who may serve in the Center or who may (i) Each agency’s Chief FOIA Officer shall develop, in
serve in a separate office. FOIA Public Liaisons shall consultation as appropriate with the staff of the agency
serve as supervisory officials to whom a FOIA requester (including the FOIA Public Liaisons), the Attorney
can raise concerns about the service the FOIA re- General, and the OMB Director, an agency-specific plan
quester has received from the Center, following an ini- to ensure that the agency’s administration of the FOIA
tial response from the Center staff. FOIA Public Liai- is in accordance with applicable law and the policies
sons shall seek to ensure a service-oriented response to set forth in section 1 of this order. The plan, which
FOIA requests and FOIA-related inquiries. For exam- shall be submitted to the head of the agency for ap-
ple, the FOIA Public Liaison shall assist, as appro- proval, shall address the agency’s implementation of
priate, in reducing delays, increasing transparency and the FOIA during fiscal years 2006 and 2007.
understanding of the status of requests, and resolving (ii) The plan shall include specific activities that the
disputes. FOIA Public Liaisons shall report to the agency will implement to eliminate or reduce the agen-
agency Chief FOIA Officer on their activities and shall cy’s FOIA backlog, including (as applicable) changes
perform their duties consistent with applicable law and that will make the processing of FOIA requests more
agency regulations; streamlined and effective, as well as increased reliance
(iii) In addition to the services to FOIA requesters on the dissemination of records that can be made avail-
provided by the Center and FOIA Public Liaisons, the able to the public through a website or other means
agency Chief FOIA Officer shall also consider what that do not require the public to make a request for the
other FOIA-related assistance to the public should ap- records under the FOIA.
propriately be provided by the agency; (iii) The plan shall also include activities to increase
(iv) In establishing the Centers and designating FOIA public awareness of FOIA processing, including as ap-
Public Liaisons, the agency shall use, as appropriate, propriate, expanded use of the agency’s Center and its
existing agency staff and resources. A Center shall have FOIA Public Liaisons.
appropriate staff to receive and respond to inquiries (iv) The plan shall also include, taking appropriate
from FOIA requesters; account of the resources available to the agency and
(v) As determined by the agency Chief FOIA Officer, the mission of the agency, concrete milestones, with
in consultation with the FOIA Public Liaisons, each specific timetables and outcomes to be achieved, by
agency shall post appropriate information about its which the head of the agency, after consultation with
Center or Centers on the agency’s website, including the OMB Director, shall measure and evaluate the
contact information for its FOIA Public Liaisons. In agency’s success in the implementation of the plan.
the case of an agency without a website, the agency (c) Agency Reports to the Attorney General and OMB Di-
shall publish the information on the Firstgov.gov rector.
website or, in the case of any agency with neither a (i) The head of each agency shall submit a report, no
website nor the capability to post on the Firstgov.gov later than 6 months from the date of this order, to the
website, in the Federal Register; and Attorney General and the OMB Director that summa-
(vi) The agency Chief FOIA Officer shall ensure that rizes the results of the review under section 3(a) of this
the agency has in place a method (or methods), includ- order and encloses a copy of the agency’s plan under
ing through the use of the Center, to receive and re- section 3(b) of this order. The agency shall publish a
spond promptly and appropriately to inquiries from copy of the agency’s report on the agency’s website or,
FOIA requesters about the status of their requests. The in the case of an agency without a website, on the
Chief FOIA Officer shall also consider, in consultation Firstgov.gov website, or, in the case of any agency with
with the FOIA Public Liaisons, as appropriate, whether neither a website nor the capability to publish on the
the agency’s implementation of other means (such as Firstgov.gov website, in the Federal Register.
tracking numbers for requests, or an agency telephone (ii) The head of each agency shall include in the agen-
or Internet hotline) would be appropriate for respond- cy’s annual FOIA reports for fiscal years 2006 and 2007
ing to status inquiries. a report on the agency’s development and implementa-
Page 129 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552
tion of its plan under section 3(b) of this order and on SECTION 1. General Principles. Openness in government
the agency’s performance in meeting the milestones set strengthens our democracy, promotes the delivery of
forth in that plan, consistent with any related guide- efficient and effective services to the public, and con-
lines the Attorney General may issue under section tributes to economic growth. As one vital benefit of
552(e) of title 5, United States Code. open government, making information resources easy
(iii) If the agency does not meet a milestone in its to find, accessible, and usable can fuel entrepreneur-
plan, the head of the agency shall: ship, innovation, and scientific discovery that improves
(A) identify this deficiency in the annual FOIA re- Americans’ lives and contributes significantly to job
port to the Attorney General; creation.
(B) explain in the annual report the reasons for the Decades ago, the U.S. Government made both weath-
agency’s failure to meet the milestone; er data and the Global Positioning System freely avail-
(C) outline in the annual report the steps that the able. Since that time, American entrepreneurs and
agency has already taken, and will be taking, to ad- innovators have utilized these resources to create navi-
dress the deficiency; and gation systems, weather newscasts and warning sys-
(D) report this deficiency to the President’s Man- tems, location-based applications, precision farming
agement Council. tools, and much more, improving Americans’ lives in
SEC. 4. Attorney General. countless ways and leading to economic growth and job
(a) Report. The Attorney General, using the reports creation. In recent years, thousands of Government
submitted by the agencies under subsection 3(c)(i) of data resources across fields such as health and medi-
this order and the information submitted by agencies cine, education, energy, public safety, global develop-
ment, and finance have been posted in machine-read-
in their annual FOIA reports for fiscal year 2005, shall
able form for free public use on Data.gov. Entre-
submit to the President, no later than 10 months from
preneurs and innovators have continued to develop a
the date of this order, a report on agency FOIA imple-
vast range of useful new products and businesses using
mentation. The Attorney General shall consult the
these public information resources, creating good jobs
OMB Director in the preparation of the report and shall
in the process.
include in the report appropriate recommendations on To promote continued job growth, Government effi-
administrative or other agency actions for continued ciency, and the social good that can be gained from
agency dissemination and release of public informa- opening Government data to the public, the default
tion. The Attorney General shall thereafter submit two state of new and modernized Government information
further annual reports, by June 1, 2007, and June 1, 2008, resources shall be open and machine readable. Govern-
that provide the President with an update on the agen- ment information shall be managed as an asset
cies’ implementation of the FOIA and of their plans throughout its life cycle to promote interoperability
under section 3(b) of this order. and openness, and, wherever possible and legally per-
(b) Guidance. The Attorney General shall issue such missible, to ensure that data are released to the public
instructions and guidance to the heads of departments in ways that make the data easy to find, accessible,
and agencies as may be appropriate to implement sec- and usable. In making this the new default state, exec-
tions 3(b) and 3(c) of this order. utive departments and agencies (agencies) shall ensure
SEC. 5. OMB Director. The OMB Director may issue that they safeguard individual privacy, confidentiality,
such instructions to the heads of agencies as are nec- and national security.
essary to implement this order, other than sections 3(b) SEC. 2. Open Data Policy. (a) The Director of the Of-
and 3(c) of this order. fice of Management and Budget (OMB), in consultation
SEC. 6. Definitions. As used in this order: with the Chief Information Officer (CIO), Chief Tech-
(a) the term ‘‘agency’’ has the same meaning as the nology Officer (CTO), and Administrator of the Office
term ‘‘agency’’ under section 552(f)(1) of title 5, United of Information and Regulatory Affairs (OIRA), shall
States Code; and issue an Open Data Policy to advance the management
(b) the term ‘‘record’’ has the same meaning as the of Government information as an asset, consistent with
term ‘‘record’’ under section 552(f)(2) of title 5, United my memorandum of January 21, 2009 (Transparency and
States Code. Open Government), OMB Memorandum M–10–06 (Open
SEC. 7. General Provisions. Government Directive), OMB and National Archives
(a) The agency reviews under section 3(a) of this and Records Administration Memorandum M–12–18
order and agency plans under section 3(b) of this order (Managing Government Records Directive), the Office
shall be conducted and developed in accordance with of Science and Technology Policy Memorandum of Feb-
applicable law and applicable guidance issued by the ruary 22, 2013 (Increasing Access to the Results of Fed-
President, the Attorney General, and the OMB Direc- erally Funded Scientific Research), and the CIO’s strat-
tor, including the laws and guidance regarding informa- egy entitled ‘‘Digital Government: Building a 21st Cen-
tion technology and the dissemination of information. tury Platform to Better Serve the American People.’’
(b) This order: The Open Data Policy shall be updated as needed.
(i) shall be implemented in a manner consistent with (b) Agencies shall implement the requirements of the
applicable law and subject to the availability of appro- Open Data Policy and shall adhere to the deadlines for
priations; specific actions specified therein. When implementing
(ii) shall not be construed to impair or otherwise af- the Open Data Policy, agencies shall incorporate a full
fect the functions of the OMB Director relating to analysis of privacy, confidentiality, and security risks
budget, legislative, or administrative proposals; and into each stage of the information lifecycle to identify
(iii) is intended only to improve the internal manage- information that should not be released. These review
ment of the executive branch and is not intended to, processes should be overseen by the senior agency offi-
and does not, create any right or benefit, substantive cial for privacy. It is vital that agencies not release in-
or procedural, enforceable at law or in equity by a formation if doing so would violate any law or policy,
party against the United States, its departments, agen- or jeopardize privacy, confidentiality, or national secu-
cies, instrumentalities, or entities, its officers or em- rity.
ployees, or any other person. SEC. 3. Implementation of the Open Data Policy. To fa-
cilitate effective Government-wide implementation of
GEORGE W. BUSH. the Open Data Policy, I direct the following:
EX. ORD. NO. 13642. MAKING OPEN AND MACHINE READ- (a) Within 30 days of the issuance of the Open Data
ABLE THE NEW DEFAULT FOR GOVERNMENT INFORMA-
Policy, the CIO and CTO shall publish an open online
TION
repository of tools and best practices to assist agencies
in integrating the Open Data Policy into their oper-
Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, provided: ations in furtherance of their missions. The CIO and
By the authority vested in me as President by the CTO shall regularly update this online repository as
Constitution and the laws of the United States of needed to ensure it remains a resource to facilitate the
America, it is hereby ordered as follows: adoption of open data practices.
§ 552a TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 130
(b) Within 90 days of the issuance of the Open Data All agencies should adopt a presumption in favor of
Policy, the Administrator for Federal Procurement disclosure, in order to renew their commitment to the
Policy, Controller of the Office of Federal Financial principles embodied in FOIA, and to usher in a new era
Management, CIO, and Administrator of OIRA shall of open Government. The presumption of disclosure
work with the Chief Acquisition Officers Council, Chief should be applied to all decisions involving FOIA.
Financial Officers Council, Chief Information Officers The presumption of disclosure also means that agen-
Council, and Federal Records Council to identify and cies should take affirmative steps to make information
initiate implementation of measures to support the in- public. They should not wait for specific requests from
tegration of the Open Data Policy requirements into the public. All agencies should use modern technology
Federal acquisition and grant-making processes. Such to inform citizens about what is known and done by
efforts may include developing sample requirements their Government. Disclosure should be timely.
language, grant and contract language, and workforce I direct the Attorney General to issue new guidelines
tools for agency acquisition, grant, and information governing the FOIA to the heads of executive depart-
management and technology professionals. ments and agencies, reaffirming the commitment to ac-
(c) Within 90 days of the date of this order, the Chief countability and transparency, and to publish such
Performance Officer (CPO) shall work with the Presi- guidelines in the Federal Register. In doing so, the At-
dent’s Management Council to establish a Cross-Agen- torney General should review FOIA reports produced by
cy Priority (CAP) Goal to track implementation of the the agencies under Executive Order 13392 of December
Open Data Policy. The CPO shall work with agencies to 14, 2005. I also direct the Director of the Office of Man-
set incremental performance goals, ensuring they have agement and Budget to update guidance to the agencies
metrics and milestones in place to monitor advance- to increase and improve information dissemination to
ment toward the CAP Goal. Progress on these goals the public, including through the use of new tech-
shall be analyzed and reviewed by agency leadership, nologies, and to publish such guidance in the Federal
pursuant to the GPRA Modernization Act of 2010 (Pub- Register.
lic Law 111–352). This memorandum does not create any right or ben-
(d) Within 180 days of the date of this order, agencies efit, substantive or procedural, enforceable at law or in
shall report progress on the implementation of the CAP equity by any party against the United States, its de-
Goal to the CPO. Thereafter, agencies shall report partments, agencies, or entities, its officers, employ-
progress quarterly, and as appropriate. ees, or agents, or any other person.
SEC. 4. General Provisions. (a) Nothing in this order The Director of the Office of Management and Budget
shall be construed to impair or otherwise affect: is hereby authorized and directed to publish this memo-
(i) the authority granted by law to an executive de- randum in the Federal Register.
partment, agency, or the head thereof; or BARACK OBAMA.
(ii) the functions of the Director of OMB relating to
budgetary, administrative, or legislative proposals. § 552a. Records maintained on individuals
(b) This order shall be implemented consistent with
applicable law and subject to the availability of appro- (a) DEFINITIONS.—For purposes of this sec-
priations. tion—
(c) This order is not intended to, and does not, create (1) the term ‘‘agency’’ means agency as de-
any right or benefit, substantive or procedural, enforce-
fined in section 552(e) 1 of this title;
able at law or in equity by any party against the
United States, its departments, agencies, or entities, (2) the term ‘‘individual’’ means a citizen of
its officers, employees, or agents, or any other person. the United States or an alien lawfully admit-
(d) Nothing in this order shall compel or authorize ted for permanent residence;
the disclosure of privileged information, law enforce- (3) the term ‘‘maintain’’ includes maintain,
ment information, national security information, per- collect, use, or disseminate;
sonal information, or information the disclosure of (4) the term ‘‘record’’ means any item, col-
which is prohibited by law. lection, or grouping of information about an
(e) Independent agencies are requested to adhere to
this order.
individual that is maintained by an agency,
including, but not limited to, his education, fi-
BARACK OBAMA.
nancial transactions, medical history, and
FREEDOM OF INFORMATION ACT criminal or employment history and that con-
Memorandum of President of the United States, Jan. tains his name, or the identifying number,
21, 2009, 74 F.R. 4683, provided: symbol, or other identifying particular as-
Memorandum for the Heads of Executive Depart- signed to the individual, such as a finger or
ments and Agencies voice print or a photograph;
A democracy requires accountability, and account-
(5) the term ‘‘system of records’’ means a
ability requires transparency. As Justice Louis Bran-
deis wrote, ‘‘sunlight is said to be the best of disinfect- group of any records under the control of any
ants.’’ In our democracy, the Freedom of Information agency from which information is retrieved by
Act (FOIA), which encourages accountability through the name of the individual or by some identi-
transparency, is the most prominent expression of a fying number, symbol, or other identifying
profound national commitment to ensuring an open particular assigned to the individual;
Government. At the heart of that commitment is the (6) the term ‘‘statistical record’’ means a
idea that accountability is in the interest of the Gov- record in a system of records maintained for
ernment and the citizenry alike. statistical research or reporting purposes only
The Freedom of Information Act should be adminis-
tered with a clear presumption: In the face of doubt, and not used in whole or in part in making
openness prevails. The Government should not keep in- any determination about an identifiable indi-
formation confidential merely because public officials vidual, except as provided by section 8 of title
might be embarrassed by disclosure, because errors and 13;
failures might be revealed, or because of speculative or (7) the term ‘‘routine use’’ means, with re-
abstract fears. Nondisclosure should never be based on spect to the disclosure of a record, the use of
an effort to protect the personal interests of Govern- such record for a purpose which is compatible
ment officials at the expense of those they are supposed
with the purpose for which it was collected;
to serve. In responding to requests under the FOIA, ex-
ecutive branch agencies (agencies) should act promptly (8) the term ‘‘matching program’’—
and in a spirit of cooperation, recognizing that such
agencies are servants of the public. 1 See References in Text note below.
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