13. Freedom of Information Act

• Pages: 675-723

675

FREEDOM OF INFORMATION ACT

13

Freedom

of Information

Act

675

Citations:

5 U.S.C. §552 (Supp. II 2002); enacted September 6, 1966, by Pub. L.

No. 89-554, 80 Stat. 383; amended by Pub. L. No. 90-23, §1, June 5, 1967,

81 Stat. 54; Pub. L. No. 93-502, §§1-3, November 21, 1974, 88 Stat. 1,561-

64; Pub. L. No. 94-409, §5(b), September 13, 1976, 90 Stat. 1,247; Pub. L.

No. 95-454, title IX, §906(a)(10), October 13, 1978, 92 Stat. 1,225; Pub. L.

No. 98-620, title IV, §402(2), November 8, 1984, 98 Stat. 3,357; Pub. L.

No. 99-570, title I, §§1801-04, October 27, 1986, 100 Stat. 3,207; Pub. L.

No. 104-231, §§3-11, Oct. 2, 1996, 110 Stat. 3,049; Pub. L. No. 107-306,

Title III, §312, November 27, 2002, 116 Stat. 2390.

Note: As this book went to press, the Congress on December 19, 2007

passed the “Openness Promotes Effectiveness in our National Government

Act of 2007” or the “OPEN Government Act of 2007,” and the President

signed it on December 31, Pub. L. No 110- ___, which extensively amended

the Freedom of Information Act.

The Act made important changes in the fee provisions, especially con-

cerning requests from “news media,” and in situations where the agency missed

applicable deadlines; attorney fee provisions; disciplinary proceedings by the

Office of Special Counsel, the 20-day time limit for processing and tracking

requests, annual agency reports to the Attorney General. It also extended

coverage to records “maintained for an agency by an entity under Govern-

ment contract, for the purposes of records management.” It also established

the Office of Government Information Services within the National Archives

and Records Administration to (1) review agency FOIA policies and proce-

dures and compliance with the Act, (2) recommend policy changes to Con-

gress and the President to improve the administration of the Act and offer

mediation services to resolve disputes between requestors and agencies as a

“non-exclusive alternative to litigation.”

676 FREEDOM OF INFORMATION ACT

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The text in this volume includes the Act as modified.

Lead Agency:

Department of Justice, Office of Information and Privacy, 1425 New

York Avenue, NW, Suite 11050, Washington, DC 20530 (202) 514-3642;

http://www.usdoj.gov/oip/oip.html. Freedom of Information Act (FOIA) in-

formation page: http://www.usdoj.gov/04foia.

Overview:

The Freedom of Information Act requires all agencies (1) to publish

certain items of information in the Federal Register, (2) to make available for

public inspection and copying certain other items of information, and (3) to

make certain agency records available to any members of the public upon

request for such records.

Federal Register Publication. Each agency is required (5 U.S.C.

§552(a)(1)) to publish in the Federal Register:

•Descriptions of its central and field organization and the established

places at which, the employees (and in the case of a uniformed ser-

vice, the members) from whom, and the methods whereby, the pub-

lic may obtain information, make submittals or requests, or obtain

decisions;

•Statements of the general course and method by which its functions

are determined and assigned, including the nature and requirements

of all formal and informal procedures available;

•Rules of procedure, descriptions of forms available or the places at

which forms may be obtained, and instructions as to the scope and

contents of all papers, reports, or examinations;

•Substantive rules of general applicability adopted as authorized by

law, and statements of general policy or interpretations of general

applicability formulated and adopted by the agency; and

•Each amendment, revision, or repeal of the foregoing.

If any listed item is not so published, persons without actual and timely

notice of the substance of the items may not be required to conform their

behavior to, or be adversely affected by, the item.

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FREEDOM OF INFORMATION ACT

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Opinions, Orders, Interpretations, Manuals, Previously Requested

Records. Adjudicative orders and opinions, statements of policy and inter-

pretations not published in the Federal Register, and staff manuals and in-

structions to staff must either be made available for inspection and copying

or be promptly published and made available for sale (5 U.S.C. §552(a)(2)).

Agency records of this type created on or after November 1, 1996 must be

accessible to the public in two ways: (1) through the “paper reading rooms,”

available for public inspection and copying or be published; and (2) through

the “electronic reading rooms,” accessible through computer telecommunica-

tions, i.e., the Internet and World Wide Web (§552(a)(2)). This latter re-

quirement is just one of many changes made to the FOIA in the Electronic

Freedom of Information Act Amendments of 1996 (hereafter 1996 FOIA

Amendments) to take account of new information technology.

The 1996 FOIA Amendments also require that the public have access to

copies of agency records previously processed for disclosure under the Act

that, “because of the nature of their subject matter, the agency determines

have become or are likely to become the subject of subsequent requests for

substantially the same records” as well as a general index of those records

(§552(a)(2)(D), (E)). An agency may, with a full written explanation, delete

identifying items that would constitute a clear invasion of personal privacy.

Note also that agencies may “withhold” (i.e., not make available) a subsec-

tion (a)(2) record (or portion of such a record) if it falls within other FOIA

exemptions, just as they can do in response to FOIA requests. See FOMC v.

Merrill, 443 U.S. 340, 360 n.23 (1979) (applying commercial privilege to

subsection (a)(1) record and recognizing that subsection (a)(2) records like-

wise may be protected by FOIA exemptions).

Requests for Other Records. All other agency records must promptly

be made available upon a request that reasonably describes the records and is

made in accordance with published procedures (5 U.S.C. §552(a)(3)-(4)(A)).

Agencies must honor the requester’s choice of format and make reasonable

efforts to produce records in that form if readily reproducible in that form

(§552(a)(3)(B)). To constitute an “agency record,” a document must be ei-

ther created or obtained by an agency and under agency control at the time of

the request. See Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45

(1989); see also Wolfe v. HHS, 711 F.2d 1077, 1079-82 (D.C. Cir. 1983).

A record is “reasonably describe[d]” if the description of the requested

agency document is sufficient to enable a professional agency employee fa-

miliar with the subject area to locate the record with a reasonable amount of

effort (H.R. Rep. No. 876, 93d Cong., 2d Sess. 6 (1974)). Requests must be