Freedom of Information Act

AuthorWilliam Funk - Jeffrey S. Lubbers
of Information
5 U.S.C. § 552 (2012); enacted Sept. 6, 1966, by Pub. L. 89-554, § 1, 80
Stat. 383; amended by Pub. L. 90-23, § 1, June 5, 1967, 81 Stat. 54; Pub. L.
93-502, §§ 1-3, Nov. 21, 1974, 88 Stat. 1561–64; Pub. L. 94-409, § 5(b),
Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-454, Title IX, § 906(a)(10), Oct. 13,
1978, 92 Stat. 1225; Pub. L. 98-620, Title IV, § 402(2), Nov. 8, 1984, 98 Stat.
3357; Pub. L. 99-570, Title I, §§ 1802, 1803, Oct. 27, 1986, 100 Stat. 3207-
48, 3207-49; Pub. L. 104-231, §§ 3–11, Oct. 2, 1996, 110 Stat. 3049; Pub. L.
107-306, Title III, § 312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110-175, §§
3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat. 2525,
2526, 2527, 2530; Pub. L. 111-83, Title V, § 564(b), Oct. 28, 2009, 123 Stat.
Note: As this book went to press, the President signed the “FOIA Improvement
Act of 2016,” Pub. L. No. 114-185, on June 30, 2016. The Senate Report is
available at: The House
Report is available at
114hrpt391.pdf. However, the bill actually passed was a substitute that was
agreed upon in subsequent negotiations between key House and Senate mem-
bers. The substitute bill was passed by the Senate on March 15, 2016, 162
Cong. Rec. S1494-01, and by the House on June 13, 162 Cong. Rec. H3714.
The Act makes a number of changes to improve transparency and facilitate
more efficient functioning of the FOIA system. For example, it requires agen-
cies to make a record available for public inspection in an electronic format
(i.e., on the Internet) if it has been requested three or more times. It requires
OMB to create a single website from which persons may make an FOIA re-
quest to any agency, although agencies may retain their own websites for re-
quests. The deliberative process exemption (B5) is restricted to records created
within 25 years of the request. It codifies the Department of Justice’s foresee-
able harm requirement by allowing withholding “only if the agency reasonably
foresees that disclosure would harm an interest protected by an exemption” or
“disclosure is prohibited by law.” It creates various incentives for agencies to
meet deadlines, such as forbidding the imposition of a fee for searching (or for
copying for those who are exempt from search fees) if the agency exceeds the
extended time for unusual circumstances. It increases the reporting require-
ments of agencies to the Attorney General and Director of the Office of Gov-
ernment Information Services, of the Attorney General to Congress, and of the
Director of the Office of Government Services to Congress. It increases the
duties of the Chief FOIA Officer in each agency and creates a Chief FOIA
Officers Council which is directed to develop initiatives to increase transpar-
ency and compliance with the FOIA, to make recommendations for increased
efficiencies, and to share best practices.
The text in this volume includes the FOIA as so amended. A redline ver-
sion, showing the changes made by the amendment, is available at: https://
Lead Agency:
Department of Justice, Office of Information and Privacy, 1425 New York
Avenue NW, Suite 11050, Washington, DC 20530, (202) 514-3642; http:// Freedom of Information Act (FOIA) information page:
The Freedom of Information Act requires all agencies (1) to publish cer-
tain 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 public
may obtain information, make submittals or requests, or obtain deci-
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 ap-
plicability formulated and adopted by the agency;
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. These publication require-
ments apparently cannot be judicially enforced except with respect to those
who are adversely affected by the agency rule and do not have actual and
timely notice of it. See United States v. Mowat, 582 F.2d 1194, 1201 n.5 (9th
With the approval of the Director of the Federal Register, matters reason-
ably available to the class of persons affected may be deemed published in the
Federal Register if agencies incorporate them by reference.
Opinions, Orders, Interpretations, Manuals, Previously Requested
Records. Adjudicative orders and opinions, statements of policy and interpre-
tations not published in the Federal Register, and staff manuals and instructions
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) available for public inspection and copying through the
“paper reading rooms,” or (2) published in “electronic reading rooms” acces-
sible through the Internet (§ 552(a)(2)). This latter requirement 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 substan-
tially 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.

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