Freedom of Information Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 687-730

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FREEDOM OF INFORMATION ACT

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Freedom

of Information

Act

687

Citations:

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.

2184.

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: www.congress.gov/114/crpt/srpt4/CRPT-114srpt4.pdf. The House

Report is available at www.congress.gov/114/crpt/hrpt391/CRPT-

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

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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://

www.justice.gov/oip/freedom-information-act-5-usc-552.

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.justice.gov/oip. Freedom of Information Act (FOIA) information page:

http://www.justice.gov/oip/foia-resources.

Overview:

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-

sions;

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•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

Cir.1978).

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.