Part Five: Freedom of Information, Sunshine, Advisory Committees

• Pages: 69-92

I. THE FREEDOM OF INFORM ATION ACT

A. Overview

The Freedom of Information Act (FOIA), 5 U.S.C. §552, establishes

a presumption that all records of governmental agencies are accessible

to the public unless they are specically exempted from disclosure by

FOIA or another statute.

FOIA imposes the following tripartite scheme of disclosure.

1. Federal Reg ister Publicatio n Require ments

Section 552(a)(1) requires agencies to publish in the Federal Regis-

ter descriptions of agency organization, procedures for the public to

obtain information, statements of agency function, rules of procedure,

descriptions of agency forms, substantive rules of general applicability

and statements of general policy, and any changes in material required

to be published. Where a matter is required to be published in the Fed-

eral Register and is not so published, no person may in any manner be

required to resort to, or be adversely affected by, the matter except to

the extent that the person had actual and timely notice of the matter.

However, matter reasonably available to the class of persons affected

thereby is deemed published in the Federal Register when incorporated

by reference therein with the approval of the director of the Federal

Register.

69

PART FIVE

FREEDOM OF INFORMATION, SUNSHINE,

ADVI SORY COMMIT TEES

ADLAW Blackletter Final Proof.indd 69 9/5/13 10:44 AM

2. Public Availability Req uireme nts

Section 552(a)(2) requires that agencies make available for pub-

lic inspection or copying (or for sale) certain basic agency records

that, while not subject to the publication requirement of § 552(a)(1),

are to be made available in agency reading rooms and (for records

created on or after November 1, 1996) in “electronic” reading rooms

accessible by computer. Four categories of records are subject to this

disclosure requirement: (a) nal opinions in agency adjudications;

(b) statements of policy and interpretations not published in the Fed-

eral Register; (c) administrative and staff manuals that affect the public;

and (d) records processed and disclosed under a FOIA request that

“the agency determines have become or are likely to become the subject

of subsequent requests for substantially the same records.” Material

required to be made publicly available may be used by the agency only

if indexed or made available or published, or if the party affected oth-

erwise has timely notice of the materials.

3. Records Disclose d on Request

All other records unless exempt from required disclosure under

§ 552(b) or excluded from FOIA coverage under § 552(c) must be dis-

closed upon request. Disclosure is to be effected pursuant to published

agency rules. The bulk of FOIA litigation, and of the remainder of § I,

involves this provision.

B. Mechanics of Operation

FOIA provides that any person, including corporations; associa-

tions; and foreign persons, entities, and governments, may request

agency records. Agency compliance is subject to the requester’s will-

ingness to pay search, copying, and, for commercial requesters, review

fees unless waived by the agency. FOIA does not impose any “need-

to-know” requirement on requesters, and an agency must disclose any

requested information that is not exempted.

A Blackletter Statement of Federal Administrative Law70

ADLAW Blackletter Final Proof.indd 70 9/5/13 10:44 AM