In subsection (b)(3), the words “formulated and” are omitted as surplusage. In the last sentence of subsection (b), the words “in any manner” are omitted as surplusage since the prohibition is all inclusive.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
1967 Act
Section 1 [of Pub. L. 90–23] amends section 552 of title 5, United States Code, to reflect Public Law 89–487.
In subsection (a)(1)(A), the words “employees (and in the case of a uniformed service, the member)” are substituted for “officer” to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words “A final order * * * may be relied on * * * only if” are substituted for “No final order * * * may be relied upon * * * unless”; and the words “a party other than an agency” and “the party” are substituted for “a private party” and “the private party”, respectively, on authority of the definition of “private party” in 5 App. U.S.C. 1002(g).
In subsection (a)(3), the words “the responsible employee, and in the case of a uniformed service, the responsible member” are substituted for “the responsible officers” to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In subsection (a)(4), the words “shall maintain and make available for public inspection a record” are substituted for “shall keep a record * * * and that record shall be available for public inspection”.
In subsection (b)(5) and (7), the words “a party other than an agency” are substituted for “a private party” on authority of the definition of “private party” in 5 App. U.S.C. 1002(g).
In subsection (c), the words “This section does not authorize” and “This section is not authority” are substituted for “Nothing in this section authorizes” and “nor shall this section be authority”, respectively.
5 App. U.S.C. 1002(g), defining “private party” to mean a party other than an agency, is omitted since the words “party other than an agency” are substituted for the words “private party” wherever they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted as unnecessary. That effective date is prescribed by section 4 of this bill.
Editorial Notes
References in Text
The National Security Act of 1947, referred to in subsec. (a)(3)(E), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§ 3001 et seq.) of Title 50. Section 3 of the Act is now classified to section 3003 of Title 50. For complete classification of this Act to the Code, see Tables.
The date of enactment of the OPEN FOIA Act of 2009, referred to in subsec. (b)(3)(B), is the date of enactment of Pub. L. 111–83, which was approved Oct. 28, 2009.
Codification
Section 552 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2243 of Title 7, Agriculture.
Amendments
2016—Subsec. (a)(2). Pub. L. 114–185, § 2(1)(A)(i), in introductory provisions, substituted “for public inspection in an electronic format” for “for public inspection and copying”.
Pub. L. 114–185, § 2(1)(A)(iii), in concluding provisions, substituted “public inspection in an electronic format current” for “public inspection and copying current”.
Subsec. (a)(2)(D). Pub. L. 114–185, § 2(1)(A)(ii), added subpar. (D) and struck out former subpar. (D) which read as follows: “copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, 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; and”.
Subsec. (a)(4)(A)(viii). Pub. L. 114–185, § 2(1)(B), added cl. (viii) and struck out former cl. (viii) which read as follows: “An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request.”
Subsec. (a)(6)(A)(i). Pub. L. 114–185, § 2(1)(C)(i), substituted “making such request of—” for “making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and” and added subcls. (I) to (III).
Subsec. (a)(6)(B)(ii). Pub. L. 114–185, § 2(1)(C)(ii), substituted “the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.” for “the agency.”
Subsec. (a)(8). Pub. L. 114–185, § 2(1)(D), added par. (8).
Subsec. (b)(5). Pub. L. 114–185, § 2(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;”.
Subsec. (e)(1). Pub. L. 114–185, § 2(3)(A)(i), in introductory provisions, inserted “and to the Director of the Office of Government Information Services” after “United States”.
Subsec. (e)(1)(P), (Q). Pub. L. 114–185, § 2(3)(A)(ii)–(iv), added subpars. (P) and (Q).
Subsec. (e)(3). Pub. L. 114–185, § 2(3)(B), added par. (3) and struck out former par. (3) which read as follows: “Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.”
Subsec. (e)(4). Pub. L. 114–185, § 2(3)(C), substituted “Oversight and Government Reform” for “Government Reform and Oversight” and “March” for “April” and inserted “Homeland Security and” before “Governmental Affairs”.
Subsec. (e)(6). Pub. L. 114–185, § 2(3)(D), added par. (6) and struck out former par. (6) which read as follows: “The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.”
Subsec. (g). Pub. L. 114–185, § 2(4), in introductory provisions, substituted “available for public inspection in an electronic format” for “publicly available upon request”.
Subsec. (h)(1). Pub. L. 114–185, § 2(5)(A), inserted at end “The head of the Office shall be the Director of the Office of Government Information Services.”
Subsec. (h)(2)(C). Pub. L. 114–185, § 2(5)(B), added subpar. (C) and struck out former subpar. (C) which read as follows: “recommend policy changes to Congress and the President to improve the administration of this section.”
Subsec. (h)(3). Pub. L. 114–185, § 2(5)(C), added par. (3) and struck out former par. (3) which read as follows: “The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute.”
Subsec. (h)(4) to (6). Pub. L. 114–185, § 2(5)(D), added pars. (4) to (6).
Subsec. (j). Pub. L. 114–185, § 2(6), added subsec. (j) and struck out former subsec. (j) which read as follows: “Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).”
Subsec. (k). Pub. L. 114–185, § 2(6), added subsec. (k) and struck out former subsec. (k) which related to authority and responsibilities of the Chief FOIA Officer.
Subsec. (m). Pub. L. 114–185, § 2(7), added subsec. (m).
2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and struck out former par. (3) which read as follows: “specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;”.
2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, § 3, inserted concluding provisions.
Subsec. (a)(4)(A)(viii). Pub. L. 110–175, § 6(b)(1)(A), added cl. (viii).
Subsec. (a)(4)(E). Pub. L. 110–175, § 4(a), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (a)(4)(F). Pub. L. 110–175, § 5, designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110–175, § 6(a)(1), inserted concluding provisions.
Subsec. (a)(6)(B)(ii). Pub. L. 110–175, § 6(b)(1)(B), inserted after the first sentence “To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency.”
Subsec. (a)(7). Pub. L. 110–175, § 7(a), added par. (7).
Subsec. (b). Pub. L. 110–175, § 12, in concluding provisions, inserted “, and the exemption under which the deletion is made,” after “The amount of information deleted” in second sentence and after “the amount of the information deleted” in third sentence.
Subsec. (e)(1)(B)(ii). Pub. L. 110–175, § 8(a)(1), inserted “the number of occasions on which each statute was relied upon,” after “subsection (b)(3),”.
Subsec. (e)(1)(C). Pub. L. 110–175, § 8(a)(2), inserted “and average” after “median”.
Subsec. (e)(1)(E). Pub. L. 110–175, § 8(a)(3), inserted before semicolon “, based on the date on which the requests were received by the agency”.
Subsec. (e)(1)(F) to (O). Pub. L. 110–175, § 8(a)(4), (5), added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.
Subsec. (e)(2). Pub. L. 110–175, § 8(b)(2), added par. (2). Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 110–175, § 8(b)(1), (c), redesignated par. (2) as (3) and inserted at end “In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.” Former par. (3) redesignated (4).
Subsec. (e)(4) to (6). Pub. L. 110–175, § 8(b)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.
Subsec. (f)(2). Pub. L. 110–175, § 9, added par. (2) and struck out former par. (2) which read as follows: “ ‘record’ and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.”
Subsecs. (h) to (l). Pub. L. 110–175, § 10(a), added subsecs. (h) to (l).
2002—Subsec. (a)(3)(A). Pub. L. 107–306, § 312(1), inserted “and except as provided in subparagraph (E),” after “of this subsection,”.
Subsec. (a)(3)(E). Pub. L. 107–306, § 312(2), added subpar. (E).
1996—Subsec. (a)(2). Pub. L. 104–231, § 4(4), (5), in first sentence struck out “and” at end of subpar. (B) and inserted subpars. (D) and (E).
Pub. L. 104–231, § 4(7), inserted after first sentence “For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.”
Pub. L. 104–231, § 4(1), in second sentence substituted “staff manual, instruction, or copies of records referred to in subparagraph (D)” for “or staff manual or instruction”.
Pub. L. 104–231, § 4(2), inserted before period at end of third sentence “, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made”.
Pub. L. 104–231, § 4(3), inserted after third sentence “If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.”
Pub. L. 104–231, § 4(6), which directed the insertion of the following new sentence after the fifth sentence “Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.”, was executed by making the insertion after the sixth sentence, to reflect the probable intent of Congress and the addition of a new sentence by section 4(3) of Pub. L. 104–231.
Subsec. (a)(3). Pub. L. 104–231, § 5, inserted subpar. (A) designation after “(3)”, redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104–231, § 6, inserted at end “In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).”
Subsec. (a)(6)(A)(i). Pub. L. 104–231, § 8(b), substituted “20 days” for “ten days”.
Subsec. (a)(6)(B). Pub. L. 104–231, § 7(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. As used in this subparagraph, ‘unusual circumstances’ means, but only to the extent reasonably necessary to the proper processing of the particular request—
“(i) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
“(ii) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
“(iii) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.”
Subsec. (a)(6)(C). Pub. L. 104–231, § 7(c), designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104–231, § 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104–231, § 8(a), (c), added subpars. (E) and (F).
Subsec. (b). Pub. L. 104–231, § 9, inserted at end of closing provisions “The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.”
Subsec. (e). Pub. L. 104–231, § 10, amended subsec. (e) generally, revising and restating provisions relating to reports to Congress.
Subsec. (f). Pub. L. 104–231, § 3, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: “For purposes of this section, the term ‘agency’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”
Subsec. (g). Pub. L. 104–231, § 11, added subsec. (g).
1986—Subsec. (a)(4)(A). Pub. L. 99–570, § 1803, amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”
Subsec. (b)(7). Pub. L. 99–570, § 1802(a), amended par. (7) generally. Prior to amendment, par. (7) read as follows: “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;”.
Subsecs. (c) to (f). Pub. L. 99–570, § 1802(b), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
1984—Subsec. (a)(4)(D). Pub. L. 98–620 repealed subpar. (D) which provided for precedence on the docket and expeditious disposition of district court proceedings authorized by subsec. (a).
1978—Subsec. (a)(4)(F). Pub. L. 95–454 substituted references to the Special Counsel for references to the Civil Service Commission wherever appearing and reference to his findings for reference to its findings.
1976—Subsec. (b)(3). Pub. L. 94–409 inserted provision excluding section 552b of this title from applicability of exemption from disclosure and provision setting forth conditions for statute specifically exempting disclosure.
1974—Subsec. (a)(2). Pub. L. 93–502, § 1(a), substituted provisions relating to maintenance and availability of current indexes, for provisions relating to maintenance and availability of a current index, and inserted provisions relating to publication and distribution of copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93–502, § 1(b)(1), substituted provisions requiring requests to reasonably describe records for provisions requiring requests, for identifiable records, and struck out provisions setting forth procedures to enjoin agencies from withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93–502, § 1(b)(2), added par. (4) and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93–502, § 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93–502, § 2(a), designated existing provisions as cl. (A), substituted “authorized under criteria established by an” for “required by”, and added cl. (B).
Subsec. (b)(7). Pub. L. 93–502, § 2(b), substituted provisions relating to exemption for investigatory records compiled for law enforcement purposes, for provisions relating to exemption for investigatory files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93–502, § 2(c), inserted provision relating to availability of segregable portion of records.
Subsecs. (d), (e). Pub. L. 93–502, § 3, added subsecs. (d) and (e).
1967—Subsec. (a). Pub. L. 90–23 substituted introductory statement requiring every agency to make available to the public certain information for former introductory provision excepting from disclosure (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating to internal management of an agency, covered in subsec. (b)(1) and (2) of this section.
Subsec. (a)(1). Pub. L. 90–23 incorporated provisions of: former subsec. (b)(1) in (A), inserting requirement of publication of names of officers as sources of information and provision for public to obtain decisions, and striking out publication requirement for delegations by the agency of final authority; former subsec. (b)(2), introductory part, in (B); former subsec. (b)(2), concluding part, in (C), inserting publication requirement for rules of procedure and descriptions of forms available or the places at which forms may be obtained; former subsec. (b)(3), introductory part, in (D), inserting requirement of general applicability of substantive rules and interpretations, added clause (E), substituted exemption of any person from failure to resort to any matter or from being adversely affected by any matter required to be published in the Federal Register but not so published for former subsec. (b)(3), concluding part, excepting from publication rules addressed to and served upon named persons in accordance with laws and final sentence reading “A person may not be required to resort to organization or procedure not so published” and inserted provision deeming matter, which is reasonably available, as published in the Federal Register when such matter is incorporated by reference in the Federal Register with the approval of its Director.
Subsec. (a)(2). Pub. L. 90–23 incorporated provisions of former subsec. (c), provided for public copying of records, struck out requirement of agency publication of final opinions or orders and authority for secrecy and withholding of opinions and orders required for good cause to be held confidential and not cited as precedents, latter provision now superseded by subsec. (b) of this section, designated existing subsec. (c) as clause (A), including provision for availability of concurring and dissenting opinions, inserted provisions for availability of policy statements and interpretations in clause (B) and staff manuals and instructions in clause (C), deletion of personal identifications from records to protect personal privacy with written justification therefor, and provision for indexing and prohibition of use of records not indexed against any private party without actual and timely notice of the terms thereof.
Subsec. (a)(3). Pub. L. 90–23 incorporated provisions of former subsec. (d) and substituted provisions requiring identifiable agency records to be made available to any person upon request and compliance with rules as to time, place, and procedure for inspection, and payment of fees and provisions for Federal district court proceedings de novo for enforcement by contempt of noncompliance with court’s orders with the burden on the agency and docket precedence for such proceedings for former provisions requiring matters of official record to be made available to persons properly and directly concerned except information held confidential for good cause shown, the latter provision superseded by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90–23 added par. (4).
Subsec. (b). Pub. L. 90–23 added subsec. (b) which superseded provisions excepting from disclosure any function of the United States requiring secrecy in the public interest or any matter relating to internal management of an agency, formerly contained in former subsec. (a), final opinions or orders required for good cause to be held confidential and not cited as precedents, formerly contained in subsec. (c), and information held confidential for good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90–23 added subsec. (c).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date of 2016 Amendment
Pub. L. 114–185, § 6, June 30, 2016, 130 Stat. 544, provided that:
“This Act [amending this section and
section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under this section and
section 101 of this title], and the amendments made by this Act, shall take effect on the date of enactment of this Act [
June 30, 2016] and shall apply to any request for records under
section 552 of title 5, United States Code, made after the date of enactment of this Act.”
Effective Date of 2007 Amendment
Pub. L. 110–175, § 6(a)(2), Dec. 31, 2007, 121 Stat. 2526, provided that:
“The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007].”
Pub. L. 110–175, § 6(b)(2), Dec. 31, 2007, 121 Stat. 2526, provided that:
“The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [
Dec. 31, 2007] and apply to requests for information under
section 552 of title 5, United States Code, filed on or after that effective date.”
Pub. L. 110–175, § 7(b), Dec. 31, 2007, 121 Stat. 2527, provided that:
“The amendment made by this section [amending this section] shall take effect 1 year after the date of enactment of this Act [
Dec. 31, 2007] and apply to requests for information under
section 552 of title 5, United States Code, filed on or after that effective date.”
Pub. L. 110–175, § 10(b), Dec. 31, 2007, 121 Stat. 2530, provided that:
“The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Dec. 31, 2007].”
Effective Date of 1996 Amendment
Pub. L. 104–231, § 12, Oct. 2, 1996, 110 Stat. 3054, provided that:
“(a) In General.—
Except as provided in subsection (b), this Act [amending this section and enacting provisions set out as notes below] shall take effect 180 days after the date of the enactment of this Act [Oct. 2, 1996].
“(b) Provisions Effective on Enactment [sic].—
Sections 7 and 8 [amending this section] shall take effect one year after the date of the enactment of this Act [Oct. 2, 1996].”
Effective Date of 1986 Amendment
Pub. L. 99–570, title I, § 1804, Oct. 27, 1986, 100 Stat. 3207–50, provided that:
“(a)
The amendments made by section 1802 [amending this section] shall be effective on the date of enactment of this Act [Oct. 27, 1986], and shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date.
“(b)
(1)
The amendments made by section 1803 [amending this section] shall be effective 180 days after the date of enactment of this Act [Oct. 27, 1986], except that regulations to implement such amendments shall be promulgated by such 180th day.
“(2)
The amendments made by section 1803 [amending this section] shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date, except that review charges applicable to records requested for commercial use shall not be applied by an
agency to requests made before the effective date specified in paragraph (1) of this subsection or before the
agency has finally issued its regulations.”
Effective Date of 1974 Amendment
Pub. L. 93–502, § 4, Nov. 21, 1974, 88 Stat. 1564, provided that:
“The amendments made by this Act [amending this section] shall take effect on the ninetieth day beginning after the date of enactment of this Act [Nov. 21, 1974].”
Effective Date of 1967 Amendment
Pub. L. 90–23, § 4, June 5, 1967, 81 Stat. 56, provided that:
“This Act [amending this section] shall be effective July 4, 1967, or on the date of enactment [June 5, 1967], whichever is later.”
Review and Issuance of Regulations
Pub. L. 114–185, § 3, June 30, 2016, 130 Stat. 544, provided that:
“(a) In General.—
Not later than 180 days after the date of enactment of this Act [
June 30, 2016], the head of each
agency (as defined in
section 551 of title 5, United States Code) shall review the regulations of such
agency and shall issue regulations on procedures for the disclosure of records under
section 552 of title 5, United States Code, in accordance with the amendments made by section 2 [amending this section].
“(b) Requirements.—
The regulations of each
agency shall include procedures for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services.”
Treatment of Information in Catch a Serial Offender Program for Certain Purposes
Pub. L. 116–92, div. A, title V, § 550, Dec. 20, 2019, 133 Stat. 1379, provided that:
“(a) Treatment Under FOIA.—
Victim disclosures under the Catch a Serial Offender Program shall be withheld from public disclosure under paragraph (b)(3) of
section 552 of title 5, United States Code (commonly referred to as the ‘
Freedom of Information Act’).
“(b) Preservation of Restricted Report.—
The transmittal or receipt in connection with the Catch a Serial Offender Program of a report on a sexual assault that is treated as a restricted report shall not operate to terminate its treatment or status as a restricted report.”
Protected National Security Documents
Pub. L. 111–83, title V, § 565, Oct. 28, 2009, 123 Stat. 2184, provided that:
“(b)
Notwithstanding any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under
section 552 of title 5, United States Code[,] or any proceeding under that section.
“(c) Definitions.—In this section:
“(1) Protected document.—The term ‘protected document’ means any record—
“(A)
for which the Secretary of Defense has issued a certification, as described in subsection (d), stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and
“(B) that is a photograph that—
“(i)
was taken during the period beginning on September 11, 2001, through January 22, 2009; and
“(ii)
relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.
“(2) Photograph.—
The term ‘photograph’ encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.
“(d) Certification.—
“(1) In general.—
For any photograph described under subsection (c)(1), the Secretary of Defense shall issue a certification if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.
“(2) Certification expiration.—
A certification and a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on which the certification or renewal, [sic] is issued by the Secretary of Defense.
“(3) Certification renewal.—The Secretary of Defense may issue—
“(A)
a renewal of a certification at any time; and
“(B)
more than 1 renewal of a certification.
“(4) Notice to congress.—
The Secretary of Defense shall provide Congress a timely notice of the Secretary’s issuance of a certification and of a renewal of a certification.
“(e) Rule of Construction.—
Nothing in this section shall be construed to preclude the voluntary disclosure of a protected document.
“(f) Effective Date.—
This section shall take effect on the date of enactment of this Act [Oct. 28, 2009] and apply to any protected document.”
Findings
Pub. L. 110–175, § 2, Dec. 31, 2007, 121 Stat. 2524, provided that:
“Congress finds that—
“(1) the Freedom of Information Act [probably means Pub. L. 89–487 which amended section 1002 of former Title 5, Executive Departments and Government Officers and Employees, see Historical and Revision notes above] was signed into law on July 4, 1966, because the American people believe that—
“(A)
our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;
“(B)
such consent is not meaningful unless it is informed consent; and
“(C)
as Justice Black noted in his concurring opinion in Barr v. Matteo (
360 U.S. 564 (1959)), ‘The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.’;
“(2)
the American people firmly believe that our system of government must itself be governed by a presumption of openness;
“(3)
the
Freedom of Information Act establishes a ‘strong presumption in favor of disclosure’ as noted by the United States Supreme Court in United States
Department of State v. Ray (
502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;
“(4)
‘disclosure, not secrecy, is the dominant objective of the Act,’ as noted by the United States Supreme Court in Department of Air Force v. Rose (
425 U.S. 352 (1976));
“(6)
Congress should regularly review
section 552 of title 5, United States Code (commonly referred to as the
Freedom of Information Act), in
order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the ‘need to know’ but upon the fundamental ‘right to know’.”
Limitation on Amounts Obligated or Expended From Claims and Judgment Fund
Pub. L. 110–175, § 4(b), Dec. 31, 2007, 121 Stat. 2525, provided that:
“Notwithstanding
section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under
section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal
agency against which a claim or judgment has been rendered.”
Nondisclosure of Certain Products of Commercial Satellite Operations
Pub. L. 108–375, div. A, title IX, § 914, Oct. 28, 2004, 118 Stat. 2029, provided that:
“(a) Mandatory Disclosure Requirements Inapplicable.—
The requirements to make information available under
section 552 of title 5, United States Code, shall not apply to land remote sensing information.
“(b) Land Remote Sensing Information Defined.—In this section, the term ‘land remote sensing information’—
“(1) means any data that—
“(A)
are collected by land remote sensing; and
“(2)
includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating
license described in paragraph (1)(B).
“(c) State or Local Government Disclosures.—
Land remote sensing information provided by the head of a department or
agency of the United States to a State, local, or tribal government may not be made available to the general public under any State, local, or tribal law relating to the disclosure of information or records.
“(d) Safeguarding Information.—
The head of each department or
agency of the United States having land remote sensing information within that department or
agency or providing such information to a State, local, or tribal government shall take such actions, commensurate with the sensitivity of that information, as are necessary to protect that information from disclosure other than in accordance with this section and other applicable law.
“(f) Disclosure to Congress.—
Nothing in this section shall be construed to authorize the withholding of information from the appropriate committees of Congress.”
Disclosure of Arson, Explosive, or Firearm Records
Pub. L. 108–7, div. J, title VI, § 644, Feb. 20, 2003, 117 Stat. 473, provided that:
“No funds appropriated under this Act or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of
5 U.S.C. 552 with respect to records collected or maintained pursuant to
18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State, local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of a firearm, except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under
5 U.S.C. 552 prior to the date of the enactment of this Act [
Feb. 20, 2003].”
Disclosure of Information on Japanese Imperial Government
Pub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864, as amended by Pub. L. 108–199, div. H, § 163, Jan. 23, 2004, 118 Stat. 452; Pub. L. 109–5, § 1, Mar. 25, 2005, 119 Stat. 19, provided that:
“SEC. 802. DESIGNATION.
“(a) Definitions.—In this section:
“(2) Interagency group.—
The term ‘Interagency Group’ means the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group established under subsection (b).
“(3) Japanese imperial government records.—The term ‘Japanese Imperial Government records’ means classified records or portions of records that pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the experimentation on, and persecution of, any person because of race, religion, national origin, or political opinion, during the period beginning September 18, 1931, and ending on December 31, 1948, under the direction of, or in association with—
“(A)
the Japanese Imperial Government;
“(B)
any government in any area occupied by the military forces of the Japanese Imperial Government;
“(C)
any government established with the assistance or cooperation of the Japanese Imperial Government; or
“(D)
any government which was an ally of the Japanese Imperial Government.
“(4) Record.—
The term ‘record’ means a Japanese Imperial Government record.
“(b) Establishment of Interagency Group.—
“(1) In general.—
Not later than 60 days after the date of the enactment of this Act [
Dec. 27, 2000], the President shall designate the Working Group established under the
Nazi War Crimes Disclosure Act (
Public Law 105–246;
5 U.S.C. 552 note) to also carry out the purposes of this title with respect to Japanese Imperial Government records, and that Working Group shall remain in existence for 6 years after the date on which this title takes effect. Such Working Group is redesignated as the ‘Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group’.
“(c) Functions.—Not later than 1 year after the date of the enactment of this Act [Dec. 27, 2000], the Interagency Group shall, to the greatest extent possible consistent with section 803—
“(1)
locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Japanese Imperial Government records of the United States;
“(2)
coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and
“(3)
submit a report to Congress, including the Committee on Government Reform [now Committee on Oversight and Accountability] and the Permanent Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.
“(d) Funding.—
There is authorized to be appropriated such sums as may be necessary to carry out the provisions of this title.
“SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.
“(a) Release of Records.—
Subject to subsections (b), (c), and (d), the Japanese Imperial Government Records Interagency Working Group shall release in their entirety Japanese Imperial Government records.
“(b) Exemptions.—An agency head may exempt from release under subsection (a) specific information, that would—
“(1)
constitute an unwarranted invasion of personal privacy;
“(2)
reveal the identity of a confidential human source, or reveal information about an intelligence source or method when the unauthorized disclosure of that source or method would damage the national security interests of the United States;
“(3)
reveal information that would assist in the development or use of weapons of mass destruction;
“(4)
reveal information that would impair United States cryptologic systems or activities;
“(5)
reveal information that would impair the application of state-of-the-art technology within a United States weapon system;
“(6)
reveal United States military war plans that remain in effect;
“(7)
reveal information that would impair relations between the United States and a foreign government, or undermine ongoing diplomatic activities of the United States;
“(8)
reveal information that would impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services are authorized in the interest of national security;
“(9)
reveal information that would impair current national security emergency preparedness plans; or
“(10)
violate a treaty or other international agreement.
“(c) Applications of Exemptions.—
“(1) In general.—
In applying the exemptions provided in paragraphs (2) through (10) of subsection (b), there shall be a presumption that the public interest will be served by disclosure and release of the records of the Japanese Imperial Government. The exemption may be asserted only when the head of the
agency that maintains the records determines that disclosure and release would be harmful to a specific interest identified in the exemption. An
agency head who makes such a determination shall promptly report it to the committees of
Congress with appropriate jurisdiction, including the Committee on the Judiciary and the Select Committee on Intelligence of the
Senate and the Committee on Government Reform [now Committee on Oversight and Accountability] and the Permanent Select Committee on Intelligence of the
House of Representatives.
“(2) Application of title 5.—
A determination by an
agency head to apply an exemption provided in paragraphs (2) through (9) of subsection (b) shall be subject to the same standard of review that applies in the case of records withheld under
section 552(b)(1) of title 5, United States Code.
“(d) Records Related to Investigations or Prosecutions.—This section shall not apply to records—
“(1)
related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or
“(2)
solely in the possession, custody, or control of the Office of Special Investigations.
“SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.
“For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any person who was persecuted in the manner described in section 802(a)(3) and who requests a Japanese Imperial Government record shall be deemed to have a compelling need for such record.
“SEC. 805. EFFECTIVE DATE.
“The provisions of this title shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 27, 2000].”
Nazi War Crimes Disclosure
Pub. L. 105–246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub. L. 106–567, § 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided that:
“SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.
“(a) Definitions.—In this section the term—
“(2)
‘Interagency Group’ means the Nazi War Criminal Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, see
section 802(b)(1) of Pub. L. 106–567, set out above] established under subsection (b);
“(3)
‘Nazi war criminal records’ has the meaning given such term under section 3 of this Act; and
“(4)
‘record’ means a Nazi war criminal record.
“(b) Establishment of Interagency Group.—
“(1) In general.—
Not later than 60 days after the date of enactment of this Act [Oct. 8, 1998], the President shall establish the Nazi War Criminal Records Interagency Working Group, which shall remain in existence for 3 years after the date the Interagency Group is established.
“(2) Membership.—
The President shall appoint to the Interagency Group individuals whom the President determines will most completely and effectively carry out the functions of the Interagency Group within the time limitations provided in this section, including the Director of the Holocaust Museum, the Historian of the
Department of State, the Archivist of the United States, the head of any other
agency the President considers appropriate, and no more than 4 other
persons who shall be members of the public, of whom 3 shall be
persons appointed under the provisions of this Act in effect on
October 8, 1998..[sic] The head of an
agency appointed by the President may designate an appropriate officer to serve on the Interagency Group in lieu of the head of such
agency.
“(3) Initial meeting.—
Not later than 90 days after the date of enactment of this Act, the Interagency Group shall hold an initial meeting and begin the functions required under this section.
“(c) Functions.—Not later than 1 year after the date of enactment of this Act [Oct. 8, 1998], the Interagency Group shall, to the greatest extent possible consistent with section 3 of this Act—
“(1)
locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Nazi war criminal records of the United States;
“(2)
coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and
“(3)
submit a report to Congress, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Accountability] of the House of Representatives, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.
“(d) Funding.—
There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.
“SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.
“(a) Nazi War Criminal Records.—For purposes of this Act, the term ‘Nazi war criminal records’ means classified records or portions of records that—
“(1) pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
“(A)
the Nazi government of Germany;
“(B)
any government in any area occupied by the military forces of the Nazi government of Germany;
“(C)
any government established with the assistance or cooperation of the Nazi government of Germany; or
“(D)
any government which was an ally of the Nazi government of Germany; or
“(2) pertain to any transaction as to which the United States Government, in its sole discretion, has grounds to believe—
“(A)
involved assets taken from persecuted
persons during the period beginning on
March 23, 1933, and ending on
May 8, 1945, by, under the direction of, on behalf of, or under authority granted by the Nazi government of Germany or any nation then allied with that government; and
“(B)
such transaction was completed without the assent of the owners of those assets or their heirs or assigns or other legitimate representatives.
“(b) Release of Records.—
“(1) In general.—
Subject to paragraphs (2), (3), and (4), the Nazi War Criminal Records Interagency Working Group shall release in their entirety Nazi war criminal records that are described in subsection (a).
“(2) Exception for privacy, etc.—An agency head may exempt from release under paragraph (1) specific information, that would—
“(A)
constitute a clearly unwarranted invasion of personal privacy;
“(B)
reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;
“(C)
reveal information that would assist in the development or use of weapons of mass destruction;
“(D)
reveal information that would impair United States cryptologic systems or activities;
“(E)
reveal information that would impair the application of state-of-the-art technology within a United States weapon system;
“(F)
reveal actual United States military war plans that remain in effect;
“(G)
reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;
“(H)
reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;
“(I)
reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or
“(J)
violate a treaty or international agreement.
“(3) Application of exemptions.—
“(A) In general.—
In applying the exemptions listed in subparagraphs (B) through (J) of paragraph (2), there shall be a presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records. Assertion of such exemption may only be made when the
agency head determines that disclosure and release would be harmful to a specific interest identified in the exemption. An
agency head who makes such a determination shall promptly report it to the committees of
Congress with appropriate jurisdiction, including the Committee on the Judiciary of the
Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Accountability] of the
House of Representatives. The exemptions set forth in paragraph (2) shall constitute the only authority pursuant to which an
agency head may exempt records otherwise subject to release under paragraph (1).
“(B) Application of title 5.—
A determination by an
agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be subject to the same standard of review that applies in the case of records withheld under
section 552(b)(1) of title 5, United States Code.
“(4) Limitation on application.—This subsection shall not apply to records—
“(A)
related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or
“(B)
solely in the possession, custody, or control of that office.
“(c) Inapplicability of National Security Act of 1947 Exemption.—
Section 701(a) of the
National Security Act of 1947 (
50 U.S.C. 431[(a)]) [now
50 U.S.C. 3141(a)] shall not apply to any operational file, or any portion of any operational file, that constitutes a Nazi war criminal record under section 3 of this Act.
“SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.
“(b) Requester.—
For purposes of this section, the term ‘requester’ means any
person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war criminal record.
“SEC. 5. EFFECTIVE DATE.
“This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act [Oct. 8, 1998].”
Congressional Statement of Findings and Purpose; Public Access to Information in Electronic Format
Pub. L. 104–231, § 2, Oct. 2, 1996, 110 Stat. 3048, provided that:
“(a) Findings.—The Congress finds that—
“(1)
the purpose of
section 552 of title 5, United States Code, popularly known as the
Freedom of Information Act, is to require agencies of the Federal Government to make certain
agency information available for public inspection and copying and to establish and enable enforcement of the right of any
person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose;
“(4)
the
Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;
“(5)
Government agencies increasingly use computers to conduct
agency business and to store publicly valuable
agency records and information; and
“(6)
Government agencies should use new technology to enhance public access to
agency records and information.
“(b) Purposes.—The purposes of this Act [see Short Title of 1996 Amendment note above] are to—
“(1)
foster democracy by ensuring public access to
agency records and information;
“(2)
improve public access to
agency records and information;
“(3)
ensure
agency compliance with statutory time limits; and
“(4)
maximize the usefulness of
agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.”
Freedom of Information Act Exemption for Certain Open Skies Treaty Data
Pub. L. 103–236, title V, § 533, Apr. 30, 1994, 108 Stat. 480, provided that:
“(a) In General.—Data with respect to a foreign country collected by sensors during observation flights conducted in connection with the Treaty on Open Skies, including flights conducted prior to entry into force of the treaty, shall be exempt from disclosure under the Freedom of Information Act—
“(1)
if the country has not disclosed the data to the public; and
“(2)
if the country has not, acting through the Open Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.
“(b) Statutory Construction.—
This section constitutes a specific exemption within the meaning of
section 552(b)(3) of title 5, United States Code.
“(c) Definitions.—For the purposes of this section—
“(2)
the term ‘Open Skies Consultative Commission’ means the commission established pursuant to Article X of the Treaty on Open Skies; and
“(3)
the term ‘Treaty on Open Skies’ means the Treaty on Open Skies, signed at Helsinki on March 24, 1992.”
Executive Documents
Classified National Security Information
For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.
Ex. Ord. No. 12600. Predisclosure Notification Procedures for Confidential Commercial Information
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to provide predisclosure notification procedures under the Freedom of Information Act [5 U.S.C. 552] concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows:
Section 1. The head of each Executive department and agency subject to the Freedom of Information Act [5 U.S.C. 552] shall, to the extent permitted by law, establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order, when those records are requested under the Freedom of Information Act [FOIA], 5 U.S.C. 552, as amended, if after reviewing the request, the responsive records, and any appeal by the requester, the department or agency determines that it may be required to disclose the records. Such notice requires that an agency use good-faith efforts to advise submitters of confidential commercial information of the procedures established under this Order. Further, where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
Sec. 2. For purposes of this Order, the following definitions apply:
(a) “Confidential commercial information” means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(b) “Submitter” means any person or entity who provides confidential commercial information to the government. The term “submitter” includes, but is not limited to, corporations, state governments, and foreign governments.
Sec. 3. (a) For confidential commercial information submitted prior to January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, provide a submitter with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.
(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm.
Sec. 4. When notification is made pursuant to section 1, each agency’s procedures shall, to the extent permitted by law, afford the submitter a reasonable period of time in which the submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.
Sec. 5. Each agency shall give careful consideration to all such specified grounds for nondisclosure prior to making an administrative determination of the issue. In all instances when the agency determines to disclose the requested records, its procedures shall provide that the agency give the submitter a written statement briefly explaining why the submitter’s objections are not sustained. Such statement shall, to the extent permitted by law, be provided a reasonable number of days prior to a specified disclosure date.
Sec. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, each agency’s procedures shall require that the submitter be promptly notified.
Sec. 7. The designation and notification procedures required by this Order shall be established by regulations, after notice and public comment. If similar procedures or regulations already exist, they should be reviewed for conformity and revised where necessary. Existing procedures or regulations need not be modified if they are in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be followed if:
(a) The agency determines that the information should not be disclosed;
(b) The information has been published or has been officially made available to the public;
(c) Disclosure of the information is required by law (other than 5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1) was adopted pursuant to notice and public comment, (2) specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;
(e) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or
(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to section 7 appears obviously frivolous; except that, in such case, the agency must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.
Sec. 9. Whenever an agency notifies a submitter that it may be required to disclose information pursuant to section 1 of this Order, the agency shall also notify the requester that notice and an opportunity to comment are being provided the submitter. Whenever an agency notifies a submitter of a final decision pursuant to section 5 of this Order, the agency shall also notify the requester.
Sec. 10. This Order is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Ex. Ord. No. 13110. Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Nazi War Crimes Disclosure Act (Public Law 105–246) (the “Act”) [5 U.S.C. 552 note], it is hereby ordered as follows:
Section 1. Establishment of Working Group. There is hereby established the Nazi War Criminal Records Interagency Working Group [now Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group] (Working Group). The function of the Group shall be to locate, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration all classified Nazi war criminal records of the United States, subject to certain designated exceptions as provided in the Act. The Working Group shall coordinate with agencies and take such actions as necessary to expedite the release of such records to the public.
Sec. 2. Schedule. The Working Group should complete its work to the greatest extent possible and report to the Congress within 1 year.
Sec. 3. Membership. (a) The Working Group shall be composed of the following members:
(1) Archivist of the United States (who shall serve as Chair of the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the National Security Council will serve as the liaison to and attend the meetings of the Working Group. Members of the Working Group who are full-time Federal officials may serve on the Working Group through designees.
Sec. 4. Administration. (a) To the extent permitted by law and subject to the availability of appropriations, the National Archives and Records Administration shall provide the Working Group with funding, administrative services, facilities, staff, and other support services necessary for the performance of the functions of the Working Group.
(b) The Working Group shall terminate 3 years from the date of this Executive order.
Ex. Ord. No. 13392. Improving Agency Disclosure of Information
Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of section 552 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy.
(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) [5 U.S.C. 552] has provided an important means through which the public can obtain information regarding the activities of Federal agencies. Under the FOIA, the public can obtain records from any Federal agency, subject to the exemptions enacted by the Congress to protect information that must be held in confidence for the Government to function effectively or for other purposes.
(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency’s website), and about the status of a person’s FOIA request and appropriate information about the agency’s response.
(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency’s FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.
(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.
Sec. 2. Agency Chief FOIA Officers.
(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:
(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency’s Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing the FOIA, including the extent to which the agency meets the milestones in the agency’s plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;
(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;
(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing the FOIA; and
(v) facilitate public understanding of the purposes of the FOIA’s statutory exemptions by including concise descriptions of the exemptions in both the agency’s FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency’s annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.
(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person’s FOIA request and appropriate information about the agency’s FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;
(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its Center or Centers on the agency’s website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website nor the capability to post on the Firstgov.gov website, in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency’s implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.
Sec. 3. Review, Plan, and Report.
(a) Review. Each agency’s Chief FOIA Officer shall conduct a review of the agency’s FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency’s administration of the FOIA, including the agency’s expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;
(iii) examine the agency’s:
(A) use of information technology in responding to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;
(B) practices with respect to requests for expedited processing; and
(C) implementation of multi-track processing if used by such agency;
(iv) review the agency’s policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in section 552(a)(2) of title 5, United States Code; and
(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.
(b) Plan.
(i) Each agency’s Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency’s administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency’s implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency’s FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.
(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency’s Center and its FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency’s success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency’s plan under section 3(b) of this order. The agency shall publish a copy of the agency’s report on the agency’s website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.
(ii) The head of each agency shall include in the agency’s annual FOIA reports for fiscal years 2006 and 2007 a report on the agency’s development and implementation of its plan under section 3(b) of this order and on the agency’s performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under section 552(e) of title 5, United States Code.
(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the Attorney General;
(B) explain in the annual report the reasons for the agency’s failure to meet the milestone;
(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President’s Management Council.
Sec. 4. Attorney General.
(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President, no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies’ implementation of the FOIA and of their plans under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.
Sec. 5. OMB Director. The OMB Director may issue such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b) and 3(c) of this order.
Sec. 6. Definitions. As used in this order:
(a) the term “agency” has the same meaning as the term “agency” under section 552(f)(1) of title 5, United States Code; and
(b) the term “record” has the same meaning as the term “record” under section 552(f)(2) of title 5, United States Code.
Sec. 7. General Provisions.
(a) The agency reviews under section 3(a) of this order and agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and
(iii) is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
Ex. Ord. No. 13642. Making Open and Machine Readable the New Default for Government Information
Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. General Principles. Openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth. As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.
Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans’ lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.
To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.
Sec. 2. Open Data Policy. (a) The Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the management of Government information as an asset, consistent with my memorandum of January 21, 2009 (Transparency and Open Government), OMB Memorandum M–10–06 (Open Government Directive), OMB and National Archives and Records Administration Memorandum M–12–18 (Managing Government Records Directive), the Office of Science and Technology Policy Memorandum of February 22, 2013 (Increasing Access to the Results of Federally Funded Scientific Research), and the CIO’s strategy entitled “Digital Government: Building a 21st Century Platform to Better Serve the American People.” The Open Data Policy shall be updated as needed.
(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.
Sec. 3. Implementation of the Open Data Policy. To facilitate effective Government-wide implementation of the Open Data Policy, I direct the following:
(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.
(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.
(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President’s Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111–352).
(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
(e) Independent agencies are requested to adhere to this order.
Freedom of Information Act
Memorandum of President of the United States, Jan. 21, 2009, 74 F.R. 4683, provided:
Memorandum for the Heads of Executive Departments and Agencies
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.
This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.
