Freedom of Information Act of 1966 and Amendments (as of Jan. 2, 1991)
From GPO US Code on CD-ROM (GPO S/N 052-001-004-00439-6) $30.00
-CITE- 5 USC Sec. 552
-EXPCITE- TITLE 5 PART I CHAPTER 5 SUBCHAPTER II
-HEAD- Sec. 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) Each agency shall separately state and currently publish in the Federal
Register for the guidance of the public -
A) descriptions of its central and field
organization and the established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the public may obtain
information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by
which its functions are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general policy or interpretations of
general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the
foregoing. Except to the extent that a person has actual and timely notice of the terms
thereof, a person may not in any manner be required to resort to, or be adversely affected
by, a matter required to be published in the Federal Register and not so published. For
the purpose of this paragraph, 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.
(2) Each agency, in accordance with published
rules, shall make available for public inspection and copying -
A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations
which have been adopted by the agency and are not published in the Federal Register; and
(C) administrative staff manuals and instructions
to staff that affect a member of the public; unless the materials are promptly published
and copies offered for sale. To the extent required to prevent a clearly unwarranted
invasion of personal privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy, interpretation, or staff manual or
However, in each case the justification for the
deletion shall be explained fully in writing. Each agency shall also maintain and make
available for public inspection and copying current indexes providing identifying
information for the public as to any matter issued, adopted, or promulgated after July 4,
1967, and required by this paragraph to be made available or published. Each agency shall
promptly publish, quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by order published in the
Federal Register that the publication would be unnecessary and impracticable, in which
case the agency shall nonetheless provide copies of such index on request at a cost not to
exceed the direct cost of duplication. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a member of the public may be
relied on, used, or cited as precedent by an agency against a party other than an agency
only if -
(i) it has been indexed and either made available or published as provided
by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any
request for records which
(A) reasonably describes such records and
(B) is made in accordance with published rules stating the time, place, fees
(if any), and procedures to be followed, shall make the records promptly available
to any person.
(4)(A)(i) In order to carry out the provisions of
this section, each agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the processing of requests
under this section and establishing procedures and guidelines for determining when such
fees should be waived or reduced. Such schedule shall conform to the guidelines which
shall be promulgated, pursuant to notice and receipt of public comment, by the Director of
the Office of Management and Budget and which shall provide for a uniform schedule of fees
for all agencies.
(ii) Such agency regulations shall provide that -
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review, when records are requested for
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not sought for commercial use and the
request is made by an educational or noncommercial scientific institution, whose purpose
is scholarly or scientific research; or a representative of the news media; and
(III) for any request not described in (I) or (II),
fees shall be limited to reasonable standard charges for document search and duplication.
(iii) Documents shall be furnished without any
charge or at a charge reduced below the fees established under clause
(ii) if disclosure of the information is in the
public interest because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily in the commercial
interest of the requester.
(iv) Fee schedules shall provide for the recovery
of only the direct costs of search, duplication, or review. Review costs shall include
only the direct costs incurred during the initial examination of a document for the
purposes of determining whether the documents must be disclosed under this section and for
the purposes of withholding any portions exempt from disclosure under this section. Review
costs may not include any costs incurred in resolving issues of law or policy that may be
raised in the course of processing a request under this section. No fee may be charged by
any agency under this section -
(I) if the costs of routine collection and
processing of the fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II)
or (III) of this subparagraph for the first two hours of search time or for the first one
hundred pages of duplication.
(v) No agency may require advance payment of any
fee unless the requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede
fees chargeable under a statute specifically providing for setting the level of fees for
particular types of records.
(vii) In any action by a requester regarding the
waiver of fees under this section, the court shall determine the matter de novo:
Provided, That the court's review of the matter
shall be limited to the record before the agency.
(B) On complaint, the district court of the United
States in the district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the District of Columbia, has
jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant. In such a case
the court shall determine the matter de novo, and may examine the contents of such agency
records in camera to determine whether such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection (b) of this section, and the burden is
on the agency to sustain its action.
(C) Notwithstanding any other provision of law, the
defendant shall serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the defendant of the pleading in which
such complaint is made, unless the court otherwise directs for good cause shown.
((D) Repealed. Pub. L. 98-620, title IV, Sec.
402(2), Nov. 8, 1984, 98 Stat. 3357.)
(E) The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably incurred in any case under
this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any
agency records improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the court additionally
issues a written finding that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or capriciously with respect to the
withholding, the Special Counsel shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee who was primarily
responsible for the withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his findings and recommendations to
the administrative authority of the agency concerned and shall send copies of the findings
and recommendations to the officer or employee or his representative. The administrative
authority shall take the corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of
the court, the district court may punish for contempt the responsible employee, and in the
case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall
maintain and make available for public inspection a record of the final votes of each
member in every agency proceeding.
(6)(A) Each agency, upon any request for records
made under paragraph (1), (2), or (3) of this subsection, shall -
(i) determine within ten days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of any such request whether to
comply with such request and shall immediately notify the person 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
(ii) make a determination with respect to any
appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after
the receipt of such appeal. If on appeal the denial of the request for records is in whole
or in part upheld, the agency shall notify the person making such request of the
provisions for judicial review of that determination under paragraph (4) of this
(B) 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.
(C) Any person making a request to any agency for
records under paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions of this paragraph. If the Government can
show exceptional circumstances exist and that the agency is exercising due diligence in
responding to the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any determination by an agency
to comply with a request for records, the records shall be made promptly available to such
person making such request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of each person
responsible for the denial of such request.
(b) This section does not apply to matters that are
(1)(A) specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified pursuant to such Executive order;
(2) related solely to the internal personnel rules
and practices of an agency;
(3) 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
particular criteria for withholding or refers to particular types of matters to be
(4) trade secrets and commercial or financial
information obtained from a person and privileged or confidential;
(5) 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;
(6) personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal
(7) records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere with enforcement
proceedings, (B) would deprive a person of a right to a fair trial or an impartial
adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential basis, and, in the case
of a record or information compiled by criminal law enforcement authority in the course of
a criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source, (E) would
disclose techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions; or
(9) geological and geophysical information and
data, including maps, concerning wells. Any reasonably segregable portion of a record
shall be provided to any person requesting such record after deletion of the portions
which are exempt under this subsection.
(c)(1) Whenever a request is made which involves
access to records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible violation of
criminal law; and
(B) there is reason to believe that (i) the subject
of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of
the existence of the records could reasonably be expected to interfere with enforcement
proceedings, the agency may, during only such time as that circumstance continues, treat
the records as not subject to the requirements of this section.
(2) Whenever informant records maintained by a
criminal law enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal identifier, the
agency may treat the records as not subject to the requirements of this section unless the
informant's status as an informant has been officially confirmed.
(3) Whenever a request is made which involves
access to records maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the existence of the
records is classified information as provided in subsection
(b)(1), the Bureau may, as long as the existence of
the records remains classified information, treat the records as not subject to the
requirements of this section.
(d) This section does not authorize withholding of
information or limit the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold information from
(e) On or before March 1 of each calendar year,
each agency shall submit a report covering the preceding calendar year to the Speaker of
the House of Representatives and President of the Senate for referral to the appropriate
committees of the Congress. The report shall include -
(1) the number of determinations made by such
agency not to comply with requests for records made to such agency under subsection (a)
and the reasons for each such determination;
(2) the number of appeals made by persons under
subsection (a)(6), the result of such appeals, and the reason for the action upon each
appeal that results in a denial of information;
(3) the names and titles or positions of each
person responsible for the denial of records requested under this section, and the number
of instances of participation for each;
(4) the results of each proceeding conducted
pursuant to subsection (a)(4)(F), including a report of the disciplinary action taken
against the officer or employee who was primarily responsible for improperly withholding
records or an explanation of why disciplinary action was not taken;
(5) a copy of every rule made by such agency
regarding this section;
(6) a copy of the fee schedule and the total amount
of fees collected by the agency for making records available under this section; and
(7) such other information as indicates efforts to
administer fully this section. The Attorney General shall submit an annual report on or
before March 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
subsections (a)(4)(E), (F), and
(G). Such report shall also include a description of the efforts undertaken by
the Department of Justice to encourage agency compliance with this section.
(f) 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.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub.
L. 90-23, Sec. 1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, Sec. 1-3, Nov. 21, 1974, 88
Stat. 1561-1564; Pub. L. 94-409, Sec. 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-454,
title IX, Sec. 906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, Sec.
402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title I, Sec. 1802, 1803, Oct. 27,
1986, 100 Stat. 3207-48, 3207-49.)
-MISC1- Historical and Revision Notes
Derivation U.S. Code Revised Statutes and Statutes at Large
5 U.S.C. 1002. June 11, 1946, ch. 324, Sec. 3, 60
In subsection (b)(3), the words 'formulated and'
are omitted as surplus age. In the last sentence of subsection (b), the words 'in any
manner' are omitted as surplus age 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
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.
Section 552 of former Title 5, Executive
Departments and Government Officers and Employees, was transferred to section 2243 of
Title 7, Agriculture.
1986 - Subsec. (a)(4)(A). Pub. L. 99-570, Sec.
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, Sec. 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, Sec. 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
1974 - Subsec. (a)(2). Pub. L. 93-502, Sec. 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
Subsec. (a)(3). Pub. L. 93-502, Sec. 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
Subsec. (a)(4), (5). Pub. L. 93-502, Sec. 1(b)(2),
added par. (4) and redesignated former par. (4) as (5). Subsec. (a)(6). Pub. L. 93-502,
Sec. 1(c), added par. (6). Subsec. (b)(1). Pub. L. 93-502, Sec. 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, Sec. 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, Sec.
2(c), inserted provision relating to availability of segregable portion of records.
Subsecs. (d), (e). Pub. L. 93-502, Sec. 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
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
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
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).
EFFECTIVE DATE OF 1986 AMENDMENT
Section 1804 of Pub. L. 99-570 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 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases
pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date
note under section 1657 of Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-454 effective 90 days after
Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days
after Sept. 13, 1976, see section 6 of Pub. L. 94-409, set out as an Effective Date note
under section 552b of this title.
EFFECTIVE DATE OF 1974 AMENDMENT
Section 4 of Pub. L. 93-502 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
Section 4 of Pub. L. 90-23 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.'
SHORT TITLE OF 1986 AMENDMENT
Section 1801 of Pub. L. 99-570 provided that: 'This
subtitle (subtitle N (Sec. 1801-1804) of title I of Pub. L. 99-570, amending this section
and enacting provisions set out as a note under this section) may be cited as the 'Freedom
of Information Reform Act of 1986'.'
This section is popularly known as the 'Freedom of
EXECUTIVE ORDER NO. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609,
which related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb. 17,
1981, 46 F.R. 13193, set out as a note under section 601 of this title.
EX. ORD. NO. 12600. PREDISCLOSURE NOTIFICATION
PROCEDURES FOR CONFIDENTIAL COMMERCIAL INFORMATION
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781,
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
(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
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
(i) the records are less than 10 years old and the
information has been designated by the submitter as confidential commercial information;
(ii) the department or agency has reason to believe
that disclosure of the information could reasonably be expected to cause substantial
(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
(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
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. Ronald Reagan.
Federal Register Act, see section 1502 et seq. of
Title 44, Public Printing and Documents.
Section applicable to functions exercised under
International Wheat Agreement Act of 1949, see section 1642 of Title 7, Agriculture.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 551, 552a,
552b, 584, 586, 1216, 7133 of this title; title 2 sections 472, 501, 502; title 7 sections
509, 608d, 948, 958, 1314g, 1359hh, 1359ii, 1508, 1642, 5651, 5662, 5906; title 10
sections 128, 424, 1034, 1102, 2304, 2328; title 12 sections 1786, 1818; title 15 sections
18a, 57b-2, 78m, 78o-5, 78q, 78w, 78x, 78dd-1, 78dd-2, 278n, 719d, 773, 796, 1314, 1335a,
1418, 2029, 2032, 2055, 2217, 2613, 3364, 3710a, 4019, 4104, 4107, 4305, 4403, 4606, 4912,
5104, 5308; title 16 sections 973j, 1402, 4304; title 18 sections 207, 208; title 19
sections 1333, 1431, 1677f, 2418; title 20 sections 2422, 2836; title 21 sections 360d,
360j, 379, 830; title 22 sections 2200a, 3902, 4415, 4604, 4607, 4833; title 25 sections
450c, 450k, 1951, 2716; title 26 sections 6110, 7611; title 28 sections 594, 1657; title
30 section 1604; title 31 sections 716, 1352, 3729, 3733, 5319; title 33 sections 524,
941, 1513; title 35 sections 202, 209; title 38 sections 223, 4141; title 39 section 410;
title 41 sections 253, 706; title 42 sections 242k, 300v-2, 300aa-25, 405, 1306, 1320c-9,
2167, 2168, 2996d, 4332, 5916, 5919, 6272-6274, 7135, 8103, 9122, 9208, 9660, 10704; title
44 sections 2201, 2204, 2206; title 45 section 546; title 46 sections 4309, 7702, 9303;
title 46 App. sections 93, 1111c, 1705; title 49 sections 10310, 10706, 11164, 11346;
title 49 App. sections 1357, 1805, 1806, 1905, 2511, 2608; title 50 section 431; title 50
App. sections 463, 2158, 2158a, 2159, 2170, 2406, 2411.