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Extract of the United States Code, Title 5. Sections 102, 105, 551, and 552.
5 USC Sec. 102 01/22/02
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 1 - ORGANIZATION
(horizontal blue rule indicates portions which are omitted)
Sec. 102. Military departments
The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 378.)
HISTORICAL AND REVISION NOTES
The section is supplied to avoid the necessity for defining ''military departments'' each time it is used in this title. See section 101(7) of title 10.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 4 section 7; title 15 sections 638, 3703; title 18 section 6001; title 26 section 6050M; title 29 sections 203, 633a; title 31 section 1344; title 35 section 201; title 38 section 4303; title 41 sections 48b, 403, 601; title 42 sections 2000e-16, 10156, 10222.
5 USC Sec. 105 01/22/02
Sec. 105. Executive agency
For the purpose of this title, ''Executive agency'' means an Executive department, a Government corporation, and an independent establishment.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 379.)
-MISC1-
HISTORICAL AND REVISION NOTES
The section is supplied to avoid the necessity for defining ''Executive agency'' each time it is used in this title.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 306, 5372b, 5948 of this title; title 2 sections 130g, 130h; title 7 section 2132; title 10 section 2014; title 15 sections 638, 3301, 3703, 4901, 5802, 6617; title 16 section 2602; title 22 sections 2685, 3641, 6502, 6765; title 29 sections 203, 633a; title 31 section 1353; title 35 section 201; title 38 sections 4211, 4303; title 39 section 416; title 40 sections 174b-2, 175a, 490b-1, 913; title 41 section 48b; title 42 sections 2000e-16, 4071, 4902, 6361, 6964, 7911, 8241, 8802, 10101; title 43 section 2003; title 50 sections 409a, 1601.
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records, and proceedings.
552a. Records about individuals. (FOOTNOTE 1)
(FOOTNOTE 1) So in original. Does not conform to section
catchline.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision.
557. Initial decisions; conclusiveness; review by agency;
submissions by parties; contents of decisions; record.
558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
SHORT TITLE
The provisions of this subchapter and chapter 7 of this title were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the ''Administrative Procedure Act''. That Act was repealed as part of the general revision of this title by Pub. L. 89-554 and its provisions incorporated into this subchapter and chapter 7 hereof.
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in sections 571, 592, 7118, 7134, 8902, 8902a of this title;
title 2 sections 501, 502;
title 7 sections 136d, 1642, 6911;
title 12 sections 635a-2, 1437, 1441a, 1959, 2278a-10, 3349, 4525, 4545;
title 15 sections 78dd-1, 78dd-2, 78ggg, 266, 1715, 3412, 3710a, 5103, 5308;
title 16 sections 460aa-3, 470q, 470hh;
title 17 sections 701, 802;
title 19 sections 1337, 1677c;
title 20 section 107d-2;
title 21 sections 360kk, 811, 824, 875, 958, 971;
title 22 sections 277d-24, 1623, 1645n, 4116;
title 23 sections 134, 135;
title 25 section 954;
title 28 sections 509, 2467;
title 29 sections 156, 164, 213, 481, 628, 792, 1137;
title 30 sections 184, 956;
title 31 sections 321, 3801, 3803;
title 33 sections 524, 597, 2313;
title 39 section 3008;
title 41 section 43a;
title 42 sections 1436c, 2000e-12, 2231, 2236, 2454, 3789d, 6212, 6241, 6393, 7191, 7276, 7420, 7607, 11346, 12116, 12206;
title 43 section 1624;
title 45 sections 1116, 1212;
title 46 sections 7702, 9303;
title 47 sections 303, 305, 310, 409, 1103;
title 49 sections 721, 5303, 11123, 11324, 13905, 20143, 40103, 46102, 46105;
title 50 sections 167h, 835; title 50 App. sections 463, 2159.
For the purpose of this subchapter -
(1) ''agency'' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia; or except as to the requirements of section 552 of this title -
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;
(2) ''person'' includes an individual, partnership, corporation, association, or public or private organization other than an agency;
(3) ''party'' includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;
(4) ''rule'' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;
(5) ''rule making'' means agency process for formulating, amending, or repealing a rule;
(6) ''order'' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;
(7) ''adjudication'' means agency process for the formulation of an order;
(8) ''license'' includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;
(9) ''licensing'' includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;
(10) ''sanction'' includes the whole or a part of an agency -
(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) ''relief'' includes the whole or a part of an agency -
(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or
(C) taking of other action on the application or petition of, and beneficial to, a person;
(12) ''agency proceeding'' means an agency process as defined by paragraphs (5), (7), and (9) of this section;
(13) ''agency action'' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and
(14) ''ex parte communication'' means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94-409, Sec. 4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103-272, Sec. 5(a), July 5, 1994, 108 Stat. 1373.)
AMENDMENTS
1994 - Par. (1)(H). Pub. L. 103-272 substituted ''subchapter II of chapter 471 of title 49; or sections'' for ''or sections 1622,''.
1976 - Par. (14). Pub. L. 94-409 added par. (14).
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.
STUDY AND REPORTS ON ADMINISTRATIVE SUBPOENAS
Pub. L. 106-544, Sec. 7, Dec. 19, 2000, 114 Stat. 2719, provided that:
''(a) Study on Use of Administrative Subpoenas. - Not later than December 31, 2001, the Attorney General, in consultation with the Secretary of the Treasury, shall complete a study on the use of administrative subpoena power by executive branch agencies or entities and shall report the findings to the Committees on the Judiciary of the Senate and the House of Representatives. Such report shall include -
''(1) a description of the sources of administrative subpoena power and the scope of such subpoena power within executive branch agencies;
''(2) a description of applicable subpoena enforcement mechanisms;
''(3) a description of any notification provisions and any other provisions relating to safeguarding privacy interests;
''(4) a description of the standards governing the issuance of administrative subpoenas; and
''(5) recommendations from the Attorney General regarding necessary steps to ensure that administrative subpoena power is used and enforced consistently and fairly by executive branch agencies.
''(b) Report on Frequency of Use of Administrative Subpoenas. -
''(1) In general. - The Attorney General and the Secretary of the Treasury shall report in January of each year to the Committees on the Judiciary of the Senate and the House of Representatives on the number of administrative subpoenas issued by them under this section and the identity of the agency or component of the Department of Justice or the Department of the Treasury issuing the subpoena and imposing the charges.
''(2) Expiration. - The reporting requirement of this subsection shall terminate in 3 years after the date of the enactment of this section (Dec. 19, 2000).''
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 500, 504, 552, 562, 571, 592, 595, 601, 701, 804, 3344, 3348 of this title;
title 2 sections 501, 502, 658, 1602;
title 7 section 6997;
title 15 sections 78d-1, 78w, 632, 637c, 766, 2053, 3412, 3416, 6501;
title 16 section 470w;
title 22 sections 3731, 6033, 6741;
title 25 section 3402;
title 26 sections 6103, 9041;
title 30 sections 185, 956;
title 31 sections 3901, 6101, 7501;
title 41 section 422;
title 42 sections 2231, 2992c, 6107, 6241, 6393, 7191, 8259, 8262, 11317, 11504;
title 46 sections 7702, 9303;
title 47 sections 155, 409;
title 49 sections 106, 114, 11324;
title 50 App. sections 2159, 2412.
5 USC Sec. 552 AKA 'Freedom of Information Act' 01/22/02
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;
(C) administrative staff manuals and instructions to staff that affect a member of the public;
(D) 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
(E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. 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. 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, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, 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. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. 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. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. 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)
(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which
(i) reasonably describes such records and
(ii) 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.
(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system.
(D) For purposes of this paragraph, the term ''search'' means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.
(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 commercial use;
(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. 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).
(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 20 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 subsection.
(B)
(i) 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 unusual circumstances 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, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, ''unusual circumstances'' means, but only to the extent reasonably necessary to the proper processing of the particular requests -
(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.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
(C)
(i) 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.
(ii) For purposes of this subparagraph, the term ''exceptional circumstances'' does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.
(D)
(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.
(E)
(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records -
(I) in cases in which the person requesting the records demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure -
(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term ''compelling need'' means -
(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.
(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 (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(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 privacy;
(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. 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.
(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 Congress.
(e)
(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include -
(A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;
(B)
(i) 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; and
(ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld;
(C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median number of days that such requests had been pending before the agency as of that date;
(D) the number of requests for records received by the agency and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process different types of requests;
(F) the total amount of fees collected by the agency for processing requests; and
(G) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests.
(2) 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.
(3) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in which each such report is issued, that such reports are available by electronic means.
(4) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful.
(5) 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.
(f) For purposes of this section, the term -
(1) ''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; and
(2) ''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.
(g) The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including -
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained by the agency; and
(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section.
-SOURCE-
(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; Pub. L. 104-231, Sec. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054.)
Historical and Revision Notes
1966 Act
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Derivation U.S. Code Revised Statutes and
Statutes at Large
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5 U.S.C. 1002. June 11, 1946, ch.
324, Sec. 3, 60
Stat. 238.
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AMENDMENTS
CHANGE OF NAME
Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999.
SHORT TITLE OF 1996 AMENDMENT
Section 1 of Pub. L. 104-231 provided that: ''This Act (amending this section and enacting provisions set out as notes under this section) may be cited as the 'Electronic Freedom of Information Act Amendments of 1996'.''
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'.''
SHORT TITLE
This section is popularly known as the ''Freedom of Information Act''.
DISCLOSURE OF INFORMATION ON JAPANESE IMPERIAL GOVERNMENT
Pub. L. 106-567, title VIII, Dec. 27, 2000, 114 Stat. 2864, provided that:
''SEC. 801. SHORT TITLE.
''This title may be cited as the 'Japanese Imperial Government Disclosure Act of 2000'.
''SEC. 802. DESIGNATION.
''(a) Definitions. - In this section:
''(1) Agency. - The term 'agency' has the meaning given such term under section 551 of title 5, United States Code.
''(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 3 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'.
''(2) Membership. - (Amended Pub. L. 105-246, set out as a note below.)
''(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 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 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).''
Pub. L. 105-246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub. L. 106-567, Sec. 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided that:
''SECTION 1. SHORT TITLE.
''This Act may be cited as the 'Nazi War Crimes Disclosure Act'.
''SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.
''(a) Definitions. - In this section the term -
''(1) 'agency' has the meaning given such term under section 551 of title 5, United States Code;
''(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 Government Reform) 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 Government Reform) 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))) 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.
''(a) Expedited Processing. -
For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need for such record.
''(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
Section 2 of Pub. L. 104-231 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;
''(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;
''(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;
''(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, Sec. 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 -
''(1) the term 'Freedom of Information Act' means the provisions of section 552 of title 5, United States Code;
''(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.''
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. 12958, Sec. 3.7, Apr. 17, 1995, 60 F.R. 19835, set out as a note under section 435 of Title 50, War and National Defense.
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, formerly 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, 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.
Ronald Reagan.
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.
William J. Clinton.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 551, 552a, 552b, 566, 574, 1216, 7133 of this title;
title 2 sections 472, 501, 502;
title 7 sections 12, 450i, 499f, 608d, 948, 1314g, 1314i, 1508, 1636, 1637b, 1642, 2279b, 5651, 5662, 5906, 7035;
title 8 section 1182;
title 10 sections 128, 130b, 130c, 1034, 1102, 1506, 2304, 2305, 2306a, 2328, 2371, 4595, 7582, 9594;
title 12 sections 1786, 1818, 1828, 1831o, 4611;
title 14 section 645;
title 15 sections 18a, 57b-2, 78m, 78o-5, 78q, 78w, 78x, 78dd-1, 78dd-2, 79z-5c, 80a-30, 80b-10a, 278n, 638, 719d, 773, 796, 1314, 1335a, 2055, 2217, 2613, 3364, 3710a, 4019, 4104, 4107, 4305, 4403, 4606, 4912, 5104, 5308, 7006;
title 16 sections 973j, 1402, 4304, 5937;
title 18 sections 207, 208, 1838;
title 19 sections 1333, 1431, 1509, 1625, 1677f, 2418, 3315;
title 20 sections 1078, 1087-2, 6512;
title 21 sections 360c, 360j, 379, 379f, 830, 1904, 1908;
title 22 sections 2200a, 3902, 4355, 4415, 4604, 4607, 4833, 5841, 6713, 6744;
title 25 sections 450c, 450k, 1951, 2716;
title 26 sections 6103, 6110, 7611, 7803;
title 28 sections 594, 1657;
title 29 sections 1310, 1343, 2635;
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 501, 502, 7451;
title 39 sections 410, 3016;
title 41 sections 253, 253b, 254b, 423, 706;
title 42 sections 263b, 300v-2, 300aa-25, 405, 1306, 1314, 1320c-9, 2167, 2168, 2454, 2996d, 4332, 5916, 5919, 6272-6274, 7135, 7412, 8103, 9122, 9208, 9660, 10704, 13385;
title 44 sections 2201, 2204, 2206, 3501, 3504, 3506, 3533;
title 46 sections 4309, 6305, 7702, 9303;
title 46 App. section 1705;
title 49 sections 106, 706, 10706, 10709, 11162, 14123, 40110;
title 50 sections 403-5b, 431; title 50 App. sections 463, 2158, 2159, 2170, 2406, 2411.