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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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In subsection (b)(3), the words 'formulated and' are omitted as
surplusage. In the last sentence of subsection (b), the words 'in
any manner' are omitted as surplusage since the prohibition is all
inclusive.
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
1967 ACT
Section 1 (of Pub. L. 90-23) amends section 552 of title 5,
United States Code, to reflect Public Law 89-487.
In subsection (a)(1)(A), the words 'employees (and in the case of
a uniformed service, the member)' are substituted for 'officer' to
retain the coverage of Public Law 89-487 and to conform to the
definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words 'A final
order * * * may be relied on * * * only if' are substituted for 'No
final order * * * may be relied upon * * * unless'; and the words
'a party other than an agency' and 'the party' are substituted for
'a private party' and 'the private party', respectively, on
authority of the definition of 'private party' in 5 App. U.S.C.
1002(g).
In subsection (a)(3), the words 'the responsible employee, and in
the case of a uniformed service, the responsible member' are
substituted for 'the responsible officers' to retain the coverage
of Public Law 89-487 and to conform to the definitions in 5 U.S.C.
2101, 2104, and 2105.
In subsection (a)(4), the words 'shall maintain and make
available for public inspection a record' are substituted for
'shall keep a record * * * and that record shall be available for
public inspection'.
In subsection (b)(5) and (7), the words 'a party other than an
agency' are substituted for 'a private party' on authority of the
definition of 'private party' in 5 App. U.S.C. 1002(g).
In subsection (c), the words 'This section does not authorize'
and 'This section is not authority' are substituted for 'Nothing in
this section authorizes' and 'nor shall this section be authority',
respectively.
5 App. U.S.C. 1002(g), defining 'private party' to mean a party
other than an agency, is omitted since the words 'party other than
an agency' are substituted for the words 'private party' wherever
they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted
as unnecessary. That effective date is prescribed by section 4 of
this bill.


CODIFICATION

Section 552 of former Title 5, Executive Departments and
Government Officers and Employees, was transferred to section 2243
of Title 7, Agriculture.


AMENDMENTS

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 disclosure.
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 thereto.
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 production.
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 section.
Subsec. (a)(1). Pub. L. 90-23 incorporated provisions of: former
subsec. (b)(1) in (A), inserting requirement of publication of
names of officers as sources of information and provision for
public to obtain decisions, and striking out publication
requirement for delegations by the agency of final authority;
former subsec. (b)(2), introductory part, in (B); former subsec.
(b)(2), concluding part, in (C), inserting publication requirement
for rules of procedure and descriptions of forms available or the
places at which forms may be obtained; former subsec. (b)(3),
introductory part, in (D), inserting requirement of general
applicability of substantive rules and interpretations, added
clause (E), substituted exemption of any person from failure to
resort to any matter or from being adversely affected by any matter
required to be published in the Federal Register but not so
published for former subsec. (b)(3), concluding part, excepting
from publication rules addressed to and served upon named persons
in accordance with laws and final sentence reading 'A person may
not be required to resort to organization or procedure not so
published' and inserted provision deeming matter, which is
reasonably available, as published in the Federal Register when
such matter is incorporated by reference in the Federal Register
with the approval of its Director.
Subsec. (a)(2). Pub. L. 90-23 incorporated provisions of former
subsec. (c), provided for public copying of records, struck out
requirement of agency publication of final opinions or orders and
authority for secrecy and withholding of opinions and orders
required for good cause to be held confidential and not cited as
precedents, latter provision now superseded by subsec. (b) of this
section, designated existing subsec. (c) as clause (A), including
provision for availability of concurring and dissenting opinions,
inserted provisions for availability of policy statements and
interpretations in clause (B) and staff manuals and instructions in
clause (C), deletion of personal identifications from records to
protect personal privacy with written justification therefor, and
provision for indexing and prohibition of use of records not
indexed against any private party without actual and timely notice
of the terms thereof.
Subsec. (a)(3). Pub. L. 90-23 incorporated provisions of former
subsec. (d) and substituted provisions requiring identifiable
agency records to be made available to any person upon request and
compliance with rules as to time, place, and procedure for
inspection, and payment of fees and provisions for Federal district
court proceedings de novo for enforcement by contempt of
noncompliance with court's orders with the burden on the agency and
docket precedence for such proceedings for former provisions
requiring matters of official record to be made available to
persons properly and directly concerned except information held
confidential for good cause shown, the latter provision superseded
by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90-23 added par. (4).
Subsec. (b). Pub. L. 90-23 added subsec. (b) which superseded
provisions excepting from disclosure any function of the United
States requiring secrecy in the public interest or any matter
relating to internal management of an agency, formerly contained in
former subsec. (a), final opinions or orders required for good
cause to be held confidential and not cited as precedents, formerly
contained in subsec. (c), and information held confidential for
good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90-23 added subsec. (c).

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 this title.

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'.'

SHORT TITLE

This section is popularly known as the 'Freedom of Information
Act'.


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, 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.
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