69–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–864 

OPEN AND TRANSPARENT SMITHSONIAN ACT OF 2016 

DECEMBER 12, 2016.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. CHAFFETZ, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 3387] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 3387) to amend the Freedom of Information Act, the Privacy Act, and the Federal Advisory Committee Act 

to apply the requirements of such Acts to the Smithsonian Institution, and for other purposes, having considered the same, report favorably thereon with amendments and recommend that the bill as 

amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 2 

Section-by-Section .................................................................................................... 3 

Explanation of Amendments ................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Roll Call Votes ......................................................................................................... 4 

Correspondence ........................................................................................................ 5 

Application of Law to the Legislative Branch ....................................................... 7 

Statement of Oversight Findings and Recommendations of the Committee ...... 7 

Statement of General Performance Goals and Objectives .................................... 7 

Duplication of Federal Programs ............................................................................ 7 

Disclosure of Directed Rule Makings ..................................................................... 7 

Federal Advisory Committee Act ............................................................................ 7 

Unfunded Mandate Statement ............................................................................... 7 

Earmark Identification ............................................................................................ 8 

Committee Estimate ................................................................................................ 8 

Budget Authority and Congressional Budget Office Cost Estimate .................... 8 

Changes in Existing Law Made by the Bill, as Reported ..................................... 8 

The amendments are as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Open and Transparent Smithsonian Act of 2016’’. 


lotter on DSK5VPTVN1PROD with REPORTS
2 

1GAO, SMITHSONIAN INSTITUTION: BOARD OF REGENTS HAS IMPLEMENTED MANY GOVERNANCE

REFORMS, BUT ENSURING ACCOUNTABILITY AND OVERSIGHT WILL REQUIRE ONGOING ACTION

(2008) (GAO–08–632), available at http://gao.gov/products/GAO–08–632. 2 About Us, THE SMITHSONIAN, http://www.si.edu/About (last visited Nov. 28, 2016), and History, THE SMITHSONIAN, http://www.si.edu/about/history (last visited Nov. 28, 2016). 3SMITHSONIAN DASHBOARD, http://dashboard.si.edu/at-the-smithsonian (last visited Nov. 28, 

2016). 4GAO, supra note 1. 

SEC. 2. APPLICATION OF OPEN GOVERNMENT LAWS TO SMITHSONIAN INSTITUTION. 

(a) FREEDOM OF INFORMATION ACT.—Section 552 of title 5, United States Code 

(commonly referred to as the Freedom of Information Act), as amended by section 

2(7) of the FOIA Improvement Act of 2016, is amended by adding at the end the 

following new subsection: 

‘‘(n) For purposes of this section, the Smithsonian Institution shall be considered 

an agency, and the Secretary of the Smithsonian Institution shall be considered the 

head of the agency.’’. 

(b) PRIVACY ACT.—Section 552a(a)(1) of title 5, United States Code (commonly referred to as the Privacy Act), is amended by striking the semicolon at the end and 

inserting ‘‘, except that such term also includes the Smithsonian Institution;’’. 

(c) REQUIRING OPEN MEETINGS.—Section 552b(a)(1) of title 5, United States Code 

(relating to open meetings) is amended by striking the semicolon at the end and inserting ‘‘, except that such term also includes the Smithsonian Institution;’’. 

SEC. 3. EFFECTIVE DATE AND APPLICATION. 

(a) EFFECTIVE DATE.—This Act and the amendments made by this Act shall take 

effect on the date of enactment of this Act. 

(b) APPLICATION.— 

(1) FREEDOM OF INFORMATION ACT; PRIVACY ACT.—Subsections (a) and (b) of 

section 2 and the amendments made by such subsections shall apply to any 

record created before, on, or after the date of the enactment of this Act. 

(2) OPEN MEETINGS.—Subsection (c) of section 2 and the amendments made 

by such subsection shall apply to any meeting held on or after the date of the 

enactment of this Act. 

Amend the title so as to read: 

A bill to amend the Freedom of Information Act and the Privacy 

Act to apply the requirements of such Acts to the Smithsonian Institution, and for other purposes. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

H.R. 3387, the Open and Transparent Smithsonian Act of 2015, 

would foster greater transparency of the nation’s largest museum 

complex by making the Smithsonian Institution subject to the Freedom of Information Act (FOIA), the Privacy Act, and the Government in the Sunshine Act (Sunshine Act). 

BACKGROUND AND NEED FOR LEGISLATION

Established by Congress in 1846, the Smithsonian Institution 

(Smithsonian) holds ‘‘irreplaceable national collections in American 

and natural history, art, and other areas.’’ 1 Originally established 

by a gift to the United States government of more than $500,000, 

the Smithsonian is now the world’s largest museum, education, and 

research complex.2 The Smithsonian hosts tens of millions of visitors annually.3

The Smithsonian is a unique entity within the federal government, falling outside of the three branch structure.4 While many 

laws designate the Smithsonian as an agency, other laws have 

been silent on the issue. As a result, the Smithsonian has mainVerDate Sep 11 2014 06:48 Dec 14, 2016 Jkt 069006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR864.XXX HR864

lotter on DSK5VPTVN1PROD with REPORTS
3 

5GAO, SURVEY OF GOVERNANCE PRACTICES AND THE INSPECTOR GENERAL RULE, 131–132 

(2009) (GAO–09–270), available at http://www.gao.gov/assets/290/288720.pdf. 6GAO, supra note 1. 

tained the interpretation that many good government accountability and transparency laws are inapplicable.5

To increase transparency and accountability at ‘‘America’s museum,’’ H.R. 3387 extends three good government laws to the 

Smithsonian: FOIA, the Privacy Act, and the Sunshine Act.6 Currently, each of these laws is silent with regard to the inclusion of 

the Smithsonian. While the Smithsonian already engages in some 

self-determined transparency and accountability policies, H.R. 3387 

would give the Smithsonian a clear directive from Congress to meet 

existing statutory standards for these laws and ensure that the 

public can expect consistent transparency policies across all federal 

agencies and institutions. 

LEGISLATIVE HISTORY

H.R. 3387, the Open and Transparent Smithsonian Act of 2015, 

was introduced on July 29, 2015 by Delegate Eleanor Holmes Norton (D–DC) and referred to the Committee on Oversight and Government Reform. On November 16, 2016, the Committee ordered 

H.R. 3387 favorably reported, with an amendment in the nature of 

a substitute offered by Del. Norton. 

Del. Norton introduced similar legislation in the three prior Congresses: H.R. 2622 (113th), H.R. 1786 (112th), and H.R. 4775 

(111th). In the 110th Congress, Senator Chuck Grassley (R–IA) introduced a similar bill in the Senate, S. 3276, the Open and Transparent Smithsonian Act of 2008. No further action was taken on 

any of these bills. 

SECTION-BY-SECTION

Section 1. Short title 

The short title of the bill is the ‘‘Open and Transparent Smithsonian Act of 2016.’’ 

Section 2. Application of Open Government Laws to Smithsonian 

Institution 

Section 2(a) requires the Smithsonian to comply with the Freedom of Information Act, 5 U.S.C. § 552. 

Section 2(b) requires the Smithsonian to comply with the Privacy 

Act, 5 U.S.C. § 552a. 

Section 2(c) requires the Smithsonian to comply with the Government in the Sunshine Act, 5 U.S.C. § 552b. 

Section 3. Effective date and application 

Section 3(a) sets the effective date as the date of enactment. 

Section 3(b) applies the FOIA and Privacy Act portions to all 

records created before, on or after the date of enactment and Sunshine Act portion to any meeting held on or after the date of enactment. 


lotter on DSK5VPTVN1PROD with REPORTS
4 

EXPLANATION OF AMENDMENTS

During Full Committee consideration of the bill, Delegate Norton 

offered an amendment in the nature of a substitute to remove the 

provision that made the Smithsonian an advisory committee under 

the Federal Advisory Committee Act and to clarify the application 

of the effective date. The Norton amendment was adopted by voice 

vote. 

COMMITTEE CONSIDERATION

On November 16, 2016, the Committee met in open session and 

ordered reported favorably the bill, H.R. 3387, as amended, by 

voice vote, a quorum being present. 

ROLL CALL VOTES

No roll call votes were requested or conducted during Full Committee consideration of H.R. 3387. 


lotter on DSK5VPTVN1PROD with REPORTS
5 


lotter on DSK5VPTVN1PROD with REPORTSInsert offset folio 8 here HR864.001
6 


lotter on DSK5VPTVN1PROD with REPORTSInsert offset folio 9 here HR864.002
7 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill requires the Smithsonian to comply with FOIA, the Privacy Act, and the Sunshine Act. 

As such this bill does not relate to employment or access to public 

services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives of the bill are to amend the Freedom of Information Act, 

the Privacy Act, and the Federal Advisory Committee Act to apply 

the requirements of such Acts to the Smithsonian Institution. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of this bill establishes or reauthorizes a program of 

the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting this bill does direct the 

completion of specific rule makings within the meaning of 5 U.S.C. 

551. H.R. 3387 requires the Smithsonian to comply with section 

552 of title 5, United States Code, which requires agencies to promulgate regulations on procedures for processing requests for information. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported bill include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 


lotter on DSK5VPTVN1PROD with REPORTS
8 

EARMARK IDENTIFICATION

This bill does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

At the time of this writing, the Committee had yet to receive a 

formal cost estimate from the Congressional Budget Office for H.R. 

3387. However, the Smithsonian already has self-imposed policies 

similar to those that would be mandated in this bill for the Freedom of Information Act and the Privacy Act, and the new requirements for the Smithsonian would involve primarily reporting data 

on activities under those Acts. The Smithsonian would have new 

requirements under the Government in the Sunshine Act, which 

would require more public communication and advance notice of 

public meetings. 

Based on the existing policies at the Smithsonian, the Committee estimates that enacting H.R. 3387 would cost approximately $1 

million over the 2017–2020 period. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has not received a cost estimate for this bill 

from the Director of Congressional Budget Office, and instead has 

included a committee estimate in the section prior to this one. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 5—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE 

* * * * * * * 


lotter on DSK5VPTVN1PROD with REPORTS
9 

§ 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 in an electronic format— 

(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— 

(i) that have been released to any person under paragraph (3); and 

(ii)(I) that 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; or 

(II) that have been requested 3 or more times; 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 agenVerDate Sep 11 2014 06:48 Dec 14, 2016 Jkt 069006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR864.XXX HR864

lotter on DSK5VPTVN1PROD with REPORTS
10 

cy, 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 in an electronic format 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, and except as provided 

in subparagraph (E), 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. 


lotter on DSK5VPTVN1PROD with REPORTS
11 

(E) An agency, or part of an agency, that is an element of the 

intelligence community (as that term is defined in section 3(4) of 

the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not 

make any record available under this paragraph to— 

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision 

thereof; or 

(ii) a representative of a government entity described in 

clause (i). 

(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. 

In this clause, the term ‘‘a representative of the news media’’ 

means any person or entity that gathers information of potential 

interest to a segment of the public, uses its editorial skills to turn 

the raw materials into a distinct work, and distributes that work 

to an audience. In this clause, the term ‘‘news’’ means information 

that is about current events or that would be of current interest 

to the public. Examples of news-media entities are television or 

radio stations broadcasting to the public at large and publishers of 

periodicals (but only if such entities qualify as disseminators of 

‘‘news’’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery 

evolve (for example, the adoption of the electronic dissemination of 

newspapers through telecommunications services), such alternative 

media shall be considered to be news-media entities. A freelance 

journalist shall be regarded as working for a news-media entity if 

the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually 

employed by the entity. A publication contract would present a 

solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such 

a determination. 

(iii) Documents shall be furnished without any charge or at a 

charge reduced below the fees established under clause (ii) if discloVerDate Sep 11 2014 06:48 Dec 14, 2016 Jkt 069006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR864.XXX HR864

lotter on DSK5VPTVN1PROD with REPORTS
12 

sure 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. 

(viii)(I) Except as provided in subclause (II), an agency shall not 

assess any search fees (or in the case of a requester described 

under clause (ii)(II) of this subparagraph, duplication fees) under 

this subparagraph if the agency has failed to comply with any time 

limit under paragraph (6). 

(II)(aa) If an agency has determined that unusual circumstances 

apply (as the term is defined in paragraph (6)(B)) and the agency 

provided a timely written notice to the requester in accordance 

with paragraph (6)(B), a failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with 

the extended time limit, the agency may not assess any search fees 

(or in the case of a requester described under clause (ii)(II) of this 

subparagraph, duplication fees). 

(bb) If an agency has determined that unusual circumstances 

apply and more than 5,000 pages are necessary to respond to the 

request, an agency may charge search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) if the agency has provided a timely written notice to 

the requester in accordance with paragraph (6)(B) and the agency 

has discussed with the requester via written mail, electronic mail, 

or telephone (or made not less than 3 good-faith attempts to do so) 

how the requester could effectively limit the scope of the request 

in accordance with paragraph (6)(B)(ii). 

(cc) If a court has determined that exceptional circumstances 

exist (as that term is defined in paragraph (6)(C)), a failure deVerDate Sep 11 2014 06:48 Dec 14, 2016 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR864.XXX HR864

lotter on DSK5VPTVN1PROD with REPORTS
13 

scribed in subclause (I) shall be excused for the length of time provided by the court order. 

(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. 

(E)(i) 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. 

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through 

either— 

(I) a judicial order, or an enforceable written agreement or 

consent decree; or 

(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial. 

(F)(i) 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. 

(ii) The Attorney General shall— 

(I) notify the Special Counsel of each civil action described 

under the first sentence of clause (i); and 

(II) annually submit a report to Congress on the number of 

such civil actions in the preceding year. 


lotter on DSK5VPTVN1PROD with REPORTS
14 

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i). 

(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— 

(I) such determination and the reasons therefor; 

(II) the right of such person to seek assistance from the 

FOIA Public Liaison of the agency; and 

(III) in the case of an adverse determination— 

(aa) the right of such person to appeal to the head 

of the agency, within a period determined by the head 

of the agency that is not less than 90 days after the 

date of such adverse determination; and 

(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the 

agency or the Office of Government Information Services; 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. 

The 20-day period under clause (i) shall commence on the date on 

which the request is first received by the appropriate component of 

the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by 

the agency except— 

(I) that the agency may make one request to the requester 

for information and toll the 20-day period while it is awaiting 

such information that it has reasonably requested from the requester under this section; or 

(II) if necessary to clarify with the requester issues regarding 

fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or 

clarification ends the tolling period. 

(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 


lotter on DSK5VPTVN1PROD with REPORTS
15 

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). To aid the requester, each agency 

shall make available its FOIA Public Liaison, who shall assist in 

the resolution of any disputes between the requester and the agency, and notify the requester of the right of the requester to seek 

dispute resolution services from the Office of Government Information Services. 

(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. 


lotter on DSK5VPTVN1PROD with REPORTS
16 

(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 


lotter on DSK5VPTVN1PROD with REPORTS
17 

(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. 

(7) Each agency shall— 

(A) establish a system to assign an individualized tracking 

number for each request received that will take longer than 

ten days to process and provide to each person making a request the tracking number assigned to the request; and 

(B) establish a telephone line or Internet service that provides information about the status of a request to the person 

making the request using the assigned tracking number, including— 

(i) the date on which the agency originally received the 

request; and 

(ii) an estimated date on which the agency will complete 

action on the request. 

(8)(A) An agency shall— 

(i) withhold information under this section only if— 

(I) the agency reasonably foresees that disclosure would 

harm an interest protected by an exemption described in 

subsection (b); or 

(II) disclosure is prohibited by law; and 

(ii)(I) consider whether partial disclosure of information is 

possible whenever the agency determines that a full disclosure 

of a requested record is not possible; and 

(II) take reasonable steps necessary to segregate and release 

nonexempt information; and 

(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3). 

(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), if that statute— 

(A)(i) requires that the matters be withheld from the 

public in such a manner as to leave no discretion on the 

issue; or 

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and 


lotter on DSK5VPTVN1PROD with REPORTS
18 

(B) if enacted after the date of enactment of the OPEN 

FOIA Act of 2009, specifically cites to this paragraph. 

(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 

that would not be available by law to a party other than an 

agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 

years or more before the date on which the records were requested; 

(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, and the exemption under which the deletion is made, 

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, and the 

exemption under which the deletion is made, 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) disVerDate Sep 11 2014 06:48 Dec 14, 2016 Jkt 069006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR864.XXX HR864

lotter on DSK5VPTVN1PROD with REPORTS
19 

closure 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 and to the Director of the Office of Government Information Services 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), the number of occasions on which each statute 

was relied upon, 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 and average 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, based on the date on which the 

requests were received by the agency; 

(F) the average number of days for the agency to respond to 

a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of 

days for the agency to respond to such requests; 


lotter on DSK5VPTVN1PROD with REPORTS
20 

(G) based on the number of business days that have elapsed 

since each request was originally received by the agency— 

(i) the number of requests for records to which the agency has responded with a determination within a period up 

to and including 20 days, and in 20-day increments up to 

and including 200 days; 

(ii) the number of requests for records to which the agency has responded with a determination within a period 

greater than 200 days and less than 301 days; 

(iii) the number of requests for records to which the 

agency has responded with a determination within a period greater than 300 days and less than 401 days; and 

(iv) the number of requests for records to which the 

agency has responded with a determination within a period greater than 400 days; 

(H) the average number of days for the agency to provide the 

granted information beginning on the date on which the request was originally filed, the median number of days for the 

agency to provide the granted information, and the range in 

number of days for the agency to provide the granted information; 

(I) the median and average number of days for the agency 

to respond to administrative appeals based on the date on 

which the appeals originally were received by the agency, the 

highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of 

business days taken by the agency to respond to an administrative appeal; 

(J) data on the 10 active requests with the earliest filing 

dates pending at each agency, including the amount of time 

that has elapsed since each request was originally received by 

the agency; 

(K) data on the 10 active administrative appeals with the 

earliest filing dates pending before the agency as of September 

30 of the preceding year, including the number of business 

days that have elapsed since the requests were originally received by the agency; 

(L) the number of expedited review requests that are granted 

and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days; 

(M) the number of fee waiver requests that are granted and 

denied, and the average and median number of days for adjudicating fee waiver determinations; 

(N) the total amount of fees collected by the agency for processing requests; 

(O) 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; 

(P) the number of times the agency denied a request for 

records under subsection (c); and 

(Q) the number of records that were made available for public inspection in an electronic format under subsection (a)(2). 


lotter on DSK5VPTVN1PROD with REPORTS
21 

(2) Information in each report submitted under paragraph (1) 

shall be expressed in terms of each principal component of the 

agency and for the agency overall. 

(3) Each agency shall make each such report available for public 

inspection in an electronic format. In addition, each agency shall 

make the raw statistical data used in each report available in a 

timely manner for public inspection in an electronic format, which 

shall be made available— 

(A) without charge, license, or registration requirement; 

(B) in an aggregated, searchable format; and 

(C) in a format that may be downloaded in bulk. 

(4) 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 Oversight and Government Reform of 

the House of Representatives and the Chairman and ranking minority member of the Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate, no later than 

March 1 of the year in which each such report is issued, that such 

reports are available by electronic means. 

(5) 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. 

(6)(A) The Attorney General of the United States shall submit to 

the Committee on Oversight and Government Reform of the House 

of Representatives, the Committee on the Judiciary of the Senate, 

and the President a report on or before March 1 of each calendar 

year, which shall include for the prior calendar year— 

(i) a listing of the number of cases arising under this section; 

(ii) a listing of— 

(I) each subsection, and any exemption, if applicable, involved in each case arising under this section; 

(II) the disposition of each case arising under this section; and 

(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and 

(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. 

(B) The Attorney General of the United States shall make— 

(i) each report submitted under subparagraph (A) available 

for public inspection in an electronic format; and 

(ii) the raw statistical data used in each report submitted 

under subparagraph (A) available for public inspection in an 

electronic format, which shall be made available— 

(I) without charge, license, or registration requirement; 

(II) in an aggregated, searchable format; and 

(III) in a format that may be downloaded in bulk. 

(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 


lotter on DSK5VPTVN1PROD with REPORTS
22 

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— 

(A) 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; 

and 

(B) any information described under subparagraph (A) 

that is maintained for an agency by an entity under Government contract, for the purposes of records management. 

(g) The head of each agency shall prepare and make available for 

public inspection in an electronic format, 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. 

(h)(1) There is established the Office of Government Information 

Services within the National Archives and Records Administration. 

The head of the Office shall be the Director of the Office of Government Information Services. 

(2) The Office of Government Information Services shall— 

(A) review policies and procedures of administrative agencies 

under this section; 

(B) review compliance with this section by administrative 

agencies; and 

(C) identify procedures and methods for improving compliance under this section. 

(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions 

at the discretion of the Office or upon request of any party to a dispute. 

(4)(A) Not less frequently than annually, the Director of the Office of Government Information Services shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and 

the President— 

(i) a report on the findings of the information reviewed and 

identified under paragraph (2); 

(ii) a summary of the activities of the Office of Government 

Information Services under paragraph (3), including— 

(I) any advisory opinions issued; and 

(II) the number of times each agency engaged in dispute 

resolution with the assistance of the Office of Government 

Information Services or the FOIA Public Liaison; and 

(iii) legislative and regulatory recommendations, if any, to 

improve the administration of this section. 


lotter on DSK5VPTVN1PROD with REPORTS
23 

(B) The Director of the Office of Government Information Services shall make each report submitted under subparagraph (A) 

available for public inspection in an electronic format. 

(C) The Director of the Office of Government Information Services shall not be required to obtain the prior approval, comment, 

or review of any officer or agency of the United States, including 

the Department of Justice, the Archivist of the United States, or 

the Office of Management and Budget before submitting to Congress, or any committee or subcommittee thereof, any reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed therein are 

those of the Director and do not necessarily represent the views of 

the President. 

(5) The Director of the Office of Government Information Services 

may directly submit additional information to Congress and the 

President as the Director determines to be appropriate. 

(6) Not less frequently than annually, the Office of Government 

Information Services shall conduct a meeting that is open to the 

public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements 

at the meeting. 

(i) The Government Accountability Office shall conduct audits of 

administrative agencies on the implementation of this section and 

issue reports detailing the results of such audits. 

(j)(1) Each agency shall designate a Chief FOIA Officer who shall 

be a senior official of such agency (at the Assistant Secretary or 

equivalent level). 

(2) The Chief FOIA Officer of each agency shall, subject to the 

authority of the head of the agency— 

(A) have agency-wide responsibility for efficient and appropriate compliance with this section; 

(B) monitor implementation of this section throughout the 

agency and keep the head of the agency, the chief legal officer 

of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section; 

(C) recommend to the head of the agency such adjustments 

to agency practices, policies, personnel, and funding as may be 

necessary to improve its implementation of this section; 

(D) review and report to the Attorney General, through the 

head of the agency, at such times and in such formats as the 

Attorney General may direct, on the agency’s performance in 

implementing this section; 

(E) facilitate public understanding of the purposes of the 

statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook 

issued under subsection (g), and the agency’s annual report on 

this section, and by providing an overview, where appropriate, 

of certain general categories of agency records to which those 

exemptions apply; 

(F) offer training to agency staff regarding their responsibilities under this section; 

(G) serve as the primary agency liaison with the Office of 

Government Information Services and the Office of Information 

Policy; and 


lotter on DSK5VPTVN1PROD with REPORTS
24 

(H) designate 1 or more FOIA Public Liaisons. 

(3) The Chief FOIA Officer of each agency shall review, not less 

frequently than annually, all aspects of the administration of this 

section by the agency to ensure compliance with the requirements 

of this section, including— 

(A) agency regulations; 

(B) disclosure of records required under paragraphs (2) and 

(8) of subsection (a); 

(C) assessment of fees and determination of eligibility for fee 

waivers; 

(D) the timely processing of requests for information under 

this section; 

(E) the use of exemptions under subsection (b); and 

(F) dispute resolution services with the assistance of the Office of Government Information Services or the FOIA Public Liaison. 

(k)(1) There is established in the executive branch the Chief 

FOIA Officers Council (referred to in this subsection as the ‘‘Council’’). 

(2) The Council shall be comprised of the following members: 

(A) The Deputy Director for Management of the Office of 

Management and Budget. 

(B) The Director of the Office of Information Policy at the 

Department of Justice. 

(C) The Director of the Office of Government Information 

Services. 

(D) The Chief FOIA Officer of each agency. 

(E) Any other officer or employee of the United States as 

designated by the Co-Chairs. 

(3) The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information Services shall be the Co-Chairs of the Council. 

(4) The Administrator of General Services shall provide administrative and other support for the Council. 

(5)(A) The duties of the Council shall include the following: 

(i) Develop recommendations for increasing compliance and 

efficiency under this section. 

(ii) Disseminate information about agency experiences, ideas, 

best practices, and innovative approaches related to this section. 

(iii) Identify, develop, and coordinate initiatives to increase 

transparency and compliance with this section. 

(iv) Promote the development and use of common performance measures for agency compliance with this section. 

(B) In performing the duties described in subparagraph (A), the 

Council shall consult on a regular basis with members of the public 

who make requests under this section. 

(6)(A) The Council shall meet regularly and such meetings shall 

be open to the public unless the Council determines to close the 

meeting for reasons of national security or to discuss information 

exempt under subsection (b). 

(B) Not less frequently than annually, the Council shall hold a 

meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the 

Council. 


lotter on DSK5VPTVN1PROD with REPORTS
25 

(C) Not later than 10 business days before a meeting of the 

Council, notice of such meeting shall be published in the Federal 

Register. 

(D) Except as provided in subsection (b), the records, reports, 

transcripts, minutes, appendices, working papers, drafts, studies, 

agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available. 

(E) Detailed minutes of each meeting of the Council shall be kept 

and shall contain a record of the persons present, a complete and 

accurate description of matters discussed and conclusions reached, 

and copies of all reports received, issued, or approved by the Council. The minutes shall be redacted as necessary and made publicly 

available. 

(l) FOIA Public Liaisons shall report to the agency Chief FOIA 

Officer and shall serve as supervisory officials to whom a requester 

under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an 

initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, 

and assisting in the resolution of disputes. 

(m)(1) The Director of the Office of Management and Budget, in 

consultation with the Attorney General, shall ensure the operation 

of a consolidated online request portal that allows a member of the 

public to submit a request for records under subsection (a) to any 

agency from a single website. The portal may include any additional tools the Director of the Office of Management and Budget 

finds will improve the implementation of this section. 

(2) This subsection shall not be construed to alter the power of 

any other agency to create or maintain an independent online portal for the submission of a request for records under this section. 

The Director of the Office of Management and Budget shall establish standards for interoperability between the portal required 

under paragraph (1) and other request processing software used by 

agencies subject to this section. 

(n) For purposes of this section, the Smithsonian Institution shall 

be considered an agency, and the Secretary of the Smithsonian Institution shall be considered the head of the agency. 

§ 552a. Records maintained on individuals 

(a) DEFINITIONS.—For purposes of this section— 

(1) the term ‘‘agency’’ means agency as defined in section 

552(e) of this titleø;¿, except that such term also includes the 

Smithsonian Institution; 

(2) the term ‘‘individual’’ means a citizen of the United 

States or an alien lawfully admitted for permanent residence; 

(3) the term ‘‘maintain’’ includes maintain, collect, use, or 

disseminate; 

(4) the term ‘‘record’’ means any item, collection, or grouping 

of information about an individual that is maintained by an 

agency, including, but not limited to, his education, financial 

transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, 

symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph; 


lotter on DSK5VPTVN1PROD with REPORTS
26 

(5) the term ‘‘system of records’’ means a group of any 

records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual; 

(6) the term ‘‘statistical record’’ means a record in a system 

of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13; 

(7) the term ‘‘routine use’’ means, with respect to the disclosure of a record, the use of such record for a purpose which is 

compatible with the purpose for which it was collected; 

(8) the term ‘‘matching program’’— 

(A) means any computerized comparison of— 

(i) two or more automated systems of records or a 

system of records with non-Federal records for the 

purpose of— 

(I) establishing or verifying the eligibility of, or 

continuing compliance with statutory and regulatory requirements by, applicants for, recipients 

or beneficiaries of, participants in, or providers of 

services with respect to, cash or in-kind assistance 

or payments under Federal benefit programs, or 

(II) recouping payments or delinquent debts 

under such Federal benefit programs, or 

(ii) two or more automated Federal personnel or 

payroll systems of records or a system of Federal personnel or payroll records with non-Federal records, 

(B) but does not include— 

(i) matches performed to produce aggregate statistical data without any personal identifiers; 

(ii) matches performed to support any research or 

statistical project, the specific data of which may not 

be used to make decisions concerning the rights, benefits, or privileges of specific individuals; 

(iii) matches performed, by an agency (or component 

thereof) which performs as its principal function any 

activity pertaining to the enforcement of criminal 

laws, subsequent to the initiation of a specific criminal 

or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence 

against such person or persons; 

(iv) matches of tax information (I) pursuant to section 6103(d) of the Internal Revenue Code of 1986, (II) 

for purposes of tax administration as defined in section 6103(b)(4) of such Code, (III) for the purpose of 

intercepting a tax refund due an individual under authority granted by section 404(e), 464, or 1137 of the 

Social Security Act; or (IV) for the purpose of intercepting a tax refund due an individual under any 

other tax refund intercept program authorized by statute which has been determined by the Director of the 

Office of Management and Budget to contain 

verification, notice, and hearing requirements that are 


lotter on DSK5VPTVN1PROD with REPORTS
27 

substantially similar to the procedures in section 1137 

of the Social Security Act; 

(v) matches— 

(I) using records predominantly relating to Federal personnel, that are performed for routine administrative purposes (subject to guidance provided by the Director of the Office of Management 

and Budget pursuant to subsection (v)); or 

(II) conducted by an agency using only records 

from systems of records maintained by that agency; 

if the purpose of the match is not to take any adverse 

financial, personnel, disciplinary, or other adverse action against Federal personnel; 

(vi) matches performed for foreign counterintelligence purposes or to produce background checks for 

security clearances of Federal personnel or Federal 

contractor personnel; 

(vii) matches performed incident to a levy described 

in section 6103(k)(8) of the Internal Revenue Code of 

1986; 

(viii) matches performed pursuant to section 

202(x)(3) or 1611(e)(1) of the Social Security Act (42 

U.S.C. 402(x)(3), 1382(e)(1)); 

(ix) matches performed by the Secretary of Health 

and Human Services or the Inspector General of the 

Department of Health and Human Services with respect to potential fraud, waste, and abuse, including 

matches of a system of records with non-Federal 

records; or 

(x) matches performed pursuant to section 3(d)(4) of 

the Achieving a Better Life Experience Act of 2014; 

(9) the term ‘‘recipient agency’’ means any agency, or contractor thereof, receiving records contained in a system of 

records from a source agency for use in a matching program; 

(10) the term ‘‘non-Federal agency’’ means any State or local 

government, or agency thereof, which receives records contained in a system of records from a source agency for use in 

a matching program; 

(11) the term ‘‘source agency’’ means any agency which discloses records contained in a system of records to be used in 

a matching program, or any State or local government, or 

agency thereof, which discloses records to be used in a matching program; 

(12) the term ‘‘Federal benefit program’’ means any program 

administered or funded by the Federal Government, or by any 

agent or State on behalf of the Federal Government, providing 

cash or in-kind assistance in the form of payments, grants, 

loans, or loan guarantees to individuals; and 

(13) the term ‘‘Federal personnel’’ means officers and employees of the Government of the United States, members of the 

uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits). 


lotter on DSK5VPTVN1PROD with REPORTS
28 

(b) CONDITIONS OF DISCLOSURE.—No agency shall disclose any 

record which is contained in a system of records by any means of 

communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, 

the individual to whom the record pertains, unless disclosure of the 

record would be— 

(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties; 

(2) required under section 552 of this title; 

(3) for a routine use as defined in subsection (a)(7) of this 

section and described under subsection (e)(4)(D) of this section; 

(4) to the Bureau of the Census for purposes of planning or 

carrying out a census or survey or related activity pursuant to 

the provisions of title 13; 

(5) to a recipient who has provided the agency with advance 

adequate written assurance that the record will be used solely 

as a statistical research or reporting record, and the record is 

to be transferred in a form that is not individually identifiable; 

(6) to the National Archives and Records Administration as 

a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States 

or the designee of the Archivist to determine whether the 

record has such value; 

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United 

States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which 

maintains the record specifying the particular portion desired 

and the law enforcement activity for which the record is 

sought; 

(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if 

upon such disclosure notification is transmitted to the last 

known address of such individual; 

(9) to either House of Congress, or, to the extent of matter 

within its jurisdiction, any committee or subcommittee thereof, 

any joint committee of Congress or subcommittee of any such 

joint committee; 

(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of 

the Government Accountability Office; 

(11) pursuant to the order of a court of competent jurisdiction; or 

(12) to a consumer reporting agency in accordance with section 3711(e) of title 31. 

(c) ACCOUNTING OF CERTAIN DISCLOSURES.—Each agency, with 

respect to each system of records under its control, shall— 

(1) except for disclosures made under subsections (b)(1) or 

(b)(2) of this section, keep an accurate accounting of— 

(A) the date, nature, and purpose of each disclosure of 

a record to any person or to another agency made under 

subsection (b) of this section; and 


lotter on DSK5VPTVN1PROD with REPORTS
29 

(B) the name and address of the person or agency to 

whom the disclosure is made; 

(2) retain the accounting made under paragraph (1) of this 

subsection for at least five years or the life of the record, 

whichever is longer, after the disclosure for which the accounting is made; 

(3) except for disclosures made under subsection (b)(7) of this 

section, make the accounting made under paragraph (1) of this 

subsection available to the individual named in the record at 

his request; and 

(4) inform any person or other agency about any correction 

or notation of dispute made by the agency in accordance with 

subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made. 

(d) ACCESS TO RECORDS.—Each agency that maintains a system 

of records shall— 

(1) upon request by any individual to gain access to his 

record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record 

and have a copy made of all or any portion thereof in a form 

comprehensible to him, except that the agency may require the 

individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s 

presence; 

(2) permit the individual to request amendment of a record 

pertaining to him and— 

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of 

such request, acknowledge in writing such receipt; and 

(B) promptly, either— 

(i) make any correction of any portion thereof which 

the individual believes is not accurate, relevant, timely, or complete; or 

(ii) inform the individual of its refusal to amend the 

record in accordance with his request, the reason for 

the refusal, the procedures established by the agency 

for the individual to request a review of that refusal 

by the head of the agency or an officer designated by 

the head of the agency, and the name and business 

address of that official; 

(3) permit the individual who disagrees with the refusal of 

the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make 

a final determination unless, for good cause shown, the head 

of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in 

accordance with the request, permit the individual to file with 

the agency a concise statement setting forth the reasons for his 

disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing 


lotter on DSK5VPTVN1PROD with REPORTS
30 

official’s determination under subsection (g)(1)(A) of this section; 

(4) in any disclosure, containing information about which the 

individual has filed a statement of disagreement, occurring 

after the filing of the statement under paragraph (3) of this 

subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency 

deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, 

to persons or other agencies to whom the disputed record has 

been disclosed; and 

(5) nothing in this section shall allow an individual access to 

any information compiled in reasonable anticipation of a civil 

action or proceeding. 

(e) AGENCY REQUIREMENTS.—Each agency that maintains a system of records shall— 

(1) maintain in its records only such information about an 

individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or 

by executive order of the President; 

(2) collect information to the greatest extent practicable directly from the subject individual when the information may 

result in adverse determinations about an individual’s rights, 

benefits, and privileges under Federal programs; 

(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on 

a separate form that can be retained by the individual— 

(A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such 

information is mandatory or voluntary; 

(B) the principal purpose or purposes for which the information is intended to be used; 

(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this 

subsection; and 

(D) the effects on him, if any, of not providing all or any 

part of the requested information; 

(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or 

revision a notice of the existence and character of the system 

of records, which notice shall include— 

(A) the name and location of the system; 

(B) the categories of individuals on whom records are 

maintained in the system; 

(C) the categories of records maintained in the system; 

(D) each routine use of the records contained in the system, including the categories of users and the purpose of 

such use; 

(E) the policies and practices of the agency regarding 

storage, retrievability, access controls, retention, and disposal of the records; 

(F) the title and business address of the agency official 

who is responsible for the system of records; 


lotter on DSK5VPTVN1PROD with REPORTS
31 

(G) the agency procedures whereby an individual can be 

notified at his request if the system of records contains a 

record pertaining to him; 

(H) the agency procedures whereby an individual can be 

notified at his request how he can gain access to any 

record pertaining to him contained in the system of 

records, and how he can contest its content; and 

(I) the categories of sources of records in the system; 

(5) maintain all records which are used by the agency in 

making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination; 

(6) prior to disseminating any record about an individual to 

any person other than an agency, unless the dissemination is 

made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes; 

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom 

the record is maintained or unless pertinent to and within the 

scope of an authorized law enforcement activity; 

(8) make reasonable efforts to serve notice on an individual 

when any record on such individual is made available to any 

person under compulsory legal process when such process becomes a matter of public record; 

(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of 

records, or in maintaining any record, and instruct each such 

person with respect to such rules and the requirements of this 

section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance; 

(10) establish appropriate administrative, technical, and 

physical safeguards to insure the security and confidentiality of 

records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to 

any individual on whom information is maintained; 

(11) at least 30 days prior to publication of information 

under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to 

the agency; and 

(12) if such agency is a recipient agency or a source agency 

in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, 

at least 30 days prior to conducting such program, publish in 

the Federal Register notice of such establishment or revision. 

(f) AGENCY RULES.—In order to carry out the provisions of this 

section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall— 


lotter on DSK5VPTVN1PROD with REPORTS
32 

(1) establish procedures whereby an individual can be notified in response to his request if any system of records named 

by the individual contains a record pertaining to him; 

(2) define reasonable times, places, and requirements for 

identifying an individual who requests his record or information pertaining to him before the agency shall make the record 

or information available to the individual; 

(3) establish procedures for the disclosure to an individual 

upon his request of his record or information pertaining to 

him, including special procedure, if deemed necessary, for the 

disclosure to an individual of medical records, including psychological records, pertaining to him; 

(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information 

pertaining to the individual, for making a determination on the 

request, for an appeal within the agency of an initial adverse 

agency determination, and for whatever additional means may 

be necessary for each individual to be able to exercise fully his 

rights under this section; and 

(5) establish fees to be charged, if any, to any individual for 

making copies of his record, excluding the cost of any search 

for and review of the record. 

The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form 

available to the public at low cost. 

(g)(1) CIVIL REMEDIES.—Whenever any agency 

(A) makes a determination under subsection (d)(3) of this 

section not to amend an individual’s record in accordance with 

his request, or fails to make such review in conformity with 

that subsection; 

(B) refuses to comply with an individual request under subsection (d)(1) of this section; 

(C) fails to maintain any record concerning any individual 

with such accuracy, relevance, timeliness, and completeness as 

is necessary to assure fairness in any determination relating to 

the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such 

record, and consequently a determination is made which is adverse to the individual; or 

(D) fails to comply with any other provision of this section, 

or any rule promulgated thereunder, in such a way as to have 

an adverse effect on an individual, 

the individual may bring a civil action against the agency, and the 

district courts of the United States shall have jurisdiction in the 

matters under the provisions of this subsection. 

(2)(A) In any suit brought under the provisions of subsection 

(g)(1)(A) of this section, the court may order the agency to amend 

the individual’s record in accordance with his request or in such 

other way as the court may direct. In such a case the court shall 

determine the matter de novo. 

(B) The court may assess against the United States reasonable 

attorney fees and other litigation costs reasonably incurred in any 

case under this paragraph in which the complainant has substantially prevailed. 


lotter on DSK5VPTVN1PROD with REPORTS
33 

(3)(A) In any suit brought under the provisions of subsection 

(g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of 

any agency records improperly withheld from him. In such a case 

the court shall determine the matter de novo, and may examine the 

contents of any agency records in camera to determine whether the 

records or any portion thereof may be withheld under any of the 

exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action. 

(B) The court may assess against the United States reasonable 

attorney fees and other litigation costs reasonably incurred in any 

case under this paragraph in which the complainant has substantially prevailed. 

(4) In any suit brought under the provisions of subsection 

(g)(1)(C) or (D) of this section in which the court determines that 

the agency acted in a manner which was intentional or willful, the 

United States shall be liable to the individual in an amount equal 

to the sum of— 

(A) actual damages sustained by the individual as a result 

of the refusal or failure, but in no case shall a person entitled 

to recovery receive less than the sum of $1,000; and 

(B) the costs of the action together with reasonable attorney 

fees as determined by the court. 

(5) An action to enforce any liability created under this section 

may be brought in 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, without regard to the amount in controversy, 

within two years from the date on which the cause of action arises, 

except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed 

to an individual and the information so misrepresented is material 

to establishment of the liability of the agency to the individual 

under this section, the action may be brought at any time within 

two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any 

civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975. 

(h) RIGHTS OF LEGAL GUARDIANS.—For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or 

mental incapacity or age by a court of competent jurisdiction, may 

act on behalf of the individual. 

(i)(1) CRIMINAL PENALTIES.—Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually 

identifiable information the disclosure of which is prohibited by 

this section or by rules or regulations established thereunder, and 

who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person 

or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. 

(2) Any officer or employee of any agency who willfully maintains 

a system of records without meeting the notice requirements of 


lotter on DSK5VPTVN1PROD with REPORTS
34 

subsection (e)(4) of this section shall be guilty of a misdemeanor 

and fined not more than $5,000. 

(3) Any person who knowingly and willfully requests or obtains 

any record concerning an individual from an agency under false 

pretenses shall be guilty of a misdemeanor and fined not more than 

$5,000. 

(j) GENERAL EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general 

notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to 

exempt any system of records within the agency from any part of 

this section except subsections (b), (c)(1) and (2), (e)(4)(A) through 

(F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records 

is— 

(1) maintained by the Central Intelligence Agency; or 

(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the 

enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and 

the activities of prosecutors, courts, correctional, probation, 

pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and 

parole and probation status; (B) information compiled for the 

purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled 

at any stage of the process of enforcement of the criminal laws 

from arrest or indictment through release from supervision. 

At the time rules are adopted under this subsection, the agency 

shall include in the statement required under section 553(c) of this 

title, the reasons why the system of records is to be exempted from 

a provision of this section. 

(k) SPECIFIC EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general 

notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to 

exempt any system of records within the agency from subsections 

(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the 

system of records is— 

(1) subject to the provisions of section 552(b)(1) of this title; 

(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) 

of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be 

entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such 

material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government 

under an express promise that the identity of the source would 

be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source 

would be held in confidence; 


lotter on DSK5VPTVN1PROD with REPORTS
35 

(3) maintained in connection with providing protective services to the President of the United States or other individuals 

pursuant to section 3056 of title 18; 

(4) required by statute to be maintained and used solely as 

statistical records; 

(5) investigatory material compiled solely for the purpose of 

determining suitability, eligibility, or qualifications for Federal 

civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the 

disclosure of such material would reveal the identity of a 

source who furnished information to the Government under an 

express promise that the identity of the source would be held 

in confidence, or, prior to the effective date of this section, 

under an implied promise that the identity of the source would 

be held in confidence; 

(6) testing or examination material used solely to determine 

individual qualifications for appointment or promotion in the 

Federal service the disclosure of which would compromise the 

objectivity or fairness of the testing or examination process; or 

(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the 

disclosure of such material would reveal the identity of a 

source who furnished information to the Government under an 

express promise that the identity of the source would be held 

in confidence, or, prior to the effective date of this section, 

under an implied promise that the identity of the source would 

be held in confidence. 

At the time rules are adopted under this subsection, the agency 

shall include in the statement required under section 553(c) of this 

title, the reasons why the system of records is to be exempted from 

a provision of this section. 

(l)(1) ARCHIVAL RECORDS.—Each agency record which is accepted 

by the Archivist of the United States for storage, processing, and 

servicing in accordance with section 3103 of title 44 shall, for the 

purposes of this section, be considered to be maintained by the 

agency which deposited the record and shall be subject to the provisions of this section. The Archivist of the United States shall not 

disclose the record except to the agency which maintains the 

record, or under rules established by that agency which are not inconsistent with the provisions of this section. 

(2) Each agency record pertaining to an identifiable individual 

which was transferred to the National Archives of the United 

States as a record which has sufficient historical or other value to 

warrant its continued preservation by the United States Government, prior to the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall not be subject to the provisions of this 

section, except that a statement generally describing such records 

(modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of this section) shall be published in 

the Federal Register. 

(3) Each agency record pertaining to an identifiable individual 

which is transferred to the National Archives of the United States 

as a record which has sufficient historical or other value to warrant 

its continued preservation by the United States Government, on or 


lotter on DSK5VPTVN1PROD with REPORTS
36 

after the effective date of this section, shall, for the purposes of this 

section, be considered to be maintained by the National Archives 

and shall be exempt from the requirements of this section except 

subsections (e)(4)(A) through (G) and (e)(9) of this section. 

(m)(1) GOVERNMENT CONTRACTORS.—When an agency provides 

by a contract for the operation by or on behalf of the agency of a 

system of records to accomplish an agency function, the agency 

shall, consistent with its authority, cause the requirements of this 

section to be applied to such system. For purposes of subsection (i) 

of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date 

of this section, shall be considered to be an employee of an agency. 

(2) A consumer reporting agency to which a record is disclosed 

under section 3711(e) of title 31 shall not be considered a contractor for the purposes of this section. 

(n) MAILING LISTS.—An individual’s name and address may not 

be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require 

the withholding of names and addresses otherwise permitted to be 

made public. 

(o) MATCHING AGREEMENTS.—(1) No record which is contained in 

a system of records may be disclosed to a recipient agency or nonFederal agency for use in a computer matching program except 

pursuant to a written agreement between the source agency and 

the recipient agency or non-Federal agency specifying— 

(A) the purpose and legal authority for conducting the program; 

(B) the justification for the program and the anticipated results, including a specific estimate of any savings; 

(C) a description of the records that will be matched, including each data element that will be used, the approximate number of records that will be matched, and the projected starting 

and completion dates of the matching program; 

(D) procedures for providing individualized notice at the time 

of application, and notice periodically thereafter as directed by 

the Data Integrity Board of such agency (subject to guidance 

provided by the Director of the Office of Management and 

Budget pursuant to subsection (v)), to— 

(i) applicants for and recipients of financial assistance or 

payments under Federal benefit programs, and 

(ii) applicants for and holders of positions as Federal 

personnel, 

that any information provided by such applicants, recipients, 

holders, and individuals may be subject to verification through 

matching programs; 

(E) procedures for verifying information produced in such 

matching program as required by subsection (p); 

(F) procedures for the retention and timely destruction of 

identifiable records created by a recipient agency or non-Federal agency in such matching program; 

(G) procedures for ensuring the administrative, technical, 

and physical security of the records matched and the results of 

such programs; 

(H) prohibitions on duplication and redisclosure of records 

provided by the source agency within or outside the recipient 


lotter on DSK5VPTVN1PROD with REPORTS
37 

agency or the non-Federal agency, except where required by 

law or essential to the conduct of the matching program; 

(I) procedures governing the use by a recipient agency or 

non-Federal agency of records provided in a matching program 

by a source agency, including procedures governing return of 

the records to the source agency or destruction of records used 

in such program; 

(J) information on assessments that have been made on the 

accuracy of the records that will be used in such matching program; and 

(K) that the Comptroller General may have access to all 

records of a recipient agency or a non-Federal agency that the 

Comptroller General deems necessary in order to monitor or 

verify compliance with the agreement. 

(2)(A) A copy of each agreement entered into pursuant to paragraph (1) shall— 

(i) be transmitted to the Committee on Governmental Affairs 

of the Senate and the Committee on Government Operations 

of the House of Representatives; and 

(ii) be available upon request to the public. 

(B) No such agreement shall be effective until 30 days after the 

date on which such a copy is transmitted pursuant to subparagraph (A)(i). 

(C) Such an agreement shall remain in effect only for such period, not to exceed 18 months, as the Data Integrity Board of the 

agency determines is appropriate in light of the purposes, and 

length of time necessary for the conduct, of the matching program. 

(D) Within 3 months prior to the expiration of such an agreement 

pursuant to subparagraph (C), the Data Integrity Board of the 

agency may, without additional review, renew the matching agreement for a current, ongoing matching program for not more than 

one additional year if— 

(i) such program will be conducted without any change; and 

(ii) each party to the agreement certifies to the Board in 

writing that the program has been conducted in compliance 

with the agreement. 

(p) VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS.—(1) 

In order to protect any individual whose records are used in a 

matching program, no recipient agency, non-Federal agency, or 

source agency may suspend, terminate, reduce, or make a final denial of any financial assistance or payment under a Federal benefit 

program to such individual, or take other adverse action against 

such individual, as a result of information produced by such matching program, until— 

(A)(i) the agency has independently verified the information; 

or 

(ii) the Data Integrity Board of the agency, or in the case of 

a non-Federal agency the Data Integrity Board of the source 

agency, determines in accordance with guidance issued by the 

Director of the Office of Management and Budget that— 

(I) the information is limited to identification and 

amount of benefits paid by the source agency under a Federal benefit program; and 

(II) there is a high degree of confidence that the information provided to the recipient agency is accurate; 


lotter on DSK5VPTVN1PROD with REPORTS
38 

(B) the individual receives a notice from the agency containing a statement of its findings and informing the individual of the opportunity to contest such findings; and 

(C)(i) the expiration of any time period established for the 

program by statute or regulation for the individual to respond 

to that notice; or 

(ii) in the case of a program for which no such period is established, the end of the 30-day period beginning on the date 

on which notice under subparagraph (B) is mailed or otherwise 

provided to the individual. 

(2) Independent verification referred to in paragraph (1) requires 

investigation and confirmation of specific information relating to an 

individual that is used as a basis for an adverse action against the 

individual, including where applicable investigation and confirmation of— 

(A) the amount of any asset or income involved; 

(B) whether such individual actually has or had access to 

such asset or income for such individual’s own use; and 

(C) the period or periods when the individual actually had 

such asset or income. 

(3) Notwithstanding paragraph (1), an agency may take any appropriate action otherwise prohibited by such paragraph if the 

agency determines that the public health or public safety may be 

adversely affected or significantly threatened during any notice period required by such paragraph. 

(q) SANCTIONS.—(1) Notwithstanding any other provision of law, 

no source agency may disclose any record which is contained in a 

system of records to a recipient agency or non-Federal agency for 

a matching program if such source agency has reason to believe 

that the requirements of subsection (p), or any matching agreement 

entered into pursuant to subsection (o), or both, are not being met 

by such recipient agency. 

(2) No source agency may renew a matching agreement unless— 

(A) the recipient agency or non-Federal agency has certified 

that it has complied with the provisions of that agreement; and 

(B) the source agency has no reason to believe that the certification is inaccurate. 

(r) REPORT ON NEW SYSTEMS AND MATCHING PROGRAMS.—Each 

agency that proposes to establish or make a significant change in 

a system of records or a matching program shall provide adequate 

advance notice of any such proposal (in duplicate) to the Committee 

on Government Operations of the House of Representatives, the 

Committee on Governmental Affairs of the Senate, and the Office 

of Management and Budget in order to permit an evaluation of the 

probable or potential effect of such proposal on the privacy or other 

rights of individuals. 

(s) BIENNIAL REPORT.—The President shall biennially submit to 

the Speaker of the House of Representatives and the President pro 

tempore of the Senate a report— 

(1) describing the actions of the Director of the Office of 

Management and Budget pursuant to section 6 of the Privacy 

Act of 1974 during the preceding 2 years; 

(2) describing the exercise of individual rights of access and 

amendment under this section during such years; 

(3) identifying changes in or additions to systems of records; 


lotter on DSK5VPTVN1PROD with REPORTS
39 

(4) containing such other information concerning administration of this section as may be necessary or useful to the Congress in reviewing the effectiveness of this section in carrying 

out the purposes of the Privacy Act of 1974. 

(t)(1) EFFECT OF OTHER LAWS.—No agency shall rely on any exemption contained in section 552 of this title to withhold from an 

individual any record which is otherwise accessible to such individual under the provisions of this section. 

(2) No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to 

such individual under the provisions of section 552 of this title. 

(u) DATA INTEGRITY BOARDS.—(1) Every agency conducting or 

participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency’s implementation of this section. 

(2) Each Data Integrity Board shall consist of senior officials designated by the head of the agency, and shall include any senior official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, 

if any. The inspector general shall not serve as chairman of the 

Data Integrity Board. 

(3) Each Data Integrity Board— 

(A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching 

programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines; 

(B) shall review all matching programs in which the agency 

has participated during the year, either as a source agency or 

recipient agency, determine compliance with applicable laws, 

regulations, guidelines, and agency agreements, and assess the 

costs and benefits of such programs; 

(C) shall review all recurring matching programs in which 

the agency has participated during the year, either as a source 

agency or recipient agency, for continued justification for such 

disclosures; 

(D) shall compile an annual report, which shall be submitted 

to the head of the agency and the Office of Management and 

Budget and made available to the public on request, describing 

the matching activities of the agency, including— 

(i) matching programs in which the agency has participated as a source agency or recipient agency; 

(ii) matching agreements proposed under subsection (o) 

that were disapproved by the Board; 

(iii) any changes in membership or structure of the 

Board in the preceding year; 

(iv) the reasons for any waiver of the requirement in 

paragraph (4) of this section for completion and submission 

of a cost-benefit analysis prior to the approval of a matching program; 

(v) any violations of matching agreements that have 

been alleged or identified and any corrective action taken; 

and 

(vi) any other information required by the Director of the 

Office of Management and Budget to be included in such 

report; 


lotter on DSK5VPTVN1PROD with REPORTS
40 

(E) shall serve as a clearinghouse for receiving and providing 

information on the accuracy, completeness, and reliability of 

records used in matching programs; 

(F) shall provide interpretation and guidance to agency components and personnel on the requirements of this section for 

matching programs; 

(G) shall review agency recordkeeping and disposal policies 

and practices for matching programs to assure compliance with 

this section; and 

(H) may review and report on any agency matching activities 

that are not matching programs. 

(4)(A) Except as provided in subparagraphs (B) and (C), a Data 

Integrity Board shall not approve any written agreement for a 

matching program unless the agency has completed and submitted 

to such Board a cost-benefit analysis of the proposed program and 

such analysis demonstrates that the program is likely to be cost effective. 

(B) The Board may waive the requirements of subparagraph (A) 

of this paragraph if it determines in writing, in accordance with 

guidelines prescribed by the Director of the Office of Management 

and Budget, that a cost-benefit analysis is not required. 

(C) A cost-benefit analysis shall not be required under subparagraph (A) prior to the initial approval of a written agreement for 

a matching program that is specifically required by statute. Any 

subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under 

the preceding approval of such agreement. 

(5)(A) If a matching agreement is disapproved by a Data Integrity Board, any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget. 

Timely notice of the filing of such an appeal shall be provided by 

the Director of the Office of Management and Budget to the Committee on Governmental Affairs of the Senate and the Committee 

on Government Operations of the House of Representatives. 

(B) The Director of the Office of Management and Budget may 

approve a matching agreement notwithstanding the disapproval of 

a Data Integrity Board if the Director determines that— 

(i) the matching program will be consistent with all applicable legal, regulatory, and policy requirements; 

(ii) there is adequate evidence that the matching agreement 

will be cost-effective; and 

(iii) the matching program is in the public interest. 

(C) The decision of the Director to approve a matching agreement 

shall not take effect until 30 days after it is reported to committees 

described in subparagraph (A). 

(D) If the Data Integrity Board and the Director of the Office of 

Management and Budget disapprove a matching program proposed 

by the inspector general of an agency, the inspector general may 

report the disapproval to the head of the agency and to the Congress. 

(6) In the reports required by paragraph (3)(D), agency matching 

activities that are not matching programs may be reported on an 

aggregate basis, if and to the extent necessary to protect ongoing 

law enforcement or counterintelligence investigations. 


lotter on DSK5VPTVN1PROD with REPORTS
41 

(v) OFFICE OF MANAGEMENT AND BUDGET RESPONSIBILITIES.— The Director of the Office of Management and Budget shall— 

(1) develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section; and 

(2) provide continuing assistance to and oversight of the implementation of this section by agencies. 

(w) APPLICABILITY TO BUREAU OF CONSUMER FINANCIAL PROTEC- TION.—Except as provided in the Consumer Financial Protection 

Act of 2010, this section shall apply with respect to the Bureau of 

Consumer Financial Protection. 

§ 552b. Open meetings 

(a) For purposes of this section— 

(1) the term ‘‘agency’’ means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of 

two or more individual members, a majority of whom are appointed to such position by the President with the advice and 

consent of the Senate, and any subdivision thereof authorized 

to act on behalf of the agencyø;¿, except that such term also includes the Smithsonian Institution; 

(2) the term ‘‘meeting’’ means the deliberations of at least 

the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official 

agency business, but does not include deliberations required or 

permitted by subsection (d) or (e); and 

(3) the term ‘‘member’’ means an individual who belongs to 

a collegial body heading an agency. 

(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided 

in subsection (c), every portion of every meeting of an agency shall 

be open to public observation. 

(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall 

not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information 

pertaining to such meeting otherwise required by this section to be 

disclosed to the public, where the agency properly determines that 

such portion or portions of its meeting or the disclosure of such information is likely to— 

(1) disclose matters that are (A) specifically authorized under 

criteria established by an Executive order to be kept secret in 

the interests of national defense or foreign policy and (B) in 

fact properly classified pursuant to such Executive order; 

(2) relate solely to the internal personnel rules and practices 

of an agency; 

(3) disclose matters specifically exempted from disclosure by 

statute (other than section 552 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) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential; 


lotter on DSK5VPTVN1PROD with REPORTS
42 

(5) involve accusing any person of a crime, or formally censuring any person; 

(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; 

(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information 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; 

(8) disclose information 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; 

(9) disclose information the premature disclosure of which 

would— 

(A) in the case of an agency which regulates currencies, 

securities, commodities, or financial institutions, be likely 

to (i) lead to significant financial speculation in currencies, 

securities, or commodities, or (ii) significantly endanger 

the stability of any financial institution; or 

(B) in the case of any agency, be likely to significantly 

frustrate implementation of a proposed agency action, 

except that subparagraph (B) shall not apply in any instance 

where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is 

required by law to make such disclosure on its own initiative 

prior to taking final agency action on such proposal; or 

(10) specifically concern the agency’s issuance of a subpena, 

or the agency’s participation in a civil action or proceeding, an 

action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency 

of a particular case of formal agency adjudication pursuant to 

the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing. 

(d)(1) Action under subsection (c) shall be taken only when a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the 

agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the 

public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single 

vote may be taken with respect to a series of meetings, a portion 

or portions of which are proposed to be closed to the public, or with 

respect to any information concerning such series of meetings, so 


lotter on DSK5VPTVN1PROD with REPORTS
43 

long as each meeting in such series involves the same particular 

matters and is scheduled to be held no more than thirty days after 

the initial meeting in such series. The vote of each agency member 

participating in such vote shall be recorded and no proxies shall be 

allowed. 

(2) Whenever any person whose interests may be directly affected 

by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph 

(5), (6), or (7) of subsection (c), the agency, upon request of any one 

of its members, shall vote by recorded vote whether to close such 

meeting. 

(3) Within one day of any vote taken pursuant to paragraph (1) 

or (2), the agency shall make publicly available a written copy of 

such vote reflecting the vote of each member on the question. If a 

portion of a meeting is to be closed to the public, the agency shall, 

within one day of the vote taken pursuant to paragraph (1) or (2) 

of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all 

persons expected to attend the meeting and their affiliation. 

(4) Any agency, a majority of whose meetings may properly be 

closed to the public pursuant to paragraph (4), (8), (9)(A), or (10) 

of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the 

event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to 

close the exempt portion or portions of the meeting, and a copy of 

such vote, reflecting the vote of each member on the question, is 

made available to the public. The provisions of paragraphs (1), (2), 

and (3) of this subsection and subsection (e) shall not apply to any 

portion of a meeting to which such regulations apply: Provided, 

That the agency shall, except to the extent that such information 

is exempt from disclosure under the provisions of subsection (c), 

provide the public with public announcement of the time, place, 

and subject matter of the meeting and of each portion thereof at 

the earliest practicable time. 

(e)(1) In the case of each meeting, the agency shall make public 

announcement, at least one week before the meeting, of the time, 

place, and subject matter of the meeting, whether it is to be open 

or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless 

a majority of the members of the agency determines by a recorded 

vote that agency business requires that such meeting be called at 

an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, 

and whether open or closed to the public, at the earliest practicable 

time. 

(2) The time or place of a meeting may be changed following the 

public announcement required by paragraph (1) only if the agency 

publicly announces such change at the earliest practicable time. 

The subject matter of a meeting, or the determination of the agency 

to open or close a meeting, or portion of a meeting, to the public, 

may be changed following the public announcement required by 

this subsection only if (A) a majority of the entire membership of 

the agency determines by a recorded vote that agency business so 


lotter on DSK5VPTVN1PROD with REPORTS
44 

requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the 

vote of each member upon such change at the earliest practicable 

time. 

(3) Immediately following each public announcement required by 

this subsection, notice of the time, place, and subject matter of a 

meeting, whether the meeting is open or closed, any change in one 

of the preceding, and the name and phone number of the official 

designated by the agency to respond to requests for information 

about the meeting, shall also be submitted for publication in the 

Federal Register. 

(f)(1) For every meeting closed pursuant to paragraphs (1) 

through (10) of subsection (c), the General Counsel or chief legal officer of the agency shall publicly certify that, in his or her opinion, 

the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together 

with a statement from the presiding officer of the meeting setting 

forth the time and place of the meeting, and the persons present, 

shall be retained by the agency. The agency shall maintain a complete transcript or electronic recording adequate to record fully the 

proceedings of each meeting, or portion of a meeting, closed to the 

public, except that in the case of a meeting, or portion of a meeting, 

closed to the public pursuant to paragraph (8), (9)(A), or (10) of 

subsection (c), the agency shall maintain either such a transcript 

or recording, or a set of minutes. Such minutes shall fully and 

clearly describe all matters discussed and shall provide a full and 

accurate summary of any actions taken, and the reasons therefor, 

including a description of each of the views expressed on any item 

and the record of any rollcall vote (reflecting the vote of each member on the question). All documents considered in connection with 

any action shall be identified in such minutes. 

(2) The agency shall make promptly available to the public, in a 

place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion 

of any item on the agenda, or of any item of the testimony of any 

witness received at the meeting, except for such item or items of 

such discussion or testimony as the agency determines to contain 

information which may be withheld under subsection (c). Copies of 

such transcript, or minutes, or a transcription of such recording 

disclosing the identity of each speaker, shall be furnished to any 

person at the actual cost of duplication or transcription. The agency 

shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each 

meeting, or portion of a meeting, closed to the public, for a period 

of at least two years after such meeting, or until one year after the 

conclusion of any agency proceeding with respect to which the 

meeting or portion was held, whichever occurs later. 

(g) Each agency subject to the requirements of this section shall, 

within 180 days after the date of enactment of this section, following consultation with the Office of the Chairman of the Administrative Conference of the United States and published notice in 

the Federal Register of at least thirty days and opportunity for 

written comment by any person, promulgate regulations to implement the requirements of subsections (b) through (f) of this section. 

Any person may bring a proceeding in the United States District 


lotter on DSK5VPTVN1PROD with REPORTS
45 

Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein. Subject to any limitations of time provided by law, any person may bring a proceeding in the United States Court of Appeals for the District of 

Columbia to set aside agency regulations issued pursuant to this 

subsection that are not in accord with the requirements of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections. 

(h)(1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of 

this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any 

person against an agency prior to, or within sixty days after, the 

meeting out of which the violation of this section arises, except that 

if public announcement of such meeting is not initially provided by 

the agency in accordance with the requirements of this section, 

such action may be instituted pursuant to this section at any time 

prior to sixty days after any public announcement of such meeting. 

Such actions may be brought in the district court of the United 

States for the district in which the agency meeting is held or in 

which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant 

shall serve his answer within thirty days after the service of the 

complaint. The burden is on the defendant to sustain his action. In 

deciding such cases the court may examine in camera any portion 

of the transcript, electronic recording, or minutes of a meeting 

closed to the public, and may take such additional evidence as it 

deems necessary. The court, having due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such 

portion of the transcript, recording, or minutes of a meeting as is 

not authorized to be withheld under subsection (c) of this section. 

(2) Any Federal court otherwise authorized by law to review 

agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this 

section authorizes any Federal court having jurisdiction solely on 

the basis of paragraph (1) to set aside, enjoin, or invalidate any 

agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any 

agency meeting out of which the violation of this section arose. 

(i) The court may assess against any party reasonable attorney 

fees and other litigation costs reasonably incurred by any other 

party who substantially prevails in any action brought in accordance with the provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plaintiff only where the 

court finds that the suit was initiated by the plaintiff primarily for 

frivolous or dilatory purposes. In the case of assessment of costs 

against an agency, the costs may be assessed by the court against 

the United States. 


lotter on DSK5VPTVN1PROD with REPORTS
46 

(j) Each agency subject to the requirements of this section shall 

annually report to the Congress regarding the following: 

(1) The changes in the policies and procedures of the agency 

under this section that have occurred during the preceding 1- 

year period. 

(2) A tabulation of the number of meetings held, the exemptions applied to close meetings, and the days of public notice 

provided to close meetings. 

(3) A brief description of litigation or formal complaints concerning the implementation of this section by the agency. 

(4) A brief explanation of any changes in law that have affected the responsibilities of the agency under this section. 

(k) Nothing herein expands or limits the present rights of any 

person under section 552 of this title, except that the exemptions 

set forth in subsection (c) of this section shall govern in the case 

of any request made pursuant to section 552 to copy or inspect the 

transcripts, recordings, or minutes described in subsection (f) of 

this section. The requirements of chapter 33 of title 44, United 

States Code, shall not apply to the transcripts, recordings, and 

minutes described in subsection (f) of this section. 

(l) This section does not constitute authority to withhold any information from Congress, and does not authorize the closing of any 

agency meeting or portion thereof required by any other provision 

of law to be open. 

(m) Nothing in this section authorizes any agency to withhold 

from any individual any record, including transcripts, recordings, 

or minutes required by this section, which is otherwise accessible 

to such individual under section 552a of this title. 

* * * * * * * 

Æ 


lotter on DSK5VPTVN1PROD with REPORTS