89–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 115–1046 

SETTLEMENT AGREEMENT INFORMATION DATABASE ACT 

OF 2018 

NOVEMBER 27, 2018.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. GOWDY, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 6777] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 6777) to amend chapter 3 of title 5, 

United States Code, to require the publication of settlement agreements, and for other purposes, having considered the same, report 

favorably thereon without amendment and recommend that the bill 

do pass. 

CONTENTS 

Page 

Summary and Purpose of Legislation .................................................................... 2 

Background and Need for Legislation .................................................................... 2 

Statement of Oversight Findings and Recommendations of the Committee ...... 4 

Statement of General Performance Goals and Objectives .................................... 5 

Legislative History .................................................................................................. 5 

Committee Consideration ........................................................................................ 5 

Roll Call Votes ......................................................................................................... 5 

Explanation of Amendments ................................................................................... 5 

Application of Law to the Legislative Branch ....................................................... 5 

Duplication of Federal Programs ............................................................................ 5 

Disclosure of Directed Rule Makings ..................................................................... 5 

Federal Advisory Committee Act ............................................................................ 6 

Unfunded Mandates Statement .............................................................................. 6 

Earmark Identification ............................................................................................ 6 

Committee Estimate ................................................................................................ 6 

New Budget Authority and Congressional Budget Office Cost Estimate ........... 6 

Section-by-Section Analysis .................................................................................... 7 

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

2 

1 ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN

COURTS RUN GOVERNMENT, YALE UNIVERSITY PRESS 4 (2003). 2 Id. at 4. 3MICHAEL E. DEBOW, GARY J. PALMER, & JOHN J. PARK, JR., ALABAMA POLICY INST., CONSENT

DECREES IN INSTITUTIONAL REFORM LITIGATION: STRATEGIES FOR STATE LEGISLATURES (2008), 

https://www.alabamapolicy.org/wp-content/uploads/2018/01/API-Research-Consent-Decrees.pdf. 4 Examining ‘Sue and Settle’ Agreements: Part I: Hearing Before the Subcomm. on Intergovernmental Affairs and the Subcomm. on the Interior, Energy, & Environment of the H. Comm, on 

Oversight & Gov’t Reform, 115th Cong. (May 24, 2017); Examining ‘Sue and Settle’ Agreements: 

Part II: Hearing Before the Subcomm. on Intergovernmental Affairs and the Subcomm. on the 

Interior, Energy, & Environment of the H. Comm, on Oversight & Gov’t Reform, 115th Cong. 

(July 25, 2017). 5 Examining ‘Sue and Settle’ Agreements: Part II: Hearing Before the Subcomm. on Intergovernmental Affairs and the Subcomm. on the Interior, Energy & Environment of the H. Comm, 

on Oversight & Gov’t Reform, 115th Cong. (July 25, 2017). 6 Id. 

7 Id. 

8 Id. 

9 Id. 

SUMMARY AND PURPOSE OF LEGISLATION

H.R. 6777, the Settlement Agreement Information Database Act 

of 2018, requires the establishment of a centralized, publicly-available settlements database. The bill directs federal agencies to publish information about settlement agreements to the database. 

When settlement details are deemed confidential, H.R. 6777 directs 

the heads of agencies to issue a written public statement justifying 

any confidentiality requirements preventing the release of the required information. 

BACKGROUND AND NEED FOR LEGISLATION

Federal agencies often resolve litigation by entering into legallybinding consent decrees and settlement agreements in order to 

avoid lengthy trials.1 This process has dictated an ‘‘enormous 

range’’ of policies across governmental programs, states, and cities 

in ‘‘special education, mental hospitals, environmental protection, 

and prisons.’’ 2 Settlement agreements can require actions extending beyond the scope of the original violation of federal law, and 

in some cases remain in effect for decades.3

The Committee examined the effect of the sue-and-settle process 

on states and local governments in two subcommittee joint hearings in May and July 2017.4 In the July 2017 hearing, City Administrator Carl Geffken testified before the subcommittees on the economic impact of a consent decree on the city of Fort Smith, Arkansas.5 Prior to the consent decree, the city was subject to one of the 

Environmental Protection Agency’s (EPA) oldest administrative orders still in effect.6 According to Mr. Geffken, the Department of 

Justice (DOJ) and the Arkansas State Attorney General ‘‘browbeat 

and coerced Fort Smith into accepting a consent decree’’ to reform 

its sewer systems by threatening millions of dollars in legal fees, 

despite the city investing $200 million into compliance efforts.7

The resulting consent decree caused further deleterious effects 

from the imposition of unusual terms. While other cities under 

similar orders had 20 years to achieve compliance, Fort Smith’s 

consent decree mandates a 12-year completion date.8 The cost of 

the consent decree also exceeded federal guidelines, costing more 

than 2 percent of the median household income (MHI).9 Moreover, 

Fort Smith sewer utility bills increased by 167 percent in 3 years 

to fund the provisions required by the consent decree, while resiVerDate Sep 11 2014 03:51 Nov 30, 2018 Jkt 089006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR1046.XXX HR1046
3 

10 Examining ‘Sue and Settle’ Agreements: Part II: Hearing Before the H. Comm. On Oversight 

& Gov’t Reform, 115th Cong. (2017) (Statement of Carl E. Geffken, City Administrator, City of 

Fort Smith, Arkansas). 11 Id., at 9. 12 Id. 13PHINEAS BAXANDALL & MICHELLE SURKA, SETTLING FOR A LACK OF ACCOUNTABILITY? WHICH

FEDERAL AGENCIES ALLOW COMPANIES TO WRITE OFF OUT-OF-COURT SETTLEMENTS AS TAX DE- DUCTIONS, AND WHICH ARE TRANSPARENT ABOUT IT, U.S. PUBLIC INTEREST RESEARCH GROUP

EDUCATION FUND (Dec. 2015), https://uspirgedfund.org/sites/pirg/files/reports/USPIRG_ SettlementsReport.pdf [hereinafter BAXANDALL & SURKA]. 14 Id. 15 Id. 16 Id. 

dents’ incomes simultaneously decreased by 11 percent.10 Ultimately, it is projected to cost double the city’s annual total budget 

for all government activities to achieve full compliance.11

In the same hearing, former Michigan Governor John Engler testified some Federal judges are unaware of the number of consent 

decrees they enforce in their caseload, due to inadequate recordkeeping.12

Arbitrary and opaque settlement agreement provisions have profound consequences on states, municipalities, and federal entities, 

and prevent Congress and the public from fully evaluating their 

impact. Federal agencies are generally not required to publish information on settlement agreements. Further, Federal agencies can 

seal decisions or determine the terms of the settlement agreement 

are confidential with no explanation to the public.13 There is no 

rule or regulation mandating that the agencies explain why one 

was determined to be confidential and another was not, leading to 

a further lack of transparency and the appearance of an arbitrary 

process.14 This appearance is compounded by the agency practice 

of designating some agreements as ‘‘solely an Agreement in Principle,’’ which allows the agency to postpone publishing the terms of 

the consent decree until an indeterminate later date.15

Most of the public’s access to Federal settlement agreement information is primarily determined by individual agency discretion, 

most commonly issued in the form of a press release.16 Recently, 

some Federal agencies have attempted to increase accountability 

and transparency with respect to settlement agreements. 

In October 2017, the EPA issued an agency-wide directive modifying its settlement agreement practices, which requires: 

1. Publishing any notices of intent to sue the agency within 

15 days of receiving the notice; 

2. Publishing any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the 

agency is a defendant or respondent in federal court within 15 

days of receipt; 

3. Reaching out to and including any states and/or regulated 

entities affected by potential settlements or consent decrees; 

4. Publishing a list of consent decrees and settlement agreements that govern agency actions within 30 days, along with 

any attorney fees paid, and update it within 15 days of any 

new consent decree or settlement agreement; 

5. Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts; 

6. Excluding attorney’s fees and litigation costs when settling 

with those suing the agency; 

4 

17 EPA, DIRECTIVE PROMOTING TRANSPARENCY AND PUBLIC PARTICIPATION IN CONSENT DE- CREES AND SETTLEMENT AGREEMENTS (2017). 18DEP’T OF THE INTERIOR, ORDER NO. 3368, PROMOTING TRANSPARENCY AND ACCOUNTABILITY

IN CONSENT DECREES AND SETTLEMENT AGREEMENTS (2018). 19 Id. 20 Id. 21 BAXANDALL & SURKA, supra note 13. 22 Id. 23 Id., at 28. 24 Id. 

7. Providing sufficient time to issue or modify proposed and 

final rules, take and consider public comment; and 

8. Publishing any proposed or modified consent decrees and 

settlements for 30-day public comment, and providing a public 

hearing on a proposed consent decree or settlement when requested.17

The Department of the Interior (Interior) also established a policy mandating new practices to boost transparency.18 For example, 

Interior will establish a ‘‘publicly accessible litigation webpage,’’ 

which includes a searchable list of all consent decrees and settlement agreements still in effect.19 The litigation webpage will be updated with any new settlement agreements and decrees, and maintained in a way to maximize public utility.20

The Department of Justice, in contrast, has historically lacked 

transparency in its settlement practices.21 The DOJ is both the 

largest originator of settlements, as well as the main negotiating 

agency for other Federal agencies.22 As such, the DOJ has the 

greatest potential impact on federal settlement agreement transparency practices. According to a report by the Public Interest Research Group, with regard to DOJ settlements, ‘‘the percent of publicly announced settlements with text posted on line declined from 

35 percent in 2012 to 25 percent in 2014.’’ 23

To extend transparency across the Federal government, the Settlement Agreement Information Database Act (SAID Act) requires 

establishment of an electronic and publicly-available database of 

settlement agreements entered into by Federal agencies. Similar to 

existing EPA and DOJ policies,24 H.R. 6777 requires federal agencies to submit settlement agreement information into the database, 

including dates, payments, awarding of attorney fees, and a list of 

State and local governments directly affected by the agreement. In 

cases where the terms of an agreement are deemed confidential, 

the bill requires agency heads to issue a written public statement 

justifying the nondisclosure. 

The SAID Act does not establish any novel or overly burdensome 

requirements. Most of the information required for posting is readily apparent on the face of the settlement agreements and in the 

posted information that often accompanies agreements, such as fact 

sheets and press releases. 

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 

previous section. 

5 

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 goal or objective of this bill is to increase public access to federal agency settlement agreement records. 

LEGISLATIVE HISTORY

On September 12, 2018, Representative Gary Palmer (R–AL) introduced H.R. 6777, the Settlement Agreement Information Database Act of 2018. H.R. 6777 was referred to the Committee on 

Oversight and Government Reform. The Committee considered 

H.R. 6777 at a business meeting on September 27, 2018, and ordered the bill favorably reported to the House by unanimous consent. 

COMMITTEE CONSIDERATION

On September 27, 2018, the Committee met in open session and, 

with a quorum being present, ordered the bill favorably reported to 

the House by unanimous consent. 

ROLL CALL VOTES

There were no roll call votes requested or conducted during Committee consideration of H.R. 6777. 

EXPLANATION OF AMENDMENTS

There were no amendments to H.R. 6777 offered or adopted during Committee consideration of the bill. 

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 is to increase public access to federal agency settlement agreement records. As such, this 

bill does not relate to employment or access to public services and 

accommodations. 

DUPLICATION OF FEDERAL PROGRAMS

In accordance with clause 2(c)(5) of rule XIII 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

This bill does not direct the completion of any specific rule makings within the meaning of section 551 of title 5, United States 

Code. 

6 

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 Section 5(b) of the appendix to title 5, United States 

Code. 

UNFUNDED MANDATES STATEMENT

Pursuant to section 423 of the Congressional Budget Act of 1974 

the Committee has included a letter received from the Congressional Budget Office below. 

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 of the House of Representatives. 

COMMITTEE ESTIMATE

Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of the 

House of Representatives, the Committee includes below a cost estimate of the bill prepared by the Director of the Congressional 

Budget Office under section 402 of the Congressional Budget Act of 

1974. 

NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE

COST ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the House of Representatives, the cost estimate prepared by the Congressional Budget Office and submitted pursuant to section 402 of the Congressional 

Budget Act of 1974 is as follows: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, October 18, 2018. 

Hon. TREY GOWDY, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 6777, the Settlement 

Agreement Information Database Act of 2018. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

MARK P. HADLEY

(For Keith Hall, Director). 

Enclosure. 

H.R. 6777—Settlement Agreement Information Database Act of 

2018 

H.R. 6777 would establish new requirements for the public disclosure of settlement agreements entered into by federal agencies. 

Specifically, the legislation would require that the text of such 

agreements be posted online. Under the bill, each posted settleVerDate Sep 11 2014 03:51 Nov 30, 2018 Jkt 089006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR1046.XXX HR1046
7 

ment would include a copy of the agreement, the names of the parties involved, a description of the claims settled, the amount to be 

paid and to whom it was paid, the length of the agreement, and 

how the agreement came about. In addition, H.R. 6777 would require the agencies to report on any agreements that are confidential and the reasoning for that arrangement. 

CBO estimates that enacting H.R. 6777 would have no significant effect on the federal budget because most of the required information is already collected during the settlement process and 

the cost of making it available online would not be significant. 

Enacting H.R. 6777 could affect direct spending by some agencies 

(such as the Tennessee Valley Authority) that are authorized to use 

receipts from the sale of goods, fees, and other collections to cover 

their operating costs; therefore, pay-as-you-go procedures apply. 

Because most of those agencies can adjust the amounts collected, 

CBO estimates that any net changes in direct spending by those 

agencies would be negligible. Enacting the bill would not affect revenues. 

CBO estimates that enacting H.R. 6777 would not significantly 

increase net direct spending or on-budget deficits in any of the four 

consecutive 10-year periods beginning in 2029. 

H.R. 6777 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 designates the short title of the bill as the ‘‘Settlement 

Agreement Information Database Act of 2018.’’ 

Section 2. Information regarding settlement agreements entered into 

by Federal Agencies 

Section 2 amends chapter 3 of title 5, United States Code, by 

adding section 307, which establishes new information disclosure 

requirements for Federal agencies regarding settlement agreements. 

Section 307. Information regarding settlement agreements 

Section 307 requires the establishment of a centralized and publicly available settlement agreement information database, which 

will be overseen by the Director of the Office of Management and 

Budget (OMB). OMB has one year to execute database operations. 

The head of each Executive agency is required to submit to the 

database a list of each agency settlement agreement, including: (1) 

the category of the settlement agreement; (2) the date of entry; (3) 

a list of specific violations and a description of the claims settled; 

(4) the awarding of attorneys’ fees and related costs; (5) the amount 

each settling party is obligated to pay; (6) the projected duration 

of the settlement agreement; (7) a list of State or local governments 

that may be directly affected; (8) a summary of economic data and 

methodology; (9) any applicable modifications; (10) notice and comments; and (11) a copy of the settlement agreement. The section 

8 

clarifies it is the originating agency’s responsibility to submit such 

information. 

The section includes an exemption of the disclosure of information in circumstances where there is a confidentiality agreement or 

other exemptions provided under the Freedom of Information Act, 

as long as the appropriate citation is provided. Agency heads are 

also required to issue a written public statement explaining the 

sealing of information and documents in circumstances where a 

settlement agreement requires a confidentiality agreement. 

The section further requires OMB to issue guidelines to ensure 

a standardized approach to data and information sharing from Federal agencies to the database, with such information remaining 

publicly available for a period of five years after the termination 

of the settlement agreement. Agency heads are required to begin 

submitting information to the database not later than 90 days after 

the issuance of the OMB guidance. 

The section includes a clerical amendment to update the table of 

sections and defines several terms used within the section. 

Section 3. Amendments to the Freedom of Information Act 

Section 3 creates a new subparagraph (B) of section 552(a)(2) of 

title 5, United States Code, which extends redactions and exemptions to settlement agreements, as defined in section 307. 

Section 4. Rule of construction 

Section 4 clarifies the bill is not intended to require public disclosure of agency information or records otherwise protected from disclosure under the Freedom of Information Act. 

Section 5. Effective date; applicability 

Section 5 requires the application of the bill 180 days after enactment, which will apply to any settlement agreement entered into 

on or after enactment, as well as any settlement agreement remaining in effect on or after enactment, to the extent practicable. 

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 3—POWERS 

Sec. 

9 

301. Departmental regulations. 

* * * * * * * 

307. Information regarding settlement agreements. 

* * * * * * * 

§ 307. Information regarding settlement agreements 

(a) DEFINITIONS.—In this section: 

(1) LOCAL GOVERNMENT.—The term ‘‘local government’’ has 

the meaning given that term in section 6501 of title 31. 

(2) ORDER TYPE.—The term ‘‘order type’’ means the type of action or instrument used to settle a civil or criminal judicial action. 

(3) SETTLEMENT AGREEMENT.—The term ‘‘settlement agreement’’ means a settlement agreement (including a consent decree) that— 

(A) is entered into by an Executive agency; and 

(B) relates to an alleged violation of Federal civil or 

criminal law. 

(4) STATE.—The term ‘‘State’’ means each of the several 

States, the District of Columbia, each territory or possession of 

the United States, and each federally recognized Indian Tribe. 

(b) SETTLEMENT AGREEMENT INFORMATION DATABASE.— (1) EXECUTIVE AGENCY REQUIREMENT.— (A) IN GENERAL.—Subject to subparagraph (B), the head 

of each Executive agency shall, in accordance with guidance issued pursuant to paragraph (2), submit the following information to the database established under paragraph (3): 

(i) A list of each settlement agreement, in a categorized and searchable format, entered into by the Executive agency, as a party to a lawsuit, which shall include, for each settlement agreement— 

(I) the order type of the settlement agreement; 

(II) the date on which the parties entered into 

the settlement agreement; 

(III) a list of specific violations that specify the 

basis for the action taken, with a description of the 

claims each party settled under the settlement 

agreement; 

(IV) the amount of attorneys’ fees and other litigation costs awarded, if any, including a description of the statutory basis for such an award; 

(V) the amount each party settling a claim under 

the settlement agreement is obligated to pay under 

the settlement agreement; 

(VI) the total amount the settling parties are obligated to pay under the settlement agreement; 

(VII) the amount, if any, the settling party is obligated to pay that is expressly specified under the 

settlement agreement as a civil or criminal penalty 

or fine; 

(VIII) any payment made under the settlement 

agreement, including a description of any payment 

made to the Federal Government; 

10 

(IX) the projected duration of the settlement 

agreement, if available; 

(X) a list of State or local governments that may 

be directly affected by the terms of the settlement 

agreement; 

(XI) a brief description of any economic data and 

methodology used to justify the terms of the settlement agreement; 

(XII) any modifications to the settlement agreement, when applicable; 

(XIII) notice and comments, when applicable; 

and 

(XIV) whether the settlement agreement is still 

under judicial enforcement and any period of time 

by which the parties agreed to have certain conditions met. 

(ii) A copy of each— 

(I) settlement agreement entered into by the Executive agency; and 

(II) statement issued under paragraph (4). 

(B) NONDISCLOSURE.—The requirement to submit information or a copy of a settlement agreement under subparagraph (A) shall not apply to the extent the information or 

copy (or portion thereof)— 

(i) is subject to a confidentiality provision that prohibits disclosure of the information or copy (or portion 

thereof); and 

(ii) would not be disclosed under section 552, if the 

Executive agency provides a citation to the applicable 

exemption. 

(C) CLARIFICATION OF RESPONSIBLE AGENCY.—In a case 

in which an Executive agency is acting at the request or on 

behalf of another Executive agency (referred to as the originating agency), the originating agency is responsible for 

submitting information under subparagraph (A). 

(2) GUIDANCE.—The Director of the Office of Management 

and Budget shall issue guidance for Executive agencies to implement paragraph (1). Such guidance shall include the following: 

(A) Specific dates by which submissions must be made, 

not less than twice a year. 

(B) Data standards, including common data elements 

and a common, nonproprietary, searchable, machine-readable, platform independent format. 

(C) A requirement that the information and documents 

required under paragraph (1) are publicly available for a 

period starting on the date of the settlement through not 

less than 5 years after the termination of the settlement 

agreement. 

(3) ESTABLISHMENT OF DATABASE.—The Director of the Office 

of Management and Budget, or the head of an Executive agency 

designated by the Director, shall establish and maintain a public, searchable, downloadable database for Executive agencies to 

directly upload and submit the information and documents required under paragraph (1) for immediate publication online. 

11 

(4) STATEMENT OF CONFIDENTIALITY.—If the head of an Executive agency determines that a confidentiality provision in a 

settlement agreement, or the sealing of a settlement agreement, 

is required to protect the public interest of the United States, 

the head of the Executive agency may except the settlement 

agreement from the requirement in paragraph (1) and shall 

issue a written public statement stating why such action is required to protect the public interest of the United States, which 

shall explain— 

(A) what interests confidentiality protects; and 

(B) why the interests protected by confidentiality outweigh the public’s interest in knowing about the conduct of 

the Federal Government and the expenditure of Federal resources. 

* * * * * * * 

CHAPTER 5—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

§ 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. 

12 

(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) each settlement agreement (as defined in section 307) entered into by an Executive agency, with redactions for information that the agency may withhold under paragraph (8) and 

subsections (b) and (c) of this section; 

ø(B)¿ (C) those statements of policy and interpretations 

which have been adopted by the agency and are not published 

in the Federal Register; 

ø(C)¿ (D) administrative staff manuals and instructions to 

staff that affect a member of the public; 

ø(D)¿ (E) 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 

ø(E)¿ (F) a general index of the records referred to under 

subparagraph (D); 

unless the materials are promptly published and copies offered for 

sale. For records created on or after November 1, 1996, within one 

year after such date, each agency shall make such records available, including by computer telecommunications or, if computer 

telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a 

clearly unwarranted invasion of personal privacy, an agency may 

delete identifying details when it makes available or publishes an 

opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, 

in each case the justification for the deletion shall be explained 

fully in writing, and the extent of such deletion shall be indicated 

on the portion of the record which is made available or published, 

unless including that indication would harm an interest protected 

by the exemption in subsection (b) under which the deletion is 

made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. 

Each agency shall also maintain and make available for public inspection 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, 

13 

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. 

(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 nonVerDate Sep 11 2014 03:51 Nov 30, 2018 Jkt 089006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1046.XXX HR1046
14 

commercial 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 disclosure of the information is in the public interest because it is likely 

to contribute significantly to public understanding of the operations 

or activities of the government and is not primarily in the commercial interest of the requester. 

(iv) Fee schedules shall provide for the recovery of only the direct 

costs of search, duplication, or review. Review costs shall include 

only the direct costs incurred during the initial examination of a 

document for the purposes of determining whether the documents 

must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues 

of law or policy that may be raised in the course of processing a 

request under this section. No fee may be charged by any agency 

under this section— 

(I) if the costs of routine collection and processing of the fee 

are likely to equal or exceed the amount of the fee; or 

(II) for any request described in clause (ii) (II) or (III) of this 

subparagraph for the first two hours of search time or for the 

first one hundred pages of duplication. 

(v) No agency may require advance payment of any fee unless 

the requester has previously failed to pay fees in a timely fashion, 

or the agency has determined that the fee will exceed $250. 

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of 

fees for particular types of records. 

15 

(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 described 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. 

ø(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 

98 Stat. 3357.¿ 

16 

(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. 

(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 

17 

(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 

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— 

18 

(I) the need to search for and collect the requested records 

from field facilities or other establishments that are separate 

from the office processing the request; 

(II) the need to search for, collect, and appropriately examine 

a voluminous amount of separate and distinct records which 

are demanded in a single request; or 

(III) the need for consultation, which shall be conducted with 

all practicable speed, with another agency having a substantial 

interest in the determination of the request or among two or 

more components of the agency having substantial subject-matter interest therein. 

(iv) Each agency may promulgate regulations, pursuant to notice 

and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors 

acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise 

satisfy the unusual circumstances specified in this subparagraph, 

and the requests involve clearly related matters. Multiple requests 

involving unrelated matters shall not be aggregated. 

(C)(i) Any person making a request to any agency for records 

under paragraph (1), (2), or (3) of this subsection shall be deemed 

to have exhausted his administrative remedies with respect to such 

request if the agency fails to comply with the applicable time limit 

provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due 

diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review 

of the records. Upon any determination by an agency to comply 

with a request for records, the records shall be made promptly 

available to such person making such request. Any notification of 

denial of any request for records under this subsection shall set 

forth the names and titles or positions of each person responsible 

for the denial of such request. 

(ii) For purposes of this subparagraph, the term ‘‘exceptional circumstances’’ does not include a delay that results from a predictable agency workload of requests under this section, unless the 

agency demonstrates reasonable progress in reducing its backlog of 

pending requests. 

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request 

(or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request 

shall be considered as a factor in determining whether exceptional 

circumstances exist for purposes of this subparagraph. 

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time 

(or both) involved in processing requests. 

(ii) Regulations under this subparagraph may provide a person 

making a request that does not qualify for the fastest multitrack 

processing an opportunity to limit the scope of the request in order 

to qualify for faster processing. 

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. 

19 

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records— 

(I) in cases in which the person requesting the records demonstrates a compelling need; and 

(II) in other cases determined by the agency. 

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure— 

(I) that a determination of whether to provide expedited 

processing shall be made, and notice of the determination shall 

be provided to the person making the request, within 10 days 

after the date of the request; and 

(II) expeditious consideration of administrative appeals of 

such determinations of whether to provide expedited processing. 

(iii) An agency shall process as soon as practicable any request 

for records to which the agency has granted expedited processing 

under this subparagraph. Agency action to deny or affirm denial of 

a request for expedited processing pursuant to this subparagraph, 

and failure by an agency to respond in a timely manner to such a 

request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the 

agency at the time of the determination. 

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request 

for records after the agency has provided a complete response to 

the request. 

(v) For purposes of this subparagraph, the term ‘‘compelling 

need’’ means— 

(I) that a failure to obtain requested records on an expedited 

basis under this paragraph could reasonably be expected to 

pose an imminent threat to the life or physical safety of an individual; or 

(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. 

(vi) A demonstration of a compelling need by a person making a 

request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief. 

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide 

any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. 

(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— 

20 

(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 

(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 

21 

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) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, 

the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this 

section. 

(2) Whenever informant records maintained by a criminal law 

enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s 

name or personal identifier, the agency may treat the records as 

not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed. 

(3) Whenever a request is made which involves access to records 

maintained by the Federal Bureau of Investigation pertaining to 

foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as 

provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records 

as not subject to the requirements of this section. 

(d) This section does not authorize withholding of information or 

limit the availability of records to the public, except as specifically 

stated in this section. This section is not authority to withhold information from Congress. 

22 

(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; 

(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; 

23 

(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). 

(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 

24 

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 

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. 

25 

(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. 

(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. 

26 

(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 

(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: 

27 

(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. 

(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, inVerDate Sep 11 2014 03:51 Nov 30, 2018 Jkt 089006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1046.XXX HR1046
28 

creasing 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. 

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