PART I—THE AGENCIES GENERALLY
Amendments
1996—
CHAPTER 1 —ORGANIZATION
§101. Executive departments
The Executive departments are:
The Department of State.
The Department of the Treasury.
The Department of Defense.
The Department of Justice.
The Department of the Interior.
The Department of Agriculture.
The Department of Commerce.
The Department of Labor.
The Department of Health and Human Services.
The Department of Housing and Urban Development.
The Department of Transportation.
The Department of Energy.
The Department of Education.
The Department of Veterans Affairs.
The Department of Homeland Security.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| R.S. §158. Feb. 9, 1889, ch. 122, §1 (38th through 54th words), |
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| Feb. 14, 1903, ch. 552, §1 (83d through 99th words), |
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| Mar. 4, 1913, ch. 141, §1 (75th through 91st words), |
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| Aug. 10, 1949, ch. 412, §4 "Sec. 201(c)", |
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| July 31, 1956, ch. 802, §1(a), |
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| R.S. §159. |
The reference in former section 1 to the application of the provisions of this title, referring to title IV of the Revised Statutes, is omitted as unnecessary as the application of those provisions is stated in the text.
The statement in former section 2 that the use of the word "department" means one of the Executive departments named in former section 1 is omitted as unnecessary as the words "Executive department" are used in this title when Executive department is meant.
"The Department of Commerce" is substituted for "The Department of Commerce and Labor" on authority of the act of March 4, 1913, ch. 141, §1,
Amendments
2006—
1988—
1979—
1977—
1970—
1966—
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1979 Amendment
Amendment by
Effective Date of 1970 Amendment
Amendment by
Effective Date of 1966 Amendment
Amendment by
Short Title of 2020 Amendment
Short Title of 2019 Amendment
Short Title of 2018 Amendment
Short Title of 2017 Amendment
Short Title of 2016 Amendment
Short Title of 2015 Amendment
Short Title of 2014 Amendment
Short Title of 2012 Amendment
Short Title of 2010 Amendment
Short Title of 2009 Amendment
Short Title of 2008 Amendment
Short Title of 2007 Amendment
Short Title of 2006 Amendment
Short Title of 2004 Amendments
Short Title of 2003 Amendments
Short Title of 2002 Amendment
Short Title of 2001 Amendment
Prohibition Against Construction That Would Render Applicable to the Department of Transportation Provisions of Law Inconsistent With Pub. L. 89–670 Creating the Department of Transportation
§102. Military departments
The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.
(
Historical and Revision Notes
The section is supplied to avoid the necessity for defining "military departments" each time it is used in this title. See
§103. Government corporation
For the purpose of this title—
(1) "Government corporation" means a corporation owned or controlled by the Government of the United States; and
(2) "Government controlled corporation" does not include a corporation owned by the Government of the United States.
(
Historical and Revision Notes
The section is supplied to avoid the necessity for defining "Government corporation" and "Government controlled corporation" each time it is used in this title.
§104. Independent establishment
For the purpose of this title, "independent establishment" means—
(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Regulatory Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and
(2) the Government Accountability Office.
(
Historical and Revision Notes
The section is supplied to avoid the necessity for defining "independent establishment" each time it is used in this title.
Certain agencies are not independent establishments under the definition since they are constituent agencies or parts of an independent establishment. However, these agencies would continue to be subject to the provisions of this title applicable to the independent establishment of which they are a constituent or part. Also, the definition does not expand or abridge any rights or authority possessed by these agencies as no substantive changes are intended, see section 7(a) of the bill.
Amendments
2006—Par. (1).
2004—Par. (2).
1970—Par. (1).
Effective Date of 1970 Amendment
Amendment by
§105. Executive agency
For the purpose of this title, "Executive agency" means an Executive department, a Government corporation, and an independent establishment.
(
Historical and Revision Notes
The section is supplied to avoid the necessity for defining "Executive agency" each time it is used in this title.
CHAPTER 3 —POWERS
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES
Amendments
2019—
2011—
1993—
SUBCHAPTER I—GENERAL PROVISIONS
Amendments
2019—
§301. Departmental regulations
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| R.S. §161. Aug. 12, 1958, |
The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The words "not inconsistent with law" are omitted as surplusage as a regulation which is inconsistent with law is invalid.
The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (
"All laws, orders, regulations, and other actions relating to the National Military Establishment, the Departments of the Army, the Navy, or the Air Force, or to any officer or activity of such establishment or such departments, shall, except to the extent inconsistent with the provisions of this Act, have the same effect as if this Act had not been enacted; but, after the effective date of this Act, any such law, order, regulation, or other action which vested functions in or otherwise related to any officer, department, or establishment, shall be deemed to have vested such function in or relate to the officer, or department, executive or military, succeeding the officer, department, or establishment in which such function was vested. For purposes of this subsection the Department of Defense shall be deemed the department succeeding the National Military Establishment, and the military departments of Army, Navy, and Air Force shall be deemed the departments succeeding the Executive Departments of Army, Navy, and Air Force."
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4,
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Federal Cybersecurity Workforce Assessment
"SEC. 301. SHORT TITLE.
"This title may be cited as the 'Federal Cybersecurity Workforce Assessment Act of 2015'.
"SEC. 302. DEFINITIONS.
"In this title:
"(1)
"(A) the Committee on Armed Services of the Senate;
"(B) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(C) the Select Committee on Intelligence of the Senate;
"(D) the Committee on Commerce, Science, and Transportation of the Senate;
"(E) the Committee on Armed Services of the House of Representatives;
"(F) the Committee on Homeland Security of the House of Representatives;
"(G) the Committee on Oversight and Government Reform of the House of Representatives; and
"(H) the Permanent Select Committee on Intelligence of the House of Representatives.
"(2)
"(3)
"(4)
"SEC. 303. NATIONAL CYBERSECURITY WORKFORCE MEASUREMENT INITIATIVE.
"(a)
"(1) identify all positions within the agency that require the performance of cybersecurity or other cyber-related functions; and
"(2) assign the corresponding employment code under the National Initiative for Cybersecurity Education in accordance with subsection (b).
"(b)
"(1)
"(A)
"(B)
"(C)
"(D)
"(i) the percentage of personnel with information technology, cybersecurity, or other cyber-related job functions who currently hold the appropriate industry-recognized certifications as identified under the National Initiative for Cybersecurity Education;
"(ii) the level of preparedness of other civilian and noncivilian cyber personnel without existing credentials to take certification exams; and
"(iii) a strategy for mitigating any gaps identified in clause (i) or (ii) with the appropriate training and certification for existing personnel.
"(E)
"(i) to identify all encumbered and vacant positions with information technology, cybersecurity, or other cyber-related functions (as defined in the National Initiative for Cybersecurity Education's coding structure); and
"(ii) to assign the appropriate employment code to each such position, using agreed standards and definitions.
"(2)
"(c)
"SEC. 304. IDENTIFICATION OF CYBER-RELATED WORK ROLES OF CRITICAL NEED.
"(a)
"(1) identify information technology, cybersecurity, or other cyber-related work roles of critical need in the agency's workforce; and
"(2) submit a report to the Director that—
"(A) describes the information technology, cybersecurity, or other cyber-related roles identified under paragraph (1); and
"(B) substantiates the critical need designations.
"(b)
"(1) current information technology, cybersecurity, and other cyber-related roles with acute skill shortages; and
"(2) information technology, cybersecurity, or other cyber-related roles with emerging skill shortages.
"(c)
"(1) identify critical needs for information technology, cybersecurity, or other cyber-related workforce across all Federal agencies; and
"(2) submit a progress report on the implementation of this section to the appropriate congressional committees.
"SEC. 305. GOVERNMENT ACCOUNTABILITY OFFICE STATUS REPORTS.
"The Comptroller General of the United States shall—
"(1) analyze and monitor the implementation of sections 303 and 304; and
"(2) not later than 3 years after the date of the enactment of this Act [Dec. 18, 2015], submit a report to the appropriate congressional committees that describes the status of such implementation."
Plain Writing in Government Documents
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Plain Writing Act of 2010'.
"SEC. 2. PURPOSE.
"The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.
"SEC. 3. DEFINITIONS.
"In this Act:
"(1)
"(2)
"(A) means any document that—
"(i) is necessary for obtaining any Federal Government benefit or service or filing taxes;
"(ii) provides information about any Federal Government benefit or service; or
"(iii) explains to the public how to comply with a requirement the Federal Government administers or enforces;
"(B) includes (whether in paper or electronic form) a letter, publication, form, notice, or instruction; and
"(C) does not include a regulation.
"(3)
"SEC. 4. RESPONSIBILITIES OF FEDERAL AGENCIES.
"(a)
"(1)
"(A) designate 1 or more senior officials within the agency to oversee the agency implementation of this Act;
"(B) communicate the requirements of this Act to the employees of the agency;
"(C) train employees of the agency in plain writing;
"(D) establish a process for overseeing the ongoing compliance of the agency with the requirements of this Act;
"(E) create and maintain a plain writing section of the agency's website as required under paragraph (2) that is accessible from the homepage of the agency's website; and
"(F) designate 1 or more agency points-of-contact to receive and respond to public input on—
"(i) agency implementation of this Act; and
"(ii) the agency reports required under section 5.
"(2)
"(A) inform the public of agency compliance with the requirements of this Act; and
"(B) provide a mechanism for the agency to receive and respond to public input on—
"(i) agency implementation of this Act; and
"(ii) the agency reports required under section 5.
"(b)
"(c)
"(1)
"(2)
"(A) the writing guidelines developed by the Plain Language Action and Information Network; or
"(B) guidance provided by the head of the agency that is consistent with the guidelines referred to in subparagraph (A).
"SEC. 5. REPORTS TO CONGRESS.
"(a)
"(b)
"SEC. 6. JUDICIAL REVIEW AND ENFORCEABILITY.
"(a)
"(b)
"SEC. 7. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.
"The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010 [
Support for Youth Organizations
"(a)
"(1) the Boy Scouts of America;
"(2) the Girl Scouts of the United States of America;
"(3) the Boys Clubs of America;
"(4) the Girls Clubs of America;
"(5) the Young Men's Christian Association;
"(6) the Young Women's Christian Association;
"(7) the Civil Air Patrol;
"(8) the United States Olympic Committee [now United States Olympic and Paralympic Committee];
"(9) the Special Olympics;
"(10) Campfire USA;
"(11) the Young Marines;
"(12) the Naval Sea Cadets Corps;
"(13) 4–H Clubs;
"(14) the Police Athletic League;
"(15) Big Brothers—Big Sisters of America;
"(16) National Guard Challenge Program; and
"(17) any other organization designated by the President as an organization that is primarily intended to—
"(A) serve individuals under the age of 21 years;
"(B) provide training in citizenship, leadership, physical fitness, service to community, and teamwork; and
"(C) promote the development of character and ethical and moral values.
"(b)
"(1)
"(2)
"(3)
"(A) any senior officer (including any member of the board of directors) of the youth organization is convicted of a criminal offense relating to the official duties of that officer or the youth organization is convicted of a criminal offense; or
"(B) the youth organization is the subject of a criminal investigation relating to fraudulent use or waste of Federal funds.
"(4)
"(A) authorizing a youth organization to hold meetings, camping events, or other activities on Federal property;
"(B) hosting any official event of a youth organization;
"(C) loaning equipment for the use of a youth organization; and
"(D) providing personnel services and logistical support for a youth organization."
Minimum Standards for Birth Certificates
"(a)
"(1) for an individual (regardless of where born)—
"(A) who is a citizen or national of the United States at birth; and
"(B) whose birth is registered in the United States; and
"(2) that—
"(A) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; or
"(B) is an authenticated copy, issued by a Federal, State, or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.
"(b)
"(1)
"(2)
"(A)
"(B)
"(C)
"(D)
"(3)
"(A) at a minimum, shall require certification of the birth certificate by the State or local government custodian of record that issued the certificate, and shall require the use of safety paper or an alternative, equally secure medium, the seal of the issuing custodian of record, and other features designed to prevent tampering, counterfeiting, or otherwise duplicating the birth certificate for fraudulent purposes;
"(B) shall establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant;
"(C) shall establish standards for the processing of birth certificate applications to prevent fraud;
"(D) may not require a single design to which birth certificates issued by all States must conform; and
"(E) shall accommodate the differences between the States in the manner and form in which birth records are stored and birth certificates are produced from such records.
"(4)
"(A) the Secretary of Homeland Security;
"(B) the Commissioner of Social Security;
"(C) State vital statistics offices; and
"(D) other appropriate Federal agencies.
"(5)
"(c)
"(1)
"(A)
"(B)
"(C)
"(2)
"(A)
"(i) computerizing their birth and death records;
"(ii) developing the capability to match birth and death records within each State and among the States; and
"(iii) noting the fact of death on the birth certificates of deceased persons.
"(B)
"(C)
"(d)
Improvements in Identification-Related Documents
Modification or Cancellation of Certain License Agreements Granted to Government During World War II
Act Aug. 16, 1950, ch. 716,
Equal Opportunity in Federal Employment
Establishment of equal employment opportunity programs by heads of Executive departments and agencies, see Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319 and Ex. Ord. No. 11478, Aug. 8, 1969, 34 F.R. 12985, set out as notes under
§302. Delegation of authority
(a) For the purpose of this section, "agency" has the meaning given it by
(b) In addition to the authority to delegate conferred by other law, the head of an agency may delegate to subordinate officials the authority vested in him—
(1) by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency; and
(2) by
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Aug. 2, 1946, ch. 744, §12, |
Clause (2) of former section 22a is omitted because of the repeal of R.S. §3683 (
The word "agency" is substituted for "department" and defined to conform to the definition of "department" in section 18 of the Act of Aug. 2, 1946, ch. 744,
In subsection (b), the words "In addition to the authority to delegate conferred by other law," are added for clarity and in recognition of the various reorganization plans which generally have transferred all functions of the departments and agencies to the heads thereof and have authorized them to delegate the functions to subordinates.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Amendments
1975—Subsec. (b)(2).
§303. Oaths to witnesses
(a) An employee of an Executive department lawfully assigned to investigate frauds on or attempts to defraud the United States, or irregularity or misconduct of an employee or agent of the United States, may administer an oath to a witness attending to testify or depose in the course of the investigation.
(b) An employee of the Department of Defense lawfully assigned to investigative duties may administer oaths to witnesses in connection with an official investigation.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| R.S. §183. |
The word "employee" is substituted for "officer or clerk" in view of the definition in section 2105. The words "Executive department" are substituted for "departments" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. So much as related to the Armed Forces is omitted as superseded by
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4,
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Amendments
1976—
§304. Subpenas
(a) The head of an Executive department or military department or bureau thereof in which a claim against the United States is pending may apply to a judge or clerk of a court of the United States to issue a subpena for a witness within the jurisdiction of the court to appear at a time and place stated in the subpena before an individual authorized to take depositions to be used in the courts of the United States, to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined on the subject of the claim.
(b) If a witness, after being served with a subpena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpena issued may proceed, on proper process, to enforce obedience to the subpena, or to punish for disobedience, in the same manner as a court of the United States may in case of process of subpena ad testificandum issued by the court.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (a) | R.S. §184. | |
| (b) | R.S. §186. |
In subsection (a), the words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The word "thereof" is added to reflect the proper relationship between "department" and "bureau" as reflected in title IV of the Revised Statutes of 1878. The words "in any State, District, or Territory" are omitted as unnecessary. The word "individual" is substituted for "officer" as the definition of "officer" in section 2104 is narrower than the word "officer" in R.S. §184 which word includes "officers" as defined in section 2104 as well as notaries public who are not "officers" under section 2104, but are "officers" as that word is used in R.S. §184.
In subsection (a), the words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4,
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
§305. Systematic agency review of operations
(a) For the purpose of this section, "agency" means an Executive agency, but does not include—
(1) a Government controlled corporation;
(2) the Tennessee Valley Authority;
(3) the Virgin Islands Corporation;
(4) the Atomic Energy Commission;
(5) the Central Intelligence Agency;
(6) the Panama Canal Commission; or
(7) the National Security Agency, Department of Defense.
(b) Under regulations prescribed and administered by the President, each agency shall review systematically the operations of each of its activities, functions, or organization units, on a continuing basis.
(c) The purpose of the reviews includes—
(1) determining the degree of efficiency and economy in the operation of the agency's activities, functions, or organization units;
(2) identifying the units that are outstanding in those respects; and
(3) identifying the employees whose personal efforts have caused their units to be outstanding in efficiency and economy of operations.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (a) | Oct. 28, 1949, ch. 782, §205, |
|
| (b), (c) | Oct. 28, 1949, ch. 782, §1001, |
Subsection (a) is based in part on former sections 1081 and 1082, which are carried into section 5102.
In subsection (a)(1), the exception of "a Government controlled corporation" is added to preserve the application of this section to "corporations wholly owned by the United States". This is necessary as the defined term "Executive agency" includes the defined term "Government corporation" and the latter includes both Government owned and controlled corporations. Thus the exclusion of Government controlled corporations, which are distinct from wholly owned corporations, operates to preserve the application of this section to wholly owned corporations. The exception for the Inland Waterways Corporation in former section 1082(13) is omitted on authority of the Act of July 19, 1963,
In subsection (a)(7), the words "Panama Canal Company" are substituted for "Panama Railroad Company" on authority of the Act of Sept. 26, 1950, ch. 1049, §2(a)(2),
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Amendments
1983—Subsec. (a)(3) to (8).
1979—Subsec. (a)(7).
Subsec. (b).
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1979 Amendments
Amendment by
Transfer of Functions
Atomic Energy Commission abolished and functions transferred by
Delegation of Functions
Functions of President under subsec. (b) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under
Dissolution of Virgin Islands Corporation
Virgin Islands Corporation established to have succession until June 30, 1969, unless sooner dissolved by Act of Congress, by act June 30, 1949, ch. 285,
§306. Agency strategic plans
(a) Not later than the first Monday in February of any year following the year in which the term of the President commences under
(1) a comprehensive mission statement covering the major functions and operations of the agency;
(2) general goals and objectives, including outcome-oriented goals, for the major functions and operations of the agency;
(3) a description of how any goals and objectives contribute to the Federal Government priority goals required by
(4) a description of how the goals and objectives are to be achieved, including—
(A) a description of the operational processes, skills and technology, and the human, capital, information, and other resources required to achieve those goals and objectives; and
(B) a description of how the agency is working with other agencies to achieve its goals and objectives as well as relevant Federal Government priority goals;
(5) a description of how the goals and objectives incorporate views and suggestions obtained through congressional consultations required under subsection (d);
(6) a description of how the performance goals provided in the plan required by
(7) an identification of those key factors external to the agency and beyond its control that could significantly affect the achievement of the general goals and objectives;
(8) a description of the program evaluations used in establishing or revising general goals and objectives, with a schedule for future program evaluations to be conducted, and citations to relevant provisions of the plans required under section 312; and
(9) an assessment of the coverage, quality, methods, effectiveness, and independence of the statistics, evaluation, research, and analysis efforts of the agency, including—
(A) a list of the activities and operations of the agency that are currently being evaluated and analyzed;
(B) the extent to which the evaluations, research, and analysis efforts and related activities of the agency support the needs of various divisions within the agency;
(C) the extent to which the evaluation research and analysis efforts and related activities of the agency address an appropriate balance between needs related to organizational learning, ongoing program management, performance management, strategic management, interagency and private sector coordination, internal and external oversight, and accountability;
(D) the extent to which the agency uses methods and combinations of methods that are appropriate to agency divisions and the corresponding research questions being addressed, including an appropriate combination of formative and summative evaluation research and analysis approaches;
(E) the extent to which evaluation and research capacity is present within the agency to include personnel and agency processes for planning and implementing evaluation activities, disseminating best practices and findings, and incorporating employee views and feedback; and
(F) the extent to which the agency has the capacity to assist agency staff and program offices to develop the capacity to use evaluation research and analysis approaches and data in the day-to-day operations.
(b) The strategic plan shall cover a period of not less than 4 years following the fiscal year in which the plan is submitted. As needed, the head of the agency may make adjustments to the strategic plan to reflect significant changes in the environment in which the agency is operating, with appropriate notification of Congress.
(c) The performance plan required by
(d) When developing or making adjustments to a strategic plan, the agency shall consult periodically with the Congress, including majority and minority views from the appropriate authorizing, appropriations, and oversight committees, and shall solicit and consider the views and suggestions of those entities potentially affected by or interested in such a plan. The agency shall consult with the appropriate committees of Congress at least once every 2 years.
(e) The functions and activities of this section shall be considered to be inherently governmental functions. The drafting of strategic plans under this section shall be performed only by Federal employees.
(f) For purposes of this section the term "agency" means an Executive agency defined under section 105, but does not include the Central Intelligence Agency, the Government Accountability Office, the United States Postal Service, and the Postal Regulatory Commission.
(Added
Prior Provisions
A prior section 306, added
Amendments
2019—Subsec. (a)(7).
Subsec. (a)(8).
Subsec. (a)(9).
Effective Date of 2019 Amendment
Construction of 2019 Amendment
"(1) to require the disclosure of information or records that are exempt from disclosure under
"(2) to create or expand an exemption from disclosure under such section;
"(3) to override, limit, or otherwise affect intellectual property rights, including rights under titles 17 and 35, United States Code;
"(4) to affect the authority of a Federal agency regarding the use, disclosure, or licensing of—
"(A) confidential business information that could be withheld under
"(B) data assets restricted from disclosure under a contract or other binding, written agreement; or
"(5) to affect the independence, responsibilities, or work products of an Inspector General of any agency."
[For definition of "agency" as used in section 401 of
GAO Report
"(1) summarizes agency findings and highlights trends in the assessment conducted pursuant to subsection (a)(9) of
"(2) if appropriate, recommends actions to further improve agency capacity to use evaluation techniques and data to support evaluation efforts."
[For definitions of "agency" and "evaluation" as used in section 101(d) of
Biennial OMB Report
[For definition of "agency" as used in section 202(g)(2) of
Use of Existing Resources
[For definition of "agency" as used in section 402 of
SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES
§311. Definitions
In this subchapter:
(1)
(2)
(3)
(4)
(5)
(6)
(Added
Effective Date
Section effective 180 days after Jan. 14, 2019, see section 403 of
Evaluation and Personnel Standards
"(1)
"(A) issue guidance for program evaluation for agencies consistent with widely accepted standards for evaluation; and
"(B) identify best practices for evaluation that would improve Federal program evaluation.
"(2)
"(3)
"(A) identify key skills and competencies needed for program evaluation in an agency;
"(B) establish a new occupational series, or update and improve an existing occupational series, for program evaluation within an agency; and
"(C) establish a new career path for program evaluation within an agency.
"(4)
"(A)
"(B)
§312. Agency evidence-building plan
(a)
(1) A list of policy-relevant questions for which the agency intends to develop evidence to support policymaking.
(2) A list of data the agency intends to collect, use, or acquire to facilitate the use of evidence in policymaking.
(3) A list of methods and analytical approaches that may be used to develop evidence to support policymaking.
(4) A list of any challenges to developing evidence to support policymaking, including any statutory or other restrictions to accessing relevant data.
(5) A description of the steps the agency will take to accomplish paragraphs (1) and (2).
(6) Any other information as required by guidance issued by the Director.
(b)
(1) describe key questions for each significant evaluation study that the agency plans to begin in the next fiscal year;
(2) describe key information collections or acquisitions the agency plans to begin in the next fiscal year; and
(3) any 1 other information included in guidance issued by the Director under subsection (a)(6).
(c)
(Added
Effective Date
Section effective 180 days after Jan. 14, 2019, see section 403 of
§313. Evaluation Officers
(a)
(b)
(c)
(d)
(1) continually assess the coverage, quality, methods, consistency, effectiveness, independence, and balance of the portfolio of evaluations, policy research, and ongoing evaluation activities of the agency;
(2) assess agency capacity to support the development and use of evaluation;
(3) establish and implement an agency evaluation policy; and
(4) coordinate, develop, and implement the plans required under section 312.
(Added
Effective Date
Section effective 180 days after Jan. 14, 2019, see section 403 of
§314. Statistical expertise
(a)
(b)
(Added
Effective Date
Section effective 180 days after Jan. 14, 2019, see section 403 of
§315. Advisory Committee on Data for Evidence Building
(a)
(b)
(1) One member who is an agency Chief Information Officer.
(2) One member who is an agency Chief Privacy Officer.
(3) One member who is an agency Chief Performance Officer.
(4) Three members who are agency Chief Data Officers.
(5) Three members who are agency Evaluation Officers.
(6) Three members who are members of the Interagency Council for Statistical Policy 1 established under
(7) At least 10 members who are representatives of State and local governments and nongovernmental stakeholders with expertise in government data policy, privacy, technology, transparency policy, evaluation and research methodologies, and other relevant subjects, of whom—
(A) at least one shall have expertise in transparency policy;
(B) at least one shall have expertise in privacy policy;
(C) at least one shall have expertise in statistical data use;
(D) at least one shall have expertise in information management;
(E) at least one shall have expertise in information technology; and
(F) at least one shall be from the research and evaluation community.
(c)
(1)
(2)
(d)
(e)
(1) assist the Director in carrying out the duties of the Director under part D of subchapter III of
(2) evaluate and provide recommendations to the Director on how to facilitate data sharing, enable data linkage, and develop privacy enhancing techniques; and
(3) review the coordination of data sharing or availability for evidence building across all agencies.
(f)
(g)
(Added
Effective Date
Section effective 180 days after Jan. 14, 2019, see section 403 of
1 So in original. Probably should be "Interagency Council on Statistical Policy".
CHAPTER 5 —ADMINISTRATIVE PROCEDURE
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—ADMINISTRATIVE PROCEDURE
SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE
SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS
SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Amendments
2004—
1996—
1992—
1990—
1986—
1985—
1980—
1976—
1974—
1967—
1 So in original. Does not conform to section catchline.
SUBCHAPTER I—GENERAL PROVISIONS
§500. Administrative practice; general provisions
(a) For the purpose of this section—
(1) "agency" has the meaning given it by
(2) "State" means a State, a territory or possession of the United States including a Commonwealth, or the District of Columbia.
(b) An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.
(c) An individual who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.
(d) This section does not—
(1) grant or deny to an individual who is not qualified as provided by subsection (b) or (c) of this section the right to appear for or represent a person before an agency or in an agency proceeding;
(2) authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency;
(3) authorize an individual who is a former employee of an agency to represent a person before an agency when the representation is prohibited by statute or regulation; or
(4) prevent an agency from requiring a power of attorney as a condition to the settlement of a controversy involving the payment of money.
(e) Subsections (b)–(d) of this section do not apply to practice before the United States Patent and Trademark Office with respect to patent matters that continue to be covered by
(f) When a participant in a matter before an agency is represented by an individual qualified under subsection (b) or (c) of this section, a notice or other written communication required or permitted to be given the participant in the matter shall be given to the representative in addition to any other service specifically required by statute. When a participant is represented by more than one such qualified representative, service on any one of the representatives is sufficient.
(Added
| Section of title 5 | Source (U.S. Code) | Source (Revised Statutes at Large) |
|---|---|---|
| 500(a) | 5 App.: 1014. | Nov. 8, 1965, |
| 500(b)–(e) | 5 App.: 1012. | Nov. 8, 1965, |
| 500(f) | 5 App.: 1013. | Nov. 8, 1965, |
The definition of "State" in subsection (a)(2) is supplied for convenience and is based on the words "State, possession, territory, Commonwealth, or District of Columbia" in subsections (a) and (b) of 5 App. U.S.C. 1012.
In subsection (d), the words "This section does not" are substituted for "nothing herein shall be construed".
In subsection (d)(3), the word "employee" is substituted for "officer or employee" to conform to the definition of "employee" in
Amendments
1999—Subsec. (e).
Effective Date of 1999 Amendment
Amendment by
§501. Advertising practice; restrictions
An individual, firm, or corporation practicing before an agency of the United States may not use the name of a Member of either House of Congress or of an individual in the service of the United States in advertising the business.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Apr. 27, 1916, ch. 89, §1, |
The words "may not" are substituted for "It shall be unlawful for". The words "agency of the United States" are substituted for "any department or office of the Government". The words "an individual in the service of the United States" are substituted for "officer of the Government" in view of the definitions in sections 2104 and 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
§502. Administrative practice; Reserves and National Guardsmen
Membership in a reserve component of the armed forces or in the National Guard does not prevent an individual from practicing his civilian profession or occupation before, or in connection with, an agency of the United States.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Aug. 10, 1956, ch. 1041, §29(c) (2d sentence), |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
§503. Witness fees and allowances
(a) For the purpose of this section, "agency" has the meaning given it by
(b) A witness is entitled to the fees and allowances allowed by statute for witnesses in the courts of the United States when—
(1) he is subpenaed under
(2) he is subpenaed to and appears at a hearing before an agency authorized by law to hold hearings and subpena witnesses to attend the hearings.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| R.S. §185. | ||
| Aug. 2, 1946, ch. 744, §10, |
Former sections 95 and 95a are combined and restated for clarity and brevity. The words "or expenses in the case of Government officers and employees" are omitted as covered by
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4,
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
§504. Costs and fees of parties
(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(2) A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the agency was not substantially justified. When the United States appeals the underlying merits of an adversary adjudication, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.
(3) The adjudicative officer of the agency may reduce the amount to be awarded, or deny an award, to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. The decision of the adjudicative officer of the agency under this section shall be made a part of the record containing the final decision of the agency and shall include written findings and conclusions and the reason or basis therefor. The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.
(4) If, in an adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement, the demand by the agency is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to the party the fees and other expenses related to defending against the excessive demand, unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance.
(b)(1) For the purposes of this section—
(A) "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.);
(B) "party" means a party, as defined in
(C) "adversary adjudication" means (i) an adjudication under
(D) "adjudicative officer" means the deciding official, without regard to whether the official is designated as an administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;
(E) "position of the agency" means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings; and
(F) "demand" means the express demand of the agency which led to the adversary adjudication, but does not include a recitation by the agency of the maximum statutory penalty (i) in the administrative complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount.
(2) Except as otherwise provided in paragraph (1), the definitions provided in
(c)(1) After consultation with the Chairman of the Administrative Conference of the United States, each agency shall by rule establish uniform procedures for the submission and consideration of applications for an award of fees and other expenses. If a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses may be made only pursuant to
(2) If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a), that party may, within 30 days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. The court's determination on any appeal heard under this paragraph shall be based solely on the factual record made before the agency. The court may modify the determination of fees and other expenses only if the court finds that the failure to make an award of fees and other expenses, or the calculation of the amount of the award, was unsupported by substantial evidence.
(d) Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.
(e)(1) Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall submit to Congress and make publicly available online a report on the amount of fees and other expenses awarded during the preceding fiscal year under this section.
(2) Each report under paragraph (1) shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards.
(3)(A) Each report under paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to a nondisclosure provision.
(B) The disclosure of fees and other expenses required under subparagraph (A) shall not affect any other information that is subject to a nondisclosure provision in a settlement agreement.
(f) As soon as practicable, and in any event not later than the date on which the first report under subsection (e)(1) is required to be submitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database containing, with respect to each award of fees and other expenses under this section made on or after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, the following information:
(1) The case name and number of the adversary adjudication, if available, hyperlinked to the case, if available.
(2) The name of the agency involved in the adversary adjudication.
(3) A description of the claims in the adversary adjudication.
(4) The name of each party to whom the award was made as such party is identified in the order or other court document making the award.
(5) The amount of the award.
(6) The basis for the finding that the position of the agency concerned was not substantially justified.
(g) The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or a court order.
(h) The head of each agency shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information requested by the Chairman to comply with the requirements of subsections (e), (f), and (g).
(i) No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430 of the Internal Revenue Code of 1986.
(Added
References in Text
The Religious Freedom Restoration Act of 1993, referred to in subsec. (b)(1)(C)(iv), is
The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, referred to in subsecs. (e)(1) and (f), is the date of enactment of
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (i), is classified to
Amendments
2019—Subsec. (c)(1).
Subsec. (e).
Subsecs. (f) to (i).
2011—Subsec. (b)(1)(C)(ii).
1996—Subsec. (a)(4).
Subsec. (b)(1)(A)(ii).
Subsec. (b)(1)(B).
Subsec. (b)(1)(F).
1993—Subsec. (b)(1)(C).
1988—Subsec. (f).
1986—Subsec. (b)(1)(B).
Subsec. (b)(1)(C)(iii).
1985—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (b)(1)(B).
Subsec. (b)(1)(C).
Subsec. (b)(1)(D), (E).
Subsec. (c)(2).
Subsec. (d).
"(1) Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to
"(2) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded under this section in such fiscal years."
1980—
Effective Date of 1996 Amendment
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1985 Amendment
"(a)
"(b)
"(c)
Effective Date
Short Title
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 of
Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see provision of title IV of
Prohibition on Use of Energy and Water Development Appropriations To Pay Intervening Parties in Regulatory or Adjudicatory Proceedings
Revival of Previously Repealed Provisions
"(a)
"(b)
"(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed.
"(2) Section 204(c) of the Equal Access to Justice Act [which repealed
Congressional Findings and Purposes
"(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.
"(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.
"(c) It is the purpose of this title [see Short Title note above]—
"(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and
"(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the 'American rule' respecting the award of attorney fees."
Limitation on Payments
SUBCHAPTER II—ADMINISTRATIVE PROCEDURE
Short Title
The provisions of this subchapter and
§551. Definitions
For the purpose of this subchapter—
(1) "agency" means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;
or except as to the requirements of
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory; or
(H) functions conferred by
(2) "person" includes an individual, partnership, corporation, association, or public or private organization other than an agency;
(3) "party" includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;
(4) "rule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;
(5) "rule making" means agency process for formulating, amending, or repealing a rule;
(6) "order" means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;
(7) "adjudication" means agency process for the formulation of an order;
(8) "license" includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;
(9) "licensing" includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;
(10) "sanction" includes the whole or a part of an agency—
(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) "relief" includes the whole or a part of an agency—
(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or
(C) taking of other action on the application or petition of, and beneficial to, a person;
(12) "agency proceeding" means an agency process as defined by paragraphs (5), (7), and (9) of this section;
(13) "agency action" includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and
(14) "ex parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (1) | June 11, 1946, ch. 324, §2(a), |
|
| Aug. 8, 1946, ch. 870, §302, |
||
| Aug. 10, 1946, ch. 951, §601, |
||
| Mar. 31, 1947, ch. 30, §6(a), |
||
| June 30, 1947, ch. 163, §210, |
||
| Mar. 30, 1948, ch. 161, §301, |
||
| (2)–(13) | June 11, 1946, ch. 324, §2 (less (a)), |
In paragraph (1), the sentence "Nothing in this Act shall be construed to repeal delegations of authority as provided by law," is omitted as surplusage since there is nothing in the Act which could reasonably be so construed.
In paragraph (1)(G), the words "or naval" are omitted as included in "military".
In paragraph (1)(H), the words "functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947" are omitted as executed. Reference to the "Selective Training and Service Act of 1940" is omitted as that Act expired Mar. 31, 1947. Reference to the "Sugar Control Extension Act of 1947" is omitted as that Act expired on Mar. 31, 1948. References to the "Housing and Rent Act of 1947, as amended" and the "Veterans' Emergency Housing Act of 1946" have been consolidated as they are related. The reference to former
In paragraph (2), the words "of any character" are omitted as surplusage.
In paragraph (3), the words "and a person or agency admitted by an agency as a party for limited purposes" are substituted for "but nothing herein shall be construed to prevent an agency from admitting any person or agency as a party for limited purposes".
In paragraph (9), a comma is supplied between the words "limitation" and "amendment" to correct an editorial error of omission.
In paragraph (10)(C), the words "of any form" are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
References in Text
Codification
Section 551 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to
Amendments
2011—Par. (1)(H).
1994—Par. (1)(H).
1976—Par. (14).
Effective Date of 1976 Amendment
Amendment by
Study and Reports on Administrative Subpoenas
"(a)
"(1) a description of the sources of administrative subpoena power and the scope of such subpoena power within executive branch agencies;
"(2) a description of applicable subpoena enforcement mechanisms;
"(3) a description of any notification provisions and any other provisions relating to safeguarding privacy interests;
"(4) a description of the standards governing the issuance of administrative subpoenas; and
"(5) recommendations from the Attorney General regarding necessary steps to ensure that administrative subpoena power is used and enforced consistently and fairly by executive branch agencies.
"(b)
"(1)
"(2)
Ex. Ord. No. 13892. Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication
Ex. Ord. No. 13892, Oct. 9, 2019, 84 F.R. 55239, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Unfortunately, departments and agencies (agencies) in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA's goals of promoting accountability and ensuring fairness.
Agencies shall act transparently and fairly with respect to all affected parties, as outlined in this order, when engaged in civil administrative enforcement or adjudication. No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency's jurisdiction over particular conduct and the legal standards applicable to that conduct. Moreover, the Federal Government should, where feasible, foster greater private-sector cooperation in enforcement, promote information sharing with the private sector, and establish predictable outcomes for private conduct. Agencies shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose.
(a) "Agency" has the meaning given to "Executive agency" in
(b) "Collection of information" includes any conduct that would qualify as a "collection of information" as defined in
(i) addressed to all or a substantial majority of an industry; or
(ii) designed to obtain information from a representative sample of individual persons in an industry.
(c) "Guidance document" means an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation, but does not include the following:
(i) rules promulgated pursuant to notice and comment under
(ii) rules exempt from rulemaking requirements under
(iii) rules of agency organization, procedure, or practice;
(iv) decisions of agency adjudications under
(v) internal guidance directed to the issuing agency or other agencies that is not intended to have substantial future effect on the behavior of regulated parties; or
(vi) internal executive branch legal advice or legal opinions addressed to executive branch officials.
(d) "Legal consequence" means the result of an action that directly or indirectly affects substantive legal rights or obligations. The meaning of this term should be informed by the Supreme Court's discussion in U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813–16 (2016), and includes, for example, agency orders specifying which commodities are subject to or exempt from regulation under a statute, Frozen Food Express v. United States, 351 U.S. 40, 44–45 (1956), as well as agency letters or orders establishing greater liability for regulated parties in a subsequent enforcement action, Rhea Lana, Inc. v. Dep't of Labor, 824 F.3d 1023, 1030 (DC Cir. 2016). In particular, "legal consequence" includes subjecting a regulated party to potential liability.
(e) "Unfair surprise" means a lack of reasonable certainty or fair warning of what a legal standard administered by an agency requires. The meaning of this term should be informed by the examples of lack of fair notice discussed by the Supreme Court in Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 156 & n.15 (2012).
(f) "Pre-enforcement ruling" means a formal written communication from an agency in response to an inquiry from a person concerning compliance with legal requirements that interprets the law or applies the law to a specific set of facts supplied by the person. The term includes informal guidance under section 213 of the Small Business Regulatory Enforcement Fairness Act of 1996,
(g) "Regulation" means a legislative rule promulgated pursuant to
(b) Subsection (a) of this section shall not apply to settlement negotiations between agencies and regulated parties, to notices of a prospective legal action, or to litigation before courts.
(c) An agency may proceed without regard to subsection (a) of this section where necessary because of a serious threat to health, safety, or other emergency or where a statute specifically authorizes proceeding without a prior opportunity to be heard. Where an agency proceeds under this subsection, it nevertheless must afford any person an opportunity to be heard, in person or in writing, regarding the agency's legal determinations and respond in writing as soon as practicable.
(b) To advance the purposes of subsection (a) of this section, any collection of information during the conduct of an investigation (other than those investigations excepted under
(i) display a valid control number assigned by the Director of the Office of Management and Budget; or
(ii) inform the recipient through prominently displayed plain language that no response is legally required.
(i) to encourage voluntary self-reporting of regulatory violations by regulated parties in exchange for reductions or waivers of civil penalties;
(ii) to encourage voluntary information sharing by regulated parties; and
(iii) to provide pre-enforcement rulings to regulated parties.
(b) Any agency that believes additional procedures are not practicable—because, for example, the agency believes it already has adequate procedures in place or because it believes it lacks the resources to institute additional procedures—shall, within 270 days of the date of this order, submit a report to the President describing, as appropriate, its existing procedures, its need for more resources, or any other basis for its conclusion.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Notwithstanding any other provision in this order, nothing in this order shall apply:
(i) to any action that pertains to foreign or military affairs, or to a national security or homeland security function of the United States (other than procurement actions and actions involving the import or export of non-defense articles and services);
(ii) to any action related to a criminal investigation or prosecution, including undercover operations, or any civil enforcement action or related investigation by the Department of Justice, including any action related to a civil investigative demand under
(iii) to any action related to detention, seizure, or destruction of counterfeit goods, pirated goods, or other goods that infringe intellectual property rights;
(iv) to any investigation of misconduct by an agency employee or any disciplinary, corrective, or employment action taken against an agency employee; or
(v) in any other circumstance or proceeding to which application of this order, or any part of this order, would, in the judgment of the head of the agency, undermine the national security.
Donald J. Trump.
1 See References in Text note below.
§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 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, 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 (
(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 disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section—
(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.
(vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court's review of the matter shall be limited to the record before the agency.
(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.
[(D) Repealed.
(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
(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. 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. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular requests—
(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term "exceptional circumstances" does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—
(I) in cases in which the person requesting the records demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—
(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term "compelling need" means—
(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.
(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
(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 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.
(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;
(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 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
(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
(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.
(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:
(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, 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.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| June 11, 1946, ch. 324, §3, |
In subsection (b)(3), the words "formulated and" are omitted as surplusage. In the last sentence of subsection (b), the words "in any manner" are omitted as surplusage since the prohibition is all inclusive.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
1967 Act
Section 1 [of
In subsection (a)(1)(A), the words "employees (and in the case of a uniformed service, the member)" are substituted for "officer" to retain the coverage of
In the last sentence of subsection (a)(2), the words "A final order * * * may be relied on * * * only if" are substituted for "No final order * * * may be relied upon * * * unless"; and the words "a party other than an agency" and "the party" are substituted for "a private party" and "the private party", respectively, on authority of the definition of "private party" in 5 App. U.S.C. 1002(g).
In subsection (a)(3), the words "the responsible employee, and in the case of a uniformed service, the responsible member" are substituted for "the responsible officers" to retain the coverage of
In subsection (a)(4), the words "shall maintain and make available for public inspection a record" are substituted for "shall keep a record * * * and that record shall be available for public inspection".
In subsection (b)(5) and (7), the words "a party other than an agency" are substituted for "a private party" on authority of the definition of "private party" in 5 App. U.S.C. 1002(g).
In subsection (c), the words "This section does not authorize" and "This section is not authority" are substituted for "Nothing in this section authorizes" and "nor shall this section be authority", respectively.
5 App. U.S.C. 1002(g), defining "private party" to mean a party other than an agency, is omitted since the words "party other than an agency" are substituted for the words "private party" wherever they appear in revised
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted as unnecessary. That effective date is prescribed by section 4 of this bill.
References in Text
The National Security Act of 1947, referred to in subsec. (a)(3)(E), is act July 26, 1947, ch. 343,
The date of enactment of the OPEN FOIA Act of 2009, referred to in subsec. (b)(3)(B), is the date of enactment of
Codification
Section 552 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to
Amendments
2016—Subsec. (a)(2).
Subsec. (a)(2)(D).
Subsec. (a)(4)(A)(viii).
Subsec. (a)(6)(A)(i).
Subsec. (a)(6)(B)(ii).
Subsec. (a)(8).
Subsec. (b)(5).
Subsec. (e)(1).
Subsec. (e)(1)(P), (Q).
Subsec. (e)(3).
Subsec. (e)(4).
Subsec. (e)(6).
Subsec. (g).
Subsec. (h)(1).
Subsec. (h)(2)(C).
Subsec. (h)(3).
Subsec. (h)(4) to (6).
Subsec. (j).
Subsec. (k).
Subsec. (m).
2009—Subsec. (b)(3).
2007—Subsec. (a)(4)(A)(ii).
Subsec. (a)(4)(A)(viii).
Subsec. (a)(4)(E).
Subsec. (a)(4)(F).
Subsec. (a)(6)(A).
Subsec. (a)(6)(B)(ii).
Subsec. (a)(7).
Subsec. (b).
Subsec. (e)(1)(B)(ii).
Subsec. (e)(1)(C).
Subsec. (e)(1)(E).
Subsec. (e)(1)(F) to (O).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (e)(4) to (6).
Subsec. (f)(2).
Subsecs. (h) to (l).
2002—Subsec. (a)(3)(A).
Subsec. (a)(3)(E).
1996—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4)(B).
Subsec. (a)(6)(A)(i).
Subsec. (a)(6)(B).
"(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."
Subsec. (a)(6)(C).
Subsec. (a)(6)(D).
Subsec. (a)(6)(E), (F).
Subsec. (b).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1986—Subsec. (a)(4)(A).
Subsec. (b)(7).
Subsecs. (c) to (f).
1984—Subsec. (a)(4)(D).
1978—Subsec. (a)(4)(F).
1976—Subsec. (b)(3).
1974—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4), (5).
Subsec. (a)(6).
Subsec. (b)(1).
Subsec. (b)(7).
Subsec. (b), foll. par. (9).
Subsecs. (d), (e).
1967—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (b).
Subsec. (c).
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Effective Date of 2016 Amendment
Effective Date of 2007 Amendment
Effective Date of 1996 Amendment
"(a)
"(b)
Effective Date of 1986 Amendment
"(a) The amendments made by section 1802 [amending this section] shall be effective on the date of enactment of this Act [Oct. 27, 1986], and shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date.
"(b)(1) The amendments made by section 1803 [amending this section] shall be effective 180 days after the date of enactment of this Act [Oct. 27, 1986], except that regulations to implement such amendments shall be promulgated by such 180th day.
"(2) The amendments made by section 1803 [amending this section] shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date, except that review charges applicable to records requested for commercial use shall not be applied by an agency to requests made before the effective date specified in paragraph (1) of this subsection or before the agency has finally issued its regulations."
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1974 Amendment
Effective Date of 1967 Amendment
Short Title of 1996 Amendment
Short Title of 1986 Amendment
Short Title
This section is popularly known as the "Freedom of Information Act".
Review and Issuance of Regulations
"(a)
"(b)
Treatment of Information in Catch a Serial Offender Program for Certain Purposes
"(a)
"(b)
Protected National Security Documents
"(a)
"(b) Notwithstanding any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under
"(c)
"(1)
"(A) for which the Secretary of Defense has issued a certification, as described in subsection (d), stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and
"(B) that is a photograph that—
"(i) was taken during the period beginning on September 11, 2001, through January 22, 2009; and
"(ii) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.
"(2)
"(d)
"(1)
"(2)
"(3)
"(A) a renewal of a certification at any time; and
"(B) more than 1 renewal of a certification.
"(4)
"(e)
"(f)
Findings
"(1) the Freedom of Information Act [probably means
"(A) our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;
"(B) such consent is not meaningful unless it is informed consent; and
"(C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), 'The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.';
"(2) the American people firmly believe that our system of government must itself be governed by a presumption of openness;
"(3) the Freedom of Information Act establishes a 'strong presumption in favor of disclosure' as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;
"(4) 'disclosure, not secrecy, is the dominant objective of the Act,' as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976));
"(5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; and
"(6) Congress should regularly review
Limitation on Amounts Obligated or Expended From Claims and Judgment Fund
Nondisclosure of Certain Products of Commercial Satellite Operations
"(a)
"(b)
"(1) means any data that—
"(A) are collected by land remote sensing; and
"(B) are prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license issued pursuant to the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et seq.) [now
"(2) includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license described in paragraph (1)(B).
"(c)
"(d)
"(e)
"(f)
Disclosure of Arson, Explosive, or Firearm Records
Disclosure of Information on Japanese Imperial Government
"SEC. 801. SHORT TITLE.
"This title may be cited as the 'Japanese Imperial Government Disclosure Act of 2000'.
"SEC. 802. DESIGNATION.
"(a)
"(1)
"(2)
"(3)
"(A) the Japanese Imperial Government;
"(B) any government in any area occupied by the military forces of the Japanese Imperial Government;
"(C) any government established with the assistance or cooperation of the Japanese Imperial Government; or
"(D) any government which was an ally of the Japanese Imperial Government.
"(4)
"(b)
"(1)
"(2)
"(c)
"(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Japanese Imperial Government records of the United States;
"(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and
"(3) submit a report to Congress, including the Committee on Government Reform [now Committee on Oversight and Reform] and the Permanent Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.
"(d)
"SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.
"(a)
"(b)
"(1) constitute an unwarranted invasion of personal privacy;
"(2) reveal the identity of a confidential human source, or reveal information about an intelligence source or method when the unauthorized disclosure of that source or method would damage the national security interests of the United States;
"(3) reveal information that would assist in the development or use of weapons of mass destruction;
"(4) reveal information that would impair United States cryptologic systems or activities;
"(5) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;
"(6) reveal United States military war plans that remain in effect;
"(7) reveal information that would impair relations between the United States and a foreign government, or undermine ongoing diplomatic activities of the United States;
"(8) reveal information that would impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services are authorized in the interest of national security;
"(9) reveal information that would impair current national security emergency preparedness plans; or
"(10) violate a treaty or other international agreement.
"(c)
"(1)
"(2)
"(d)
"(1) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or
"(2) solely in the possession, custody, or control of the Office of Special Investigations.
"SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.
"For purposes of expedited processing under
"SEC. 805. EFFECTIVE DATE.
"The provisions of this title shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 27, 2000]."
Nazi War Crimes Disclosure
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Nazi War Crimes Disclosure Act'.
"SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.
"(a)
"(1) 'agency' has the meaning given such term under
"(2) 'Interagency Group' means the Nazi War Criminal Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, see section 802(b)(1) of
"(3) 'Nazi war criminal records' has the meaning given such term under section 3 of this Act; and
"(4) 'record' means a Nazi war criminal record.
"(b)
"(1)
"(2)
"(3)
"(c)
"(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Nazi war criminal records of the United States;
"(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and
"(3) submit a report to Congress, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Reform] of the House of Representatives, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.
"(d)
"SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.
"(a)
"(1) pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
"(A) the Nazi government of Germany;
"(B) any government in any area occupied by the military forces of the Nazi government of Germany;
"(C) any government established with the assistance or cooperation of the Nazi government of Germany; or
"(D) any government which was an ally of the Nazi government of Germany; or
"(2) pertain to any transaction as to which the United States Government, in its sole discretion, has grounds to believe—
"(A) involved assets taken from persecuted persons during the period beginning on March 23, 1933, and ending on May 8, 1945, by, under the direction of, on behalf of, or under authority granted by the Nazi government of Germany or any nation then allied with that government; and
"(B) such transaction was completed without the assent of the owners of those assets or their heirs or assigns or other legitimate representatives.
"(b)
"(1)
"(2)
"(A) constitute a clearly unwarranted invasion of personal privacy;
"(B) reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;
"(C) reveal information that would assist in the development or use of weapons of mass destruction;
"(D) reveal information that would impair United States cryptologic systems or activities;
"(E) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;
"(F) reveal actual United States military war plans that remain in effect;
"(G) reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;
"(H) reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;
"(I) reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or
"(J) violate a treaty or international agreement.
"(3)
"(A)
"(B)
"(4)
"(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or
"(B) solely in the possession, custody, or control of that office.
"(c)
"SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.
"(a)
"(b)
"SEC. 5. EFFECTIVE DATE.
"This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act [Oct. 8, 1998]."
Congressional Statement of Findings and Purpose; Public Access to Information in Electronic Format
"(a)
"(1) the purpose of
"(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;
"(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;
"(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;
"(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and
"(6) Government agencies should use new technology to enhance public access to agency records and information.
"(b)
"(1) foster democracy by ensuring public access to agency records and information;
"(2) improve public access to agency records and information;
"(3) ensure agency compliance with statutory time limits; and
"(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government."
Freedom of Information Act Exemption for Certain Open Skies Treaty Data
"(a)
"(1) if the country has not disclosed the data to the public; and
"(2) if the country has not, acting through the Open Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.
"(b)
"(c)
"(1) the term 'Freedom of Information Act' means the provisions of
"(2) the term 'Open Skies Consultative Commission' means the commission established pursuant to Article X of the Treaty on Open Skies; and
"(3) the term 'Treaty on Open Skies' means the Treaty on Open Skies, signed at Helsinki on March 24, 1992."
Classified National Security Information
For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, §3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under
Executive Order No. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under
Ex. Ord. No. 12600. Predisclosure Notification Procedures for Confidential Commercial Information
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to provide predisclosure notification procedures under the Freedom of Information Act [
(a) "Confidential commercial information" means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act,
(b) "Submitter" means any person or entity who provides confidential commercial information to the government. The term "submitter" includes, but is not limited to, corporations, state governments, and foreign governments.
(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.
(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm.
(a) The agency determines that the information should not be disclosed;
(b) The information has been published or has been officially made available to the public;
(c) Disclosure of the information is required by law (other than
(d) The disclosure is required by an agency rule that (1) was adopted pursuant to notice and public comment, (2) specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act [
(e) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or
(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to section 7 appears obviously frivolous; except that, in such case, the agency must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.
Ronald Reagan.
Ex. Ord. No. 13110. Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Nazi War Crimes Disclosure Act (
(1) Archivist of the United States (who shall serve as Chair of the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the National Security Council will serve as the liaison to and attend the meetings of the Working Group. Members of the Working Group who are full-time Federal officials may serve on the Working Group through designees.
(b) The Working Group shall terminate 3 years from the date of this Executive order.
William J. Clinton.
Ex. Ord. No. 13392. Improving Agency Disclosure of Information
Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of
(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) [
(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency's website), and about the status of a person's FOIA request and appropriate information about the agency's response.
(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency's FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.
(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.
(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:
(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency's Chief FOIA Officer, 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 the FOIA, including the extent to which the agency meets the milestones in the agency's plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;
(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;
(iv) review and report, 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 the FOIA; and
(v) facilitate public understanding of the purposes of the FOIA's statutory exemptions by including concise descriptions of the exemptions in both the agency's FOIA handbook issued under
(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;
(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its Center or Centers on the agency's website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website nor the capability to post on the Firstgov.gov website, in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency's implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.
(a) Review. Each agency's Chief FOIA Officer shall conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency's administration of the FOIA, including the agency's expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;
(iii) examine the agency's:
(A) use of information technology in responding to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;
(B) practices with respect to requests for expedited processing; and
(C) implementation of multi-track processing if used by such agency;
(iv) review the agency's policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in
(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.
(b) Plan.
(i) Each agency's Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency's administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency's implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.
(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency's Center and its FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency's success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency's plan under section 3(b) of this order. The agency shall publish a copy of the agency's report on the agency's website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.
(ii) The head of each agency shall include in the agency's annual FOIA reports for fiscal years 2006 and 2007 a report on the agency's development and implementation of its plan under section 3(b) of this order and on the agency's performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under
(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the Attorney General;
(B) explain in the annual report the reasons for the agency's failure to meet the milestone;
(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President's Management Council.
(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President, no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies' implementation of the FOIA and of their plans under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.
(a) the term "agency" has the same meaning as the term "agency" under
(b) the term "record" has the same meaning as the term "record" under
(a) The agency reviews under section 3(a) of this order and agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and
(iii) is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
George W. Bush.
Ex. Ord. No. 13642. Making Open and Machine Readable the New Default for Government Information
Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans' lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.
To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.
(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.
(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.
(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.
(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President's Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (
(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
(e) Independent agencies are requested to adhere to this order.
Barack Obama.
Freedom of Information Act
Memorandum of President of the United States, Jan. 21, 2009, 74 F.R. 4683, provided:
Memorandum for the Heads of Executive Departments and Agencies
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and t