From: \[ Robert-Coyote \] (coyyote@hotmail.com)
Date: Fri Jul 21 2000 - 15:51:46 MDT
Here is the Washington state version of the public disclosure act, and title
5 USC 5
re: "I still am wondering where is the precedent that all government
employees are employess of the people, so that any person has the right to
view government employees' e-mail as their employer."
WEST'S REVISED CODE OF WASHINGTON ANNOTATED
TITLE 42. PUBLIC OFFICERS AND AGENCIES
CHAPTER 42.17. DISCLOSURE--CAMPAIGN FINANCES--LOBBYING--RECORDS
Current through End of 1998 Reg. Sess.
42.17.010. Declaration of policy
It is hereby declared by the sovereign people to be the public policy of
the state of Washington:
(1) That political campaign and lobbying contributions and expenditures be
fully disclosed to the public and that secrecy is to be avoided.
(2) That the people have the right to expect from their elected
representatives at all levels of government the utmost of integrity,
honesty, and fairness in their dealings.
(3) That the people shall be assured that the private financial dealings of
their public officials, and of candidates for those offices, present no
conflict of interest between the public trust and private interest.
(4) That our representative form of government is founded on a belief that
those entrusted with the offices of government have nothing to fear from
full public disclosure of their financial and business holdings, provided
those officials deal honestly and fairly with the people.
(5) That public confidence in government at all levels is essential and
must be promoted by all possible means.
(6) That public confidence in government at all levels can best be
sustained by assuring the people of the impartiality and honesty of the
officials in all public transactions and decisions.
(7) That the concept of attempting to increase financial participation of
individual contributors in political campaigns is encouraged by the passage
of the Revenue Act of 1971 by the Congress of the United States, and in
consequence thereof, it is desirable to have implementing legislation at the
state level.
(8) That the concepts of disclosure and limitation of election campaign
financing are established by the passage of the Federal Election Campaign
Act of 1971 by the Congress of the United States, and in consequence thereof
it is desirable to have implementing legislation at the state level.
(9) That small contributions by individual contributors are to be
encouraged, and that not requiring the reporting of small contributions may
tend to encourage such contributions.
(10) That the public's right to know of the financing of political
campaigns and lobbying and the financial affairs of elected officials and
candidates far outweighs any right that these matters remain secret and
private.
(11) That, mindful of the right of individuals to privacy and of the
desirability of the efficient administration of government, full access to
information concerning the conduct of government on every level must be
assured as a fundamental and necessary precondition to the sound governance
of a free society.
The provisions of this chapter shall be liberally construed to promote
complete disclosure of all information respecting the financing of political
campaigns and lobbying, and the financial affairs of elected officials and
candidates, and full access to public records so as to assure continuing
public confidence of fairness of elections and governmental processes, and
so as to assure that the public interest will be fully protected. In
promoting such complete disclosure, however, this chapter shall be enforced
so as to insure that the information disclosed will not be misused for
arbitrary and capricious purposes and to insure that all persons reporting
under this chapter will be protected from harassment and unfounded
allegations based on information they have freely disclosed.
CREDIT(S)
1991 Main Volume
[1975 1st ex.s. c 294 § 1; 1973 c 1 § 1 (Initiative Measure No. 276,
approved November 7, 1972).]
><General Materials (GM) - References, Annotations, or Tables>
HISTORICAL NOTES
HISTORICAL AND STATUTORY NOTES
1991 Main Volume
Laws 1975, 1st Ex.Sess., ch. 294, § 1, in the last paragraph, added the
last sentence.
REFERENCES
CROSS REFERENCES
Funeral directors and embalmers, disciplinary procedures, public notice not
to include information exempt under this section, see > §18.39.450.
LAW REVIEW AND JOURNAL COMMENTARIES
Patient access to medical records in Washington. 57 Wash.L.Rev. 697
(1982).
Washington's new public records disclosure act: freedom of information in
municipal labor law. 11 Gonz.L.Rev. 13.
LIBRARY REFERENCES
1991 Main Volume
Elections K317 to 317.5.
Statutes K24.
WESTLAW Topic Nos. 144, 361.
C.J.S. Elections §§ 329, 356.
C.J.S. Statutes § 6.
UNITED STATES CODE ANNOTATED
1998 Electronic Pocket Part Update
Federal election campaign act of 1971, see > 2 U.S.C.A. § 431 et seq.
(repealed).
Internal revenue act of 1971, see > 26 U.S.C.A. § 1 et seq.
ANNOTATIONS
NOTES OF DECISIONS
Appearance of fairness > 6
Duty to disclose > 3.5
Liberal construction > 3
Limitations on right of privacy, in general > 4
Lobbyists > 7
Purpose > 2
Superior executive officers > 5
Validity > 1
>1. Validity
The subject and title requirements of > Const. Art. 2, § 19 are met by
Initiative 276. Fritz v. Gorton (1974) > 83 Wash.2d 275, 517 P.2d 911,
appeal dismissed 94 S.Ct. 2596, 417 U.S. 902, 41 L.Ed.2d 208.
>2. Purpose
The purpose of the public disclosure act (this chapter 42.17) is to inform
the public and its elected representatives regarding persons who make
various expenditures in order to influence governmental decision making.
State v. (1972) Dan J. Evans Campaign Committee (1976) > 86 Wash.2d 503, 546
P.2d 75.
>3. Liberal construction
In order to promote its purposes, the public records act's provisions are
to be liberally construed to promote full access to public records; its
exemptions are to be narrowly interpreted. Confederated Tribes of Chehalis
Reservation v. Johnson (1998) > 135 Wash.2d 734, 958 P.2d 260.
Public disclosure act is to be construed liberally to promote complete
disclosure, and exceptions to disclosure requirement are construed narrowly.
Limstrom v. Ladenburg (1997) > 85 Wash.App. 524, 933 P.2d 1055, review
granted > 133 Wash.2d 1001, 943 P.2d 662.
As a strongly worded mandate for broad disclosure of public records, Public
Disclosure Act is to be liberally construed to promote full access to public
records, and its exemptions are to be narrowly construed. Amren v. City of
Kalama (1997) > 131 Wash.2d 25, 929 P.2d 389.
Public Records Act's disclosure provisions must be liberally construed, and
its exemptions narrowly construed. Progressive Animal Welfare Soc. v.
University of Washington (1994) > 125 Wash.2d 243, 884 P.2d 592,
reconsideration denied.
Public Records Act contains only limited and specific disclosure
exemptions. Progressive Animal Welfare Soc. v. University of Washington
(1994) > 125 Wash.2d 243, 884 P.2d 592, reconsideration denied.
Exceptions to Public Disclosure Act are to be construed narrowly, to
promote full access to public records. Cowles Pub. Co. v. City of Spokane
(1993) > 69 Wash.App. 678, 849 P.2d 1271, review denied > 122 Wash.2d 1013,
863 P.2d 73.
Provisions of this section mandating disclosure of public records should be
liberally construed and its exemptions should be narrowly confined.
Laborers Intern. Laborers Intern. Union of North America, Local No. 374 v.
City of Aberdeen (1982) > 31 Wash.App. 445, 642 P.2d 418, review denied.
Exemptions contained in this section, should be narrowly construed in order
to effectuate the broad public policy favoring disclosure. Hafermehl v.
University of Washington (1981) > 29 Wash.App. 366, 628 P.2d 846.
>3.5. Duty to disclose
Public Disclosure Act mandates disclosure in four areas of government,
namely: campaign financing; lobbyist reporting; reporting of elected
officials' financial affairs; and public records. Servais v. Port of
Bellingham (1995) > 127 Wash.2d 820, 904 P.2d 1124.
Disclosure statutes establish positive duty to disclose public records
unless they fall within specific exemptions. Cowles Pub. Co. v. City of
Spokane (1993) > 69 Wash.App. 678, 849 P.2d 1271, review denied > 122
Wash.2d 1013, 863 P.2d 73.
>4. Limitations on right of privacy, in general
Public's entitlement to know of sources and magnitude of financial and
persuasional influences on government is limited to the information required
in the Public Disclosure Act. Seeber v. Washington State Public Disclosure
Commission (1981) > 96 Wash.2d 135, 634 P.2d 303.
While some intimate personal details about an elected official or a
candidate for elective office may be beyond the scope of legitimate public
interest, any information bearing on his fitness for office must be
considered in the public domain and as such, a limitation on the right to
privacy of such an official or candidate. Fritz v. Gorton (1974) > 83
Wash.2d 275, 517 P.2d 911, appeal dismissed 94 S.Ct. 2596, 417 U.S. 902, 41
L.Ed.2d 208.
As an essential corollary of freedom of speech, the public's right to
receive information concerning the fitness or qualification of an elected
official or candidate for public office operates over a broad scope and is
superior to such an officer's or candidate's right to privacy. Fritz v.
Gorton (1974) > 83 Wash.2d 275, 517 P.2d 911, appeal dismissed 94 S.Ct.
2596, 417 U.S. 902, 41 L.Ed.2d 208.
Diet information forms submitted to Department of Health pursuant to
federal/state program, and computer analyses generated with information
provided, contain personal information which is exempt from public
inspection and copying; if this personal information is deleted, the
remainder of the records are subject to public disclosure. Op.
Atty.Gen.1997, No. 2.
>5. Superior executive officers
Commissioners of public disclosure commission and their chief
administrative officer are "superior executive officers" of the state whose
actions in releasing to news media names of candidates for public office who
had failed to comply with public disclosure law had more than tenuous
relation to their official duties; therefore, their release of information
to media indicating that candidate for public office had not complied with
disclosure law was absolutely privileged. Sidor v. Public Disclosure
Commission (1980) > 25 Wash.App. 127, 607 P.2d 859, review denied.
>6. Appearance of fairness
Allegations of ex parte contacts with corporation's officials and campaign
contributions from corporation's employees to two council members who
sponsored and pushed for revision of ordinance to allow corporation's
construction of office building did not raise appearance of fairness issue.
Westside Hilltop Survival Committee v. King County (1981) > 96 Wash.2d 171,
634 P.2d 862.
>7. Lobbyists
Public Disclosure Act (this chapter) which stated that state public
disclosure commission could compel candidates, public officials, campaign
committees and lobbyists' employers to divulge whatever information was
deemed necessary to carry out purposes of the act as the commission was to
by rule prescribe but which did not contain similar rule-making provisions
in regard to obtaining of additional information from lobbyists, did not
authorize commission to require lobbyist to divulge any information other
than the information specified within the act. Seeber v. Washington State
Public Disclosure Commission (1981) > 96 Wash.2d 135, 634 P.2d 303.
Sec. 552. Public information; agency rules, opinions, orders, records, and
proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal
Register for the guidance of the public -
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods
whereby, the public may obtain information, make submittals or
requests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the
scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency; and
(E) each amendment, revision, or repeal of the foregoing. Except to the
extent that a person has actual and timely notice of the terms thereof, a
person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register and
not so published. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed published in
the Federal Register when incorporated by reference therein with the
approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make available
for public inspection and copying -
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have
been adopted by the agency and are not published in the Federal
Register;
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
(D) copies of all records, regardless of form or format, which
have been released to any person under paragraph (3) and which,
because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
(E) a general index of the records referred to under
subparagraph (D); unless the materials are promptly published and copies
offered for sale. For records created on or after November 1, 1996, within
one year after such date, each agency shall make such records available,
including by computer telecommunications or, if computer telecommunications
means have not been established by the agency, by other electronic means. To
the extent required to prevent a clearly unwarranted invasion of personal
privacy, an agency may delete identifying details when it makes available or
publishes an opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in subparagraph (D). However,
in each case the justification for the deletion shall be explained fully in
writing, and the extent of such deletion shall be indicated on the portion
of the record which is made available or published, unless including that
indication would harm an interest protected by the exemption in subsection
(b) under which the deletion is made. If technically feasible, the extent of
the deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make available for
public inspection and copying current indexes providing identifying
information for the public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph to be made available or
published. Each agency shall promptly publish, quarterly or more frequently,
and distribute (by sale or otherwise) copies of each index or supplements
thereto unless it determines by order published in the Federal Register that
the publication would be unnecessary and impracticable, in which case the
agency shall nonetheless provide copies of such index on request at a cost
not to exceed the direct cost of duplication. Each agency shall make the
index referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999. A final order, opinion, statement
of policy, interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as precedent by an
agency against a party other than an agency only if -
(i) it has been indexed and either made available or published
as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof.
(3)
(A) Except with respect to the records made available under paragraphs (1)
and (2) of this subsection, each agency, upon any request for records which
(i) reasonably describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and procedures to be
followed, shall make the records promptly available to any person.
(B) In making any record available to a person under this paragraph, an
agency shall provide the record in any form or format requested by the
person if the record is readily reproducible by the agency in that form or
format. Each agency shall make reasonable efforts to maintain its records in
forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency
shall make reasonable efforts to search for the records in electronic form
or format, except when such efforts would significantly interfere with the
operation of the agency's automated information system.
(D) For purposes of this paragraph, the term ''search'' means to review,
manually or by automated means, agency records for the purpose of locating
those records which are responsive to a request.
(4)
(A)
(i) In order to carry out the provisions of this section, each agency shall
promulgate regulations, pursuant to notice and receipt of public comment,
specifying the schedule of fees applicable to the processing of requests
under this section and establishing procedures and guidelines for
determining when such fees should be waived or reduced. Such schedule shall
conform to the guidelines which shall be promulgated, pursuant to notice and
receipt of public comment, by the Director of the Office of Management and
Budget and which shall provide for a uniform schedule of fees for all
agencies.
(ii) Such agency regulations shall provide that -
(I) fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are
requested for commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial
use and the request is made by an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific
research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall
be limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be furnished without any charge or at a charge reduced
below the fees established under clause (ii) if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct costs
of search, duplication, or review. Review costs shall include only the
direct costs incurred during the initial examination of a document for the
purposes of determining whether the documents must be disclosed under this
section and for the purposes of withholding any portions exempt from
disclosure under this section. Review costs may not include any costs
incurred in resolving issues of law or policy that may be raised in the
course of processing a request under this section. No fee may be charged by
any agency under this section -
(I) if the costs of routine collection and processing of the
fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of
this subparagraph for the first two hours of search time or for
the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the requester
has previously failed to pay fees in a timely fashion, or the agency has
determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under a
statute specifically providing for setting the level of fees for particular
types of records.
(vii) In any action by a requester regarding the waiver of fees under this
section, the court shall determine the matter de novo: Provided, That the
court's review of the matter shall be limited to the record before the
agency.
(B) On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business, or in
which the agency records are situated, or in the District of Columbia, has
jurisdiction to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld from the
complainant. In such a case the court shall determine the matter de novo,
and may examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the burden is on
the agency to sustain its action. In addition to any other matters to which
a court accords substantial weight, a court shall accord substantial weight
to an affidavit of an agency concerning the agency's determination as to
technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall serve an
answer or otherwise plead to any complaint made under this subsection within
thirty days after service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for good cause shown.
(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98 Stat.
3357.)
(E) The court may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case under this
section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the court
additionally issues a written finding that the circumstances surrounding the
withholding raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special Counsel shall
promptly initiate a proceeding to determine whether disciplinary action is
warranted against the officer or employee who was primarily responsible for
the withholding. The Special Counsel, after investigation and consideration
of the evidence submitted, shall submit his findings and recommendations to
the administrative authority of the agency concerned and shall send copies
of the findings and recommendations to the officer or employee or his
representative. The administrative authority shall take the corrective
action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the district
court may punish for contempt the responsible employee, and in the case of a
uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each member
in every agency proceeding.
(6)
(A) Each agency, upon any request for records made under paragraph (1), (2),
or (3) of this subsection, shall -
(i) determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to
the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the
denial of the request for records is in whole or in part upheld,
the agency shall notify the person making such request of the
provisions for judicial review of that determination under
paragraph (4) of this subsection.
(B)
(i) In unusual circumstances as specified in this subparagraph, the time
limits prescribed in either clause (i) or clause (ii) of subparagraph (A)
may be extended by written notice to the person making such request setting
forth the unusual circumstances for such extension and the date on which a
determination is expected to be dispatched. No such notice shall specify a
date that would result in an extension for more than ten working days,
except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i)
extends the time limits prescribed under clause (i) of subparagraph (A), the
agency shall notify the person making the request if the request cannot be
processed within the time limit specified in that clause and shall provide
the person an opportunity to limit the scope of the request so that it may
be processed within that time limit or an opportunity to arrange with the
agency an alternative time frame for processing the request or a modified
request. Refusal by the person to reasonably modify the request or arrange
such an alternative time frame shall be considered as a factor in
determining whether exceptional circumstances exist for purposes of
subparagraph (C).
(iii) As used in this subparagraph, ''unusual circumstances'' means, but
only to the extent reasonably necessary to the proper processing of the
particular requests -
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted with
all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial subject-matter
interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt
of public comment, providing for the aggregation of certain requests by the
same requestor, or by a group of requestors acting in concert, if the agency
reasonably believes that such requests actually constitute a single request,
which would otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters. Multiple
requests involving unrelated matters shall not be aggregated.
(C)
(i) Any person making a request to any agency for records under paragraph
(1), (2), or (3) of this subsection shall be deemed to have exhausted his
administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions of this paragraph. If the
Government can show exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request, the court may retain
jurisdiction and allow the agency additional time to complete its review of
the records. Upon any determination by an agency to comply with a request
for records, the records shall be made promptly available to such person
making such request. Any notification of denial of any request for records
under this subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term ''exceptional
circumstances'' does not include a delay that results from a predictable
agency workload of requests under this section, unless the agency
demonstrates reasonable progress in reducing its backlog of pending
requests.
(iii) Refusal by a person to reasonably modify the scope of a request or
arrange an alternative time frame for processing a request (or a modified
request) under clause (ii) after being given an opportunity to do so by the
agency to whom the person made the request shall be considered as a factor
in determining whether exceptional circumstances exist for purposes of this
subparagraph.
(D)
(i) Each agency may promulgate regulations, pursuant to notice and receipt
of public comment, providing for multitrack processing of requests for
records based on the amount of work or time (or both) involved in processing
requests.
(ii) Regulations under this subparagraph may provide a person making a
request that does not qualify for the fastest multitrack processing an
opportunity to limit the scope of the request in order to qualify for faster
processing.
(iii) This subparagraph shall not be considered to affect the requirement
under subparagraph (C) to exercise due diligence.
(E)
(i) Each agency shall promulgate regulations, pursuant to notice and receipt
of public comment, providing for expedited processing of requests for
records -
(I) in cases in which the person requesting the records
demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must
ensure -
(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall
be provided to the person making the request, within 10 days
after the date of the request; and
(II) expeditious consideration of administrative appeals of
such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records
to which the agency has granted expedited processing under this
subparagraph. Agency action to deny or affirm denial of a request for
expedited processing pursuant to this subparagraph, and failure by an agency
to respond in a timely manner to such a request shall be subject to judicial
review under paragraph (4), except that the judicial review shall be based
on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to
review an agency denial of expedited processing of a request for records
after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term ''compelling need'' means -
(I) that a failure to obtain requested records on an expedited
basis under this paragraph could reasonably be expected to pose
an imminent threat to the life or physical safety of an
individual; or
(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the
public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for
expedited processing shall be made by a statement certified by such person
to be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall
make a reasonable effort to estimate the volume of any requested matter the
provision of which is denied, and shall provide any such estimate to the
person making the request, unless providing such estimate would harm an
interest protected by the exemption in subsection (b) pursuant to which the
denial is made.
(b) This section does not apply to matters that are -
(1)
(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and
practices of an agency;
(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld;
(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an impartial
adjudication, (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source, (E) would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any
individual;
(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells. Any reasonably segregable portion of a record shall
be provided to any person requesting such record after deletion of the
portions which are exempt under this subsection. The amount of information
deleted shall be indicated on the released portion of the record, unless
including that indication would harm an interest protected by the exemption
in this subsection under which the deletion is made. If technically
feasible, the amount of the information deleted shall be indicated at the
place in the record where such deletion is made.
(c)
(1) Whenever a request is made which involves access to records described in
subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings, the agency may,
during only such time as that circumstance continues, treat the records as
not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement
agency under an informant's name or personal identifier are requested by a
third party according to the informant's name or personal identifier, the
agency may treat the records as not subject to the requirements of this
section unless the informant's status as an informant has been officially
confirmed.
(3) Whenever a request is made which involves access to records maintained
by the Federal Bureau of Investigation pertaining to foreign intelligence or
counterintelligence, or international terrorism, and the existence of the
records is classified information as provided in subsection (b)(1), the
Bureau may, as long as the existence of the records remains classified
information, treat the records as not subject to the requirements of this
section.
(d) This section does not authorize withholding of information or limit the
availability of records to the public, except as specifically stated in this
section. This section is not authority to withhold information from
Congress.
(e)
(1) On or before February 1 of each year, each agency shall submit to the
Attorney General of the United States a report which shall cover the
preceding fiscal year and which shall include -
(A) the number of determinations made by the agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(B)
(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies
upon to authorize the agency to withhold information under
subsection (b)(3), a description of whether a court has upheld
the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any
information withheld;
(C) the number of requests for records pending before the
agency as of September 30 of the preceding year, and the median
number of days that such requests had been pending before the
agency as of that date;
(D) the number of requests for records received by the agency
and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for
processing requests; and
(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the public
including by computer telecommunications, or if computer telecommunications
means have not been established by the agency, by other electronic means.
(3) The Attorney General of the United States shall make each report which
has been made available by electronic means available at a single electronic
access point. The Attorney General of the United States shall notify the
Chairman and ranking minority member of the Committee on Government Reform
and Oversight of the House of Representatives and the Chairman and ranking
minority member of the Committees on Governmental Affairs and the Judiciary
of the Senate, no later than April 1 of the year in which each such report
is issued, that such reports are available by electronic means.
(4) The Attorney General of the United States, in consultation with the
Director of the Office of Management and Budget, shall develop reporting and
performance guidelines in connection with reports required by this
subsection by October 1, 1997, and may establish additional requirements for
such reports as the Attorney General determines may be useful.
(5) The Attorney General of the United States shall submit an annual report
on or before April 1 of each calendar year which shall include for the prior
calendar year a listing of the number of cases arising under this section,
the exemption involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of
subsection (a)(4). Such report shall also include a description of the
efforts undertaken by the Department of Justice to encourage agency
compliance with this section.
(f) For purposes of this section, the term -
(1) ''agency'' as defined in section 551(1) of this title
includes any executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency; and
(2) ''record'' and any other term used in this section in
reference to information includes any information that would be
an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic
format.
(g) The head of each agency shall prepare and make publicly available upon
request, reference material or a guide for requesting records or information
from the agency, subject to the exemptions in subsection (b), including -
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator
systems maintained by the agency; and
(3) a handbook for obtaining various types and categories of
public information from the agency pursuant to chapter 35 of
title 44, and under this section.
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