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FOIA COMMENTARY BY ACCESS REPORTS

III. SUMMARY

The FOIA is codified at 5 U.S.C. §552. Its basic purpose is to promote the continued existence of an informed citizenry, an element which is considered essential to the proper functioning of a democracy. Toward that end it sets forth three separate and distinct disclosure mandates:

1. 5 U.S.C. §552(a)(1) describes five categories of information which federal agencies are required to publish in the Federal Register;

2. 5 U.S.C. §552(a)(2) lists three categories of records which federal agencies must affirmatively make available for public inspection and copying and must index on a current basis; and

3. 5 U.S.C. §552(a)(3) provides that any agency record which is not covered by (a)(1) or (a)(2) must be made promptly available upon request to any person.

5 U.S.C. §552(a)(4)(A) directs all federal agencies to promulgate a fee schedule listing the charges that will be made for responding to FOIA requests. These charges cannot exceed the direct costs of search and duplication, and must be waived or reduced if the requested information will contribute significantly to public understanding of government activities and operations and is not primarily for the commercial benefit of the requester.

In 5 U.S.C. §552(a)(4)(B) federal district courts are empowered to review agency denials of FOIA requests and to enjoin improper withholding of records.

5 U.S.C. §552(a)(4)(C) sets forth Congress' intent that FOIA cases be expedited whenever there is good cause.

5 U.S.C. §552(a)(4)(D) gives district courts discretion to award attorney fees and costs to any FOIA requester who substantially prevails in terms of the relief sought in a suit.

5 U.S.C. §552(a)(4)(F) establishes a system for the disciplining of agency officials found to have made an arbitrary and capricious denial of an FOIA request.

5 U.S.C. §552(a)(4)(G) empowers the district courts to punish for contempt any federal employee (including members of the armed forces) who fails to comply with an order to comply with an FOIA request.

5 U.S.C. §552(a)(5) is one of the FOIA's simplest provisions and requires only that all multi-member agencies "shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding."

A system of administrative deadlines for agencies' responses to FOIA requests is established by 5 U.S.C. §552(a)(6).

5 U.S.C. §552(b) lists nine categories of records which are exempt from the FOIA's three disclosure mandates (i.e., 5 U.S.C. §§552(a)(1), (a)(2) and (a)(3).

5 U.S.C. §552(c) specifies certain situations in which agencies can refuse to confirm or deny whether they have records within the scope of a request (i.e., issue a Glomar denial).

5 U.S.C. §552(d) makes it clear that the FOIA authorizes the withholding of records from the public only to the extent provided in Section (b), and that even that section cannot be used "to withhold information from Congress."

5 U.S.C. §552(e) establishes the requirement that each agency submit an annual report containing the specified information relating to its implementation of the FOIA.

The only definition in the FOIA is set forth in 5 U.S.C. §552(f) that of an "agency." This definition is extremely significant, however, for the FOIA applies only to agencies of the federal government as defined by that section.

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