Time: Wed Jun 18 08:13:01 1997
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Date: Wed, 18 Jun 1997 06:37:33 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: 5 U.S.C. 552(a)(4)(B)
References: <3.0.2.16.19970617053951.30a7a84c@pop.primenet.com>
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Use your editor to search for "district court".  
I found this in your message below:

(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.


/s/ Paul Mitchell
http://www.supremelaw.com




At 08:14 PM 6/17/97 -0700, you wrote:
>> No.  Sentencing was in the USDC.
>> The DCUS case has barely begun.
>> We brought FOIA enforcement in
>> the DCUS, because of 5 U.S.C. 552(a)(4)(B).
>> 
>> /s/ Paul Mitchell
>> http://www.supremelaw.com
>
>Maybe I don't know how to read these things.  Isn't it like 
>nested if()'s in programming code, where the tabulation marks the 
>beginning and end of nested subjects?  I have appended all of Section 
>552(a) and there is no subpart (4) therein, that I can see:
>
>     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 -
>               o (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;
>               o (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;
>               o (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;
>               o (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
>               o (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 -
>               o (A) final opinions, including concurring and dissenting
>                 opinions, as well as orders, made in the adjudication of
>                 cases;
>               o (B) those statements of policy and interpretations which
>                 have been adopted by the agency and are not published in
>                 the Federal Register; and
>               o (C) administrative staff manuals and instructions to
>                 staff that affect a member of the public; unless the
>                 materials are promptly published and copies offered for
>                 sale. 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, or staff manual or instruction. However,
>                 in each case the justification for the deletion shall be
>                 explained fully in writing. 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. 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) Except with respect to the records made
>                      available under paragraphs (1) and (2) of this
>                      subsection, each agency, upon any request for
>                      records which (A) reasonably describes such records
>                      and (B) 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.
>                    # (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. (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 ten 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) 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
>                      reasons 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. As used
>                      in this subparagraph, ''unusual circumstances''
>                      means, but only to the extent reasonably necessary
>                      to the proper processing of the particular request
>                      -
>                              - (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. (C) 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.
>     * (b) This section does not apply to matters that are -
>[snip]

========================================================================
Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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