Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.
II SECTION 3--PUBLIC INFORMATION
The purpose of section 3 is to assist the public in dealing with administrative agencies by
requiring agencies to make their administrative materials available in precise and current form.
Section 3 should be construed broadly in the light of this purpose so as to make such material
most useful to the public. The public information requirements of section 3 do not supersede the
Federal Register Act (44 U.S.C. 301 et seq.). They are to be integrated with the existing program
for publication of material in the Federal Register and the Code of Federal Regulations. The
Federal Register regulations (11 F.R. 9833) govern the manner in which documents are to be
prepared prior to submission to the Division of the Federal Register. All materials issued under
section 3 (a) of the Act will be included in the Code of Federal Regulations and should be
prepared accordingly. The Division of the Federal Register is prepared to offer assistance to the
agencies in this respect.
AGENCIES SUBJECT TO SECTION 3
This section, unlike the other provisions of the Act, is applicable to all agencies of the
United States, excluding Congress, the courts, and the governments of the Territories,
possessions, and the District of Columbia. Every agency, whether or not it has rule making or
adjudicating functions, must comply with this section. Section 2 (a), defining agencies, states
specifically that even the exemption for the functions enumerated in the last sentence of that
section does not extend to section 3. Accordingly, agencies performing temporary war functions
must comply with this section.
EXCEPTIONS TO REQUIREMENTS OF SECTION 3
Two exceptions have been made to section 3, namely:
"(1) Any function of the United States requiring secrecy in the public interest." This
would include the confidential operations of any agency, such as the confidential operations of the
Federal Bureau of Investigation and the Secret Service and, in general, those aspects of any
agency's law enforcement procedures the disclosure of which would reduce the utility of such 
procedures. It is not restricted, however, to investigatory functions. The Comptroller of the
Currency, for example, may have occasion to issue rules to national banks under such
circumstances that the public interest precludes publicity.
It should be noted that the exception is made only "to the extent" that the function
requires secrecy in the public interest. Such a determination must be made by the agency
concerned. To the extent that the function does not require such secrecy, the publication
requirements apply. Thus, the War Department obviously is not required to publish confidential
matters of military organization and operation, but it would be required to publish the
organization and procedure applicable to the ordinary civil functions of the Corps of Engineers.
"(2) Any matter relating solely to the internal management of an agency." This exception
is in line with the spirit of the public information requirements of section 3. If a matter is solely
the concern of the agency proper, and therefore does not affect the members of the public to any
extent, there is no requirement for publication under section 3. Thus, an agency's internal
personnel and budget procedures need not be published (e.g., rules as to leaves of absence,
vacation, travel, etc.). However, in case of doubt as to whether a matter is or is not one of
internal management, it is suggested that the matter be published in the Federal Register,
assuming it does not require secrecy in the public interest.
"Internal management of an agency" should not be construed as intra-agency only; it
includes functions of internal Federal management, such as most of the functions of the Bureau of
the Budget, and interdepartmental committees which are established by the President for the
handling of internal management problems.
It should be understood that the following discussion of the requirements of section 3 is
not applicable to the above italicized functions since they are expressly exempted from the
EFFECTIVE DATE-PROSPECTIVE OPERATION
Section 3, which took effect on September 11, 1946, is prospective in operation. 92nd
Cong. Rec. 5650 (Sen. Doc. p. 357). It has no application to materials issued prior to that date.
To the extent that an agency's procedures and organization had been published theretofore in the
Federal Register (for example,  formal rules of practice), it was not necessary to republish
them. Appropriate citations were frequently made to such previously published materials. Under
section 3 (a) (3), publication in the Federal Register is required of substantive rules (and
statements of general policy and interpretations formulated and adopted by the agency for the
guidance of the public) issued on and after September 11, 1946.
The Federal Register of September 11, 1946, Part II, appearing in four sections and
containing 966 pages, contains the material prepared by Government agencies in initial
compliance with section 3.
SECTION 3 (a)--RULES
Section 3 (a) directs each agency to "separately state and currently publish in the Federal
Register" its organization, procedures and substantive rules.
The three classes of material--organizational, procedural, and substantive rules--must be
published in the Federal Register under separate and appropriate headings. Such separate
statement, however, should not be carried to so logical an extreme as to inconvenience the public.
For example, if an agency grants public benefits, it would be proper to include in the substantive
rules relative to those benefits a statement as to the form to be used in applying for such benefits
and the place of filing; however, the same procedural information must also be set forth or
referred to in the separate statement of the agency's procedure. This may be accomplished by
inserting in the procedural statement a notation to the effect that the procedure for obtaining
public benefits may be found at a designated part of the substantive rules relative to such benefits.
DESCRIPTION OF ORGANIZATION
Section 3 (a) (1) requires that every agency shall separately state and currently publish in
the Federal Register "(1) descriptions of its central and field organization including delegations by
the agency of final authority and the established places at which, and methods whereby, the public
may secure information or make submittals or requests." It is only delegations of final authority
 which need be listed. In this connection, it should be noted that there is no requirement to
list in the rules the names of specific individuals to whom power is delegated, unless such specific
designation is otherwise required by law, nor is there any requirement that isolated instances of
delegation made on an ad hoc basis be published. Senate Hearings (1941) p. 1329. However, the
agency should list by title the offices or officers to whom definite delegations of final authority
have been made (e.g., Claims Division of the Department of Justice, or Regional Director of the
War Assets Administration). Under this subsection, it may be advisable also for agencies to state
specifically the powers which may be exercised by persons serving in an "acting" capacity.
An agency's central organization should be described by listing its divisions and principal
subdivisions and the functions of each. Field organizations should be described by listing the
location of such offices, together with a statement of their functions. For example, if certain field
offices have authority to issue interpretative or advisory opinions, this should be specified
together with a statement as to whether such opinions are subject to review or confirmation by
the agency's central or other office. In general, there should be a statement of the information
which may be obtained from, and the applications or requests which may be filed with, the
different field offices. In view of the last sentence of section 3 (a), it is important that each agency
state clearly the types of applications, etc., if any, which it requires to be filed with designated
STATEMENT OF PROCEDURES
Section 3 (a) (2) provides that every agency shall separately state and currently publish in
the Federal Register "(2) statements of the general course and method by which its functions are
channeled and determined, including the nature and requirements of all formal or informal
procedures available as well as forms and instructions as to the scope and contents of all papers,
reports, or examinations." This subsection is primarily concerned with the procedures by which
an agency discharges its public functions--such as rule making, adjudication, and the
administration of loan, grant and benefit programs. No categorical statement can be made as to
the manner in which each agency should describe  "the general course and method by which
its functions are channeled and determined."
Section 3 does not require an agency to "freeze" its procedures, nor does it force the
adoption of procedures more formal than those previously prevailing. An agency need not invent
procedures where it has no reason to establish any procedures. Senate Hearings (1941) p. 1337.
However, the agency must, in accordance with section 3, keep the public currently informed of
changes in the actual procedures available. Of course, the published procedures of the agency
may provide (subject to applicable law) for emergency or exceptional cases.
Where there is an established procedure for the handling of certain functions, the routing
of and responsibility for such functions may be stated with reasonable particularity. Some
functions, however, may be exercised so seldom that it will not be practicable to prescribe a
definite routine. In such cases, the published information should at least include a statement of
the office to which inquiries may be directed.
In brief, section 3 (a) (2) requires an agency to disclose in general terms, designed to be
realistically informative to the public, the manner in which its functions are channeled and
determined. In this connection, it should be remembered that matters of internal management are
exempted from the publication requirements of section 3.
Informal conference procedures used by an agency should be publicized with a view to
both serving the convenience of the public and facilitating the agency's operations. Such
procedures exist widely and are known to the specialized practitioners. The general public should
be informed of their availability and as to how and where to take advantage of them.
Forms for application, registration, etc., and the instructions accompanying such forms
need not be published in full; publication of a simple statement of the function and contents of the
form, and of where copies of the form, if available, may be obtained, is sufficient. H.R. Rep. p. 22
(Sen. Doc. p. 256).
Attention is called to the last sentence of the section, stating "No person shall in any
manner be required to resort to organization or procedure not so published." Should an agency
fail to publish, for example, a listing of its field offices with their functions, persons who have not
received actual notice of such agency  organization may contend that they are not bound to
resort to a field office prior to institution of their case in the central office.
Section 3 (a) (3) provides that every agency shall separately state and currently publish in
the Federal Register "(3) substantive rules adopted as authorized by law and statements of general
policy or interpretations formulated and adopted by the agency for the guidance of the public, but
not rules addressed to and served upon named persons in accordance with law." This exemption
for "rules addressed to and served upon named persons in accordance with law" is designed to
avoid filling the Federal Register with a great mass of particularized rule making, such as
schedules of rates, which have always been satisfactorily handled without general publication in
the Federal Register.
The phrase "substantive rules adopted as authorized by law" refers, of course, to rules
issued by an agency to implement statutory policy. Examples are the Federal Power
Commission's rules prescribing uniform systems of accounts and proxy rules issued by the
Securities and Exchange Commission.
Statements of general policy and interpretations need be published only if they are
formulated and adopted by the agency for the guidance of the public. The Act leaves each agency
free to determine for itself the desirability of formulating policy statements for the guidance of the
public. To the extent that an agency, however, enunciates such statements of general policy in the
form of speeches, releases or otherwise, the Act requires them to be published in the Federal
The term "public" would not seem to embrace states. For example, the Federal Security
Agency sends interpretative guides to states to assist them in complying with the requirements of
the Unemployment Compensation provisions of the Social Security laws. Such guides need not
be published since they are not for the use of the "public" but only for the state governments.
Section 3 (a) does not require publication in the Federal Register of statements of agency
policy and interpretations which are developed and enunciated only in the course of adjudicatory
orders and opinions; such orders and opinions are treated as a separate and distinct body of
administrative materials under section 3 (b).
An advisory interpretation relating to a specific set of facts  is not subject to section 3.
92 Cong. Rec. 5649 (Sen. Doc. p. 355). For example, a reply from the agency's general counsel
to an inquiry from a member of the public as to the applicability of a statute to a specific set of
facts need not be published.
SECTION 3 (b)--OPINIONS AND ORDERS
Section 3 (b) provides that "Every agency shall publish or, in accordance with published
rule, make available to public inspection all final opinions or orders in the adjudication of cases
(except those required for good cause to be held confidential and not cited as precedents) and all
rules." Section 3 (b) does not require publication of these materials in the Federal Register or in
any other prescribed form. Regular publication of decisions in bound volumes or bulletins, as
many agencies are now doing, will suffice; in such cases, however, the agency should publish a
rule stating where copies of such orders and opinions may be obtained or inspected during the
interval prior to publication. It should be noted that the materials specified by section 3 (b) need
not be published at all if, in accordance with the agency's rule published in the Federal Register
pursuant to section 3 (a) (1), they are available for public inspection. It is suggested that to the
extent section 3 (b) is complied with by making materials available for inspection, such inspection
be made possible, where practicable, in regional offices as well as in the agency's central office.
The scope of the phrase "opinions or orders in the adjudication of cases" is governed by
section 2 (d) and, accordingly, includes orders or opinions issued with respect to licenses.
Adjudicatory orders and opinions which are not "final" need not be published or made available
for inspection. However, where intermediate orders and opinions would be useful to the public
as, say, procedural precedents, agencies may wish to publish them or make them available for
inspection in the same manner as final orders and opinions.
An agency may withhold from publication or inspection final orders and opinions
"required for good cause to be held confidential and not cited as precedents." If it is desired,
however, to rely upon the citation of confidential materials, the agency should first make available
some abstract of the confidential material in such form as will show the principles relied upon
without revealing the confidential facts.
 The last three words of section 3 (b) "and all rules" include "rules addressed to and served
upon named persons in accordance with law" which are excluded from the publication
requirement of section 3 (a) (3). See H.R. Rep. p. 50, fn. 7 (Sen. Doc. p. 284). Thus rules
involving corporate mergers and reorganizations where all the parties are served need not be
published in the Federal Register pursuant to section 3 (a); instead the provisions of section 3(b)
apply. It is sufficient, therefore, if such rules are made available for public inspection.
SECTION 3 (c)--PUBLIC RECORDS
Section 3 (c) provides that "Save as otherwise required by statute, matters of official
record shall in accordance with published rule be made available to persons properly and directly
concerned except information held confidential for good cause found." The introductory saving
clause is intended to preserve existing statutory requirements for confidential treatment of certain
materials, such as income tax returns.
Each agency should publish in the Federal Register, under 3 (a) (1), a rule listing the types
of official records in its files, classifying them in terms of whether or not they are confidential in
character, stating the manner in which information is available (as by inspection or sale of
photostatic copies), the method of applying for information, and by what officials the application
will be determined.
The term "official record" is difficult of definition. In general, it may be stated that matters
of official record will include (a) applications, registrations, petitions, reports and returns filed by
members of the public with the agency pursuant to statute or the agency's rules, and (b) all
documents embodying agency actions, such as orders, rules and licenses. In formal proceedings,
the pleadings, transcripts of testimony, exhibits, and all documents received in evidence or made a
part of the record are "matters of official record."
Section 3 (c) does not purport to define "official record." Each agency must examine its
functions and the substantive statutes under which it operates to determine which of its materials
are to be treated as matters of official record for the purposes of the section. Indicative of the
types of records which are considered official records by Congress are maps, plats, or diagrams in
the custody of the Secretary of the Interior (5 U.S.C. 488),  records, books or papers in the
General Land Office (28 U.S.C. 672), and registration statements filed with the Securities and
Exchange Commission under the Securities Act (15 U.S.C. 77f).
The great mass of material relating to the internal operation of an agency is not a matter of
official record. For example, intra-agency memoranda and reports prepared by agency employees
for use within the agency are not official records since they merely reflect the research and
analysis preliminary to official agency action. Intra-agency reports of investigations are, in
general, not matters of official record; in addition, they usually involve matters of internal
management and, in view of their nature, must commonly be kept confidential.
But even matters of official record need be divulged only to "persons properly and directly
concerned." It is clear that section 3 (c) is not intended to open up Government files for general
inspection. The phrase "persons properly and directly concerned" is descriptive of individuals
who have a legitimate and valid reason for seeking access to an agency's records. See United
States ex rel. Stowell v. Deming, 19 F. 2d, 697 (App. D.C., 1927), certiorari denied, 275 U.S.
531. Each agency is the primary judge of whether the person's interest is such as to require it to
make its official records available for his inspection.
An agency may treat matters of official record as "confidential for good cause found" and
upon that ground refuse to make them available for inspection. Information held "confidential for
good cause found" may be either information held confidential by reason of an agency rule issued
in advance (for good cause) making specific classes of material confidential, or such information
as is held confidential for good cause found under a particular set of facts. The section does not
change existing law as to those materials in Government files which have been heretofore treated
as confidential. See Boske v. Comingore, 177 U.S. 459 (1900); Boehm v. United States, 123 F.
2d, 791, 805 (C.C.A. 8, 1941).
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