FOIA Post (2003): FOIA Counselor Q&A: "Frequently Requested" Records

September 27, 2002

FOIA Counselor Q&A:   "Frequently Requested" Records

Q: Why is it sometimes said that the "frequently requested record" provision of the FOIA, 5

U.S.C. § 552(a)(2)(D) (2000), involves a "rule of three"?

A: The FOIA's "frequently requested record" provision, which was enacted as part of the

Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), created an additional

category of reading room records by requiring all federal agencies to give "reading room" treatment to

certain records after they are processed for, and released to, a FOIA requester. See FOIA Update,

Vol. XVII, No. 4, at 1. It provides that such treatment must be given to any FOIA-processed records

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." 5 U.S.C.

§ 552(a)(2)(D). Because the language of this statutory provision is phrased in the plural (i.e., with

explicit reference to "subsequent requests"), it necessarily is triggered by multiple FOIA requests

beyond the initial one for which records are processed in the first place. See FOIA Update, Vol.

XVIII, No. 1, at 4. Consequently, this provision's statutory standard is sometimes referred to as

establishing a "rule" of three requests -- the first one, to begin with, plus at least two more. See

Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 23 (stating that "it is

the receipt or the anticipation of the third [FOIA] request that triggers" an agency's (a)(2)(D)

obligation).

Q: What if an agency receives a second request, but then not a third one until many months or

even years later?

A: In such a case, an agency might reasonably determine, upon its receipt of the third request,

that the level of interest in the records in question is such that it would not serve the statutory purpose of

subsection (a)(2)(D) to give them "reading room" treatment at that later point in time. The clear

underlying purpose of this reading room provision is "to afford reading room access that might be used

by potential future FOIA requesters in lieu of FOIA requests, and to thereby 'reduce the number of

multiple FOIA requests for the same records requiring separate agency responses.'" FOIA Update,

Vol. XVIII, No. 2, at 2 (quoting H.R. Rep. No. 104-795, at 21 (1996)). In a circumstance such as

this, consistent with an agency's use of its "best judgment" in subsection (a)(2)(D) matters, FOIA

Update, Vol. XVII, No. 4, at 1, it can be appropriate for an agency to determine that subsection

(a)(2)(D) and its underlying purpose do not apply. See FOIA Update, Vol. XVIII, No. 2, at 2

(advising in comparable circumstance that placing records in agency's reading room "would not serve

the statutory purpose of 'diverting some potential FOIA requests for previously-released records'")

(quoting H.R. Rep. No. 104-795, at 21 (1996)); see also FOIA Update, Vol. XIX, No. 1, at 3

(reminding that "[i]n making determinations as to whether records fall into the new reading room

category, agencies should keep in mind that its purpose is to reduce the number of future requests for

the same information"). In reaching such judgments, however, agencies also should be mindful both of

the importance of doing so responsibly, as an integral part of modern FOIA administration, and of the

continued attention that is paid to governmentwide compliance with subsection (a)(2)(D) as part of

E-FOIA implementation studies conducted by the General Accounting Office. See FOIA Post,

"Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (citing GAO report entitled

"Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments"

(Aug. 2002), at 45-47, and speaking of GAO's continuing "series" of such reviews); see also FOIA

Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03) (referring to

GAO's "third study of agency compliance with the requirements of E-FOIA").

Q: What if the second and third requests are not identical to the first and they encompass only

some of the records that were involved in the first request?

A: The agency does have an (a)(2)(D) obligation in such a case, but that obligation applies only

to the records that are common to the three FOIA requests -- what could be referred to as "overlap"

records -- not to the entire scope of records covered by any one request. At bottom, the focus of this

statutory provision and the obligation that it places on agencies is on records, not requests. See FOIA

Update, Vol. XVII, No. 4, at 1. So when agencies consider whether that obligation is triggered, and if

so exactly where, they should look to the records that they have processed and to whether those

records fall within the "rule of three." See FOIA Update, Vol. XVIII, No. 1, at 4. And by the same

token, of course, an agency's (a)(2)(D) obligation arises only with respect to any FOIA-processed

record that is disclosed at least in some part. See id. (discussing agency (a)(2)(D) obligations as

pertaining only to "the records they disclose").

Q: If an agency acts to place FOIA-processed records in its reading room

based upon the subsection's "likely to" standard, without waiting for any subsequent

FOIA requests, does that mean that it has completely handled all of its FOIA

obligations for those records in that way?

A: No -- not all of its potential FOIA obligations, not even when it acts on that anticipatory basis. The

"likely to" part of the statutory standard is an alternative means of triggering the agency's obligation to

give a FOIA-processed record "reading room" treatment under subsection (a)(2)(D): Where the

agency reaches its own judgment of the likelihood of multiple future requests, the obligation is triggered

on that basis alone. See FOIA Update, Vol. XVII, No. 4, at 1. When an agency gives a FOIA-processed record "reading room" treatment on that basis it is extending itself proactively, to be sure, but

no more so than the statute actually requires. See Freedom of Information Act Guide & Privacy Act

Overview (May 2002), at 23. Thus, that proactive exercise of agency judgment to place records in its

reading room means only that the agency need not be concerned with its actual receipt of one of more

requests for those records in the future for reading room purposes. It does not mean that it has

satisfied all of its potential FOIA obligations for those records. Rather, any and all subsequent FOIA

requests received for the records in question must be handled as regular FOIA requests, under

subsection (a)(3) of the Act, 5 U.S.C. § 552(a)(3), just the same. (Of course, the pre-existing reading

room availability of records responsive to those subsequent requests in an electronic reading room on

an agency's FOIA Web site, once brought to those FOIA requesters' attention, could be a basis for

resolving those requests most efficiently. See, e.g., FOIA Update, Vol. XVI, No. 1, at 2 (emphasizing

utility of "electronic information availability" even prior to E-FOIA).) While there is a general rule under

the FOIA that such regular FOIA requests under subsection (a)(3) cannot be made for records that are

properly treated as "reading room" records under subsection (a)(2), see FOIA Update, Vol. XVIII,

No. 1, at 3, it must be remembered that subsection (a)(2)(D) stands as a singular exception to that rule.

See id. (citing H.R. Rep. No. 104-795, at 21 (1996)).

Q: What if an agency acts on the basis of the "likely to" standard before it receives even a first

FOIA request?

A: Fundamentally, this reading room provision does not even come into play until an agency

processes and discloses records under the Act in the first place. See Freedom of Information Act

Guide & Privacy Act Overview (May 2002), at 23 (pointing out that "this requirement by definition

begins with the processing of records disclosed in response to a FOIA request"). Therefore, any such

action by an agency would be so premature, at least in relation to subsection (a)(2)(D), that it would

amount to according "reading room" treatment to records on an entirely gratuitous, or discretionary,

basis. While agencies certainly have the discretion to take such action, and not infrequently do so, see,

e.g., FOIA Update, Vol. XVIII, No. 1, at 5, they should not confuse it with action taken under

subsection (a)(2)(D). See also id. (cautioning against the possibility of copyright infringement in any

case in which an agency gratuitously accords "electronic reading room" treatment to a record that was

created outside of the agency).

Q: What if an agency acts to place a record in its reading room based

upon the "likely to" standard, but then soon thereafter is proven mistaken when

no further FOIA request (or no more than one additional request) is received

for that record, can it then remove it from its reading room (or "take it down"

from its electronic reading room on its FOIA Web site) for that reason?


A: No. In such a situation, the key fact is that the statutory standard was met, regardless of

what did or did not occur thereafter. In other words, once the agency reached the judgment that the

FOIA-processed record was "likely to become the subject of subsequent requests," 5 U.S.C. §

552(a)(2)(D), its statutory obligation was in fact triggered at that point. It makes no difference under

the statute whether an agency's predictive judgment subsequently is borne out. In time, however, an

agency certainly can consider the absence of predicted FOIA requests as a factor in determining

whether the continued maintenance of a record as a "frequently requested" record is warranted. See

FOIA Update, Vol. XVIII, No. 1, at 4 (noting that as a matter of practicality, an agency "may

determine that some such records no longer" warrant (a)(2)(D) treatment); see also FOIA Update,

Vol. XIX, No. 1, at 3 (advising that agencies "should use their judgment as to the length of time that

records determined to fall within the new reading room category should continue to be maintained in a

reading room").   (posted 7/25/03)

 

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