FOIA Post (2004): The Limits of Agency Translation Obligations Under the FOIA

December 1, 2004

FOIA Post

The Limits of Agency Translation Obligations Under the FOIA

A question

that recently has come up with increasing frequency at the Office of Information

and Privacy's FOIA-training programs is whether the Freedom of Information Act

requires agencies to make translations of records that are written in a language

other than English. As sometimes is the case under the FOIA, there is no simple

"yes" or "no" answer to this question. Rather, as is explained in detail below,

the answer is "sometimes yes, sometimes no," depending upon the particular type

of FOIA activity that is involved.

This

question can most easily be broken down into three different parts, according

to three distinctly different aspects of responding to a FOIA request: (1) determining

which records are responsive to the request; (2) considering the applicability

of any exemption that might warrant withholding all or portions of those records;

and (3) providing nonexempt records or record portions to the requester. Generally

speaking, translation into English ought to be undertaken where necessary for

this first aspect of FOIA administration, it usually needs to be undertaken

for the second, and it need not be undertaken for the third. And, of course,

an agency's translation efforts in these first two situations could involve

either the creation of a translated counterpart document itself or the simpler

act of having bilingual FOIA personnel (or a FOIA officer working together with

a translator called in for the occasion) perform the required FOIA analysis.

Determining

Responsiveness

The

process of determining which of an agency's records are responsive to a FOIA

request is the first point at which a "translation issue" might arise. This

is a stage of FOIA request handling in which an agency owes a strong obligation

to FOIA requesters, a duty "to pay careful attention to the records and information

that they include as responsive to a FOIA request in the first place." FOIA

Update, Vol. XVI, No. 3, at 3 ("OIP Guidance: Determining the Scope

of a FOIA Request"). After all, "if something is not included by an agency for

purposes of a FOIA request to begin with, then that alone will mean that it

cannot be disclosed in response to that request." Id. Consequently,

an agency may be obligated to take special translation steps where those steps

are necessary in order for agency FOIA personnel to determine whether a particular

record or group of records fairly falls within a request's scope. Simply put,

if there is good reason to believe that a record might well be responsive to

a request, then an agency cannot just discard it from consideration for lack

of understanding its foreign-language contents. This is a matter of an agency's

basic obligation to a FOIA requester.

At

the same time, however, this obligation is not unlimited. Indeed, a FOIA request

that cannot be handled without a good deal of translation effort is not likely

to be a "reasonably described" request that triggers any agency FOIA obligation

to begin with. The Act is not one-sided: It places an obligation on FOIA requesters

to "reasonably describe" the records that they seek, 5 U.S.C. § 552(a)(3)(A)

(2000), which means that a request must be one that allows a professional employee

of an agency "to locate [responsive records] with a 'reasonable amount of effort.'"

Freedom of Information Act Guide &

Privacy Act Overview (May 2004), at 50 & n.74 (quoting H.R. Rep.

No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271).

A FOIA

request can readily run afoul of this statutory requirement if it seeks records

under such circumstances that an agency would have to undertake an unreasonable

amount of translation effort even to determine which records are responsive

to it, let alone anything else. See Goland v. CIA, 607 F.2d 339, 353

(D.C. Cir. 1978) (holding that an agency is not required to undertake an "unreasonably

burdensome search" for responsive records). For example, if a requester

were to focus on a multitude of Iraqi documents recently coming into the possession

and control of the Department of Defense in Iraq -- documents written in Farsi

-- and ask for access to some content-based subset of them, then that would

hardly be a "reasonably described" request under the circumstances. In this

context, the activity of "locating" records would, in effect, mean "translating"

them (as well as many surrounding ones) first. Cf. Krohn v. Dep't of Justice,

628 F.2d 195, 197-98 (D.C. Cir. 1980) (pointing out that "it would be necessary

to transcribe a [court] reporter's notes" in order to locate responsive

records, which "[t]he agency cannot be compelled" to do).

To

be sure, even in some large-volume cases involving foreign-language records,

agencies might find it possible to determine which ones are responsive to a

particular FOIA request by using means other than translation. Sometimes the

very physical location of a group of records can be its defining characteristic,

at least in a way that is satisfactory to a FOIA requester, in which case translation

for this threshold FOIA purpose will not be an issue. Agencies should work together

with requesters to pursue the possibility that any other means of determining

responsiveness, short of onerous translation, can be adequate to the task. Cf.

FOIA Update, Vol. XVI,

No. 3, at 4 (advising of the advantages of "full and open communication

with the FOIA requester" in comparable situations).

Determining

Exemption Applicability

The

second aspect of FOIA administration to which translation might pertain is that

of applying FOIA exemptions to records that have been found to be responsive

to a request. Here any translation that might be undertaken would not be for

the benefit of the requester. Rather, because the records in question will have

been determined to be responsive records, the dynamic of this situation is such

that these records must be disclosed unless the agency reasonably can conclude

otherwise. In other words, the agency bears the burden of tying a record's contents

to one or more exemptions or else it must be disclosed -- so any translation

that is necessary to facilitate that enterprise is a matter of the agency's

interest, not the requester's.

This

presents an agency with multiple choices. An agency might choose to forego obtaining

a translation, and to simply disclose a record "in the dark," so to speak --

but that would leave it at risk of possibly disclosing sensitive information

that, if the record were written in English, would readily be withheld as exempt.

Especially given that several of the FOIA's exemptions protect the outside interests

of third parties -- such as business interests under Exemption 4 and personal

privacy interests under Exemptions 6 and 7(C), not to mention interests protected

by statutory prohibitions -- this usually is not a wise idea. Only where an

agency can be entirely confident of such a record's contents based upon surrounding

circumstances -- such as location, place of creation, or comparable translations

of similar records -- should this choice be made.

An

agency might see as a second choice the possibility of withholding a record

in its entirety, simply for lack of any confidence that it is not sensitive

in some respect. But this is not a good choice. In fact, it is no choice at

all, because an agency is obliged not to act on bare fear or total speculation

when invoking a FOIA exemption. If any agency were to do so, then that action

ought to be reversed on administrative appeal. And if a FOIA request were to

proceed to litigation in a case in which records were withheld without the agency's

knowledge of their contents, then that case could not properly be defended.

Cf. Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1082 n.10 (9th

Cir. 2004) (criticizing agency counsel for being "totally unfamiliar with" basis

for claimed exemption applicability). In short, this approach ought not be taken.

As

a general rule, the best choice for agencies is to bear the translation burden

here, to undertake whatever amount of translation is necessary for a proper

judgment to be reached regarding record sensitivity and for exemptions to be

applied, or not, accordingly. Again, this is not for the requester's benefit,

it is for the agency's. So if it is more efficient for an agency to arrange

for a bilingual document reviewer to perform this FOIA analysis, rather than

have a translator prepare a translation document, then so be it. Either way,

of course, the enterprise involved can reasonably be regarded as part of the

agency's "review" costs -- which means that any such special "translation" costs

to the agency can be charged to the requester if he, she, or it is a "commercial

use" requester. See 5 U.S.C. § 552(a)(4)(A)(ii)(I), (iv);

see also Uniform Freedom of Information Act Fee Schedule and Guidelines

(OMB Fee Guidelines), 52 Fed. Reg. 10012, 10017 (Mar. 27, 1987) (specifying

that the term "review" includes "doing all that is necessary to excise" responsive

records).

Providing

Records

Lastly,

there is the part of the FOIA process that can present the greatest difficulty

when it comes to possible document translation -- the disclosure of nonexempt

records to the requester, in one language or another. Here the question is not

whether the agency should take some translation step in order to reach a proper

judgment in processing a FOIA request. Instead, it is a question of whether

the agency is obliged to provide a requester with more than what the requested

record contains on its face -- a translation that makes the record's contents

readily readable to that requester. The simple answer to this question is "no,"

there is no such obligation under the FOIA. See, e.g., Gabel v.

Comm'r, 879 F. Supp. 1037, 1039 (N.D. Cal. 1994) ("The government's responsibility

under FOIA is . . . not to revamp documents or to generate exegeses so as to

make them comprehensible to a particular requester."); Diamond v. FBI,

487 F. Supp. 774, 776-79 (S.D.N.Y. 1980) (finding a FOIA requester's demand

that an agency provide explanatory materials for disclosed records to be a "burden

[that] is both unduly heavy and unauthorized by the Act").

To

be sure, agencies may create translation documents for FOIA requesters if they

choose to do so as a matter of their administrative discretion. See generally

Freedom of Information Act

Guide & Privacy Act Overview (May 2004), at 683-91 & nn.9-48

(describing the limits of agency discretion under the FOIA). And it also must

be remembered that an agency that opts to create a translation counterpart to

a requested record for purposes of determining either responsiveness or exemption

status will have created a record that itself could become the subject of a

future FOIA request. See, e.g., McDonnell v. United States,

4 F.3d 1227, 1244 (3d Cir. 1993) (noting that where the agency "would have had

to translate" a requested record already, providing a translation to the requester

would involve no significant burden) (dicta). (Of course, that new record itself

could be provided to the original requester by the agency as a matter of administrative

discretion, unless that requester is an extremely rare one who actually prefers

to receive the requested record in its original, foreign-language version.)

But

as a sound general rule, FOIA requesters who seek access to records that do

not exist in a language known to them (in some cases even including computer

languages) must make their own arrangements for any translation that they might

require. Accord Essential Info., Inc. v. United States Info. Agency,

134 F.3d 1165, 1172 (D.C. Cir. 1998) (Tatel, J., dissenting) (observing that,

as compared to another statute, "[the] FOIA contains no similar translation

requirement"); see also FOIA

Update, Vol. V, No. 1, at 5; cf. Hudgins v. IRS, 620 F. Supp.

19, 21 (D.D.C. 1985) (refusing to order an agency to perform "personal

services" for a FOIA requester experiencing a "language [barrier]

in Panama"). This should not be confused with an agency's general obligation

to a FOIA requester when it is producing "a photocopy of a record that is a

poor copy or is not entirely legible." FOIA

Update, Vol. XVI, No. 3, at 5. Nor should it be mistaken for the situation

in which a requester might seek to have nonexempt records disclosed in a new

form or format of his or her choosing under the provision of the 1996 FOIA amendments,

found at 5 U.S.C. § 552(a)(3)(B), that speaks to that. See

FOIA Update, Vol.

XVIII, No. 1, at 5. Translations are not "readily reproducible" within the

meaning of that provision. See id.; see also 5 U.S.C. §

552(a)(4)(B) (explicitly establishing a standard of special deference

to agency determinations of "reproducibility under [FOIA subsection] (3)(B)").

Conclusion

In

conclusion, the proper resolution of "translation" issues under the FOIA requires

careful consideration of the particular stage of the processes of FOIA administration

at which they arise. Although such questions arise only infrequently, all agencies

should be aware of both their obligations and the limits of those obligations

when they do arise.  (posted 12/1/04)

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