FOIA Post (2004): Use of "Cut-Off" Dates for FOIA Searches

May 6, 2004

FOIA Post

Use of

"Cut-Off" Dates for FOIA Searches

One

of the most fundamental and important tasks that an agency performs in processing

a Freedom of Information Act request is properly determining the request's scope

-- i.e., the lines that govern which records are responsive to it and which

are not. See, e.g., FOIA

Update, Vol. XVI, No. 3, at 3 ("[A]n agency's interpretation of the

particular scope of a FOIA request, and its determinations regarding exactly

which information falls within it, are vitally important aspects of FOIA administration.").

Indeed, an agency cannot begin to conduct a search for responsive records --

let alone begin processing them for public disclosure -- until it determines

exactly which records it should be focusing on. See, e.g., Voinche

v. FBI, No. 96-5304, 1997 U.S. App. LEXIS 19089, at *3 (D.C. Cir. June

19, 1997) (observing that an agency is not obliged to "search for records beyond

the scope of [a] request"). Thus, properly determining the scope of a FOIA request

is a necessary first step that an agency must take toward fulfilling its obligation

to conduct a search that is "reasonably calculated to uncover all [responsive]

documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344,

1351 (D.C. Cir. 1983); see, e.g., Meeropol v. Meese, 790 F.2d

942, 956 (D.C. Cir. 1986) (declaring that the adequacy of a search for responsive

records "is measured by the reasonableness of the [agency's] effort in light

of the specific request").

The

scope of a FOIA request has both substantive and temporal aspects. In other

words, a request's scope is defined not only by the particular subject matter

of the requested records, which is the delineation most commonly thought of,

but also by the particular time frame in which those records were created. See

Church of Scientology v. IRS, 816 F. Supp. 1138, 1148 (W.D. Tex. 1993)

(observing that "there has to be a temporal deadline for documents that satisfy

[a FOIA] request"), appeal dismissed by stipulation, No. 93-8431 (5th

Cir. Oct. 21, 1993). While issues of the proper interpretation of a request's

substantive scope have received much attention over the years -- see, e.g.,

FOIA Update, Vol. XVI,

No. 3, at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request");

see also, e.g., LaCedra v. Executive Office for United States Attorneys,

317 F.3d 345, 347-48 (D.C. Cir. 2003) (admonishing that in light of agency's

obligation "to construe [plaintiff's] FOIA request liberally," agency's interpretation

of request's scope, though "colorable," was "simply implausible" and thus impermissibly

narrow) -- now courts are increasingly focusing on whether agencies are defining

the temporal scope of FOIA requests properly, primarily through their use of

what commonly are referred to as "cut-off" dates.

Generally

speaking, an agency uses a "cut-off" date to delineate the scope of a FOIA request

by treating records created after that date as not responsive to that request.

See FOIA Update,

Vol. IV, No. 4, at 14 (advising that records that "post-date such a date

are not included" within the temporal scope of a request). Although there are

several types of "cut-off" dates that an agency can use, see id.

(listing the different types of "cut-off" dates used by agencies), courts have

held that an agency's use of an inappropriate "cut-off" date can unduly restrict

a FOIA request's temporal scope, thereby rendering the agency's subsequent search

for responsive records unreasonable. See, e.g., McGehee v. CIA,

697 F.2d 1095, 1101 (D.C. Cir.) (observing that "a temporal limit pertaining

to FOIA searches . . . is only valid when the limitation is consistent

with the agency's duty to take reasonable steps to ferret out requested documents"),

vacated on other grounds on panel reh'g & reh'g en banc denied, 711

F.2d 1076 (D.C. Cir. 1983); see also, e.g., Pub. Citizen v. Dep't

of State, 276 F.3d 634, 643-44 (D.C. Cir. 2002) (finding an agency's search

to be inadequate because the agency unjustifiably failed to use a later "cut-off"

date that "might have resulted in the retrieval of more [responsive] documents").

From

the case law addressing this issue thus far, it is clear that a search conducted

using a cut-off based on the date that the search begins (i.e., a "date-of-search

cut-off") will be viewed by the courts much more favorably than a search that

uses a less inclusive cut-off, such as one based on the date of the request

or of the request's receipt (i.e., a "date-of-request cut-off"). See, e.g.,

Defenders of Wildlife v. United States Dep't of the Interior, No. 03-1192,

2004 WL 842374, at *6 n.10 (D.D.C. Apr. 13, 2004) (recognizing that because

the agency's FOIA regulations established a "date-of-search cut-off," records

created after the agency's "FOIA search began . . . are not covered by [the

FOIA] request"); see also McGehee, 697 F.2d at 1104 (favoring

a date-of-search cut-off because it "results in a much fuller search and disclosure"

than does a date-of-request cut-off); Van Strum v. EPA, No. 91-35404,

1992 WL 197660, at *2 (9th Cir. Aug. 17, 1992) (agreeing that a date-of-search

cut-off date is "the most reasonable date for setting the temporal cut-off in

this case").

The

significance of a date-of-search cut-off is most evident when the subject of

the request is a matter involving ongoing agency activity, such that records

are still being created after the request is made. Indeed, if the agency has

a large backlog of pending requests, many additional records responsive to a

particular request might be created before that request even reaches the front

of the agency's processing queue. The use of a date-of-search cut-off ensures

that any such records will be captured by the agency's search, resulting in

the processing of records that would not be included through a search conducted

with a more restrictive date-of-request cut-off. See Pub. Citizen,

276 F.3d at 643-44 (recognizing that for an agency with "a large 'backlog' of

FOIA requests," a search conducted using a date-of-search cut-off would capture

"a potentially large number of relevant documents" created after the date of

the request).

By

the same token, of course, an agency's use of a date-of-search cut-off certainly

does not mean that it cannot "cut things off" until the entire search is completed;

rather, doing so as of the beginning of a search is entirely reasonable.

See, e.g., 28 C.F.R. § 16.4(a) (2004) (Department of Justice

FOIA regulation specifying that its standard "cut-off" practice "include[s]

only records in its possession as of date [that it] begins its search

for them") (emphasis added). Otherwise, in any "active" matter in which records

are being created during the time period of the search itself an agency would

be subject to a potentially "endless cycle" of searching, see Church of

Scientology, 816 F. Supp. at 1148 (recognizing that "a search could be

a never ending process" (citing Bonner v. United States Dep't of State,

928 F.2d 1148, 1152 (D.C. Cir. 1991) (warning in comparable context that agencies

need to be protected against "an endless cycle of judicially mandated reprocessing")))

-- which would make little or no sense as a practical matter. See FOIA

Update, Vol. XVI, No. 3, at 3 (emphasizing an agency's "practical need

to conduct its FOIA operations without any unnecessary administrative burden").

And as for any agency or agency component that of necessity conducts multiple

counterpart searches in distinctly different locations within it, it surely

need not use the same date across the board; rather, for the same reasons of

practicality, it could use the individual dates upon which searches separately

are begun in, or even "tasked to," each distinct such office location. Accord

McGehee, 697 F.2d at 1104 (suggesting that a cut-off based upon the

date that a search is "task[ed]" would not involve "administrative chaos").

Nor

is this to say that an agency absolutely must use such a date-of-search cut-off

for all of its requests. See Pub. Citizen, 276 F.3d at 644

(recognizing that an agency may have a "compelling justification for imposing

a date-of-request cut-off on a particular FOIA request"). Indeed, the Court

of Appeals for the District of Columbia Circuit has recognized that "a different

["cut-off" date] might be more suitable for an agency that responds to requests

on a relatively current basis." McGehee, 697 F.2d at 1104; see

also Pub. Citizen, 276 F.3d at 643 (acknowledging that "specific

circumstances in some agencies may render an across-the-board [date-of-request

cut-off] reasonable"). Similarly, if the request seeks historical records or

concerns a "closed" matter in which no additional records are being created

by the agency, then it makes no difference whether the agency uses a date-of-search

cut-off or a date-of-request cut-off, as the universe of responsive records

would already be settled as of either date. See, e.g., Blazy v.

Tenet, 979 F. Supp. 10, 17 (D.D.C. 1997) (concluding that it was "reasonable

under the circumstances" for the agency to apply a date-of-request cut-off to

a request that sought records concerning events that already had occurred (and

records that already had been created) by the time the request was made), summary

affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998).

However,

if an agency chooses not to use a date-of-search cut-off, it now should be aware

that it may be required to articulate a "compelling justification" for doing

so if challenged in court. Indeed, the D.C. Circuit not long ago signaled exactly

that in its decision in Public Citizen v. Department of State, a case

involving a direct challenge to the State Department's "cut-off" date practices.

See 276 F.3d at 644 (implying that nothing less than a "compelling

justification for imposing a date-of-request cut-off on a particular request"

-- i.e., more than was presented by the State Department in this case -- would

be required in future cases); cf. McGehee, 647 F.2d at 1103-04

(rejecting the agency's arguments that the use of a date-of-search cut-off would

be "unduly burdensome, expensive, or productive of 'administrative chaos'" as

lacking any "detailed substantiation"). So any agency using anything other than

a date-of-search cut-off should continue to do so only if it confidently can

meet this higher standard if challenged in a particular case.

Additionally,

no matter which type of "cut-off" date an agency adopts and ordinarily uses,

it is obliged to inform FOIA requesters of that date. See, e.g., Judicial

Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180,

at *21 (D.D.C. Mar. 31, 2004) ("Because the [agency] imposed the . . .

cut-off date without informing [the requester] of its intention to do so, the

court must conclude that [the agency's] search was inadequate."); see also

FOIA Update, Vol. IV,

No. 4, at 14 (advising more than two decades ago that "agencies should give

requesters notice of the 'cut-off' dates they use"; cf. McGehee, 697

F.2d at 1105 (expressing doubt that the agency could establish that "it may

'reasonably' use any 'cut-off' date without so informing the requester"). The

most efficient way in which an agency can give such notice is through "constructive

notice" in its published FOIA regulations, see, e.g., 28 C.F.R. §

16.4(a) (Department of Justice FOIA regulation notifying requesters of

its "cut-off" date), and/or through its FOIA Reference Guide on its FOIA Web

site, see 5 U.S.C. § 552(g) (2000) (requiring each agency

to prepare and make publicly available (including electronically) its own guide

for ready use by FOIA requesters in making requests to it); see also

FOIA Update, Vol.

XIX, No. 3, at 4 (advising that "[a]n agency's FOIA Web site is an excellent

means of affording widespread public availability to its FOIA and Privacy Act

regulations").

Alternatively,

an agency can give actual notice of its "cut-off" date policy in its correspondence

with each FOIA requester individually. See, e.g., Pub. Citizen,

276 F.3d at 634 (noting that State Department provided notice of its "cut-off"

date policy in letters sent to all requesters acknowledging receipt of their

requests); cf. McGehee, 697 F.2d at 1105 (suggesting that actual notice

of an agency's "cut-off" policy might be given where such notice "would involve

an insignificant expenditure of time and effort on the part of the agency").

An agency also can use such a letter whenever it departs from its ordinary practice

for some reason, lest the requester mistakenly be on "constructive notice" to

the contrary. See, e.g., 28 C.F.R. § 16.4(a) (providing

notice of the "cut-off" date that the Justice Department "ordinarily" uses,

and specifying that "if any other date is used, the [Department] shall inform

the requester of that date"). Simply put, a FOIA requester should know what

"cut-off" date is being applied to his request, if for no other reason than

to minimize the chance of any inefficient misunderstanding about what that request

encompasses. See FOIA Update,

Vol. XVI, No. 3, at 3 (reminding agencies of the importance of FOIA requesters

"being fully informed of all such scope matters").

In

sum, all federal agencies should be mindful of the proper use of "cut-off" dates

in their administration of the FOIA. Only with proper attention to this basic

mechanism for determining a FOIA request's full scope at the outset of their

handling of each request can they be confident that they are consistently, and

thus properly, administering the Act.

This

Office of Information and Privacy policy guidance was prepared by OIP senior

attorney Frank P. Menna.  (posted 5/6/04)


Go to: Main FOIA Post Page//

DOJ FOIA Page // DOJ Home Page

Topic(s): 
FOIA Post