FOIA Update: Agencies Place Increasing Emphasis on Affirmative Information Disclosure

January 1, 1995

FOIA Update
Vol. XVI, No. 1
1995


Agencies Place Increasing Emphasis on Affirmative Information Disclosure

As a growing trend within the federal government, federal agencies are placing increasing emphasis on the processes by which they can affirmatively make agency records available to the public, rather than providing them only in response to particular record requests. Agency efforts in this direction can significantly benefit their administration of the Freedom of Information Act.

Where an agency makes records available to the public on its own initiative, there is less likelihood that those records will become the subjects of FOIA requests filed by persons who are interested in obtaining them. If an agency can determine in advance that a certain type of records or information is likely to be of such interest to members of the public, and that it can be disclosed without concern for any FOIA exemption sensitivity, then the agency is in a position to meet much or all of the public demand for it without the necessity of a FOIA request and the more cumbersome steps of FOIA processing. Doing so can be of mutual benefit to both the agency and the members of the public who are interested in obtaining access to such information.

In fact, making records readily available as a matter of affirmative agency practice usually is the most efficient way in which to achieve public disclosure. Most significantly, it also leaves an agency's FOIA office that much freer to devote its resources to meeting disclosure demands that can be met only through formal FOIA processes, such as where exempt records are involved. Especially in this era of extremely scarce administrative resources, it is important that an agency make efforts to apply its limited FOIA resources where they are most needed -- by avoiding any unnecessary encumbrance of its FOIA processes with requests for records that can best be disclosed through some other means.

OMB Circular A-130

Such a policy of affirmative agency information disclosure in order to meet public demands is contained in Office of Management and Budget Circular No. A-130 -- entitled "Management of Federal Information Resources" -- which has recently been revised with greater emphasis on agency information dissemination, including through electronic means. See 59 Fed. Reg. 37905 (July 25, 1994).

In accordance with OMB Circular A-130, federal agencies are paying increased attention to their responsibility to provide information to the public not just in response to the receipt of a FOIA request for it, but by "actively distributing" it "at the initiative of the agency." 59 Fed. Reg. at 37920. As part of its overall system of information resources management, each agency must determine which of its records, or potential "information products," are appropriate for such treatment. OMB Circular A-130 encourages agencies to recognize that even agency information that is not necessarily "meant for public dissemination . . . may be the subject of requests from the public," and that if an agency "establishes that there is a public demand" for that information, it "may decide to disseminate it automatically." 59 Fed. Reg. at 37922. Where an agency does so, of course, that minimizes the need for use of the FOIA in connection with that information.

Anticipation of Public Demand

The anticipation of public demand for agency records or information is not an entirely unfamiliar concept under the FOIA. The Act itself provides for the "automatic" public disclosure of basic items of information regarding agency structure and operations, through Federal Register publication under FOIA subsection (a)(1), and for the routine public availability in agency "reading rooms" of such items as final adjudicative opinions, staff manuals and certain agency policy statements under FOIA subsection (a)(2). See FOIA Update, Summer 1992, at 3-4 (detailing FOIA's "automatic" disclosure requirements).

Some agencies have built upon this "reading room" mechanism of subsection (a)(2) to meet anticipated public demands for records that are not required to be placed there under the Act. For example, the Federal Bureau of Investigation maintains a reading room into which it places copies of many of its most commonly requested files -- such as its investigative files on the assassination of Dr. Martin Luther King, Jr. -- in the form in which they previously have been processed for disclosure in response to FOIA requests made under subsection (a)(3) of the Act. These records are made available for public inspection, just as subsection (a)(2) records are, and members of the public may conveniently obtain photocopies of pages that are of particular interest to them without having to make a formal, and time-consuming, access request for them under FOIA subsection (a)(3).

It must be remembered, of course, that an agency cannot convert a subsection (a)(3) record into a subsection (a)(2) record (which cannot be the subject of a FOIA request under subsection (a)(3)) just by voluntarily placing it into its reading room. In other words, only those records that are truly required to be placed into an agency's reading room under subsection (a)(2) are subject to availability through that mechanism only; any other record can properly be sought by a FOIA requester with a request filed under subsection (a)(3) -- if the requester chooses to make one. See FOIA Update, Spring 1991, at 5 (advising that FOIA requesters may not be deprived of (a)(3) access rights through voluntary "reading room" availability). Nevertheless, agency efforts to meet public demand for records through "reading room" availability in this fashion hold strong potential for reducing the overall volume of FOIA requests.

Public Affairs Office Disclosure

Another way in which agencies disclose records most efficiently through channels other than the FOIA is through their public affairs offices, which regularly deal with a wide range of inquiries and requests for information or records from members of the news media. Typically, agency public affairs officers will work with individual offices within the agency to identify particular records that are likely to be of news media interest so that they can be made available even in advance of any request through public affairs channels. Where there is no FOIA exemption sensitivity to such records, they can be disclosed most efficiently through this non-FOIA channel once the news media interest in obtaining them is identified.

At the Department of Justice, for example, the Office of Public Affairs works closely with the Department's components to facilitate disclosure of nonexempt information and records to news media requesters. That office, led by Director of Public Affairs Carl Stern, strives to handle such requests through the most efficient means possible in each case. It encourages media requesters to narrow the focus of their interest to particular agency records and, in coordination with the Office of Information and Privacy, it actively seeks to determine whether those records are readily disclosable by the component involved. The result often is the satisfaction of such requests for agency records without any need for them to ever become FOIA requests.

Electronic Information Availability

Additionally, the use of electronic information technology holds rapidly increasing potential for meeting the needs of potential FOIA requesters without the necessity of a FOIA request. As more and more members of the public gain an "on-line" access capability, their government information needs can be met through the availability of information in electronic form. Electronic information dissemination can be highly cost-effective and is specifically encouraged for agency use under OMB Circular A-130. See 59 Fed. Reg. at 37911-12. Simply by establishing electronic sites on the Internet (see related article below), federal agencies can provide ready access to any agency record or information that the public might be interested in obtaining.

Through such affirmative disclosure mechanisms, and the proactive identification of records that most likely otherwise would be sought under the FOIA, agencies can more readily meet public access demands and reduce their FOIA workloads, thereby conserving their FOIA resources.

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The four center pages of this issue of FOIA Update contain an updated list of the principal FOIA administrative and legal contacts at federal agencies.

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