Vol. XVII, No. 4
Congress Enacts FOIA Amendments
In an action that culminates several years of legislative and administrative consideration of electronic record FOIA issues, Congress has enacted amendments to the Freedom of Information Act that address those issues and other procedural aspects of FOIA administration.
On September 17 and 18, respectively, the House of Representatives and the Senate passed H.R. 3802, a slightly modified version of a bill that was developed by the House Subcommittee on Government Management, Information, and Technology, chaired by Rep. Stephen Horn (R. Cal.). The bill received bipartisan support both in the House and in the Senate, where its principal sponsor was Sen. Patrick Leahy (D. Vt.).
Entitled the "Electronic Freedom of Information Act Amendments of 1996," the bill was signed into law by President Clinton on October 2, with the observation that it "reforges an important link between the United States Government and the American people." (See page 9 of this issue of FOIA Update for the text of President Clinton's signing statement.)
The amendments made to the Act by this new law address the subject of electronic records for the first time ever in the text of the statute. They also address the subject area of time limits and agency backlogs of FOIA requests, among other procedural provisions.
Many of the amendments will take effect after a 180-day period, but the time limit and backlog-related provisions will take effect after one year, and some other provisions have specific other effective dates for implementation. (See chart at the end of this section.) For purposes of agency implementation, the amendments can be considered within several distinct subject areas.
A major change made by the FOIA amendments involves the maintenance of agency reading rooms under subsection (a)(2) of the Act. Under that part of the FOIA, agencies are required to make three categories of records -- final opinions rendered in the adjudication of administrative cases, specific agency policy statements, and administrative staff manuals that affect the public -- routinely available for public inspection and copying. See FOIA Update, Summer 1992, at 4. (This obligation does not apply to any records that "are promptly published and [are] offered for sale." 5 U.S.C.
First, the amendments create a new category of records that will be required to receive "reading room" treatment -- a category consisting of any records processed and disclosed in response to a FOIA request that "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records." 5 U.S.C.
Second, the amendments will require agencies to use electronic information technology to enhance the availability of their reading room records. They specify that for any newly created reading room records (i.e., "records created on or after November 1, 1996"), an agency must make them available to the public by "electronic means." 5 U.S.C.
This means that as of mid-1997, agencies will begin to maintain both conventional reading rooms and "electronic reading rooms" in order to meet their FOIA subsection (a)(2) responsibilities. As of March 31, the basic effective date of the amendments, they must begin to place in their reading rooms copies of any FOIA-processed records determined to fall within the new fourth subsection (a)(2) category, just as they regularly place their other subsection (a)(2) records there. Additionally, they must identify any of their reading room records that were created on or after the November 1, 1996 cut-off date and then make those records available (by no later than the November 1, 1997 electronic access deadline) through their electronic sites as well.
For traditional subsection (a)(2) records such as administrative staff manuals, for example, virtually everything that an agency places in its reading room, in time, will be newly created and therefore will be required to be made available electronically also. (Where only part of a manual is updated, it would be advisable for the agency to place the entire manual on its electronic site, in order to avoid confusion.) In the case of FOIA-processed records, on the other hand, a very large proportion of those records will have been created prior to the 1996 cut-off date, at least as of the outset of the new law's implementation, and therefore will not be subject to the electronic availability requirement.
Accordingly, agencies will have to make it clear to the users of their electronic reading rooms that while all of their subsection (a)(2) records are available in their conventional reading rooms, only the newly created ones are available through their electronic sites. Agencies should utilize indices to facilitate use of both types of reading rooms. They are required by the amendments to maintain an index of their FOIA-processed records and to make it available on-line by December 31, 1999.
The amendments contain several provisions that pertain to the processing of FOIA requests for records in electronic form. First, they define the term "record" simply as including "any information that would be an agency record subject to the requirements of [the FOIA] when maintained by an agency in any format, including an electronic format." 5 U.S.C.
Second, they address the form or format in which a requested record is disclosed under the FOIA, requiring that "an agency shall provide the record in any form or format requested
The first of these two aspects is relatively straightforward. The requester, not the agency, ordinarily will be entitled to choose the form of disclosure when multiple forms of a record already exist; the amendments thus overrule any precedent such as Dismukes v. Department of the Interior, 603 F. Supp. 760, 763 (D.D.C. 1984), which holds to the contrary. Any further request for a record to be disclosed in a new form or format will have to be considered by an agency, on a case-by-case basis, to determine whether the records are "readily reproducible" in that form or format with "reasonable efforts" on the part of the agency. Under a separate provision of the amendments, an agency's determination regarding "reproducibility" is entitled to special deference if challenged in court. 5 U.S.C.
The amendments likewise apply a general "reasonable efforts" standard to the matter of an agency's search obligation in connection with electronic records. They provide that "an agency shall make reasonable efforts to search for [such] records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system." 5 U.S.C.
The amendments contain several different provisions pertaining to the timing of agency responses to FOIA requests, all of which take effect after one year. First, they increase the Act's basic time limit for agency responses to FOIA requests, lengthening it from ten to twenty working days. For agencies that can regularly act on their FOIA requests within the existing ten-day time limit, this change should not affect their administration of the Act.
Second, the amendments encourage agencies that experience difficulties in meeting the Act's time limits to promulgate regulations providing for "multitrack processing" of their FOIA requests, "based on the amount of work or time (or both)" that is involved in processing them. 5 U.S.C.
Third, a closely related amendment supplements the provision in the Act by which an agency may take additional time for responding to a request based upon "unusual circumstances" involved in the request -- such as the volume of records sought. 5 U.S.C.
Fourth, the amendments address the subject of general agency backlogs by limiting the conditions under which the Act's "exceptional circumstances" provision may apply. They specify that such circumstances will "not include a delay that results from a predictable agency workload of [FOIA requests], unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." 5 U.S.C.
A fifth time limit-related amendment addresses requests for "expedited processing" under the Act. The amendments require all agencies to promulgate regulations under which they will consider such requests and grant them whenever a "compelling need" is shown. The term "compelling need" is defined as (1) involving "an imminent threat to the life or physical safety of an individual," or (2) in the case of a request made by "a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C.
Under this provision, a FOIA requester may make a request for expedited processing with a certification of "compelling need." 5 U.S.C.
The amendments contain two provisions that deal with an agency's obligation to specify to a FOIA requester information that is denied in response to a request. First, in the situation in which information is deleted from a record that is disclosed in part, the amendments require that "[t]he amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the [applicable] exemption." 5 U.S.C.
A second such provision deals with the situation in which entire records, or entire pages of them, are withheld. This amendment requires an agency to "make a reasonable effort to estimate the volume" of what is withheld and "to provide any such estimate to the person making the request." 5 U.S.C.
The amendments also address the process by which agencies provide information about their administration of the FOIA, both through their annual reports to Congress and in the basic reference information that they make available to the public. First, the amendments make extensive revisions to the annual report subsection of the Act, subsection (e), modifying the content, timetable, and procedure for the filing of those reports. The statistics to be contained in annual reports under this new system will include the number of requests received, the number of requests processed, the number of requests pending as of the end of the reporting year, and the median number of days that those requests were pending. Agencies also will be required to specify the resources devoted by them to the processing of their requests, in terms of both dollars and full-time staff, and to include information about the Exemption 3 statutes upon which they rely to withhold information.
Under the amendments, the annual reporting period will change from a calendar year to a fiscal year, as of the beginning of fiscal year 1998 on October 1, 1997. Prior to that date, the Department of Justice will develop annual report guidelines for all agencies, in consultation with the Office of Management and Budget, for the compilation of fiscal year 1998 statistics and the preparation of a uniform new type of annual report. (This timetable conversion will leave a nine-month reporting period for calendar year 1997 reports to be filed under the current system.) The new annual reports will be due to be completed by February 1 of each year, in electronic form, and will be submitted to the Attorney General so that they can be made available to the public through a single World Wide Web site. Each agency also should make its annual report available for public reference in its reading room as well as through its own electronic site.
Additionally, the amendments require each agency to maintain "reference material or a guide for requesting records or information from the agency," which an agency should make publicly available in its reading room and through an electronic site, as well as upon any request. 5 U.S.C.
This reference guide should aid potential requesters in making specific requests for agency records or in learning about records and information that is readily available from the agency without the necessity of a FOIA request, including through electronic access. It should give a clear picture of the types of records maintained by the agency; the process by which FOIA requests are handled by it (including references to its FOIA regulations and any forms required to be submitted by requesters); the FOIA requester's rights to administrative appeal and judicial review; the types of FOIA litigation cases brought against the agency; and the availability of agency information through means other than the FOIA. In preparing these guides, agencies should also consult the House Report accompanying the legislation, H.R. Rep. No. 795, 104th Cong., 2d Sess. (1996).
Effective Dates and Timetable for FOIA Amendments
March 31, 1997 General effective date for many amendment provisions. October 1, 1997 Due date for Justice Department annual reporting guidelines; statistical compilation for new form of annual report begins. October 2, 1997 Effective date for provisions regarding time limits, multitrack processing, unusual circumstances, exceptional circumstances, expedited processing, and volume estimation. November 1, 1997 Deadline for making available electronically all reading room records created on or after November 1, 1996. February 1, 1999 Due date for first annual report using new form and new fiscal year timetable (report for fiscal year 1998). December 31, 1999 Deadline for making available on-line agency's index of selected FOIA-disclosed records.
The Center pages of this isuue of FOIA Update contain the text of the Freedom of Information Act in its amended form.
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