FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1998

FOIA Update
Vol. XIX, No. 1
1998


FOIA Counselor: Questions & Answers

When compiling annual FOIA report statistics that show such data as the median numbers of days required to complete the processing of requests and the median number of days that requests were pending as of the end of a fiscal year, should agencies consistently use calendar days?

Yes. Under the amended provisions of the Freedom of Information Act, 5 U.S.C. § 552(e),as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(e) (West Supp. 1997), agencies are required to track and report such data as the median numbers of days that their FOIA requests were pending as of the end of a fiscal year. See FOIA Update, Summer 1997, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports"). It would be impracticable for agencies to attempt to calculate lengthy time periods on the basis of "working" days (which would require the exclusion of all intervening weekends, holidays, and any other day on which an agency is closed for official business) in compiling their statistics for annual report purposes. Rather, they should simply count their processing times "from date of perfection to date of completion" of each request. Id. at 6.

Should agencies explore their capability to receive FOIA requests electronically through the Internet and their World Wide Web sites?

Yes. Although there is no requirement in the Freedom of Information Act (even as amended by the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048) that agencies establish the capability to receive FOIA requests through the Internet, agencies may do so as a matter of administrative discretion. Cf. FOIA Update, Summer 1989, at 5 (advising agencies regarding acceptance of FOIA requests "via facsimile ('fax') machine"). In doing so, agencies must bear in mind that a fundamental requirement under the Act is "'the need to have an adequate written record of . . . a FOIA request' in case of any eventual confusion or dispute over a request's scope." Id. (quoting Washington Post Co. v. Department of Defense, No. 84-3400, slip op. at 3 (D.D.C. Apr. 1, 1985). As agencies continue to develop their World Wide Web sites and their technological proficiency with Internet communications, they should further explore their capability to receive FOIA requests in an efficient and workable fashion electronically. Cf. FOIA Update, Summer 1997, at 1-2 (describing advanced World Wide Web site development at NASA and FDIC, agencies which now have begun to receive FOIA requests electronically). In time, the use of the Internet and World Wide Web for this purpose may become commonplace.

If a requester asks to have records disclosed in more than one existing form or format (e.g., in paper form as well as in an electronic form), is the agency obligated to disclose the records in both forms?

No, but the agency should consider complying with such a request as a matter of administrative discretion. Under new subsection (a)(3)(B) of the FOIA, 5 U.S.C.A. § 552(a)(3)(B) (West Supp. 1997), as amended by Electronic Freedom of Information Act Amendments of 1996, whenever an agency already maintains a record in more than one form or format, the requester can choose the one in which it will be disclosed. See FOIA Update, Winter 1997, at 5; FOIA Update, Fall 1996, at 2 (noting that only exception would be highly unusual case in which some existing record form could not be "readily reproduced"). Once a requester chooses one record form over another for purposes of his or her FOIA request, and the agency discloses the requested records in that chosen form, the agency has satisfied its fundamental obligation to "make the records promptly available" to the requester under the Act. 5 U.S.C.A. § 552(a)(3)(A) (West 1996 & Supp. 1997). However, any FOIA requester who has an interest in obtaining agency records in each of two alternative forms in which an agency holds them can readily pursue that interest simply by filing a second FOIA request with the agency. Therefore, as a matter of overall administrative efficiency for the agency, as well as "customer-friendly" treatment of the requester, the agency should consider simply furnishing the records in both forms, upon payment of applicable fees.

Can a small field office of a large agency meet its "electronic availability" obligation with respect to newly created reading room records under the Electronic FOIA amendments by placing those records in its local reading room in CD-ROM form?

No. Under the Electronic FOIA amendments, agencies are now obligated to make newly created reading room records (i.e., those created by the agency on or after November 1, 1996) available to the public in "electronic" form. 5 U.S.C. § 552(a)(2),as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(a)(2) (West Supp. 1997). Throughout the federal government, this obligation should be met through the development and use of agency sites on the World Wide Web. See FOIA Update, Fall 1996, at 1. While it is true that Congress phrased this obligation as possibly satisfied by "other electronic means" (such as CD-ROM form), it provided so only "if computer telecommunications means have not [yet] been established by the agency." 5 U.S.C.A. § 552(a)(2) (West Supp. 1997). So once an agency has established its World Wide Web capability, all of its components should use it to meet their "electronic reading room" obligations. See, e.g., FOIA Update, Summer 1997, at 1-2.

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