FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1985

FOIA Update
Vol. VI, No. 2
1985


FOIA Counselor: Questions & Answers

Are FOIA lawsuits routinely entitled to priority in court over other civil actions?

No. Subsection (a)(4)(D) of the FOIA, which was added as part of the 1974 Amendments to the Act, provided that except for matters which a court considered to be of "greater importance," FOIA cases were to automatically "take precedence on the docket over all cases . . . and [be] expedited in every way." However, this provision was repealed by Section 402 of the Federal Courts Improvement Act of 1984, Pub. L. No. 98-620, 98 Stat. 3335, 3357 (1984). This new statute now provides instead that courts themselves are to determine the order in which actions are to be adjudicated, subject to certain narrow exceptions and subject to the proviso that any civil action, including a FOIA case, shall be expedited "if good cause therefor is shown." Id. at § 401(a), 98 Stat. at 3356, to be codified at 28 U.S.C. § 1657(a) (1985). Under this statutory provision, such "good cause" is deemed shown if a right under a federal statute (specifically including the FOIA) "would be maintained in a factual context that indicates that a request for expedited consideration has merit." Id. This definition of "good cause" was included in this replacement statute in recognition of the fact that in some cases the "[p]rompt review of decisions denying access to government information is critical to FOIA users and to the purposes of the Act." H. Rep. No. 98-985, 98th Cong., 2d Sess. 6 (1984), reprinted in 1984 U.S. Cong. & Ad. News 5779, 5783. Thus, even though FOIA cases are no longer automatically entitled to expedited adjudication in court, some FOIA cases may still qualify for such treatment under the new law.

Can a FOIA requester require an agency to make "automatic" releases of its records as they are created?

No. It is a well-settled principle of FOIA law that "[t]he Act compels disclosure only of existing records." Nolen v. Rumsfeld, 535 F.2d 890, 891 (5th Cir. 1976), cert. denied, 429 U.S. 1104 (1977). The Supreme Court emphasized this point in its decision in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), in which it also specifically concluded, based upon the FOIA's legislative history, that "agencies generally are not obligated to provide extensive services in fulfilling FOIA requests." 445 U.S. at 154. Indeed, in the few cases to have raised the issue of "prospective" FOIA requests the courts have uniformly held that such requests are not proper. As long ago as 1969, for example, the U.S. Court of Appeals for the Seventh Circuit rejected the argument that the FOIA entitles requesters to automatically receive updates of existing requested documents, because acceptance of such a notion would mean that agencies could be required to "run what might amount to a loose-leaf service" for FOIA requesters. Tuchinsky v. Selective Service System, 418 F.2d 155, 158 (7th Cir. 1969). Likewise, when a FOIA requester contended that an agency was obligated to provide "automatic mailings of updated materials," the U.S. Court of Appeals for the First Circuit found that there is nothing in the law which "imposes such an explicit mandate on agencies." Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978). Most recently, the U.S. Court of Appeals for the Eleventh Circuit has also declared: "Nothing in the FOIA can be construed as requiring an agency to set up a mailing list to automatically disseminate agency records or information." Mandel Grunfeld & Herrick v. United States Customs Service, 709 F. 2d 41, 43 (11th Cir. 1983). See also Disabled Officer's Association v. Rumsfeld, 428 F. Supp. 454, 459 (D.D.C. 1977) ("The FOIA obligates an agency only to produce non-exempt records and information which it presently has . . . ."),aff d on other grounds, No. 77-1504 (D.C. Cir. Apr. 18, 1978); but see also McGehee v. CIA, 697 F.2d 1095, 1102-03 & nn.29-30 (D.C. Cir. 1983). (For the "automatic" publication and inspection provisions of the FOIA, see subsections (a)(1) and (a)(2) of the Act.)

Can the deliberative process privilege under Exemption 5 be invoked to withhold the identities of authors of predecisional documents?

Yes, under some circumstances. The deliberative process privilege, as it is incorporated into Exemption 5, recognizes the necessity of protecting an agency's decisionmaking process leading up to the adoption of final agency policy. See generally Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866-68 (D.C. Cir. 1980). Underlying the need for such protection of the decisionmaking process is the importance of encouraging open and candid advice, recommendations and exchanges of views within an agency. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-52 (1975). However, the privilege protects from disclosure only that information which, if disclosed, would harm the deliberative "process," Montrose Chemical Corp. v. Train, 491 F.2d 63, 68-71 (D.C. Cir. 1974), not simply all deliberative "materials," ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1239 (D.C. Cir. 1983), rev'd on other grounds, 104 S. Ct. 1936 (1984).

In many circumstances, disclosure of the name of the agency employee who authored a document will not in any way harm the agency's deliberative process. For example, it may be obvious that an agency head would act on a particular matter only after having received the advice of the assistant secretary responsible for that program area; in such a situation, it cannot be said that the identity of the advising official is sensitive and that its disclosure would impair the agency's decisionmaking process. On the other hand, where any one of several individuals could be responsible for providing a recommendation to a decisionmaker, it is possible that identification of the actual advisor could cause sufficient impairment to justify Exemption 5 protection. See, e.g., City of West Chicago v. NRC, 547 F. Supp. 740, 750 (N.D. Ill. 1982) (list of "contributors" to draft document held properly protectible in order to keep them "free of publicity and the concomitant need to justify in public their tentative opinions"). See also Brinton v. Department of State, 636 F.2d 600, 604 (D.C. Cir. 1980) ("If these agency records are indeed deliberative, it is appropriate to apply Exemption 5 to the documents themselves, as well as to the names of their authors."), cert. denied, 452 U.S. 905 (1981); Tax Reform Research Group v. IRS, 419 F. Supp. 415, 423-24 (D.D.C. 1976) ("One aspect of the deliberative process . . . protected by exemption (b)(5) is the identity of persons giving particular advice on a policy matter."); cf. Deuterium v. United States, 4 Ct. Cl. 361, 365 (1984) (names of agency evaluators found privileged in civil discovery context).

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