Vol. VI, No. 4
The Mechanics of FOIA Processing
Each year the federal government receives more than a quarter of a million Freedom of Information Act and Privacy Act requests for access to its records. These requests are directed to agency disclosure offices, which are staffed by attorneys, paralegals, access professionals and secretaries who have developed considerable expertise in all administrative aspects of implementing federal access statutes.
Each federal agency has by now refined its own in-house procedures for handling FOIA and Privacy Act access requests. Individual agency practices, of course, must be patterned to each agency's particular functions and recordkeeping requirements. But when it comes to the "nitty-gritty" processes of excising records, keeping track of FOIA requests, and communicating with requesters, it is remarkable how similar things are from one agency to the next.
When it comes to the mechanics of record review and excision, perhaps no agency is more representative than the Federal Bureau of Investigation.
"At the FBI, while we release nearly a million document pages per year, we use fairly standard methods for redacting records that have been requested under the FOIA or the Privacy Act," says Marvin E. Lewis, Assistant Chief of the FBI's FOIA/PA Section.
"A work copy must first be made from the original records, whether they are hard file or on microfilm. The actual processing and review is then conducted utilizing the work copy. Information exempt from disclosure is redacted by lining through it with a soft felt-tip pen. Since you can see through the lines these pens make," Lewis explains, "the analyst's supervisor can review his or her work. Also, this see-through version is the copy we retain in our files for appeal or litigation purposes."
Lewis continues: "When the see-through or work copy of the records is fed through copy machines with specially equipped filters, the redacted information will be blacked out and illegible. This is the copy that is sent to the requester.
"In addition, the FBI usually places marginal notations on the documents specifying the statutory exemption that applies to any information being withheld." This allows the requester to correlate the FOIA/PA exemptions with the words or lines that have been deleted.
There is at least one aspect of the FBI's FOIA operation, though, that may be unique. "We have an on-line computer system for logging in and tracking the progress of FOIA/PA requests," says Lewis. "Very few agencies have such a computer system."
The FBI's computer system maintains such information as the name and address of each requester, the subject matter, when the request was received and closed, the number of pages processed and released, and which exemptions, if any, were cited. In all, some thirty-one categories of information may be gathered and stored in the computer's data bank. The system also generates the initial acknowledgment letter to the requester.
Using this computer system, the FBI prints out a monthly report of all activity for the chief of the FOIA/PA Section. "It is a management tool," Lewis explains. "It tells us how the program as a whole is functioning. It provides us data concerning the overall workload and productivity of the FOIA/PA Section, enables us to make forecasts for future budgetary needs, and compiles data for the annual report to Congress."
Most other agencies, even those with large-volume FOIA operations, are not nearly so automated in their tracking of FOIA processing. But manual systems can work quite well.
"At the Bureau of Alcohol, Tobacco and Firearms, we have instituted a manual system for logging in FOIA/PA requests," says Robert L. Pritchett, Chief of BATF's Disclosure Branch.
"It's all done numerically," notes Pritchett. "Each request is assigned a six-digit number -- the first two digits correspond to the last two digits of the current year, the last four digits are assigned sequentially, based on the number of FOIA/PA requests received in that year.
"Our goal is to capture all the data when we first receive the request," Pritchett explains. "We've developed a six-part form that is three pages long. The first page serves as an acknowledgment letter. Basically, we inform the requesters that we have received their letters and that they will get an answer from us in ten working days."
The second part of BATF's form is a document search request, which is forwarded to the offices that maintain the pertinent filing systems. They locate all records within the scope of the request and, when they transfer those records for processing, they tear off the top part of the form and put it in their files to indicate that original records have been transferred to the Disclosure Branch.
"The third page of our form is divided into three parts," Pritchett continues. "The first part is a log card. It includes all the information necessary to prepare our annual report to Congress. The second part is the master index card and the last part is a 'tickler.' The 'tickler' reminds us when our ten-day response to the requester is due. At that point, we've usually completed processing the records and are ready to forward them to the requester. If this is not the case, the 'tickler' reminds us to write to the requester to invoke an extension of time in which to complete the processing of his request."
Pritchett takes pride in the fact that, during his twelve-year tenure at BATF, the appeal rate has been less than three percent. "One reason for this low level of appeals is our cover letters," he concludes. "When we withhold information, we always give the requester a good idea of what we're withholding."
Indeed, most federal agencies realize the importance of sending clear and comprehensive cover letters to requesters.
"I use the cover letter as a key to the FOIA or Privacy Act exemptions that I asserted to excise information -- it's a coded approach," says Linda M. Keener, the administrative appeals specialist at the Federal Emergency Management Agency.
"For example," says Keener, "when I review appealed records for release under the FOIA or the Privacy Act, I may make notations in the margins to indicate that information is being withheld under Exemption 5 of the FOIA. But instead of writing '(b)(5),' I will write '# 1' next to every (b)(5) deletion. Or if it's Exemption 4 information, I will write '#2' Then I'll put a key in the cover letter explaining this system. Of course, '#1' can indicate information that has been withheld under any FOIA or Privacy Act exemption -- this is just an example.
"In another case," Keener continues, "all the deleted information may have been withheld under Exemption 4 alone. Then I clearly indicate all of the information that has been deleted. In my cover letter, I will mention that all the excisions were made under Exemption 4 and that the deletions represent a list of key personnel, organizational structure, or financial information that reflects how a company arrived at its cost figures or a bid proposal -- whatever the case may be. In the cover letter, I will also specify whether additional information is being released on appeal, or that the appeal has been granted or denied in full."
Indeed, the importance of cover letter specifications cannot be over-emphasized. One agency official recalls FOIA case, Warren v. Department of Justice, Civil No. 82-2927 (D.D.C. July 29, 1983), in which the plaintiff claimed that he'd never received certain documents prior to suing. Although the agency insisted that it had in fact mailed all of the records, it had never specified that clearly in its cover letter. Unfortunately, the court therefore accepted the requester's story and forced the government to pay his attorney's fees as a result.
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