FOIA Update: OIP Guidance: Electronic FOIA Amendments Implementation Guidance Outline

January 1, 1998

FOIA Update
Vol. XIX, No. 1
1998

OIP Guidance


Electronic FOIA Amendments Implementation Guidance Outline

The following is an outline of implementation guidance provided by the Department of Justice to date on various issues pertaining to the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048:

Reading Rooms

Statutory references: Subsection (a)(2) of the Freedom of Information Act, 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) (including new subsections (a)(2)(D) and (a)(2)(E)).

• The Electronic FOIA amendments establish a new fourth category of "reading room" records: FOIA-processed records that the agency determines are likely to be the subject of subsequent requests for substantially the same records. See FOIA Update, Fall 1996, at 1.

• Agency personnel should determine which FOIA-processed records fall within this new reading room category based upon their familiarity with the records' subject matter, their knowledge of FOIA requests received in the past, and their best judgment of the types of requests likely to be received by their agency in the future. See FOIA Update, Winter 1997, at 4; FOIA Update, Fall 1996, at 1.

• Agencies should place in their reading rooms all records determined to fall within this new category, regardless of their form or format. See FOIA Update, Winter 1997, at 4.

• Agencies must process any FOIA request received for such records even after placing those records in their reading rooms, if the requester so chooses. See FOIA Update, Winter 1997, at 3 (citing House Report); FOIA Update, Fall 1996, at 1.

• In some cases involving "first-party" requests, agencies must delete any information the disclosure of which would violate the Privacy Act or the Trade Secrets Act before placing FOIA-processed records in their reading rooms. See FOIA Update, Winter 1997, at 3; FOIA Update, Fall 1996, at 1.

• Agencies do not have to make available in their reading rooms any records that are promptly published and offered for sale. See FOIA Update, Winter 1997, at 4; FOIA Update, Fall 1996, at 1.

• Larger agencies with multiple components and decentralized FOIA operations may have separate reading rooms for each agency component. See FOIA Update, Winter 1997, at 4.

• In making determinations as to whether records fall into the new reading room category, agencies should keep in mind that its purpose is to reduce the number of future requests for the same information -- so if certain records are of interest to only a finite group of requesters who have already made a "flurry" of requests, there should be no need to make those records available in an agency's reading room. See FOIA Update, Spring 1997, at 2 (citing House Report).

• Agency personnel should use their judgment as to the length of time that records determined to fall within the new reading room category should continue to be maintained in a reading room. See FOIA Update, Winter 1997, at 4.

• Additionally, agencies are required, as of November 1, 1997, to make all reading room records created by them on or after November 1, 1996, available electronically. See FOIA Update, Spring 1997, at 1; FOIA Update, Fall 1996, at 1-2.

• In order to meet this requirement most efficiently, all agencies should have established World Wide Web sites, as of November 1, 1997, for this purpose. See FOIA Update, Winter 1997, at 4; FOIA Update, Fall 1996, at 1; see, e.g., FOIA Update, Winter 1998, at 2; FOIA Update, Summer 1997, at 1-2.

• The electronic availability obligation applies not only to records in the new fourth reading room category, but also to more "traditional" reading room records such as administrative staff manuals as they are updated to replace those created prior to November 1, 1996. See, Fall 1996, at 2.

• If only part of a reading room record such as a manual is updated, an agency should try to make the entire manual available electronically in order to avoid confusion. See FOIA Update, Fall 1996, at 2.

• An agency must maintain a record in its conventional "paper" reading room even if that record is placed in its "electronic reading room." See FOIA Update, Winter 1997, at 3 (citing House Report); FOIA Update, Fall 1996, at 2.

• As an alternative, agencies may use computer terminals placed in their conventional reading rooms to provide access to records maintained in their "electronic reading rooms," instead of maintaining those records in paper form --so long as any reading room user is able to obtain a copy of any record sought. See FOIA Update, Winter 1997, at 3.

• Once an agency has established "computer telecommunications means" (i.e., an Internet capability and World Wide Web site that can be used for FOIA purposes), all of its components and field offices must use the agency's "electronic reading room" means of satisfying their electronic availability requirements with respect to their newly created reading room records. See FOIA Update, Winter 1998, at 6.

• For decentralized agencies, each agency component's "electronic reading room" should be linked together through the agency's main FOIA "home page." See FOIA Update, Winter 1997, at 4; see also FOIA Update, Summer 1997, at 1-2.

• A record created prior to November 1, 1996, but processed for disclosure with deletions after November 1, 1996, is not subject to the electronic availability requirement. See FOIA Update, Winter 1997, at 5.

• Only records created by the agency are subject to the electronic availability requirement. See FOIA Update, Winter 1997, at 4-5.

• If an agency chooses as a matter of administrative discretion to make records available electronically that were created by an outside party, it must guard against the possibility that such dissemination might be regarded as copyright infringement. See FOIA Update, Winter 1997, at 5; see also FOIA Update, Winter 1985, at 3-4; FOIA Update, Fall 1983, at 4-5.

• Agencies should not have to "image" any written signatures appearing on adjudicatory decisions that are made available in "electronic reading rooms." See FOIA Update, Spring 1997, at 2.

• Agencies should maintain and make available a copy of a current subject-matter index of all reading room records, which should be updated at least quarterly. See FOIA Update, Summer 1992, at 4.

• Agencies should create an index of the FOIA-processed records in the new reading room category, to be made available electronically by no later than December 31, 1999. See FOIA Update, Winter 1997, at 3; FOIA Update, Fall 1996, at 2.

• Agencies should make it clear that generally only records created after November 1, 1996, are available electronically. See FOIA Update, Fall 1996, at 2.

• Agencies should try to make clear to their reading room users exactly which of their records are available in which form. See FOIA Update, Winter 1997, at 3; FOIA Update, Fall 1996, at 2.

Form or Format of Disclosure

Statutory reference: New subsection (a)(3)(B) of the Act, 5 U.S.C.A. § 552(a)(3)(B) (West 1996 & Supp. 1997).

• The Electronic FOIA amendments address form or format issues in two basic situations: (1) the situation in which records already exist in more than one form or format; and (2) the situation in which FOIA requesters ask for disclosure in a new form or format. See FOIA Update, Fall 1996, at 2.

• In the first situation, a requester's choice among existing forms or formats must be honored, as a new general rule, unless there would be exceptional practical difficulty in doing so. See FOIA Update, Winter 1997, at 5; FOIA Update, Fall 1996, at 2; cf. Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292, 296 (D.D.C. 1997) (involving "visicorder charts" too fragile to be photocopied without damage).

• 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), an agency is not obligated to comply but should consider doing so as a matter of administrative discretion. See FOIA Update, Winter 1998, at 6.

• In the second situation, an agency must make "reasonable efforts" to produce records in the new form or format requested by the requester when the information is "readily reproducible" in that new form or format. See FOIA Update, Winter 1997, at 5; FOIA Update, Fall 1996, at 2.

• Agencies should consider all circumstances involved, including the nature of the existing record form or format and the extent of any conversion effort required, before determining whether to comply with a request to produce records in a particular new form or format. See FOIA Update, Winter 1997, at 5.

• The Electronic FOIA amendments do not require agencies to change their records-maintenance or records-disposition practices. See FOIA Update, Winter 1997, at 5-6 (citing House Report).

Electronic Searches

Statutory references: New subsections (a)(3)(C) and (a)(3)(D) of the Act, 5 U.S.C.A. § 552(a)(3)(C), (a)(3)(D) (West 1996 & Supp. 1997).

• The Electronic FOIA amendments codify existing agency practice by specifying that the Act applies to information maintained in electronic form. See FOIA Update, Fall 1996, at 2.

• The term "search" now expressly includes the electronic review of agency records in order to respond to a FOIA request. See FOIA Update, Fall 1996, at 2.

• Agencies must make "reasonable efforts" to conduct searches for information maintained in electronic form, except when doing so would "significantly interfere" with the agency's automated system. See FOIA Update, Fall 1996, at 2.

• Such determinations must be made on a case-by-case basis. See FOIA Update, Winter 1997, at 6; FOIA Update, Fall 1996, at 2.

• Electronic searches for records or information are not regarded as involving the creation of new records under the Act. See FOIA Update, Winter 1997, at 6 (citing House Report).

Deletion/Withholding of Information

Statutory references: New subsection (a)(6)(F) of the Act, 5 U.S.C.A. § 552(a)(6)(F) (West 1996 & Supp. 1997), and new provisions at the conclusion of subsection (b) of the Act, 5 U.S.C.A. § 552(b) (concluding sentences) (West 1996 & Supp. 1997).

• Agencies should indicate the amount of information deleted at the point in the record where the deletion is made, whenever it is "technically feasible" to do so given the nature and complexity of the record involved. See FOIA Update, Winter 1997, at 6; FOIA Update, Fall 1996, at 10.

• The "deletion specification" requirement applies to paper records as well as to electronic ones, and it essentially codifies the sound administrative practice of using markings to inform requesters of both what and where information is being withheld. See FOIA Update, Fall 1996, at 10.

• Agencies should use electronic markings, equivalent to deletion markings on paper records, to meet this requirement for information disclosed in electronic form. See FOIA Update, Winter 1997, at 6.

• Agencies also now must advise requesters of the estimated volume of what is being withheld when entire documents or document pages are withheld by them--by providing exact page counts in relatively small-volume cases, page-count estimates in large-volume cases, or estimates in some other applicable form of measurement (e.g., boxes, linear feet, kilobytes, or an electronic "word count"). See FOIA Update, Spring 1997, at 2; FOIA Update, Fall 1996, at 10-11.

• In any exceptional case in which indicating either a deletion or the volume of information withheld would harm an interest protected by a FOIA exemption, it is not required. See FOIA Update, Fall 1996, at 10, 11.

Annual FOIA Reports

Statutory reference: Revised subsection (e) of the Act, 5 U.S.C.A. § 552(e) (West 1996 & Supp. 1997).

• The Act's new annual report format and timetable take effect as of the annual report for fiscal year 1998, due on February 1, 1999 -- leaving a nine-month transition period for the 1997 annual report under the old format and procedural requirements. See FOIA Update, Winter 1997, at 6; FOIA Update, Fall 1996, at 11.

• Agencies should follow the Justice Department's guidelines for the preparation and submission of annual FOIA reports, beginning with the report for fiscal year 1998. See FOIA Update, Summer 1997, at 3-7.

• When compiling annual FOIA report statistics showing such data as the median numbers of days that requests were pending as of the date of completion or as of the end of a fiscal year, agencies should simply use calendar days in their time calculations. See FOIA Update, Winter 1998, at 6; FOIA Update, Summer 1997, at 6.

• As of February 1, 1999, all agencies should make their annual reports publicly available through their individual World Wide Web sites; the Justice Department will provide additional electronic access to all agencies' annual reports through a single World Wide Web site linked to individual agency sites. See FOIA Update, Summer 1997, at 7.

Miscellaneous

Larger agencies with decentralized FOIA operations should allow individual components to maintain multitrack processing systems according to their individual circumstances. See FOIA Update, Winter 1997, at 6; FOIA Update, Fall 1996, at 10.

• Although there is no requirement in the Electronic FOIA amendments that they do so, agencies should explore their capability to receive FOIA requests electronically through the Internet and their World Wide Web sites. See FOIA Update, Winter 1998, at 6; cf. FOIA Update, Summer 1997, at 1-2; FOIA Update, Summer 1989, at 5.

• The effective dates of the Electronic FOIA amendments' various provisions range from March 31, 1997, to December 31, 1999. See FOIA Update, Fall 1996, at 11 (chart).

• Until an agency has its regulations in place, it should nonetheless apply all effective statutory provisions -- without any disadvantage to FOIA requesters. Cf. FOIA Update, Winter/Spring 1987, at 2 (advising agencies to follow comparable rule during implementation of 1986 FOIA amendments).

Primary Reference Materials

• Department of Justice Guidelines for Agency Preparation and Submission of Annual FOIA Reports, published in FOIA Update, Summer 1997, at 3-7.

• Office of Management and Budget Guidance on Developing a Handbook for Individuals Seeking Access to Public Information (Apr. 7, 1997).

• Department of Justice Freedom of Information Act Reference Guide (Aug. 1997; updated Feb. 1998).

• Freedom of Information Act Guide & Privacy Act Overview (Sept. 1997 ed.) (containing "Justice Department Guide to the Freedom of Information Act," including new "FOIA Reading Room" section).

• Revised Department of Justice Freedom of Information Act Regulations, 62 Fed. Reg. 45,184 (to be codified at 28 C.F.R. pt. 16) (proposed Aug. 26, 1997).

• Text of Freedom of Information Act, 5 U.S.C. § 552 (1994), as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552 (West 1996 & Supp. 1997), reprinted in FOIA Update, Fall 1996, at 3-9 (interlineated to show all statutory modifications).

• Text of statement issued by President Clinton upon signing Electronic Freedom of Information Act Amendments of 1996 into law on Oct. 2, 1996, reprinted in FOIA Update, Fall 1996, at 9.

• H.R. Rep. No. 104-795 (1996).

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