Vol. XIV, No. 3
The "Reasonable Segregation" Obligation
The disclosure provisions of the Freedom of Information Act, 5 U.S.C.
The obligation to consider individual portions of records for disclosure under the FOIA is placed upon agencies by the explicit language of the statute itself. Subsection (b) of the Act, which enumerates the exemptions from disclosure, concludes with the following overall requirement:
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
This requirement was added to the FOIA through the 1974 amendments to the Act, which strengthened its disclosure requirements in several respects. Prior to that time, agencies sometimes took an unacceptably broad "document-by-document" approach to FOIA processing. See, e.g., Sterling Drug, Inc. v. FTC, 450 F.2d 698, 704 (D.C. Cir. 1971). The clear purpose of this statutory requirement, however, is to "prevent the withholding of entire [documents] merely because portions of them are exempt, and to require the release of nonexempt portions." Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 14 (Feb. 1975). It was enacted in conjunction with a companion provision of the 1974 FOIA amendments which authorizes judicial review by the courts, through in camera review where necessary, to determine whether "records or any part thereof" are properly withheld under the Act. 5 U.S.C.
The courts have focused upon and enforced this statutory requirement with increasing intensity in recent years. During the past two years, the Court of Appeals for the D.C. Circuit has issued a series of four decisions dealing with the "reasonable segregation" mandate, in each case finding insufficient evidence of agency compliance with it. Together, they illustrate the importance of careful compliance with this obligation at all stages of the FOIA process.
In the first of these four cases, Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), the D.C. Circuit dealt with the defendant agency's withholding of five documents, in their entireties, regarding the agency's implementation of a certain statutory scheme. After inspecting the documents in camera, and reviewing the agency's supporting affidavit, the D.C. Circuit was not satisfied that the three exemptions cited by the agency, Exemptions 2, 5, and 7(E), covered all "particular passages" in the documents. 964 F.2d at 1209. Declaring that "[t]he district court did not hold the [agency] to its obligation to disclose reasonably segregable information," the court of appeals remanded the case back to the district court "to determine whether or not the documents contain passages that can be segregated and disclosed." Id. at 1210.
The D.C. Circuit next confronted this issue in PHE, Inc. v. Department of Justice, 983 F.2d 248 (D.C. Cir. 1993), a case involving contrasting approaches to segregation by two different components of the Justice Department. When the requester sought separate manuals on the enforcement of obscenity laws from the FBI and the Department's Criminal Division in that case, the FBI released most of its manual, withholding only "portions" of the requested information under Exemptions 2 and 7(E). 983 F.2d at 250. By contrast, the other component withheld "vast sections" of its manual, "in their entirety," without explaining why no portions of them could be segregated for release as nonexempt. Id. at 251. Remanding this case for further attention to such segregability, the D.C. Circuit pointedly declared that "a district court errs when it approves the government's withholding of information under the FOIA without making an express finding on segregability." Id. at 252.
Soon thereafter, the D.C. Circuit applied this rule firmly even in a case involving documents withheld on national security grounds. In Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993), the documents in question pertained to sensitive matters of foreign relations and international terrorism. Nevertheless, the D.C. Circuit accepted the requester's argument that even such documents withheld under Exemptions 1 and 3 should be subject to the same segregation requirements as apply under other exemptions; accordingly, it remanded the case for "specific findings on segregability regarding each of the withheld documents." 984 F.2d at 467.
Most recently, the D.C. Circuit likewise remanded a case involving information withheld on the basis of the deliberative process privilege under Exemption 5. In Army Times Pub. Co. v. Department of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993), the requested information consisted of the results of surveys conducted on Air Force working conditions -- some of which were disclosed by the Air Force and some of which were not. The district court upheld the Air Force's use of Exemption 5, but it did so without making any finding on the issue of segregability, which the D.C. Circuit found to be clear "error." 998 F.2d at 1068. It therefore reversed that lower court decision, emphasizing that the defendant agency "has the burden of demonstrating that no reasonably segregable information exists within the documents withheld." Id.
Thus, the D.C. Circuit has made it increasingly clear that compliance with the "reasonable segregation" mandate is an essential element of proving compliance with the Act -- one involving three distinct levels of obligation. Most directly, it now has placed an obligation on district courts to make specific "findings on segregability" when ruling in an agency's favor in a FOIA case; the failure to do so, it has held, can be "reversible error" in and of itself.
In turn, this obligates the defendant agency in a FOIA lawsuit to provide a firm evidentiary basis for such district court findings. An agency's evidentiary submissions should attest not only to the applicability of FOIA exemptions regarding all information withheld, but to the agency's specific adherence to the Act's segregability requirement regarding that information as well.
At bottom, this all rests on the quality of the agency's document "processing" at the administrative level, where the "reasonable segregation" obligation must be adhered to in anticipation of possible litigation. And regardless of whether a particular FOIA request proceeds to litigation, the obligation nonetheless is the same -- it "applies to all documents and all exemptions in the FOIA." Center for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984).
In meeting this obligation to segregate out and disclose nonexempt portions of requested records, agencies should be mindful that "[t]he focus of the FOIA is information, not documents," and that as a rule, "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). This requires close attention to the character of individual information segments.
The D.C. Circuit has suggested that this standard should be met by "look[ing] to a combination of intelligibility and the extent of the burden in 'editing' or 'segregating' the nonexempt material." Yeager v. DEA, 678 F.2d 315, 322 n.16 (D.C. Cir. 1978). Absent any truly "significant costs on the agency," though, the primary consideration should be the "informational value" of what can be disclosed. Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981); accord Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 14-15 (Feb. 1975) (identifying "intelligibility" as key factor and advising that "doubts
Moreover, an agency's detailed efforts to disclose record portions of any "informational value" to FOIA requesters under this requirement will further the strong spirit of openness and the presumption of disclosure that are established in Attorney General Reno's FOIA Memorandum. Such efforts should go hand-in-hand with the more particularized record review now required by the "foreseeable harm" standard and its accompanying emphasis on discretionary disclosure of arguably exempt information. As Attorney General Reno's FOIA Memorandum specifically suggests, greater focus on information disclosure at the margins of exemption applicability should be beneficial to the entire process of FOIA administration.
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