Vol. XVIII, No. 1
Amendment Implementation Questions
The following is a compilation of questions raised concerning provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, and answers provided to guide agency implementation of those provisions:
Should agencies automatically place in their reading rooms the FOIA-processed records that they determine have become, or are likely to become, the subject of subsequent FOIA requests?
Yes, but only after first considering the small possibility that some of those records, or portions of them, might not be appropriate for public disclosure. New subsection (a)(2)(D) of the FOIA, 5 U.S.C.
Does an agency have an obligation to comply with any subsequent FOIA requests that it receives for the FOIA-processed records that it places in its reading room under new FOIA subsection (a)(2)(D)?
Yes. Although the ordinary rule for records that are placed in an agency's reading room under FOIA subsection (a)(2) is that they cannot be the subject of a regular FOIA request under the Act, see, e.g., FOIA Update, Winter 1995, at 2 (pointing to language of subsection (a)(3)), Congress made clear that it did not intend this rule to apply to the FOIA-processed records that agencies place in their reading rooms under new subsection (a)(2)(D). See H.R. Rep. No. 104-795, at 21 (1996) ("Since not all individuals
Does an agency have an obligation to place a record in its regular reading room even if it has made that record available to the public in its "electronic reading room" through its Internet or World Wide Web site?
Yes. Many persons do not yet have the capability to access an agency's "electronic reading room" on its Internet or World Wide Web site and such persons would no longer have potential reading room access to newly created records under subsection (a)(2) if those records were made available through remote, on-line access only. So records that are made available on-line in an agency's "electronic reading room" should continue to be made available in the agency's conventional reading room as well. See H.R. Rep. No. 104-795, at 21 (1996) (recognizing that "not all individuals have access to computer networks"); see also FOIA Update, Fall 1996, at 2.
Can an agency meet its reading room obligation for a record by having in its conventional reading room a computer terminal through which it affords any person on-line access to that record in the agency's "electronic reading room" instead of access to it in paper form?
Yes, so long as the agency provides the means by which a person who uses that reading room can exercise his or her statutory right to obtain a copy of any reading room record that is made available for public inspection in that way. See 5 U.S.C.
How quickly must agencies provide electronic access to reading room records?
The requirement to provide electronic access to reading room records applies to newly created records -- i.e., "records created on or after November 1, 1996" -- and it carries an initial statutory deadline of "within one year after such date" -- i.e., November 1, 1997. 5 U.S.C.
Will materials that are published and sold need to be made available electronically?
No. The language of the statute has always provided that any records that are "promptly published and offered for sale" are not subject to the requirements of FOIA subsection (a)(2). 5 U.S.C.
If an agency's FOIA operations are decentralized, may it have more than one reading room?
Yes. Many federal agencies have so many distinct components that they administer the FOIA on a decentralized basis. Such agencies may maintain separate reading rooms for all or some of their component subagencies or offices, including field offices, so long as their FOIA regulations clearly specify all of their reading room locations. For new "electronic reading rooms," some subagencies might be so large that they maintain separate Internet or World Wide Web sites -- with on-line access to each obtained through an entirely separate "home page" -- in which case the agency should ensure that all of its separate "FOIA reading room" sites are linked together electronically so as to facilitate efficient user access.
Who should determine which records fall within the new "subsequent requests" category of subsection (a)(2)(D)?
Each agency, or agency component that processes FOIA requests on a decentralized basis, should determine which of its FOIA-processed records "have become or are likely to become the subject of subsequent requests for substantially the same records" and therefore fall within this new reading room record category. See 5 U.S.C.
What does the phrase "regardless of form or format" in new subsection (a)(2)(D) mean?
The phrase "regardless of form or format" means that agencies must place in their reading rooms copies of all FOIA-processed records that they determine fall into this new "subsequent requests" category, even if those records exist in some form other than conventional paper form -- for example, audiotape, videotape, or some electronic form. Agencies should make these FOIA-disclosed records available in a way that facilitates their inspection by subsequent potential FOIA requesters, so as to best serve this provision's underlying objective of "diverting some potential FOIA requests for previously-released records." H.R. Rep. No. 104-795, at 21 (1996); see also FOIA Update, Fall 1996, at 1.
How long should agencies maintain the availability of records in their reading rooms, particularly the availability of FOIA-processed records determined to fall within new subsection (a)(2)(D)?
As a general rule, an agency should continue to maintain a subsection (a)(2) record in its reading room for as long as it remains current. The policy statements and administrative staff manuals that agencies place in their reading rooms under subsections (a)(2)(B) and (a)(2)(C), for example, should remain available there for public reference purposes until they are replaced by superseding documents or otherwise are no longer in effect. See FOIA Update, Summer 1992, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)"). The FOIA-processed records placed within agency reading rooms under new subsection (a)(2)(D) are to be made available there for the purpose of "help[ing] to reduce the number of multiple FOIA requests for the same records requiring separate agency responses," H.R. Rep. No. 104-795, at 21 (1996), and should be maintained there to serve that purpose. After a lengthy period of time, agencies may determine that some such records no longer fall within this reading room category.
Should an agency's "electronic reading room" obligation apply to records that were generated outside the agency and then were obtained by the agency on or after November 1, 1996?
No. In enacting the Electronic FOIA amendments, Congress established this new "electronic reading room" obligation for all categories of reading room records, but it did so only "[f]or records created on or after November 1, 1996." 5 U.S.C.
By contrast, many agencies will deal with records in the new fourth reading room category that were not generated by them, but rather were generated elsewhere and were merely obtained by them for one purpose or another -- for example, documents submitted to regulatory agencies by regulated businesses or organizations. While such records may be determined by an agency to fall within new subsection (a)(2)(D), they are not "created" by the agency and should not be regarded as subject to the new electronic availability requirement. Accord United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989) (recognizing that agencies "either create or obtain" records that become subject to FOIA). An agency may choose as a matter of administrative discretion to make such records available electronically in any case in which it determines that to do so would be most cost-effective in serving public access needs under subsection (a)(2)(D). However, any agency that gives "electronic reading room" treatment to a record that an outside party has created should guard against the possibility that such extraordinarily wide dissemination of the record (as opposed to conventional reading room availability) might be regarded as copyright infringement by that outside party. Cf. FOIA Update, Fall 1983, at 4-5 (advising that ordinary FOIA disclosure usually will be "fair use" under copyright law); see also FOIA Update, Winter 1985, at 3-4 (advising that proprietary interest holders should be given an opportunity to claim "adverse market effect" in cases of exceptional intrinsic value).
When a record is now processed for FOIA disclosure, and is disclosed with redactions, does that make it a newly created record that may be subject to the electronic availability requirement?
No. When a record is processed for FOIA disclosure, it should not be regarded as being "created" or "re-created" at that time, even if it is disclosed in a new redacted form. This is so also for a classified record that is declassified for disclosure either in whole or in part. Cf. Exec. Order No. 12,958,
If an agency maintains a record in more than one form or format, can a FOIA requester now choose the one in which it will be disclosed?
Yes, with only limited exception. Under new subsection (a)(3)(B) of the Act, a FOIA requester may choose among existing forms or formats of a record, so long as the record is "readily reproducible" in the chosen form. 5 U.S.C.
If a requester asks an agency to disclose a record in a new form or format, what obligation does the agency have to do so?
Under the provisions of new subsection (a)(3)(B), a requester may ask to have a record disclosed in a new form or format and an agency must do so if the record is "readily reproducible" in that form or format with "reasonable efforts." 5 U.S.C.
Does new subsection (a)(3)(B) require agencies to alter their records-maintenance and records-disposition practices, beyond the scope of the FOIA?
No. The second sentence of subsection (a)(3)(B) provides: "Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section." 5 U.S.C.
Cannot searching for records electronically result in creating new records, something which agencies are not required to do under the FOIA?
No. In enacting the Electronic FOIA amendments, Congress specifically rejected such a view of electronic database searches under the FOIA when it defined the term "search" to include efforts to locate records "by automated means." 5 U.S.C.
What is meant by the term "technically feasible"?
The term "technically feasible" is used in the Electronic FOIA amendments to set a limit on an agency's obligation to indicate its record deletions at a particular location on a partially disclosed record. The amendments require that, except in extraordinarily sensitive cases, the "amount of information deleted" from a record must be "indicated on the released portion of the record" and that, "[i]f technically feasible," this indication must appear "at the place in the record where such deletion is made." 5 U.S.C.
If an agency's FOIA operations are decentralized, may it institute "multitrack processing" on a component-by-component basis?
Yes. The Electronic FOIA amendments provide that agencies may institute systems for the "multitrack processing" of FOIA requests through their FOIA regulations. 5 U.S.C.
Are the new requirements for annual FOIA reports retroactive to 1996?
No, nor are they applicable to most of 1997. Agencies remain on a calendar year reporting schedule for 1996, and for the first nine months of 1997, under the existing annual FOIA report format and requirements. The reporting period for calendar year 1997 will run only from January 1 through September 30, 1997. The new fiscal year reporting period and new reporting requirements will take effect as of October 1, 1997, beginning with fiscal year 1998. See H.R. Rep. No. 104-795, at 28 (1996); see also FOIA Update, Fall 1996, at 11.
Where the amendment to subsection (a)(4)(B) states that courts must accord substantial weight to an agency's determinations of technical feasibility under "paragraph (a)(2)(C)," which pertains to administrative staff manuals and instructions to staff, is that an error?
Yes, it is a minor drafting error. This provision evidently was intended to refer to the technical feasibility of deletions under "paragraph (2)" of the FOIA, which pertains to reading room records more generally. See also H.R. Rep. No. 104-795, at 22 (1996).
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