FOIA Guide, 2004 Edition: FOIA Reading Rooms

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Freedom of Information Act Guide, May 2004


FOIA Reading Rooms

Subsection (a)(2) of the FOIA (1) provides for what is commonly referred to as
"reading room" access. (2) It applies to certain basic agency records that, while not
automatically published under subsection (a)(1) of the Act, (3) must routinely be made
"available for public inspection and copying" in agency reading rooms. (4) This public
inspection obligation applies to all federal agencies, it governs all records covered
by subsection (a)(2) except those "offered for sale," (5) and it extends to the
maintenance of "electronic reading rooms" as well. (6) By the same token, records
required to be made publicly available pursuant to subsection (a)(2) ordinarily
cannot be the subject of regular "FOIA requests." (7)

For the first thirty years of the FOIA's operation, three categories of records --
"final opinions [and] . . . orders" rendered in the adjudication of administrative cases, (8)
specific agency policy statements, (9) and certain administrative staff manuals "that
affect a member of the public" (10) -- have been made available routinely in agency
reading rooms. (11) Such records must be indexed by agencies in order to facilitate the
public's convenient access to them. (12)

Routine public access to such records serves to guard against the
development of agency "secret law" known to agency personnel but not to members
of the public who deal with agencies, so records that have no precedential value and
do not constitute the working law of the agency are not required to be made
available under this part of the Act. (13) In addition, agencies may "withhold" (i.e., not
make available) a subsection (a)(2) record (or portion of such a record) if it falls
within a FOIA exemption, just as they can do in response to FOIA requests. (14)
Likewise, records that are published and offered for sale by an agency, either
directly or indirectly, (15) are not required to be placed in an agency's reading room. (16)

Agencies have made good use of their FOIA reading rooms in achieving
efficient "affirmative" disclosure of records that otherwise might be sought through
less efficient FOIA requests. (17) In so doing, though, they must be mindful of the
distinction between subsection (a)(2) records (i.e., "reading room" records) and
subsection (a)(3) records (i.e., records subject to standard "FOIA requests") under
the Act. (18)

The Electronic Freedom of Information Act Amendments of 1996 (19) heavily
modified the requirements of subsection (a)(2) by creating a fourth category of
"reading room" records, (20) and by establishing a requirement for the electronic
availability of "reading room" records in what are referred to as "electronic reading
rooms." (21) The Electronic FOIA amendments greatly elevated the role of agency
reading rooms -- and, in turn, agency sites on the World Wide Web -- in the
processes of FOIA administration. (22)

First, in addition to the traditional three categories of "reading room" records
discussed above, agencies must also include any records processed and disclosed
in response to a FOIA request that "the agency determines have become or are
likely to become the subject of subsequent requests for substantially the same
records." (23) Under this provision, when records are disclosed in response to a FOIA
request, an agency is required to determine whether they have been the subject of
multiple FOIA requests (i.e., two or more additional ones) or, in the agency's best
judgment based upon the nature of the records and the types of requests regularly
received, are likely to be the subject of multiple requests in the future. (24)

Inasmuch as this requirement by definition begins with the processing of
records disclosed in response to a FOIA request, and then is met by multiple other
such "requests," (25) it is either the receipt or the anticipation of the third such request
that triggers it. (26) If either is the case, (27) then those records in their FOIA-processed
form become "reading room" records, (28) which must automatically be made available
to potential FOIA requesters. (29) Ideally, this availability will satisfy much of the future
public demand for those processed records in a more efficient fashion. (30)
Nevertheless, any subsequent FOIA request received for such records has to be
responded to in the regular way as well, if the requester so chooses. (31)

Second, the Electronic FOIA amendments require agencies to use electronic
information technology to enhance the availability of their "reading room" records:
Agencies must make the records created by them on or after November 1, 1996 (32) in
all four "reading room" categories available to the public by "electronic means." (33) The
Electronic FOIA amendments embodied a strong statutory preference that
electronic availability be provided by agencies in the form of online, Internet access -- which is most efficient for both agencies and the public alike (34) -- and this
expectation has been met by the development of agency FOIA sites on the World
Wide Web. (35)

Under the Electronic FOIA amendments, all federal agencies have FOIA sites
on the World Wide Web to serve this "electronic reading room" function, (36) as well as
for other FOIA-related purposes. (37) This is a matter of great and growing importance
to the processes of FOIA administration. (38) Agencies of such size that they contain
sub-agencies or major agency components that administer the FOIA on a
decentralized basis and have their own Web sites may maintain multiple "electronic
reading rooms," so long as they are linked together clearly and efficiently for Web
site users. (39)

Agencies therefore must maintain in their conventional "paper" reading rooms
copies of any FOIA-processed records determined to fall within the fourth
subsection (a)(2) category, (40) and must identify such records that were created by
them on or after the November 1, 1996 "cut-off" date in order to make them available
through their "electronic reading rooms" as well. (41) In doing so, they should be
mindful that some of the records falling under this fourth category might not have
been created by the agency and instead might have been generated elsewhere;
while such records may be determined by the agency to fall within subsection
(a)(2)(D), they are not "created" by the agency and should not be regarded as subject
to the electronic availability requirement. (42) However, an agency may as a matter of
administrative discretion choose to make such records available electronically even
though they were not generated by the agency, or not created after November 1,
1996, when to do so would be most cost-effective in serving public access needs
under subsection (a)(2)(D). (43) Agencies also may make a wide range of other records
available through their general World Wide Web sites as a matter of administrative
discretion, but in doing so they should make sure that all possible security concerns
regarding these records have been carefully considered. (44)

Agencies also should make clear to the users of their "electronic reading
rooms" that while all of their subsection (a)(2) records are available in their
conventional reading rooms, (45) generally only those records created on or after
November 1, 1996 are available in their electronic ones. (46) In addition, they should
utilize indices to facilitate use of both types of reading rooms; (47) indeed, they are
required by the Electronic FOIA amendments to maintain indexes of the FOIA-processed records in the fourth "reading room" category and to make them available
on their FOIA Web sites. (48)

In sum, all agencies should continue to be vigilant in maintaining and
augmenting their FOIA Web sites in order to ensure consistent compliance with the
Electronic FOIA amendments' important electronic availability requirements. (49)

    1 5 U.S.C. § 552(a)(2) (2000).

    2See FOIA Update, Vol. XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure
    Provisions of FOIA: Subsections (a)(1) & (a)(2)").

    3 5 U.S.C. § 552(a)(1) (providing for Federal Register publication of very basic agency information,
    as discussed under Introduction, above).

    4Id. § 552(a)(2); see Jordan v. United States Dep't of Justice, 591 F.2d 753, 756 (D.C. Cir.
    1978) (en banc) (observing that subsection (a)(2) records must be made "automatically available for
    public inspection; no demand is necessary"); see also FOIA Update, Vol. XVIII, No. 1, at 4 (advising
    that large agencies with decentralized FOIA operations may maintain separate reading rooms for
    agency components).

    5 5 U.S.C. § 552(a)(2).

    6See FOIA Update, Vol. XVII, No. 4, at 1-2 (describing "electronic reading room" requirements
    under Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat.
    3048).

    7See 5 U.S.C. § 552(a)(3)(A) (stating general rule that "FOIA request" under subsection (a)(3)
    cannot be made for any record that is "made available" under subsections (a)(1) or (a)(2)); see also
    United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 152 (1989) ("Under subsection (a)(3) . .
    . an agency need not make available those materials that have already been disclosed under subsections
    (a)(1) and (a)(2)."); Schwarz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S.
    App. LEXIS 4609, at *1 (D.C. Cir. Feb. 22, 1996) (finding that agency was not required to disclose
    records from patent files in response to a subsection (a)(3) request because patent files are available for
    public inspection and copying under subsection (a)(2)); Crews v. Internal Revenue, No. 99-8388, slip
    op. at 11-12 (C.D. Cal. Apr. 26, 2000) (declaring that policy statements and administrative staff
    manuals made available under subsection (a)(2) are not required to be made available in response to
    subsection (a)(3) requests); Reeves v. United States, No. 94-1291, 1994 WL 782235, at **1-2 (E.D.
    Cal. Nov. 16, 1994) (dismissing lawsuit because FOIA requests sought publicly available agency
    regulations). But see FOIA Update, Vol. XVIII, No. 1 at 3 (advising of major exception to general
    rule for records falling within subsection (a)(2)(D)).

    8 5 U.S.C. § 552(a)(2)(A); see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155-59
    (1975) (holding that NLRB "advice and appeals" memorandum deciding not to file unfair labor
    complaint was "final opinion" when decision not to file effectively put an end to formal complaint
    procedure); Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 603 (D.C. Cir.
    2001) (finding that agency report of voluntarily conducted internal investigation into propriety of Rocky
    Flats prosecution was not "final opinion" because determination of propriety of prosecution was neither
    "case" nor "adjudication"); Nat'l Prison Project v. Sigler, 390 F. Supp. 789, 792-93 (D.D.C. 1975)
    (determining that parole board decisions denying inmate applications for parole were "reading room"
    records).

    9 5 U.S.C. § 552(a)(2)(B); see, e.g., Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1977) (stating that
    Social Security Ruling providing examples of medical conditions to be treated as "per se nonsevere" fell
    under subsection (a)(2)(B)); Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 2001 U.S. Dist.
    LEXIS 3492, at *90 (W.D. Pa. Feb. 7, 2001) (holding that HHS documents that advised regional
    offices of agency's view on policy matters pertaining to certain welfare programs were "interpretations
    adopted by the agency"); Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259, at *9
    (D.D.C. Mar. 15, 1996) (holding that IRS Field Service Advice Memoranda, even though not binding
    on IRS personnel, were "statements of policy"), aff'd on other grounds, 117 F.3d 607 (D.C. Cir.
    1997); Pub. Citizen v. Office of United States Trade Representative, 804 F. Supp. 385, 387 (D.D.C.
    1992) (concluding that agency submissions to a trade panel containing an agency's interpretation of
    U.S.'s international legal obligations were "statements of policy and interpretations adopted by the
    [agency]"); see also Vietnam Veterans of Am. v. Dep't of the Navy, 876 F.2d 164, 165 (D.C. Cir.
    1989) (finding that opinions in which Judge Advocates General of Army and Navy have authority only
    to dispense legal advice -- rendered in subject areas for which those officials do not have authority to
    act on behalf of agency -- were not "statements of policy or interpretations adopted by" those agencies
    and were not required to be published or made available for public inspection).

    10 5 U.S.C. § 552(a)(2)(C); see, e.g., Sladek v. Bensinger, 605 F.2d 899, 901 (5th Cir. 1979)
    (finding DEA agents' manual concerning treatment of confidential informants and search warrant
    procedures to be subsection (a)(2)(C) record); Stokes v. Brennan, 476 F.2d 699, 701 (5th Cir. 1973)
    (determining that "Training Course for Compliance Safety and Health Officers," including all instructor
    and student manuals, training slides, films, and visual aids, must be made available for public inspection
    and copying); Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1364-65 (N.D. Ohio
    1976) (ruling that memoranda approved by Office of Standards Enforcement, which set forth agency's
    policy regarding sampling plans that office must follow when tire fails lab test under Federal Motor
    Vehicle Safety Standards, were "reading room" records); see also Stanley v. DOD, No. 98-CV-4116,
    slip op. at 9-10 (S.D. Ill. June 22, 1999) (finding that administrative staff manuals pertaining to military
    hospital procedures did not "affect the public" and were not required to be given "reading room"
    treatment), appeal stayed, No. 99-2848 (7th Cir. Apr. 19, 2000).

    11See FOIA Update, Vol. XIII, No. 3, at 4 (describing categories of records required to be placed
    in agency reading rooms).

    12See 5 U.S.C. § 552(a)(2); see, e.g., Irons & Sears v. Dann, 606 F.2d 1215, 1223 (D.C. Cir.
    1979) (requiring agency to provide "reasonable index" of requested decisions); Taxation With
    Representation Fund v. IRS
    , 2 Gov't Disclosure Serv. (P-H) ¶ 81,028, at 81,080 (D.D.C. Apr. 22,
    1980) (recognizing agency's "continuing duty" to make subsection (a)(2) records and indices available);
    see also Pa. Dep't of Pub. Welfare, 2001 U.S. Dist. LEXIS 3492, at *82 (finding agency in violation of
    indexing requirement because index was incomplete and it was "nearly impossible" to distinguish
    precedential material from obsolete material). See generally FOIA Update, Vol. XVII, No. 4, at 2
    (discussing statutory indexing requirements under Electronic FOIA amendments). But cf. Tax Analysts
    v. IRS
    , No. 94-923, 1998 WL 419755, at *5 (D.D.C. May 1, 1998) (concluding confusingly that
    court has "no statutory authority for actually ordering . . . a remedy" regarding indexing requirement),
    appeal dismissed voluntarily, No. 94-5252 (D.C. Cir. Aug. 11, 1998).

    13See Sears, 421 U.S. at 153-54 (observing that the reading room provision "represents a strong
    congressional aversion to 'secret [agency] law,'

    . . . and represents an affirmative congressional purpose to require disclosure of documents which have
    'the force and effect of law'" (quoting H.R. Rep. No. 89-1497, at 7 (1966))); Skelton v. USPS, 678
    F.2d 35, 41 (5th Cir. 1982) ("That requirement was designed to help the citizen find agency statements
    'having precedential significance' when he becomes involved in 'a controversy with an agency.'" (quoting
    H.R. Rep. No. 89-1497, at 8)); Attorney General's Memorandum on the 1974 Amendments to the
    Freedom of Information Act
    19 (Feb. 1975) (explaining that the "primary purpose of subsection (a)(2)
    was to compel disclosure of what has been called 'secret law,' or as the 1966 House Report put it,
    agency materials which have 'the force and effect of law in most cases'" (quoting H.R. Rep. No. 89-1497, at 7)); Attorney General's Memorandum on the Public Information Section of the Administrative
    Procedure Act
    15 (June 1967) [hereinafter Attorney General's 1967 FOIA Memorandum] (advising
    that keeping "orders available in reading rooms . . . [that] have no precedential value, often would be
    impracticable and would serve no useful purpose"); see also Smith v. NTSB, 981 F.2d 1326, 1328
    (D.C. Cir. 1993) (stating that the purpose of this "requirement is obviously to give the public notice of
    what the law is so that each individual can act accordingly"); Vietnam Veterans of Am., 876 F.2d at
    165 (rejecting argument that legal opinions issued by Judge Advocates General of Army and Navy
    must be placed in agency reading room, because those opinions are not statements of policy that
    "operate as law"); Pa. Dep't of Pub. Welfare, 2001 U.S. Dist. LEXIS 3492, at *78 (holding that a
    FOIA reading room index "must include those matters that the agency considers to be of precedential
    value"); Stanley, No. 98-CV-4116, slip op. at 9-10 (S.D. Ill. June 22, 1999) (holding that
    administrative staff manuals that do not have any "precedential significance" and would not assist
    members of the public in "tailor[ing] their behavior to the law" are not required to be made publicly
    available in an agency reading room). But see Nat'l Prison Project, 390 F. Supp. at 793 (ruling
    otherwise prior to Supreme Court's instructive emphasis on legislative history of subsection (a)(2) in
    Sears); Tax Analysts & Advocates v. IRS, 362 F. Supp. 1298, 1303 (D.D.C. 1973) (same), modified
    & remanded on other grounds
    , 505 F.2d 350 (D.C. Cir. 1974).

    14See, e.g., Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979) (applying
    commercial privilege to subsection (a)(1) record and recognizing that subsection (a)(2) records likewise
    may be protected by FOIA exemptions); Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421
    U.S. 168, 184 n.21 (1975) (acknowledging that subsection (a)(2) records may be protected by FOIA
    exemptions); Sears, 421 U.S. at 160 (finding it unnecessary to decide whether documents were
    subsection (a)(2) records, because attorney work-product privilege protected them in any event);
    Sladek, 605 F.2d at 901 (applying Exemption 2 to portions of subsection (a)(2)(C) record); Tax
    Analysts
    , 1996 U.S. Dist. LEXIS 3259, at **9-10 (applying attorney work-product privilege to
    subsection (a)(2)(B) records); see also FOIA Update, Vol. XIII, No. 3, at 4 (advising that "an agency
    may withhold any record or record portion falling within subsection (a)(2) . . . if it is of such sensitivity
    as to fall within a FOIA exemption"); cf. 5 U.S.C. § 552(a)(2) (containing language regarding
    protection of "personal privacy" that, beyond being redundant, became compounded by illogical
    reference to "copies of records referred to in [subsection (a)(2)(D)]" upon enactment of Electronic
    FOIA

    amendments in 1996).

    15See, e.g., FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted 8/30/02)
    (describing operation of National Technical Information Service (commonly known as "NTIS") in
    governmentwide process of record dissemination); Uniform Freedom of Information Act Fee Schedule
    and Guidelines, 52 Fed. Reg. 10,018 (1987) (recognizing NTIS as "statutor[il]y-based" government
    record distribution program); cf. White House Memorandum for Heads of Executive Departments and
    Agencies Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002)
    [hereinafter White House Homeland Security Memorandum], reprinted in FOIA Post (posted 3/21/02)
    (requiring agencies to exercise special care in distributing information through Defense Technical
    Information Center (commonly known as "DTIC"), particularly regarding information relating to
    development of weapons of mass destruction, in light of heightened homeland security concerns).

    16See, e.g., Gaunce v. Burnett, 849 F.2d 1475, 1475 (9th Cir. 1988) (unpublished opinion
    inexplicably characterized as "table decision") (finding assessment of $13.25 for copy of FAA order
    proper, notwithstanding its subsection (a)(2) character, because "FOIA allows copies of orders to be
    'offered for sale'"); Jackson v. Heckler, 580 F. Supp. 1077, 1081 (E.D. Pa. 1984) (holding that Social
    Security Ruling relied on by administrative law judge need not be made "available for inspection and
    copying" pursuant to subsection (a)(2)(B) because it was "published for sale"); see also FOIA Update,
    Vol. XVII, No. 4, at 1 (noting that "reading room" obligation does not apply to any records that "are
    promptly published and [are] offered for sale" (quoting 5 U.S.C. § 552(a)(2))); Attorney General's
    1967 FOIA Memorandum
    15 (noting that "[t]his is to afford the agency 'an alternative means of making
    these materials available through publication'" (quoting S. Rep. No. 89-813, at 7 (1966))); cf. NARA
    v. Favish
    , 124 S. Ct. 1570, 1579 (2004) (evincing the Supreme Court's reliance on "the Attorney
    General's consistent interpretation of" the FOIA in successive such Attorney General memoranda).

    17See, e.g., FOIA Update, Vol. XVI, No. 1, at 1-2 (promoting "affirmative" agency disclosure
    practices through "reading room" access, among other means); FOIA Update, Vol. XIX, No. 1, at 1
    (discussing Department of the Air Force affirmative electronic information disclosure program); see also
    FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03)
    (emphasizing that bringing any "pre-existing reading room availability" to "FOIA requesters' attention
    . . . could be a basis for resolving their requests most efficiently").

    18See, e.g., FOIA Update, Vol. XVI, No. 1, at 2 (reminding that "an agency cannot convert a
    subsection (a)(3) record into a subsection (a)(2) record (which cannot be the subject of a FOIA
    request under subsection (a)(3)) just by voluntarily placing it into its reading room"); FOIA Update,
    Vol. XII, No. 2, at 5 (advising that FOIA requesters may not be deprived of subsection (a)(3) access
    rights through voluntary "reading room" availability). But cf. Tax Analysts, 1998 WL 419755, at *4
    (failing to apprehend statutory distinction between records subject to subsection (a)(2) and those
    subject to subsection (a)(3)).

    19 Pub. L. No. 104-231, 110 Stat. 3048.

    20See 5 U.S.C. § 552(a)(2)(D).

    21See id. § 552(a)(2); see also FOIA Update, Vol. XIX, No. 4, at 4-5 (emphasizing importance of
    "electronic reading rooms" in satisfying FOIA obligations); FOIA Update, Vol. XVII, No. 4, at 1-2
    (discussing statutory changes).

    22See FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01) (advising of
    growing attention being paid to agencies' "electronic reading rooms"); see also FOIA Post, "Follow-Up
    Report on E-FOIA Implementation Issued" (posted 9/27/02) (describing results of GAO's updated
    review of agency compliance with "electronic reading room" requirements); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (describing GAO report's emphasis on agency
    compliance with "electronic reading room" obligations); FOIA Update, Vol. XIX, No. 3, at 1
    (describing 1998 congressional hearing on agency amendment-implementation activities).

    23 5 U.S.C. § 552(a)(2)(D).

    24See FOIA Update, Vol. XVIII, No. 1, at 3-4 (advising on processes for exercise of agency
    judgment under fourth "reading room" category).

    25 5 U.S.C. § 552(a)(2)(D) (speaking of "requests" in plural form, above and beyond FOIA request
    already received).

    26See FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03)
    (explaining the "rule of three" that is employed to determine the applicability of subsection (a)(2)(D));
    see also FOIA Update, Vol. XVII, No. 4, at 1 (describing subsection (a)(2)(D) obligations); FOIA
    Update
    , Vol. XVIII, No. 1, at 3-4 (same). But see FOIA Update, Vol. XVIII, No. 2, at 2 (advising
    that agencies need not include records processed for "flurry" of contemporaneous multiple requests
    when they are not likely to be requested again -- e.g., requests for certain types of routine government
    contract submissions); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records"
    (posted 7/25/03) (addressing the "comparable circumstances" in which agencies may determine
    likewise in the fullness of time).

    27See FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03)
    (discussing placement of records in a reading room based upon the subsection's "likely to become the
    subject of subsequent requests" standard).

    28See id. (reminding that "an agency's (a)(2)(D) obligation arises only with respect to any FOIA-processed record that is disclosed at least in some part," and at the same time advising that with slightly
    different multiple requests only "'overlap' records" are included within the obligation).

    29See FOIA Update, Vol. XVII, No. 4, at 1-2 (discussing operation of subsection (a)(2)); see also
    FOIA Update, Vol. XIX, No. 1, at 3-4 (compilation of OIP policy guidance regarding "reading room"
    matters); cf. Tax Analysts, 1998 WL 419755, at **4, 6 (requiring agency to place exceptionally large
    volume of FOIA-processed records in reading room on weekly basis, as they are processed, rather
    than all at once at conclusion of lengthy processing period). But see FOIA Update, Vol. XVIII, No. 1,
    at 3 (cautioning that any information about any first-party requester that would not be disclosed to any
    other FOIA requester, such as information protected by Privacy Act of 1974, 5 U.S.C. § 552a
    (2000), or Trade Secrets Act, 18 U.S.C. § 1905 (2000), would not be appropriate for automatic
    public disclosure under fourth "reading room" category).

    30See FOIA Update, Vol. XVIII, No. 2, at 2 (citing H.R. Rep. No. 104-795, at 21 (1996)); see
    also
    FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03)
    (discussing underlying purpose of fourth "reading room" category); FOIA Update, Vol. XVII, No. 4, at
    1 (emphasizing connection between fourth "reading room" category and "electronic reading room"
    mechanism in meeting public access demands); cf. President's Statement on Signing the Electronic
    Freedom of Information Act Amendments of 1996, 32 Weekly Comp. Pres. Doc. 1949 (Oct. 7,
    1996), reprinted in FOIA Update, Vol. XVII, No. 4, at 9 (expressing "hope that there will be less need
    to use FOIA to obtain government information").

    31See FOIA Update, Vol. XVIII, No. 1, at 3 (advising that while ordinary rule is that records
    placed in reading room under subsection (a)(2) cannot be subject of regular FOIA request, Congress
    made clear that such rule does not apply to fourth "reading room" category of FOIA-processed
    records (citing H.R. Rep. No. 104-795, at 21 (1996))); see also FOIA Post, "FOIA Counselor Q&A:
    'Frequently Requested' Records" (posted 7/25/03) (advising that "the pre-existing reading room
    availability of records responsive to those subsequent requests in an electronic reading room on an
    agency's FOIA Web site, once brought to those FOIA requesters' attention, could be a basis for
    resolving those requests most efficiently").

    32See 5 U.S.C. § 552(a)(2); see also FOIA Post, "Electronic Compilation of E-FOIA
    Implementation Guidance" (posted 2/28/03); FOIA Update, Vol. XVIII, No. 1, at 4-5.

    33 5 U.S.C. § 552(a)(2); see also FOIA Update, Vol. XVIII, No. 1, at 3 (advising that records
    made available in "electronic reading rooms" must nevertheless be made available in conventional
    "paper" reading rooms as well (citing H.R. Rep. No. 104-795, at 21 (1996))).

    34See 5 U.S.C. § 552(a)(2) (stressing use of "computer telecommunications," and establishing
    absolute requirement of Internet use by all agencies); see also FOIA Update, Vol. XIX, No. 4, at 4-5
    (emphasizing importance of "new partnership" between agency FOIA officers and agency Information
    Technology (IT) personnel to achieve efficient disclosure through electronic means); FOIA Update,
    Vol. XVIII, No. 3, at 1-2 (describing efficiency of online public access).

    35See FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02)
    (discussing GAO conclusion that agencies are not devoting sufficient attention to on-line electronic
    availability requirements); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted
    3/23/01) (recognizing universal development of agency FOIA Web sites, but nonetheless urging
    "careful vigilance in both the establishment and the augmentation of agency FOIA Web sites with the
    passage of time").

    36 5 U.S.C. § 552(a)(2); see FOIA Post, "Supplemental Guidance on Annual FOIA Reports"
    (posted 8/13/01) (recognizing that all federal agencies now have established Web sites for FOIA
    purposes); FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance: Recommendations for FOIA
    Web Sites"); FOIA Update, Vol. XIX, No. 2, at 2 ("Web Site Watch" discussion of agency FOIA
    Web sites); FOIA Update, Vol. XIX, No. 1, at 2 (same); FOIA Update, Vol. XVIII, No. 3, at 1-2
    (describing early agency development of World Wide Web sites for FOIA-related purposes, including
    "electronic reading rooms").

    37See, e.g., 5 U.S.C. § 552(e)(2) (setting forth requirement that each agency make its annual FOIA
    report available to public electronically); see also FOIA Update, Vol. XIX, No. 3, at 3-4
    (recommending basic elements and features of agency FOIA Web sites, including vitally important
    ability to access agency's FOIA Web site directly from agency's main home page); cf. FOIA Update,
    Vol. XIX, No. 1, at 6 (encouraging agencies to consider as matter of administrative discretion
    establishing capability to receive FOIA requests via Internet).

    38See FOIA Update, Vol. XIX, No. 4, at 5 (observing that "an agency's FOIA Web site has
    become an essential means by which its FOIA obligations are satisfied," so FOIA Web site support
    "should be a primary mission of each agency's IT staff"); FOIA Update, Vol. XIX, No. 3, at 1
    (describing congressional interest in agency Web site development for purposes of FOIA
    administration); id. at 1, 3 (describing governmentwide attention to same). See generally FOIA Post,
    "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02).

    39See FOIA Update, Vol. XIX, No. 3, at 3 (advising that "[c]larity to the [W]eb site user is
    essential to the effectiveness of the site"); FOIA Update, Vol. XIX, No. 1, at 6 (advising on use of
    FOIA Web sites by all agency components "once an agency has established its World Wide Web
    capability"); FOIA Update, Vol. XVIII, No. 1, at 4 (advising that agencies with separate "electronic
    reading rooms" for separate components "should ensure that [they] are linked together electronically so
    as to facilitate efficient user access"); see also FOIA Update, Vol. XIX, No. 3, at 4 (recommending
    that agencies check both accuracy and viability of their FOIA Web site links and text content of their
    FOIA Web site home pages on regular basis).

    40See FOIA Update, Vol. XIX, No. 1, at 3 (advising that agencies "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"); FOIA Update, Vol. XVIII, No. 1, at 4 (advising that agencies
    may determine that records no longer fall within fourth "reading room" category after passage of time);
    see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03)
    (advising that agencies "certainly can consider the absence of predicted FOIA requests as a factor in
    determining whether the continued maintenance of a record as a 'frequently requested' record is
    warranted").

    41See FOIA Update, Vol. XVIII, No. 1, at 5 (advising that redaction of record during FOIA
    processing does not amount to record "creation" for purposes of determining applicability of electronic
    availability requirement); see also FOIA Update, Vol. XVII, No. 4, at 2 (observing that in case of
    FOIA-processed records, very large proportion of those records will have been created prior to
    November 1, 1996 "cut-off" date, until long after Electronic FOIA amendments' initial implementation,
    and therefore will not be subject to electronic availability requirement); cf. FOIA Post, "Use of 'Cut-Off' Dates in FOIA Searches" (posted 5/6/04) (advising in comparable FOIA-request context that
    "scope" of agency's search obligation "has both substantive and temporal aspects").

    42See FOIA Update, Vol. XVIII, No. 1, at 4-5 (citing United States Dep't of Justice v. Tax
    Analysts
    , 492 U.S. 136, 144 (1989)); see also 63 Fed. Reg. 29,591, 29,592 (June 1, 1998)
    (discussing Department of Justice regulation on point, currently at 28 C.F.R. § 16.2(c) (2004)).

    43See FOIA Update, Vol. XIX, No. 1, at 4; see, e.g., FOIA Update, Vol. XIX, No. 3, at 5. But
    see
    FOIA Update, Vol. XVIII, No. 1, at 5 (cautioning agencies to guard against possibility that
    "electronic reading room" treatment of record generated by outside party might be regarded as
    copyright infringement by that party).

    44See, e.g., White House Homeland Security Memorandum, reprinted in FOIA Post (posted
    3/21/02) (requiring agencies to ensure appropriate protection of information relating to weapons of
    mass destruction and of other sensitive homeland security-related information); accord Attorney
    General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom
    of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (urging agencies to
    "carefully consider" the protection of fundamental societal values, including "safeguarding our national
    security").

    45See FOIA Update, Vol. XVIII, No. 1, at 3 (advising agencies of utility of using computer
    terminals to meet statutory obligation, thus beginning trend that is becoming universal among agencies).

    46See FOIA Update, Vol. XIX, No. 3, at 4; FOIA Update, Vol. XVII, No. 4, at 2; see also
    FOIA Update, Vol. XVIII, No. 2, at 2 (advising agencies on practical treatment of written signatures
    on adjudicatory orders for "electronic reading room" purposes).

    47See FOIA Update, Vol. XIX, No. 3, at 4 (recommending use of "visible links" for electronic
    indexing purposes); cf. FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing early agency use of home
    pages and electronic links for FOIA-related purposes on agency World Wide Web sites).

    48 5 U.S.C. § 552(a)(2)(E); cf. FOIA Update, Vol. XVIII, No. 3, at 3-7 (setting forth Justice
    Department guidelines for agency preparation and submission of revised form of annual FOIA reports,
    as required to be prepared by all agencies electronically and made available on FOIA Web sites);
    FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies on proper FOIA Web site treatment of annual
    FOIA reports, in compliance with electronic availability requirements of 5 U.S.C. § 552(e)(2)-(3),
    including through agency identification of URL (Uniform Resource Locator) for each report); see also
    FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03) (providing additional
    guidance regarding posting of annual FOIA reports).

    49See FOIA Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03)
    (urging agencies to "redouble their efforts to ensure complete E-FOIA compliance"); FOIA Post,
    "Follow-Up Report on

    E-FOIA Implementation Issued" (posted 9/27/02) (discussing continued congressional focus on
    governmentwide implementation of FOIA's electronic availability requirements); FOIA Post, "FOIA
    Officers Conference Scheduled" (posted 9/17/02) (scheduling governmentwide FOIA officers
    conference to focus on 2002 GAO Report as "basis for all agencies to review and improve wherever
    necessary their compliance with E-FOIA's requirements"); FOIA Post, "GAO E-FOIA
    Implementation Report Issued" (posted 3/23/01) (advising that agencies must take all steps necessary
    to "both attain[] and maintain[] proper compliance with all of [the FOIA's] electronic availability
    requirements"); FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01)
    (identifying prospective GAO report as "excellent basis upon which all agencies can review their E-FOIA implementation compliance").

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