FOIA Guide, 2004 Edition: Introduction

DOJ Seal  

Freedom of Information Act Guide, May 2004

Introduction

The Freedom of Information Act (1) generally provides that any person has a

right, enforceable in court, to obtain access to federal agency records, except to the

extent that such records (or portions of them) are protected from public disclosure

by one of nine exemptions or by one of three special law enforcement record

exclusions.

Enacted in 1966, and taking effect on July 4, 1967, the FOIA firmly established

an effective statutory right of public access to executive branch information in the

federal government. The principles of government openness and accountability

underlying the FOIA, however, are inherent in the democratic ideal: "The basic

purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a

democratic society, needed to check against corruption and to hold the governors

accountable to the governed." (2) The United States Supreme Court has emphasized

that only "[o]fficial information that sheds light on an agency's performance of its

statutory duties falls squarely within that statutory purpose." (3)

To be sure, achieving an informed citizenry is a goal often counterpoised

against other vital societal aims. Society's strong interest in an open government

can conflict with other important interests of the general public -- such as the

public's interests in the effective and efficient operations of government; in the

prudent governmental use of limited fiscal resources; and in the preservation of the

confidentiality of sensitive personal, commercial, and governmental information. (4)

Though tensions among these competing interests are characteristic of a

democratic society, their resolution lies in providing a workable scheme that

encompasses, balances, and appropriately protects all interests, while placing

primary emphasis on the most responsible disclosure possible. (5) It is this

accommodation of strongly countervailing public concerns, with disclosure as the

animating objective, that the FOIA seeks to achieve.

The FOIA evolved after a decade of debate among agency officials,

legislators, and public interest group representatives. (6) It revised the public

disclosure section of the Administrative Procedure Act, (7) which generally had been

recognized as "falling far short" of its disclosure goals (8) and had come to be looked

upon as more a withholding statute than a disclosure statute. (9)

By contrast, under the thrust and structure of the FOIA, virtually every record

possessed by a federal executive branch agency must be made available to the

public in one form or another, unless it is specifically exempted from disclosure or

specially excluded from the Act's coverage in the first place. (10) The nine exemptions

of the FOIA ordinarily provide the only bases for nondisclosure, (11) and generally they

are discretionary, not mandatory, in nature. (12) (For a discussion of the discretionary

nature of FOIA exemptions, see Discretionary Disclosure and Waiver, below.)

Dissatisfied record requesters are given a relatively speedy remedy in the United

States district courts, where judges determine the propriety of agency withholdings

de novo and agencies bear the burden of proof in defending their nondisclosure

actions. (13)

The FOIA contains seven subsections, the first two of which establish certain

categories of information that must "automatically" be disclosed by federal

agencies. (14) Subsection (a)(1) of the FOIA (15) requires disclosure (through publication

in the Federal Register) of information such as descriptions of agency organizations,

functions, and procedures; substantive agency rules; and statements of general

agency policy. (16) This requirement provides the public with automatic access to very

basic information regarding the transaction of agency business. (17)

Subsection (a)(2) of the FOIA (18) requires that certain types of records -- final

agency opinions and orders rendered in the adjudication of cases, specific policy

statements, certain administrative staff manuals, and some records previously

processed for disclosure under the Act (19) -- be routinely made "available for public

inspection and copying." (20) This is commonly referred to as the "reading room"

provision of the FOIA, (21) and it requires that some such records be made available by

agencies in "electronic reading rooms" as well. (22) (For a discussion of the operation of

this FOIA subsection, see FOIA Reading Rooms, below.)

The courts have held that providing official notice and guidance to the general

public is the fundamental purpose of the publication requirement of subsection (a)(1)

and the "reading room" availability requirement of subsection (a)(2). (23) Failure to

comply with the requirements of either subsection can result in invalidation of

related agency action, (24) unless the complaining party had actual and timely notice of

the unpublished agency policy, (25) unless he is unable to show that he was adversely

affected by the lack of publication, (26) or unless he fails to show that he would have

been able to pursue "an alternative course of conduct" had the information been

published. (27) However, unpublished interpretive guidelines that were available for

copying and inspection in an agency program manual have been held not to violate

subsection (a)(1), (28) and it also has been held that regulations pertaining solely to

internal personnel matters that do not affect members of the public need not be

published. (29) Of course, an agency is not required to publish substantive rules and

policy statements of general applicability that it has not adopted. (30)

Under subsection (a)(3) of the FOIA -- by far the most commonly utilized part

of the Act -- all records not made available to the public under subsections (a)(1) or

(a)(2), or exempted from mandatory disclosure under subsection (b), or excluded

under subsection (c), are subject to disclosure upon an agency's receipt of a proper

FOIA request from any person. (31) (See the discussions of the procedural aspects of

subsection (a)(3) (including fees and fee waivers), the exemptions of subsection (b),

and the exclusions of subsection (c), below.)

Subsection (c) of the FOIA, (32) which was added as part of the Freedom of

Information Reform Act of 1986, (33) establishes three special categories of law

enforcement-related records that are entirely excluded from the coverage of the

FOIA in order to safeguard against unique types of harm. (34) The extraordinary

protection embodied in subsection (c) permits an agency to respond to a request for

such records as if the records in fact did not exist. (35) (See the discussion of the

operation of these special provisions under Exclusions, below.)

Subsection (d) of the FOIA (36) makes clear that the Act was not intended to

authorize any new withholding of information, including from Congress. While

individual Members of Congress possess merely the same rights of access as those

guaranteed to "any person" under subsection (a)(3), (37) Congress as a body (or through

its committees and subcommittees) cannot be denied access to information on the

grounds of FOIA exemptions. (38)

Subsection (e) of the FOIA, (39) which was modified as part of the Electronic

Freedom of Information Act Amendments of 1996, (40) requires an annual report from

each federal agency regarding its FOIA operations and an annual report from the

Department of Justice to Congress regarding both FOIA litigation and the

Department of Justice's efforts (primarily through the Office of Information and

Privacy) to encourage agency compliance with the FOIA. (41) Agencies now prepare

their annual reports for submission to the Department of Justice, (42) which reviews

them for completeness (43) and then makes them available to the public, in a

consolidated compilation, at a single World Wide Web site. (44) Each agency also must

make its annual FOIA report readily available on its own FOIA Web site, (45) and it

should do so promptly in order to facilitate the Department of Justice's preparation

of a summary compilation of all agencies' aggregate annual report data for each

fiscal year. (46)

Subsection (f) of the FOIA (47) defines the term "agency" so as to subject the

records of nearly all executive branch entities to the Act and defines the term

"record" to include information maintained in an electronic format. (See the

discussions of these terms under Procedural Requirements, Entities Subject to the

FOIA, below, and Procedural Requirements, "Agency Records," below.) Lastly,

subsection (g) of the FOIA (48) requires agencies to prepare FOIA reference guides

describing their information systems and their processes of FOIA administration, as

an aid to potential FOIA requesters. (49)

As originally enacted in 1966, the FOIA contained, in the views of many,

several weaknesses that detracted from its ideal operation. In response, the courts

fashioned certain procedural devices, such as the requirement of a "Vaughn Index" --

a detailed index of withheld documents and the justification for their exemption,

established in Vaughn v. Rosen (50) -- and the requirement that agencies release

segregable nonexempt portions of a partially exempt record, which was first

articulated in EPA v. Mink. (51)

In an effort to further extend the FOIA's disclosure requirements, and also as

a reaction to the abuses of the "Watergate era," (52) the FOIA was substantially

amended in 1974. (53) The 1974 FOIA amendments considerably narrowed the overall

scope of the Act's law enforcement and national security exemptions, and also

broadened many of its procedural provisions -- such as those relating to fees, time

limits, segregability, and in camera inspection by the courts. (54) At the same time,

Congress enacted the Privacy Act of 1974, (55) which supplements the FOIA when

requests are made by individuals for access to records about themselves (56) and also

contains a variety of separate privacy protections. (57) (For an extensive discussion of

the Privacy Act's provisions, see the Department of Justice's "Overview of the Privacy

Act of 1974.")

In 1976, Congress again limited what could be withheld as exempt from

disclosure under the FOIA, this time by narrowing the Act's incorporation of the

nondisclosure provisions of other statutes. (58) (See the discussion of Exemption 3,

below.) A technical change was made in 1978 to update the FOIA's provision for

administrative disciplinary proceedings, (59) and in 1984 Congress repealed the

expedited judicial review provision previously contained in former subsection

(a)(4)(D) of the Act, replacing it with a more general statutory provision that allows

courts to expedite a FOIA lawsuit only if "good cause therefor is shown." (60)

In 1986, after many years of administrative experience with the FOIA

demonstrated that the Act was in need of both substantive and procedural reform, (61)

Congress enacted the Freedom of Information Reform Act of 1986, (62) which amended

the FOIA to provide broader exemption protection for law enforcement information,

plus special law enforcement record exclusions, and also created a new fee and fee

waiver structure. (63) The Department of Justice and other federal agencies took

several steps to implement the provisions of the 1986 FOIA amendments. (64)

In 1996, after several years of legislative consideration of "electronic record"

issues, (65) Congress enacted the Electronic Freedom of Information Act Amendments

of 1996, (66) which addressed the subject of electronic records, as well as the subject

areas of FOIA reading rooms and agency backlogs of FOIA requests, among other

procedural provisions. (67) (See the discussions of the various provisions of the

Electronic FOIA amendments under FOIA Reading Rooms, Procedural

Requirements, Fees and Fee Waivers, and Litigation Considerations, below.) The

Department of Justice and other federal agencies have taken a number of steps to

implement the provisions of the Electronic FOIA amendments. (68)

A more recent significant Freedom of Information Act development was the

issuance in October 2001 of a statement of FOIA policy by Attorney General John

Ashcroft. (69) The Ashcroft FOIA Memorandum emphasizes the Bush Administration's

commitment to full compliance with the FOIA as an important means of maintaining

an open and accountable system of government. (70) At the same time, it recognizes

the importance of protecting the sensitive institutional, commercial, and personal

interests that can be implicated in government records -- such as the need to

safeguard national security, to enhance law enforcement effectiveness, to respect

business confidentiality, to protect internal agency deliberations, and to preserve

personal privacy. (71)

The Ashcroft FOIA Memorandum establishes a "sound legal basis" standard

governing the Department of Justice's decisions on whether to defend agency

actions under the FOIA when they are challenged in court. (72) Under this newer

standard, agencies should reach the judgment that their use of a FOIA exemption is

on sound footing, both factually and legally, whenever they withhold requested

information. (73) The Ashcroft FOIA Memorandum also recognizes the continued

agency practice of considering whether to make "discretionary disclosures" of

information that is exempt under the Act, upon "full and deliberate consideration" of

all interests involved. (74) While it places particular emphasis on the right to privacy

among the other interests that are protected by the Act's exemptions, (75) it reminds

agencies "to carefully consider the protection of all such values and interests when

making disclosure determinations under the FOIA." (76)

Most recently, the FOIA was amended by the Intelligence Authorization Act

of 2003, effective as of November 27, 2002. (77) The FOIA now contains language that

precludes agencies of the "intelligence community" (78) from disclosing records in

response to any FOIA request that is made by any foreign government or

international governmental organization, either directly or through a

representative. (79) Significantly, this is the first time that Congress has departed from

the general rule that "any person" may submit a FOIA request. (80) It is perhaps part

and parcel of heightened concerns about national security and now also homeland

security in the wake of the horrific attacks of September 11, 2001, and the growth of

both worldwide and domestic terrorism. (81) (See the discussions of these concerns

under Exemption 1, Homeland Security-Related Information, below, and Exemption

2, Homeland Security-Related Information, below.)

In sum, the FOIA is a vital and continuously developing government disclosure

mechanism which, with refinements over time to accommodate both technological

advancements and society's maturing interests in an open and fully responsible

government, truly enhances our democratic way of life. (82)

    1 5 U.S.C.A. § 552 (1996 & West Supp. 2004).

    2NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also NARA v.

    Favish, 124 S. Ct. 1570, 1580 (2004) (emphasizing that the FOIA's underlying purpose

    of allowing "citizens to know 'what the government is up to'" is "a structural necessity

    in a real democracy" (quoting United States Dep't of Justice v. Reporters Comm. for

    Freedom of the Press, 489 U.S. 749, 773 (1989))), reh'g denied, No. 02-409, 2004 WL

    108633 (U.S. May 17, 2004).

    3Reporters Comm., 489 U.S. at 773.

    4See Attorney General's Memorandum for Heads of All Federal Departments and

    Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter

    Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted

    10/15/01) (emphasizing the public interest in protecting fundamental societal values,

    "[a]mong [which] are safeguarding our national security, enhancing the effectiveness

    of our law enforcement agencies, protecting sensitive business information and, not

    least, preserving personal privacy").

    5See S. Rep. No. 89-813, at 3 (1965)

    (stating the FOIA's statutory objective as that of achieving "the fullest

    responsible disclosure"); see also Attorney General's Memorandum

    on the 1986 Amendments to the Freedom of Information Act 30 (Dec. 1987)

    [hereinafter Attorney General's 1986 Amendments Memorandum] (same)

    (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979)); cf.

    5 U.S.C. § 552b note (2000) (policy statement enacted as part

    of the Government in the Sunshine Act specifying that it is "the policy

    of the United States that the public is entitled to the fullest practicable

    information regarding the decisionmaking processes of the Federal Government").

    6See 112 Cong. Rec. H13641 (daily

    ed. June 20, 1966) (statement of Rep. John Moss describing protracted legislative

    efforts, including decade of hearings, required to develop and achieve enactment

    of FOIA).

    7 5 U.S.C. § 1002 (1964) (amended

    in 1966 and now codified at 5 U.S.C.A. § 552).

    8EPA v. Mink, 410 U.S. 73, 79 (1973).

    9See S. Rep. No. 89-813, at 5 (1965).

    10See NLRB v. Sears, Roebuck

    & Co., 421 U.S. 132, 136 (1975).

    11See 5 U.S.C. § 552(d).

    12See Chrysler Corp., 441

    U.S. at 293; see also, e.g., FOIA Update, Vol. VI, No. 3,

    at 3 ("OIP Guidance: Discretionary Disclosure and Exemption 4").

    13See 5 U.S.C. § 552(a)(4)(B)-(C);

    see also FOIA Update, Vol. VI, No. 2, at 6 (discussing provision

    of Federal Courts Improvement Act of 1984, 28 U.S.C. § 1657 (2000), which

    requires that any civil action, including FOIA cases, be expedited "if good

    cause therefor is shown").

    14See FOIA Update, Vol.

    XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions

    of FOIA: Subsections (a)(1) & (a)(2)").

    15 5 U.S.C. § 552(a)(1).

    16See, e.g., Splane v. West,

    216 F.3d 1058, 1065 (Fed. Cir. 2000); Aulenback, Inc. v. Fed. Highway

    Admin., 103 F.3d 156, 168 (D.C. Cir. 1997); Hughes v. United States,

    953 F.2d 531, 539 (9th Cir. 1992); NI Indus., Inc. v. United States,

    841 F.2d 1104, 1107 (Fed. Cir. 1988); Bright v. INS, 837 F.2d 1330,

    1331 (5th Cir. 1988); Cathedral Candle Co. v. United States Int'l Trade

    Comm'n, 285 F. Supp. 2d 1371, 1378 n.10 (Ct. Int'l Trade 2003) (dicta);

    see also DiCarlo v. Comm'r, T.C. Memo 1992-280, slip op. at

    9-10 (May 14, 1992) (holding that publication in United States Government

    Manual, special edition of Federal Register, satisfies publication

    requirement of subsection (a)(1)(A) (citing 1 C.F.R. § 9 (1991))).

    17See FOIA Update, Vol.

    XIII, No. 3, at 3-4 (advising agencies to meet their subsection (a)(1) responsibilities

    on no less than quarterly basis).

    18 5 U.S.C. § 552(a)(2).

    19See id. § 552(a)(2)(A)-(D);

    see also FOIA Post, "FOIA Counselor Q&A: 'Frequently

    Requested' Records" (posted 7/25/03).

    20 5 U.S.C. § 552(a)(2). But see

    Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979)

    (acknowledging that portions of subsection (a)(2) records may nevertheless

    be protected by FOIA exemptions).

    21See FOIA Update, Vol.

    XIII, No. 3, at 4; see also FOIA Update, Vol. XIX, No. 1,

    at 3-4; FOIA Update, Vol. XVIII, No. 1, at 3-5.

    22See FOIA Update, Vol.

    XVII, No. 4, at 1-2 (discussing provisions of Electronic Freedom of Information

    Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048); see also

    FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance: Recommendations

    for FOIA Web Sites"); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing

    early agency development of World Wide Web sites for "electronic reading

    room" purposes). See generally FOIA Post, "Follow-Up Report

    on E-FOIA Implementation Issued" (posted 9/27/02) (discussing need for agencies

    to devote further attention to compliance with FOIA's electronic availability

    obligations); FOIA Post, "GAO E-FOIA Implementation Report Issued"

    (posted 3/23/01) (reminding agencies to take all steps necessary to both

    attain and maintain full compliance with their electronic availability obligations

    through their FOIA Web sites).

    23See, e.g., Welch v. United

    States, 750 F.2d 1101, 1111 (1st Cir. 1985).

    24See, e.g., Kennecott Utah

    Copper Corp. v. United States Dep't of the Interior, 88 F.3d 1191, 1203

    (D.C. Cir. 1996) ("Congress has provided [a] means for encouraging agencies

    to fulfill their obligation to publish materials in the Federal Register"

    by "protect[ing] a person from being adversely affected" by an unpublished

    regulation.); Checkosky v. SEC, 23 F.3d 452, 459, 482 (D.C. Cir.

    1994) (per curiam) (finding that SEC cannot rely on unpublished opinion

    as precedent) (Silberman & Randolph, JJ., filing separate opinions);

    NI Indus., 841 F.2d at 1108 (holding that agency could not rely on

    unpublished policy pertaining to its "value engineering change program"

    to deny contractor its share of savings from that program); D&W Food

    Ctrs. v. Block, 786 F.2d 751, 757-58 (6th Cir. 1986) (ruling that agency's

    interpretation of statute requiring certain businesses to be continuously

    inspected could not be enforced against noncomplying parties because it

    was not published); Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir.

    1977) (holding HUD instruction describing what must be treated as income

    for food stamp purposes void for failure to publish in Federal Register);

    Lewis v. Weinberger, 415 F. Supp. 652, 661 (D.N.M. 1976) (finding

    that an agency's policy regarding eligibility for an Indian Health Service

    program "has no effect for lack of publication in the Federal Register");

    see also Tex. Health Care Ass'n v. Bowen, 710 F. Supp. 1109,

    1113-14, 1116 (W.D. Tex. 1989) (enjoining agency from enforcing criteria

    established to implement Medicaid law, because criteria were not published

    and offered for comment).

    25See, e.g., Splane, 216

    F.3d at 1065 (finding it unnecessary to decide whether publishing only summary

    of agency opinion violated subsection (a)(1), because plaintiff had actual

    notice of entire opinion); United States v. F/V Alice Amanda, 987

    F.2d 1078, 1084-85 (4th Cir. 1993) (denying statutory defense of subsection

    (a)(1) when defendant had copy of unpublished regulations); United States

    v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (finding that the IRS's

    failure to publish tax forms did not preclude the defendants' convictions

    for income tax evasion, as the defendants had notice of their duty to pay

    those taxes, that duty was "manifest on the face" of statutes, a listing

    of places where forms can be obtained is published in Code of Federal Regulations,

    and those defendants had filed tax returns before); Lonsdale v. United

    States, 919 F.2d 1440, 1447 (10th Cir. 1990); Tearney v. NTSB,

    868 F.2d 1451, 1454 (5th Cir. 1989); Bright, 837 F.2d at 1331; Mada-Luna

    v. Fitzpatrick, 813 F.2d 1006, 1018 (9th Cir. 1987); Sierra Club

    N. Star Chapter v. Peña, 1 F. Supp. 2d 971, 980 (D. Minn. 1998)

    (holding organization subject to unpublished agency interpretation when

    it was "repeatedly informed" of agency's position); see also United

    States v. $200,000 in United States Currency, 590 F. Supp. 866, 874-75

    (S.D. Fla. 1984) (alternative holding) (determining that published regulations

    adequately apprised individuals of obligation to use unpublished reporting

    form).

    26See, e.g., Splane, 216

    F.3d at 1065; Lake Mohave Boat Owners Ass'n v. Nat'l Park Serv.,

    78 F.3d 1360, 1368 (9th Cir. 1996); Alliance for Cannabis Therapeutics

    v. DEA, 15 F.3d 1131, 1136 (D.C. Cir. 1994); Bowers, 920 F.2d

    at 222; Sheppard v. Sullivan, 906 F.2d 756, 762 (D.C. Cir. 1990);

    Nguyen v. United States, 824 F.2d 697, 702 (9th Cir. 1987); Coos-Curry

    Elec. Coop., Inc. v. Jura, 821 F.2d 1341, 1347 (9th Cir. 1987).

    27Alliance for Cannabis Therapeutics,

    15 F.3d at 1136 (citing Zaharakis v. Heckler, 744 F.2d 711, 714 (9th

    Cir. 1984)).

    28See McKenzie v. Bowen,

    787 F.2d 1216, 1222-23 (8th Cir. 1986); see also Lake Mohave Boat

    Owners, 78 F.3d at 1368 (finding rate-setting guidelines to be "an agency

    staff manual governed by § 552(a)(2)," requiring only public availability,

    not Federal Register publication under subsection (a)(1)); Capuano

    v. NTSB, 843 F.2d 56, 57-58 (1st Cir. 1988); Pagan-Astacio v. Dep't

    of Educ., No. 93-2173, slip op. at 9 (D.P.R. June 1, 1995) (determining

    that agency need not publish directory explaining existing regulation when

    it publishes Federal Register notice explaining where directory is

    available), aff'd, 81 F.3d 147 (1st Cir. 1996) (unpublished table

    decision); Medics, Inc. v. Sullivan, 766 F. Supp. 47, 52-53 (D.P.R.

    1991); Sturm v. James, 684 F. Supp. 1218, 1223 n.6 (S.D.N.Y. 1988).

    29See Hamlet v. United States,

    63 F.3d 1097, 1103 (Fed. Cir. 1995) (holding that publication is not required

    for personnel manuals "related solely to the [agency's] internal personnel

    rules and practices"); Pruner v. Dep't of the Army, 755 F. Supp.

    362, 365 (D. Kan. 1991) (holding that Army regulation governing procedures

    for applications for conscientious objector status concerned internal personnel

    matters and were not required to be published); see also Dilley

    v. NTSB, 49 F.3d 667, 669-70 (10th Cir. 1995) (holding that publication

    of policy regarding FAA's authority to suspend pilot certificates is not

    required when statute clearly grants agency broad disciplinary powers);

    Lonsdale, 919 F.2d at 1446-47 (holding that FOIA does not require

    publication of Treasury Department orders that internally delegate authority

    to enforce internal agency revenue laws); cf. Smith v. NTSB,

    981 F.2d 1326, 1328-29 (D.C. Cir. 1993) (holding that unpublished policy

    bulletin regarding sanctions was not valid basis for suspension of license

    because sanctions policy affects public by altering public's behavior).

    30See 5 U.S.C. § 552(a)(1) (2000);

    see, e.g., Xin-Chang Zhang v. Slattery, 55 F.3d 732, 749 (2d

    Cir. 1995) (reversing a district court's order that had required the agency

    to give effect to an unpublished rule based upon the lower court's finding

    that the plaintiff had been adversely affected by lack of publication, because

    the rule actually was to be effective only on the date of its publication

    and "[b]y its own terms, the [r]ule never became effective"); Clarry

    v. United States, 891 F. Supp. 105, 110-11 (E.D.N.Y. 1995) (stating

    that failure to publish notice of ban for reemployment of strikers did not

    violate FOIA's notice requirement when rule was not "formulated and adopted"

    by agency but was authorized by presidential directive and by statute);

    Peng-Fei Si v. Slattery, 864 F. Supp. 397, 405 (S.D.N.Y. 1994) ("The

    FOIA cannot be used to force an agency to adopt a new regulation that it

    withdrew from publication for the specific purpose of determining whether

    or not it should be adopted."); Xiu Qin Chen v. Slattery, 862 F.

    Supp. 814, 822 (E.D.N.Y. 1994) ("[A]n agency cannot be bound by [an un]published

    rule in a situation in which the agency never actually adopted the rule.");

    cf. Kennecott, 88 F.3d at 1202-03 (finding that FOIA does

    not authorize district court to order publication of regulation that was

    withdrawn by new Administration before it could be published).

    31See 5 U.S.C. § 552(a)(3)(A)

    (stating that FOIA requests under subsection (a)(3) cannot be made for any

    records "made available" under subsections (a)(1) or (a)(2)); see also

    FOIA Update, Vol. XVI, No. 1, at 2; FOIA Update, Vol. XIII,

    No. 3, at 4; FOIA Update, Vol. XII, No. 2, at 5. But see 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 this rule does not apply

    to subsection (a)(2)(D) category of FOIA-processed records (citing H.R.

    Rep. No. 104-795, at 21 (1996))); see also FOIA Post, "FOIA

    Amended by Intelligence Authorization Act" (posted 12/23/02) (describing

    second exception, applicable to intelligence agencies only); cf.

    FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted

    8/30/02; supplemented 9/23/02) (describing how the National Technical Information

    Service "occupies a special status" with respect to making records available

    to the public, pursuant to a provision of the 1986 FOIA amendments, 5 U.S.C.

    § 552(a)(4)(A)(vi)).

    32 5 U.S.C. § 552(c).

    33 Pub. L. No. 99-570, Â§Â§ 1801-1804,

    100 Stat. 3207, 3207-48.

    34See generally Attorney General's

    1986 Amendments Memorandum 18-30; see also Favish, 124

    S. Ct. at 1579 (evincing the Supreme Court's reliance on "the Attorney General's

    consistent interpretation of" the FOIA in successive such Attorney General

    memoranda).

    35See Attorney General's 1986

    Amendments Memorandum 18, 27.

    36 5 U.S.C. § 552(d).

    37See, e.g., EPA v. Mink,

    410 U.S. at 93-94 (treating individual Members of Congress as ordinary FOIA

    requesters).

    38See FOIA Update, Vol.

    V, No. 1, at 3-4 ("OIP Guidance: Congressional Access Under FOIA" (citing,

    e.g., H.R. Rep. No. 89-1497, at 11-12 (1966) and 5 U.S.C. § 552a(b)(9)

    (2000) (counterpart provision of the Privacy Act of 1974) to advise that

    "[e]ven where a FOIA request is made by a Member clearly acting in a completely

    official capacity, such a request does not properly trigger the special

    access rule of subsection ([d]) unless it is made by a committee or subcommittee

    chairman, or otherwise under the authority of a committee or subcommittee"));

    id. at 3 (further advising that "[i]nsofar as the Murphy opinion

    indicates otherwise, it should not be followed"); see also Leach

    v. RTC, 860 F. Supp. 868, 878-79 & n.13 (D.D.C. 1994) (treating

    contrary statements in Murphy v. Dep't of the Army, 613 F.2d 1151,

    1155-59 (D.C. Cir. 1979), as no better than "mere dicta"), appeal dismissed

    per stipulation, No. 94-5279 (D.C. Cir. Dec. 22, 1994); cf. Rockwell

    Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 604 (D.C.

    Cir. 2001) (relying mistakenly on Murphy, 613 F.2d at 1155-59, in

    finding (correctly) that waiver did not result from disclosure of a document

    to an oversight subcommit-tee (a conclusion properly in accordance with

    5 U.S.C. § 552(d)), as a result of overlooking the significant fact that

    the disclosure in Murphy was made to an individual Member of Congress

    and thus should not have been considered to be a 5 U.S.C. § 552(d) disclosure

    in the first place); Waxman v. Evans, No. 01-4530, slip op. at 15

    (C.D. Cal. Jan. 22, 2002) (ordering Secretary of Commerce to release adjusted

    census data to sixteen members of House Committee on Government Reform,

    and going so far as to hold that 1920s-era "Seven Member Rule" long contained

    in 5 U.S.C. § 2954 (2000) requires that any agency must, upon request from

    any seven members of that committee, provide any information relating to

    any matter within that committee's jurisdiction, not just routine administrative

    report information as originally intended), appeal dismissed as moot,

    52 Fed. Appx. 84, 84 (9th Cir. 2002) (taking cognizance of fact that census

    figures were ordered disclosed in Carter v. United States Dep't of Commerce,

    307 F.3d 1084 (9th Cir. 2002)).

    39 5 U.S.C. § 552(e).

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

    41See 5 U.S.C. § 552(e)(5); see,

    e.g., FOIA Update, Vol. XIX, No. 3, at 6 (describing range of

    OIP policy activities in connection with governmentwide implementation of

    Electronic FOIA amendments); FOIA Update, Vol. XIV, No. 3, at 8-9

    (describing range of OIP policy activities, including its "ombudsman" function);

    see also FOIA Update, Vol. VIII, No. 3, at 2 (further description

    of same).

    42See 5 U.S.C. § 552(e)(1); FOIA

    Update, Vol. XVIII, No. 3, at 3-7 ("OIP Guidance: Guidelines for Agency

    Preparation and Submission of Annual FOIA Reports"); see also FOIA

    Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03);

    FOIA Post, "Annual Report Guidance for DHS-Related Agencies" (posted

    8/8/03); FOIA Post, "Supplemental Guidance on Annual FOIA Reports"

    (posted 8/13/01); FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies

    on additional aspect of annual FOIA reports).

    43See FOIA Post, "GAO

    E-FOIA Implementation Report Issued" (posted 3/23/01) (describing Office

    of Information and Privacy's process of reviewing all annual FOIA reports

    and contacting individual agencies to resolve any discrepancies found);

    see also FOIA Post, "Follow-Up Report on E-FOIA Implementation

    Issued" (posted 9/27/02) (describing progress made by agencies in improving

    quality of their annual FOIA reports).

    44See FOIA Update, Vol.

    XIX, No. 3, at 2 (advising agencies on proper FOIA Web site treatment of

    their 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, and also referencing Department

    of Justice's FOIA Web site at www.usdoj.gov/04foia).

    45See 5 U.S.C. § 552(e)(2); see

    also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports"

    (advising agencies to correct any annual report error on Web site as well

    as in paper form); FOIA Update, Vol. XIX, No. 3, at 4 (advising agencies

    to "clearly indicate the year of each of [their annual FOIA] reports" on

    their FOIA Web sites).

    46See, e.g., FOIA Post,

    "Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 9/3/03).

    47 5 U.S.C. § 552(f)(1)-(2).

    48Id. § 552(g).

    49 See FOIA Update, Vol.

    XIX, No. 3, at 3 (referencing revised Office of Management and Budget guidance

    to agencies on contents of FOIA reference guides); FOIA Update, Vol.

    XVIII, No. 2, at 1 (discussing electronic availability of Justice Department's

    FOIA Reference Guide); see also Mount of Olives' Paralegals v.

    Bush, No. 04-CV-0044, 2004 U.S. Dist. LEXIS 8504, at 6 (S.D. Ill. Jan.

    23, 2004) (suggesting to plaintiff that it consult Justice Department's

    FOIA Reference Guide in future); Pub. Citizen v. Lew, 127 F. Supp.

    2d 1, 21 (D.D.C. 2000) (finding that several agencies initially misapplied

    OMB guidance on what constitutes "major information system").

    50 484 F.2d 820, 827 (D.C. Cir. 1973).

    51 410 U.S. at 91; see 5 U.S.C.

    § 552(b) (sentence immediately following exemptions) (requiring disclosure

    of any "reasonably segregable" nonexempt information); see also FOIA

    Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation'

    Obligation"); cf. FOIA Update, Vol. XVII, No. 1, at 1-2 (describing

    agency use of document imaging in automated FOIA processing).

    52See, e.g., Fund for Constitutional

    Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 860 (D.C.

    Cir. 1981) (dealing with records of Watergate Special Prosecution Force);

    Congressional News Syndicate v. United States Dep't of Justice, 438

    F. Supp. 538, 544 (D.D.C. 1977) (speaking of "aura of Watergate" in applying

    provisions of 1974 FOIA amendments).

    53See Pub. L. No. 93-502, 88 Stat.

    1561.

    54 See Attorney General's Memorandum

    on the 1974 Amendments to the Freedom of Information Act 1-26 (Feb.

    1975) (addressing provisions of 1974 FOIA amendments); see also James

    T. O'Reilly, Federal Information Disclosure § 3.8 (3d ed. 2000 & Supp.

    2003) (summarizing 1974 FOIA amendments' provisions).

    55 5 U.S.C. § 552a (2000).

    56See id. § 552a(d); see,

    e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1184

    (D.C. Cir. 1987) (discussing relation between two acts); see also

    5 U.S.C. § 552a(t) (addressing interrelationship of exemptions in two acts);

    FOIA Update, Vol. VII, No. 1, at 6 (advising agencies to treat all

    first-party access requests as FOIA requests as well as Privacy Act requests).

    57See 5 U.S.C. § 552a; see

    also Memorandum on Privacy and Personal Information in Federal Records,

    34 Weekly Comp. Pres. Doc. 870 (May 14, 1998), available in Westlaw,

    1998 WL 241263 (May 14, 1998) (executive memorandum to heads of all federal

    departments and agencies on Privacy Act-related matters); FOIA Update,

    Vol. XIX, No. 2, at 1 (describing executive memorandum).

    58See Pub. L. No. 94-409, 90 Stat.

    1241, 1247 (1976) (single FOIA amendment enacted together with the Government

    in the Sunshine Act in 1976, 5 U.S.C. § 552b (2000)). See generally

    FOIA Post, "Agencies Rely on Wide Range of Exemption 3 Statutes"

    (posted 12/16/03).

    59See 5 U.S.C. § 552(a)(4)(F).

    60See Federal Courts Improvement

    Act of 1984, Pub. L. No. 98-620, § 402, 98 Stat. 3335, 3357 (codified

    at 28 U.S.C. § 1657 (2000)) (repealing provision formerly codified at 5

    U.S.C. § 552(a)(4)(D) (1982)); see also FOIA Update, Vol.

    VI, No. 2, at 6.

    61See generally Freedom of

    Information Act: Hearings on S. 587, S. 1235, S. 1247, S. 1730, and S. 1751

    Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary,

    97th Cong., 1st Sess. (1981) (two volumes); see also FOIA Update,

    Vol. VII, No. 2, at 1; FOIA Update, Vol. V, No. 4, at 1; FOIA

    Update, Vol. V, No. 3, at 1, 4; FOIA Update, Vol. V, No. 1, at

    1, 6; FOIA Update, Vol. IV, No. 3, at 1-2; FOIA Update, Vol.

    IV, No. 2, at 1; FOIA Update, Vol. III, No. 3, at 1-2; FOIA Update,

    Vol. III, No. 2, at 1-2; FOIA Update, Vol. III, No. 1, at 1-2, 3-8;

    FOIA Update, Vol. II, No. 4, at 1-2; FOIA Update, Vol. II,

    No. 3, at 1-2.

    62 Pub. L. No. 99-570, 100 Stat. 3207.

    63See FOIA Update, Vol.

    VII, No. 4, at 1-2; see also id. at 3-6 (setting out statute

    in its amended form, interlineated to show exact changes made).

    64See FOIA Update, Vol.

    VIII, No. 1, at 1-2; FOIA Update, Vol. IX, No. 3, at 1-14; FOIA

    Update, Vol. IX, No. 1, at 2; see also Attorney General's

    1986 Amendments Memorandum 1-30.

    65See, e.g., FOIA Update,

    Vol. XIII, No. 2, at 1, 3-10 (congressional testimony discussing need to

    modify FOIA to accommodate "electronic record" environment); see

    FOIA Update, Vol. XVII, No. 3, at 1-2 (describing electronic record

    legislative proposal); FOIA Update, Vol. XVII, No. 2, at 1 (same);

    see also FOIA Update, Vol. XV, No. 4, at 1-6; FOIA Update,

    Vol. XV, No. 3, at 1-2; FOIA Update, Vol. XV, No. 1, at 1; FOIA

    Update, Vol. XII, No. 4, at 1-2.

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

    67See FOIA Update, Vol.

    XVII, No. 4, at 1-2, 10-11 (discussing statutory changes); see also

    id. at 3-9 (setting out statute in its amended form, interlineated

    to show exact changes made); 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.

    68See FOIA Post, "Electronic

    Compilation of E-FOIA Implementation Guidance" (posted 2/28/03); FOIA

    Post, "FOIA Officers Conference Scheduled" (posted 9/17/02); FOIA

    Post, "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02);

    FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01)

    (discussing governmentwide Electronic FOIA amendment implementation activities);

    FOIA Update, Vol. XIX, No. 3, at 5-6 (Department of Justice congressional

    testimony describing agency's amendment-implementation activities); id.

    at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update,

    Vol. XIX, No. 1, at 3-5 ("OIP Guidance: Electronic FOIA Amendments Implementation

    Guidance Outline"); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing

    agency amendment-implementation activities involving development of World

    Wide Web sites); id. at 3-7 (Department of Justice guidelines on

    implementation of new annual reporting requirements); FOIA Update,

    Vol. XVIII, No. 2, at 1 (describing Justice Department's amendment-implementation

    activities, including development of FOIA Reference Guide); FOIA Update,

    Vol. XVIII, No. 1, at 3-7 (addressing amendment-implementation questions);

    FOIA Update, Vol. XVII, No. 4, at 1-11 (describing amendments); see

    also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports"

    (posted 12/19/03); FOIA Post, "Annual Report Guidance for DHS-Related

    Agencies" (posted 8/8/03); FOIA Post, "Supplemental Guidance on

    Annual FOIA Reports" (posted 8/13/01); FOIA Post, "Agencies Continue

    E-FOIA Implementation" (posted 3/14/01); FOIA Update, Vol. XIX, No.

    4, at 4-5 (emphasizing importance of "new partnership" between agency FOIA

    officers and agency Information Technology (IT) personnel in Electronic

    FOIA amendment implementation); FOIA Update, Vol. XIX, No. 3, at

    2 (addressing additional amendment-implementation questions); 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.

    XIX, No. 1, at 6 (addressing additional amendment-implementation questions);

    FOIA Update, Vol. XVIII, No. 2, at 2 (same); cf. FOIA

    Post, "Summary of Annual FOIA Reports for Fiscal Year 2002" (posted

    9/3/03); FOIA Post, "Summary of Annual FOIA Reports for Fiscal

    Year 2001" (posted 10/17/02); FOIA Post, "Summary of Annual FOIA

    Reports for Fiscal Year 2000" (posted 1/31/02); FOIA Post, "Summary

    of Annual FOIA Reports for Fiscal Year 1999" (posted 10/15/01). See generally

    Department of Justice FOIA Regulations, 28 C.F.R. pt. 16 (2004); FOIA

    Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02)

    (describing GAO supplemental review of agency amendment-implementation activities);

    FOIA Update, Vol. XIX, No. 3, at 1 (describing 1998 congressional

    hearing on agency amendment-implementation activities).

    69 Attorney General Ashcroft's FOIA Memorandum,

    reprinted in FOIA Post (posted 10/15/01) (superseding predecessor

    Attorney General FOIA policy memorandum that had been in effect since 1993).

    70See FOIA Post, "New

    Attorney General FOIA Memorandum Issued" (posted 10/15/01) (describing Attorney

    General Ashcroft's FOIA Memorandum); see also Presidential Memorandum

    for Heads of Departments and Agencies Regarding the Freedom of Information

    Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in

    FOIA Update, Vol. XIV, No. 3, at 3 (emphasizing importance of FOIA).

    71See Attorney General Ashcroft's

    FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01)

    (recognizing protection of such interests as among "fundamental values that

    are held by our society").

    72Id.

    73See FOIA Post, "New

    Attorney General FOIA Memorandum Issued" (posted 10/15/01) (discussing new

    FOIA policy).

    74 Attorney General Ashcroft's FOIA Memorandum,

    reprinted in FOIA Post (posted 10/15/01); see also

    FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted

    10/15/01) (reminding agencies that much FOIA-exempt information is subject

    to statutory disclosure prohibitions as well as standard prudential considerations).

    75See Attorney General Ashcroft's

    FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01);

    see also FOIA Post, "New Attorney General FOIA Memorandum

    Issued" (posted 10/15/01).

    76 Attorney General Ashcroft's FOIA Memorandum,

    reprinted in FOIA Post (posted 10/15/01); see White

    House Memorandum for Heads of Executive Departments and Agencies Concerning

    Safeguarding Information Related to Homeland Security (Mar. 19, 2002), reprinted

    in FOIA Post (posted 3/21/02) (focusing on need to protect

    sensitive homeland security-related information); FOIA Post, "New

    Attorney General FOIA Memorandum Issued" (posted 10/15/01) (highlighting

    government's "need to protect critical systems, facilities, stockpiles,

    and other assets from security breaches and harm -- and in some instances

    from their potential use as weapons of mass destruction in and of themselves");

    see also FOIA Post, "FOIA Officers Conference Held on Homeland

    Security" (posted 7/3/03) (discussing the Ashcroft FOIA Memorandum in the

    context of homeland security-related considerations and the protection of

    "information viewed as sensitive through a post-9/11 lens").

    77 Pub. L. No. 107-306, 116 Stat. 2383

    (2002).

    78See 50 U.S.C. § 401a(4) (2000)

    (provision of the National Security Act of 1947, as amended, that specifies

    the federal agencies and agency subparts that are deemed "elements of the

    intelligence community").

    79 Pub. L. No. 107-306, 116 Stat. 2383,

    § 312 (codified at 5 U.S.C.A. § 552(a)(3)(A), (E) (West Supp. 2004)); see

    also FOIA Post, "FOIA Amended by Intelligence Authorization

    Act" (posted 12/23/02) (advising that "for any FOIA request that by its

    nature appears as if it might have been made by or on behalf of a non-U.S.

    governmental entity, a covered agency may inquire into the particular circumstances

    of the requester in order to properly implement this new FOIA provision").

    80 5 U.S.C. § 552(a)(3)(A); see Favish, 124 S. Ct. at 1579 (observing that the FOIA has

    "a general rule" that "the identity of the requester" is not taken into consideration)

    (emphasis added).

    81See, e.g., FOIA Post, "FOIA Officers Conference Held on Homeland Security"

    (posted 7/3/03) (discussing "[t]he safeguarding and protection of homeland security-related information [as] a subject of growing importance within all levels of

    government").

    82See FOIA Post, "FOIA Post Interview: Chairman Stephen Horn" (posted

    12/23/03) (publicizing observations by the outgoing chairman of the FOIA

    subcommittee of the House of Representatives regarding, inter alia, "the critical role

    that public access to Government information plays in our democracy"); see also

    Favish, 124 S. Ct. at 1580 (emphasizing that the FOIA is vital to "a real democracy");

    cf. FOIA Post, "OIP Gives Implementation Advice to Other Nations" (posted 12/12/02)

    (describing progress in establishing "transparency in government" worldwide).

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