Freedom of Information Act Guide, May 2004
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
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
The FOIA contains seven subsections, the first two of which establish certain
categories of information that must "automatically" be disclosed by federal
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)
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).
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").
(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.
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").
ed. June 20, 1966) (statement of Rep. John Moss describing protracted legislative
efforts, including decade of hearings, required to develop and achieve enactment
in 1966 and now codified at 5 U.S.C.A.
& Co., 421 U.S. 132, 136 (1975).
U.S. at 293; see also, e.g., FOIA Update, Vol. VI, No. 3,
at 3 ("OIP Guidance: Discretionary Disclosure and Exemption 4").
see also FOIA Update, Vol. VI, No. 2, at 6 (discussing provision
of Federal Courts Improvement Act of 1984, 28 U.S.C. Â§ 1657 (2000), which
requires that any civil action, including FOIA cases, be expedited "if good
cause therefor is shown").
XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions
of FOIA: Subsections (a)(1) & (a)(2)").
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. Â§ 9 (1991))).
XIII, No. 3, at 3-4 (advising agencies to meet their subsection (a)(1) responsibilities
on no less than quarterly basis).
see also FOIA Post, "FOIA Counselor Q&A: 'Frequently
Requested' Records" (posted 7/25/03).
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).
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.
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).
States, 750 F.2d 1101, 1111 (1st Cir. 1985).
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).
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
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).
15 F.3d at 1136 (citing Zaharakis v. Heckler, 744 F.2d 711, 714 (9th
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 Â§ 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).
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).
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).
(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.
100 Stat. 3207, 3207-48.
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
Amendments Memorandum 18, 27.
410 U.S. at 93-94 (treating individual Members of Congress as ordinary FOIA
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. Â§ 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. Â§ 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. Â§ 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. Â§ 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)).
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
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).
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).
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. Â§ 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).
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).
"Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 9/3/03).
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").
Â§ 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).
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).
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 Â§ 3.8 (3d ed. 2000 & Supp.
2003) (summarizing 1974 FOIA amendments' provisions).
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. Â§ 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).
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).
1241, 1247 (1976) (single FOIA amendment enacted together with the Government
in the Sunshine Act in 1976, 5 U.S.C. Â§ 552b (2000)). See generally
FOIA Post, "Agencies Rely on Wide Range of Exemption 3 Statutes"
Act of 1984, Pub. L. No. 98-620, Â§ 402, 98 Stat. 3335, 3357 (codified
at 28 U.S.C. Â§ 1657 (2000)) (repealing provision formerly codified at 5
U.S.C. Â§ 552(a)(4)(D) (1982)); see also FOIA Update, Vol.
VI, No. 2, at 6.
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.
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).
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.
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.
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.
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).
reprinted in FOIA Post (posted 10/15/01) (superseding predecessor
Attorney General FOIA policy memorandum that had been in effect since 1993).
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).
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").
Attorney General FOIA Memorandum Issued" (posted 10/15/01) (discussing new
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).
FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01);
see also FOIA Post, "New Attorney General FOIA Memorandum
Issued" (posted 10/15/01).
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").
(provision of the National Security Act of 1947, as amended, that specifies
the federal agencies and agency subparts that are deemed "elements of the
Â§ 312 (codified at 5 U.S.C.A. Â§ 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").
"a general rule" that "the identity of the requester" is not taken into consideration)
(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
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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