FOIA Guide, 2004 Edition: Procedural Requirments

DOJ Seal  

Freedom of Information Act Guide, May 2004


Procedural Requirements

The Freedom of Information Act requires federal agencies to make their
records promptly available to any person who makes a proper request for them. (1) To
provide a general overview of the Act's procedural requirements, this discussion will
follow a rough chronology of how a typical FOIA request is processed -- from the
point of determining whether an entity in receipt of a request is subject to the FOIA
in the first place to the review of an agency's initial decision regarding a FOIA
request on administrative appeal. (The subject of fees under the Act is discussed
more fully and separately under Fees and Fee Waivers, below.) In administering the
Act's procedural requirements, agencies should strive to "carefully consider [all]
FOIA requests" (2) and "handle [them] in a customer-friendly manner." (3)


Entities Subject to the FOIA

Agencies within the executive branch of the federal government, including the
Executive Office of the President and independent regulatory agencies, are subject
to the provisions of the FOIA. (4) However, the FOIA does not apply to entities that
"are neither chartered by the federal government [n]or controlled by it." (5) Thus, it is
settled that state governments, (6) municipal corporations, (7) the courts, (8) Congress, (9) and private citizens (10) are not subject to the FOIA. Nor does the FOIA
apply to a presidential transition team. (11)

Offices within the Executive Office of the President whose functions are
limited to advising and assisting the President also do not fall within the definition of
"agency"; (12) such offices include the Offices of the President and of the Vice President,
and their respective staffs. (13) The Court of Appeals for the District of Columbia
Circuit illustrated this functional definition of "agency" when it held that the former
Presidential Task Force on Regulatory Relief -- chaired by the Vice President and
composed of several cabinet members -- was not an agency subject to the FOIA
because the cabinet members acted not as heads of their departments "but rather
as the functional equivalents of assistants to the President." (14)

Under this functional definition of "agency," however, executive branch entities
whose responsibilities exceed merely advising and assisting the President generally
are considered "agencies" under the FOIA. (15) For example, the D.C. Circuit concluded
that the Council on Environmental Quality (a unit within the Executive Office of the
President) was an agency subject to the FOIA because its investigatory, evaluative,
and recommendatory functions exceeded merely advising the President. (16) On the
other hand, when the D.C. Circuit evaluated the structure of the National Security
Council, its proximity to the President, and the nature of the authority delegated to
it, the D.C. Circuit determined that the National Security Council is not an agency
subject to the FOIA. (17)


"Agency Records"

The Supreme Court has articulated a basic, two-part test for determining
what constitutes "agency records" under the FOIA: "Agency records" are records
that are (1) either created or obtained by an agency, and (2) under agency control at
the time of the FOIA request. (18) Inasmuch as the "agency record" analysis usually
hinges upon whether an agency has sufficient "control" over a record, (19) courts have
identified four relevant factors for an agency to consider when making such a
determination: the intent of the record's creator to retain or relinquish control over
the record; the ability of the agency to use and dispose of the record as it sees fit;
the extent to which agency personnel have read or relied upon the record; and the
degree to which the record was integrated into the agency's recordkeeping system
or files. (20) Agency "control" is also the predominant consideration in determining the
"agency record" status of records that are either generated (21) or maintained (22) by a
government contractor.

Another important consideration in the "agency record" analysis sometimes is
whether Congress, whose records are not subject to the FOIA, (23) has manifested an
intent to exert control over certain records in an agency's possession. (24)
"Congressional records" may include records received by an agency from Congress, (25)
or records generated by an agency in response to a confidential congressional
inquiry, (26) and their status will depend on the particular contours of the congressional
reservation of control over those records. (27) In all such cases, Congress's
manifestation of its intent to control such records cannot be accomplished on a "post
hoc" basis "long after the original creation [or] transfer of the requested
documents." (28) Instead, Congress's intent to exert control over the records must be
evident from the circumstances surrounding their creation or transmittal. (29)
Otherwise, the records may not be considered to be "congressional records" beyond
the reach of the FOIA. (30)

In a similar vein, agencies should take care to distinguish "agency records"
from "personal records," which are maintained by agency employees but are not
subject to the FOIA. (31) In determining the "personal record" status of a record, an
agency should examine "the totality of the circumstances surrounding the creation,
maintenance, and use" of the record. (32) Factors relevant to this inquiry include the
purpose for which the document was created, the degree of integration of the
record into the agency's filing system, and the extent to which the record's author or
other employees used the record to conduct agency business. (33)

Agencies also should be mindful of the "agency record" status of research
data generated through federal grants. The Omnibus Consolidated and Emergency
Supplemental Appropriations Act for Fiscal Year 1999, (34) which partly overruled the
longstanding Supreme Court precedent of Forsham v. Harris, (35) made certain
research data generated through federal grants subject to the FOIA. (36) In Forsham,
the Supreme Court held that data generated and maintained by private research
institutions receiving federal grants are not "agency records" subject to the FOIA,
and that a grantor agency is not obligated to demand such data in order to respond
to any FOIA request for them. (37) This statutory provision, however, required the
Office of Management and Budget to revise its Circular A-110 (the regulatory
publication by which OMB sets the rules governing grants from all federal agencies
to institutions of higher education, hospitals, and nonprofit institutions) so that "all
data produced under an award will be made available to the public through the
procedures established under the Freedom of Information Act." (38) The final revised
version of Circular A-110 requires agencies to respond to FOIA requests for certain
grantee research findings by obtaining the requested data from the grantee and
processing it for release to the requester. (39) (In accordance with OMB's statutory
authority over such matters, questions concerning the processing of FOIA requests
for grantee research data should be directed to OMB's Office of Information and
Regulatory Affairs, Information Policy and Technology Branch, at (202) 395-7856.)

At a more fundamental level, the FOIA applies only to "records," not to
tangible, evidentiary objects. (40) The courts initially defined "record" by relying on the
traditional dictionary meaning of the term. (41) However, the Supreme Court
subsequently broadened the meaning of "record" by incorporating the more modern
record media referenced in the Records Disposal Act (42) into its definition of the
term. (43) As information technology evolved, computer software increasingly could be
considered as generally within the definition of "record." (44) With the passage of the
Electronic Freedom of Information Act Amendments of 1996, (45) the FOIA now defines
the term "record" as simply "includ[ing] any information that would be an agency
record . . . when maintained by an agency in any format, including an electronic
format." (46)


FOIA Requesters

A FOIA request can be made by "any person," a broad term that
encompasses individuals (including foreign citizens), partnerships, corporations,
associations, and foreign or domestic governments; (47) requests may also be made
through an attorney or other representative on behalf of "any person." (48) Although
the statute specifically excludes federal agencies from the definition of a "person," (49)
states and state agencies can make FOIA requests. (50)

There are two narrow, noteworthy exceptions to this broad "any person"
standard, however. First, courts have denied relief under the FOIA to fugitives from
justice if the requested records relate to the requester's fugitive status. (51) This holds
true also when the FOIA plaintiff is an agent acting on behalf of a fugitive. (52)

Second, the Intelligence Authorization Act of 2003 (53) amended the FOIA to now
preclude agencies of the intelligence community (54) 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. (55) This means that agencies such as the Central Intelligence Agency,
National Security Agency, and even some parts of the Federal Bureau of
Investigation and the new Department of Homeland Security may refuse to process
such requests. (56)

Inasmuch as FOIA requests can be made for any reason whatsoever, FOIA
requesters generally do not have to justify or explain their reasons for making
requests. (57) Consistent with this, the Supreme Court has stated that a FOIA
requester's basic access rights are neither increased nor decreased because the
requester claims to have a particular interest in the records sought. (58) Yet despite
repeated Supreme Court admonitions for restraint, (59) requesters have invoked the
FOIA successfully as a substitute for, or a supplement to, document discovery in the
contexts of both civil (60) and criminal (61) litigation.

Nevertheless, there are two types of circumstances in which a requester's
reason for making a FOIA request can properly affect the manner in which it is
processed, either procedurally or substantively. First, the resolution of certain
procedural issues -- i.e., expedited access, the assessment or waiver of fees, and the
award of attorney fees and costs to a successful FOIA plaintiff -- can depend upon
the reason for which the request was made. (62) Second, a requester's reason for
making a FOIA request -- as it is reflected in an evidentiary showing of "public
interest" -- can substantively affect the agency's decision to disclose or withhold
information that is potentially subject to the FOIA's privacy exemptions. (63) (For
discussions of the proper application of those exemptions, see Exemption 6, below,
and Exemption 7(C), below.)

On a related note, the Supreme Court has observed that a FOIA requester's
identity generally "has no bearing on the merits of his or her FOIA request." (64)
However, the Court has recognized an exception to this general rule by noting that
the requester's identity can be significant in one substantive respect: "The fact that
no one need show a particular need for information in order to qualify for disclosure
under the FOIA does not mean that in no situation whatever will there be valid
reasons for treating [an exemption] differently as to one class of those who make
requests than as to another class." (65) In short, this means that an agency should not
invoke a FOIA exemption to protect a requester from himself. (66)

Finally, the Court of Appeals for the District of Columbia Circuit has held that
under some circumstances a FOIA claim in litigation may survive even if the FOIA
requester dies before the case is put to rest. (67)


Proper FOIA Requests

The FOIA specifies only two requirements for an access request: It must
"reasonably describe" the records sought (68) and it must be made in accordance with
the agency's published FOIA regulations. (69) Because "a person need not title a
request for government records a 'FOIA request,'" (70) agencies should use sound
administrative discretion when determining the nature of an access request. (71) For
example, a first-party access request that cites only the Privacy Act of 1974 (72) should
be processed under both that statute and the FOIA. (73)

The legislative history of the 1974 FOIA amendments indicates that a
description of a requested record that enables a professional agency employee
familiar with the subject area to locate the record with a "reasonable amount of
effort" is sufficient. (74) Courts have explained that "[t]he rationale for this rule is that
FOIA was not intended to reduce government agencies to full-time investigators on
behalf of requesters," (75) or to allow requesters to conduct "fishing expeditions"
through agency files. (76) Accordingly, one FOIA request was held invalid because it
required an agency's FOIA staff either to have "clairvoyant capabilities" to discern
the requester's needs or to spend "countless numbers of personnel hours seeking
needles in bureaucratic haystacks." (77)

However, the fact that a FOIA request is very broad or "burdensome" in its
magnitude does not, in and of itself, entitle an agency to deny that request on the
basis that it does not "reasonably describe" the records sought. (78) The key factor is
the ability of an agency's staff to reasonably ascertain exactly which records are
being requested and then locate them. (79) The courts have held only that agencies
are not required to conduct wide-ranging, "unreasonably burdensome" searches for
records. (80)

By the same token, an agency should "carefully consider" the nature of each
FOIA request (81) and give reasonable import to its terms and full content overall, even
if the request "is not a model of clarity." (82) Likewise, an agency "must be careful not
to read [a] request so strictly that the requester is denied information the agency
well knows exists in its files, albeit in a different form from that anticipated by the
requester." (83) Specifically, agencies should be careful to undertake any "scoping" of
documents found in response to a request only with full communication with the
FOIA requester. (84)

Although the scope of a FOIA request is most commonly thought of as being
defined by the subject matter of the records that it seeks, a request's scope also
depends on the time frame in which the requested records were created. (85) The
temporal scope of a FOIA request typically is defined through the agency's use of a
"cut-off" date, meaning that records created after that date are treated as not
responsive to the request. (86) Generally speaking, an agency should use as its "cut-off"
date the date that the search for records begins (i.e., a "date-of-search cut-off") (87)--
which courts have favored because it "results in a much fuller search and disclosure"
than the use of a less inclusive cut-off, such as one based on the date of the request
or of its receipt by the agency. (88) While an agency may choose not to use a "date-of-search cut-off" if "specific circumstances" warrant, (89) it may be required to articulate a
"compelling justification" for doing so if challenged in court. (90)

No matter which type of "cut-off" date an agency adopts and ordinarily uses, it
is obliged to inform FOIA requesters of that date. (91) The most efficient way in which
an agency can give such notice is through "constructive notice" in its published FOIA
regulations (92) and/or through its FOIA Reference Guide on its FOIA Web site. (93)
Alternatively, an agency can give actual notice of its "cut-off" date policy in its
correspondence with each FOIA requester individually. (94) An agency also can use
such a letter whenever it departs from its ordinary practice for some reason, lest the
requester mistakenly be on "constructive notice" to the contrary. (95) Simply put, a
FOIA requester should know what "cut-off" date is being applied to his request, if for
no other reason than to minimize the chance of any inefficient misunderstanding
about its scope. (96) (For further discussions of search requirements, see Procedural
Requirements, Searching for Responsive Records, below, and Litigation
Considerations, Adequacy of Search, below.)

When determining the scope of a FOIA request, however, agencies should
remember that they are not required to answer questions posed as FOIA requests. (97)
Nor does the FOIA require agencies to respond to requests by creating records, (98)
such as by modifying exempt information in order to make it disclosable. (99) Likewise,
agencies need not add explanatory materials to any records disclosed in response
to a FOIA request. (100) Agen-cies also cannot be required by FOIA requesters to seek
the return of records over which they retain no "control" (101) (even records that were
wrongfully removed from their possession); (102) to recreate records properly disposed
of; (103) or to seek the delivery of records held by private entities. (104) Requesters also
cannot use the FOIA as an "enforcement mechanism" to compel agencies to perform
their missions. (105) Nor may requesters compel agencies to make automatic releases
of records as they are created, (106) which means that requests cannot properly be
made for "future" records not yet created. (107)

Likewise, both agencies and requesters alike should remember to distinguish
between records that may be sought through FOIA requests (108) and records that are
required to be made available in agency reading rooms (both conventional and
"electronic") under subsection (a)(2) of the Act. (109) Agencies are not required to
provide FOIA requesters with records that fall within subsection (a)(2) and are
already available for "reading room" inspection and copying. (110) (For a discussion of
"reading room" records, see FOIA Reading Rooms, above.)

In addition to reasonably describing the records sought, a FOIA requester
must follow an agency's regulations in making a request. (111) Each federal agency
must publish in the Federal Register its procedural regulations governing access to
its records under the FOIA. (112) These regulations must inform the public of where
and how to address requests; its schedule of fees for search, review, and
duplication; its fee waiver criteria; and its administrative appeal procedures. (113) The
Electronic Freedom of Information Act Amendments of 1996 (114) affected several
procedural aspects of FOIA administration (115) (including matters concerning the
timing of processing FOIA requests, which are discussed below). (116) Each federal
agency is required to have implementing regulations published in the Federal
Register
that address these matters as well. (117)

Although an agency occasionally may waive some of its published procedures
for reasons of public interest, speed, or simplicity, all agencies should remember
that any "unnecessary bureaucratic hurdle has no place in [the Act's]
implementation." (118) Accordingly, an agency may not impose any additional
requirements on a requester beyond those prescribed in its regulations. (119) Of
course, agencies should adhere strictly to their own regulations, especially when
doing so would benefit the FOIA requester. (120) Conversely, a requester's failure to
comply with an agency's procedural regulations governing access to records -- such
as those concerning properly addressed requests, (121) fees and fee waivers, (122) proof of
identity, (123) and administrative and administrative appeals (124) -- may be held to
constitute a failure to properly exhaust administrative remedies. (For a further
discussion of exhaustion of administrative remedies, see Litigation Considerations,
Exhaustion of Administrative Remedies, below.)


Time Limits

Until an agency (or the proper component of that agency) receives a FOIA
request, it is not obligated to search for responsive records, meet time deadlines, or
release any records. (125) Requests not filed in accordance with published regulations
are not deemed to have been received until they are identified as proper FOIA
requests by agency personnel. (126) For example, under Department of Justice
regulations, (127) a request is not considered received until the requester has promised
to pay fees (above a minimum amount) or the receiving component has decided to
waive all fees. (128) Moreover, if a requester agrees to pay properly assessed search,
review, and/or duplication fees but later fails to pay those fees, an agency may
refuse to process that requester's subsequent requests until the amount owed is
paid. (129) (For a discussion of the assessment of fees, see Fees and Fee Waivers,
below.)

Once an agency properly receives a FOIA request, (130) it has twenty working
days in which make a determination on the request. (131) Previously, once an agency
was in receipt of a proper FOIA request, it was required to inform the requester of
its decision to grant or deny access to the requested records within ten working
days, but the Electronic Freedom of Information Act Amendments of 1996 increased
the Act's basic time limit for agency responses, lengthening it from ten to twenty
working days. (132) Agencies are not necessarily required to release the records within
the statutory time limit, but access to releasable records should, at a minimum, be
granted promptly thereafter. (133)

In "unusual circumstances," an agency can extend the twenty-day time limit
for processing a FOIA request if it tells the requester in writing why it needs the
extension and when it will make a determination on the request. (134) The FOIA
defines "unusual circumstances" as: (1) the need to search for and collect records
from separate offices; (2) the need to examine a voluminous amount of records
required by the request; and (3) the need to consult with another agency or agency
component. (135) If the required extension exceeds ten days, the agency must allow
the requester an opportunity to modify his or her request, or to arrange for an
alternative time frame for completion of the agency's processing. (136)

In many instances, though, agencies cannot meet these time limits for a
variety of reasons, including the limitations on their resources. (137) Agencies therefore
have adopted the court-sanctioned practice of generally handling backlogged FOIA
requests on a "first-in, first-out" basis. (138) The Electronic FOIA amendments expressly
authorized agencies to promulgate regulations providing for "multitrack processing"
of their FOIA requests -- which allows agencies to process requests on a first-in,
first-out basis within each track, but also permits them to respond to relatively
simple requests more quickly than requests involving complex and/or voluminous
records. (139) (For a further discussion of these points, see Litigation Considerations,
"Open America" Stays of Proceedings, below.)

An agency's failure to comply with the time limits for either an initial request
or an administrative appeal may be treated as a "constructive exhaustion" of
administrative remedies. (140) A requester may immediately thereafter seek judicial
review if he or she wishes to do so. (141) However, the D.C. Circuit has interpreted this
rule of constructive exhaustion by requiring that once the agency responds to the
FOIA request -- after the statutory time limit but before the requester has filed suit --
the requester must administratively appeal the denial before proceeding to court. (142)
(For a discussion of this aspect of FOIA litigation, see Litigation Considerations,
Exhaustion of Administrative Remedies, below.)

Under the law existing prior to the enactment of the Electronic FOIA
amendments, an agency sued for not responding to a FOIA request could receive
additional time to process that request if it could show that its failure to meet the
statutory time limits resulted from "exceptional circumstances" and that it was
applying "due diligence" in processing the request. (143) Previously, the need to
process an extremely large volume of requests constituted "exceptional
circumstances," and the commitment of large amounts of resources to process
requests on a first-come, first-served basis was considered "due diligence." (144) The
Electronic FOIA amendments, however, explicitly excluded "a predictable agency
workload" of FOIA requests as "exceptional circumstances . . . unless the agency
demonstrates reasonable progress in reducing its backlog of pending requests." (145)
Nevertheless, a requester's refusal "to reasonably modify the scope of a request or
arrange for an alternative time frame for processing the request," may be used as
evidence of "exceptional circumstances." (146) (For a discussion of the litigation aspects
of the Act's "exceptional circumstances" provision, see Litigation Considerations,
"Open America" Stays of Proceedings, below.)


Expedited Processing

Prior to the enactment of Electronic Freedom of Information Act Amendments
of 1996, (147) a FOIA request could have received "expedited" treatment and be
processed out of sequence if the requester could show an "exceptional need or
urgency." (148) Courts granted expedited access when exceptional circumstances
surrounding a request, such as jeopardy to life or personal safety, (149) or a threatened
loss of substantial due process rights, (150) warranted such treatment.

Now the Electronic FOIA amendments require agencies to promulgate
regulations providing for the expedited processing of requests if the requester
demonstrates a "compelling need" (as defined by the amended statute), or in any
other case the agency deems appropriate under its regulations. (151) Under the
amended statute, a requester can show "compelling need" in one of two ways: by
establishing that his or her failure to obtain the records quickly "could reasonably be
expected to pose an imminent threat to the life or physical safety of an individual";
or, if the requester is a "person primarily engaged in disseminating information," (152)
by demonstrating that an "urgency to inform the public concerning actual or alleged
Federal Government activity" exists. (153) At their discretion, agencies may grant
expedited treatment under additional circumstances as well. (154) Agencies must
determine whether to grant a request for expedited access within ten calendar days
of its receipt by the proper FOIA office. (155) (For a further discussion of expedited
access, see Litigation Considerations, "Open America" Stays of Proceedings, below.)


Searching for Records

The adequacy of an agency's search under the FOIA is determined by a test of
"reasonableness," which may vary from case to case. (156) As a general rule, an agency
must undertake a search that is "reasonably calculated to uncover all relevant
documents." (157) The reasonableness of an agency's search depends, in part, on how
the agency conducted its search in light of the scope of the request (158) and the
requester's description of the records sought (159) -- particularly if the description
includes specific details about the circumstances surrounding the agency's creation
or maintenance of the records. (160) The reasonableness of a search also depends on
the standards the agency used in determining where responsive records were likely
to be found, (161) especially if the agency fails to locate records it has reason to know
might exist, (162) or if the search requires agency employees to distinguish "personal"
records from "agency" records. (163) Nevertheless, an agency's inability to locate every
single responsive record does not undermine an otherwise reasonable search. (164)

Prior to the enactment of the Electronic FOIA amendments, several courts
held that agencies do not have to organize or reorganize file systems in order to
respond to particular FOIA requests, (165) to write new computer programs to search
for "electronic" data not already compiled for agency purposes, (166) or to aggregate
computerized data files so as to effectively create new, releasable records. (167) More
than one court ruled, though, that agencies may be required to perform relatively
simple computer searches to locate requested records, or to demonstrate why such
searches are unreasonable in a given case. (168)

Consistent with these latter cases, and to promote electronic database
searches, the Electronic FOIA amendments now require agencies to make
"reasonable efforts" to search for requested records in electronic form or format
"except when such efforts would significantly interfere with the operation of the
agency's automated information system." (169) The Electronic FOIA amendments
expressly define the term "search" as meaning "to review, manually or by automated
means, agency records for the purpose of locating those records which are
responsive to a request." (170) (For a discussion of the litigation aspects of adequacy of
search, see Litigation Considerations, Adequacy of Search, below.)


"Reasonably Segregable" Obligation

The FOIA requires that "any reasonably segregable portion of a record" must
be released after appropriate application of the Act's nine exemptions. (171) Agencies
should pay particularly close attention to this "reasonably segregable" requirement
because courts may closely examine the propriety of agency segregability
determinations, (172) even if the requester does not raise the issue of segregability at
the administrative level or before the court. (173) Accordingly, an agency must
adequately demonstrate to the court that all reasonably segregable, nonexempt
information -- perhaps even including individual numbers contained within multiple-digit codes (174) -- was disclosed. (175)

If, however, an agency determines that nonexempt material is so "inextricably
intertwined" that disclosure of it would "leave only essentially meaningless words
and phrases," then the entire record may be withheld. (176) In cases involving a large
amount of records or an unreasonably high-cost, "line-by-line" review, agencies may
withhold small segments of nonexempt data "if the proportion of nonexempt factual
material is relatively small and is so interspersed with exempt material that
separation by the agency and policing by the courts would impose an inordinate
burden." (177) Agencies nonetheless may make discretionary disclosures of exempt
information, but should do so only upon "full and deliberate consideration of the . . .
interests that could be implicated by disclosure of the information. (178) (For a
discussion of discretionary disclosure, see Discretionary Disclosure and Waiver,
below; for a further discussion of segregability, see Litigation Considerations,
"Reasonably Segregable" Requirements, below.)


Referrals and Consultations

When an agency locates records responsive to a FOIA request, it should
determine whether any of those records, or information contained in those records,
originated with another agency or agency component. (179) As a matter of sound
administrative practice, an agency should consult with any other agency or other
agency component whose information appears in the responsive records, especially
if that other agency or component is better able to determine whether the
information is exempt from disclosure. (180) An agency may also consult with any other
agency that holds an equity in, or special expertise or knowledge concerning, a
particular type of information. (181) If the response to the consultation is delayed, the
agency or component in receipt of the FOIA request should notify the requester that
a supplemental response will follow when the consultation is completed. (182)

If an agency or component locates entire records originating with another
agency or component, it should refer those records to their originator for its direct
response to the requester. (183) The referring agency or component ordinarily should
advise the requester of the referral and of the name of the agency FOIA office to
which it was made. (184) Some agencies have streamlined their practices of continually
referring certain routine records or classes of records to other agencies or
components by establishing standard processing protocols and agreements
between them. (185)

All agencies should remember, however, that even after they make such
record referrals in response to FOIA requests, they retain the responsibility of
defending any agency action taken on those records if the matter proceeds to
litigation. (186) Additionally, agencies receiving referrals should handle them on a "first-in, first-out" basis among their other FOIA requests -- but they should be sure to do
so according to the date of the request's initial receipt at the referring agency, lest
FOIA requesters be placed at an unfair timing disadvantage through agency referral
practices. (187)

Finally, it should be noted that if an agency determines that it does not
maintain any record responsive to a particular FOIA request, that agency is under no
obligation to refer that request to any other agency where such records might be
located. (188) As a matter of administrative discretion, though, the agency may advise
the requester of the name and address of such other agency. (189)


Responding to FOIA Requests

The FOIA provides that each agency "shall make [its disclosable] records
promptly available" upon request. (190) Although the D.C. Circuit has suggested that an
agency is not required to make requested records available by mailing copies of
them to a FOIA requester if the agency prefers to make the "responsive records
available in one central location for [the requester's] perusal," such as in a "reading
room," (191) the Department of Justice strongly advises agencies to decline to follow
such a practice unless the requester prefers it as well. (192) However, agencies
certainly may require requesters to pay any fees owed before releasing the
processed records; otherwise, agencies "would effectively be bankrolling search and
review, and duplicating expenses because there would never be any assurance
whatsoever that payment would ever be made once the requesters had the
documents in their hands." (193)

The FOIA does not provide for limited disclosure; rather, it "speaks in terms of
disclosure and nondisclosure [and] ordinarily does not recognize degrees of
disclosure, such as permitting viewing, but not copying, of documents." (194) Moreover,
"[t]here is no mechanism under FOIA for a protective order allowing only the
requester to see [the requested information] or for proscribing its general
dissemination." (195) In short, "once there is disclosure, the information belongs to the
general public." (196)

An agency must "provide the [requested] record in any form or format
requested by the person if the record is readily reproducible by the agency in that
form or format" and "make reasonable efforts to maintain its records in forms or
formats that are reproducible" for such purposes. (197) Together, these two provisions
require agencies to honor a requester's specific choice among existing forms of a
requested record (assuming no exceptional difficulty in reproducing an existing
record form) (198) and to make "reasonable efforts" to disclose a record in a different
form or format when that is requested, if the record is "readily reproducible" in that
new form or format. (199)

Given "that computer-stored records, whether stored in the central
processing unit, on magnetic tape, or in some other form, are records for the
purposes of the FOIA," (200) agencies should endeavor to use advanced technology to
satisfy existing or potential FOIA demands most efficiently -- including through
"affirmative" electronic disclosures. (201) To do so, and also to meet their "electronic
reading room" obligations under the Electronic FOIA amendments as well, (202) all
federal agencies must pay increasing attention to the design and development of
their sites on the World Wide Web for purposes of FOIA administration. (203) (For a
discussion of "electronic reading rooms," see FOIA Reading Rooms, above.)

When an agency denies an initial request in full or in part, it must provide the
requester with certain specific administrative information about the action taken on
the request -- including an estimate of the amount of denied information, unless
doing so would undermine the protection provided by an exemption. (204) Additionally,
the Electronic FOIA amendments require agencies to indicate the amount of
information excised at the point in the record where the excision was made,
wherever it is "technically feasible" to do so. (205)

While "[t]here is no requirement that administrative responses to FOIA
requests contain the same documentation necessary in litigation," (206) a decision to
deny an initial request must inform the requester of the reasons for denial; of the
right to appeal; and of the name and title of each person responsible for the
denial. (207) Agencies also must include administrative appeal notifications in all of
their "no record" responses to FOIA requesters. (208)

Notifications to requesters should also contain other pertinent information:
when and where records will be made available; what fees, if any, must be paid
prior to the granting of access; what records are or are not responsive to the
request; the date of receipt of the request or appeal; and the nature of the request
or appeal and, when appropriate, the agency's interpretation of it. (209) Furthermore,
because an agency is obligated to provide a FOIA requester with the "best copy
available" of a record, (210) an agency should address in its correspondence any
problem with the quality of its photocopy of a disclosed record. (211)

Finally, a requester has the right to administratively appeal any adverse
determination an agency makes on his or her FOIA request. (212) Under Department of
Justice regulations, for example, adverse determinations include: denials of records
in full or in part; "no records" responses; denials of requests for fee waivers; and
denials of requests for expedited treatment. (213) An agency must make a
determination on an administrative appeal within twenty working days after its
receipt. (214) An administrative appeal decision upholding an adverse determination
must also inform the requester of the provisions for judicial review of that
determination in the federal courts. (215) (For discussions of the various aspects of
judicial review of agency action under the FOIA, see Litigation Considerations,
below.)

    1. 5 U.S.C. § 552(a)(3)(A) (2000).

    2. 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) (Attorney General FOIA policy memorandum
    encouraging all federal agencies to make "careful[] . . . disclosure determinations
    under the FOIA" and also to "consult with the Department of Justice's Office of
    Information and Privacy when significant FOIA issues arise").

    3. 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.

    4. 5 U.S.C. § 552(f)(1).

    5. H.R. Rep. No. 93-1380, at 14 (1974), reprinted in House Comm. on Gov't Operations
    and Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information
    Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts,
    and Other Documents at 231-32 (1975); see Forsham v. Harris, 445 U.S. 169, 179-80
    (1980) (holding that private grantee of federal agency is not itself subject to FOIA);
    Missouri v. United States Dep't of Interior, 297 F.3d 745, 750 (8th Cir. 2002) ("The
    provision of federal resources, such as federal funding, is insufficient to transform a
    private organization into a federal agency."); Pub. Citizen Health Research Group v.
    HEW
    , 668 F.2d 537, 543-44 (D.C. Cir. 1981) (stating that medical peer review
    committees are not agencies under FOIA); Irwin Mem'l Blood Bank v. Am. Nat'l Red
    Cross
    , 640 F.2d 1051, 1057 (9th Cir. 1981) (determining that American National Red
    Cross is not an agency under FOIA); Gilmore v. United States Dep't of Energy, 4 F.
    Supp. 2d 912, 919-20 (N.D. Cal. 1998) (finding that privately owned laboratory that
    developed electronic conferencing software, for which government owned
    nonexclusive license for its use, is not "a government-controlled corporation" as it is
    not subject to day-to-day supervision by federal government, nor are its employees
    or management considered government employees); Leytman v. N.Y. Stock Exch.,
    No. 95 CV 902, 1995 WL 761843, at *2 (E.D.N.Y. Dec. 6, 1995) (relying on Indep. Investor
    Protective League v. N.Y. Stock Exch.
    , 367 F. Supp. 1376, 1377 (S.D.N.Y. 1973), to find
    that although "[t]he Exchange is subject to significant federal regulation . . . it is not
    an agency of the federal government"); Rogers v. United States Nat'l Reconnaissance
    Office
    , No. 94-B-2934, slip op. at 7 (N.D. Ala. Sept. 13, 1995) (observing that "[t]he
    degree of government involvement and control over [private organizations which
    contracted with government to construct office facility is] insufficient to establish
    companies as federal agencies for purposes of the FOIA"); see also FOIA Update,
    Vol. XIX, No. 4, at 2 (noting the FOIA's applicability to certain research data
    generated by private grantees of federal agencies, pursuant to the Omnibus
    Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999,
    Pub. L. No. 105-277, 112 Stat. 2681 (1998), as implemented by OMB Circular A-110,
    "Uniform Administrative Requirements for Grants and Agreements with Institutions
    of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg.
    54,926 (Oct. 8, 1999)). But see Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R.
    Passenger Corp.
    , No. 02-126, 2003 WL 21146674, at *6 (M.D. Fla. May 13, 2003)
    ("Although [defendant] Amtrak is not a federal agency, it must comply with FOIA"
    pursuant to a specific provision in its own organic statute (citing 49 U.S.C. § 24301(e)
    (2000))) (appeal pending); Cotton v. Adams, 798 F. Supp. 22, 24 (D.D.C. 1992) (holding
    that the Smithsonian Institution is an agency under the FOIA on basis that it
    "performs governmental functions as a center of scholarship and national museum
    responsible for the safe-keeping and maintenance of national treasures"), holding
    questioned on appeal of award of attorney fees sub nom.
    Cotton v. Heyman, 63 F.3d
    1115, 1123 (D.C. Cir. 1995) (noting that the Smithsonian Institution could "reasonably
    interpret our precedent to support its position that it is not an agency under FOIA");
    Ass'n of Cmty. Orgs. for Reform Now v. Barclay, No. 3-89-409T, slip op. at 8 (N.D. Tex.
    June 9, 1989) (holding that federal home loan banks are agencies under FOIA); cf.
    Dong v. Smithsonian Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (holding that the
    Smithsonian Institution is not an agency for purposes of the Privacy Act of 1974
    (5 U.S.C. § 552a (2000)), as it is neither an "establishment of the executive branch" nor
    a "government-controlled corporation").

    6. See, e.g., Lau v. Sullivan County Dist. Att'y, No. 99-7341, 1999 WL 1069966, at *2
    (2d Cir. Nov. 12, 1999); Martinson v. DEA, No. 96-5262, 1997 WL 634559, at *1 (D.C. Cir.
    July 3, 1997); Ortez v. Wash. County, 88 F.3d 804, 811 (9th Cir. 1996); Davidson v.
    Georgia
    , 622 F.2d 895, 897 (5th Cir. 1980); see also Mount of Olives Paralegals v. Bush,
    No. 04-C-620, 2004 U.S. Dist. LEXIS 8085, at *6 (N.D. Ill. May 6, 2004) ("[T]he federal
    FOIA statute may not be used against state agencies."); Rodgers v. Texas, No. 03-2015, 2004 WL 764946, at *2 n.1 (N.D. Tex. Apr. 7, 2004) ("FOIA does not apply to state
    agencies.") (non-FOIA case); Daniel v. Safir, 175 F. Supp. 2d 474, 481 (E.D.N.Y. 2001)
    ("[T]here is no right of action under FOIA against state actors or officials."), aff'd, 42
    Fed. Appx. 528 (2d Cir. 2002); McClain v. United States Dep't of Justice, No. 97-C-0385,
    1999 WL 759505, at *2 (N.D. Ill. Sept. 1, 1999) (dismissing FOIA claims against state
    attorney general because "[p]laintiff may assert Privacy Act and Freedom of
    Information Act claims against . . . federal defendants only"), aff'd, 17 Fed. Appx. 471
    (7th Cir. 2001); Beard v. Dep't of Justice, 917 F. Supp. 61, 63 (D.D.C. 1996) (holding
    District of Columbia Police Department to be "local" law enforcement agency not
    subject to FOIA); Gillard v. United States Marshals Serv., No. 87-0689, 1987 WL 11218,
    at *1 (D.D.C. May 11, 1987) (holding that District of Columbia Government records are
    not covered by FOIA).

    7. See Lau, 1999 WL 1069966, at *2 (affirming dismissal of FOIA claims against
    county officials); Jones v. City of Indianapolis, 216 F.R.D. 440, 443 (S.D. Ind. 2003) ("The
    term 'agency' in the FOIA does not apply to municipal agencies."); Essily v. Giuliani,
    No. 00-5271, 2000 WL 1154313, at *1 (S.D.N.Y. Aug. 14, 2000) ("FOIA does not apply to
    city agencies."), aff'd, 22 Fed. Appx. 77 (2d Cir. 2001); McClain, 1999 WL 759505, at *2
    (dismissing plaintiff's FOIA claims against county attorney).

    8. See, e.g., United States v. Mitchell, No. 03-6938, 2003 WL 22999456, at *1 (4th Cir.
    Dec. 23, 2003) ("[F]ederal courts do not fall within the definition of 'agency' under
    FOIA.") (non-FOIA case); United States v. Alcorn, 6 Fed. Appx. 315, 317 (6th Cir. 2001)
    (holding that "the federal courts are specifically excluded from FOIA's definition of
    'agency'") (non-FOIA case); Gaydos v. Mansmann, No. 98-5002, 1998 WL 389104, at *1
    (D.C. Cir. June 24, 1998) (per curiam); Warth v. Dep't of Justice, 595 F.2d 521, 523 (9th
    Cir. 1979); see also Andrade v. United States Sentencing Comm'n, 989 F.2d 308, 309-10
    (9th Cir. 1993) (Sentencing Commission, as independent body within judicial branch,
    is not subject to FOIA); Wayne Seminoff Co. v. Mecham, No. 02-2445, 2003 U.S. Dist.
    LEXIS 5829, at *20 (E.D.N.Y. Apr. 10, 2003) ("[T]he Administrative Office of the United
    States Courts is not an agency for purposes of FOIA."), aff'd, 82 Fed. Appx. 740 (2d
    Cir. 2003); Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 40 (D.D.C.
    2003) ("[A] United States probation office is not subject to the FOIA's disclosure
    requirements because it is an arm of the federal courts."); United States v. Ford, No.
    96-00271-01, 1998 U.S. Dist. LEXIS 16438, at *1 (E.D. Pa. Oct. 21, 1998) ("The Clerk of
    Court, as part of the judicial branch, is not an agency as defined by FOIA."); cf.
    Callwood v. Dep't of Prob., 982 F. Supp. 341, 342 (D.V.I. 1997) ("[T]he Office of
    Probation is an administrative unit of [the] Court . . . [and] is not subject to the terms
    of the Privacy Act.").

    9. See, e.g., United We Stand Am. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) ("The
    Freedom of Information Act does not cover congressional documents."); Dow Jones
    & Co. v. Dep't of Justice
    , 917 F.2d 571, 574 (D.C. Cir. 1990) (holding that Congress is
    not an agency for any purpose under FOIA); see also Mayo v. United States Gov't
    Printing Office
    , 9 F.3d 1450, 1451 (9th Cir. 1994) (deciding that Government Printing
    Office is part of congressional branch and therefore is not subject to FOIA); Owens v.
    Warner
    , No. 93-2195, slip op. at 1 (D.D.C. Nov. 24, 1993) (ruling that office of Senator
    John Warner is not subject to FOIA), summary affirmance granted, No. 93-5415, 1994
    WL 541335 (D.C. Cir. May 25, 1994).

    10. See, e.g., Mitchell, 2003 WL 22999456, at *1 ("[P]rivate counsel and law firms are
    not subject to FOIA."); In re Olsen, No. UT-98-088, 1999 Bankr. LEXIS 791, at *11
    (B.A.P. 10th Cir. June 24, 1999) (holding that chapter seven bankruptcy trustee is not
    an agency under FOIA); Buemi v. Lewis, No. 94-4156, 1995 WL 149107, at *2 (6th Cir.
    Apr. 4, 1995) (concluding that the FOIA applies only to federal agencies and not to
    private individuals); Allnutt v. United States Dep't of Justice, 99 F. Supp. 2d 673, 678
    (D. Md. 2000) (holding that records possessed by private trustee acting as agent of
    United States Trustee are not "agency records" subject to FOIA), aff'd sub nom.
    Allnut v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Germosen v. Cox, No. 98 Civ. 1294,
    1999 WL 1021559, at *20 (S.D.N.Y. Nov. 9, 1999) (noting that "there is no authority in
    the FOIA or Privacy Act obligating . . . private individuals to maintain or make
    available documents to the public"); Allnutt v. United States Trustee, Region Four,
    No. 97-02414, slip op. at 6 (D.D.C. July 31, 1999) (holding private trustee of bankruptcy
    estates is not subject to FOIA even though trustee "cooperates [with] and submits
    regular reports to the United States Trustee," who is subject to FOIA), appeal
    dismissed for lack of juris.
    , No. 99-5410 (D.C. Cir. Feb. 2, 2000).

    11. See Ill. Inst. for Continuing Legal Educ. v. United States Dep't of Labor, 545 F.
    Supp. 1229, 1231-33 (N.D. Ill. 1982); see also FOIA Update, Vol. IX, No. 4, at 3-4 ("FOIA
    Counselor: Transition Team FOIA Issues"); cf. Wolfe v. HHS, 711 F.2d 1077, 1079 (D.C.
    Cir. 1983) (treating presidential transition team as not agency subject to FOIA and
    citing with approval Ill. Inst., 545 F. Supp. at 1231-33) (dicta).

    12. S. Conf. Rep. No. 93-1200, at 14 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6293;
    see, e.g., Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042-43 (D.C. Cir. 1985)
    (ruling that Council of Economic Advisers is not an agency under FOIA); Nation Co. v.
    Archivist of the United States
    , No. 88-1939, slip op. at 5-6 (D.D.C. July 24, 1990) (finding
    that Tower Commission is not an agency under FOIA); Nat'l Sec. Archive v. Executive
    Office of the President
    , 688 F. Supp. 29, 31 (D.D.C. 1988) (concluding that Office of
    Counsel to President is not an agency under FOIA), aff'd sub nom. Nat'l Sec. Archive
    v. Archivist of the United States
    , 909 F.2d 541 (D.C. Cir. 1990); see also FOIA Update,
    Vol. XIV, No. 3, at 6-8 (Department of Justice memorandum specifying consultation
    process for agencies possessing White House-originated records or White House-originated information located in response to FOIA requests).

    13. See Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 544 (D.C. Cir.
    1990) ("The Supreme Court has made clear that the Office of the President is not an
    'agency' for purposes of the FOIA." (citing Kissinger v. Reporters Comm. for Freedom
    of the Press
    , 445 U.S. 136, 156 (1980))); Judicial Watch, Inc. v. Nat'l Energy Policy Dev.
    Group
    , 219 F. Supp. 2d 20, 55 (D.D.C. 2002) ("[T]he Vice President and his staff are not
    'agencies' for purposes of the FOIA."), aff'd on other grounds, 334 F.3d 1096 (D.C. Cir.),
    cert. granted, 124 S. Ct. 958 (2003) (non-FOIA case); McDonnell v. Clinton, No. 97-1535,
    1997 WL 33321085, at *1 (D.D.C. July 3, 1997) (holding that "Office of the President,
    including its personal staff . . . whose sole function is to advise and assist the
    President, does not fall within the definition of agency" (citing Kissinger v. Reporters
    Comm. for Freedom of the Press
    , 445 U.S. 136, 150-55 (1980))), aff'd, 132 F.3d 1481 (D.C.
    Cir. 1997) (unpublished table decision); cf. Sweetland v. Walters, 60 F.3d 852, 855-56
    (D.C. Cir. 1995) (finding that the Executive Residence staff, which is "exclusively
    dedicated to assisting the President in maintaining his home and carrying out his
    various ceremonial duties," is not an agency under the FOIA).

    14. Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993); cf. Judicial Watch, Inc. v.
    Clinton
    , 76 F.3d 1232, 1234 (D.C. Cir. 1996) (holding that trust established to assist
    President Clinton with personal legal expenses is not subject to Federal Advisory
    Committee Act, 5 U.S.C. app. 2 (2000), because "[a]dvice on the legal or ethical
    implications of presidential fund-raising for personal purposes . . . does not involve
    'policy'"); Ass'n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 911 (D.C. Cir.
    1993) (declaring that President's Task Force on National Health Care Reform,
    composed of cabinet officials and chaired by First Lady, was not subject to Federal
    Advisory Committee Act).

    15. See Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971); see also Ryan v. Dep't of
    Justice
    , 617 F.2d 781, 784-89 (D.C. Cir. 1980).

    16. Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980)
    (holding that Council on Environmental Quality is an agency under FOIA); cf. Energy
    Research Found. v. Def. Nuclear Facilities Safety Bd.
    , 917 F.2d 581, 584-85 (D.C. Cir.
    1990) (determining that Defense Nuclear Facilities Safety Board is an agency
    because of its multiple functions).

    17. Armstrong v. Executive Office of the President, 90 F.3d 553, 559-65 (D.C. Cir.
    1996).

    18. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (holding
    that court opinions in agency files are agency records).

    19. See, e.g., Int'l Bhd. of Teamsters v. Nat'l Mediation Bd., 712 F.2d 1495, 1496 (D.C.
    Cir. 1983) (determining that submission of gummed-label mailing list as required by
    court order not sufficient to give "control" over record to agency); McErlean v. United
    States Dep't of Justice
    , No. 97-7831, 1999 WL 791680, at *11 (S.D.N.Y. Sept. 30, 1999)
    (finding that agency had no "control" over requested records because it assented to
    restrictions on their dissemination and use that were requested by confidential
    source who provided them); KDKA v. Thornburgh, No. 90-1536, 1992 U.S. Dist. LEXIS
    22438, at **16-17 (D.D.C. Sept. 30, 1992) (concluding that Canadian Safety Board
    report of aircrash, although possessed by National Transportation Safety Board, is
    not under agency "control," because of restrictions on its dissemination imposed by
    Convention on International Civil Aviation); Teich v. FDA, 751 F. Supp. 243, 248-49
    (D.D.C. 1990) (holding that documents submitted to FDA in "'legitimate conduct of its
    official duties'" are agency records notwithstanding FDA's presubmission review
    regulation allowing submitters to withdraw their documents from agency's files
    (quoting Tax Analysts, 492 U.S. at 145)); Rush v. Dep't of State, 716 F. Supp. 598, 600
    (S.D. Fla. 1989) (finding that correspondence between former ambassador and Henry
    Kissinger (then Assistant to the President) were agency records of Department of
    State as it exercised control over them); McCullough v. FDIC, No. 79-1132, 1980 U.S.
    Dist. LEXIS 17685, at *6 (D.D.C. July 28, 1980) (concluding that reports transmitted to
    agency by state regulatory authorities were agency records because "it is
    questionable whether [state authorities] retained control" over them); see also FOIA
    Update
    , Vol. XIII, No. 3, at 5 (advising that records subject to "protective order"
    issued by administrative law judge remain within agency control and are subject to
    FOIA).

    20. See Burka v. HHS, 87 F.3d 508, 151 (D.C.
    Cir. 1996) (citing Tax Analysts v. United States Dep't of Justice,
    845 F.2d 1060, 1069 (D.C. Cir. 1988)); see also, e.g., Missouri
    v. United States Dep't of Interior
    , 297 F.3d 745, 750-51 (8th Cir. 2002)
    (holding that records maintained in an agency office by an agency employee
    who was acting as the full-time coordinator of a nonprofit organization
    that had a "cooperative" relationship with the agency were not "agency records,"
    because they were not integrated into agency files and were not used by
    the agency in the performance of its official functions); Katz v. NARA,
    68 F.3d 1438, 1442 (D.C. Cir. 1995) (holding that autopsy x-rays and photographs
    of President Kennedy, created and handled as personal property of Kennedy
    estate, are presidential papers, not records of any agency); Gen. Elec.
    Co. v. NRC
    , 750 F.2d 1394, 1400-01 (7th Cir. 1984) (determining that
    agency "use" of internal report submitted in connection with licensing proceedings
    renders report an agency record); Wolfe v. HHS, 711 F.2d 1077, 1079-82
    (D.C. Cir. 1983) (holding that transition team records, although physically
    maintained within "four walls" of agency, were not agency records under
    FOIA); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12 (D.D.C.
    1995) (following Wash. Post v. DOD, 766 F. Supp. 1, 17 (D.D.C. 1991),
    to find that transcript of congressional testimony provided "solely for
    editing purposes," with cover sheet restricting dissemination, is not an
    agency record), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996);
    Marzen v. HHS, 632 F. Supp. 785, 801 (N.D. Ill. 1985) (declaring
    that records created outside federal government which "agency in question
    obtained without legal authority" are not agency records), aff'd on other
    grounds
    , 825 F.2d 1148 (7th Cir. 1987); Ctr. for Nat'l Sec. Studies
    v. CIA
    , 577 F. Supp. 584, 586-90 (D.D.C. 1983) (holding that agency
    report, prepared "at the direct request of Congress" with intent that it
    remain secret and transferred to agency with congressionally imposed "conditions"
    of secrecy, is not an agency record); cf. SDC Dev. Corp. v. Mathews,
    542 F.2d 1116, 1120 (9th Cir. 1976) (reaching "displacement-type" result
    for records governed by National Library of Medicine Act (last codified
    at 42 U.S.C. §§ 275-280a-1 (1982)); Baizer v. United States Dep't of
    the Air Force
    , 887 F. Supp. 225, 228-29 (N.D. Cal. 1995) (holding that
    database of Supreme Court decisions, used for reference purposes or as research
    tool, is not an agency record); Waters v. Pan. Canal Comm'n, No.
    85-2029, slip op. at 5-6 (D.D.C. Nov. 26, 1985) (finding that Internal Revenue
    Code is not an agency record); FOIA Update, Vol. XI, No. 3, at 7-8
    n.32 (discussing "'displacement-type'" decision in SDC Dev. Corp. v.
    Mathews
    , 542 F.2d 1116, 1120 (9th Cir. 1976)). But see Judicial
    Watch, Inc. v. United States Dep't of Energy
    , No. 01-0981, 2004 WL 635180,
    at **15-17 (D.D.C. Mar. 31, 2004) (concluding erroneously that records "obtained
    or created" by agency employees while on detail assignments to the Office
    of the Vice President -- which is not subject to the FOIA -- were in the
    "constructive control" of the detailees' employing agencies, despite the
    fact that the agencies never physically possessed the records, nor were
    the records integrated into the agencies' recordkeeping systems), motion
    for reconsideration denied & stay pending appeal granted
    (D.D.C.
    May 26, 2004).

    21. See Hercules, Inc. v. Marsh, 839
    F.2d 1027, 1029 (4th Cir. 1988) (holding that an army ammunition plant telephone
    directory prepared by a contractor at government expense, bearing a "property
    of the U.S." legend, is an agency record); Gilmore v. United States Dep't
    of Energy
    , 4 F. Supp. 2d 912, 922 (N.D. Cal. 1998) (finding
    that video conferencing software created by privately owned laboratory is
    not an agency record); Tax Analysts v. United States Dep't of Justice,
    913 F. Supp. 599, 607 (D.D.C. 1996) (finding that electronic legal research
    database contracted by agency is not an agency record because licensing
    provisions specifically precluded agency control), aff'd, 107 F.3d
    923 (D.C. Cir. 1997) (unpublished table decision); Lewisburg Prison Project,
    Inc. v. Fed. Bureau of Prisons
    , No. 86-1339, slip op. at 4-5 (M.D. Pa.
    Dec. 16, 1986) (holding that training videotape provided by contractor is
    not an agency record).

    22. See, e.g., Burka, 87 F.3d at 515
    (finding data tapes created and possessed by contractor to be agency records
    because of extensive supervision exercised by agency, which evidenced "constructive
    control"); Los Alamos Study Group v. Dep't of Energy, No. 97-1412,
    slip op. at 4 (D.N.M. July 22, 1998) (determining that records created by
    contractor are agency records within meaning of FOIA because government
    contract "establishes [agency] intent to retain control over the records
    and to use or dispose of them as they see fit" and agency regulation "reinforces
    the conclusion that [the agency] intends to exercise control over the material");
    Chi. Tribune Co. v. HHS, No. 95-C-3917, 1997 U.S. Dist. LEXIS 2308,
    at *33 (N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (finding
    that notes and audit analysis file created by independent contractor are
    agency records because they were created on behalf of (and at request of)
    agency and agency maintained "effective control" over them), adopted
    (N.D. Ill. Mar. 28, 1997); Rush Franklin Publ'g, Inc. v. NASA, No.
    90-CV-2855, slip op. at 10 (E.D.N.Y. Apr. 13, 1993) (finding that computer
    tape maintained by contractor is not an agency record in absence of agency
    control); see also Sangre de Cristo Animal Prot., Inc. v. United
    States Dep't of Energy
    , No. 96-1059, slip op. at 3-6 (D.N.M. Mar. 10,
    1998) (holding that records that agency neither possessed nor controlled
    and that were created by entity under contract with agency, although not
    agency records, were accessible under agency regulation, 10 C.F.R. § 1004.3
    (2004), that specifically provided for public availability of contractor
    records).

    23. See, e.g., United We Stand Am. v. IRS,
    359 F.3d 595, 604 (D.C. Cir. 2004) (observing that "[t]he Freedom of Information
    Act does not cover congressional documents").

    24. See, e.g., Paisley v. CIA, 712 F.2d
    686, 693 (D.C. Cir. 1983), vacated in part on other grounds, 724
    F.2d 201 (D.C. Cir. 1984) (per curiam) (noting that if "Congress has manifested
    its own intent to retain control [of records in the agency's possession],
    then the agency -- by definition -- cannot lawfully 'control' the documents
    . . . and hence they are not 'agency records'").

    25. See, e.g., Goland v. CIA, 607 F.2d
    339, 347 (D.C. Cir. 1978) (holding that the agency was acting merely "as
    a 'trustee' for Congress" in retaining a copy of a hearing transcript over
    which Congress "plainly" manifested an intent to control by denominating
    it as "'secret'").

    26. See Holy Spirit Ass'n v. CIA, 636
    F.2d 838, 842-43 (D.C. Cir. 1980) (recognizing that agency-created records
    can become "congressional records"), vacated in part on other grounds,
    455 U.S. 997 (1982); Judicial Watch, Inc. v. Clinton, 880 F. Supp.
    1, 12 (D.D.C. 1995) ("Even documents created by the agencies themselves
    may elude FOIA's reach if prepared on request of Congress with confidentiality
    restrictions."), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).

    27. See United We Stand Am., 359 F.3d
    at 604 (concluding that only certain portions of an agency-created response
    to a confidential congressional inquiry were "congressional records" not
    subject to the FOIA, "because Congress manifested its intent [to exert control]
    with respect to at most only a part" of those records).

    28. United We Stand Am., 359 F.3d at 602; see
    Holy Spirit Ass'n, 636 F.2d at 843 (concluding that Congress's "post
    hoc" assertion of control, which came about "as a result of . . .
    the FOIA request and this litigation long after the actual transfer" of
    the requested records, was "insufficient evidence of Congress'[s] intent
    to retain control over th[o]se records").

    29. See United We Stand Am., 359 F.3d
    at 600 (holding that "under all of the circumstances surrounding the [agency's]
    creation and possession of the documents," there were "sufficient indicia
    of congressional intent to control" certain portions of those documents);
    see also Paisley, 712 F.2d at 694 ("[W]e find that neither
    the circumstances surrounding the creation of the documents nor the conditions
    under which they were transferred to the agencies manifests a clear congressional
    intent to maintain control."); Holy Spirit Ass'n, 636 F.2d at 842
    ("Nothing here either in the circumstances of the documents' creation or
    in the conditions under which they were sent to the [agency] indicates Congress'[s]
    intent to retain control over the records."); Goland, 607 F.2d at
    348 (holding that a congressional hearing transcript maintained by an agency
    was "not an 'agency record' but a Congressional document to which FOIA does
    not apply . . . because we believe that on all the facts of the
    case Congress'[s] intent to retain control of the document is clear").

    30. See, e.g., Paisley, 712 F.2d at
    692-93 ("In the absence of any manifest indications that Congress intended
    to exert control over documents in an agency's possession, the court will
    conclude that such documents are not congressional records.").

    31. See, e.g., Bureau of Nat'l Affairs,
    Inc. v. United States Dep't of Justice
    , 742 F.2d 1484, 1488-96 (D.C.
    Cir. 1984) (holding that uncirculated appointment calendars and telephone
    message slips of agency official were not agency records); Spannaus v.
    United States Dep't of Justice
    , 942 F. Supp. 656, 658 (D.D.C. 1996)
    (finding that "'personal' files" of attorney no longer employed with agency
    were "beyond the reach of FOIA" if they were not turned over to agency at
    end of employment); Forman v. Chapotan, No. 88-1151, slip op. at
    14 (W.D. Okla. Dec. 12, 1988) (rejecting contention that materials distributed
    to agency officials at privately sponsored seminar are agency records),
    aff'd, No. 89-6035 (10th Cir. Oct. 31, 1989); see also FOIA
    Update
    , Vol. IX, No. 4, at 3-4 (discussing circumstances under which
    presidential transition team documents can be regarded as "personal records"
    when brought into federal agency); FOIA Update, Vol. V, No. 4, at
    3-4 ("OIP Guidance: 'Agency Records' vs. 'Personal Records'").

    32. Bureau of Nat'l Affairs, 742 F.2d at 1492.

    33. See id. at 1492-93; FOIA Update,
    Vol. V, No. 4, at 3-4; see, e.g., Gallant v. NLRB, 26 F.3d
    168, 171-72 (D.C. Cir. 1994) (stating that letters written on agency time
    on agency equipment by board member seeking renomination, which had been
    reviewed by other agency employees but not integrated into agency record
    system and over which author had not relinquished control, are not agency
    records); Inner City Press/Cmty. on the Move v. Bd. of Governors of the
    Fed. Reserve Sys.
    , No. 98-4608, 1998 U.S. Dist. LEXIS 15333, at *17
    (S.D.N.Y. Sept. 30, 1998) (ruling that handwritten notes neither shared
    with other agency employees nor placed in agency files were not "agency
    records" even though they may have furthered their author's performance
    of his agency duties), aff'd, 182 F.3d 900 (2d Cir. 1999) (unpublished
    table decision); Clarkson v. Greenspan, No. 97-2035, slip op. at
    14 (D.D.C. June 30, 1998) (holding that notes taken by Federal Reserve Banks'
    employees are "personal" because they were maintained by authors for their
    own use, were not intended to be shared with other employees, and were not
    made part of Banks' filing systems), summary affirmance granted,
    No. 98-5349, 1999 WL 229017 (D.C. Cir. Mar. 2, 1999); Judicial Watch,
    880 F. Supp. at 11 (concluding that "telephone logs, calendar markings,
    [and] personal staff notes" not incorporated into agency recordkeeping system
    are not agency records); Dow Jones & Co. v. GSA, 714 F. Supp.
    35, 39 (D.D.C. 1989) (determining that agency head's recusal list, shared
    only with personal secretary and chief of staff, is not an agency record);
    AFGE v. United States Dep't of Commerce, 632 F. Supp. 1272, 1277
    (D.D.C. 1986) (finding that employee logs created voluntarily to facilitate
    work are not agency records even though they contained substantive information),
    aff'd, 907 F.2d 203 (D.C. Cir. 1990). But cf. Grand Cent.
    P'ship, Inc. v. Cuomo
    , 166 F.3d 473, 481 (2d Cir. 1999) (rejecting agency
    affidavit concerning "personal" records as insufficient and remanding case
    for further development through affidavits by records' authors explaining
    their intended use of records in question); Ethyl Corp. v. EPA, 25
    F.3d 1241, 1247-48 (4th Cir. 1994) (finding record search inadequate because
    employees were "not properly instructed on how to distinguish personal records
    from agency records").

    34. Pub. L. No. 105-277, 112 Stat. 2681 (1998).

    35. 445 U.S. 169 (1980).

    36. See FOIA Update, Vol. XIX, No. 4,
    at 2 (describing legislative change).

    37. 445 U.S. at 178-81.

    38. Omnibus Consolidated and Emergency Supplemental
    Appropriations Act for Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat.
    2681 (1998).

    39. See OMB Circular A-110, "Uniform Administrative
    Requirements for Grants and Agreements with Institutions of Higher Education,
    Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg. 54,926 (Oct.
    8, 1999); see also FOIA Update, Vol. XIX, No. 4, at 2 (discussing
    grantee records subject to FOIA under Circular A-110's definition of "research
    data").

    40. See Matthews v. United States Postal
    Serv.
    , No. 92-1208, slip op. at 4 n.3 (W.D. Mo. Apr. 14, 1994) (holding
    that computer hardware is not "record"); Nichols v. United States,
    325 F. Supp. 130, 135-36 (D. Kan. 1971) (holding that archival exhibits
    consisting of guns, bullets, and clothing pertaining to assassination of
    President Kennedy are not "records"), aff'd on other grounds, 460
    F.2d 671 (10th Cir. 1972); see also FOIA Update, Vol. XIV,
    No. 1, at 1 (discussing implementation of President John F. Kennedy Assassination
    Records Collection Act of 1992, 44 U.S.C. § 2107 note (2000));
    cf. FOIA Update, Vol. XIX, No. 4, at 2 (discussing provisions
    of "somewhat akin" FOIA-related statute, Nazi War Crimes Disclosure Act,
    5 U.S.C. § 552 note (2000)).

    41. See DiViaio v. Kelley, 571 F.2d
    538, 542 (10th Cir. 1978) ("[R]eliance may be placed on the dictionary meaning
    . . . as that which is written or transcribed to perpetuate knowledge.");
    Nichols, 325 F. Supp. at 135 (stating that reliance "placed on a
    dictionary of respected ancestry [(i.e., Webster's)]").

    42. 44 U.S.C. § 3301 (2000).

    43. See Forsham, 445 U.S. at 183 (treating
    "record" as including "'machine readable materials . . . regardless
    of physical form or characteristics'" (quoting Records Disposal Act, 44
    U.S.C. § 3301 (2000)); see also N.Y. Times Co. v. NASA,
    920 F.2d 1002, 1005 (D.C. Cir. 1990) (holding that audiotape of Space Shuttle
    Challenger astronauts is "record," as "FOIA makes no distinction
    between information in lexical and . . . non-lexical form"); Save
    the Dolphins v. United States Dep't of Commerce
    , 404 F. Supp. 407, 410-11
    (N.D. Cal. 1975) (finding that motion picture film is "record" for purposes
    of FOIA).

    44. Cleary, Gottlieb, Steen & Hamilton v. HHS,
    844 F. Supp. 770, 782 (D.D.C. 1993) ("These [computer] programs preserve
    information and 'perpetuate knowledge.'" (quoting DiViaio, 571 F.2d
    at 542)); see also FOIA Update, Vol. XV, No. 4, at 4-5 (proposed
    electronic record FOIA principles); Department of Justice "Electronic Record"
    Report, reprinted in abridged form in FOIA Update, Vol. XI,
    No. 3, at 6-12 (discussing issue of "record" status of computer software).
    But see Gilmore, 4 F. Supp. 2d at 919-20 (holding alternatively
    that video conferencing software developed by privately owned laboratory
    may not be regarded as "record" on basis that such software "does not illuminate
    the structure, operation, or decisionmaking structure" of agency); Essential
    Info., Inc. v. USIA
    , 134 F.3d 1165, 1166 n.3 (D.C. Cir. 1998) (dictum)
    (suggesting, without authority, that Internet addresses "seem to be" not
    records, but "simply 'a means to access' records").

    45. Pub. L. No. 104-231, § 3, 110 Stat. 3048, 3049
    (codified as amended at 5 U.S.C. § 552(f)(2) (2000)).

    46. 5 U.S.C. § 552(f)(2); see also
    FOIA Update, Vol. XVII, No. 4, at 2 (discussing statutory amendment).

    47. 5 U.S.C. § 551(2) (2000); see also
    FOIA Update, Vol. V, No. 1, at 3-4 (advising that individual Members
    of Congress possess merely the same rights of access as those generally
    guaranteed to "any person" under the FOIA); cf. Judicial Watch
    v. United States Dep't of Justice
    , 102 F. Supp. 2d 6, 10 (D.D.C. 2000)
    (holding that because two related organizations "are separate corporations, . . . each
    is entitled to request documents under FOIA in its own right").

    48. See, e.g., Constangy, Brooks & Smith
    v. NLRB
    , 851 F.2d 839, 840 n.2 (6th Cir. 1988) (recognizing standing
    of attorney to request documents on behalf of client). But see also
    Burka v. HHS, 142 F.3d 1286, 1290 (D.C. Cir. 1998) (holding that
    when an attorney makes a request in his own name without disclosing that
    he is acting on behalf of a client, he may not later seek attorney fees
    for his legal work); McDonnell v. United States, 4 F.3d 1227, 1237-38
    (3d Cir. 1993) (holding that person whose name does not appear on request
    does not have standing); Archibald v. Roche, No. 01-1492, slip op.
    at 1-2 (D.D.C. Mar. 29, 2002) (concluding that the request "appears to [have
    been] filed on behalf of the attorney" who signed the request, rather than
    on behalf of the client, because "nowhere in [the request] does [the attorney]
    ever state that he [was] filing this request on behalf of" the client);
    MAXXAM, Inc. v. FDIC, No. 98-0989, slip op. at 5-6 (D.D.C. Jan. 21,
    1999) (finding that a corporate plaintiff whose name did not appear on a
    FOIA request made by its attorney "'has not administratively asserted a
    right to receive [the requested records] in the first place'" (quoting McDonnell,
    4 F.3d at 1237)); cf. Dale v. IRS, 238 F. Supp. 2d 99, 107
    (D.D.C. 2002) ("A party's counsel is not the 'requester' for purposes of
    a fee waiver."). See generally Doherty v. United States Dep't
    of Justice
    , 596 F. Supp. 423, 427 n.4 (S.D.N.Y. 1984) (reviewing legislative
    history), aff'd on other grounds, 775 F.2d 49 (2d Cir. 1985).

    49. 5 U.S.C. § 551(2); see also FOIA
    Update
    , Vol. VI, No. 1, at 6 (advising that information requests from
    agencies within executive branch of federal government cannot be considered
    FOIA requests).

    50. See, e.g., Texas v. ICC, 935 F.2d
    728, 728 (5th Cir. 1991); Massachusetts v. HHS, 727 F. Supp. 35,
    35 (D. Mass. 1989).

    51. See Maydak v. United States, No.
    02-5168, slip op. at 1 (D.C. Cir. Dec. 11, 2003) (refusing to the dismiss
    case because "[t]here is no substantial connection between [the requester's]
    alleged fugitive status and his current [FOIA] action," which was filed
    four years before the requester became a fugitive) (citing Daccarett-Ghia
    v. IRS
    , 70 F.3d 621, 626 (D.C. Cir. 1995); Doyle v. United States
    Dep't of Justice
    , 668 F.2d 1365, 1365-66 (D.C. Cir. 1981) (holding that
    fugitive is not entitled to enforcement of FOIA's access provisions because
    he cannot expect judicial aid in obtaining government records related to
    sentence that he was evading); Meddah v. Reno, No. 98-1444, slip
    op. at 2 (E.D. Pa. Dec. 3, 1998) (dismissing escapee's FOIA claim because
    escapee "request[ed] documents which were used to determine that he should
    be detained"); see also Daccarett-Ghia, 70 F.3d at 626 n.4
    (limiting the applicability of the "fugitive disentitlement doctrine" generally,
    but explaining that the "holding in this case does not disturb that aspect
    of Doyle" in which the court "recognize[d] one universally applied
    constraint on the fugitive disentitlement doctrine" -- namely, that "[d]ismissal
    was appropriate in part because the fugitive's [FOIA] suit sought records
    that were 'not devoid of a relationship' to the criminal charges pending
    against him") (non-FOIA case). But cf. O'Rourke v. United States
    Dep't of Justice
    , 684 F. Supp. 716, 718 (D.D.C. 1988) (holding that
    convicted criminal, fugitive from his home country and undergoing U.S. deportation
    proceedings, qualified as "any person" for purpose of making FOIA request);
    Doherty, 596 F. Supp. at 424-29 (same).

    52. See Javelin Int'l, Ltd. v. United States
    Dep't of Justice
    , 2 Gov't Disclosure Serv. (P-H) ¶ 82,141, at 82,479
    (D.D.C. Dec. 9, 1981).

    53. Pub. L. No. 107-306, 116 Stat. 2383 (2002).

    54. See 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").

    55. Pub. L. No. 107-306, 116 Stat. 2383, § 312 (codified
    at 5 U.S.C.A. § 552(a)(3)(A), (E) (West Supp. 2004)).

    56. See 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").

    57. See, e.g., NARA v. Favish, 124 S.
    Ct. 1570, 1580 (2004) ("[A]s a general rule, when documents are within FOIA's
    disclosure provisions, citizens should not be required to explain why they
    seek the information.").

    58. See NLRB v. Sears, Roebuck & Co.,
    421 U.S. 132, 143 n.10 (1975) (recognizing that a requester's "rights under
    the Act are neither increased nor decreased by reason of the fact that [he
    or she] claims an interest in the [requested records] greater than that
    shared by the average member of the public"); see also United
    States Dep't of Justice v. Reporters Comm. for Freedom of the Press
    ,
    489 U.S. 749, 771 (1989) ("As we have repeatedly stated, Congress 'clearly
    intended' the FOIA 'to give any member of the public as much right to disclosure
    as one with a special interest [in a particular document].'" (quoting Sears,
    421 U.S. at 149)); EPA v. Mink, 410 U.S. 73, 86 (1973) (declaring
    that the FOIA "is largely indifferent to the intensity of a particular requester's
    need"); cf. Parsons v. Freedom of Info. Act Officer, No. 96-4128,
    1997 WL 461320, at *1 (6th Cir. Aug. 12, 1997) (rejecting plaintiff's argument
    that his "legitimate need for the documents superior to that of the general
    public or the press" warranted disclosure of exempt information); North
    v. Walsh
    , 881 F.2d 1088, 1096 (D.C. Cir. 1989) ("In sum, [the FOIA requester's]
    need or intended use for the documents is irrelevant.").

    59. See United States v. Weber Aircraft
    Corp.
    , 465 U.S. 792, 801-02 (1984); Baldrige v. Shapiro, 455
    U.S. 345, 360 n.14 (1982); NLRB v. Robbins Tire & Rubber Co.,
    437 U.S. 214, 242 (1978); Sears, 421 U.S. at 143 n.10; Renegotiation
    Bd. v. Bannercraft Clothing Co.
    , 415 U.S. 1, 24 (1974).

    60. See, e.g., Jackson v. First Fed. Sav.,
    709 F. Supp. 887, 889 (E.D. Ark. 1989); see also In re F&H
    Barge Corp.
    , 46 F. Supp. 2d 453, 454-55 (E.D. Va. 1998) (noting that
    "courts have allowed private litigants to obtain documents in discovery
    via the FOIA"); FOIA Update, Vol. III, No. 1, at 10 (acknowledging
    that "[u]nder present law there is no statutory prohibition to the use of
    FOIA as a discovery tool"). But see also Cantres v. FBI, No.
    01-1115, slip op. at 5 (D. Minn. June 21, 2002) (magistrate's recommendation)
    (avouching that "[a] FOIA request is not a substitute for discovery in a
    habeas case," nor was the FOIA "designed to supplement the rules of civil
    discovery"), adopted (D. Minn. July 16, 2002); Comer v. IRS,
    No. 97-76329, 2000 WL 1566279, at *2 (E.D. Mich. Aug. 17, 2000) (opining
    that "while documents obtained through FOIA requests may ultimately prove
    helpful in litigation by permitting a citizen to more precisely target his
    discovery requests, FOIA is not intended to be a substitute for discovery");
    Envtl. Crimes Project v. EPA, 928 F. Supp. 1, 2 (D.D.C. 1995) (ordering
    a stay of a FOIA case "pending the resolution of the discovery disputes"
    in the parties' related lawsuit in order to foreclose the requester's attempt
    to "end run" or interfere with discovery); cf. Injex Indus. v.
    NLRB
    , 699 F. Supp. 1417, 1419 (N.D. Cal. 1986) (holding that FOIA cannot
    be used to circumvent nonreviewable decision to impound requested documents);
    Morrison-Knudsen Co. v. Dep't of the Army of the United States, 595
    F. Supp. 352, 356 (D.D.C. 1984) ("[T]he use of FOIA to unsettle well established
    procedures governed by a comprehensive regulatory scheme must be . . .
    viewed not only 'with caution' but with concern."), aff'd, 762 F.2d
    138 (D.C. Cir. 1985) (unpublished table decision).

    61. See, e.g., North, 881 F.2d at 1096;
    Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 502, 503 &
    n.1 (E.D. La. 2003) (concluding erroneously that Brady v. Maryland
    "demands" that information withheld under Exemption 7(D) of FOIA be released
    to plaintiff). But see United States v. United States Dist. Court,
    Cent. Dist. of Cal.
    , 717 F.2d 478, 480 (9th Cir. 1983) (holding that
    FOIA does not expand scope of criminal discovery permitted under Rule 16
    of Federal Rules of Criminal Procedure); United States v. Agunbiade,
    No. 90-CR-610, 1995 WL 351058, at *7 (E.D.N.Y. May 10, 1995) (stating that
    a FOIA requester "cannot employ the statute as a means to enlarge his right
    to discovery" in his criminal case); Johnson v. United States Dep't of
    Justice
    , 758 F. Supp. 2, 5 (D.D.C. 1991) ("Resort to Brady v. Maryland
    as grounds for waiving confidentiality is . . . outside the proper
    role of FOIA."); Stimac v. United States Dep't of Justice, 620 F.
    Supp. 212, 213 (D.D.C. 1985) ("Brady v. Maryland . . .
    provides no authority for releasing material under FOIA."); cf. Jones
    v. FBI
    , 41 F.3d 238, 250 (6th Cir. 1994) ("FOIA's scheme of exemptions
    does not curtail a plaintiff's right to discovery in related non-FOIA litigation;
    but neither does that right entitle a FOIA plaintiff to circumvent the rules
    limiting release of documents under FOIA.").

    62. Cf. Forsham v. Califano, 587 F.2d
    1128, 1134 (D.C. Cir. 1978) (recognizing that "considerations such as need,
    interest, or public interest may bear on the agency's determination" to
    process pending FOIA requests in a certain order), aff'd on other grounds
    sub nom.
    Forsham v. Harris, 445 U.S. 169 (1980).

    63. See Favish, 124 S. Ct. at 1580-81
    (declaring that "[w]here the privacy concerns addressed by Exemption 7(C)
    are present, the exemption requires the person requesting the information
    to establish a sufficient reason for the disclosure" by showing that "the
    public interest sought to be advanced [by the requested disclosure] is a
    significant one" and that disclosure of "the information is likely to advance
    that interest"); see also FOIA Post, "Supreme Court Rules
    for 'Survivor Privacy' in Favish" (posted 4/9/04) ("Favish
    thus stands as a reminder to all agencies that their consideration of potential
    privacy invasions must include . . . what the requester might
    do with the information at hand.").

    64. Reporters Comm., 489 U.S. at 771; see
    Favish, 124 S. Ct. at 1579 ("As a general rule, withholding information
    under FOIA cannot be predicated on the identity of the requester."); see
    also
    Lynch v. Dep't of the Treasury, No. 98-56368, 2000 WL 123236,
    at *4 (9th Cir. Jan. 28, 2000) (upholding district court's decision to not
    consider identity of requester in determining whether records were properly
    withheld under Exemption 7(A)); Parsons, 1997 WL 461320, at *1 ("[T]he
    identity of the requestor is irrelevant to the determination of whether
    an exemption applies."); United Techs. v. FAA, 102 F.3d 688, 692
    (2d Cir. 1996) (rejecting plaintiff's argument that Exemption 4 should be
    applied "on a requester-specific basis," because "[u]nder that rule, the
    Government would be required in every FOIA case to conduct an inquiry regarding
    the identity of the requester and the circumstances surrounding its request,"
    and "[t]he FOIA was not intended to be applied on such an individualized
    basis"); Swan v. SEC, 96 F.3d 498, 499 (D.C. Cir. 1996) ("Whether
    [a particular exemption] protects against disclosure to 'any person' is
    a judgment to be made without regard to the particular requester's identity.");
    Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986) ("Congress
    granted the scholar and the scoundrel equal rights of access to agency records."),
    cert. granted, judgment vacated on other grounds & remanded,
    486 U.S. 1029 (1988); FOIA Update, Vol. VI, No. 3, at 5 ("It is also
    well established that a FOIA requester cannot rely upon his status as a
    private party litigant -- in either civil or criminal litigation -- to claim
    an entitlement to greater FOIA access than would be available to the average
    requester."); cf. Calder v. IRS, 890 F.2d 781, 783 (5th Cir.
    1989) (holding that historian denied access under FOIA also has no "constitutional
    right of access" to Al Capone's tax records); Leach v. RTC, 860 F.
    Supp. 868, 871, 878-79 & n.13 (D.D.C. 1994) (recognizing, in dicta,
    that individual Members of Congress are granted no greater access to agency
    records by virtue of their position than are other FOIA requesters), appeal
    dismissed per stipulation
    , No. 94-5279 (D.C. Cir. Dec. 22, 1994).

    65. United States Dep't of Justice v. Julian,
    486 U.S. 1, 14 (1988); accord Reporters Comm., 489 U.S. at
    771 (recognizing single exception to general FOIA-disclosure rule in case
    of "first-party" requester).

    66. See FOIA Update, Vol. X, No. 2,
    at 5 (advising agencies to treat first-party FOIA requesters in accordance
    with protectible interests that requesters can have in their own information,
    such as personal privacy information, and to treat third-party FOIA requesters
    differently).

    67. See Sinito v. United States Dep't of
    Justice
    , 176 F.3d 512, 513 (D.C. Cir. 1999) (holding that FOIA claim
    can survive death of original requester and remanding case for determination
    regarding who could properly be substituted for decedent); see also
    D'Aleo v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS 3884,
    at *4 (D.D.C. Mar. 21, 1991) (allowing decedent's executrix to be substituted
    as plaintiff). But see Hayles v. United States Dep't of Justice,
    No. H-79-1599, slip op. at 3 (S.D. Tex. Nov. 2, 1982) (dismissing case upon
    death of plaintiff because no timely motion for substitution was filed).

    68. 5 U.S.C. § 552(a)(3)(A) (2000).

    69. Id. § 552(a)(3)(A)(ii); see, e.g.,
    Borden v. FBI, No. 94-1029, slip op. at 2 (1st Cir. June 28, 1994)
    (per curiam) (affirming dismissal of case because requester failed to comply
    with agency's published regulations); McDonnell v. United States,
    4 F.3d 1227, 1236-37 (3d Cir. 1993) ("[A] person whose name does not appear
    on [FOIA] request [as required by agency regulations] . . . has
    not made a formal request for documents within the meaning of the statute
    [and therefore] has no right to [the documents or to] sue in district court
    when the agency refuses to release requested documents."); Church of
    Scientology v. IRS
    , 792 F.2d 146, 150 (D.C. Cir. 1986) (stating that
    requesters must follow "the statutory command that requests be made in accordance
    with published rules"). But see Summers v. United States Dep't
    of Justice
    , 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that 28 U.S.C.
    § 1746 (2000) -- which requires that unsworn declarations be treated
    with "like force and effect" as sworn declarations -- can be used in place
    of notarized-signature requirement of agency regulation for verification
    of FOIA privacy waivers).

    70. Newman v. Legal Servs. Corp., 628 F. Supp.
    535, 543 (D.D.C. 1986). But see Blackwell v. EEOC, No. 2:98-38,
    1999 U.S. Dist. LEXIS 3708, at *5 (E.D.N.C. Feb. 12, 1999) (finding that
    request was not properly made because plaintiff failed to follow agency
    regulation requiring that request be denominated explicitly as request for
    information under FOIA).

    71. See FOIA Update, Vol. VII, No. 1,
    at 6 (advising that "agencies are expected to honor a requester's obvious
    intent").

    72. 5 U.S.C. § 552a (2000).

    73. See FOIA Update, Vol. VII, No. 1,
    at 6 (advising that it is "good policy for agencies to treat all first-party
    access requests as FOIA requests" regardless of whether FOIA is cited by
    requester).

    74. H.R. Rep. No. 93-876, at 6 (1974), reprinted
    in
    1974 U.S.C.C.A.N. 6267, 6271; see, e.g., Brumley v. United
    States Dep't of Labor
    , 767 F.2d 444, 445 (8th Cir. 1985); Goland
    v. CIA
    , 607 F.2d 339, 353 (D.C. Cir. 1978); Marks v. United States
    Dep't of Justice
    , 578 F.2d 261, 263 (9th Cir. 1978).

    75. Assassination Archives & Research Ctr.
    v. CIA
    , 720 F. Supp. 217, 219 (D.D.C. 1989), aff'd in pertinent part,
    No. 89-5414 (D.C. Cir. Aug. 13, 1990); see Frank v. United States
    Dep't of Justice
    , 941 F. Supp. 4, 5 (D.D.C. 1996); Blakey v. Dep't
    of Justice
    , 549 F. Supp. 362, 366-67 (D.D.C. 1982), aff'd, 720
    F.2d 215 (D.C. Cir. 1983) (unpublished table decision); see also
    Trenerry v. Dep't of the Treasury, No. 92-5053, 1993 WL 26813, at
    *3 (10th Cir. Feb. 5, 1993) (holding that agency not required to provide
    personal services such as legal research); Lamb v. IRS, 871 F. Supp.
    301, 304 (E.D. Mich. 1994) (finding requests outside scope of FOIA when
    they require legal research, are unspecific, or seek answers to interrogatories).

    76. Immanuel v. Sec'y of the Treasury, No.
    94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4, 1995), aff'd, 81 F.3d
    150 (4th Cir. 1996) (unpublished table decision); see also Dale
    v. IRS
    , 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (concluding that a
    request that sought "'any and all documents . . .
    that refer or relate in any way'" to the requester failed to reasonably
    describe the records sought and "amounted to an all-encompassing fishing
    expedition of files at [the agency's] offices across the country, at taxpayer
    expense"); Freeman v. United States Dep't of Justice, No. 90-2754,
    slip op. at 3 (D.D.C. Oct. 16, 1991) ("The FOIA does not require that the
    government go fishing in the ocean for fresh water fish.").

    77. Devine v. Marsh, 2 Gov't Disclosure Serv.
    (P-H) ¶ 82,022, at 82,186 (E.D. Va. Aug. 27, 1981); see also
    Goldgar v. Office of Admin., 26 F.3d 32, 35 (5th Cir. 1994) (holding
    that the agency was not required to produce information sought by the requester
    -- "the identity of the government agency that is reading his mind" -- that
    does not exist in record form); Benneville v. United States Dep't of
    Justice
    , No. 98-6137, slip op. at 10 (D. Or. June 11, 2003) (rejecting
    plaintiff's contention that the agency should have provided him with information
    on all environmental groups, rather than just the single group specifically
    named in his request letter, because "the government should not be expected
    to determine [the unnamed groups'] identit[ies] and determine if they should
    be involved in the search"); Malak v. Tenet, No. 01-3996, 2001 WL
    664451, at *1 (N.D. Ill. June 12, 2001) (concluding that request's "discursive
    narrative doesn't even begin to approach the necessary job to permit performance
    of [agency's] FOIA responsibilities"); Judicial Watch v. Exp.-Imp. Bank,
    108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (ruling that a request did not reasonably
    describe the records sought because the plaintiff "fail[ed] to state its
    request with sufficient particularity, [and] it also declined [the agency's]
    repeated attempts to clarify the request"); Keenan v. United States Dep't
    of Justice
    , No. 94-1909, slip op. at 1 (D.D.C. Nov. 12, 1996) ("Plaintiff
    can not [sic] place a request for one search and then, when nothing is found,
    convert that request into a different search."); Graphics of Key W. v.
    United States
    , 1996 WL 167861, at *7 (D. Nev. 1996) (finding plaintiff's
    request letters to be "more arguments than clear requests for information");
    Kubany v. Bd. of Governors of the Fed. Reserve Sys., No. 93-1428,
    slip op. at 6-8 (D.D.C. July 19, 1994) (holding that request relying on
    exhibits containing "multiple, unexplained references to hundreds of accounts,
    and various flowcharts, and schematics" is "entirely unreasonable"). But
    cf.
    Doolittle v. United States Dep't of Justice, 142 F. Supp.
    2d 281, 285 (N.D.N.Y. 2001) (concluding that so long as description of records
    sought is otherwise reasonable, agency cannot refuse to search for records
    simply because requester did not also identify them by the date on which
    they were created).

    78. See Ruotolo v. Dep't of Justice,
    53 F.3d 4, 10 (2d Cir. 1995) (finding that request that required 803 files
    to be searched was not "unreasonably burdensome"); Pub. Citizen v. FDA,
    No. 94-0018, slip op. at 2 (D.D.C. Feb. 9, 1996); see also FOIA
    Update
    , Vol. IV, No. 3, at 5 ("The sheer size or burdensomeness of a
    FOIA request, in and of itself, does not entitle an agency to deny that
    request on the ground that it does not 'reasonably describe' records within
    the meaning of 5 U.S.C. § 552(a)(3)(A)."). But see Domingues
    v. FBI
    , No. 98-74612, slip op. at 11 (E.D. Mich. July 24, 1999) (magistrate's
    recommendation) (determining that "a request directed to an agency's headquarters
    which does not request a search of its field offices, or which requests
    a blanket search of all field offices without specifying which offices should
    be searched, does not 'reasonably describe' any records which may be in
    those field offices, and an agency's search of just the headquarters records
    complies with the FOIA"), adopted (E.D. Mich. July 29, 1999), aff'd,
    229 F.3d 1151 (6th Cir. 2000) (unpublished table decision); Massachusetts
    v. HHS
    , 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (holding that a request
    for all records "relating to" a particular subject is overbroad, "thus unfairly
    plac[ing] the onus of non-production on the recipient of the request and
    not where it belongs -- upon the person who drafted such a sloppy request").

    79. See Yeager v. DEA, 678 F.2d 315,
    322, 326 (D.C. Cir. 1982) (holding request encompassing over 1,000,000 computerized
    records to be valid because "[t]he linchpin inquiry is whether the agency
    is able to determine 'precisely what records [are] being requested'" (quoting
    legislative history)). But see AFGE v. United States Dep't of
    Commerce
    , 907 F.2d 203, 209 (D.C. Cir. 1990) (holding that "while [plaintiff's
    requests] might identify the documents requested with sufficient precision
    to enable the agency to identify them . . . it is clear that these
    requests are so broad as to impose an unreasonable burden upon the agency,"
    because the agency would have "to locate, review, redact, and arrange for
    inspection a vast quantity of material").

    80. See Nation Magazine v. United States
    Customs Serv.
    , 71 F.3d 885, 892 (D.C. Cir. 1995) (agreeing that search
    which would require review of twenty-three years of unindexed files would
    be unreasonably burdensome, but disagreeing that search through chronologically
    indexed agency files for dated memorandum would be burdensome); Van Strum
    v. EPA
    , No. 91-35404, 1992 WL 197660, at *1 (9th Cir. Aug. 17, 1992)
    (accepting agency justification in denying or seeking clarification of overly
    broad requests which would place inordinate search burden on agency resources);
    Marks, 578 F.2d at 263 (ruling that FBI is not required to search
    every one of its field offices); Schrecker v. United States Dep't of
    Justice
    , 217 F. Supp. 2d 29, 35 (D.D.C. 2002) (finding "that to require
    an agency to hand search through millions of documents is not reasonable
    and therefore not necessary," as the agency already had searched "the most
    likely place responsive documents would be located"), aff'd, 349
    F.3d 657 (D.C. Cir. 2003); Burns v. United States Dep't of Justice,
    No. 99-3173, slip op. at 2 (D.D.C. Feb. 5, 2001) (concluding that "given
    the capacity of the reels and the absence of any index," a request for specific
    telephone conversations recorded on reel-to-reel tapes was "unreasonably
    burdensome" because "it would take an inordinate [amount of] time to listen
    to the reels in order to locate any requested conversations that might exist");
    Blackman v. United States Dep't of Justice, No. 00-3004, slip op.
    at 5 (D.D.C. July 5, 2001) (declaring request that would require a manual
    search through 37 million pages to be "unreasonable in light of the resources
    needed" to process it), appeal dismissed for lack of prosecution,
    No. 01-5431 (D.C. Cir. Jan. 2, 2003); Peyton v. Reno, No. 98-1457,
    1999 U.S. Dist. LEXIS 12125, at **4-5 (D.D.C. July 19, 1999) (finding that
    request for all records indexed under subject's name reasonably described
    records sought because agency failed to demonstrate that name search would
    be unduly burdensome); O'Harvey v. Office of Workers' Comp. Programs,
    No. 95-0187, slip op. at 3 (E.D. Wash. Dec. 29, 1997) (finding a request
    to be unreasonably burdensome because a search would require the agency
    "to review all of the case files maintained by the agency" and "would entail
    review of millions of pages of hard copies"), aff'd sub nom. O'Harvey
    v. Comp. Programs Workers
    , 188 F.3d 514 (9th Cir. 1999) (unpublished
    table decision); Spannaus v. United States Dep't of Justice, No.
    92-372, slip op. at 6 (D.D.C. June 20, 1995) (finding that agency is not
    required to determine all persons having ties to associations targeted in
    bankruptcy proceedings "and then search any and all civil or criminal files
    relating to those persons"), summary affirmance granted in pertinent
    part
    , No. 95-5267 (D.C. Cir. Aug. 16, 1996).

    81. 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);
    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 (encouraging agencies to handle FOIA requests "in a customer-friendly
    manner").

    82. LaCedra v. Executive Office for United States
    Attorneys
    , 317 F.3d 345, 347-48 (D.C. Cir. 2003) (concluding that the
    agency failed to "liberally construe" a request for "all documents pertaining
    to [plaintiff's] case" when it limited that request's scope to only those
    records specifically and individually listed in the request letter, because
    "[t]he drafter of a FOIA request might reasonably seek all of a certain
    set of documents while nonetheless evincing a heightened interest in a specific
    subset thereof" (citing Nation Magazine, 71 F.3d at 890)); see
    Horsehead Indus. v. EPA, No. 94-1299, slip op. at 4 n.2 (D.D.C. Jan.
    3, 1997) (ruling that "[b]y construing the FOIA request narrowly, [the agency]
    seeks to avoid disclosing information"); FOIA Update, Vol. XVI, No.
    3, at 3 (advising agencies on interpretation of terms of FOIA requests);
    see also Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)
    (emphasizing that an agency is required to read a FOIA request as drafted,
    "not as either [an] agency official or [the requester] might wish it was
    drafted"); Landes v. Yost, No. 89-6338, slip op. at 4-5 (E.D. Pa.
    Apr. 11, 1990) (finding that request was "reasonably descriptive" when it
    relied on agency's own outdated identification code), aff'd, 922
    F.2d 832 (3d Cir. 1990) (unpublished table decision).

    83. Hemenway v. Hughes, 601 F. Supp. 1002,
    1005 (D.D.C. 1985); see Allen v. Fed. Bureau of Prisons, No.
    00-342, slip op. at 7-9 (D.D.C. Mar. 1, 2001) (concluding that the agency
    took "an extremely constricted view" of plaintiff's FOIA request for all
    "records or transcripts" of intercepted phone calls by failing to construe
    audiotape recordings of those calls as being within the request's scope),
    aff'd, 89 Fed. Appx. 276 (D.C. Cir. 2004).

    84. See FOIA Update, Vol. XVI, No. 3,
    at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request") (advising
    of procedures and underlying considerations for document "scoping"); see
    also
    Halpern v. FBI, 181 F.3d 279, 289 (2d Cir. 1999) (holding
    cross-referenced files to be beyond scope of a request because once the
    agency "had requested clarification [about the requester's interest in receiving
    such records], it could then in good faith ignore the cross-referenced files
    until it received an affirmative response" from the requester); Hamilton
    Sec. Group v. HUD
    , 106 F. Supp. 2d 23, 27 (D.D.C. 2000) ("Given the
    exchange of correspondence between counsel and the agency relating to the
    scope of the request, there is no basis for plaintiff's claim that defendant
    should have understood that the request for a [single, specific record]
    was meant to include additional [records]."), aff'd per curiam, No.
    00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001).

    85. See FOIA Post, "Use of 'Cut-Off'
    Dates for FOIA Searches" (posted 5/6/04) (explaining that "[t]he scope of
    a FOIA request has both substantive and temporal aspects"); see also
    Church of Scientology v. IRS, 816 F. Supp. 1138, 1148 (W.D. Tex.
    1993) (observing that "there has to be a temporal deadline for documents
    that satisfy [a FOIA] request"), appeal dismissed by stipulation,
    No. 93-8431 (5th Cir. Oct. 21, 1993).

    86. See Defenders of Wildlife v. United
    States Dep't of the Interior
    , No. 03-1192, 2004 WL 842374, at *6 n.10
    (D.D.C. Apr. 13, 2004) (recognizing that records created after "cut-off"
    date specifically established by agency regulation "are not covered by [plaintiff's]
    request"); FOIA Update, Vol. IV, No. 4, at 14 (advising that records
    that "post-date" an agency's "cut-off" date are not included within the
    temporal scope of a request).

    87. See FOIA Post, "Use of 'Cut-Off'
    Dates for FOIA Searches" (posted 5/6/04) (explaining the practical reasons
    for using the date that the agency's search begins as the "cut-off" date
    for a request).

    88. McGehee v. CIA, 697 F.2d 1095, 1104 (D.C.
    Cir.), vacated on other grounds on panel reh'g & reh'g en banc denied,
    711 F.2d 1076 (D.C. Cir. 1983); see Pub. Citizen v. Dep't of State,
    276 F.3d 634, 644 (D.C. Cir. 2002) (favoring a "date-of-search cut-off"
    because its use "might . . . result[] in the retrieval of more
    [responsive] documents" than would a cut-off based on the date of the request);
    Van Strum v. EPA, No. 91-35404, 1992 WL 197660, at *2 (9th Cir. Aug.
    17, 1992) (agreeing that a date-of-search "cut-off" date is "the most reasonable
    date for setting the temporal cut-off in this case").

    89. Pub. Citizen, 276 F.3d at 643; see
    FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04)
    (describing circumstances under which use of different "cut-off" dates may
    be reasonable); see also, e.g., Blazy v. Tenet, 979 F. Supp.
    10, 17 (D.D.C. 1997) (concluding that it was "reasonable under the circumstances"
    for the agency to apply a date-of-request cut-off to a request that sought
    records concerning events that already had occurred (and records that already
    had been created) by the time the request was made), summary affirmance
    granted
    , No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998).

    90. Pub. Citizen, 276 F.3d at 644; cf.
    McGehee, 647 F.2d at 1103-04 (rejecting agency's arguments that use
    of date-of-search cut-off would be "unduly burdensome, expensive, or productive
    of 'administrative chaos'" as lacking any "detailed substantiation").

    91. See, e.g., Judicial Watch, Inc. v. United
    States Dep't of Energy
    , No. 01-0981, 2004 WL 635180, at *21 (D.D.C.
    Mar. 31, 2004) ("Because the [agency] imposed the . . . cut-off
    date without informing [the requester] of its intention to do so, the court
    must conclude that [the agency's] search was inadequate."); see also
    FOIA Update, Vol. IV, No. 4, at 14 (advising more than two decades
    ago that "agencies should give requesters notice of the 'cut-off' dates
    they use"); cf. McGehee, 697 F.2d at 1105 (expressing doubt
    that the agency could establish that "it may 'reasonably' use any 'cut-off'
    date without so informing the requester").

    92. See, e.g., 28 C.F.R. § 16.4(a) (2004)
    (Department of Justice FOIA regulation notifying requesters of its "cut-off"
    date).

    93. See 5 U.S.C. § 552(g) (2000) (requiring
    each agency to prepare and make publicly available (including electronically)
    its own guide for ready use by FOIA requesters in making requests to it);
    see also FOIA Update, Vol. XIX, No. 3, at 4 (advising that
    "[a]n agency's FOIA Web site is an excellent means of affording widespread
    public availability to its FOIA and Privacy Act regulations").

    94. See, e.g., Pub. Citizen, 276 F.3d
    at 634 (noting that State Department provided notice of its "cut-off" date
    policy in letters sent to all requesters acknowledging receipt of their
    requests); cf. McGehee, 697 F.2d at 1105 (suggesting that
    actual notice of an agency's "cut-off" policy might be given where such
    notice "would involve an insignificant expenditure of time and effort on
    the part of the agency").

    95. See, e.g., 28 C.F.R. § 16.4(a) (providing
    notice of the "cut-off" date that the Justice Department "ordinarily" uses,
    and specifying that "if any other date is used, the [Department] shall inform
    the requester of that date").

    96. See FOIA Update, Vol. XVI, No. 3,
    at 3 (reminding agencies of importance of FOIA requesters "being fully informed
    of all such scope matters").

    97. See, e.g., Zemansky v. EPA, 767
    F.2d 569, 574 (9th Cir. 1985); DiViaio v. Kelley, 571 F.2d 538, 542-43
    (10th Cir. 1978); Barber v. Office of Info. & Privacy, No. 02-1748,
    slip op. at 4 (D.D.C. Sept. 4, 2003) (holding that the agency "had no duty
    to conduct research or to answer questions" that addressed the "'authentic[ity]'
    of federal jurisdiction over the location of his criminal prosecution"),
    aff'd per curiam, No. 03-5266 (D.C. Cir. Feb. 20, 2004); Gillin
    v. Dep't of the Army
    , No. 92-325, slip op. at 10 (D.N.H. May 28, 1993)
    ("FOIA creates only a right of access to records, not a right to require
    an agency to disclose its collective reasoning behind agency actions, nor
    does FOIA provide a mechanism to challenge the wisdom of substantive agency
    decisions."), aff'd, 21 F.3d 419 (1st Cir. 1994) (unpublished table
    decision); Patton v. United States R.R. Ret. Bd., No. ST-C-91-04,
    slip op. at 3 (W.D.N.C. Apr. 26, 1991) (stating that the FOIA "provides
    a means for access to existing documents and is not a way to interrogate
    an agency"), aff'd, 940 F.2d 652 (4th Cir. 1991) (unpublished table
    decision); Hudgins, 620 F. Supp. at 21 ("[The] FOIA creates only
    a right of access to records, not a right to personal services."); cf.
    Flowers v. IRS, 307 F. Supp. 2d 60, 71 (D.D.C. 2004) (declaring that
    the plaintiff "cannot use FOIA discovery to conduct an investigation into
    the [agency's] rationale" for auditing her). But see also Ferri
    v. Bell
    , 645 F.2d 1213, 1220 (3d Cir. 1981) (declaring that a request
    "inartfully presented in the form of questions" could not be dismissed,
    partly because the agency conceded that it could provide the requester with
    records containing the information he sought); FOIA Update, Vol.
    V, No. 1, at 5 (advising that "while agencies do not have to create or compile
    new records in response to FOIA requests (whether formulated in question
    form or not), they should make good faith efforts to assist requesters in
    honing any requests for readily accessible records which are 'inartfully
    presented in the form of questions.'" (quoting Ferri, 645 F.2d at
    1220)).

    98. See, e.g., Poll v. United States Office
    of Special Counsel
    , No. 99-4021, 2000 WL 14422, at *5 n.2 (10th Cir.
    Jan. 10, 2000) (recognizing that the FOIA does not require an agency "'to
    create documents or opinions in response to an individual's request for
    information'" (quoting Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C.
    1985))); Sorrells v. United States, No. 97-5586, 1998 WL 58080, at
    *1 (6th Cir. Feb. 6, 1998) (advising that agency is not required to compile
    document that "contain[s] a full, legible signature"); Krohn v. Dep't
    of Justice
    , 628 F.2d 195, 197-98 (D.C. Cir. 1980) (finding that agency
    "cannot be compelled to create the [intermediary records] necessary to produce"
    the information sought); Jones v. Runyon, 32 F. Supp. 2d
    873, 876 (N.D. W. Va. 1998) (concluding that "because the FOIA does not
    obligate the [agency] to create records," it "acted properly by providing
    access to those documents already created"), aff'd, 173 F.3d
    850 (4th Cir. 1999) (unpublished table decision); Bartlett v. United
    States Dep't of Justice
    , 867 F. Supp. 314, 316 (E.D. Pa. 1994) (ruling
    that agency is not required to create handwriting analysis); see also
    FOIA Update, Vol. V, No. 1, at 5; cf. De Luca v. INS,
    No. 95-6240, 1996 U.S. Dist. LEXIS 2696, at *2 (E.D. Pa. Mar. 7, 1996) (noting
    that agency offered -- purely as matter of administrative discretion --
    to create certification that it had no record that requester was naturalized
    citizen). But cf. Schladetsch v. HUD, No. 99-0175, 2000 WL
    33372125, at *3 (D.D.C. Apr. 4, 2000) ("Because [the agency] has conceded
    that it possesses in its databases the discrete pieces of information which
    [plaintiff] seeks, extracting and compiling that data does not amount to
    the creation of a new record."), appeal dismissed voluntarily, No.
    00-5220 (D.C. Cir. Oct. 12, 2000); Int'l Diatomite Producers, 1993
    WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (giving agency choice of compiling
    responsive list or redacting existing lists containing responsive information);
    FOIA Update, Vol. XVIII, No. 1, at 5-6 (advising of particular statutory
    obligations regarding electronic record searches and format of disclosure).

    99. See FlightSafety Servs. Corp. v. Dep't
    of Labor
    , 326 F.3d 607, 613 (5th Cir. 2003) (per curiam) (recognizing
    that plaintiff's demand that the agency "simply insert new information in
    the place of the redacted information requires the creation of new agency
    records, a task that the FOIA does not require the government to perform");
    Students Against Genocide v. Dep't of State, 257 F.3d 828, 837 (D.C.
    Cir. 2001) (rejecting plaintiff's argument that "even if the agencies do
    not want to disclose the photographs in their present state, they should
    produce new photographs at a different resolution in order to mask the [classified]
    capabilities of the reconnaissance systems that took them"). But see
    Jones v. OSHA, No. 94-3225, 1995 WL 435320, at *4 (W.D. Mo. June
    6, 1995) (stating that agency must "retype," not withhold in full, documents
    required to be released by its own regulation, in order to delete FOIA-exempt
    information).

    100. See NLRB v. Sears, Roebuck & Co.,
    421 U.S. 132, 162 (1975) (holding that agency is not required to create
    explanatory materials); Citizens Progressive Alliance v. United States
    Bureau of Indian Affairs
    , 241 F. Supp. 2d 1342, 1365 (D.N.M. 2002) ("Defendants
    may be required to disclose material pursuant to FOIA, but Defendants are
    not required to . . . explain any records produced."); Tax
    Analysts v. IRS
    , No. 94-923, 1998 WL 419755, at *2 (D.D.C. May 1, 1998)
    (declaring that "an agency need not add explanatory material to a document
    to make it more understandable in light of the redactions"); Gabel v.
    Comm'r
    , 879 F. Supp. 1037, 1039 (N.D. Cal. 1994) (noting that FOIA does
    not require agency "to revamp documents or generate exegeses so as to make
    them comprehensible to a particular requestor"); cf. Essential
    Info., Inc. v. USIA
    , 134 F.3d 1165, 1172 (D.C. Cir. 1998) (Tatel, J.,
    dissenting) (observing that "FOIA contains no . . . translation
    requirement"). But cf. McDonnell, 4 F.3d at 1261 n.21 (suggesting,
    in dictum, that agency might be compelled to create translation of any disclosable
    encoded information).

    101. See Steinberg v. United States Dep't
    of Justice
    , 801 F. Supp. 800, 802 (D.D.C. 1992) (holding that agency
    is not obligated to retrieve law enforcement records transferred for use
    in criminal prosecutions to Commonwealth of Virginia).

    102. See Kissinger v. Reporters Comm. for
    Freedom of the Press
    , 445 U.S. 136, 150-55 (1980); cf. Spannaus
    v. United States Dep't of Justice
    , 942 F. Supp. 656, 658 (D.D.C. 1996)
    (finding that "personal files" of attorney no longer employed with agency
    were "beyond the reach of FOIA" if they were not turned over to agency at
    end of employment).

    103. See, e.g., Jones v. FBI, 41 F.3d
    238, 249 (6th Cir. 1994); see also Robert v. HHS, 78 Fed.
    Appx. 146, 147 (2d Cir. 2003) (finding no improper withholding of records
    that were destroyed in accordance with agency's record-retention schedule
    prior to agency's receipt of FOIA request); Flowers, 307 F. Supp.
    2d at 71 (excusing agency's failure to locate file destroyed in accordance
    with published record- retention schedules); Laughlin v. Comm'r,
    103 F. Supp. 2d 1219, 1224-25 (S.D. Cal. 1999) (refusing to order agency
    to recreate properly discarded document); Jones, 32 F. Supp. 2d at
    875-76 (finding that agency did not improperly withhold requested report
    that was discarded in accordance with agency policies and practices); Rothschild
    v. Dep't of Energy
    , 6 F. Supp. 2d 38, 40 (D.D.C. 1998) (agreeing
    that because agency "is under no duty to disclose documents not in its possession,"
    agency did not violate the FOIA by failing to provide discarded drafts of
    responsive documents); Green v. NARA, 992 F. Supp. 811, 817 (E.D.
    Va. 1998) (finding that agency met its FOIA obligation when it provided
    reasonable access to records sought by plaintiff prior to disposal of records
    under Records Disposal Act, 44 U.S.C. § 3301 (2000), and noting
    that "FOIA . . . does not obligate agencies to retain all records
    [in its possession], nor does it establish specified procedures designed
    to guide disposal determinations"); cf. Folstad v. Bd. of Governors
    of the Fed. Reserve Sys.
    , No. 1:99-124, 1999 U.S. Dist. LEXIS 17852,
    at *5 (W.D. Mich. Nov. 16, 1999) (recognizing that "[e]ven if the agency
    failed to keep documents that it should have kept, that failure would create
    neither responsibility under the FOIA to reconstruct those documents nor
    liability for the lapse"), aff'd, 234 F.3d 1268 (6th Cir. 2000) (unpublished
    table decision); FOIA Update, Vol. XVIII, No. 1, at 5-6 (advising
    that FOIA does not govern agency records disposition practices). But
    cf.
    Schrecker v. United States Dep't of Justice, 254 F.3d 162,
    165 (D.C. Cir. 2001) (holding that absent proof that requested records were
    destroyed, agency cannot refuse to search for such records simply because
    they were type of records not required to be retained); Valencia-Lucena
    v. United States Coast Guard
    , 180 F.3d 321, 328 (D.C. Cir. 1999) (rejecting
    agency's claim that it failed to locate requested records because they were
    type routinely destroyed, and declaring that "generalized claims of destruction
    or non-preservation cannot sustain summary judgment").

    104. See Folstad, 1999 U.S. Dist. LEXIS
    17852, at *8 (finding that if agency "is no longer in possession of the
    documents, nothing in the FOIA requires the agency to obtain those documents
    from the private [banking] institution"); Rush Franklin Publ'g, Inc.
    v. NASA
    , No. 90-CV-2855, slip op. at 9-10 (E.D.N.Y. Apr. 13, 1993) (mailing
    list generated and held by federal contractor); Conservation Law Found.
    v. Dep't of the Air Force
    , No. 85-4377, 1986 U.S. Dist. LEXIS 24515,
    at *10 (D. Mass. June 6, 1986) (computer program generated and held by federal
    contractor); cf. United States v. Napper, 887 F.2d 1528, 1530
    (11th Cir. 1989) (concluding that FBI was entitled to return of documents
    loaned to city law enforcement officials, notwithstanding fact that copies
    of some documents had been disclosed) (non-FOIA case). But see Chi.
    Tribune Co. v. HHS
    , No. 95 C 3917, 1999 WL 299875, at *3 (N.D. Ill.
    May 4, 1999) (ordering nonparty government contractor to disclose audit
    data because "the government whole-handedly controls and blatantly influences
    [the contractor's] action with respect to disclosure of the documents"),
    emergency stay denied, No. 99-2162 (7th Cir. June 9, 1999); Cal-Almond,
    Inc. v. USDA
    , No. 89-574, slip op. at 3-4 (E.D. Cal. Mar. 17, 1993)
    (ordering agency to reacquire records that mistakenly were returned to submitter
    upon closing of administrative appeal), appeal dismissed per stipulation,
    No. 93-16727 (9th Cir. Oct. 26, 1994); see also FOIA Update,
    Vol. XIX, No. 4, at 2 (discussing private grantee records that are uniquely
    made subject to FOIA under OMB Circular A-110, "Uniform Administrative Requirements
    for Grants and Agreements with Institutions of Higher Education, Hospitals,
    and Other Non-Profit Organizations," 64 Fed. Reg. 54,926 (1999)); cf.
    Nw. Coalition for Alternatives to Pesticides v. EPA, 254 F. Supp.
    2d 125, 131 (D.D.C. 2003) (noting that a private entity's "voluntary provision"
    of a requested record to plaintiff "does not relieve the [agency] of [its]
    obligation to respond to plaintiff's [FOIA] request" for an identical record
    maintained in the agency's files).

    105. See, e.g., Niagara Mohawk Power Corp.
    v. United States Dep't of Energy
    , No. 95-0952, transcript at 10 (D.D.C.
    Feb. 23, 1996) (bench order) (admonishing that FOIA is not to be used to
    force agency to obtain information from another agency), vacated &
    remanded on other grounds
    , 169 F.3d 16 (D.C. Cir. 1999); Gillin,
    No. 92-325, slip op. at 5 (D.N.H. May 28, 1993) (The "[r]equest focused
    primarily upon the decisions made by the [agency] in granting [the administrative
    permit], rather than the documentation upon which the [agency] relied.").
    But cf. Nat'l Ass'n of Criminal Def. Lawyers v. United States
    Dep't of Justice
    , No. 97-372, slip op. at 8-10 (D.D.C. June 26, 1998)
    (concluding that plaintiff's FOIA suit caused agency to issue revised criminal
    prosecution policy and awarding interim attorney fees partly on such basis),
    interlocutory appeal dismissed for lack of juris., 182 F.3d 981 (D.C.
    Cir. 1999).

    106. See Tuchinsky v. Selective Serv. Sys.,
    418 F.2d 155, 158 (7th Cir. 1969) (holding that no automatic release is
    required of material related to occupational deferments until a request
    is in hand; "otherwise, [the agency] would be required to 'run [a] loose-leaf
    service' for every draft counselor in the country"); Mandel Grunfeld
    & Herrick v. United States Customs Serv.
    , 709 F.2d 41, 43 (11th
    Cir. 1983) (determining that plaintiff not entitled to automatic mailing
    of materials as they are updated); Howard v. Sec'y of the Air Force,
    No. SA-89-CA-1008, slip op. at 6 (W.D. Tex. Oct. 2, 1991) (concluding that
    plaintiff's request for records on continuing basis would "create an enormous
    burden, both in time and taxpayers' money"); Lybarger v. Cardwell,
    438 F. Supp. 1075, 1077 (D. Mass. 1977) (holding that "open-ended procedure"
    advanced by requester whereby records automatically disclosed not required
    by FOIA and "will not be forced" upon agency); see also FOIA Update,
    Vol. VI, No. 2, at 6 ("[I]n the few cases to have raised the issue of 'prospective'
    FOIA requests the courts have uniformly held that such requests are not
    proper.").

    107. See, e.g., Tax Analysts v. IRS,
    No. 94-923, 1998 WL 419755, at *4 (D.D.C. May 1, 1998) (recognizing that
    court could not order relief concerning documents not yet created and "for
    which a request for release has not even been made and for which administrative
    remedies have not been exhausted"); cf. FOIA Update, Vol.
    XVI, No. 1, at 1 (citing OMB Circular A-130, "Management of Federal Information
    Resources," 59 Fed. Reg. 37,905 (1994) (prescribing policies to encourage
    agencies to affirmatively disseminate government information independent
    of FOIA context)). But cf. Nat'l Ass'n of Criminal Def. Lawyers,
    No. 97-372, slip op. at 17 (D.D.C. June 26, 1998) (granting interim attorney
    fees based in part upon novel finding that plaintiff prevailed when, during
    litigation, agency released report which was not yet in existence at time
    of plaintiff's request).

    108. See 5 U.S.C. § 552(a)(3) (generally
    excluding "reading room" records from Act's basic "FOIA request" provisions).

    109. Id. § 552(a)(2); see also
    FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01)
    (outlining categories of records required to be affirmatively disclosed
    in "electronic" reading rooms); FOIA Update, Vol. XVII, No. 3, at
    1-2 (discussing maintenance of both conventional and "electronic" reading
    rooms under Electronic FOIA amendments).

    110. See Schwarz v. United States Patent
    & Trademark Office
    , No. 95-5349, 1996 U.S. App. LEXIS 4609, at **2-3
    (D.C. Cir. Feb. 22, 1996) (per curiam); Crews v. Internal Revenue,
    No. 99-8388, 2000 WL 900800, at *6 (C.D. Cal. Apr. 26, 2000) (holding that
    "documents that are publicly available either in the [agency's FOIA] reading
    room or on the [I]nternet" are "not subject to production via FOIA requests");
    cf. Perales v. DEA, 21 Fed. Appx. 473, 474-75 (7th Cir. 2001)
    (recognizing that "material already made available through publication in
    the Federal Register" cannot be requested under subsection (a)(3) of the
    FOIA). But see also FOIA Update, Vol. XVIII, No. 1, at 3 (advising
    that Congress made clear that newly established "reading room" category
    of FOIA-processed records would stand as exception to general rule and be
    subject to regular FOIA requests as well); 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 . . . just by voluntarily
    placing it into its reading room").

    111. 5 U.S.C. § 552(a)(3)(A); see, e.g., Wicks
    v. Coffrey
    , No. 01-3664, 2002 WL 1000975, at *2 (E.D. La. May 14, 2002)
    ("The first step in exhausting administrative remedies under the FOIA is
    filing a proper FOIA request."); Blackwell v. EEOC, No. 2:98-38,
    1999 U.S. Dist. LEXIS 3708, at *5 (E.D.N.C. Feb. 12, 1999) (finding that
    request was not properly made because plaintiff failed to follow specific
    agency regulation requiring that request be denominated explicitly as request
    for information under FOIA).

    112. See 5 U.S.C. § 552(a)(4)(A), (a)(6)(A),
    (a)(6)(D), (a)(6)(E); see also id. § 552(g) (requiring
    agencies to make available "reference material or a guide for requesting
    records or information from the agency"); FOIA Update, Vol. XIX,
    No. 3, at 3 (discussing availability of agency FOIA reference guides through
    agency FOIA sites on World Wide Web); FOIA Update, Vol. XVIII, No.
    2, at 1 (discussing electronic availability of Justice Department's FOIA
    Reference Guide).

    113. See, e.g., Department of Justice FOIA
    Regulations, 28 C.F.R. pt. 16 (2004).

    114. Pub. L. No. 104-231, 110 Stat. 3048 (codified
    as amended at 5 U.S.C. § 552 (2000)).

    115. See FOIA Update, Vol. XIX, No.
    1, at 3-5 ("OIP Guidance: Electronic FOIA Amendments Implementation Guidance
    Outline").

    116. See FOIA Update, Vol. XVII, No.
    4, at 1-2, 10-11 (discussing statutory changes).

    117. 5 U.S.C. § 552(a)(6)(D), (a)(6)(E);
    see, e.g., 28 C.F.R. pt. 16; see also FOIA Post,
    "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (reminding agencies
    of their electronic access obligations for regulations); FOIA Update,
    Vol. XIX, No. 3, at 4 (discussing availability of agency regulations, including
    proposed regulations, through agency FOIA Web sites).

    118. Presidential FOIA Memorandum, reprinted in
    FOIA Update, Vol. XIV, No. 3, at 3; see, e.g., FOIA Update,
    Vol. XV, No. 3, at 6 (cautioning against practices that would cause unwarranted
    disadvantages to requesters in record-referral processes).

    119. See Zemansky, 767 F.2d at 574;
    see also FOIA Update, Vol. X, No. 3, at 5 (addressing submission
    of FOIA requests by "fax" in relation to agency regulation); cf.
    FOIA Post, "Anthrax Mail Emergency Delays FOIA Correspondence"
    (posted 11/30/01) (noting that agencies can mitigate the effects of anthrax-related
    mail disruption by "allow[ing] FOIA requesters to submit new requests by
    fax, or even electronically if they have established that capability");
    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).

    120. See, e.g., Ruotolo, 53 F.3d at
    10 (charging that agency failed to comply with its own regulation requiring
    it to assist requesters in reformulating requests determined not to reasonably
    describe records sought); Pub. Citizen v. FDA, No. 94-0018, slip
    op. at 2 (D.D.C. Feb. 9, 1996) (criticizing agency for asserting that request
    did not reasonably describe "records which could be located in the FDA's
    record keeping system without an unduly burdensome search," and ignoring
    plaintiff's concession to limit scope of request, concluding that agency
    violated its own regulatory requirement to seek more specific information
    and to narrow scope of request); cf. FOIA Update, Vol. XIX,
    No. 1, at 5 (advising agencies to implement statutory provisions of Electronic
    FOIA amendments "without any disadvantage to FOIA requesters," regardless
    of status of implementing regulations).

    121. See Maydak v. United States Dep't
    of Justice
    , 254 F. Supp. 2d 23, 40 (D.D.C. 2003) (ruling that because
    the agency's "regulations require FOIA requesters seeking records from field
    offices to write directly to the respective field office," the agency "had
    no statutory obligation to proceed with a search of all of its field offices");
    Stanley v. DOD, No. 93-4247, slip op. at 10 (S.D. Ill. July 28, 1998)
    (holding that a request was not properly received when the agency returned
    -- unopened -- an improperly addressed request); Smith, 1996 U.S.
    Dist. LEXIS 5594, at *9 (N.D. Cal. Apr. 23, 1996) (stating that "National
    Records Administration is not a HUD information center," and holding that
    by directing FOIA request to wrong agency plaintiff failed to exhaust administrative
    remedies); Sands v. United States, No. 94-0537, 1995 U.S. Dist. LEXIS
    9252, at **10-12 (S.D. Fla. June 16, 1995) (noting, in light of agency's
    clear rules and reasonable treatment of misdirected request, that plaintiff
    failed to exhaust administrative remedies by not directing request to appropriate
    office); United States v. Agunbiade, No. 90-CR-610, 1995 WL 351058,
    at *6 (E.D.N.Y. May 10, 1995) (ruling that plaintiff who did not direct
    request to "appropriate parties and agencies" in accordance with agency-specific
    rules failed to exhaust administrative remedies), aff'd sub nom.
    United States v. Osinowo, 100 F.3d 942 (2d Cir. 1996) (unpublished
    table decision). But see Coolman v. IRS, No. 98-6149, 1999
    WL 675319, at *4 (W.D. Mo. July 12, 1999) (finding administrative remedies
    exhausted because "it cannot be said . . . that plaintiff's failure
    to use the address provided in [agency's] regulations prevented his request
    from arriving at the correct destination"), summary affirmance granted,
    No. 99-3963, 1999 WL 1419039 (8th Cir. Dec. 6, 1999); Raulerson v. Reno,
    No. 96-120, slip op. at 5 (D.D.C. Feb. 26, 1999) (finding search inadequate
    -- notwithstanding agency regulations requiring that requests be addressed
    to individual offices maintaining records sought -- because not all offices
    likely to contain responsive records were searched), summary affirmance
    granted
    , No. 99-5257, 1999 WL 1215968 (D.C. Cir. Nov. 23, 1999).

    122. See Pollack v. Dep't of Justice,
    49 F.3d 115, 119 (4th Cir. 1995) (concluding that plaintiff's refusal to
    pay anticipated fees constitutes failure to exhaust administrative remedies);
    Judicial Watch v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C. 2002) ("The
    D.C. Circuit has held that failure to pay FOIA fees constitutes a failure
    to exhaust administrative remedies" (citing Oglesby v. United States
    Dep't of the Army
    , 920 F.2d 57, 66 (D.C. Cir. 1990))); Schwarz v.
    United States Dep't of Treasury
    , 131 F. Supp. 2d 142, 148 (D.D.C. 2000)
    ("Exhaustion of administrative remedies . . . includes payment
    of required fees or an appeal within the agency from a decision refusing
    to waive fees."); Grecco v. Dep't of Justice, No. 97-0419, slip op.
    at 5 (D.D.C. Apr. 1, 1999) (recognizing that requester's failure to pay
    fees or ask for fee waiver constitutes failure to exhaust administrative
    remedies); Smith v. IRS, No. 2:94-989, 1999 WL 357935, at *1 (D.
    Utah Mar. 24, 1999) (finding that plaintiff "failed to exhaust his administrative
    remedies in that he failed to pay the fees and costs in order to process
    his claims"); Stanley, No. 93-4247, slip op. at 9 (S.D. Ill. July
    28, 1998) (finding request not properly received also because requester
    failed to follow agency regulations requiring agreement to pay fees); cf.
    Pub. Citizen, Inc. v. Dep't of Educ., 292 F. Supp. 2d 1, 4-5 &
    n.4 (D.D.C. 2003) (concluding that because the agency "failed to [respond]
    to plaintiff's fee waiver request when it was required by statute to do
    so," and then "proceed[ed] with a search without notifying plaintiff of
    the cost of that search," the agency could not subsequently in litigation
    demand payment of fees from plaintiff, which "had no reason to assume it
    would be required to pay fees . . . in view of [the agency's]
    silence in the face of plaintiff's specific fee waiver request").

    123. See Schwarz v. FBI, 31 F. Supp.
    2d 540, 542 (N.D. W. Va. 1998) (recognizing that first-party requester's
    failure to follow agency regulations requiring her to submit fingerprints
    for positive identification constituted failure to exhaust administrative
    remedies), aff'd, 166 F.3d 334 (4th Cir. 1998) (unpublished table
    decision); cf. Martin v. United States Dep't of Justice, No.
    96-2866, slip op. at 7-8 (D.D.C. Dec. 16, 1999) (ruling that requester who
    seeks law enforcement information about living third party and fails to
    provide subject's written authorization permitting disclosure of records
    has not failed to exhaust administrative remedies because agency regulations
    stated only that such authorization "will help the processing of [the] request"),
    rev'd & remanded in part on other grounds, No. 00-5389 (D.C.
    Cir. Apr. 23, 2002). But cf. Pusa v. FBI, No. 99-04603, slip
    op. at 5 (C.D. Cal. Aug. 3, 1999) (holding that plaintiff who failed to
    submit third party's privacy waiver "has failed to exhaust administrative
    remedies under the FOIA by failing to comply with the agency's published
    procedures for obtaining third-party information").

    124. See, e.g., Lumarse v. HHS, No.
    98-55880, 1999 WL 644355, at *5 (9th Cir. Aug. 24, 1999) (affirming dismissal
    of plaintiff's FOIA claim for failure to exhaust administrative remedies
    because plaintiff "does not allege that it [administratively] appealed the
    denials of its FOIA requests"); Teplitsky v. Dep't of Justice, No.
    96-36208, 1997 WL 665705, at *1 (9th Cir. Oct. 24, 1997) (holding plaintiff
    had not exhausted administrative remedies when he did not administratively
    appeal denial of FOIA request even though agency notified him of procedure);
    RNR Enters. v. SEC, 122 F.3d 93, 98 (2d Cir. 1997) (ruling plaintiff
    had not exhausted his administrative remedies when he failed to appeal agency
    denial even though he was advised of his right to appeal and denial was
    issued during requisite time period); Coleman v. United States Dep't
    of Justice
    , No. 02-79, slip op. at 5 (E.D. Va. Oct. 7, 2002) (holding
    that plaintiff "has not exhausted his administrative remedies with regard
    to the particular issue of whether the [agency's] search was adequate,"
    because plaintiff failed to raise that issue on administrative appeal);
    Coates v. Department of Labor, 138 F. Supp. 2d 663, 668 (E.D. Pa.
    2001) (deeming administrative remedies not exhausted due to plaintiff's
    failure to "engage in [administrative appeal] process, regardless of how
    frivolous he may have believed [that process] to be"); Hamilton Sec.
    Group v. HUD
    , 106 F. Supp. 2d 23, 29 (D.D.C. 2000) (holding that plaintiff
    failed to exhaust administrative remedies because it filed its administrative
    appeal one day after regulatory deadline for filing such appeals had passed),
    aff'd per curiam, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23,
    2001); Comer v. IRS, No. 97-76329, 1999 U.S. Dist. LEXIS 16268, at
    *11 (E.D. Mich. Sept. 30, 1999) (finding that although plaintiff previously
    appealed agency's failure to promptly respond to his request, "[u]pon receiving
    the documents and the bill, and prior to filing suit, plaintiff was [again]
    obliged to administratively appeal whatever dissatisfactions he may have
    had with that result"); Patterson, No. 96-0095, slip op. at 1 (D.D.C.
    Mar. 23, 1999) (dismissing case because plaintiff failed to exhaust administrative
    remedies by not administratively appealing denial of fee waiver request);
    Thomas v. Office of United States Attorney, 171 F.R.D. 53, 54 (E.D.N.Y.
    1997) (ruling that administrative remedies were not exhausted when plaintiff
    made further request for documents in appeal of agency's denial of plaintiff's
    initial request). But cf. Wilbur v. CIA, 355 F.3d 675, 677
    (D.C. Cir. 2004) (noting that "the policies serving the exhaustion requirement
    have been served" when the agency "accepted" and then adjudicated an administrative
    appeal received four years after the regulatory deadline for its submission
    had passed).

    125. See Brumley v. United States Dep't
    of Labor
    , 767 F.2d 444, 445 (8th Cir. 1985) (determining that agency
    complied with "FOIA's response time provisions" after advising plaintiff
    that routing of his request to appropriate office within agency would result
    in short delay "before the ten working day response period would begin running");
    Blackwell v. EEOC, No. 2:98-38, 1999 U.S. Dist. LEXIS 3708, at *6
    (E.D.N.C. Feb. 12, 1999) ("The time period for responding to a FOIA request
    . . . does not begin to run until the request is received by the
    appropriate office and officer in the agency, as set forth in the agency's
    published regulations."); see also Judicial Watch, Inc. v. United
    States Dep't of Justice
    , No. 97-2089, slip op. at 10-11 (D.D.C. July
    14, 1998) (finding that the court was without jurisdiction when plaintiff
    filed Complaint prior to lapse of statutory time limit); cf. Soghomonian
    v. United States
    , 82 F. Supp. 2d 1134, 1138 (E.D. Cal. 1999) (holding
    that twenty-day time period for responding to administrative appeal begins
    when agency receives appeal, not when requester mails it).

    126. See, e.g., Lykins v. United States
    Dep't of Justice
    , 3 Gov't Disclosure Serv. (P-H) ¶ 83,092, at 83,637
    (D.D.C. Feb. 28, 1983).

    127. 28 C.F.R. § 16.11(e) (2004).

    128. See Irons v. FBI, 571 F. Supp.
    1241, 1243 (D. Mass. 1983), rev'd on other grounds, 811 F.2d 681
    (1987); see also Pollack v. Dep't of Justice, 49 F.3d 115,
    120 (4th Cir. 1995); cf. Oglesby v. United States Dep't of the
    Army
    , 920 F.2d 57, 66 (D.C. Cir. 1990); Loomis v. Dep't of Energy,
    No. 96-149, 1999 WL 33541935, at **3-4 (N.D.N.Y. Mar. 9, 1999) (finding
    that plaintiff's request was properly received when he agreed to pay estimated
    fee that agency later revised upward), aff'd, 21 Fed. Appx. 80 (2d
    Cir. 2001).

    129. See Trenerry v. IRS, No. 95-5150,
    1996 WL 88459, at *2 (10th Cir. Mar. 1, 1996); Atkin v. EEOC, No.
    92-3275, slip op. at 5 (D.N.J. June 24, 1993); Crooker v. United States
    Secret Serv.
    , 577 F. Supp. 1218, 1219-20 (D.D.C. 1983); FOIA Update,
    Vol. VII, No. 2, at 2; see also 5 U.S.C. § 552(a)(4)(A)(v).

    130. See FOIA Post, "Anthrax Mail
    Emergency Delays FOIA Correspondence" (posted 11/30/01) (noting that "[t]he
    processing of a FOIA request, with all applicable statutory deadlines, is
    triggered by an agency's 'receipt of . . . such request'"
    (quoting 5 U.S.C. § 552(a)(6)(A)(i))).

    131. 5 U.S.C. § 552(a)(6)(A)(i); see FOIA Update, Vol. XVII, No. 4, at 2, 10 (discussing
    Electronic FOIA amendments' modifications to FOIA's time-limit provisions); FOIA
    Update
    , Vol. XII, No. 3, at 5 (advising that merely acknowledging request within
    statutory time period is simply insufficient); cf. Judicial Watch, 880 F. Supp. at 10
    (rejecting requester's preposterous claim that response in less than ten working
    days is evidence of "bad faith").

    132. Pub. L. No. 104-231, § 8(b), 110 Stat. 3048, 3052 (codified as amended at 5 U.S.C. §
    552(a)(6)(A)(i)).

    133. See 5 U.S.C. § 552(a)(6)(C)(i) (requiring that records be made available
    "promptly"); see also Larson v. IRS, No. 85-3076, slip op. at 2-3 (D.D.C. Dec. 11, 1985)
    (finding that the FOIA "does not require that the person requesting records be
    informed of the agency's decision within ten days, it only demands that the
    government make [and mail] its decision within that time"). But see Manos v. United
    States Dep't of the Air Force
    , No. C-92-3986, 1993 U.S. Dist. LEXIS 1501, at **14-15
    (N.D. Cal. Feb. 10, 1993) (ruling aberrationally that even mailing response within ten-day period was not sufficient and that requester must actually receive response
    within ten-day period).

    134. 5 U.S.C. § 552(a)(6)(B)(i); see Pub. Citizen, Inc. v. Dep't of Educ., No. 01-2351, slip
    op. at 17-23 (D.D.C. June 17, 2002) (ruling that because provisions of subsection
    (a)(6)(B)(i) are permissive rather than mandatory, agency is not obliged to send such
    notice, although such nonaction certainly will not extend time for making
    determination on request).

    135. 5 U.S.C. § 552(a)(6)(B)(iii); see also Al-Fayed v. CIA, No. 00-2092, slip op. at 5
    (D.D.C. Jan. 16, 2001) (recognizing that circumstances "such as an agency's effort to
    reduce the number of pending requests, the amount of classified material, the size
    and complexity of other requests processed by the agency, the resources being
    devoted to the declassification of classified material of public interest, and the
    number of requests for records by courts or administrative tribunals are relevant to
    the Courts' determination as to whether [unusual] circumstances exist"), aff'd, 254
    F.3d 300 (D.C. Cir. 2001).

    136. 5 U.S.C. § 552(a)(6)(B)(ii); see, e.g., 28 C.F.R. § 16.5(c) (Department of Justice
    FOIA regulation); cf. Al-Fayed, No. 00-2092, slip op. at 6 (D.D.C. Jan. 16, 2001)
    (observing that the Act "places the onus of modification [of a request's scope]
    squarely upon the requester, and does not indicate that an equal burden rests with
    the agency to 'negotiate' an agreeable 'deadline'").

    137. See, e.g., Zuckerman v. FBI, No. 94-6315, slip op. at 8 (D.N.J. Dec. 6, 1995) (noting
    effects of resource limitations on complying with statutory time limits); see also
    FOIA Update, Vol. XV, No. 2, at 2; FOIA Update, Vol. XIV, No. 3, at 5, 8-9; FOIA
    Update
    , Vol. XIII, No. 2, at 8-10; FOIA Update, Vol. XI, No. 1, at 1-2; cf. FOIA Update,
    Vol. XVI, No. 1, at 1-2 (promoting practice of making agency records "affirmatively"
    available to public, rather than providing them only in response to particular FOIA
    requests, in order to benefit overall process of FOIA administration).

    138. See Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16
    (D.C. Cir. 1976) (citing 5 U.S.C. § 552(a)(6)(C)). But cf. Al-Fayed, No. 00-2092, slip op. at
    9 n.5 (D.D.C. Jan. 16, 2001) (noting that "even if the [agency] did not adhere strictly to
    first-in, first-out processing, there is little support that Open America requires such a
    system" so long as the agency's processing system is fair overall); Summers v. CIA,
    No. 98-1682, slip op. at 4 (D.D.C. July 26, 1999) (recognizing that agency need not
    adhere strictly to "first-in, first-out process[ing]" so long as "it is proceeding in a
    manner designed to be fair and expeditious").

    139. Pub. L. No. 104-231, § 7(a), 110 Stat. 3048, 3050 (codified as amended at 5 U.S.C.
    § 552(a)(6)(D) (2000)); see, e.g., 28 C.F.R. § 16.5(b) (Department of Justice
    implementing regulation); see also FOIA Update, Vol. XVIII, No. 1, at 6 (discussing
    multitrack processing for agencies with decentralized FOIA operations); FOIA
    Update
    , Vol. XVII, No. 4, at 10 (discussing implementing regulations); cf. FOIA Post,
    "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (noting that
    agencies' annual FOIA reports must include "the number of requests that were
    accorded expedited processing . . . [and] should to the extent practicable also report
    the number of requests for expedited processing that are received each year"); FOIA
    Update
    , Vol. XVIII, No. 3, at 3-7 (advising agencies regarding reporting of multitrack-processing information in annual FOIA reports).

    140. See 5 U.S.C. § 552(a)(6)(C). But cf. Judicial Watch v. United States Naval
    Observatory
    , 160 F. Supp. 2d 111, 113 (D.D.C. 2001) (concluding that agency's "failure
    to timely respond to [a] request for expedited processing is not equivalent to
    constructive exhaustion of administrative remedies as to the request for
    documents").

    141. See, e.g., Spannaus v. United States Dep't of Justice, 824 F.2d 52, 58 (D.C. Cir.
    1987); Perdue Farms v. NLRB, 927 F. Supp. 897, 904 (E.D.N.C. 1996), vacated on other
    grounds
    , 108 F.3d 519 (4th Cir. 1997); see also Walsh v. VA, No. 03-C-0225, slip op. at 3-4 (E.D. Wis. Feb. 10, 2004) ("The failure of an agency to comply with the [FOIA's]
    statutory time limits . . . constitutes constructive exhaustion of administrative
    remedies, thereby permitting the requestor to seek relief in court."); McCall v. United
    States Marshals Serv.
    , 36 F. Supp. 2d 3, 5 (D.D.C. 1999) (finding that plaintiff
    constructively exhausted his administrative remedies when court "provisionally filed"
    his FOIA complaint and application to proceed in forma pauperis before agency
    responded to his request, even though agency responded before court granted
    plaintiff's motion to proceed in forma pauperis); FOIA Update, Vol. IV, No. 1, at 6
    (superseded in part). But cf. Pollack, 49 F.3d at 119 (holding that constructive
    exhaustion provision does not relieve requester of statutory obligation to pay fees
    that agency is authorized to collect).

    142. See Oglesby, 920 F.2d at 61-65; accord Hidalgo v. FBI, 344 F.3d 1256, 1259-60
    (D.C. Cir. 2003) (ruling that plaintiff failed to exhaust his administrative remedies
    because his prematurely filed administrative appeal of the agency's failure to comply
    with the FOIA's time limits "did not promote the purposes of the exhaustion
    doctrine" with respect to the "substance" of the agency's ultimately timely response
    to his request); Teplitsky v. Dep't of Justice, No. 96-36208, 1997 WL 665705, at *1 (9th
    Cir. Oct. 24, 1997) (holding that plaintiff had not exhausted administrative remedies
    when he did not appeal denial of FOIA request even though agency notified him of
    procedure); RNR Enters. v. SEC, 122 F.3d 93, 98 (2d Cir. 1997) (ruling that plaintiff had
    not exhausted his administrative remedies when he failed to appeal agency denial
    even though he was advised of his right to appeal and denial was issued during
    requisite time period); Ruotolo v. Dep't of Justice, 53 F.3d 4, 9 (2d Cir. 1995) (finding
    administrative remedies exhausted when agency did not include notification of right
    to appeal its determination that request not reasonably described); Taylor v.
    Appleton
    , 30 F.3d 1365, 1370 (11th Cir. 1994) (stating that once party has waited for
    response from agency, actual exhaustion must occur before court has jurisdiction to
    review challenges); McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir. 1993)
    (upholding dismissal of claim as proper when plaintiff filed suit before filing appeal
    of denial received after exhaustion of statutory response period); see also Lowry v.
    Soc. Sec. Admin.
    , No. 00-1616, slip op. at 9-10 (D. Or. Aug. 29, 2001) (holding that
    requester had not constructively exhausted administrative remedies when he filed
    suit on day after agency mailed its denial letter, despite fact that he did not receive
    letter until several days thereafter); Bryce v. Overseas Private Inv. Corp., No. A-96-595, slip op. at 12 (W.D. Tex. Sept. 28, 1998) (recognizing that although agency's
    failure to respond within statutory time limit constitutes constructive exhaustion, "if
    the agency responds with a determination prior to the requester filing suit, then the
    requirement to exhaust administrative review is revived"), appeal dismissed
    voluntarily
    , No. 99-50893 (5th Cir. Oct. 11, 1999); FOIA Update, Vol. XII, No. 2, at 3-4
    ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision"). But
    see
    Mieras v. United States Forest Serv., No. 93-CV-74552, slip op. at 3 (E.D. Mich.
    Feb. 14, 1995) (misapplying D.C. Circuit rules on constructive exhaustion in declaring
    that plaintiff had not exhausted administrative remedies as he failed to file
    administrative appeal after agency response, even though he initiated lawsuit
    before agency response was made).

    143. See 5 U.S.C. § 552(a)(6)(C); see also FOIA Update, Vol. IX, No. 4, at 5.

    144. See Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 615-16
    (D.C. Cir. 1976); see also Gilmore v. NSA, No. 94-16165, 1995 WL 792079, at *1 (9th Cir.
    Dec. 11, 1995) (noting that even after agency's recent internal review of its FOIA
    operations to identify and correct deficiencies resulted in staff increase and
    implementation of "first-in/first-out" procedure, court determined it "unlikely that
    [agency] could process requests more quickly given that it must undertake a
    painstaking review of voluminous sensitive documents before disclosing requested
    information"); Jimenez v. FBI, 938 F. Supp. 21, 31 (D.D.C. 1996) ("In view of [the
    agency's] two-track system and the large volume of documents expected to be
    responsive to plaintiff's request, the Court finds that [the agency] has met the due
    diligence requirements for a stay."); Gilmore v. United States Dep't of State, No. 95-1098, slip op. at 27 (N.D. Cal. Feb. 9, 1996) (finding that in addition to other factors,
    "the recent and prolonged government shutdown provides a sufficient showing of
    exceptional circumstances"). But see Matlack, Inc. v. EPA, 868 F. Supp. 627, 633 (D.
    Del. 1994) (deciding that agency's response that it has a "'large docket of Freedom of
    Information Act appeals and [is] working as quickly as possible to resolve them,'
    without more, is simply insufficient to demonstrate 'exceptional circumstances'").
    See generally FOIA Update, Vol. XIV, No. 3, at 8-9 (discussing possible solutions to
    backlog problem); FOIA Update, Vol. XII, No. 2 , at 8-10 (discussing agency
    difficulties with FOIA time limits and administrative backlogs); FOIA Update, Vol. XI,
    No. 1, at 1-2 (discussing effects of budgetary constraints upon agency FOIA
    operations).

    145. Pub. L. No. 104-231, § 7(c), 110 Stat. 3048, 3051 (codified as amended at 5 U.S.C.
    § 552(a)(6)(C)(ii) (2000)); see, e.g., Fiduccia, 185 F.3d at 1042 (finding no exceptional
    circumstances when only "a slight upward creep in the caseload" caused a backlog
    that the agency claimed resulted from employee cutbacks and rejection of its
    budget requests); Appleton v. FDA, 254 F. Supp. 2d 6, 9-10 & n.4 (D.D.C. 2003)
    (declaring, despite the fact that the agency's "annual backlog reductions [were not]
    uniform," that the agency had demonstrated "reasonable progress in reducing its
    backlog" by committing additional resources and personnel and by implementing
    new electronic filing and redaction systems); Emerson v. CIA, No. 99-0274, 1999 U.S.
    Dist. LEXIS 19511, at *3 (D.D.C. Dec. 16, 1999) (finding that agency was exercising due
    diligence in reducing backlog through use of new FOIA task force, new databases,
    and new document-scanning mechanisms); Judicial Watch of Fla., Inc. v. United
    States Dep't of Justice
    , No. 97-cv-2869, slip op. at 6 (D.D.C. Aug. 25, 1998) (granting
    three-year stay of proceedings in light of agency's processing of FOIA requests on a
    "first-in/first out" basis, hiring of additional employees to handle requests, and
    reduction of backlog by twenty-five percent); Narducci v. FBI, No. 98-0130, slip op. at
    1 (D.D.C. July 17, 1998) (observing that agency is "deluged with a volume of requests
    for information vastly in excess of that anticipated by Congress," and noting agency's
    "reasonable progress in reducing its backlog" of pending requests; granting agency
    request to stay proceedings for thirty-four months); see also FOIA Update, Vol.
    XVIII, No. 3, at 3-7 (advising agencies regarding reporting of backlog-related
    information in annual FOIA reports, beginning with annual report for Fiscal Year
    1998).

    146. 5 U.S.C. § 552(a)(6)(C)(iii); see also H.R. Rep. No. 104-795, at 24-25 (1996)
    (elaborating on circumstances).

    147. Pub. L. No. 104-231, 110 Stat. 3048 (codified as amended at 5 U.S.C. § 552 (2000)).

    148. Open Am., 547 F.2d at 616 (D.C. Cir. 1976) (citing 5 U.S.C. § 552(a)(6)(C)(1976));
    see also Whitehurst v. FBI, No. 96-572, slip op. at 5 (D.D.C. Feb. 5, 1997) (finding that
    expedited process is warranted where plaintiff's allegations regarding FBI crime
    laboratory potentially impact upon other criminal matters, where more than three
    years have elapsed, and where the agency has failed to release numerous
    documents it has already received and cleared for release to others); Schweihs v.
    FBI
    , 933 F. Supp. 719, 723 (N.D. Ill. 1996) (finding "no legal precedent or statutory or
    regulatory authority for prioritizing FOIA applicants by age or health status");
    Gilmore v. FBI, No. 93-2117, slip op. at 3 (N.D. Cal. July 27, 1994) (ordering that request
    for information concerning government's key encryption and digital telephony
    initiative be expedited because material sought will "become less valuable if the FBI
    processes . . . on a first in-first out basis"); FOIA Update, Vol. IV, No. 3, at 3 ("OIP
    Guidance: When to Expedite FOIA Requests"); see also FOIA Update, Vol. XII, No. 3,
    at 5 (emphasizing need to promptly determine whether to expedite processing of
    request); cf. Fox v. United States Dep't of Justice, No. 94-4622, 1994 WL 923072, at *3
    (C.D. Cal. Dec. 16, 1994) (ruling that agency is not required to disrupt its
    administrative routine unless requester has shown strong justification for obtaining
    documents in expedited manner), appeal dismissed, No. 94-56788 (9th Cir. Feb. 21,
    1995).

    149. See, e.g., Exner v. FBI, 443 F. Supp. 1349, 1353 (S.D. Cal. 1978) (holding that
    plaintiff was entitled to expedited access after leak of information exposed her to
    harm from organized crime figures), aff'd, 612 F.2d 1202 (9th Cir. 1980); Cleaver v.
    Kelley
    , 427 F. Supp. 80, 81 (D.D.C. 1976) (determining that exceptional circumstances
    existed when plaintiff faced multiple criminal charges carrying possible death
    penalty in state court).

    150. See, e.g., Neely v. FBI, No. 7:97-0786, slip op. at 9 (W.D. Va. July 27, 1998)
    (granting expedited processing of FOIA request for plaintiff who had motion for new
    criminal trial pending and had made specific allegations related to agency
    documents); Ferguson v. FBI, 722 F. Supp. 1137, 1141-43 (S.D.N.Y. 1989) (noting that
    "due process interest must be substantial," and holding that plaintiff's request for
    information regarding his particular postconviction proceeding required expedition);
    cf. Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999)
    (rejecting argument that "requesters who sue agencies under the FOIA should have
    their requests handled before requesters who do not file lawsuits"); Ruiz v. United
    States Dep't of Justice
    , No. 00-0105, slip op. at 3 (D.D.C. Sept. 27, 2001) ("To the extent
    that [the requested] records are intended for use in an attack on plaintiff's criminal
    conviction, this situation does not constitute an exceptional need."); Raulerson v.
    Reno
    , 95-cv-2053, slip op. at 4-6 (D.D.C. Mar. 30, 1998) (denying FBI's motion to stay
    proceedings for nearly three years when plaintiff had asserted he had only two
    years to appeal criminal conviction and requested documents may aid in preparation
    of appeal), plaintiff's appeal dismissed, No. 98-5112 (D.C. Cir. May 5, 1998); Edmond v.
    United States Attorney
    , 959 F. Supp. 1, 6 (D.D.C. 1997) ("In the absence of some other
    urgency, Plaintiff cannot meet his burden by merely making a naked assertion that
    the Government is withholding Brady material in order to accelerate his FOIA
    processing.").

    151. Pub. L. No. 104-231, § 8(a), 110 Stat. 3048, 3051-52 (codified as amended at
    5 U.S.C. § 552(a)(6)(E) (2000)); see Judicial Watch, Inc. v. Rossotti, No. 01-2672, 2002 WL
    31962775, at *2 n.8 (D. Md. Dec. 16, 2002) (denying plaintiff's request for expedited
    processing because its allegations "that it was the victim of ongoing criminal
    activity" and that "it would be unable to vindicate its rights without the requested
    documents . . . . do[] not meet the statutory definition of 'compelling need'"), aff'd sub
    nom.
    Judicial Watch, Inc. v. United States, 84 Fed. Appx. 335 (4th Cir. 2004), petition
    for cert. filed
    , 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389); see also FOIA Update,
    Vol. XIX, No. 1, at 5 (discussing significance of implementing regulations); FOIA
    Update
    , Vol. XVII, No. 4, at 10 (discussing statutory provision).

    152. See, e.g., Tripp v. DOD, 193 F. Supp. 2d 229, 241 (D.D.C. 2002) ("To be sure,
    plaintiff has been the object of media attention and has at times provided
    information to the media, but there is no evidence . . . that she is 'primarily' engaged
    in such efforts.").

    153. 5 U.S.C. § 552(a)(6)(E)(v); see, e.g., 28 C.F.R. § 16.5(d)(ii) (Department of Justice
    implementing regulation); see also Al-Fayed v. CIA, 254 F.3d at 310 (holding that to
    determine if an "urgency to inform" exists, a court must consider whether the
    request concerns a "matter of current exigency to the American public," whether the
    consequences of delaying the response would "compromise a significant recognized
    interest," whether the request concerns "federal government activity," and
    "credibility of [the] requester"); Elec. Privacy Info. Ctr. v. United States Dep't of
    Justice
    , No. 03-2078, slip op. at 10 (D.D.C. Dec. 19, 2003) (concluding that plaintiff
    failed to demonstrate an "urgency to inform," because its proffer of "thirty-one
    newspaper articles [concerning the general subject of plaintiff's FOIA request] does
    not make a story a matter of 'current exigency'") (appeal pending); Tripp, 193 F. Supp.
    2d at 241 (holding that plaintiff's "job application to the Marshall Center and the
    resulting alleged Privacy Act violations by DOD are not the subject of any breaking
    news story"); FOIA Update, Vol. XIX, No. 4, at 2 (discussing Nazi War Crimes
    Disclosure Act, 5 U.S.C. § 552 note (2000), which does not directly amend the FOIA,
    but which does "impact[] directly on the FOIA [in that it provides] that any person
    who was persecuted by the Nazi government of Germany or its allies 'shall be
    deemed to have a compelling need' under 'section 552(a)(6)(E) of title 5, United States
    Code'" in making requests for access to classified Nazi war-criminal records (quoting
    5 U.S.C. § 552 note, § 4)).

    154. See, e.g., 22 C.F.R. § 171.12(c)(4) (2004) (Department of State regulation under
    which expedited processing may be granted if "[s]ubstantial humanitarian concerns
    would be harmed by the [agency's] failure to process [the requested records]
    immediately").

    155. 5 U.S.C. § 552(a)(6)(C)(i); see, e.g., 28 C.F.R. § 16.5(d)(ii)(4) (Department of Justice
    implementing regulation).

    156. See Zemansky v. EPA, 767 F.2d 569, 571-73 (9th Cir. 1985) (observing that
    reasonableness of agency search depends upon facts of each case (citing Weisberg
    v. United States Dep't of Justice
    , 705 F.2d 1344, 1351 (D.C. Cir. 1983))).

    157. Weisberg, 705 F.2d at 1351; see, e.g., Johnston v. United States Dep't of Justice,
    No. 97-2173, 1998 WL 518529, at *1 (8th Cir. Aug. 10, 1998) (concluding that agency
    demonstrated that it conducted search reasonably calculated to uncover all
    responsive documents); Campbell v. United States Dep't of Justice, 164 F.3d 20, 27
    (D.C. Cir. 1998) (noting that an agency must search "'using methods which can be
    reasonably expected to produce the information requested'" (quoting Oglesby v.
    United States Dep't of the Army
    , 920 F.2d 57, 68 (D.C. Cir. 1990))); Miller v. United
    States Dep't of State
    , 779 F.2d 1378, 1383 (8th Cir. 1985) (recognizing that search must
    be "'reasonably calculated to uncover all relevant documents'" (quoting Weisberg,
    705 F.2d at 1351)); cf. Comer v. IRS, No. 97-76329, 2000 WL 1566279, at *2 (E.D. Mich.
    Aug. 17, 2000) ("[T]he government is not required to expend the same efforts under
    FOIA that it would in response to a litigation-specific document request."). But see
    Al Najjar v. Ashcroft, No. 00-1472, slip op. at 4-5 (D.D.C. July 22, 2003) (acknowledging
    that the agency's "affidavit on its face tends to establish the adequacy of the search,"
    yet nonetheless requiring the agency to conduct a further search "in the interest of
    ensuring a complete resolution of this matter" and in light of the "limited burden"
    that the further search ostensibly would impose).

    158. See, e.g., Hayden v. Dep't of Justice, No. 03-5078, 2003 WL 22305071, at *1 (D.C.
    Cir. Oct. 6, 2003) (per curiam) (rejecting plaintiff's argument that the agency should
    have searched for records about him in the case file of another individual who was
    mentioned during his criminal trial, because "[b]ased on [plaintiff's] FOIA requests,
    the [agency] reasonably limited the scope of its search to [his own] criminal case
    file"); Coalition on Political Assassinations v. DOD, 12 Fed. Appx. 13, 14 (D.C. Cir. 2001)
    (recognizing that search conducted using terms derived from "appellant's limited
    request" obviously would not have produced records that lacked any "apparent
    connection" to such a narrowly defined request); Voinche v. FBI, No. 96-5304, 1997
    U.S. App. LEXIS 19089, at *3 (D.C. Cir. June 19, 1997) (ruling that agency was not
    obliged to "search for records beyond the scope of the request"); Maynard v. CIA, 986
    F.2d 547, 560 (1st Cir. 1993) (finding that agency's search was properly limited to
    scope of FOIA request, with no requirement that secondary references or variant
    spellings be checked); Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) ("[A]
    search need not be perfect, only adequate, and adequacy is measured by the
    reasonableness of the effort in light of the specific request."); Wilderness Soc'y v.
    United States Bureau of Land Mgmt.
    , No. 01-2210, 2003 WL 255971, at *5 (D.D.C. Jan.
    15, 2003) (concluding that the agency's search was inadequate because "responsive
    documents [possibly maintained] in the locations searched may not have been
    produced as a result of the [agency's] narrow interpretation of plaintiffs' request");
    Adams v. FBI, No. 97-2861, slip op. at 7 (D.D.C. Mar. 3, 1999) (finding that requester
    cannot object to agency's failure to search under aliases not mentioned in request);
    Rothschild v. Dep't of Energy, 6 F. Supp. 2d 38, 39 (D.D.C. 1998) (declaring that agency
    is not required to search for records that "do not mention or specifically discuss"
    subject of request); cf. Russell v. Barr, No. 92-2546, slip op. at 4 (D.D.C. Aug. 28, 1998)
    (determining that agency searched "all reasonable terms" and "exceeded the call of
    duty" when "out of an abundance of caution" it searched using subject's maiden
    name, which was not provided in request). But see Summers v. United States Dep't
    of Justice
    , 934 F. Supp. 458, 461 (D.D.C. 1996) (notwithstanding fact that plaintiff's
    request specifically sought access to former FBI Director J. Edgar Hoover's
    "commitment calendars," finding agency's search inadequate, as agency did not use
    additional search terms such as "appointment" or "diary" to locate responsive
    records); Canning v. United States Dep't of Justice, 919 F. Supp. 451, 460-61 (D.D.C.
    1994) (indicating that when agency was aware that subject of request used two
    names, it should have conducted search under both names).

    159. See 5 U.S.C. § 552(a)(3)(A) (2000) (statutory provision requiring that a FOIA
    request "reasonably describe[]" the records sought); see also, e.g., Domingues v. FBI,
    No. 98-74612, slip op. at 11 (E.D. Mich. July 24, 1999) (magistrate's recommendation)
    (determining that "a request directed to an agency's headquarters which does not
    request a search of its field offices, or which requests a blanket search of all field
    offices without specifying which offices should be searched, does not 'reasonably
    describe' any records which may be in those field offices, and an agency's search of
    just the headquarters records complies with the FOIA"), adopted (E.D. Mich. July 29,
    1999), aff'd, 229 F.3d 1151 (6th Cir. 2000) (unpublished table decision); Murphy v. IRS,
    79 F. Supp. 2d 1180, 1185-86 (D. Haw. 1999) (holding that the agency "conducted a
    reasonable search in light of the fact that Plaintiff gave no indication as to what
    types of files could possibly contain documents responsive to this request or where
    they might be located"); Bricker v. FBI, No. 97-2742, slip op. at 7 (D.D.C. Mar. 26, 1999)
    (approving agency search of "files where responsive information would likely be
    located," given limited information that requester provided about subject of
    request); Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3, 13 (D.D.C. 1998) (excusing
    agency's inability to locate materials "as written" in request because agency records
    systems "are not indexed in a manner such that responsive records could have been
    located"); see also Citizens Against UFO Secrecy v. DOD, 21 Fed. Appx. 774, 776 (9th
    Cir. 2001) (rejecting plaintiff's contention that search using additional terms not found
    within request was inadequate because agency's use of "extra terms [made] it more
    likely that responsive documents [would] be located" (emphasis in original)); cf.
    Truitt v. Dep't of State, 897 F.2d 540, 544-46 (D.C. Cir. 1990) (stating that when request
    was "reasonably clear as to the materials desired," agency failed to conduct
    adequate search as it did not include file likely to contain responsive records);
    Davidson v. EPA, 121 F. Supp. 2d 38, 39 (D.D.C. 2000) ("Because plaintiff is searching
    for a specific [record], defendant must, at minimum, explain its procedure for issuing
    and retaining [such records] and by what reasonable methods it used to locate the
    one requested by plaintiff."); cf. Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C.
    Cir. 1996) (finding search limited to agency headquarters files reasonable because
    plaintiff directed his request there).

    160. Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999)
    (finding that because requester provided agency with name of agency employee
    who possessed requested records during requester's criminal trial, "[w]hen all other
    sources fail to provide leads to the missing records, agency personnel should be
    contacted if there is a close nexus, as here, between the person and the particular
    record"); Hardy v. DOD, No. 99-523, 2001 WL 34354945, at *5 (D. Ariz. Aug. 27, 2001)
    (requiring the agency "to locate the presumably few witnesses who were
    responsible for operating the closed circuit television system, the robots, and any
    other video sources" that might have created the requested tapes); Comer v. IRS,
    No. 97-76329, 1999 U.S. Dist. LEXIS 16268, at *3 (E.D. Mich. Sept. 30, 1999) (rejecting
    agency's assertion that it conducted a reasonable search when plaintiff "listed a
    small number of specific persons who might have knowledge of [the requested
    documents] and specific places where they might be found" and the agency did not
    indicate that it searched there); see also Gilliland v. Bureau of Prisons, No. 03-5251,
    2004 WL 885222, at *1 (D.C. Cir. Apr. 23, 2004) (rejecting the requester's claim that the
    agency "should have contacted the federal officials connected with [the] allegedly
    missing documents," because his FOIA requests "did not specify these officials or
    otherwise indicate that they might have responsive records"); Rugerio v. United
    States Dep't of Justice
    , 257 F.3d 534, 547-48 (6th Cir. 2001) (rejecting plaintiff's
    contention that the "agent [who] testified against him at trial" must have records
    about him because agency established that employee who testified had no such
    records), cert. denied, 534 U.S. 1134 (2002); Vigneau v. O'Brien, No. 99-37ML, slip op. at
    5 (D.R.I. Aug. 3, 1999) (magistrate's recommendation) (finding search adequate when
    agency employee who plaintiff alleged wrote requested records provided affidavit
    stating that no such records ever existed), adopted (D.R.I. Sept. 9, 1999); cf. Doolittle
    v. United States Dep't of Justice
    , 142 F. Supp. 2d 281, 285 (N.D.N.Y. 2001) (concluding
    that so long as description of records sought is otherwise reasonable, agency
    cannot refuse to search for records simply because requester did not also identify
    them by the date on which they were created). But see Blanton v. United States
    Dep't of Justice
    , 182 F. Supp. 2d 81, 85 (D.D.C. 2002) ("[T]he FOIA does not impose an
    obligation on defendant to contact former employees to determine whether they
    know of the whereabouts of records that might be responsive to a FOIA request."),
    aff'd on other grounds, No. 02-5115, 2003 U.S. App. LEXIS 8429 (D.C. Cir. May 1, 2003);
    cf. Chilingirian v. United States Attorney Executive Office, 71 Fed. Appx. 571, 572 (6th
    Cir. 2003) ("The record shows that defendants went beyond the requirements of a
    reasonable search by contacting the attorneys who might know of the existence of
    the [requested] records, even though they were no longer employed by
    defendants.").

    161. See Juda v. United States Customs Serv., No. 00-5399, 2000 U.S. App. LEXIS
    17985, at **2-3 (D.C. Cir. June 19, 2000) (concluding that the agency improperly limited
    its search to a single database when "the agency itself has identified at least one
    other record system . . . that is likely to produce the information [plaintiff] requests");
    Oglesby 920 F.2d at 68 (holding agency may not limit search to one record system if
    others are likely to contain responsive records); Blanton v. United States Dep't of
    Justice
    , 63 F. Supp. 2d 35, 41 (D.D.C. 1999) (noting that even though agency did not
    search individual informant files for references to requester, any responsive
    information in such files would have been identified by agency's "cross-reference"
    search using requester's name); Hall v. United States Dep't of Justice, 63 F. Supp. 2d
    14, 17-18 (D.D.C. 1999) (finding that agency need not search for records concerning
    subject's husband even though such records may have also included references to
    subject); Iacoe v. IRS, No. 98-C-0466, 1999 U.S. Dist. LEXIS 12809, at *11 (E.D. Wis. July
    23, 1999) (recognizing that the agency "diligently searched for the records requested
    in those places where [the agency] expected they could be located"); Nation
    Magazine v. United States Customs Serv.
    , No. 94-00808, slip op. at 8, 13-14 (D.D.C.
    Feb. 14, 1997) (stating that reasonable search did not require agency to search
    individual's personnel file in effort to locate substantive document drafted by him);
    cf. Bennett v. DEA, 55 F. Supp. 2d 36, 39-40 (D.D.C. 1999) (holding search inadequate
    when agency failed to search investigatory files for cases in which subject of request
    acted as informant, even though agency did not track informant activity by case
    name, number, or judicial district), appeal dismissed voluntarily, No. 99-5300 (D.C. Cir.
    Dec. 23, 1999).

    162. Campbell, 164 F.3d at 27 (concluding that a search limited to the agency's
    central records system was unreasonable because during the search the agency
    "discovered information suggesting the existence of documents that it could not
    locate without expanding the scope of its search"); Ctr. for Nat'l Security Studies v.
    United States Dep't of Justice
    , 215 F. Supp. 2d 94, 110 (D.D.C. 2002) (holding that the
    discovery of a document that "clearly indicates the existence of [other] relevant
    documents" creates an "obligation" on the agency to conduct a further search for
    those additional documents), aff'd in part, rev'd in part & remanded on other
    grounds
    , 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 1041 (2004); Tarullo v.
    DOD
    , 170 F. Supp. 2d 271, 275 (D. Conn. 2001) (declaring the agency's search
    inadequate because "[w]hile hypothetical assertions as to the existence of
    unproduced responsive documents are insufficient to create a dispute of material
    fact as to the reasonableness of the search, plaintiff here has [himself provided a
    copy of an agency record] which appears to be responsive to the request"); Loomis
    v. Dep't of Energy
    , No. 96-149, 1999 WL 33541935, at *5 (N.D.N.Y. Mar. 9, 1999)
    (determining search inadequate in light of agency's admission that additional
    responsive records may exist in location not searched), aff'd, 199 F.3d 1322 (2d Cir.
    1999) (unpublished table decision); Kronberg v. United States Dep't of Justice, 875 F.
    Supp. 861, 870-71 (D.D.C. 1995) (holding that search was inadequate when agency did
    not find records required to be maintained and plaintiff produced documents
    obtained by other FOIA requesters demonstrating that agency possessed files
    which may contain records sought); cf. Grace v. Dep't of the Navy, No. 99-4306, 2001
    WL 940908, at *5 (N.D. Cal. Aug. 13, 2001) (concluding that although the agency
    apparently had misplaced the records requested under FOIA, "[d]efendants have
    discharged their burden [by] making a good faith attempt to locate the missing
    files"), aff'd, 43 Fed. Appx. 76 (9th Cir. 2002).

    163. See Ethyl Corp. v. EPA, 25 F.3d 1241, 1247-48 (4th Cir. 1994) (citing agency's
    failure to follow Department of Justice guidance concerning "personal record"
    considerations in FOIA Update, Vol. V, No. 4, at 3-4); see also Kempker-Cloyd v.
    United States Dep't of Justice
    , No. 5:97-253, 1999 U.S. Dist. LEXIS 4813, at **12-13
    (W.D. Mich. Mar. 12, 1999) (determining that agency acted in bad faith because it
    failed to review responsive records that agency official asserted were "personal"); cf.
    Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (rejecting agency
    affidavit concerning "personal" records as insufficient, and remanding case for
    further development through affidavits by records' authors explaining their intended
    use of records in question).

    164. See Duenas Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir.
    2003) ("[I]t is long settled that the failure of an agency to turn up one specific
    document in its search does not alone render a search inadequate . . . . After all,
    particular documents may have been accidentally lost or destroyed, or a reasonable
    and thorough search may have missed them."); Grand Cent. P'ship, 166 F.3d at 489
    (declaring that the fact that "some documents were not discovered until a second,
    more exhaustive, search was conducted does not warrant overturning the district
    court's ruling" that the agency conducted a reasonable search); Schwarz v. FBI, No.
    98-4036, 1998 WL 667643, at *2 (10th Cir. Nov. 5, 1998) (concluding that "the fact that
    the [agency's] search failed to turn up three documents is not sufficient to contradict
    the reasonableness of the FBI's search without evidence of bad faith"); Campbell, 164
    F.3d at 28 n.6 (holding that "the inadvertent omission of three documents does not
    render a search inadequate when the search produced hundreds of pages that had
    been buried in archives for decades"); Citizens Comm'n on Human Rights v. FDA, 45
    F.3d 1325, 1328 (9th Cir. 1995) (determining that search was adequate when agency
    spent 140 hours reviewing relevant files, notwithstanding fact that agency was
    unable to locate 137 of 1000 volumes of records); Campaign for Responsible
    Transplantation v. FDA
    , 219 F. Supp. 2d 106, 111 (D.D.C. 2002) (upholding the
    adequacy of the agency's search by declaring that the agency's belated production
    of fifty-five additional documents that it located using information contained in
    plaintiff's summary judgment motion "is a proverbial 'drop in the bucket'" relative to
    the 27,000 documents that the agency already had provided to plaintiff); cf. W. Ctr.
    for Journalism v. IRS
    , 116 F. Supp. 2d 1, 10 (D.D.C. 2000) (concluding that agency
    conducted reasonable search and acted in good faith by locating and releasing
    additional responsive records mistakenly omitted from its initial response, because
    "it is unreasonable to expect even the most exhaustive search to uncover every
    responsive file; what is expected of a law-abiding agency is that the agency admit
    and correct error when error is revealed"), aff'd, 22 Fed. Appx. 14 (D.C. Cir. 2001). But
    see
    Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1185 (D.C. Cir. 1996)
    (acknowledging plaintiff's assertion that search was inadequate because of previous
    FOIA requester's claim that agency provided her with "well over a thousand
    documents," and holding that claim raises enough doubt to preclude summary
    judgment in absence of agency affidavit further describing its search); Accuracy in
    Media v. FBI
    , No. 97-2107, slip op. at 12 (D.D.C. Mar. 31, 1999) (directing agency to
    conduct further search for two unaccounted-for documents referenced in documents
    located by agency's otherwise reasonable search).

    165. See, e.g., Church of Scientology v. IRS, 792 F.2d 146, 150-51 (D.C. Cir. 1986); Miller
    v. United States Dep't of State
    , 779 F.2d 1378, 1385 (8th Cir. 1986).

    166. See Burlington N. R.R. v. EPA, No. 91-1636, slip op. at 4 (D.D.C. June 15, 1992);
    Clarke v. United States Dep't of the Treasury, No. 84-1873, 1986 WL 1234, at *1 (E.D.
    Pa. Jan. 24, 1986); see also FOIA Update, Vol. XIII, No. 2, at 3-7 (congressional
    testimony discussing "electronic record" FOIA issues).

    167. See Yeager v. DEA, 678 F.2d 315, 324 (D.C. Cir. 1982); see also "Department of
    Justice Report on 'Electronic Record' FOIA Issues" [hereinafter Department of Justice
    "Electronic Record" Report], reprinted in abridged form in FOIA Update, Vol. XI, No.
    2, at 8-21 (discussing use of "computer programming" for FOIA search and
    processing purposes). But cf. Int'l Diatomite Producers Ass'n v. United States Soc.
    Sec. Admin.
    , No. 92-1634, 1993 WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (ordering
    agency to respond to request for specific information, portions of which were
    maintained in four separate computerized listings, by either compiling new list or
    redacting existing lists), appeal dismissed, No. 93-16723 (9th Cir. Nov. 1, 1993).

    168. See Thompson Publ'g Group, Inc. v. Health Care Fin. Admin., No. 92-2431, 1994
    WL 116141, at *1 (D.D.C. Mar. 15, 1994) (finding that relatively simple computer
    searches and computer queries are reasonable for data that do not exist "in a single
    computer 'document' or 'file'"); Belvy v. United States Dep't of Justice, No. 94-923, slip
    op. at 7-9 (S.D. Fla. Dec. 15, 1994) (magistrate's recommendation) (rejecting agency's
    claim that it did not have to undertake computer search because it failed "to
    establish that the creation of such a [computer] program would be unreasonable"),
    adopted (S.D. Fla. Jan. 27, 1995); see also Department of Justice "Electronic Record"
    Report, reprinted in abridged form in FOIA Update, Vol. XI, No. 2, at 8-17 (discussing
    issue of computer programming for search purposes).

    169. Pub. L. No. 104-231, § 5, 110 Stat. 3048, 3050 (codified as amended at 5 U.S.C.
    § 552(a)(3)(C) (2000)); see Albino v. USPS, No. 01-C-563-C, 2002 WL 32345674, at *7
    (W.D. Wis. May 20, 2002) (declaring a search for responsive e-mail messages
    spanning five years to be inadequate because the agency "failed to enlist the help of
    information technology personnel . . . . [who] would have access to e-mail archives"
    possibly containing requested records that "individual employees [would not have
    been] expected to archive" in their own "e-mail inboxes"); Schladetsch v. HUD, No. 99-0175, 2000 WL 33372125, at *5 (D.D.C. Apr. 4, 2000) (rejecting as insufficient agency
    affidavit that failed to show how creation and use of computer program to perform
    electronic database search for responsive information would require "unreasonable
    efforts" or would "substantially interfere" with agency's computer system), appeal
    dismissed voluntarily
    , No. 00-5220 (D.C. Cir. Oct. 12, 2000); see also FOIA Update, Vol.
    XVII, No. 4, at 2 (discussing current electronic search requirements); cf. Hoffman v.
    United States Dep't of Justice
    , No. 98-1733-A, slip op. at 10-11 (W.D. Okla. Dec. 15,
    1999) (finding that an agency is not required to conduct a physical search of records
    "if other computer-assisted search procedures available to [the] agency are more
    efficient and serve the same practical purpose of reviewing hard copies of
    documents"). But cf. Pub. Citizen, Inc. v. Dep't of Educ., 292 F. Supp. 2d 1, 8 (D.D.C.
    2003) ("While a computerized search may well be far more efficient and less costly
    than a manual search . . . it is apparent [under the facts of this particular case] that
    only the more cumbersome procedure is likely to turn up the requested
    information.").

    170. Pub. L. No. 104-231, § 5, 110 Stat. 3048, 3050 (codified as amended at 5 U.S.C.
    § 552(a)(3)(D) (2000)); see Dayton Newspapers, Inc. v. Dep't of the Air Force, 35 F.
    Supp. 2d 1033, 1035 (S.D. Ohio 1998) (preliminary ruling without entry of judgment)
    (concluding that an estimated fifty-one hours required to "assemble" requested
    information from an agency database "is a small price to pay" in light of the FOIA's
    presumption favoring disclosure); see also Schladetsch, No. 99-0175, 2000 WL
    33372125, at *5 (D.D.C. Apr. 4, 2000) ("The programming necessary to conduct the
    [electronic database] search is a search tool and not the creation of a new record.");
    FOIA Update, Vol. XVIII, No. 1, at 6 (advising that search provisions of Electronic
    FOIA amendments do not involve record "creation" in Congress's eyes). But cf. Burns
    v. United States Dep't of Justice
    , No. 99-3173, slip op. at 2 (D.D.C. Feb. 5, 2001)
    (concluding that an agency need not search through reel-to-reel audiotapes
    containing requested recorded conversations, because "the equipment on which
    these reels could be played has broken and [has been] replaced with other,
    incompatible equipment," and the agency is "not required to obtain new equipment
    to process [p]laintiff's FOIA request"); Lepelletier v. FDIC, No. 96-1363, transcript at 8
    (D.D.C. Mar. 3, 2000) (refusing to require agency to undertake "an enormous effort
    that may not even work to try to convert [obsolete] computer files that nobody
    knows how to read now to provide information that [plaintiff] would like to have"),
    appeal dismissed as moot, 23 Fed. Appx. 4 (D.C. Cir. 2001).

    171. 5 U.S.C. § 552(b) (2000) (sentence immediately following exemptions).

    172. See, e.g., Patterson v. IRS, 56 F.3d 832, 840 (7th Cir. 1995) (finding that an agency
    is certainly not entitled to withhold an entire document if only "portions" contain
    exempt information); Wightman v. ATF, 755 F.2d 979, 983 (1st Cir. 1985) (holding that
    detailed "process of segregation" is not unreasonable for request involving thirty-six
    document pages); Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir. 1970) (stating
    that the "statutory scheme does not permit a bare claim of confidentiality to
    immunize agency [records] from scrutiny" in their entireties); see also FOIA Update,
    Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation"
    (citing, e.g., Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir 1992))).

    173. See, e.g., Trans-Pac. Policing Agreement v. United States Customs Serv., 177
    F.3d 1022, 1028 (D.C. Cir. 1999) (indicating that district court had affirmative duty to
    consider reasonable segregability even though requester never sought segregability
    finding administratively or before district court); Isley v. Executive Office for United
    States Attorneys
    , No. 98-5098, 1999 WL 1021934, at *7 (D.C. Cir. Oct. 21, 1999)
    (remanding case to district court for segregability finding even though neither party
    raised segregability issue in district court); see also Kimberlin v. Dep't of Justice, 139
    F.3d 944, 951 (D.C. Cir. 1998) (affirming application of exemption but nevertheless
    remanding case to district court for finding on segregability); Krikorian v. Dep't of
    State
    , 984 F.2d 461, 467 (D.C. Cir. 1993) (affirming general application of exemption
    but nevertheless remanding to district court for finding as to segregability);
    Schreibman v. United States Dep't of Commerce, 785 F. Supp. 164, 166 (D.D.C. 1991)
    (holding that segregation required for computer vulnerability assessment withheld
    under Exemption 2). But see Nicolaus v. FBI, 24 Fed. Appx. 807, 808 (9th Cir. 2001)
    (concluding that plaintiff's "argument that the district court failed to make adequate
    factual findings concerning the segregability of documents is waived for failure to
    present it in his opening brief"); cf. Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994)
    (noting that the district court's failure to make a segregability determination did not
    necessitate remand because it "did not simply rely on [agency] affidavits describing
    the documents, but conducted an in camera review").

    174. See Trans-Pac., 177 F.3d at 1027-28 (going so far as to remand case to district
    court for determination of releasability of "four or six digits" of ten-digit numbers
    withheld in full). But see Aftergood v. CIA, No. 02-1146, slip op. at 4 n.1 (D.D.C. Feb. 6,
    2004) ("Because the plaintiff seeks the disclosure of a single [budget] number, the
    court concludes that it would be impossible to segregate information from this
    request.") (motion for reconsideration pending); cf. Students Against Genocide v.
    Dep't of State
    , 257 F.3d 828, 837 (D.C. Cir. 2001) (declaring that an agency is not
    obligated to segregate and release images from classified photographs by
    "produc[ing] new photographs at a different resolution in order to mask the
    [classified] capabilities of the reconnaissance systems that took them"); Ho v. Dir.,
    Executive Office for United States Attorneys
    , No. 00-1759, slip op. at 2 (D.D.C. Sept.
    17, 2001) (concluding that it was not reasonable to segregate and release to first-party requester any portion of privacy-protected records that did not mention him);
    Emerson v. CIA, No. 99-0274, slip op. at 13-14 (D.D.C. May 8, 2000) ("Plaintiff's request
    [for records about three individuals] is not one for which redacted responses would
    adequately protect th[ose] individuals' privacy."); Schrecker v. United States Dep't of
    Justice
    , 74 F. Supp. 2d 26, 32 (D.D.C. 1999) (finding that confidential informant "source
    codes and symbols are assigned in such a specific manner that no portion of the
    code is reasonably segregable"), rev'd & remanded in part on other grounds, 254
    F.3d 162 (D.C. Cir. 2001); Rockwell Int'l Corp. v. United States Dep't of Justice, No. 98-761, slip op. at 15-16 (D.D.C. Mar. 24, 1999) (rejecting plaintiff's unsupported assertion
    that documents withheld by defendant agency in full "must" contain segregable
    information, because "the documents at issue here are not of the type that are likely
    to contain" such information), aff'd, 235 F.3d 598 (D.C. Cir. 2001).

    175. See Davin v. United States Dep't of Justice, 60 F.3d 1043, 1052 (3d Cir. 1995) ("The
    statements regarding segregability are wholly conclusory, providing no information
    that would enable [plaintiff] to evaluate the FBI's decisions to withhold."); Schiller v.
    NLRB
    , 964 F.2d 1205, 1209-10 (D.C. Cir. 1992) (noting that agency's affidavit referred to
    withholding of "documents, not information," and remanding for specific finding as to
    segregability); Neely v. FBI, No. 7:97-0786, Order at 1 (W.D. Va. Jan. 25, 1999) (finding
    that agency applied exemptions "in a wholesale fashion" and without adequate
    explanation), vacated & remanded on other grounds, 208 F.3d 461 (4th Cir. 2000);
    Carlton v. Dep't of the Interior, No. 97-2105, slip op. at 12 (D.D.C. Sept. 3, 1998)
    (requiring defendant agencies to provide further explanation of exemptions applied
    because agencies made "only a general statement that the withheld documents do
    not contain segregable portions"), appeal dismissed voluntarily, No. 98-5518 (D.C. Cir.
    Nov. 18, 1998); Church of Scientology v. IRS, 816 F. Supp. 1138, 1162 (W.D. Tex. 1993)
    ("The burden is on the agency to prove the document cannot be segregated for
    partial release."); cf. Anderson v. CIA, 63 F. Supp. 2d 28, 30 (D.D.C. 1999) (declining,
    "especially in the highly classified context of this case," to "infer from the absence of
    the word 'segregable' [in the agency's affidavit] that segregability was possible").

    176. Neufeld v. IRS, 646 F.2d 661, 663 (D.C. Cir. 1981); see, e.g., Local 3, Int'l Bhd. of
    Elec. Workers v. NLRB
    , 845 F.2d 1177, 1179 (2d Cir. 1988); Mead Data Cent., Inc. v.
    United States Dep't of the Air Force
    , 566 F.2d 242, 261 (D.C. Cir. 1977); see also Yeager
    v. DEA
    , 678 F.2d 315, 322 n.16 (D.C. Cir. 1982) (concluding that it was appropriate to
    consider "intelligibility" of document and burden imposed by editing and
    segregation of nonexempt matters); Warren v. Soc. Sec. Admin., No. 98-0116, 2000
    WL 1209383, at *5 (W.D.N.Y. Aug. 22, 2000) (refusing to order segregation of standard
    forms containing personal information because "if the [agency] were to redact the
    requested documents in a manner that would remove all exempted . . . information,
    the resulting materials would be little more than templates"), aff'd in pertinent part,
    10 Fed. Appx. 20 (2d Cir. 2001); Eagle Horse v. FBI, No. 92-2357, slip op. at 5-6 (D.D.C.
    July 28, 1995) (finding disclosure of polygraph examination -- after protecting
    sensitive structure, pattern, and sequence of questions -- was not feasible without
    reducing product to "unintelligible gibberish").

    177. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979); see, e.g., FlightSafety
    Servs. Corp. v. Dep't of Labor
    , 326 F.3d 607, 613 (5th Cir. 2003) (per curiam) (reasoning
    that further segregation was not reasonable because "any disclosable information is
    so inextricably intertwined with the exempt, confidential information that producing
    it would require substantial agency resources and produce a document of little
    informational value"); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir.
    1998) (finding that because agency would require eight work-years to identify all
    nonexempt documents in millions of pages of files, the very small percentage of
    documents that could be released were not "reasonably segregable"); Doherty v.
    United States Dep't of Justice
    , 775 F.2d 49, 53 (2d Cir. 1985) ("The fact that there may
    be some nonexempt matter in documents which are predominantly exempt does not
    require the district court to undertake the burdensome task of analyzing
    approximately 300 pages of documents, line-by-line."); Neufeld, 646 F.2d at 666
    (holding that segregation is not required when it "would impose significant costs on
    the agency and produce an edited document of little informational value");
    Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d 1, 9 (D.D.C. Oct. 24,
    2001) (declining to order the agency to segregate nonexempt information from
    documents withheld in full, because "[t]he necessary redaction would require the
    agency to commit significant time and resources to a task that would yield a product
    with little, if any, informational value"), aff'd, 334 F.3d 55 (D.C. Cir. 2003); Journal of
    Commerce v. United States Dep't of the Treasury
    , No. 86-1075, 1988 U.S. Dist. LEXIS
    17610, at *21 (D.D.C. Mar. 30, 1988) (finding that segregation was "neither useful,
    feasible nor desirable" when it would compel the agency "to pour through [literally
    millions of pages of documents] to segregate nonexempt material [and] would
    impose an immense administrative burden . . . that would in the end produce little in
    the way of useful nonexempt material"). But see Rugerio v. United States Dep't of
    Justice
    , 234 F. Supp. 2d 697, 707-09 (E.D. Mich. 2002) (concluding that "[i]n this case,
    the burden of segregation does not outweigh the significant value of the information
    to Plaintiff because it does not appear that the Government would have to expend a
    large amount of additional time and resources to provide Plaintiff with the
    segregable information" from 364 pages) (appeal pending).

    178. Attorney General's Memorandum for Heads of All Departments and Agencies
    Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post
    (posted 10/15/01).

    179. Accord 5 U.S.C. § 552(a)(6)(B)(iii) (2000).

    180. See, e.g., 28 C.F.R. § 16.4(c)(1) (2004) (Department of Justice regulation
    concerning consultations).

    181. See, e.g., 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) (directing all federal departments
    and agencies, in accordance with accompanying memorandum from the Information
    Security Oversight Office and the Office of Information and Privacy, to "consult with
    . . . the Department of Energy's Office of Security if the [requested] information
    concerns nuclear or radiological weapons").

    182. See FOIA Update, Vol. XII, No. 3, at 3-4 ("OIP Guidance: Referral and
    Consultation Procedures"); see also FOIA Update, Vol. XIV, No. 3, at 6-8 (Department
    of Justice memorandum setting forth White House consultation process in which
    agency retains responsibility for responding to requester regarding White House-originated records or White House-originated information located within scope of
    FOIA request that agency has received).

    183. See FOIA Update, Vol. XII, No. 3, at 3-4; FOIA Update, Vol. IV, No. 3, at 5; see
    also, e.g.
    , Rzeslawski v. United States Dep't of Justice, No. 97-1156, slip op. at 6
    (D.D.C. July 23, 1998) (observing that an agency's "referral procedure is generally
    faster than attempting to make an independent determination regarding disclosure"
    and that "by placing the request in the hands of the originating agency, discretionary
    disclosure is more likely"), aff'd, No. 00-5029, 2000 WL 621299 (D.C. Cir. Apr. 4, 2000);
    Stone v. Def. Investigative Serv., No. 91-2013, 1992 WL 52560, at *1 (D.D.C. Feb. 24,
    1992) (recognizing that agencies may refer responsive records to originating
    agencies in responding to FOIA requests), aff'd, 978 F.2d 744 (D.C. Cir. 1992)
    (unpublished table decision); 28 C.F.R. § 16.4(c)(2) (Department of Justice regulation
    containing referral and consultation procedures). But cf. Maydak v. United States
    Dep't of Justice
    , 254 F. Supp. 2d 23, 40 (D.D.C. 2003) (noting that the agency's referral
    of records requested under the FOIA to an entity that is not subject to the FOIA -- a
    United States Probation Office -- "raises a genuine legal issue about the propriety" of
    the agency's action).

    184. See FOIA Update, Vol. XII, No. 2, at 6. But see id. (warning agencies not to
    notify requesters of identities of other agencies to which record referrals are made,
    in any exceptional case in which so doing would reveal sensitive abstract fact about
    record's existence).

    185. See, e.g., 28 C.F.R. § 16.4(h) (Department of Justice regulation authorizing its
    components to make agreements with other components or agencies to eliminate
    need for consultations or referrals for particular types of records).

    186. See, e.g., Peralta v. United States Attorney's Office, 136 F.3d 169, 175 (D.C. Cir.
    1998) (remanding case for further consideration of whether referral of FBI documents
    to FBI resulted in "improper withholding" of documents), on remand, 69 F. Supp. 2d
    21, 29 (D.D.C. 1999) (holding that Executive Office for United States Attorneys' referral
    of documents to FBI was not improper); Williams v. FBI, No. 92-5176, 1993 WL 157679,
    at *1 (D.C. Cir. May 7, 1993) (illustrating that in litigation referring agency is
    nevertheless required to justify withholding of record that was referred to another
    agency); Hronek v. DEA, 16 F. Supp. 2d 1260, 1272 (D. Or. 1998) (noting that with
    respect to records referred to nonparty agencies "the ultimate responsibility for a full
    response lies with the [referring] agencies"), aff'd, 7 Fed. Appx. 591 (9th Cir. 2001);
    see also FOIA Update, Vol. XV, No. 3, at 6 (advising on proper litigation practice for
    defending referrals of records to other agencies); cf. Goldstein v. Office of Indep.
    Counsel
    , No. 87-2028, 1999 WL 570862, at *14 (D.D.C. July 29, 1999) (magistrate's
    recommendation) (requiring referring agency to ask agency receiving referral to
    provide court with its position concerning releasability of records referred); Grove v.
    Dep't of Justice
    , 802 F. Supp. 506, 518 (D.D.C. 1992) (declaring that agency may not
    use "'consultation' as its reason for a deletion, without asserting a valid exemption").

    187. See FOIA Update, Vol. XV, No. 3, at 6 (observing that a requester should
    "receive her rightful place in line as of the date upon which her request was
    received," and advising likewise regarding "consultation" practices (citing Freeman
    v. Dep't of Justice
    , 822 F. Supp. 1064, 1067 (S.D.N.Y. 1993))); cf. Snyder v. CIA, 230 F.
    Supp. 2d 17, 26 (D.D.C. 2002) (concluding that the delayed response to plaintiff's
    request, which was caused by the agency's referral of records to another agency,
    did not constitute an improper withholding of the referred records); Boyd v. United
    States Marshals Serv.
    , No. 99-2712, slip op. at 5-6 (D.D.C. Mar. 30, 2001) (approving
    agency's referral of records to originating agencies, because that referral "was done
    in accordance with agency regulation . . . and does not appear to have impaired
    plaintiff's ability to gain access to these records"), appeal dismissed for lack of juris.,
    No. 01-5306, 2001 WL 1488181 (D.C. Cir. Oct. 10, 2001); Williams v. United States, 932 F.
    Supp. 354, 357 & n.7 (D.D.C. 1996) (urging the agency to set up an "express lane" for
    referred records so as to not "tie up other agencies by taking an inordinate period of
    time to review referred records [and] unnecessarily inhibit the smooth functioning of
    the [other] agencies' well oiled FOIA processing systems").

    188. See Hardy v. DOD, No. 99-523, 2001 WL 34354945, at *10 (D. Ariz. Aug. 27, 2001)
    (holding that an agency was not obligated to refer to OPM a FOIA request for
    personnel records that the agency did not maintain itself).

    189. Accord Presidential Memorandum for Heads of Departments and Agencies
    Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4,
    1993) [hereinafter Presidential FOIA Memorandum], reprinted in FOIA Update, Vol.
    XIV, No. 3, at 3 ("[A]gencies should handle requests for information in a customer-friendly manner."); cf. Conteh v. FBI, No. 01-1330, slip op. at 4-5 (D.D.C. Apr. 1, 2002)
    (concluding that the response of an agency whose regulations require a requester to
    send separate requests to each individual field office that is believed to maintain
    responsive records was inadequate because the agency could have informed the
    requester of the existence and location of records maintained by two of its field
    offices "so that [the] plaintiff could direct his request to [those] offices pursuant to
    the [agency's] regulations"). But see also FOIA Update, Vol. XII, No. 2, at 6 (advising
    that in undertaking such requester communications agencies must take care not to
    compromise special secrecy interests and concerns held by law enforcement and
    intelligence agencies).

    190. 5 U.S.C. § 552(a)(3)(A) (2000).

    191. Oglesby v. United States Dep't of the Army, 920 F.2d 57, 70 (D.C. Cir. 1990); cf.
    Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292, 296 (D.D.C.) (holding
    that FBI's offer to make "visicorder charts" available to requester for review at FBI
    Headquarters met FOIA requirements due to exceptional fact that charts could be
    damaged if photocopied), summary affirmance granted, 124 F.3d 1309 (D.C. Cir. 1997)
    (unpublished table decision).

    192. See FOIA Update, Vol. XII, No. 2, at 5 ("OIP Guidance: Procedural Rules Under
    the D.C. Circuit's Oglesby Decision") (recognizing that "the effective administration of
    the FOIA relies quite heavily upon agency transmittal of disclosable record copies to
    FOIA requesters by mail"); see also Comer v. IRS, No. 97-76329, 1999 U.S. Dist. LEXIS
    16268, at *3 (E.D. Mich. Sept. 30, 1999) (observing that although "FOIA does not
    require agencies to provide members of the public with information they can access
    themselves . . . [t]he Court is perplexed . . . why [defendant] refuses to simply copy
    this information and send it to plaintiff so long as he is willing to pay for the copies");
    accord Presidential FOIA Memorandum, reprinted in FOIA Update, Vol. XIV, No. 3,
    at 3 ("[A]gencies should handle requests for information . . . [with no] unnecessary
    bureaucratic hurdles."). But cf. Defenders of Wildlife v. United States Dep't of the
    Interior
    , No. 03-1192, 2004 WL 842374, at *4 (D.D.C. Apr. 13, 2004) (opining that if an
    agency maintains duplicate copies of a document requested under the FOIA, then
    the agency need only provide one such copy in its response to the request, because
    "it would be illogical and wasteful to require an agency to produce multiple copies of
    the exact same document").

    193. Strout v. United States Parole Comm'n, 842 F. Supp. 948, 951 (E.D. Mich.), aff'd,
    40 F.3d 136 (6th Cir. 1994); see also Taylor v. United States Dep't of the Treasury, No.
    A-96-CA-933, 1996 U.S. Dist. LEXIS 19909, at *5 (W.D. Tex. Dec. 17, 1996); Trueblood v.
    United States Dep't of the Treasury
    , 943 F. Supp. 64, 68 (D.D.C. 1996) (recognizing that
    agency may require payment before sending processed records); Putnam v. United
    States Dep't of Justice
    , 880 F. Supp. 40, 42 (D.D.C. 1995) (allowing agency to require
    payment of current and outstanding fees before releasing records); Crooker v. ATF,
    882 F. Supp. 1158, 1162 (D. Mass. 1995) (finding no obligation to provide records until
    current and past-due fees are paid); cf. FOIA Post, "NTIS: An Available Means of
    Record Disclosure" (posted 8/30/02; supplemented 9/23/02) (advising that records
    that an agency chooses to distribute through the National Technical Information
    Service will be subject to that entity's statutorily based fee schedule, which
    "supersedes" the FOIA's fee provisions pursuant to 5 U.S.C. § 552(a)(4)(A)(vi)).

    194. Julian v. United States Dep't of Justice, 806 F.2d 1411, 1419 n.7 (9th Cir. 1986),
    aff'd, 486 U.S. 1 (1988); see NARA v. Favish, 124 S. Ct. 1570, 1580 (2004) (recognizing
    that information disclosed under FOIA "belongs to citizens to do with as they
    choose"); Berry v. Dep't of Justice, 733 F.2d 1343, 1355 n.19 (9th Cir. 1984); see also
    Seawell, Dalton, Hughes & Timms v. Exp.-Imp. Bank, No. 84-241-N, slip op. at 2 (E.D.
    Va. July 27, 1984) (stating that there is no "middle ground between disclosure and
    nondisclosure"); cf. FOIA Post, "Critical Infrastructure Information Regulations Issued
    by DHS" (posted 2/27/04) (emphasizing the critical distinction between "protecting
    information from public disclosure" and "the safeguarding of federal information").

    195. Favish, 124 S. Ct. at 1581; see Maricopa Audobon Soc'y v. United States Forest
    Serv.
    , 108 F.3d 1082, 1088-89 (9th Cir. 1997) (rejecting the plaintiff's offer to receive the
    requested documents under a confidentiality agreement because of the rule that
    "FOIA does not permit selective disclosure of information to only certain parties, and
    that once the information is disclosed to [the plaintiff], it must be made available to
    all members of the public who request it"); Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.
    1996) ("Once records are released, nothing in the FOIA prevents the requester from
    disclosing the information to anyone else. The statute contains no provisions
    requiring confidentiality agreements or similar conditions."); Schiffer v. FBI, 78 F.3d
    1405, 1410 (9th Cir. 1996) (reversing district court's conditional disclosure order,
    which is "not authorized by FOIA"); cf. Arieff v. United States Dep't of the Navy, 712
    F.2d 1462, 1469 (D.C. Cir. 1983) (refusing to grant protective order that would allow
    plaintiff's counsel and medical expert to review exempt information, lest anyone
    think that "even in the process of sustaining an exemption the secrets to which it
    pertains will be compromised").

    196. Favish, 124 S. Ct. at 1581; see also FOIA Post, "Supreme Court Rules for 'Survivor
    Privacy' in Favish" (posted 4/9/04) ("The well-known maxim under the FOIA that
    'release to one is release to all' was firmly reinforced in the Favish decision.").

    197. 5 U.S.C. § 552(a)(3)(B); see also FOIA Update, Vol. XVII, No. 4, at 2 (discussing
    statutory provisions); cf. Department of Justice "Electronic Record" Report, reprinted
    in abridged form in
    FOIA Update, Vol. XI, No. 3, at 3-6 (discussing "choice of format"
    issues regarding "electronic records"). But see also Landmark Legal Found. v. EPA,
    272 F. Supp. 2d 59, 63 (D.D.C. 2003) (concluding that the agency had not violated the
    FOIA's "readily reproducible" provision by failing to retain electronic copies of e-mails
    that were retained in paper form only, because "the agency may keep its files in a
    manner that best suits its needs"); cf. Martin & Merrell, Inc. v. United States Customs
    Serv.
    , 657 F. Supp. 733, 734 (S.D. Fla. 1986) ("The [FOIA] in no way contemplates that
    agencies, in providing information to the public, should invest in the most
    sophisticated and expensive form of technology.") (pre-1996 FOIA amendment case).

    198. See, e.g., Lepelletier v. FDIC, No. 96-1363, tr. at 9 (D.D.C. Mar. 3, 2000) (refusing,
    with regard to information "maintained on an [agency] database incapable of being
    printed," to order agency "to render or attempt to render that database
    operational"), appeal dismissed as moot, 23 Fed. Appx. 4 (D.C. Cir. 2001);
    Chamberlain, 957 F. Supp. at 296 ("The substantial expense of reproducing the
    visicorder charts, as well as the possibility that the visicorder charts might be
    damaged if photocopied, make the Government's proposed form of disclosure [i.e.,
    inspection] even more compelling.").

    199. See TPS, Inc. v. DOD, 330 F.3d 1191, 1195 (9th Cir. 2003) (stating, in light of a
    particular agency regulation, that the FOIA "requires that the agency satisfy a FOIA
    request [for the production of records in a certain format] when it has the capability
    to readily reproduce documents in the requested format"); FOIA Update, Vol. XVIII,
    No. 1, at 5 (discussing agency obligations to produce records in requested forms or
    formats (citing H.R. Rep. No. 104-795, at 18, 21 (1996) (noting that amendments
    overrule Dismukes v. Dep't of the Interior, 603 F. Supp. 760, 761-63 (D.D.C. 1984), which
    previously allowed agency to chose format of disclosure if it chose "reasonably")));
    see also FOIA Update, Vol. XIX, No. 1, at 6 (encouraging agencies to consider
    providing records in multiple forms as matter of administrative discretion if
    requested to do so).

    200. Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982); see Long v. IRS, 596 F.2d 362,
    364-65 (9th Cir. 1979); see also FOIA Update, Vol. XVII, No. 4, at 2 (citing 5 U.S.C.
    § 552(f), as amended); FOIA Update, Vol. XI, No. 2, at 4 n.1.

    201. See FOIA Update, Vol. XIX, No. 3, at 1 (stressing congressional interest in
    "affirmative disclosures" of government information); id. at 5-6 (Department of Justice
    congressional testimony emphasizing same); FOIA Update, Vol. XIX, No. 1, at 1
    (discussing Department of the Air Force affirmative electronic information disclosure
    program); FOIA Update, Vol. XVIII, No. 1, at 3 (advising that agencies may choose to
    meet their "paper" reading room responsibilities through placement of computer
    terminals in their "conventional" reading rooms); FOIA Update, Vol. XVI, No. 1, at 1-2
    (promoting efficient agency disclosure through early Internet activity and other
    electronic means); FOIA Update, Vol. XV, No. 4, at 3 (proposed electronic record
    FOIA principles); see also FOIA Update, Vol. XVII, No. 1, at 1-2 (describing use of
    document imaging in automated FOIA processing).

    202. Pub. L. No. 104-231, § 4, 110 Stat. 3048, 3049 (codified as amended at 5 U.S.C.
    §§ 552(a)(2), (e)(2) (2000)); see also FOIA Update, Vol. XIX, No. 1, at 3-5 ("OIP
    Guidance: Electronic FOIA Amendments Implementation Guidance Outline").

    203. See Presidential FOIA Memorandum, reprinted in FOIA Update, Vol. XIV, No. 3,
    at 3 (noting that agencies have the responsibility "to enhance public access [to
    information] through the use of electronic information systems"); 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
    purposes); see also FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted
    3/23/01) ("This [GAO] report provides an excellent basis for all agencies -- whether
    they were among the agencies examined by GAO as part of its study or not -- to
    review their current state of compliance with E-FOIA's requirements and to make
    any and all improvements that are needed."); FOIA Update, Vol. XIX, No. 3, at 2
    (advising agencies on proper FOIA Web site treatment for annual FOIA reports, in
    compliance with newly enacted electronic availability requirements of 5 U.S.C.
    § 552(e)(2)-(3), including through agency identification of URL (Uniform Resource
    Locator) for each report).

    204. See 5 U.S.C. § 552(a)(6)(F); see, e.g., 28 C.F.R. § 16.6(c)(3) (2004); see also FOIA
    Update
    , Vol. XVIII, No. 2, at 2 (discussing alternative methods of satisfying obligation
    to estimate volume of deleted or withheld information, including "forms of
    measurement" to be used); FOIA Update, Vol. XVII, No. 4, at 10-11 (discussing
    requirements of Electronic FOIA amendments).

    205. Pub. L. No. 104-231, § 4, 110 Stat. 3048, 3049 (codified as amended at 5 U.S.C.
    § 552(b) (2000) (concluding sentences)); see, e.g., 28 C.F.R. § 16.6(c)(3); see also FOIA
    Update
    , Vol. XVIII, No. 1, at 6 (discussing use of "electronic markings to show the
    locations of electronic record deletions"); FOIA Update, Vol. XVII, No. 4, at 10
    (advising that statutory obligation "also codifies the sound administrative practice of
    marking records to show all deletions when records are disclosed in conventional
    paper form"); cf. Tax Analysts v. IRS, No. 94-923, 1998 WL 419755, at *2 (D.D.C. May 1,
    1998) (declaring that "an agency need not add explanatory material to a document to
    make it more understandable in light of the redactions").

    206. Crooker v. CIA, No. 83-1426, 1984 U.S. Dist. LEXIS 23177, at **3-4 (D.D.C. Sept. 28,
    1984); see Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12 (D.D.C. 1995) (finding
    that agencies need not provide Vaughn Index until ordered by court after plaintiff
    has exhausted administrative process); Schaake v. IRS, No. 91-958, 1991 U.S. Dist.
    LEXIS 9418, at **9-10 (S.D. Ill. June 3, 1991) (ruling that court "lacks jurisdiction" to
    require agency to provide Vaughn Index at either initial request or administrative
    appeal stages); SafeCard Servs. v. SEC, No. 84-3073, 1986 U.S. Dist. LEXIS 26467, at *5
    (D.D.C. Apr. 21, 1986) (noting that requester has no right to Vaughn Index during
    administrative process), aff'd on other grounds, 926 F.2d 1197 (D.C. Cir. 1991); see
    also
    FOIA Update, Vol. VII, No. 3, at 6.

    207. 5 U.S.C. § 552(a)(6)(A)(i), (a)(6)(C)(i); see Stanley v. DOD, No. 93-4247, slip op. at
    14-15 (S.D. Ill. July 28, 1998) (finding constructive exhaustion when agency failed to
    provide requester with notice of administrative appeal rights regarding disputed fee
    estimate); Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989) (denying plaintiff's
    request for Vaughn Index at administrative level, but suggesting that agency
    regulations then in effect required "more information than just the number of pages
    withheld and an unexplained citation to the exemptions"), rev'd & remanded on
    other grounds sub nom.
    Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991); Hudgins v.
    IRS
    , 620 F. Supp. 19, 20-21 (D.D.C. 1985) (suggesting that statements of appellate
    rights should be provided even when request was interpreted by agency as not
    reasonably describing records), aff'd, 808 F.2d 137 (D.C. Cir. 1987); see also FOIA
    Update
    , Vol. VI, No. 4, at 6 (discussing significance of appraising requesters of their
    rights to file administrative appeals of adverse FOIA determinations); cf. Kay v. FCC,
    884 F. Supp. 1, 2-3 (D.D.C. 1995) (upholding notification that appeals were to be filed
    with general counsel even though Commission took final action on them).

    208. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 67 (D.C. Cir. 1990)
    (holding that an agency's "no record" response constitutes an "adverse
    determination" and therefore requires notification of appeal rights under 5 U.S.C.
    § 552(a)(6)(A)(i)); see also FOIA Update, Vol. XII, No. 2, at 5 ("OIP Guidance:
    Procedural Rules Under the D.C. Circuit's Oglesby Decision") (superseding FOIA
    Update
    , Vol. V, No. 3, at 2).

    209. See FOIA Update, Vol. XVI, No. 3, at 3-5 ("OIP Guidance: Determining the
    Scope of a FOIA Request") (emphasizing importance of communication with
    requester); see, e.g., Astley v. Lawson, No. 89-2806, 1991 WL 7162, at *2 (D.D.C. Jan.
    11, 1991) (suggesting that the agency "might have been more helpful" to requester by
    "explaining why the information he sought would not be provided"); see also FOIA
    Post
    , "Anthrax Mail Emergency Delays FOIA Correspondence" (posted 11/30/01)
    (suggesting that agencies inform requesters of the delayed receipt of their FOIA
    requests due to anthrax-related mail disruptions "by sending acknowledgment
    letters in response to all delayed FOIA correspondence as promptly as possible
    upon ultimate receipt, taking pains to specify the length of the delay that was
    incurred in each case"); FOIA Update, Vol. XV, No. 2, at 1 (describing Department of
    Justice "FOIA Form Review" as example for other agencies to follow).

    210. See McDonnell v. United States, 4 F.3d 1227, 1262 n.21 (3d Cir. 1993) ("Of course,
    we anticipate that [plaintiff] will receive the best possible reproduction of the
    documents to which he is entitled."); Giles v. United States Dep't of Justice, No. 00-1497, slip op. at 5 (D.D.C. June 4, 2001) (accepting that agency provided plaintiff with
    "best copies available" even though plaintiff asserted that they were "unreadable");
    see also FOIA Update, Vol. XVI, No. 3, at 5 (advising agencies that "before providing
    a FOIA requester with a photocopy of a record that is a poor copy or is not entirely
    legible," they should "make reasonable efforts to check for any better copy of a
    record that could be used to make a better photocopy for the requester").

    211. See FOIA Update, Vol. XVI, No. 3, at 5 (advising of procedures to be used in
    cases involving poor photocopies of records).

    212. 5 U.S.C. § 552(a)(6)(A); see Oglesby, 920 F.2d at 63-71.

    213. 28 C.F.R. § 16.6(c).

    214. 5 U.S.C. § 552(a)(6)(A)(ii).

    215. Id. § 552(a)(6)(A)(ii).

Go to: Table of Contents