Vol. VI, No. 1
FOIA Counselor: Questions & Answers
Can an agency supplement its rationale for denying a fee waiver request after the requester
No, not likely. The FOIA's fee waiver provisions vest federal agencies with discretionary authority to
determine when fees should not be charged. See 5 U.S.C. § 552(a)(4)(A). Accordingly, unlike with
other FOIA determinations where federal courts conduct de novo review to decide whether an agency
action was proper, the appropriate standard of judicial review in fee waiver cases is the Administrative
Procedure Act ("APA") standard of whether an agency abused its discretion or its decision was
arbitrary and capricious or otherwise not in accordance with law; the scope of judicial review is
correspondingly limited to the agency's administrative record. See, e.g., Eudey v. CIA, 478 F. Supp.
1175, 1176 (D.D.C. 1978); accord 5 U.S.C. § 706(2)(A). Hence, because under the APA "courts
may not accept . . . post hoc rationalizations for agency action," Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69 (1962), an agency cannot anticipate being able to supplement its fee
waiver denial rationale after the commencement of litigation. Indeed, in Allen v. CIA, Civil No.
81-2543, slip op. at 12 (D.D.C. Aug. 24, 1984), a court recently rejected additional reasons advanced
by an agency to justify a fee waiver denial and pointedly considered only the rationale contained in the
agency's administrative responses. Therefore, agencies should strive to make as thorough an
adniinistrative record as reasonably possible in their fee waiver denials. Specifically, this should include
the careful consideration of all reasons advanced by the requester in support of the requested waiver,
together with an analysis of the criteria set forth in the Department of Justice's 1983 fee waiver
guidelines (see FOIA Update, Jan. 1983, at 3-4); a full memorialization of all grounds for the denial
should be provided to the requester.
Can the identities of FOIA requesters be withheld under the FOIA?
No, not as a general rule. As one court has held, "FOIA requesters .
. . have no general expectation that their names will be kept private."
Agee v. CIA, 1 GDS ¶ 80,213 at 80,532 (D.D.C. 1980).
In fact, in most cases the release of the name of a FOIA requester would not
cause even the minimal invasion of privacy required to trigger the balancing
tests of Exemptions 6 and 7(C). See Stauss v. IRS, 516 F. Supp. 1218,
1223 (D.D.C. 1981); cf. National Western Life Insurance Co. v. United States,
512 F. Supp. 454, 460-61 (N.D. Tex. 1980); compare Wine Hobby USA, Inc.
v. IRS, 502 F.2d 133, 137 (3d Cir. 1974). It would take an extraordinarily
rare and compelling situation for the mere identification of a person or entity
as a FOIA requester of particular records to rise to the level of implicating
a privacy interest (or, less likely, a commercial interest) protectible under
On the other hand, any personal information about an individual FOIA requester
-- such as his or her home address, for example -- should be protected under
Exemption 6 absent a particularly compelling public interest in its disclosure.
Cf. American Federation of Government Employees v. United States, 712
F.2d 931, 932-33 (4th Cir. 1983) (home addresses of federal employees found
properly withheld under Exemption 6). But see Stauss v. IRS, 516 F.
Supp. at 1223. Similarly, the fact that an individual has made a first-person
request for access to his personal file under the Privacy Act of 1974, 5 U.S.C.
§ 552a, ordinarily should be protectible under Exemption 6.
Therefore, a FOIA request for an agency list of Privacy Act requesters should
be denied on that basis, and any FOIA requester seeking access to any record
reflecting whether a particular individual has exercised his or her Privacy
Act rights should be given a "neither confirm nor deny" response on that same
basis. Cf. Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C.
1980), aff'd mem., 656.F.2d 900 (D.C. Cir. 1981).
Can a federal agency ever make a FOIA request for the records of another agency?
No, not directly. According to the FOIA's general disclosure provision, 5 U.S.C. § 552(a)(3), all
records not covered by the specific disclosure provisions of 5 U.S.C. § 552(a)(1) or (a)(2), and not
exempted by 5 U.S.C. § 552(b), must be disclosed upon receipt of a proper request from "any person."
The FOIA's definition of "person," incorporated from the Administrative Procedure Act, encompasses
"an individual, partnership, corporation, association, or public or private organization other than an
agency." 5 U.S.C. § 551(2) (emphasis added). See 5 U.S.C. §§ 551(1), 552(e); see also Federal
Open Market Committee v. Merrill, 443 U.S. 340, 360 (1979) (holding that 5 U.S.C. § 551(2)
excludes federal agencies from the meaning of "person" in the context of Exemption 4). Therefore,
information requests from agencies within the executive branch of the federal government cannot be
considered to be formal FOIA requests.
This conclusion holds particular significance for any agency request for disclosure of Privacy
Act-protected information in light of the D.C. Circuit Court of Appeals' decision in Bartel v. FAA, 725
F.2d 1403 (D.C. Cir.), reh'g en banc denied, No. 82-2473 (D.C. Cir. Mar. 23, 1984). In Bartel, the
D.C. Circuit narrowly interpreted the "FOIA disclosure" exception to the Privacy Act's general
disclosure prohibition, 5 U.S.C. § 552a(b)(2), to permit disclosure of nonexempt information "[o]nly
when the agency is faced with a FOIA request." 725 F.2d at 1412. The Office of Information and
Privacy subsequently advised all federal agencies not to disclose Privacy Act-protected information in
reliance upon this "FOIA disclosure" exception unless it is subject to an actual FOIA request. See
FOIA Update, Summer 1984, at 2. Because information requests received from other federal agencies
technically are not FOIA requests, it must follow that agencies handling Privacy Act-protected
information cannot rely upon 5 U.S.C. § 552a(b)(2) to disclose such information in response to such
requests. However, a FOIA request received from an employee of another federal agency, even one
acting in his official capacity, would be a request from a "person" and would therefore satisfy both the
technical requirement of the FOIA and the artificially restrictive rule of Bartel.
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