FOIA Update
Vol. VI, No. 4

FOIA Counselor:  Questions & Answers

Is an agency obligated to process documents and make them available for viewing by a requester without the assessment of a duplication fee?

No. An agency is certainly within its rights to require a FOIA requester to pay applicable duplication fees even though the requester indicates a preference to first examine copies of the processed documents in order to ascertain the particular pages he wants to purchase. Otherwise, a FOIA requester could easily frustrate "[t]he interest underlying the duplication fee requirement" in 5 U.S.C. § 552(a)(4)(A) by not allowing the agency to "defray" its actual duplication costs. See, e.g., Heimerle v. United States Department of Justice, 3 GDS ¶ 82,261, at 82,719 (D.D.C. 1982) (case dismissed in recognition of agency's duplication expense in the very processing of records for access). However, it is of course within an agency's discretion to allow a FOIA requester free examination of records requiring no new photocopying -- such as entirely nonexempt "original" files or file copies of records "previously processed" for release -- where to do so would encourage the requester to limit the volume of records ultimately sought.

Finally, it should be remembered that no duplication fee may be assessed in connection with a requester's examination of those records which are required to be made available for "public inspection" by anyone under subsection (a)(2) of the FOIA.

Are records of federal employment background investigations "investigatory records compiled for law enforcement purposes" under Exemption 7?

Yes. Background investigations are regularly conducted to determine whether an applicant for federal employment has "engaged in criminal activity or [is] otherwise unfit for government service." DeFina v. FAA, Civil No. 75-1526, slip op. at 16 (S.D.N.Y. Feb. 26, 1976). The courts have regarded the records generated in connection with such investigations as satisfying the threshold requirement of Exemption 7. See, e.g., Block v. FBI, Civil No. 83-0813, slip op. at 14-15 (D.D.C. Nov. 19, 1984); Meeropol v. Smith, Civil No. 75-1121, slip op. at 78 (D.D.C. Feb. 29, 1984) (appeal pending); Koch v. Department of Justice, 376 F. Supp. 313, 315 (D.D.C. 1974); cf. Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984) (employer's determination concerning disciplining of federal employees constitutes "an authorized law enforcement activity" within meaning of subsection (e)(7) of Privacy Act of 1974).

A related issue is whether confidential sources mentioned in such records qualify for protection under both clauses of Exemption 7(D), the second of which has its own special threshold requirement. Whereas the first clause of that exemption (which protects source-identifying information) is widely applicable, the broader second clause (which protects all source-provided information) can be applied only to the records of "a criminal investigation, or . . . a lawful national security intelligence investigation." 5 U.S.C. § 552(b)(7)(D). Although no decision to date has specifically addressed this question, the legislative history of Exemption 7(D) suggests that a generalized background investigation triggers only the first clause of that exemption. See S. Conf. Rep. 1200, 93d Cong., 2d Sess. 12, reprinted in 1974 U.S. Code Cong. & Ad. News 6267, 6292. Accordingly, only identifying information regarding a source used in such an investigation may be protected. On the other hand, that same legislative history does specify that "background security investigations [conducted] by governmental units which have authority to conduct such functions" constitute "lawful national security intelligence investigation[s]" within the meaning of the threshold requirement of Exemption 7(D)'s second clause. Id. at 6291. Thus, all information provided by sources in such security investigations can be withheld as exempt on that basis. See, e.g., Meeropol v. Smith, slip op. at 78.

Can any harm ever result from an agency's failure to notify a FOIA requester of his administrative appeal rights?

Yes. The FOIA establishes a two-level process of administrative review and, to ensure that requesters are able to fully avail themselves of this process, it explicitly provides that any agency denial of a request must include written notice of the requester's right to appeal that denial to the head of the agency. See 5 U.S.C. § 552(a)(6)(A)(i). Thus, an agency which fails to inform a requester of his administrative appeal rights is in violation of this statutory requirement.

Beyond that, moreover, is the possibility of a requester seeking immediate judicial review of a denial, without either party (or the court, for that matter) having the benefit of that second level of administrative review. Because a requester is deemed to have exhausted his administrative remedies if an agency does not make a proper determination of his request within the Act's time limits, see FOIA Update, Jan. 1983, at 6 (citing 5 U.S.C. § 552(a)(6)(C)), a requester receiving no notice of his appeal rights can easily argue a right to immediate judicial review on that basis alone. See Shermco Industries, Inc. v. Secretary of the Air Force, 452 F. Supp. 306, 317 (N.D. Tex. 1978), rev'd on other grounds, 613 F.2d 1314 (5th Cir. 1980).

In fact, such was precisely the situation in the recent case of Hudgins v. IRS, 620 F. Supp. 19 (D.D.C. 1985). The agency there denied each of the plaintiffs' requests within the FOIA's time deadlines and accordingly sought dismissal of the lawsuit on the ground that "the plaintiffs' failure to pursue an administrative appeal constitutes a failure to exhaust administrative remedies." 620 F. Supp. at 20. However, the court refused to dismiss the suit, finding that the agency's failure to inform the plaintiffs of their administrative appeal rights "constitutes a failure to reach a determination within the statutory time limitations." Id. at 21. See also Martinez v. FBI, 3 GDS ¶ 83,005, at 83,436 (D.D.C. 1982); Marschner v. Department of State, 470 F. Supp. 196, 198-99 (D. Conn. 1979).

It is therefore of no small importance that agencies remember to provide requesters with the appeal notification required by the statute whenever they deny a request in any respect. Only a full grant of requested access or a flat "no records" response need not include such notification. See FOIA Update, Summer 1984, at 2.

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