Vol. XIX, No. 1
FOIA Counselor: Questions & Answers
When compiling annual FOIA report statistics that show such data as the median
numbers of days required to
complete the processing of requests and the median number of days that requests were pending
as of the end of a fiscal
year, should agencies consistently use calendar days?
Yes. Under the amended provisions of the Freedom of Information Act, 5 U.S.C. §
552(e), as amended by Electronic
Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(e) (West Supp. 1997),
agencies are required to track
and report such data as the median numbers of days that their FOIA requests were pending as of
the end of a fiscal year. See
FOIA Update, Summer 1997, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation
and Submission of Annual FOIA
Reports"). It would be impracticable for agencies to attempt to calculate lengthy time
periods on the basis of "working" days
(which would require the exclusion of all intervening weekends, holidays, and any other
day on which an agency is closed for
official business) in compiling their statistics for annual report purposes. Rather, they
should simply count their processing
times "from date of perfection to date of completion" of each request. Id. at 6.
Should agencies explore their capability to receive FOIA requests
electronically through the Internet and their
World Wide Web sites?
Yes. Although there is no requirement in the Freedom of Information Act (even as
amended by the Electronic Freedom
of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048) that agencies
establish the capability to receive
FOIA requests through the Internet, agencies may do so as a matter of administrative discretion.
Cf. FOIA Update, Summer 1989, at 5 (advising agencies regarding acceptance of
FOIA requests "via facsimile ('fax')
machine"). In doing so, agencies must bear in mind that a fundamental requirement under
the Act is "'the need to have an
adequate written record of . . . a FOIA request' in case of any eventual confusion or dispute
over a request's scope." Id.
(quoting Washington Post Co. v. Department of Defense, No. 84-3400, slip op. at 3
(D.D.C. Apr. 1, 1985). As agencies
continue to develop their World Wide Web sites and their technological proficiency with
Internet communications, they should
further explore their capability to receive FOIA requests in an efficient and workable
fashion electronically. Cf. FOIA Update,
Summer 1997, at 1-2 (describing advanced World Wide Web site development at NASA and FDIC,
agencies which now have
begun to receive FOIA requests electronically). In time, the use of the Internet and World
Wide Web for this purpose may
If a requester asks to have records disclosed in more than one existing form
or format (e.g., in paper form as well
as in an electronic form), is the agency obligated to disclose the records in both forms?
No, but the agency should consider complying with such a request as a matter of
administrative discretion. Under new
subsection (a)(3)(B) of the FOIA, 5 U.S.C.A. § 552(a)(3)(B) (West Supp. 1997), as
amended by Electronic Freedom of
Information Act Amendments of 1996, whenever an agency already maintains a record in more than
one form or format, the
requester can choose the one in which it will be disclosed. See FOIA Update,
Winter 1997, at 5; FOIA Update, Fall 1996,
at 2 (noting that only exception would be highly unusual case in which some existing record
form could not be "readily
reproduced"). Once a requester chooses one record form over another for purposes of his or
her FOIA request, and the agency
discloses the requested records in that chosen form, the agency has satisfied its fundamental
obligation to "make the records
promptly available" to the requester under the Act. 5 U.S.C.A. § 552(a)(3)(A) (West 1996
& Supp. 1997). However, any FOIA requester who has an interest in obtaining agency records
in each of two alternative
forms in which an agency holds them
can readily pursue that interest simply by filing a second FOIA request with the agency.
Therefore, as a matter of overall
administrative efficiency for the agency, as well as "customer-friendly" treatment of the
requester, the agency should consider
simply furnishing the records in both forms, upon payment of applicable fees.
Can a small field office of a large agency meet its "electronic availability"
obligation with respect to newly created
reading room records under the Electronic FOIA amendments by placing those records in its
local reading room in CD-ROM form?
No. Under the Electronic FOIA amendments, agencies are now obligated to make newly
created reading room records
(i.e., those created by the agency on or after November 1, 1996) available to the public in
"electronic" form. 5 U.S.C. §
552(a)(2), as amended by Electronic Freedom of Information Act Amendments of 1996,
5 U.S.C.A. § 552(a)(2) (West Supp.
1997). Throughout the federal government, this obligation should be met through the
development and use of agency sites on
the World Wide Web. See FOIA Update, Fall 1996, at 1. While it is true that
Congress phrased this obligation as possibly
satisfied by "other electronic means" (such as CD-ROM form), it provided so only "if computer
have not [yet] been established by the agency." 5 U.S.C.A. § 552(a)(2) (West Supp. 1997).
So once an agency has established
its World Wide Web capability, all of its components should use it to meet their "electronic
reading room" obligations. See,
e.g., FOIA Update, Summer 1997, at 1-2.
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