Vol. XIX, No. 3
FOIA Counselor: Questions & Answers
When an agency completes its annual FOIA report in the new form for fiscal year
1998, should it send the report
to Congress as in the past?
No. As a result of the Electronic Freedom of Information Act Amendments of 1996, Pub.
L. No. 104-231, both the content and
the reporting procedure for agencies' annual FOIA reports have been changed. Under the amended
agencies are required to complete their annual FOIA reports within four months after the end
of each fiscal year (e.g., by February 1, 1999,
for the report covering fiscal year 1998), and to both submit them to the Justice Department
and also make them
available to the public through their FOIA sites on the World Wide Web. See 5 U.S.C.
§ 552(e)(1)-(2) (1994 & Supp. II
1996); see also FOIA Update, Winter 1998, at 5. The Justice Department's
FOIA web site (http://www.usdoj.gov/foia), which
now contains links to the FOIA web sites of other federal agencies, see FOIA
Update, Spring 1998, at 2, will be used to
electronically link all agencies' annual FOIA reports together each year in accordance with
the Act's new requirements, see 5
U.S.C. § 552(e)(3). Accordingly, when each agency submits its annual FOIA report to the
Justice Department each year (which
it should do under cover of a letter addressed to the Office of Information and Privacy), it
should specify the electronic address
(the "Uniform Resource Locator," or "URL") for that document. See FOIA Update,
Summer 1997, at 7. Additionally, all
agencies should notify OIP of any change in their pertinent URLs, just as they do for any
change in name or address of their
FOIA administrative and legal contacts. See, e.g., FOIA Update, Spring 1998,
If an agency can most readily compile its statistics for the new form of annual FOIA
report by using "working" days
rather than calendar days, should it do so?
Yes. To compile their annual FOIA reports under the amended Act, agencies now must
satisfy an entirely new
requirement that they keep track of and calculate "the median number of days" that their FOIA
requests were pending for
processing during the fiscal year. 5 U.S.C. § 552(e)(1)(C), (E); see also FOIA
Update, Summer 1997, at 3-7 ("OIP Guidance:
Guidelines for Agency Preparation and Submission of Annual FOIA Reports"). As agencies work
to meet this statutory
requirement, a primary concern is the "practicability" of the means by which they do so.
See FOIA Update, Winter 1998,
at 6 (advising agencies to use calendar days premised upon it being "impracticable" to do
otherwise). So if any agency can
most readily track and compile its FOIA statistics by using "working" rather than calendar
days, particularly in an automated
case-tracking system, it should do so. Accord H.R. Rep. No. 104-795, at 29 (1996)
(expressing concern that statistic-calculation
process "not increase the reporting burden on agencies").
For purposes of the new annual FOIA report, how should an agency count a request
for which the requester refuses
to pay an applicable FOIA fee?
Such a request should be counted as a "processed" request in an agency's annual
FOIA report, but the agency need not
regard the request as having been "pending" during the entire time that it might take to
reach the conclusion that the requester
will not pay the anticipated fee. An agency may by regulation provide that if a FOIA
requester is notified of an anticipated
fee (in excess of $25.00) and does not respond with an agreement to pay that fee, the
request ultimately will be closed on that
basis. See, e.g., 28 C.F.R. § 16.11(e) (1998) (Justice Department regulation).
In such a case, the FOIA request should be
included in the "disposition of initial requests" category of the agency's annual FOIA report,
see FOIA Update, Summer 1997,
at 5 (annual report guidelines, category V.B.4.d.), but the "processing time" for that
request, see id. at 6 (category VII.A.)
should include only the time prior to the point at which the requester is notified of the
need to "perfect" that request, see id.
at 4, not the time spent waiting for the requester to do so.
Do the grand jury secrecy restrictions of Rule 6(e) of the Federal Rules of
Criminal Procedure prohibit agency FOIA
officers from gaining access to grand jury information for FOIA administration purposes?
No. It is certainly true that a longstanding rule of federal criminal procedure,
Rule 6(e), establishes strict limitations on
access to (as well as disclosure of) any "matters occurring before [a] grand jury" by
government personnel. Fed. R. Crim.
P. 6(e). Absent a court order, that rule allows access to grand jury information by only
"government personnel . . . deemed
necessary." Fed. R. Crim. P. 6(e)(3)(A)(ii). This restriction does not prohibit necessary
access to grand jury information by
FOIA personnel. In fact, the Department of Justice's Criminal Division has addressed this
very point in its manual governing
grand jury policies and procedures: "Necessarily, 'government personnel' also includes
administrative personnel who need
to determine the applicability of Rule 6(e)'s disclosure prohibition for purposes of
responding to requests for records under
the [FOIA]. Such administrative personnel assist prosecuting attorneys in the proper
enforcement of the Rule by ensuring that
unauthorized disclosure of 6(e) matters does not occur and that information not covered
by Rule 6(e) is not withheld
improperly." Federal Grand Jury Practice 173 (Jan. 1993). Therefore, no prosecutor
should bar FOIA personnel from
examining any grand jury information in order to determine its FOIA status. See
Canning v. Department of Justice, No. 92-0463, slip op. at 4-5 (D.D.C. June 26,
1995) (citing manual to conclude that "FOIA agents . . . are among those with approved
access to grand jury material").
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