FOIA Update
Vol. XVIII, No. 2

FOIA Counselor: Questions & Answers

If an agency determines that a certain type of record is the subject of multiple FOIA requests that are all made shortly after the record's creation, but is not likely to be requested again, need it place it in its reading room under new FOIA subsection (a)(2)(D)?

No. New subsection (a)(2)(D) of the FOIA requires "reading room" treatment for records processed in response to a FOIA request that, "because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records." 5 U.S.C. § 552(a)(2)(D), as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(a)(2)(D) (West Supp. 1997). The purpose of this new provision is to afford reading room access that might be used by potential future FOIA requesters in lieu of FOIA requests, and to thereby "reduce the number of multiple FOIA requests for the same records requiring separate agency responses." H.R. Rep. No. 104-795, at 21 (1996). Under this provision, when an agency processes records for FOIA disclosure, it must determine whether those records are of such a type as to fall into this new reading room category. See FOIA Update, Winter 1997, at 3-4. In making these determinations, agencies should recognize that there are some situations in which a certain type of record becomes the subject of contemporaneous FOIA requests from all interested parties and then ceases to be of interest. This can occur, for instance, in the realm of government contracting records, in which agencies regularly receive contemporaneous groups of FOIA requests for documents that are useful to bidders in the procurement process. For example, many agencies typically receive a "flurry" of FOIA requests for contract proposals immediately after a contract is awarded, but do not receive any subsequent requests for such bulky records after that point. In such a situation, an agency may determine that taking the post-disclosure step of placing such records in its reading room would not serve the statutory purpose of "diverting some potential FOIA requests for previously-released records." H.R. Rep. No. 104-795, at 21 (1996).

What form of measurement should agencies use in notifying FOIA requesters of the amount of information that has been deleted or withheld in a FOIA request?

Agencies should follow a commonsense rule of advising requesters about withheld information in whatever way most effectively indicates the nature of what is being withheld. Under the Electronic FOIA amendments, agencies are ordinarily obligated to indicate the amount of information that has been deleted from records that are withheld in part, see 5 U.S.C. § 552(b), as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(b) (West Supp. 1997), and also to advise the requester of the volume of what is withheld as exempt whenever entire records (or entire pages of them) are being withheld, see 5 U.S.C. § 552(a)(6)(F) (as amended). (This second provision takes effect as of October 2 of this year. See FOIA Update, Fall 1996, at 11.) As a practical matter, agencies usually will meet the first of these two obligations through administrative markings on redacted records, including records that are disclosed in electronic form. See FOIA Update, Winter 1997, at 6. To meet the second obligation, agencies must, in the words of the statute, "make a reasonable effort to estimate the volume" of what is being entirely withheld. 5 U.S.C. § 552(a)(6)(F). This volume estimate usually will take the form of numbers of pages of records that are being withheld in their entireties -- and in relatively small-volume cases, it should be reasonably possible to provide an exact page count. In larger-volume cases, an agency may use a page-count estimate. In some such cases, an agency may give a specification or an estimate of the number of entire documents withheld, so long as it also gives the requester a good understanding of the volume of those documents. It is even possible that in some cases, such as where a large volume of records is withheld to prevent harm to an ongoing law enforcement investigation under Exemption 7(A), an agency's estimate of the volume of what is being withheld (if it would cause no harm to provide it) could best be expressed in terms of boxes, file cabinet drawers, or even linear feet of withheld records. For withheld records that exist in electronic form, an agency could use either an applicable electronic form of measurement (e.g., kilobytes, megabytes, or an electronic "word count"), or a more conventional record equivalent (e.g., standard document pages), whichever would be the most effective means of estimating the volume of those records for the requester.

When an agency places newly created adjudicatory decisions in its "electronic reading room," must it take extra steps to produce an electronic image of any signature that appears on those documents?

No. The FOIA has long contained a provision that requires regulatory agencies to place in their reading rooms their "final opinions, . . . as well as orders, made in the adjudication of cases." 5 U.S.C. § 552(a)(2)(A). Under the Electronic FOIA amendments, such adjudicatory orders that are newly created will have to be made available through an agency's "electronic reading room" as well. See FOIA Update, Winter 1997, at 4 (citing 5 U.S.C. § 552(a)(2), effective Nov. 1, 1997). These adjudicatory decisions may be issued with written signatures affixed to them. In such cases, rather than taking the more complicated steps necessary to "image" a signature, an agency may simply transfer the text of its decisions most efficiently to its "electronic reading room" in electronic form -- so long as it includes a clear indication of the fact that each decision was duly signed.

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