FOIA Update
Vol. X, No. 2

OIP Takes "Electronic Record" Survey

The Office of Information and Privacy has launched a survey of all federal agencies on the subject of "electronic record" issues arising under the Freedom of Information Act.

Commenced in early May, OIP's governmentwide survey seeks to comprehensively gather information from individual agencies on any existing agency positions, practices and concerns regarding this general subject area. It identifies four specific "electronic record" issues as the major such issues requiring attention at this time:

-- Does the FOIA require agencies to create new computer programs (or modify existing programs) for search purposes, i.e., in order to search for and retrieve electronic records according to the particular specifications of FOIA requesters?

-- Does the FOIA require agencies to create new computer programs (or modify existing programs) for "processing" purposes, i.e., in order to segregate disclosable from nondisclosable electronic record portions?

-- Does the FOIA require agencies to provide requested records in the particular forms (or database formats) specified by requesters?

-- Is computer software an "agency record" under the FOIA?

The principal FOIA legal and administrative contacts at all federal agencies have been asked through this survey to focus on these four major issues -- as well as any related "electronic record" issues that may be of particular concern to their individual agencies -- and to set forth their agencies' perspectives on these issues, including references to any formal determinations or positions already taken with respect to them.

The survey asks for individual agency views on these issues even where an agency has not yet had occasion to formally take a position on them.It also seeks to determine the particular factual circumstances and considerations underlying each agency's views, which can vary greatly from one agency to the next.

The OIP survey recognizes that such "electronic record" issues are among the most complex and challenging issues arising under the FOIA (though they have led to scant case law to date) and that they stand as largely unresolved questions of both policy and law. As federal agencies have become increasingly automated in their maintenance and use of information, there has been increased attention to these difficult FOIA issues in recent years.

Unanticipated "Electronic" Environment

The difficulty arises from the fact that Congress plainly did not anticipate an "electronic" federal environment when it enacted the FOIA more than two decades ago and also from the fact that the FOIA contains no clear, statutory definition of the term "agency record" that readily can be applied to such a realm. It is well established as a general proposition of law, though, as the OIP survey specifically recognizes, that computer database records are no less subject to the FOIA when they are stored in magnetic tape form. This was recognized as well in a congressional report that first addressed the general subject area three years ago. See "Electronic Collection and Dissemination of the Information by Federal Agencies:  A Policy Overview," H.R. Rep. No. 560, 99th Cong., 2d Sess. 32-36 (1986).

More recently, a research arm of Congress, the Office of Technology Assessment, issued a comprehensive report on the overall general subject of electronic information dissemination in the federal government. One chapter of this major study, entitled "The Freedom of Information Act in an Electronic Age," explored the FOIA's operation in an "electronic" environment and recommended legislative solutions to difficult "electronic FOIA" problems. See U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 207-36 (1988).

Similar attention to the general subject of federal information acquisition and dissemination policy was paid by the Administrative Conference of the United States during the past year. Among other things, in focussing on the FOIA, it observed that "[d]ifferences in technologies and database structures used by individual agencies make it necessary, for the near term, to define FOIA obligations on a case-by-case basis." Admin. Conf. of the U.S., Recommendation 88-10, "Federal Agency Use of Computers in Acquiring and Releasing Information," 54 Fed. Reg. 5207, 5210 (1989) (to be codified at 1 C.F.R. (305.88-10). Likewise, the American Bar Association, through its Administrative Law and Regulatory Practice Section, is now looking at "electronic record" FOIA issues along very much the same lines.

Legislative Activity

Most recently, a House of Representatives subcommittee has commenced a series of hearings on the broad subject of federal information dissemination policies and practices, which can include attention to issues of electronic disclosure under the FOIA. This subcommittee, the House Government Operations Committee's Subcommittee on Government Information, Justice and Agriculture, is now chaired by Rep. Bob Wise (D. W.Va.) and holds jurisdiction over FOIA matters and related government-information issues in the House.

The counterpart subcommittee in the Senate, the Senate Judiciary Committee's Subcommittee on Technology and the Law, which is chaired by Sen. Patrick J. Leahy (D. Vt.), touched upon "electronic record" issues under the Freedom of Information Act last year as part of a questionnaire it sent to selected federal agencies in connection with a general FOIA oversight hearing it held. See FOIA Update, Summer 1988, at 1-2. A newly formed Senate subcommittee, the Senate Government Affairs Committee's Subcommittee on Government Information and Regulation, chaired by Sen. Jeff Bingaman (D. N.M.), holds additional jurisdiction over related issues in the Senate.

Future "Electronic Record" Activity

It thus remains to be seen exactly where this recent increased attention to "electronic record" issues will lead. In some quarters, it has been suggested that only a legislative treatment of the subject -- perhaps in the form of an "Electronic Freedom of Information Act" -- can adequately resolve such controversial issues as "required programming" and the status of computer software under the FOIA. It is not at all clear yet whether that may be necessary.

For its part, OIP has advised the individual agency recipients of its "electronic record" survey to take the time necessary for careful and comprehensive responses to it, so that those responses can provide a sound basis for the development of uniform policy positions and the possible consideration of legislative initiatives, by both the executive and legislative branches.

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