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FOIA Counselor Q&A:   "Frequently Requested" Records

Q: Why is it sometimes said that the "frequently requested record" provision of the FOIA, 5 U.S.C. 552(a)(2)(D) (2000), involves a "rule of three"?

A: The FOIA's "frequently requested record" provision, which was enacted as part of the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), created an additional category of reading room records by requiring all federal agencies to give "reading room" treatment to certain records after they are processed for, and released to, a FOIA requester. See FOIA Update, Vol. XVII, No. 4, at 1. It provides that such treatment must be given to any FOIA-processed records 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). Because the language of this statutory provision is phrased in the plural (i.e., with explicit reference to "subsequent requests"), it necessarily is triggered by multiple FOIA requests beyond the initial one for which records are processed in the first place. See FOIA Update, Vol. XVIII, No. 1, at 4. Consequently, this provision's statutory standard is sometimes referred to as establishing a "rule" of three requests -- the first one, to begin with, plus at least two more. See Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 23 (stating that "it is the receipt or the anticipation of the third [FOIA] request that triggers" an agency's (a)(2)(D) obligation).

Q: What if an agency receives a second request, but then not a third one until many months or even years later?

A: In such a case, an agency might reasonably determine, upon its receipt of the third request, that the level of interest in the records in question is such that it would not serve the statutory purpose of subsection (a)(2)(D) to give them "reading room" treatment at that later point in time. The clear underlying purpose of this reading room 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.'" FOIA Update, Vol. XVIII, No. 2, at 2 (quoting H.R. Rep. No. 104-795, at 21 (1996)). In a circumstance such as this, consistent with an agency's use of its "best judgment" in subsection (a)(2)(D) matters, FOIA Update, Vol. XVII, No. 4, at 1, it can be appropriate for an agency to determine that subsection (a)(2)(D) and its underlying purpose do not apply. See FOIA Update, Vol. XVIII, No. 2, at 2 (advising in comparable circumstance that placing records in agency's reading room "would not serve the statutory purpose of 'diverting some potential FOIA requests for previously-released records'") (quoting H.R. Rep. No. 104-795, at 21 (1996)); see also FOIA Update, Vol. XIX, No. 1, at 3 (reminding that "[i]n making determinations as to whether records fall into the new reading room category, agencies should keep in mind that its purpose is to reduce the number of future requests for the same information"). In reaching such judgments, however, agencies also should be mindful both of the importance of doing so responsibly, as an integral part of modern FOIA administration, and of the continued attention that is paid to governmentwide compliance with subsection (a)(2)(D) as part of E-FOIA implementation studies conducted by the General Accounting Office. See FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (citing GAO report entitled "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments" (Aug. 2002), at 45-47, and speaking of GAO's continuing "series" of such reviews); see also FOIA Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03) (referring to GAO's "third study of agency compliance with the requirements of E-FOIA").

Q: What if the second and third requests are not identical to the first and they encompass only some of the records that were involved in the first request?

A: The agency does have an (a)(2)(D) obligation in such a case, but that obligation applies only to the records that are common to the three FOIA requests -- what could be referred to as "overlap" records -- not to the entire scope of records covered by any one request. At bottom, the focus of this statutory provision and the obligation that it places on agencies is on records, not requests. See FOIA Update, Vol. XVII, No. 4, at 1. So when agencies consider whether that obligation is triggered, and if so exactly where, they should look to the records that they have processed and to whether those records fall within the "rule of three." See FOIA Update, Vol. XVIII, No. 1, at 4. And by the same token, of course, an agency's (a)(2)(D) obligation arises only with respect to any FOIA-processed record that is disclosed at least in some part. See id. (discussing agency (a)(2)(D) obligations as pertaining only to "the records they disclose").

Q: If an agency acts to place FOIA-processed records in its reading room based upon the subsection's "likely to" standard, without waiting for any subsequent FOIA requests, does that mean that it has completely handled all of its FOIA obligations for those records in that way?

A: No -- not all of its potential FOIA obligations, not even when it acts on that anticipatory basis. The "likely to" part of the statutory standard is an alternative means of triggering the agency's obligation to give a FOIA-processed record "reading room" treatment under subsection (a)(2)(D): Where the agency reaches its own judgment of the likelihood of multiple future requests, the obligation is triggered on that basis alone. See FOIA Update, Vol. XVII, No. 4, at 1. When an agency gives a FOIA-processed record "reading room" treatment on that basis it is extending itself proactively, to be sure, but no more so than the statute actually requires. See Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 23. Thus, that proactive exercise of agency judgment to place records in its reading room means only that the agency need not be concerned with its actual receipt of one of more requests for those records in the future for reading room purposes. It does not mean that it has satisfied all of its potential FOIA obligations for those records. Rather, any and all subsequent FOIA requests received for the records in question must be handled as regular FOIA requests, under subsection (a)(3) of the Act, 5 U.S.C. 552(a)(3), just the same. (Of course, the pre-existing reading room availability of records responsive to those subsequent requests in an electronic reading room on an agency's FOIA Web site, once brought to those FOIA requesters' attention, could be a basis for resolving those requests most efficiently. See, e.g., FOIA Update, Vol. XVI, No. 1, at 2 (emphasizing utility of "electronic information availability" even prior to E-FOIA).) While there is a general rule under the FOIA that such regular FOIA requests under subsection (a)(3) cannot be made for records that are properly treated as "reading room" records under subsection (a)(2), see FOIA Update, Vol. XVIII, No. 1, at 3, it must be remembered that subsection (a)(2)(D) stands as a singular exception to that rule. See id. (citing H.R. Rep. No. 104-795, at 21 (1996)).

Q: What if an agency acts on the basis of the "likely to" standard before it receives even a first FOIA request?

A: Fundamentally, this reading room provision does not even come into play until an agency processes and discloses records under the Act in the first place. See Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 23 (pointing out that "this requirement by definition begins with the processing of records disclosed in response to a FOIA request"). Therefore, any such action by an agency would be so premature, at least in relation to subsection (a)(2)(D), that it would amount to according "reading room" treatment to records on an entirely gratuitous, or discretionary, basis. While agencies certainly have the discretion to take such action, and not infrequently do so, see, e.g., FOIA Update, Vol. XVIII, No. 1, at 5, they should not confuse it with action taken under subsection (a)(2)(D). See also id. (cautioning against the possibility of copyright infringement in any case in which an agency gratuitously accords "electronic reading room" treatment to a record that was created outside of the agency).

Q: What if an agency acts to place a record in its reading room based upon the "likely to" standard, but then soon thereafter is proven mistaken when no further FOIA request (or no more than one additional request) is received for that record, can it then remove it from its reading room (or "take it down" from its electronic reading room on its FOIA Web site) for that reason?

A: No. In such a situation, the key fact is that the statutory standard was met, regardless of what did or did not occur thereafter. In other words, once the agency reached the judgment that the FOIA-processed record was "likely to become the subject of subsequent requests," 5 U.S.C. 552(a)(2)(D), its statutory obligation was in fact triggered at that point. It makes no difference under the statute whether an agency's predictive judgment subsequently is borne out. In time, however, an agency certainly can consider the absence of predicted FOIA requests as a factor in determining whether the continued maintenance of a record as a "frequently requested" record is warranted. See FOIA Update, Vol. XVIII, No. 1, at 4 (noting that as a matter of practicality, an agency "may determine that some such records no longer" warrant (a)(2)(D) treatment); see also FOIA Update, Vol. XIX, No. 1, at 3 (advising that agencies "should use their judgment as to the length of time that records determined to fall within the new reading room category should continue to be maintained in a reading room").   (posted 7/25/03)

 

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