of the most fundamental and important tasks that an agency performs in processing
a Freedom of Information Act request is properly determining the request's scope
-- i.e., the lines that govern which records are responsive to it and which
are not. See, e.g., FOIA
Update, Vol. XVI, No. 3, at 3 ("[A]n agency's interpretation of the
particular scope of a FOIA request, and its determinations regarding exactly
which information falls within it, are vitally important aspects of FOIA administration.").
Indeed, an agency cannot begin to conduct a search for responsive records --
let alone begin processing them for public disclosure -- until it determines
exactly which records it should be focusing on. See, e.g., Voinche
v. FBI, No. 96-5304, 1997 U.S. App. LEXIS 19089, at *3 (D.C. Cir. June
19, 1997) (observing that an agency is not obliged to "search for records beyond
the scope of [a] request"). Thus, properly determining the scope of a FOIA request
is a necessary first step that an agency must take toward fulfilling its obligation
to conduct a search that is "reasonably calculated to uncover all [responsive]
documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983); see, e.g., Meeropol v. Meese, 790 F.2d
942, 956 (D.C. Cir. 1986) (declaring that the adequacy of a search for responsive
records "is measured by the reasonableness of the [agency's] effort in light
of the specific request").
scope of a FOIA request has both substantive and temporal aspects. In other
words, a request's scope is defined not only by the particular subject matter
of the requested records, which is the delineation most commonly thought of,
but also by the particular time frame in which those records were created. SeeChurch of Scientology v. IRS, 816 F. Supp. 1138, 1148 (W.D. Tex. 1993)
(observing that "there has to be a temporal deadline for documents that satisfy
[a FOIA] request"), appeal dismissed by stipulation, No. 93-8431 (5th
Cir. Oct. 21, 1993). While issues of the proper interpretation of a request's
substantive scope have received much attention over the years -- see, e.g.,
FOIA Update, Vol. XVI,
No. 3, at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request");
see also, e.g., LaCedra v. Executive Office for United States Attorneys,
317 F.3d 345, 347-48 (D.C. Cir. 2003) (admonishing that in light of agency's
obligation "to construe [plaintiff's] FOIA request liberally," agency's interpretation
of request's scope, though "colorable," was "simply implausible" and thus impermissibly
narrow) -- now courts are increasingly focusing on whether agencies are defining
the temporal scope of FOIA requests properly, primarily through their use of
what commonly are referred to as "cut-off" dates.
speaking, an agency uses a "cut-off" date to delineate the scope of a FOIA request
by treating records created after that date as not responsive to that request.
Vol. IV, No. 4, at 14 (advising that records that "post-date such a date
are not included" within the temporal scope of a request). Although there are
several types of "cut-off" dates that an agency can use, seeid.
(listing the different types of "cut-off" dates used by agencies), courts have
held that an agency's use of an inappropriate "cut-off" date can unduly restrict
a FOIA request's temporal scope, thereby rendering the agency's subsequent search
for responsive records unreasonable. See, e.g., McGehee v. CIA,
697 F.2d 1095, 1101 (D.C. Cir.) (observing that "a temporal limit pertaining
to FOIA searches . . . is only valid when the limitation is consistent
with the agency's duty to take reasonable steps to ferret out requested documents"),
vacated on other grounds on panel reh'g & reh'g en banc denied, 711
F.2d 1076 (D.C. Cir. 1983); see also, e.g., Pub. Citizen v. Dep't
of State, 276 F.3d 634, 643-44 (D.C. Cir. 2002) (finding an agency's search
to be inadequate because the agency unjustifiably failed to use a later "cut-off"
date that "might have resulted in the retrieval of more [responsive] documents").
the case law addressing this issue thus far, it is clear that a search conducted
using a cut-off based on the date that the search begins (i.e., a "date-of-search
cut-off") will be viewed by the courts much more favorably than a search that
uses a less inclusive cut-off, such as one based on the date of the request
or of the request's receipt (i.e., a "date-of-request cut-off"). See, e.g.,
Defenders of Wildlife v. United States Dep't of the Interior, No. 03-1192,
2004 WL 842374, at *6 n.10 (D.D.C. Apr. 13, 2004) (recognizing that because
the agency's FOIA regulations established a "date-of-search cut-off," records
created after the agency's "FOIA search began . . . are not covered by [the
FOIA] request"); see alsoMcGehee, 697 F.2d at 1104 (favoring
a date-of-search cut-off because it "results in a much fuller search and disclosure"
than does a date-of-request cut-off); Van Strum v. EPA, No. 91-35404,
1992 WL 197660, at *2 (9th Cir. Aug. 17, 1992) (agreeing that a date-of-search
cut-off date is "the most reasonable date for setting the temporal cut-off in
significance of a date-of-search cut-off is most evident when the subject of
the request is a matter involving ongoing agency activity, such that records
are still being created after the request is made. Indeed, if the agency has
a large backlog of pending requests, many additional records responsive to a
particular request might be created before that request even reaches the front
of the agency's processing queue. The use of a date-of-search cut-off ensures
that any such records will be captured by the agency's search, resulting in
the processing of records that would not be included through a search conducted
with a more restrictive date-of-request cut-off. SeePub. Citizen,
276 F.3d at 643-44 (recognizing that for an agency with "a large 'backlog' of
FOIA requests," a search conducted using a date-of-search cut-off would capture
"a potentially large number of relevant documents" created after the date of
the same token, of course, an agency's use of a date-of-search cut-off certainly
does not mean that it cannot "cut things off" until the entire search is completed;
rather, doing so as of the beginning of a search is entirely reasonable.
See, e.g., 28 C.F.R. § 16.4(a) (2004) (Department of Justice
FOIA regulation specifying that its standard "cut-off" practice "include[s]
only records in its possession as of date [that it] begins its search
for them") (emphasis added). Otherwise, in any "active" matter in which records
are being created during the time period of the search itself an agency would
be subject to a potentially "endless cycle" of searching, see Church of
Scientology, 816 F. Supp. at 1148 (recognizing that "a search could be
a never ending process" (citing Bonner v. United States Dep't of State,
928 F.2d 1148, 1152 (D.C. Cir. 1991) (warning in comparable context that agencies
need to be protected against "an endless cycle of judicially mandated reprocessing")))
-- which would make little or no sense as a practical matter. SeeFOIA
Update, Vol. XVI, No. 3, at 3 (emphasizing an agency's "practical need
to conduct its FOIA operations without any unnecessary administrative burden").
And as for any agency or agency component that of necessity conducts multiple
counterpart searches in distinctly different locations within it, it surely
need not use the same date across the board; rather, for the same reasons of
practicality, it could use the individual dates upon which searches separately
are begun in, or even "tasked to," each distinct such office location. AccordMcGehee, 697 F.2d at 1104 (suggesting that a cut-off based upon the
date that a search is "task[ed]" would not involve "administrative chaos").
is this to say that an agency absolutely must use such a date-of-search cut-off
for all of its requests. SeePub. Citizen, 276 F.3d at 644
(recognizing that an agency may have a "compelling justification for imposing
a date-of-request cut-off on a particular FOIA request"). Indeed, the Court
of Appeals for the District of Columbia Circuit has recognized that "a different
["cut-off" date] might be more suitable for an agency that responds to requests
on a relatively current basis." McGehee, 697 F.2d at 1104; see
alsoPub. Citizen, 276 F.3d at 643 (acknowledging that "specific
circumstances in some agencies may render an across-the-board [date-of-request
cut-off] reasonable"). Similarly, if the request seeks historical records or
concerns a "closed" matter in which no additional records are being created
by the agency, then it makes no difference whether the agency uses a date-of-search
cut-off or a date-of-request cut-off, as the universe of responsive records
would already be settled as of either date. See, e.g., Blazy v.
Tenet, 979 F. Supp. 10, 17 (D.D.C. 1997) (concluding that it was "reasonable
under the circumstances" for the agency to apply a date-of-request cut-off to
a request that sought records concerning events that already had occurred (and
records that already had been created) by the time the request was made), summary
affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998).
if an agency chooses not to use a date-of-search cut-off, it now should be aware
that it may be required to articulate a "compelling justification" for doing
so if challenged in court. Indeed, the D.C. Circuit not long ago signaled exactly
that in its decision in Public Citizen v. Department of State, a case
involving a direct challenge to the State Department's "cut-off" date practices.
See 276 F.3d at 644 (implying that nothing less than a "compelling
justification for imposing a date-of-request cut-off on a particular request"
-- i.e., more than was presented by the State Department in this case -- would
be required in future cases); cf.McGehee, 647 F.2d at 1103-04
(rejecting the agency's arguments that the use of a date-of-search cut-off would
be "unduly burdensome, expensive, or productive of 'administrative chaos'" as
lacking any "detailed substantiation"). So any agency using anything other than
a date-of-search cut-off should continue to do so only if it confidently can
meet this higher standard if challenged in a particular case.
no matter which type of "cut-off" date an agency adopts and ordinarily uses,
it is obliged to inform FOIA requesters of that date. See, e.g., Judicial
Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180,
at *21 (D.D.C. Mar. 31, 2004) ("Because the [agency] imposed the . . .
cut-off date without informing [the requester] of its intention to do so, the
court must conclude that [the agency's] search was inadequate."); see alsoFOIA Update, Vol. IV,
No. 4, at 14 (advising more than two decades ago that "agencies should give
requesters notice of the 'cut-off' dates they use"; cf. McGehee, 697
F.2d at 1105 (expressing doubt that the agency could establish that "it may
'reasonably' use any 'cut-off' date without so informing the requester"). The
most efficient way in which an agency can give such notice is through "constructive
notice" in its published FOIA regulations, see, e.g., 28 C.F.R. §
16.4(a) (Department of Justice FOIA regulation notifying requesters of
its "cut-off" date), and/or through its FOIA Reference Guide on its FOIA Web
site, see 5 U.S.C. § 552(g) (2000) (requiring each agency
to prepare and make publicly available (including electronically) its own guide
for ready use by FOIA requesters in making requests to it); see alsoFOIA Update, Vol.
XIX, No. 3, at 4 (advising that "[a]n agency's FOIA Web site is an excellent
means of affording widespread public availability to its FOIA and Privacy Act
an agency can give actual notice of its "cut-off" date policy in its correspondence
with each FOIA requester individually. See, e.g., Pub. Citizen,
276 F.3d at 634 (noting that State Department provided notice of its "cut-off"
date policy in letters sent to all requesters acknowledging receipt of their
requests); cf. McGehee, 697 F.2d at 1105 (suggesting that actual notice
of an agency's "cut-off" policy might be given where such notice "would involve
an insignificant expenditure of time and effort on the part of the agency").
An agency also can use such a letter whenever it departs from its ordinary practice
for some reason, lest the requester mistakenly be on "constructive notice" to
the contrary. See, e.g., 28 C.F.R. § 16.4(a) (providing
notice of the "cut-off" date that the Justice Department "ordinarily" uses,
and specifying that "if any other date is used, the [Department] shall inform
the requester of that date"). Simply put, a FOIA requester should know what
"cut-off" date is being applied to his request, if for no other reason than
to minimize the chance of any inefficient misunderstanding about what that request
encompasses. See FOIA Update,
Vol. XVI, No. 3, at 3 (reminding agencies of the importance of FOIA requesters
"being fully informed of all such scope matters").
sum, all federal agencies should be mindful of the proper use of "cut-off" dates
in their administration of the FOIA. Only with proper attention to this basic
mechanism for determining a FOIA request's full scope at the outset of their
handling of each request can they be confident that they are consistently, and
thus properly, administering the Act.
attorney Frank P. Menna.(posted 5/6/04)