Proactive disclosures are records made publicly available by agencies without specific requests from the public. These disclosures are an integral part of the Freedom of Information Act. All federal agencies are required to affirmatively and continuously disclose records described by subsection (a)(2) of the FOIA, which applies to four categories of agency records that must routinely be made "available for public inspection and copying." These four categories of records include:
(1) "final opinions [and] . . . orders" rendered in the adjudication of administrative cases;
(2) specific agency policy statements;
(3) certain administrative staff manuals; and,
(4) since March 31, 1997, records disclosed in response to a FOIA request that "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records."
For any subsection (a)(2) record created by federal agencies on or after November 1, 1996, the FOIA requires that it be made available electronically. The Department of Justice accomplishes this electronic availability through the use of its website, including through the use of “electronic Reading Rooms.” Department components may also maintain paper copies of subsection (a)(2) documents which are available for inspection and copying. It should be noted that not all components will create records in each subsection (a)(2) category. Also, while the FOIA requires that the Department proactively discloses only the above four categories of records, each component may at its discretion -- and is encouraged to -- include other types of records.
Notably, the President, in his FOIA Memorandum, has directed agencies to "take affirmative steps to make information public” without waiting for specific requests, and, to “use modern technology to inform citizens about what is known and done by their Government.”
This directive, echoed by the Attorney General in his FOIA Guidelines, is both a reaffirmation of, and an expansion upon, the long-standing proactive disclosure provision of the FOIA. In keeping with this emphasis on disclosing information proactively, the Department has made a great deal of information available throughout this website, on individual components’ websites, and on data.gov.
For more information on proactive disclosures under the FOIA, you may wish to review the Office of Information Policy’s slide presentation, Achieving Transparency through Proactive Disclosures and the Use of Technology.