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Freedom of Information Act Guide, May 2004

FOIA Reading Rooms

Subsection (a)(2) of the FOIA (1) provides for what is commonly referred to as "reading room" access. (2) It applies to certain basic agency records that, while not automatically published under subsection (a)(1) of the Act, (3) must routinely be made "available for public inspection and copying" in agency reading rooms. (4) This public inspection obligation applies to all federal agencies, it governs all records covered by subsection (a)(2) except those "offered for sale," (5) and it extends to the maintenance of "electronic reading rooms" as well. (6) By the same token, records required to be made publicly available pursuant to subsection (a)(2) ordinarily cannot be the subject of regular "FOIA requests." (7)

For the first thirty years of the FOIA's operation, three categories of records -- "final opinions [and] . . . orders" rendered in the adjudication of administrative cases, (8) specific agency policy statements, (9) and certain administrative staff manuals "that affect a member of the public" (10) -- have been made available routinely in agency reading rooms. (11) Such records must be indexed by agencies in order to facilitate the public's convenient access to them. (12)

Routine public access to such records serves to guard against the development of agency "secret law" known to agency personnel but not to members of the public who deal with agencies, so records that have no precedential value and do not constitute the working law of the agency are not required to be made available under this part of the Act. (13) In addition, agencies may "withhold" (i.e., not make available) a subsection (a)(2) record (or portion of such a record) if it falls within a FOIA exemption, just as they can do in response to FOIA requests. (14) Likewise, records that are published and offered for sale by an agency, either directly or indirectly, (15) are not required to be placed in an agency's reading room. (16)

Agencies have made good use of their FOIA reading rooms in achieving efficient "affirmative" disclosure of records that otherwise might be sought through less efficient FOIA requests. (17) In so doing, though, they must be mindful of the distinction between subsection (a)(2) records (i.e., "reading room" records) and subsection (a)(3) records (i.e., records subject to standard "FOIA requests") under the Act. (18)

The Electronic Freedom of Information Act Amendments of 1996 (19) heavily modified the requirements of subsection (a)(2) by creating a fourth category of "reading room" records, (20) and by establishing a requirement for the electronic availability of "reading room" records in what are referred to as "electronic reading rooms." (21) The Electronic FOIA amendments greatly elevated the role of agency reading rooms -- and, in turn, agency sites on the World Wide Web -- in the processes of FOIA administration. (22)

First, in addition to the traditional three categories of "reading room" records discussed above, agencies must also include any records processed and 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." (23) Under this provision, when records are disclosed in response to a FOIA request, an agency is required to determine whether they have been the subject of multiple FOIA requests (i.e., two or more additional ones) or, in the agency's best judgment based upon the nature of the records and the types of requests regularly received, are likely to be the subject of multiple requests in the future. (24)

Inasmuch as this requirement by definition begins with the processing of records disclosed in response to a FOIA request, and then is met by multiple other such "requests," (25) it is either the receipt or the anticipation of the third such request that triggers it. (26) If either is the case, (27) then those records in their FOIA-processed form become "reading room" records, (28) which must automatically be made available to potential FOIA requesters. (29) Ideally, this availability will satisfy much of the future public demand for those processed records in a more efficient fashion. (30) Nevertheless, any subsequent FOIA request received for such records has to be responded to in the regular way as well, if the requester so chooses. (31)

Second, the Electronic FOIA amendments require agencies to use electronic information technology to enhance the availability of their "reading room" records: Agencies must make the records created by them on or after November 1, 1996 (32) in all four "reading room" categories available to the public by "electronic means." (33) The Electronic FOIA amendments embodied a strong statutory preference that electronic availability be provided by agencies in the form of online, Internet access -- which is most efficient for both agencies and the public alike (34) -- and this expectation has been met by the development of agency FOIA sites on the World Wide Web. (35)

Under the Electronic FOIA amendments, all federal agencies have FOIA sites on the World Wide Web to serve this "electronic reading room" function, (36) as well as for other FOIA-related purposes. (37) This is a matter of great and growing importance to the processes of FOIA administration. (38) Agencies of such size that they contain sub-agencies or major agency components that administer the FOIA on a decentralized basis and have their own Web sites may maintain multiple "electronic reading rooms," so long as they are linked together clearly and efficiently for Web site users. (39)

Agencies therefore must maintain in their conventional "paper" reading rooms copies of any FOIA-processed records determined to fall within the fourth subsection (a)(2) category, (40) and must identify such records that were created by them on or after the November 1, 1996 "cut-off" date in order to make them available through their "electronic reading rooms" as well. (41) In doing so, they should be mindful that some of the records falling under this fourth category might not have been created by the agency and instead might have been generated elsewhere; while such records may be determined by the agency to fall within subsection (a)(2)(D), they are not "created" by the agency and should not be regarded as subject to the electronic availability requirement. (42) However, an agency may as a matter of administrative discretion choose to make such records available electronically even though they were not generated by the agency, or not created after November 1, 1996, when to do so would be most cost-effective in serving public access needs under subsection (a)(2)(D). (43) Agencies also may make a wide range of other records available through their general World Wide Web sites as a matter of administrative discretion, but in doing so they should make sure that all possible security concerns regarding these records have been carefully considered. (44)

Agencies also should make clear to the users of their "electronic reading rooms" that while all of their subsection (a)(2) records are available in their conventional reading rooms, (45) generally only those records created on or after November 1, 1996 are available in their electronic ones. (46) In addition, they should utilize indices to facilitate use of both types of reading rooms; (47) indeed, they are required by the Electronic FOIA amendments to maintain indexes of the FOIA-processed records in the fourth "reading room" category and to make them available on their FOIA Web sites. (48)

In sum, all agencies should continue to be vigilant in maintaining and augmenting their FOIA Web sites in order to ensure consistent compliance with the Electronic FOIA amendments' important electronic availability requirements. (49)

    1 5 U.S.C. 552(a)(2) (2000).

    2 See FOIA Update, Vol. XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)").

    3 5 U.S.C. 552(a)(1) (providing for Federal Register publication of very basic agency information, as discussed under Introduction, above).

    4 Id. 552(a)(2); see Jordan v. United States Dep't of Justice, 591 F.2d 753, 756 (D.C. Cir. 1978) (en banc) (observing that subsection (a)(2) records must be made "automatically available for public inspection; no demand is necessary"); see also FOIA Update, Vol. XVIII, No. 1, at 4 (advising that large agencies with decentralized FOIA operations may maintain separate reading rooms for agency components).

    5 5 U.S.C. 552(a)(2).

    6 See FOIA Update, Vol. XVII, No. 4, at 1-2 (describing "electronic reading room" requirements under Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048).

    7 See 5 U.S.C. 552(a)(3)(A) (stating general rule that "FOIA request" under subsection (a)(3) cannot be made for any record that is "made available" under subsections (a)(1) or (a)(2)); see also United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 152 (1989) ("Under subsection (a)(3) . . . an agency need not make available those materials that have already been disclosed under subsections (a)(1) and (a)(2)."); Schwarz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S. App. LEXIS 4609, at *1 (D.C. Cir. Feb. 22, 1996) (finding that agency was not required to disclose records from patent files in response to a subsection (a)(3) request because patent files are available for public inspection and copying under subsection (a)(2)); Crews v. Internal Revenue, No. 99-8388, slip op. at 11-12 (C.D. Cal. Apr. 26, 2000) (declaring that policy statements and administrative staff manuals made available under subsection (a)(2) are not required to be made available in response to subsection (a)(3) requests); Reeves v. United States, No. 94-1291, 1994 WL 782235, at **1-2 (E.D. Cal. Nov. 16, 1994) (dismissing lawsuit because FOIA requests sought publicly available agency regulations). But see FOIA Update, Vol. XVIII, No. 1 at 3 (advising of major exception to general rule for records falling within subsection (a)(2)(D)).

    8 5 U.S.C. 552(a)(2)(A); see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155-59 (1975) (holding that NLRB "advice and appeals" memorandum deciding not to file unfair labor complaint was "final opinion" when decision not to file effectively put an end to formal complaint procedure); Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 603 (D.C. Cir. 2001) (finding that agency report of voluntarily conducted internal investigation into propriety of Rocky Flats prosecution was not "final opinion" because determination of propriety of prosecution was neither "case" nor "adjudication"); Nat'l Prison Project v. Sigler, 390 F. Supp. 789, 792-93 (D.D.C. 1975) (determining that parole board decisions denying inmate applications for parole were "reading room" records).

    9 5 U.S.C. 552(a)(2)(B); see, e.g., Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1977) (stating that Social Security Ruling providing examples of medical conditions to be treated as "per se nonsevere" fell under subsection (a)(2)(B)); Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 2001 U.S. Dist. LEXIS 3492, at *90 (W.D. Pa. Feb. 7, 2001) (holding that HHS documents that advised regional offices of agency's view on policy matters pertaining to certain welfare programs were "interpretations adopted by the agency"); Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259, at *9 (D.D.C. Mar. 15, 1996) (holding that IRS Field Service Advice Memoranda, even though not binding on IRS personnel, were "statements of policy"), aff'd on other grounds, 117 F.3d 607 (D.C. Cir. 1997); Pub. Citizen v. Office of United States Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992) (concluding that agency submissions to a trade panel containing an agency's interpretation of U.S.'s international legal obligations were "statements of policy and interpretations adopted by the [agency]"); see also Vietnam Veterans of Am. v. Dep't of the Navy, 876 F.2d 164, 165 (D.C. Cir. 1989) (finding that opinions in which Judge Advocates General of Army and Navy have authority only to dispense legal advice -- rendered in subject areas for which those officials do not have authority to act on behalf of agency -- were not "statements of policy or interpretations adopted by" those agencies and were not required to be published or made available for public inspection).

    10 5 U.S.C. 552(a)(2)(C); see, e.g., Sladek v. Bensinger, 605 F.2d 899, 901 (5th Cir. 1979) (finding DEA agents' manual concerning treatment of confidential informants and search warrant procedures to be subsection (a)(2)(C) record); Stokes v. Brennan, 476 F.2d 699, 701 (5th Cir. 1973) (determining that "Training Course for Compliance Safety and Health Officers," including all instructor and student manuals, training slides, films, and visual aids, must be made available for public inspection and copying); Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1364-65 (N.D. Ohio 1976) (ruling that memoranda approved by Office of Standards Enforcement, which set forth agency's policy regarding sampling plans that office must follow when tire fails lab test under Federal Motor Vehicle Safety Standards, were "reading room" records); see also Stanley v. DOD, No. 98-CV-4116, slip op. at 9-10 (S.D. Ill. June 22, 1999) (finding that administrative staff manuals pertaining to military hospital procedures did not "affect the public" and were not required to be given "reading room" treatment), appeal stayed, No. 99-2848 (7th Cir. Apr. 19, 2000).

    11 See FOIA Update, Vol. XIII, No. 3, at 4 (describing categories of records required to be placed in agency reading rooms).

    12 See 5 U.S.C. 552(a)(2); see, e.g., Irons & Sears v. Dann, 606 F.2d 1215, 1223 (D.C. Cir. 1979) (requiring agency to provide "reasonable index" of requested decisions); Taxation With Representation Fund v. IRS, 2 Gov't Disclosure Serv. (P-H) 81,028, at 81,080 (D.D.C. Apr. 22, 1980) (recognizing agency's "continuing duty" to make subsection (a)(2) records and indices available); see also Pa. Dep't of Pub. Welfare, 2001 U.S. Dist. LEXIS 3492, at *82 (finding agency in violation of indexing requirement because index was incomplete and it was "nearly impossible" to distinguish precedential material from obsolete material). See generally FOIA Update, Vol. XVII, No. 4, at 2 (discussing statutory indexing requirements under Electronic FOIA amendments). But cf. Tax Analysts v. IRS, No. 94-923, 1998 WL 419755, at *5 (D.D.C. May 1, 1998) (concluding confusingly that court has "no statutory authority for actually ordering . . . a remedy" regarding indexing requirement), appeal dismissed voluntarily, No. 94-5252 (D.C. Cir. Aug. 11, 1998).

    13 See Sears, 421 U.S. at 153-54 (observing that the reading room provision "represents a strong congressional aversion to 'secret [agency] law,' . . . and represents an affirmative congressional purpose to require disclosure of documents which have 'the force and effect of law'" (quoting H.R. Rep. No. 89-1497, at 7 (1966))); Skelton v. USPS, 678 F.2d 35, 41 (5th Cir. 1982) ("That requirement was designed to help the citizen find agency statements 'having precedential significance' when he becomes involved in 'a controversy with an agency.'" (quoting H.R. Rep. No. 89-1497, at 8)); Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 19 (Feb. 1975) (explaining that the "primary purpose of subsection (a)(2) was to compel disclosure of what has been called 'secret law,' or as the 1966 House Report put it, agency materials which have 'the force and effect of law in most cases'" (quoting H.R. Rep. No. 89-1497, at 7)); Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 15 (June 1967) [hereinafter Attorney General's 1967 FOIA Memorandum] (advising that keeping "orders available in reading rooms . . . [that] have no precedential value, often would be impracticable and would serve no useful purpose"); see also Smith v. NTSB, 981 F.2d 1326, 1328 (D.C. Cir. 1993) (stating that the purpose of this "requirement is obviously to give the public notice of what the law is so that each individual can act accordingly"); Vietnam Veterans of Am., 876 F.2d at 165 (rejecting argument that legal opinions issued by Judge Advocates General of Army and Navy must be placed in agency reading room, because those opinions are not statements of policy that "operate as law"); Pa. Dep't of Pub. Welfare, 2001 U.S. Dist. LEXIS 3492, at *78 (holding that a FOIA reading room index "must include those matters that the agency considers to be of precedential value"); Stanley, No. 98-CV-4116, slip op. at 9-10 (S.D. Ill. June 22, 1999) (holding that administrative staff manuals that do not have any "precedential significance" and would not assist members of the public in "tailor[ing] their behavior to the law" are not required to be made publicly available in an agency reading room). But see Nat'l Prison Project, 390 F. Supp. at 793 (ruling otherwise prior to Supreme Court's instructive emphasis on legislative history of subsection (a)(2) in Sears); Tax Analysts & Advocates v. IRS, 362 F. Supp. 1298, 1303 (D.D.C. 1973) (same), modified & remanded on other grounds, 505 F.2d 350 (D.C. Cir. 1974).

    14 See, e.g., Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979) (applying commercial privilege to subsection (a)(1) record and recognizing that subsection (a)(2) records likewise may be protected by FOIA exemptions); Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 n.21 (1975) (acknowledging that subsection (a)(2) records may be protected by FOIA exemptions); Sears, 421 U.S. at 160 (finding it unnecessary to decide whether documents were subsection (a)(2) records, because attorney work-product privilege protected them in any event); Sladek, 605 F.2d at 901 (applying Exemption 2 to portions of subsection (a)(2)(C) record); Tax Analysts, 1996 U.S. Dist. LEXIS 3259, at **9-10 (applying attorney work-product privilege to subsection (a)(2)(B) records); see also FOIA Update, Vol. XIII, No. 3, at 4 (advising that "an agency may withhold any record or record portion falling within subsection (a)(2) . . . if it is of such sensitivity as to fall within a FOIA exemption"); cf. 5 U.S.C. 552(a)(2) (containing language regarding protection of "personal privacy" that, beyond being redundant, became compounded by illogical reference to "copies of records referred to in [subsection (a)(2)(D)]" upon enactment of Electronic FOIA amendments in 1996).

    15 See, e.g., FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted 8/30/02) (describing operation of National Technical Information Service (commonly known as "NTIS") in governmentwide process of record dissemination); Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10,018 (1987) (recognizing NTIS as "statutor[il]y-based" government record distribution program); cf. White House Memorandum for Heads of Executive Departments and Agencies Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002) [hereinafter White House Homeland Security Memorandum], reprinted in FOIA Post (posted 3/21/02) (requiring agencies to exercise special care in distributing information through Defense Technical Information Center (commonly known as "DTIC"), particularly regarding information relating to development of weapons of mass destruction, in light of heightened homeland security concerns).

    16 See, e.g., Gaunce v. Burnett, 849 F.2d 1475, 1475 (9th Cir. 1988) (unpublished opinion inexplicably characterized as "table decision") (finding assessment of $13.25 for copy of FAA order proper, notwithstanding its subsection (a)(2) character, because "FOIA allows copies of orders to be 'offered for sale'"); Jackson v. Heckler, 580 F. Supp. 1077, 1081 (E.D. Pa. 1984) (holding that Social Security Ruling relied on by administrative law judge need not be made "available for inspection and copying" pursuant to subsection (a)(2)(B) because it was "published for sale"); see also FOIA Update, Vol. XVII, No. 4, at 1 (noting that "reading room" obligation does not apply to any records that "are promptly published and [are] offered for sale" (quoting 5 U.S.C. 552(a)(2))); Attorney General's 1967 FOIA Memorandum 15 (noting that "[t]his is to afford the agency 'an alternative means of making these materials available through publication'" (quoting S. Rep. No. 89-813, at 7 (1966))); cf. NARA v. Favish, 124 S. Ct. 1570, 1579 (2004) (evincing the Supreme Court's reliance on "the Attorney General's consistent interpretation of" the FOIA in successive such Attorney General memoranda).

    17 See, e.g., FOIA Update, Vol. XVI, No. 1, at 1-2 (promoting "affirmative" agency disclosure practices through "reading room" access, among other means); FOIA Update, Vol. XIX, No. 1, at 1 (discussing Department of the Air Force affirmative electronic information disclosure program); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (emphasizing that bringing any "pre-existing reading room availability" to "FOIA requesters' attention . . . could be a basis for resolving their requests most efficiently").

    18 See, e.g., FOIA Update, Vol. XVI, No. 1, at 2 (reminding that "an agency cannot convert a subsection (a)(3) record into a subsection (a)(2) record (which cannot be the subject of a FOIA request under subsection (a)(3)) just by voluntarily placing it into its reading room"); FOIA Update, Vol. XII, No. 2, at 5 (advising that FOIA requesters may not be deprived of subsection (a)(3) access rights through voluntary "reading room" availability). But cf. Tax Analysts, 1998 WL 419755, at *4 (failing to apprehend statutory distinction between records subject to subsection (a)(2) and those subject to subsection (a)(3)).

    19 Pub. L. No. 104-231, 110 Stat. 3048.

    20 See 5 U.S.C. 552(a)(2)(D).

    21 See id. 552(a)(2); see also FOIA Update, Vol. XIX, No. 4, at 4-5 (emphasizing importance of "electronic reading rooms" in satisfying FOIA obligations); FOIA Update, Vol. XVII, No. 4, at 1-2 (discussing statutory changes).

    22 See FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01) (advising of growing attention being paid to agencies' "electronic reading rooms"); see also FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (describing results of GAO's updated review of agency compliance with "electronic reading room" requirements); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (describing GAO report's emphasis on agency compliance with "electronic reading room" obligations); FOIA Update, Vol. XIX, No. 3, at 1 (describing 1998 congressional hearing on agency amendment-implementation activities).

    23 5 U.S.C. 552(a)(2)(D).

    24 See FOIA Update, Vol. XVIII, No. 1, at 3-4 (advising on processes for exercise of agency judgment under fourth "reading room" category).

    25 5 U.S.C. 552(a)(2)(D) (speaking of "requests" in plural form, above and beyond FOIA request already received).

    26 See FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (explaining the "rule of three" that is employed to determine the applicability of subsection (a)(2)(D)); see also FOIA Update, Vol. XVII, No. 4, at 1 (describing subsection (a)(2)(D) obligations); FOIA Update, Vol. XVIII, No. 1, at 3-4 (same). But see FOIA Update, Vol. XVIII, No. 2, at 2 (advising that agencies need not include records processed for "flurry" of contemporaneous multiple requests when they are not likely to be requested again -- e.g., requests for certain types of routine government contract submissions); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (addressing the "comparable circumstances" in which agencies may determine likewise in the fullness of time).

    27 See FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (discussing placement of records in a reading room based upon the subsection's "likely to become the subject of subsequent requests" standard).

    28 See id. (reminding that "an agency's (a)(2)(D) obligation arises only with respect to any FOIA-processed record that is disclosed at least in some part," and at the same time advising that with slightly different multiple requests only "'overlap' records" are included within the obligation).

    29 See FOIA Update, Vol. XVII, No. 4, at 1-2 (discussing operation of subsection (a)(2)); see also FOIA Update, Vol. XIX, No. 1, at 3-4 (compilation of OIP policy guidance regarding "reading room" matters); cf. Tax Analysts, 1998 WL 419755, at **4, 6 (requiring agency to place exceptionally large volume of FOIA-processed records in reading room on weekly basis, as they are processed, rather than all at once at conclusion of lengthy processing period). But see FOIA Update, Vol. XVIII, No. 1, at 3 (cautioning that any information about any first-party requester that would not be disclosed to any other FOIA requester, such as information protected by Privacy Act of 1974, 5 U.S.C. 552a (2000), or Trade Secrets Act, 18 U.S.C. 1905 (2000), would not be appropriate for automatic public disclosure under fourth "reading room" category).

    30 See FOIA Update, Vol. XVIII, No. 2, at 2 (citing H.R. Rep. No. 104-795, at 21 (1996)); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (discussing underlying purpose of fourth "reading room" category); FOIA Update, Vol. XVII, No. 4, at 1 (emphasizing connection between fourth "reading room" category and "electronic reading room" mechanism in meeting public access demands); cf. President's Statement on Signing the Electronic Freedom of Information Act Amendments of 1996, 32 Weekly Comp. Pres. Doc. 1949 (Oct. 7, 1996), reprinted in FOIA Update, Vol. XVII, No. 4, at 9 (expressing "hope that there will be less need to use FOIA to obtain government information").

    31 See FOIA Update, Vol. XVIII, No. 1, at 3 (advising that while ordinary rule is that records placed in reading room under subsection (a)(2) cannot be subject of regular FOIA request, Congress made clear that such rule does not apply to fourth "reading room" category of FOIA-processed records (citing H.R. Rep. No. 104-795, at 21 (1996))); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (advising that "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").

    32 See 5 U.S.C. 552(a)(2); see also FOIA Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03); FOIA Update, Vol. XVIII, No. 1, at 4-5.

    33 5 U.S.C. 552(a)(2); see also FOIA Update, Vol. XVIII, No. 1, at 3 (advising that records made available in "electronic reading rooms" must nevertheless be made available in conventional "paper" reading rooms as well (citing H.R. Rep. No. 104-795, at 21 (1996))).

    34 See 5 U.S.C. 552(a)(2) (stressing use of "computer telecommunications," and establishing absolute requirement of Internet use by all agencies); see also FOIA Update, Vol. XIX, No. 4, at 4-5 (emphasizing importance of "new partnership" between agency FOIA officers and agency Information Technology (IT) personnel to achieve efficient disclosure through electronic means); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing efficiency of online public access).

    35 See FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (discussing GAO conclusion that agencies are not devoting sufficient attention to on-line electronic availability requirements); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (recognizing universal development of agency FOIA Web sites, but nonetheless urging "careful vigilance in both the establishment and the augmentation of agency FOIA Web sites with the passage of time").

    36 5 U.S.C. 552(a)(2); see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (recognizing that all federal agencies now have established Web sites for FOIA purposes); FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update, Vol. XIX, No. 2, at 2 ("Web Site Watch" discussion of agency FOIA Web sites); FOIA Update, Vol. XIX, No. 1, at 2 (same); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing early agency development of World Wide Web sites for FOIA-related purposes, including "electronic reading rooms").

    37 See, e.g., 5 U.S.C. 552(e)(2) (setting forth requirement that each agency make its annual FOIA report available to public electronically); see also FOIA Update, Vol. XIX, No. 3, at 3-4 (recommending basic elements and features of agency FOIA Web sites, including vitally important ability to access agency's FOIA Web site directly from agency's main home page); cf. FOIA Update, Vol. XIX, No. 1, at 6 (encouraging agencies to consider as matter of administrative discretion establishing capability to receive FOIA requests via Internet).

    38 See FOIA Update, Vol. XIX, No. 4, at 5 (observing that "an agency's FOIA Web site has become an essential means by which its FOIA obligations are satisfied," so FOIA Web site support "should be a primary mission of each agency's IT staff"); FOIA Update, Vol. XIX, No. 3, at 1 (describing congressional interest in agency Web site development for purposes of FOIA administration); id. at 1, 3 (describing governmentwide attention to same). See generally FOIA Post, "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02).

    39 See FOIA Update, Vol. XIX, No. 3, at 3 (advising that "[c]larity to the [W]eb site user is essential to the effectiveness of the site"); FOIA Update, Vol. XIX, No. 1, at 6 (advising on use of FOIA Web sites by all agency components "once an agency has established its World Wide Web capability"); FOIA Update, Vol. XVIII, No. 1, at 4 (advising that agencies with separate "electronic reading rooms" for separate components "should ensure that [they] are linked together electronically so as to facilitate efficient user access"); see also FOIA Update, Vol. XIX, No. 3, at 4 (recommending that agencies check both accuracy and viability of their FOIA Web site links and text content of their FOIA Web site home pages on regular basis).

    40 See 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"); FOIA Update, Vol. XVIII, No. 1, at 4 (advising that agencies may determine that records no longer fall within fourth "reading room" category after passage of time); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (advising that agencies "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").

    41 See FOIA Update, Vol. XVIII, No. 1, at 5 (advising that redaction of record during FOIA processing does not amount to record "creation" for purposes of determining applicability of electronic availability requirement); see also FOIA Update, Vol. XVII, No. 4, at 2 (observing that in case of FOIA-processed records, very large proportion of those records will have been created prior to November 1, 1996 "cut-off" date, until long after Electronic FOIA amendments' initial implementation, and therefore will not be subject to electronic availability requirement); cf. FOIA Post, "Use of 'Cut-Off' Dates in FOIA Searches" (posted 5/6/04) (advising in comparable FOIA-request context that "scope" of agency's search obligation "has both substantive and temporal aspects").

    42 See FOIA Update, Vol. XVIII, No. 1, at 4-5 (citing United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989)); see also 63 Fed. Reg. 29,591, 29,592 (June 1, 1998) (discussing Department of Justice regulation on point, currently at 28 C.F.R. 16.2(c) (2004)).

    43 See FOIA Update, Vol. XIX, No. 1, at 4; see, e.g., FOIA Update, Vol. XIX, No. 3, at 5. But see FOIA Update, Vol. XVIII, No. 1, at 5 (cautioning agencies to guard against possibility that "electronic reading room" treatment of record generated by outside party might be regarded as copyright infringement by that party).

    44 See, e.g., White House Homeland Security Memorandum, reprinted in FOIA Post (posted 3/21/02) (requiring agencies to ensure appropriate protection of information relating to weapons of mass destruction and of other sensitive homeland security-related information); accord Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (urging agencies to "carefully consider" the protection of fundamental societal values, including "safeguarding our national security").

    45 See FOIA Update, Vol. XVIII, No. 1, at 3 (advising agencies of utility of using computer terminals to meet statutory obligation, thus beginning trend that is becoming universal among agencies).

    46 See FOIA Update, Vol. XIX, No. 3, at 4; FOIA Update, Vol. XVII, No. 4, at 2; see also FOIA Update, Vol. XVIII, No. 2, at 2 (advising agencies on practical treatment of written signatures on adjudicatory orders for "electronic reading room" purposes).

    47 See FOIA Update, Vol. XIX, No. 3, at 4 (recommending use of "visible links" for electronic indexing purposes); cf. FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing early agency use of home pages and electronic links for FOIA-related purposes on agency World Wide Web sites).

    48 5 U.S.C. 552(a)(2)(E); cf. FOIA Update, Vol. XVIII, No. 3, at 3-7 (setting forth Justice Department guidelines for agency preparation and submission of revised form of annual FOIA reports, as required to be prepared by all agencies electronically and made available on FOIA Web sites); FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies on proper FOIA Web site treatment of annual FOIA reports, in compliance with electronic availability requirements of 5 U.S.C. 552(e)(2)-(3), including through agency identification of URL (Uniform Resource Locator) for each report); see also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03) (providing additional guidance regarding posting of annual FOIA reports).

    49 See FOIA Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03) (urging agencies to "redouble their efforts to ensure complete E-FOIA compliance"); FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (discussing continued congressional focus on governmentwide implementation of FOIA's electronic availability requirements); FOIA Post, "FOIA Officers Conference Scheduled" (posted 9/17/02) (scheduling governmentwide FOIA officers conference to focus on 2002 GAO Report as "basis for all agencies to review and improve wherever necessary their compliance with E-FOIA's requirements"); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (advising that agencies must take all steps necessary to "both attain[] and maintain[] proper compliance with all of [the FOIA's] electronic availability requirements"); FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01) (identifying prospective GAO report as "excellent basis upon which all agencies can review their E-FOIA implementation compliance").

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