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FOIA Post (2004): The Limits of Agency Translation Obligations Under the FOIA

Wednesday, December 1, 2004

The Limits of Agency Translation Obligations Under the FOIA

A question that recently has come up with increasing frequency at the Office of Information and Privacy's FOIA-training programs is whether the Freedom of Information Act requires agencies to make translations of records that are written in a language other than English. As sometimes is the case under the FOIA, there is no simple "yes" or "no" answer to this question. Rather, as is explained in detail below, the answer is "sometimes yes, sometimes no," depending upon the particular type of FOIA activity that is involved.

This question can most easily be broken down into three different parts, according to three distinctly different aspects of responding to a FOIA request: (1) determining which records are responsive to the request; (2) considering the applicability of any exemption that might warrant withholding all or portions of those records; and (3) providing nonexempt records or record portions to the requester. Generally speaking, translation into English ought to be undertaken where necessary for this first aspect of FOIA administration, it usually needs to be undertaken for the second, and it need not be undertaken for the third. And, of course, an agency's translation efforts in these first two situations could involve either the creation of a translated counterpart document itself or the simpler act of having bilingual FOIA personnel (or a FOIA officer working together with a translator called in for the occasion) perform the required FOIA analysis.

Determining Responsiveness

The process of determining which of an agency's records are responsive to a FOIA request is the first point at which a "translation issue" might arise. This is a stage of FOIA request handling in which an agency owes a strong obligation to FOIA requesters, a duty "to pay careful attention to the records and information that they include as responsive to a FOIA request in the first place." FOIA Update, Vol. XVI, No. 3, at 3 ("OIP Guidance: Determining the Scope of a FOIA Request"). After all, "if something is not included by an agency for purposes of a FOIA request to begin with, then that alone will mean that it cannot be disclosed in response to that request." Id. Consequently, an agency may be obligated to take special translation steps where those steps are necessary in order for agency FOIA personnel to determine whether a particular record or group of records fairly falls within a request's scope. Simply put, if there is good reason to believe that a record might well be responsive to a request, then an agency cannot just discard it from consideration for lack of understanding its foreign-language contents. This is a matter of an agency's basic obligation to a FOIA requester.

At the same time, however, this obligation is not unlimited. Indeed, a FOIA request that cannot be handled without a good deal of translation effort is not likely to be a "reasonably described" request that triggers any agency FOIA obligation to begin with. The Act is not one-sided: It places an obligation on FOIA requesters to "reasonably describe" the records that they seek, 5 U.S.C. Â§ 552(a)(3)(A) (2000), which means that a request must be one that allows a professional employee of an agency "to locate [responsive records] with a 'reasonable amount of effort.'" Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 50 & n.74 (quoting H.R. Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271).

A FOIA request can readily run afoul of this statutory requirement if it seeks records under such circumstances that an agency would have to undertake an unreasonable amount of translation effort even to determine which records are responsive to it, let alone anything else. See Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978) (holding that an agency is not required to undertake an "unreasonably burdensome search" for responsive records). For example, if a requester were to focus on a multitude of Iraqi documents recently coming into the possession and control of the Department of Defense in Iraq -- documents written in Farsi -- and ask for access to some content-based subset of them, then that would hardly be a "reasonably described" request under the circumstances. In this context, the activity of "locating" records would, in effect, mean "translating" them (as well as many surrounding ones) first. Cf. Krohn v. Dep't of Justice, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (pointing out that "it would be necessary to transcribe a [court] reporter's notes" in order to locate responsive records, which "[t]he agency cannot be compelled" to do).

To be sure, even in some large-volume cases involving foreign-language records, agencies might find it possible to determine which ones are responsive to a particular FOIA request by using means other than translation. Sometimes the very physical location of a group of records can be its defining characteristic, at least in a way that is satisfactory to a FOIA requester, in which case translation for this threshold FOIA purpose will not be an issue. Agencies should work together with requesters to pursue the possibility that any other means of determining responsiveness, short of onerous translation, can be adequate to the task. Cf. FOIA Update, Vol. XVI, No. 3, at 4 (advising of the advantages of "full and open communication with the FOIA requester" in comparable situations).

Determining Exemption Applicability

The second aspect of FOIA administration to which translation might pertain is that of applying FOIA exemptions to records that have been found to be responsive to a request. Here any translation that might be undertaken would not be for the benefit of the requester. Rather, because the records in question will have been determined to be responsive records, the dynamic of this situation is such that these records must be disclosed unless the agency reasonably can conclude otherwise. In other words, the agency bears the burden of tying a record's contents to one or more exemptions or else it must be disclosed -- so any translation that is necessary to facilitate that enterprise is a matter of the agency's interest, not the requester's.

This presents an agency with multiple choices. An agency might choose to forego obtaining a translation, and to simply disclose a record "in the dark," so to speak -- but that would leave it at risk of possibly disclosing sensitive information that, if the record were written in English, would readily be withheld as exempt. Especially given that several of the FOIA's exemptions protect the outside interests of third parties -- such as business interests under Exemption 4 and personal privacy interests under Exemptions 6 and 7(C), not to mention interests protected by statutory prohibitions -- this usually is not a wise idea. Only where an agency can be entirely confident of such a record's contents based upon surrounding circumstances -- such as location, place of creation, or comparable translations of similar records -- should this choice be made.

An agency might see as a second choice the possibility of withholding a record in its entirety, simply for lack of any confidence that it is not sensitive in some respect. But this is not a good choice. In fact, it is no choice at all, because an agency is obliged not to act on bare fear or total speculation when invoking a FOIA exemption. If any agency were to do so, then that action ought to be reversed on administrative appeal. And if a FOIA request were to proceed to litigation in a case in which records were withheld without the agency's knowledge of their contents, then that case could not properly be defended. Cf. Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1082 n.10 (9th Cir. 2004) (criticizing agency counsel for being "totally unfamiliar with" basis for claimed exemption applicability). In short, this approach ought not be taken.

As a general rule, the best choice for agencies is to bear the translation burden here, to undertake whatever amount of translation is necessary for a proper judgment to be reached regarding record sensitivity and for exemptions to be applied, or not, accordingly. Again, this is not for the requester's benefit, it is for the agency's. So if it is more efficient for an agency to arrange for a bilingual document reviewer to perform this FOIA analysis, rather than have a translator prepare a translation document, then so be it. Either way, of course, the enterprise involved can reasonably be regarded as part of the agency's "review" costs -- which means that any such special "translation" costs to the agency can be charged to the requester if he, she, or it is a "commercial use" requester. See 5 U.S.C. Â§ 552(a)(4)(A)(ii)(I), (iv); see also Uniform Freedom of Information Act Fee Schedule and Guidelines (OMB Fee Guidelines), 52 Fed. Reg. 10012, 10017 (Mar. 27, 1987) (specifying that the term "review" includes "doing all that is necessary to excise" responsive records).

Providing Records

Lastly, there is the part of the FOIA process that can present the greatest difficulty when it comes to possible document translation -- the disclosure of nonexempt records to the requester, in one language or another. Here the question is not whether the agency should take some translation step in order to reach a proper judgment in processing a FOIA request. Instead, it is a question of whether the agency is obliged to provide a requester with more than what the requested record contains on its face -- a translation that makes the record's contents readily readable to that requester. The simple answer to this question is "no," there is no such obligation under the FOIA. See, e.g., Gabel v. Comm'r, 879 F. Supp. 1037, 1039 (N.D. Cal. 1994) ("The government's responsibility under FOIA is . . . not to revamp documents or to generate exegeses so as to make them comprehensible to a particular requester."); Diamond v. FBI, 487 F. Supp. 774, 776-79 (S.D.N.Y. 1980) (finding a FOIA requester's demand that an agency provide explanatory materials for disclosed records to be a "burden [that] is both unduly heavy and unauthorized by the Act").

To be sure, agencies may create translation documents for FOIA requesters if they choose to do so as a matter of their administrative discretion. See generally Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 683-91 & nn.9-48 (describing the limits of agency discretion under the FOIA). And it also must be remembered that an agency that opts to create a translation counterpart to a requested record for purposes of determining either responsiveness or exemption status will have created a record that itself could become the subject of a future FOIA request. See, e.g., McDonnell v. United States, 4 F.3d 1227, 1244 (3d Cir. 1993) (noting that where the agency "would have had to translate" a requested record already, providing a translation to the requester would involve no significant burden) (dicta). (Of course, that new record itself could be provided to the original requester by the agency as a matter of administrative discretion, unless that requester is an extremely rare one who actually prefers to receive the requested record in its original, foreign-language version.)

But as a sound general rule, FOIA requesters who seek access to records that do not exist in a language known to them (in some cases even including computer languages) must make their own arrangements for any translation that they might require. Accord Essential Info., Inc. v. United States Info. Agency, 134 F.3d 1165, 1172 (D.C. Cir. 1998) (Tatel, J., dissenting) (observing that, as compared to another statute, "[the] FOIA contains no similar translation requirement"); see also FOIA Update, Vol. V, No. 1, at 5; cf. Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985) (refusing to order an agency to perform "personal services" for a FOIA requester experiencing a "language [barrier] in Panama"). This should not be confused with an agency's general obligation to a FOIA requester when it is producing "a photocopy of a record that is a poor copy or is not entirely legible." FOIA Update, Vol. XVI, No. 3, at 5. Nor should it be mistaken for the situation in which a requester might seek to have nonexempt records disclosed in a new form or format of his or her choosing under the provision of the 1996 FOIA amendments, found at 5 U.S.C. Â§ 552(a)(3)(B), that speaks to that. See FOIA Update, Vol. XVIII, No. 1, at 5. Translations are not "readily reproducible" within the meaning of that provision. See id.; see also 5 U.S.C. Â§ 552(a)(4)(B) (explicitly establishing a standard of special deference to agency determinations of "reproducibility under [FOIA subsection] (3)(B)").

Conclusion

In conclusion, the proper resolution of "translation" issues under the FOIA requires careful consideration of the particular stage of the processes of FOIA administration at which they arise. Although such questions arise only infrequently, all agencies should be aware of both their obligations and the limits of those obligations when they do arise. (posted 12/1/04)

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