FOIA Update: FOIA Counselor: Questions & Answers

Can a "protective order" issued by an administrative law judge be a sufficient basis for withholding records under the FOIA?

No. Fundamentally, it is a federal agency's "control" over a record (and over its possible disclosure) that makes the record subject to the requirements of the FOIA. See, e.g., Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). Consistent with that, the Supreme Court held many years ago that where an agency is under a court order "barring disclosure . . . [of a record] . . . issued by a federal district court with jurisdiction to enter such a decree," the agency simply cannot comply with a FOIA request for that record; in the jurisdictional language of the Act, the record is not "improperly withheld." GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 384-87 (1980) (citing 5 U.S.C. § 552(a)(4)(B));see also FOIA Update, Summer 1983, at 5. This basis for FOIA nondisclosure applies, as the D.C. Circuit recently emphasized, only where acourt order actually "prohibits the agency from disclosing the records" in question. Morgan v. United States Dep't of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991). By contrast, a "protective order" or any other "nondisclosure" order issued by an administrative law judge (ALJ) in a federal agency's administrative proceedings does not prohibit the agency from disclosing records under the FOIA. This is so because, fundamentally, the authority of an ALJ is subordinate to that of the agency and the exercise of that authority is ultimately subject to the agency's control. See 5 U.S.C. § 557(b) (specifying that ALJ action is subject to agency "review"); see also, e.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 853 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). Thus, even though the parties to an administrative proceeding might regard an ALJ's "protective order" as a basis for nondisclosure in the event of a FOIA request, it is not. See, e.g., General Elec.Co. v. NRC, 750 F.2d 1394, 1396, 1400 (7th Cir. 1984) (finding administrative protective order "irrelevant" under FOIA despite parties' belief otherwise); accord Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1461 n.7 (D.C. Cir. 1984) (refusing to accept "not improperly withheld" defense where entity issuing order lacked authority to "bind" agency).

Should agencies give immediate attention to any FOIA requester's special request that he be granted "expedited access" to records requested under the FOIA?

Yes. Although the Act is silent on the subject of "expedited access" to requested records, agencies have the administrative discretion to afford "expedited" FOIA access to a FOIA requester who seeks such special treatment under the Act on the basis of demonstrated special circumstances. As a general rule, agencies process FOIA requests on a "first-in, first-out" basis, according to the order in which they are received. Accord Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976). Where a FOIA requester demonstrates that the circumstances surrounding his request involve such "exceptional need or urgency" as to warrant special treatment to the relative disadvantage of prior FOIA requesters, an agency may grant his request for "expedited" handling. See FOIA Update, Summer 1983, at 3 ("OIP Guidance:   When to Expedite FOIA Requests"). Whenever an agency receives such a special request for expedited handling, moreover, it is essential that it consider and act on that special request -- i.e., decide whether to handle the underlying FOIA request out of turn -- in a timely fashion. Simply put, such a request should be acted upon with a timeliness befitting the very nature of the request itself. Thus, as a matter of sound administrative practice, and regardless of whether expedited handling is actually granted in any particular case, agencies should decide whether to grant a request for expedited handling promptly whenever such a request is made. See FOIA Update, Spring 1992, at 10 n.32 (commenting on comparable provision of proposed legislation).

Is an "acknowledgment letter" sufficient to satisfy the requirement that an agency respond to a FOIA request within the Act's ten-day deadline?

No. The basic requirement placed upon agencies under the FOIA is to make a "determination" of a request within ten working days. 5 U.S.C. § 552(a)(6)(A)(i). Under the plain statutory language, "[an agency's] response is sufficient . . . if it includes: the agency's determination of whether or not to comply with the request [and] the reasons for its decision." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990). A letter merely acknowledging receipt of a FOIA request, though a worthwhile preliminary communication from an agency to a FOIA requester, does not satisfy this requirement.

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