FOIA Post (2006): FOIA Counselor Q&A

January 24, 2006

FOIA Counselor Q&A

Q: Does an agency have an obligation under the Freedom of Information Act to search through all of the information that is available to it electronically, such as electronic databases to which it has access?

A: No. Fundamentally, an agency responding to a FOIA request need conduct a search for responsive records only among its "agency records." It has long been settled that, for FOIA purposes, "agency records" are those records that are within an agency's possession and, most importantly, its "control." See Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 37-38 & n.18 (citing United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989)). To be sure, in this electronic age, much of what an agency has in its possession exists in electronic form, often including vast databases that might contain information responsive to a particular FOIA request. But that does not include electronic databases to which an agency has no more than "read only" access. Such databases sometimes are referred to as containing "distributed data," meaning that they constitute information that is distributed to and available to "on screen" to a viewer without being within the viewer's control. Examples are the data made available through LexisNexis, Westlaw, and other such data services; the on-screen viewing of such data by an agency does not make that data an "agency record" under the FOIA. If, however, an agency employee goes beyond that point by printing or otherwise obtaining any such data for the agency's use or its files, then that would constitute an exercise of "control" over the data, making that data an "agency record" subject to the FOIA. Cf. Tax Analysts v. United States Dep't of Justice, 913 F. Supp. 599, 603-04 (D.D.C. 1996) (distinguishing between agency "access to" JURIS database owned by West Publishing Co. on the one hand and "storage" or "any printout" on the other, the latter amounting to agency "control"), aff'd, No. 96-5109, 1997 WL 71746 (D.C. Cir. Jan. 21, 1997) (per curiam). Any "distributed data" that is handled by an agency in such a way certainly would have to be included within the scope of a search for records responsive to a particular FOIA request pertaining to it; otherwise, it would not. Cf. Forsham v. Harris, 445 U.S. 169, 185-86 & n.17 (1980) (reasoning that "unexercised" agency ability to control is insufficient "control" to create "agency record" status under FOIA).

Q: Are agencies legally obligated to forward incorrectly directed FOIA requests to other agencies, or other components of the same agency, if the recipient thinks that responsive records might be located there?

A: No, not unless an agency chooses to obligate itself to do so by creating such a required practice through its own FOIA regulations. It is not uncommon for an agency to receive a FOIA request for records of a certain type that simply are not maintained by that agency. This likewise can occur within large, decentralized agencies that handle their FOIA requests separately within their components or sub-agencies. In some such instances, beyond determining that they have no record responsive to a FOIA request, the FOIA personnel handling that request might have a good basis to believe that another particular agency, or separate agency component, likely would have the type of record being requested. As a general rule, it is entirely up to the agency whether, as a matter of administrative discretion, it will direct the FOIA requester to that other agency location (which might even involve forwarding the request itself), because nothing in the Act compels an agency to do so. But if an agency's individual FOIA regulations establish such a practice, thereby creating an expectation on the FOIA requester's part, then such an obligation is created.

This situation arose in a recently decided case, Friends of Blackwater v. United States Department of the Interior, No. 04-2000 (D.D.C. Sept. 20, 2005), in which the FOIA requester complained of the agency's "failure to forward" its FOIA request, regarding the enforcement of certain environmental laws, to the Office of the Secretary of the Interior. Slip op. at 8. That FOIA request had been made directly to the Fish and Wildlife Service, a sub-agency within the Interior Department, where a search for responsive records was duly conducted. But after the requester challenged the adequacy of this record search, and focused on the Interior Secretary's office as a "likely" place to find some of the records that it sought, the court readily agreed with the requester, even though the requester admittedly had failed to send its request to that distinctly different part of the agency. Id. at 8-9. The court broadly declared: "[F]ailure by one DOI office to refer [sic] a FOIA request to another that is 'likely to have' responsive documents is sufficient to render the agency's search inadequate." Id. at 9. The key point of this decision, however, is that it was explicitly based upon an Interior Department regulation that specifically obligates the Fish and Wildlife Service to forward FOIA requests elsewhere within the Interior Department "if it knows another bureau [of the agency] has or is likely to have" responsive records. 43 C.F.R. § 2.22(a)(1) (2004). In the absence of such a regulation, or under agency FOIA regulations that provide otherwise, see, e.g., 28 C.F.R. §§ 16.3(a), 16.4(a) (2005) (Department of Justice FOIA regulations), there exists no such obligation.

Therefore, there ought to be no confusion about the outcome of the Friends of Blackwater case, or the basis for it, just as no one should be confused by the mistaken use of the word "refer" instead of the word "forward" in parts of the court's decision. See Friends of Blackwater, slip op. at 8-10. The "forwarding" of a FOIA request, as noted above, involves nothing more than the discretionary transmittal of the request. A "referral" under the FOIA, of course, involves the transfer of responsibility for processing certain requested records to an agency that originated those particular records, which usually involves only part of the responsibility for an entire FOIA request. See FOIA Update, Vol. XII, No. 3, at 3-4 ("OIP Guidance: Referral and Consultation Procedures") (advising of the sound general rule that "the agency that is best able to determine a record's sensitivity . . . should process that record"). As has been advised in this area of FOIA administration in the past, it is very important to keep such terms "distinct" from one another lest their misuse lead to confusion. See id. at 4.

Q: Can an agency ever "scope" a FOIA request within a document page?

A: Yes, in some circumstances it can do so. The administrative step of "scoping" a FOIA request, or "scoping out" information within a document that is located in response to a particular request, can be a difficult one that agencies must be particularly careful to handle properly. See FOIA Update, Vol. XVI, No. 3, at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request") (advising of "general approach to any potential 'scoping' of a document in response to a FOIA request"). Indeed, "it is something not to be done by any agency lightly." Id. at 3. Increasingly, though, especially nowadays with electronic information, agencies find it most efficient to create and store records in forms in which they encompass multiple disparate subjects. Quintessential examples of this are diplomatic cables transmitted by the State Department, which often of necessity are multi-subject records, and lengthy chains of "electronic mail" that might wander through a wide range of subjects before they reach finality. Such documents easily can contain large segments of information that have nothing to do with the subject of the FOIA request for which they have been located.

When confronted with such a document in responding to a FOIA request, an agency could reasonably conclude that whole portions of it do not pertain to the subject that is of particular interest to the FOIA requester and that they can be clearly identified to the requester as such -- i.e., as "scoped out" of the agency's FOIA response. See id. at 5 (noting that "[t]he agency must have a firm basis for reaching the conclusion that the ['scoped' portions] deal with a subject that is clearly beyond the scope of the requester's evident interest in the request"). And in processing the growing numbers of aggregated "e-mail" records that agencies now regularly locate as responsive to their FOIA requests, FOIA personnel should use this same good judgment to delineate among the portions of a record that can happen to print out on one document page or another. Cf. St. Andrews Park, Inc. v. United States Dep't of the Army Corps of Eng'rs, 299 F. Supp. 2d 1264, 1271 (S.D. Fla. 2003) (analyzing a "string of e-mails comprising several different e-mails" as other than a single document: "Each such e-mail is a separate document" under the FOIA.). In applying this "scoping" approach to e-mail, for example, agencies should be sure to include any information that is necessary to give the requester "meaningful context" for what is specifically requested, and to of course make sure that the requester is "fully informed of any 'scoping' determination in all instances . . . [with] an opportunity to question or disagree with it." FOIA Update, Vol. XVI, No. 3, at 5 (emphasizing agency obligation to communicate with requesters on all "scoping" matters); see also id. at 4 (observing that "agencies create multiple-subject documents for sound programmatic purposes [and] retain an interest in not having their FOIA programs unduly encumbered by that," because the "'processing' of a record's contents under the FOIA can be a very labor-intensive and time-consuming process").

Q: What is the meaning of an "umbrella issue" under the FOIA?

A: The term "umbrella issue" is a relatively new one that has been used by agencies and courts alike to make important distinctions when considering public interest issues under the FOIA. It refers to the logical distinction between the public interest that can exist in an overall subject that relates to a FOIA request (e.g., some matter of significant, perhaps even controversial, agency activity) and the public interest that might or might not be served by disclosure of the actual records that are at hand in that particular FOIA request. For example, the District Court for the District of Columbia recently used this term when deciding whether a public interest organization was entitled to special expedited processing, on an urgent "media interest" basis under the Act, see 5 U.S.C. § 552(a)(6)(E)(v)(II), of its FOIA request for records relating to the general subject of "data mining." Elec. Privacy Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 102 (D.D.C. 2004). Ruling against the FOIA requester, the court found that the requester had "failed to present the agency with evidence that there is a 'substantial interest' in the 'particular aspect' of [its] FOIA request." Id. In other words, the court said, "[t]he fact that [the requester] has provided evidence that there is some media interest in data mining as an umbrella issue does not satisfy the requirement that [it] demonstrate interest in the specific subject of [its] FOIA request." Id. (emphasis added); see also ACLU of N. Cal. v. Dep't of Justice, No. 04-4447, 2005 WL 588354, at *13 (N.D. Cal. Mar. 11, 2005) (likewise ruling that "it was not sufficient for the plaintiffs to show [public] interest in only the general subject area of the request").

This approach of carefully distinguishing the general from the specific has ready application to other areas of FOIA decisionmaking, such as in determining whether particular record portions at hand are of such nature that their disclosure actually would serve an identified general public interest and therefore warrant the overriding of personal privacy interests in an Exemption 6 or Exemption 7(C) balancing process. See, e.g., KTVY-TV v. United States, 919 F.2d 1465, 1470 (10th Cir. 1990) (rejecting an assertion that "the public interest at stake is the right of the public to know" about a controversial event, because on careful analysis the particular record segments at issue "do not provide information about" that subject); see also, e.g., NTEU v. Griffin, 811 F.2d 644, 648 (D.C. Cir. 1987) (declaring similarly in the context of FOIA fee waiver decisionmaking that "the links between furnishing the requested information and benefitting the general public" should not be "tenuous"); cf. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (applying comparable approach to determination of plaintiff's entitlement to award of attorney fees under FOIA).

Q: Can "A-76 documents" be protected under a FOIA exemption?

A: Yes, in many instances, at least for a period of time, they can be withheld pursuant to the government's "commercial information" privilege under Exemption 5. The phrase "A-76 documents" commonly refers to the process by which an agency follows a longstanding federal policy for "the competition of commercial activities" of agencies, often generally known as "contracting out" or "competitive sourcing," under OMB Circular A-76. This policy traces back to the 1950s, but it has become a matter of greater agency priority during the past two years since Circular A-76 was revised by the Office of Management and Budget in 2003. In the words of OMB: "Circular A-76 is a set of policies and procedures to help determine whether public or private sources will undertake the federal government's commercial activities and services, ranging from software consulting, research and lab work to facilities management." Background and Facts on Competitive Sourcing and Revisions to Circular A-76, at 1 (May 29, 2003). When an agency follows this policy for the possible "outsourcing" of some of its "not inherently governmental" activities, it submits its own bid on that work through which it competes with potential private-sector contractors "to determine if government personnel should [continue to] perform" it. OMB Circular A-76, at ¶ 4.d (May 29, 2003). In so doing, an agency necessarily prepares several types of records, such as "agency cost estimate[s]," that lead to the compilation and submission of its "agency tender." Id., Attachment D, at 2. This can be exactly the type of information that an outside bidder in the A-76 process could use to the agency's distinct commercial disadvantage in that process. Fortunately, Rule 26(c)(7) of the Federal Rules of Civil Procedure provides that "for good cause shown . . . a trade secret or other confidential research, development or commercial information" is privileged from discovery, and the Supreme Court has held that such information "generated by the Government itself in the process leading up to awarding a contract" therefore can fall within the protective ambit of Exemption 5. Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 (1979); see also Freedom of Information Act Guide & Privacy Act Overview (May 2004), at 415-16; FOIA Update, Vol. IV, No. 4, at 14-15.

Indeed, this very situation was confronted under a predecessor version of Circular A-76 during the 1980s, when such a potential outside bidder sought to obtain through the FOIA an agency's own analysis of its "manpower distribution," its "salary costs," its overall "cost data," and the like. Morrison-Knudsen Co. v. Dep't of the Army of the United States, 595 F. Supp. 352, 353 n.3 (D.D.C. 1984), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision). The agency in question, the Army Command at Fort Benning, Georgia, was in the process of "competing" certain of its facilities maintenance activities on that military base, and it fully intended to release the requested information "after bids [were] opened and [a contract] award made," but it argued vigorously that any earlier disclosure under the FOIA would "have an adverse effect on the procurement and the benefits expected from the competitive process." 595 F. Supp. at 354. The court firmly agreed with this agency judgment, concluding that FOIA disclosure would "place the Army at a competitive disadvantage with respect to the [c]urrent A-76 if the information [were] released before the bids [were] opened and an award made." Id. at 356; see also id. at 355 (reasoning further that disclosure "might also discourage firms from taking the initiative to come forward with more innovative techniques for cutting costs in the hope of underbidding a more uncertain Army 'bid'").

So an agency going through a current A-76 process that receives a FOIA request for records that would "enable an informed bidder . . . to make a closer approximation [of its bid] than would be possible on the basis of the information to be released with the bid invitation and other available data" should rely on this precedent, and the government's special commercial privilege under Exemption 5, in protecting its commercial interests in that process. Id. (emphasizing the commercial privilege's applicability where "the documents sought might place previously unavailable information in the hands of bidders who could use it to the competitive disadvantage of the government's in-house bid"); see also Taylor Woodrow Int'l v. United States, No. 88-429, 1989 WL 1095561, at *3 (W.D. Wash. Apr. 5, 1989) (upholding an agency's use of the commercial privilege where disclosure would permit the FOIA requester to take "unfair commercial advantage" of the agency); Hack v. Dep't of Energy, 538 F. Supp. 1098, 1104 (D.D.C. 1982) (applying the commercial privilege to procurement records where otherwise "the agency would not be on equal footing" with private-sector bidders).  (posted 1/24/06)

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