Vol. XI, No. 2
Department of Justice Report on "Electronic Record" FOIA IssuesPart I
[The following is the first part of the "Department of Justice Report on 'Electronic Record' Issues under the Freedom of Information Act," published here in slightly abridged form. Part II of this report will be published in the next issue of FOIA Update.]
In the nearly 25 years since the Freedom of Information Act was enacted, federal departments and agencies have adapted their disclosure policies and recordkeeping practices to meet the Act's goal of affording the fullest responsible public access to the records of the federal government's executive branch. This first quarter-century of FOIA administration has seen many challenges met and many adjustments made, both in the Act and in its implementation, as the contours of FOIA obligations repeatedly have been tested and have been refined.
Yet no development in the history of the Act has held as much potential for shaping its contours, even the very future of its implementation, as that of new technology. Profound technological advances already have begun to transform the basic nature of recordkeeping and information management in all corners of the world. With "computerization" and the implementation of a variety of new information technologies, the conventional "paper record" file systems in existence when the FOIA was enacted are fast giving way to powerful "electronic record" systems. If it can be said that the FOIA helped usher in a new "information age" in the 1960's, then it might well be overtaken by an "electronic information age" in the 1990's.
Indeed, over the course of the past decade, federal agencies have increasingly "computerized" and automated their records systems -- sometimes entirely replacing their conventional files, sometimes supplementing them, with more sophisticated "electronic" systems. At many agencies, use of computer databases as a primary means of records maintenance has become the rule rather than the exception. At others, such automation is just beginning to take hold. Overall, throughout the federal government, agencies are now moving with increasing swiftness toward the creation of a new "electronic record" environment in which they can operate with high-tech speed and efficiency.
As this occurs, new questions inevitably arise about the scope of agency responsibilities under the Freedom of Information Act, 5 U.S.C. §552 (1988). With new mechanisms and practices of records maintenance come the new legal and policy issues that surround them -- the "agency record" status of computer software, for example, or the extent of agency obligations to search for, "process" and produce records maintained in "electronic" form, through "new computer programming" or otherwise. Such issues are perhaps the most complex and challenging issues ever to arise under the Freedom of Information Act, if not also the most controversial. Their emergence threatens to pose increasing difficulties in the administration of the Act as the use of "electronic record" systems becomes more and more prevalent with the passage of time.
Much of the difficulty with "electronic record" issues under the FOIA stems from the fact that Congress could barely envision federal agencies operating in an "electronic environment" at the time at which the Act was designed. Consequently, its statutory terms do not directly address such things as computer databases and computer software. In fact, the FOIA does not even contain any definition of the basic term "agency record" that might readily be applied to such matters within the "electronic" realm. To be sure, it has become universally recognized that computer database records are no less subject to the FOIA simply because they are stored in magnetic tape (as opposed to paper document) form -- which means that no agency now treats its "electronic record" file systems as beyond the FOIA's reach.(1) But with scant FOIA case law extending beyond that fundamental point, the further FOIA issues surrounding "electronic record" systems stand as largely unresolved questions of both policy and law.
Thus far, there has been relatively little administrative experience with "electronic record" FOIA issues and, as a result, they have received relatively little attention until fairly recently. Such issues first were touched upon in a congressional report that addressed broader subjects of information dissemination four years ago,(2) and then were discussed more comprehensively as part of a report issued by Congress's Office of Technology Assessment on the overall general subject of federal electronic information dissemination in 1988.(3) That same year, "electronic record" FOIA issues were likewise included in an examination of the overall subject of federal information acquisition and dissemination policy conducted by the Administrative Conference of the United States.(4) Not long thereafter, the American Bar Association similarly addressed these issues, (5) and they also were the subject of a conference entitled, "Electronic Public Information and the Public's Right to Know," conducted by the Benton Foundation in 1989.(6)
Issues regarding the proper handling of "electronic records" under the FOIA necessarily arise within the far broader subject-matter context of the federal government's electronic information dissemination policies and practices generally. During 1989, a series of congressional hearings on that general subject was held by the House Government Operations Committee's Subcommittee on Government Information, Justice and Agriculture, chaired by Representative Bob Wise.(7) The Senate Judiciary Committee's Subcommittee on Technology and the Law, chaired by Senator Patrick J. Leahy, has indicated its particular interest in "electronic record" FOIA issues and its intention to address that FOIA subject.(8) Thus, "electronic record" issues have become the object of growing attention and concern over the past two years.
Against this backdrop, the Department of Justice's Office of Information and Privacy conducted its survey of federal agencies on the subject of "electronic record" FOIA issues during 1989.(9) It identified the four major such issues set forth immediately below and requested all executive branch departments and agencies to state their positions on those issues, if any, based upon their individual administrative circumstances and perspectives.(10)
This governmentwide survey was undertaken to determine systematically, not merely anecdotally, exactly how the departments and agencies within the executive branch regard "electronic record" FOIA issues and their implications for FOIA administration. Its primary objective was to obtain a comprehensive compilation of individual agency positions and viewpoints on these issues, with underlying details, in order to establish a foundation for the development of uniform governmentwide policies regarding them. See FOIA Update, Spring 1989, at 1-2.
The following sections of this report present the results of the survey on each of its four major issues. Agency positions on these issues are first summarized in the aggregate, in both tabulation and summary description form, and then they are set out individually by agency. (Where an agency's response indicated whether it has any regulation or policy statement addressing such issues, that is specified as well.(11))
Narrative presentations of agency responses on the four survey issues follow, preceded by a background discussion of each issue.
A. Does the FOIA require agencies to create new computer programs (or modify existing programs) for search purposes, i.e., in order to search for and retrieve electronic records according to the particular specifications of FOIA requesters?
B. Does the FOIA require agencies to create new computer programs (or modify existing programs) for "processing" purposes, i.e., in order to segregate disclosable from nondisclosable electronic record portions?
C. Does the FOIA require agencies to provide requested records in the particular forms (or database formats) specified by requesters?
D. Is computer software an "agency record" under the FOIA?
SUMMARY OF SURVEY RESULTS
A total of 83 departments and agencies responded to the survey.(12) Thirteen agencies indicated, either orally or in writing, that they had no substantive response -- which in many instances reflected very limited overall agency experience with "electronic record" issues to date.
The remaining 70 agencies all provided substantive written responses (though they did not in all instances express clear positions on the survey issues(13)) and their responses are both tabulated and itemized below.Aggregate Resonses
On the first survey issue -- whether agencies are required to create or modify existing computer programs for FOIA-search purposes -- the large majority of agencies responded in the negative. While a number of agencies indicated a willingness to undertake such steps as a matter of administrative discretion in some circumstances, only three agencies indicated that they had no concern with a requirement that they do so. One-fifth of all of the responding agencies expressed no particular position on the issue.
On the second, closely related issue involving programming for FOIA "processing" purposes, the overall response was quite similar to the response received on the first issue -- except that one-half of all responding agencies expressed no distinct position on this issue.
On the third issue -- whether agencies are required to provide records to FOIA requesters in particular requested forms or formats -- again the majority of agencies responded in the negative. Only two agencies indicated that they had no concern with such a requirement. Many agencies stressed the importance of administrative discretion on this issue as well.
On the fourth survey issue -- whether computer software is an "agency record" under the Act -- the responses were more evenly distributed. Only thirteen agencies responded firmly in the negative, with a greater number of agencies indicating that they regard software as an "agency record" under at least some circumstances. One-half of all responding agencies expressed no position on this issue.* * * * *
DISCUSSION OF SURVEY ISSUES AND RESPONSESIssue A: Programming for Search
Discussion of Issue
With the development of sophisticated computers and data-processing technologies that increasingly make an "electronic record" environment possible, federal agencies have begun to undergo a literal transformation of their recordkeeping processes. Conventional practices of record maintenance, indexing and retrieval are giving way to the efficiencies and economies of "computerized" information systems. As agencies shift from conventional "paper record" file systems to complex "electronic" ones, new questions are necessarily raised about agency "search" obligations nder the Freedom of Information Act.
Indeed, a major issue presented by this advancing technology involves the process of searching for all records or information responsive to a FOIA request: To what length is an agency obligated to go, within the "electronic record" realm, to locate and retrieve the exact data sought by a particular FOIA requester? Insofar as this search activity involves the use of "computer programming" as the means of data retrieval, the issue commonly is expressed in such terms: Does the Act require agencies to create new computer programs, or modify existing programs, for FOIA-search purposes? Consideration of this issue requires a shift from familiar to relatively unfamiliar ground.
Within the conventional, "paper record" realm -- with which both agencies and FOIA requesters still remain most familiar -- the contours of an agency's FOIA-search obligations are much more clearly seen. This realm also is the logical starting point for any consideration of the sophisticated FOIA-search issues that are now posed by advancing technology. See S. Rep. No. 854, 93d Cong., 2d Sess. 12 (1974) (pointing to "conventional" realm as basis for determining agency search responsibilities regarding records maintained "in computerized form").(14)
A conventional record system ordinarily consists of an arrangement of individual files, each containing paper records pertaining to the file's own particular subject matter. Usually these files are arranged within the file system according to some natural sequence -- alphabetically, for example -- that is then used as a means of file retrieval. Individual files, and the records within them, are located according to a simple, pre-set characteristic. A basic file system might have no further retrieval scheme.
More complex file systems commonly employ detailed indices according to which files -- or even individual documents contained within them -- are listed by one or more additional characteristics for purposes of more sophisticated file or document retrieval. Such indices can of course vary in their levels of specificity. Naturally, the custodian of a file system will maintain it with whatever degree of indexing and retrieval capability is necessary to efficiently accomplish the basic purpose that the file system is intended to serve.
As a general rule, federal agencies have established and regularly maintain their file systems in the particular forms necessary to accomplish their own basic purposes. Their indexing systems are designed to permit agency employees to retrieve records in whichever ways most efficiently facilitate the performance of agency functions. Where an agency's functions regularly require the retrieval of a file or individual document according to a particular identifying characteristic, the agency must maintain an index system designed to accomplish that type of retrieval. Such a conventional file system can be efficiently "searched" only according to the particular subject-matter specifications and criteria that are inherently built into it and its index system for those purposes.
When an agency processes a FOIA request for records within this conventional "paper record" realm, it routinely does so through use of its existing file and index systems. A proper FOIA request must "reasonably describe" the records that are sought, 5 U.S.C. § 552(a)(3)(A) -- which means that the request must be sufficiently specific to enable a knowledgeable agency employee to locate responsive records with "a reasonable amount of effort." H.R. Rep. No. 876, 93d Cong., 2d Sess. 6 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 6271. See also American Fed'n of Gov't Employees v. Department of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986), aff'd, 907 F.2d 203, 208-09 (D.C. Cir. 1990) (citing Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980)).
An agency FOIA officer searching for records responsive to a FOIA request will routinely use the subject-matter specifications and descriptions contained in the request to locate all such records within the agency's file systems -- with the aid of system indices -- just as an agency employee would regularly do to locate records in the conduct of day-to-day agency business. FOIA searches necessarily follow the lines of regular agency record searches. As one court has noted, "[t]he FOIA was not intended to compel agencies to become ad hoc investigators for requesters whose requests are not compatible with their own information retrieval systems." Blakey v. Department of Justice, 549 F. Supp. 362, 366-67 (D.D.C. 1982), aff'd mem., 720 F.2d 215 (D.C. Cir. 1983).
Indeed, it is commonly understood that, as a general rule, FOIA requesters "take agency file systems as they find them" -- which necessarily includes the contours and limitations of their existing indexing and record-retrieval schemes. See, e.g., Miller v. Department of State, 779 F.2d 1378, 1385 (8th Cir. 1986); Yeager v. DEA, 678 F.2d 315, 323 (D.C. Cir. 1982). The D.C. Circuit Court of Appeals has stated this simply: "It is firmly established that an agency is not required to reorganize [its] files in response to [a FOIA] request in the form in which it was made." Church of Scientology v. IRS, 792 F.2d 146, 150-51 (D.C. Cir. 1986) (citations and quotations omitted).
Within the "electronic" realm, however, the circumstances surrounding a FOIA search are far more complex and the economies of scale can be quite different. In the place of a conventional "paper record" file system, an agency now might have an "electronic record" database, stored on magnetic tape, containing every bit of information that otherwise would be recorded on the pages of paper files. To make use of such a record system (or database) in this form, the agency would need to be able to "work with" the data -- to review it, update it, modify it, retrieve it, print it out, etc. -- in all ways necessary to the performance of the agency's mission. The means by which this use of an electronic database is accomplished, of course, is the "computer programming" that is designed to manipulate the database and thereby operate such a "computerized" information system.
It is this "computer programming" that provides the very organizational structure of an "electronic record" system as the system is established -- and then also serves as the basic mechanism of its day-to-day use. The bits of information contained within such a system have utility only insofar as the system is "programmed" to achieve it. When it comes to locating particular items of information within an "electronic" system, such data retrieval can be accomplished only through the specifications and instructions that are built into the system's programming.
An "electronic record" system's "retrieval programming" will allow information to be retrieved from it according to whichever subject-matter categories or data characteristics are established within it. Such a computer program is, in effect, the "index" according to which the system is searched. In that sense, an "electronic record" system is not unlike a "paper record" file system, in that items of information are regularly located in and retrieved from both systems according to established specifications.
An enormous difference between "paper" file systems and "electronic" ones, though, lies in the inherent flexibility -- indeed, the very high-tech power and capability -- of computer programming as compared to manual indices when it comes to searching through a file system. A file system index in the "paper record" realm stands as a set framework for conducting a record search according to pre-established specifications and indexing criteria. Once they are established, such manual index systems cannot readily be altered to accommodate new subject-matter specifications.
But computer programming, the search mechanism necessarily employed in the "electronic" environment, is not nearly so fixed or limited. The computer programs used to retrieve information from an "electronic" file system can be created or modified to achieve new retrieval capabilities according to new specifications programmed fluidly into the system. Indeed, through the tremendous power of "computerization," such file systems can be programmed to achieve retrieval capabilities that far transcend anything even remotely possible within a "paper" system. And as with "computerization" in general, the ratio of effort to result in this regard can be exponentially less than in the conventional realm.
It is this technological potential, and its quantum leap beyond anything in existence previously, that inevitably raises the issue of the extent to which an agency is obligated to search its "electronic record" systems under the FOIA. Whereas an agency conducting a FOIA search through a conventional file system would not ordinarily be asked to go beyond its regular document- retrieval procedures -- because doing so usually involves an inefficient and costly "hand-search" through the file system -- a very different situation is presented with "electronic" files.
With an "electronic" system, an agency conducting a search in response to a FOIA request -- in actuality, a matter of data retrieval -- can readily do so through the use of its existing data-retrieval programs. In other words, the agency can retrieve data from the system for a FOIA requester in the same way as it regularly does in the conduct of agency business -- according to the particular specifications and data contours that are of significance and value to the work of the agency. Assuming the absence of any sensitive (i.e., exempt) information, a FOIA requester can readily gain access to the information from the electronic database along the same lines as does the agency.
Some FOIA requesters, however, might seek to information from an agency's database according to contours and specifications different from those useful to the agency. Indeed, a FOIA requester might be interested in making use of an agency's database in ways that extend well beyond what the agency does in its ordinary course of business and that would require the agency to take new steps of data retrieval.
To take a hypothetical example, a federal regulatory agency might maintain an electronic database that contains certain basic information of no particular sensitivity -- type of business, business size, geographic location, address, etc. -- pertaining to all business entities under its jurisdiction. To efficiently perform its statutory duties, the agency might use such a database to "keep track" of all of these businesses according to some of their characteristics -- business size, for example -- but not others. The agency also might have need to categorize these businesses by only one particular geographic designation -- perhaps only on a state-by-state basis, for example. In such a situation, the agency would establish and maintain the computer programming necessary for it to make use of the database in this way. Its data-retrieval programs would be keyed to some of the businesses' characteristics -- those of particular value to the work of the agency -- but not to all of them.
In this situation, a FOIA requester might well be interested in gaining access to the agency's database according to the very same sets of business characteristics and geographic parameters as are used by the agency. In such a case, with the requester's interests and the agency's existing retrieval programs running along the same lines and smoothly coinciding, no issue would be presented.
But a particular FOIA requester might be interested in making his own specialized use of the information contained in this database, perhaps to take advantage of its potential commercial utility. Toward that end, such a FOIA requester might specify in his request that he seeks access to the database along new lines -- by requesting that the database be "searched" and retrieved according to certain specified types of business and also according to business address, perhaps on a county-by-county basis, or even by individual zip code. This FOIA requester could seek to have portions of the database retrieved and arranged in an entirely new configuration -- in effect, a business mailing list patterned exactly according to his own preferred specifications.
The question, of course, is whether an agency is obligated by the FOIA to take the steps necessary to satisfy a requester's particular preferences in this type of situation. In this hypothetical example, compliance with the requester's "search" specifications would require the agency to go beyond the bounds of its existing data-retrieval programs. Depending upon exactly what the requester sought to have created and its relation to the programming already in place, it would require the agency to take some number of new steps in order for it to achieve the new data-retrieval result desired.
Such retrieval steps might fairly be characterized as the creation of "new programming" in some situations; they might most accurately be characterized as the "modification" of an existing retrieval program in others.(15) In any event, they involve a manner of "creational" activity that, to say the least, federal agencies are generally unaccustomed to regarding as within their basic FOIA responsibilities. See, e.g., Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 & n.7 (1980) (FOIA "does not obligate agencies to create" records); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (FOIA requires disclosure of only records "which the agency has decided for its own reasons to create").(16)
At the same time, though, the potential yields of federal "electronic" files that are now made possible by advanced programming technology provide increasingly strong incentives for sophisticated FOIA requesters -- acting out of commercial motivations or otherwise -- to ask that agencies undertake the burdens of such retrieval activity. In so doing, these FOIA requesters may point to the fact that, with the high-powered economies of "electronic" systems, a relatively small amount of such retrieval activity by an agency can yield enormous returns.(17) In short, the potential uses of "electronic" agency file systems by sophisticated FOIA requesters are seemingly unlimited -- as are the corresponding burdens that such uses could place upon federal agencies.(18)
Thus far, there exists only scant case law under the FOIA addressing an agency's search obligations in connection with "electronic" files. The only judicial decision on this issue is Clarke v. Department of the Treasury, Civil No. 84-1873, slip op. at 2 (E.D. Pa. Jan. 24, 1986), in which a FOIA requester sought a special "compilation of information" (in effect, a specialized mailing list) from the Treasury Department's database pertaining to the holders of a certain type of government bond. That FOIA requester argued that the particular data compilation that he sought could "be extracted from the record system by computer" if the agency were to "design an appropriate computer program" in order to do so. Id.
Based upon its finding that "a computer program would have to be developed to extract the [requested] information," slip op. at 2, the court in Clarke ruled against the FOIA requester on this "programming" issue. It concluded that "in order to comply with the request as made the Treasury Department would have to create a special document or record that does not exist independently" and that "[w]hile an agency may be required to produce records that do exist, it is not required to make them." Id. at 2-3 (citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. at 152).(19)
In two other such cases to have reached litigation, the defendant agencies confronted similar "electronic record" requests. In the case of Kele v. United States Parole Comm'n, Civil Action No. 85-4058 (D.D.C.), an inmate FOIA requester sought to compel either the United States Parole Commission or the Federal Bureau of Prisons to produce a compilation of records pertaining to all federal prisoners convicted of murder who were released on parole during the preceding five years. Because the files of the Parole Commission were organized on an inmate-by-inmate basis, not according to type of offense, the records that this FOIA requester sought could be located only through an extensive hand-search of its massive file system. The Bureau of Prisons maintained an "electronic" database containing all of the information sought, but its existing retrieval capabilities followed inmate-by-inmate lines as well; it could have complied with such a specialized FOIA request only by creating a specialized retrieval program.
The government took the position in the Kele case that the FOIA did not require the Bureau of Prisons to undertake the programming activity that was necessary to satisfy this FOIA request under such circumstances. Citing the precedent of Clarke v. Department of the Treasury, the defendants moved for dismissal of this aspect of the case on this basis. Subsequently, however, the issue dropped out of the case when the requester determined not to press the Bureau of Prisons to satisfy his request through its database and the court accordingly concluded that it need not reach the issue. See Kele v. United States Parole Comm'n, Civil No. 85-4058, slip op. at 4 n.4 (D.D.C. Oct. 31, 1986).
Similarly, an "electronic" database search issue arose but was not adjudicated in the case of Public Citizen v. OSHA, Civil Action No. 86-0705 (D.D.C.). In that case, the FOIA requester sought to obtain a compilation of health-violation citations issued by OSHA under two particular regulations during a certain time period -- information that certainly was contained within an OSHA database. As of the time of the FOIA request, however, OSHA had not developed the computer programming necessary to retrieve data from the system according to such regulatory criteria. It denied the FOIA request and a related fee waiver request on that basis, consistent with a Department of Labor regulation regarding computer programming for FOIA purposes -- 29 C.F.R. § 70.63 (1986) (replaced by 29 C.F.R. § 70.5 (1988)) -- whereupon the requester filed a lawsuit challenging both the denial and the regulation.
Subsequently, though, as part of an expansion of OSHA's computer facilities, the agency independently developed the retrieval capability in question for its own regulatory purposes and therefore became able to readily comply with the requester's particular specifications for database retrieval. See Public Citizen v. OSHA, Civil No. 86-0705, slip op. at 2 (D.D.C. Aug. 5, 1987) ("During the course of the litigation OSHA developed, for its own purposes, expanded computer capabilities which enabled it to retrieve the information sought by plaintiffs."). After the dispute over its FOIA request thus became moot, the requester sought to continue to challenge the agency's legal position regarding programming under the FOIA -- which had remained unchanged -- but that challenge ultimately was dropped.
Discussion of Responses
This first issue of the survey, dealing with computer programming for purposes of searching for "electronic" records, drew the heaviest response of all of the survey issues. Of the total of 70 agencies that responded to the survey, 53 agencies (75.71%) indicated opposition to a requirement that agencies undertake new programming for FOIA-search purposes. Three agencies (4.29%) stated no opposition to the imposition of such a requirement and 14 agencies (20%) expressed no particular position on the issue. Overall, while the responses demonstrated strong agency interest in the issue, they indicated relatively little agency experience in dealing with this FOIA issue thus far.
Many of the agencies responding in the negative on this issue expressed strong objections to any requirement that they engage in any activity that could be characterized as "new programming" for the purposes of searching through their electronic file systems under the FOIA. The Department of Energy, for example, responded that its policy "is not to create a record solely for the purpose of satisfying a request for records. Searches will be done manually or by computer using existing programming." Similarly, the National Transportation Safety Board responded: "We provide hard copy data that can be retrieved by any of the data fields that have been established for the retrieval of data for our normal uses . . . . [W]e will not write a special program to retrieve data specifically for requesters."
Taking the same strong view, the Department of State firmly responded: "[W]e do not believe that the Act requires that Federal agencies create new computer programs for either search or processing purposes." The Environmental Protection Agency stated that "agencies should not be required to create expensive new programming in order to access requested electronic information" under the FOIA, while the Federal Communications Commission said "the Government should not be required to bear the expense of creating new computer programs" for such a data-retrieval purpose. Likewise, the Federal Emergency Management Agency responded by saying that "it is our belief . . . that we are not required . . . to write a new program to pull the data out and arrange it on one new report that gives the requester what he/she wants." The Department of Housing and Urban Development expressed its view that doing so "would lead to needless creation of new records in the requester's preferred format which would be of little or no use to [the agency] administratively."
The negative reactions of many agencies on this issue were plainly based upon their deep underlying administrative concerns. Agencies expressed great concerns that the imposition of new programming requirements upon them under the FOIA would place new burdens and drains on their limited resources -- even to the point of impairing their ability to perform their basic statutory responsibilities and agency missions. The Federal Reserve Board, for example, expressed its concerns as follows:. . .. . .
In the same vein, the Securities and Exchange Commission echoed the concerns of many agencies by emphasizing that agency computer resources are both valuable and finite:
An interpretation that requires agencies to execute customized queries of databases to satisfy FOIA requesters could have a serious impact on the staff's ability to accomplish the SEC's substantive mission, given all too limited resources available for responding to FOIA requests and managing the agency's electronic information systems equipment.Likewise, the Department of Commerce expressed its view that "to take on a greater responsibility of customizing, re-creating, and reprogramming records would cause a greater strain on the U.S. Treasury, and day-to-day government operations. The FOIA program could become untenable."
The Department of Veterans Affairs offered its own succinct assessment of the problem as it sees it: "Interpreting the law as requiring agencies to create records or write/modify programs to respond to a FOIA requester's specific requests would, we believe, dramatically increase the number of requests for tailor-made responses."
Numerous other agencies explained their negative reactions to the idea of FOIA-compelled programming by pointing to such concerns about operational costs and the consumption of scarce agency resources -- including the possible diversion of agency FOIA resources away from the bulk of requesters in favor of a few. The State Department, for example, noted that "[t]he dedication of an agency's limited resources toward the satisfaction of a handful of sweeping, rather sophisticated electronic record requests necessarily prejudices its ability to respond in a timely fashion to other, more traditional requests then pending." Among the agencies expressing similar concerns were the Department of the Treasury, the Office of Personnel Management, the Nuclear Regulatory Commission, the Federal Trade Commission, the United States Trade Representative and the Farm Credit Administration -- the latter of which emphasized that such a requirement "would have a serious effect on the operations of smaller agencies" as well.
Even some of the agencies that chose to take no position on this survey issue -- such as the Federal Energy Regulatory Commission and the Arms Control and Disarmament Agency -- nonetheless expressed concerns along these lines. One such agency, the International Trade Commission, observed: "We would not want to become a national trade data researcher for economic consultants and student researchers."
Such specific concerns about the commercial utility of agency databases and their resulting susceptibility to wide-ranging FOIA requests were expressed by other agencies as well. The Defense Logistics Agency, for example, noted that while it routinely compiles certain standard reports relating to procurement matters, and makes them available to FOIA requesters, it would be concerned about "a requirement to provide 'custom' market research" under the FOIA. In this regard, the Department of Defense noted, and expressed alarm about, the potential for an agency to "become a personalized information center." The Federal Reserve Board put it somewhat more bluntly: "The FOIA was not intended as a vehicle for the creation, at government expense, of commercially valuable software and computer readable data series, or for providing other commercial services to corporations. . . . To be sure, such persons may use the FOIA; but they should be required to take each agency's records as they are."
Ay the same time, however, a number of the agencies responding in the negative on this issue did not do so in absolute, unyielding terms. Rather, they indicated in their responses at least some degree of willingness to provide FOIA requesters with wider FOIA searches of their electronic record systems than their existing retrieval programs might allow.
In the case of several agencies, this flexibility took the form of an affirmative recognition that agencies hold, as the Defense Logistics Agency put it, the "discretionary authority" necessary to do more than the FOIA may require in satisfaction of a particular request. For example, the Federal Communications Commission, while adhering to the position that agencies "should not be required" to create new computer programs in order to comply with FOIA requests, also observed that "[a]n agency could, of course, undertake to comply with such requests as a matter of its discretion."
Some agencies -- including the Railroad Retirement Board, the National Labor Relations Board and the National Credit Union Administration -- specifically indicated in their responses that they have undertaken new programming for FOIA-search purposes in some instances. Others -- such as the Department of Transportation, the Department of State, the Federal Emergency Management Agency and the Office of Personnel Management -- suggested that they might be willing to do so, depending upon the circumstances presented. The Office of Personnel Management, for one, stated that "it is willing to accommodate requesters to the extent that the resources are available and the requests are within reason." The responses of three agencies that did not take a formal position on this issue -- the Department of Education, the Federal Election Commission and the Council on Environmental Quality -- suggested as much as well.
Even the Federal Reserve Board, while strongly opposing any new programming requirement, elaborated in its response that "agencies should be free, nevertheless, voluntarily to develop from time to time new computer programs" that would "facilitate" the disclosure of agency information. In a similar vein, both the Department of Health and Human Services and the Public Health Service suggested that agencies should design and continue to develop their electronic record systems with the prospect of facilitating FOIA access in mind. The latter agency suggested that this might be appropriate "if recurring or projected FOIA requests justify the resource expenditures that would be required to design FOIA-responsive computer programs," and that it "should be considered by each agency on the basis of its own FOIA experience." Both the Department of State and the Environmental Protection Agency also placed emphasis upon determining any such matters on a "case-by-case" basis at each agency.
Other agencies went further in their discussions of this issue, recognizing that distinguishing between the creation of a "new" computer program or the "modification" of an existing one, on the one hand, and the simple utilization of existing retrieval programming, on the other, can be a difficult thing to do. As the Department of the Interior aptly put it, "[t]he problem is defining the parameters to be able to determine the point at which 'searching' becomes 'records creation.'" While adhering to the view that "records creation" should not be required, it observed that the FOIA's requirement that an agency expend a "reasonable" amount of effort in a search might be a basis for compelling some programming activity.
Likewise, the Department of Defense, the Internal Revenue Service and the Nuclear Regulatory Commission all registered their disfavor toward a "new programming" requirement while at the same time explicitly acknowledging that a "reasonableness" standard can be seen as applicable to FOIA searches for electronic records. The possible application of such a standard was suggested in the pragmatic discussion of this issue by the Internal Revenue Service, which observed that "[a]n agency's response to a request for electronic records may very well turn on a characterization of the effort involved, e.g., minor adjustment or major undertaking." A delineation along similar lines was contained in the response provided by NASA, which suggested that agencies should satisfy any FOIA request requiring "only a few keyboard instructions." The Department of Defense, though, in speaking of the possible applicability of a "reasonableness" standard in this regard, stressed that "use of the word 'reasonable' without some definitive limitation or explanation continues its current vagueness throughout the existing statute." The Defense Intelligence Agency, voicing fears about having to litigate "obvious questions of reasonableness," echoed this major concern.(20)
Lastly, three agencies -- the Panama Canal Commission, the Foreign Claims Settlement Commission and the Merit Systems Protection Board -- responded in the affirmative on this issue. The Panama Canal Commission and the Foreign Claims Settlement Commission each simply stated that it favors undertaking the creation or modification of existing retrieval programs where necessary to satisfy electronic FOIA requests, so long as FOIA requesters can be charged for such efforts.(21) he Merit Systems Protection Board seemed to indicate likewise in responding that "it may be necessary to create or modify computer programs" in order to process "electronic record" FOIA requests.
Issue B: Programming for "Processing"
Discussion of Issue
Closely related to the issue of whether the Freedom of Information Act requires federal agencies to undertake computer programming activities for FOIA-search purposes is the further issue of whether agencies are obligated to engage in computer programming for the purposes of "processing" electronic records under the Act.
The term "processing" is used both commonly and generically to refer to the steps by which an agency reviews records already located as responsive to a FOIA request, determines which of the records or segregable record portions are withholdable as exempt from disclosure, and then carefully prepares a copy set of the records in a form in which they properly can be released to the FOIA requester. Where requested records are found to be not exempt in any respect, they do not have to be specially prepared for disclosure in such a way.
The "processing" of records for release to FOIA requesters is an integral part of the Act's administration. An agency's obligation in this regard is explicitly set forth in the text of the Act, immediately following its enumeration of the nine FOIA exemptions: "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b) (final sentence). In compliance with this "reasonable segregation" requirement, agencies must undertake all necessary "deletions" or "excisions" of exempt record portions (different terms used to describe the same basic thing), in order that FOIA requesters can be furnished with all portions of requested records that they are entitled under the Act to receive.
Within the conventional realm of "paper" records, this process of record "excision" follows well-established, relatively straightforward lines. Its mechanical aspect routinely involves the physical alteration of a document page, in copy form, so that the exempt information on the page no longer appears on it in the form in which it is released to the FOIA requester. Typically, an agency FOIA "processor" will start with a copy of a requested document page and will somehow "block out" all portions to be withheld -- so that a photocopy then can be made to produce a "processed" page upon which the releasable information appears together with all plainly obliterated "excisions." While particular excision techniques may vary from agency to agency, the fundamental process of obliterating exempt information on a document page remains the same.
When it comes to processing "electronic" records, however, the situation is entirely different. By definition, the records contained in an "electronic" file system take the form of electronic impulses that cannot be handled in the same way as the information printed on a document page. While "electronic" records regularly are stored on such tangible record media as magnetic tapes and disks, such media are not readily amenable to conventional FOIA "processing."
To be sure, an agency usually can convert the contents of an "electronic" record system to paper-document form, simply by employing the system's "print-out" capabilities. Where an agency does so for an entire "electronic" database -- or perhaps for some portion of it that is readily retrieved -- there exists the option of "processing" all such information for disclosure under the FOIA in the conventional, "paper copy" way.
Apart from this "paper conversion" possibility, though, an "electronic record" FOIA request can pose a difficult question: Exactly how does an agency properly accomplish FOIA "processing" of records requested in purely "electronic" form? When records are sought in "electronic" form, it is always possible that some portion of what is sought will consist of sensitive information withholdable under one or more of the Act's exemptions. Where this is the case, an issue easily can arise as to whether an agency has to undertake computer programming activities in order to segregate exempt from nonexempt parts of "electronic" files.
For example, a FOIA requester might seek to obtain a particular portion of an agency's database that, the agency determines, consists of both exempt and nonexempt information. Even assuming no question about the agency's ability to retrieve that particular database portion (see discussion of Issue A, above), or about the requester's choice of form or format of disclosure (see discussion of Issue C, below), the agency responding to this FOIA request would nonetheless be presented with a matter of some difficulty. It would have to determine whether the FOIA requires it to do whatever is necessary to segregate all exempt and nonexempt information, and thus "process" such a request, "electronically."
In some such situations, where agencies have extensive data-retrieval capabilities built into their "electronic" record systems, the task of segregating exempt from nonexempt information actually can be a simple one that should raise no "processing" issue. This is so because the tasks of data retrieval and data segregation can be, in effect, one in the same. So where a FOIA request encompasses both exempt and nonexempt data, and an agency employs its system's retrieval capabilities to produce only the nonexempt portions of what was requested, the request can readily be "processed" despite the involvement of exempt information. (22)
In other situations, however, an agency's existing data-retrieval capabilities will not be so extensive as to lend themselves to the segregation enterprise required. An "electronic" record system might well have the capability to retrieve exactly what the FOIA requester seeks from it, yet be unable with its existing retrieval programs to achieve the more refined result of "segregating" out any and all exempt information.
Where the presence of exempt information is identified by an agency handling a FOIA request in such a situation, it faces a FOIA request that cannot readily be "processed." In such situations, FOIA requesters might nevertheless ask that the agency "process" its database -- by taking whatever computer programming steps are necessary for all segregation and "excision" required -- just as FOIA requesters might ask be done for purposes of initial database search and retrieval (see discussion of Issue A, above). As with the "programming for search" issue, the question is whether an agency is required by the Act to do so.(23)
A variation of this issue is presented where a requester of partly exempt "electronic" information seeks to take a slightly different approach to the problem. Such a FOIA requester might try to avoid any segregation complication whatsoever by asking that the agency employ the power of its "electronic" system somehow to modify the very information contained within the database -- so as to render it less sensitive and thus nonexempt. Statistical information regarding individuals and corporations are prime examples of data that can lose their sensitivity, yet retain great utility, if aggregated or otherwise modified in some way. The question remains in such a case, however, whether an agency is obligated under the Act to create such an aggregation of data where it does not otherwise exist.
To date, there has been relatively little discussion of the "processing" of electronic records in the case law decided under the FOIA. One of the two most significant court decisions to address "electronic record" FOIA issues thus far is the D.C. Circuit Court of Appeals decision in Yeager v. DEA, 678 F.2d 315 (D.C. Cir. 1982), which involved the possible use of the aggregation approach as a means of "processing" requested "electronic" files. The FOIA requester in Yeager sought to obtain the entire contents of certain DEA "electronic" file systems pertaining to narcotics violations, consisting of data found to be entirely exempt from FOIA disclosure in their existing form. See 678 F.2d at 317-18, 323-24. Nevertheless, the requester asked that the agency accomplish disclosure of the data by "collapsing" or "compacting" it into a nonsensitive, releasable form. Id. at 319 & n.9. He argued that "the segregation duty imposed by the FOIA requires an agency to use all available means to facilitate the disclosure of information." Id. at 319.
The D.C. Circuit recognized this contention in Yeager as presenting a "novel" issue under the FOIA, i.e., "the extent to which an agency is required to employ its computer capabilities in fulfilling its duty to segregate and release nonexempt material." 678 F.2d at 317, 320. In rejecting the requester's attempt to impose a new duty upon agencies, however, the D.C. Circuit stated its unwillingness "to engage in the kind of conceptual gerrymandering of the boundaries of agency duty that such a result would require." Id. at 322. It declared that "[t]he FOIA does not contemplate imposing a greater segregation duty upon agencies that choose to store records in computers than upon agencies that employ manual retrieval systems." Id. At the same time, though, it observed that "[a]gencies that store information in computerized retrieval systems have more flexibility in voluntarily releasing information," a step which it specifically encouraged. Id. at 326-27.
On the other hand, the Ninth Circuit Court of Appeals took a different view of the "processing" of the "computer data tapes" pertaining to taxpayer compliance that were at issue in Long v. IRS, 596 F.2d 362, 364 (9th Cir. 1979), cert. denied, 446 U.S. 917 (1980). Focusing upon this "processing" issue directly, it concluded that the "editing" of such requested tapes to delete individual taxpayer-identifying information was required under the FOIA. See 596 F.2d at 366-67. The Ninth Circuit based this conclusion upon the view that no record creation was involved in such an enterprise: "We do not believe . . . that the mere deletion of names, addresses, and social security numbers results in the agency's creating a whole new record." Id. at 366. It is not clear from the Ninth Circuit's opinion whether or not it considered whether the development of a new computer program would be required for the "editing" involved. Compare American Friends Service Comm. v. Department of Defense, Civil No. 83-4916, slip op. at 13 (E.D. Pa. Aug. 4, 1988) (discussing, but not deciding, whether agency would be placed to task of "developing some new computer software program" for purposes of database "processing").
Discussion of Responses
On this second survey issue, regarding the use of computer programming for purposes of "processing" records under the FOIA, the agencies' responses closely parallelled those given on the first survey issue. Again a large number of respondents -- 33 agencies (47.14%) -- expressed opposition to a requirement that they undertake new programming for "processing" purposes, while only two agencies (2.86%) indicated no opposition to such a requirement.
With this issue, however, a markedly greater number of agencies (fully half of them) did not indicate any distinct position on the issue in their responses -- reflecting relatively limited agency consideration of the general "programming" issue in connection with the task of "processing" electronic records as compared to that of "searching" for them.
As with the "programming for search" issue, but to a lesser overall degree, the agencies responding in the negative on this issue expressed their concerns that a programming requirement for "processing" purposes would impose undue constraints upon them. The National Archives and Records Administration, for example, responded that "it would impose an inordinate burden on an agency to expect it to reprogram its computers to segregate disclosable from nondisclosable data." To the Securities and Exchange Commission, "[a]ny such requirement would pose problems that are technically as well as practically insurmountable." The Office of Personnel Management, responding also along such lines, characterized the potential difficulties involved as "immense."
A number of these agencies pointed to underlying administrative concerns as the basis for their position on this issue, just as agencies did on the "programming for search" issue. For example, the Federal Maritime Commission voiced its concern that a new programming requirement would "work a particular hardship on [it] in light of its limited resources." Similarly, the Nuclear Regulatory Commission worried that such a requirement "could adversely impact staff resources and the agency's ability to conduct its daily program activities." It observed that "the more complex agency-developed special applications software can require days or months of reprogramming time." Along these same lines, the Export-Import Bank expressed its view that it is "much less burdensome and expensive" to process requested records manually than to do so through computer programming efforts.
Not all agencies agreed with this latter assessment, however. The Department of Veterans Affairs, while adhering to its position against the imposition of new programming requirements, specifically concluded that "it may be in an agency's best interest" to undertake "processing" through programming instead of manually in certain situations. Likewise, the Pension Benefit Guaranty Corporation observed that "an agency's purposes might be better served, and its resources conserved, by creating such a 'segregating' program to avoid . . . performing a manual review and redaction."
The responses on this issue indicated that such programming steps for "processing" purposes have been undertaken by agencies in some instances. The Health Care Financing Administration, for example, stated that it has done so "on occasion," because it has "found that such programming is often much less labor-intensive than manual editing of print-outs of electronic records which contain fields we find to be exempt from mandatory release." Similarly, the Marine Corps responded that it commonly undertakes such steps "[w]here practicable."
Speaking more prospectively, the United States Information Agency responded that, while programming activities should not be required as a matter of law, such steps "should be considered" by agencies for "rapid segregation" purposes. It observed that "[s]egregating portions of documents by computer would leave out so many steps in redacting and rexeroxing that a great deal of time and money could be saved."
The Federal Trade Commission, in its response, described its very sophisticated existing system of automated data retrieval and segregation:. . .. . .
Thus far, the Federal Trade Commission reported, it has yet to receive an "electronic record" FOIA request for which "'INFO' was not sufficient to segregate records electronically."
Indeed, many agencies responding on this issue indicated that while they did not believe they should be compelled to program their electronic records systems for FOIA-segregation purposes, they recognized the potential value in doing so. As with the "programming for search" issue, this often was reflected in the agencies' emphasis of their "administrative discretion" to undertake such programming, either prospectively or on a case-by-case basis. The Department of Education, for example, responded that while "agencies are not required to create computer programs for processing purposes," it should be "within the agency's discretion to choose the means of processing the request -- manually or by use of computer programs."
Several other agencies -- including the Department of the Army, the Department of the Air Force and the Office of Personnel Management -- stressed that agencies should be free to exercise sound discretion in this area. The Department of the Treasury and the Department of Transportation both added that such discretion should be exercised by agencies according to a "cost effectiveness" standard. Two agencies that took no formal position on this issue -- the Federal Communications Commission and the Equal Employment Opportunity Commission -- suggested likewise as well.
The Federal Reserve Board provided a concrete example of such discretionary action in its response on this issue. It described its handling of a FOIA request that sought access to an "entire data base" pertaining to certain bank holding companies, which consisted of both exempt and nonexempt information. In an exercise of its discretion, the Federal Reserve Board chose to "expend 2 man days for [the] reprogramming [necessary] to extract the entire data base with the deletion of confidential information." It did so, it said, because it "anticipate[d] many future requests for the same information."
The only agencies to respond in the affirmative on this issue were the Federal Deposit Insurance Corporation and the Foreign Claims Settlement Commission, the latter of which simply took the same position on this second survey issue as it had on the first. The Federal Deposit Insurance Corporation, by contrast, took distinctly different positions on these two "programming" issues: "We are of the opinion that the FOIA does not require an agency to create a new computer program to respond to a request, but does require a new program to segregate disclosable portions of a requested electronic record." It offered no basis for this distinction, except to add that it "[has] not received and [is] not likely to receive requests for electronic records."* * * * *
[Part II of this Department of Justice report will be published in the next issue of FOIA Update.]
1. The Department of Justice has stated that this basic principle is a well-established point of FOIA law, and this was reiterated as part of its "electronic record" survey. See Appendix A at 2 n.1 (citing "Justice Department Guide to the Freedom of Information Act," published in Freedom of Information Case List (Sept. 1988), at 351-52). See also Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982); Long v. IRS, 596 F.2d 362, 364-65 (9th Cir. 1979), cert. denied, 446 U.S. 917 (1980); Mayock v. INS, 714 F. Supp. 1558, 1566 (N.D. Cal. 1989). To remove any lingering doubt on the point, the survey specifically requested all agencies to indicate any recent instance in which this principle has not been followed. See Appendix A at 2 n.1. The agencies' survey responses indicated no such instance.
2. See "Electronic Collection and Dissemination of Information by Federal Agencies: A Policy Overview," H.R. Rep. No. 560, 99th Cong., 2d Sess. 22-23, 32-36 & n.137, 47-48 & n.229 (1986).
3. See U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 207-36 (1988). A separate chapter of this major study explored the operation of the FOIA in an "electronic" environment and recommended legislative attention to difficult "electronic FOIA" problems.
4. See "Electronic Acquisition and Release of Federal Agency Information," Report Prepared for the Administrative Conference of the United States, at 101-10 (Oct. 1, 1988). While the Administrative Conference concluded that "[d]ifferences in technologies and database structures used by individual agencies make it necessary, for the near term, to define FOIA obligations on a case-by-case basis," it nevertheless made recommendations generally covering "electronic record" FOIA issues. See Admin. Conf. of the U.S. Recommendation 88-10 (subparts A and E), 1 C.F.R. § 305.88-10 (1989). See also Perritt, "Electronic Acquisition and Release of Federal Agency Information: Analysis of Recommendations Adopted by the Administrative Conference of the United States," 41 Admin. L. Rev. 253 (1989).
5. See American Bar Association Resolution No. 102 (adopted Feb. 12-13, 1990). The ABA's recommendations follow closely along the lines of the recommendations of the Administrative Conference. See also Sussman, "Electronic Data and the FOIA: ABA Approves Section Recommendations," 15 Admin. L. News 1, 13-15 (Spring 1990).
6. See "Consultation on Electronic Public Information and the Public's Right to Know," held on October 23-24, 1989, with accompanying conference papers. This private, two-day conference addressed "electronic information" issues both under the FOIA and in the broader context of federal information dissemination policies generally. See also "Electronic Public Information and the Public's Right to Know," Report of Conference Proceedings, Benton Foundation (1990). A comprehensive listing of references regarding "electronic record" FOIA issues can be found at Appendix B.
7. See Federal Information Dissemination Policies & Practices: Hearings Before the Gov't Information, Justice & Agriculture Subcomm. of the House Comm. on Gov't Operations, 101st Cong., 1st Sess. (1989).
8. The Subcommittee on Technology and the Law touched upon the subject of "electronic record" issues in a questionnaire that it sent to a number of federal agencies in connection with the FOIA oversight hearing held by it in 1988. See FOIA Update, Summer 1988, at 2; see generally The Freedom of Information Act: Hearing Before the Subcomm. on Technology & the Law of the Senate Comm. on the Judiciary, 100th Cong., 2d Sess. (1988).
9. The survey was commenced in May 1989 and, to include the responses of as many executive branch departments and agencies as possible, was continued into October. See FOIA Update, Summer 1989, at 2. On November 30, 1989, the Office of Information and Privacy gathered representatives from all of the responding agencies to review the survey results and to formally advise them of the Justice Department's intention to try to forge uniform executive branch positions on "electronic record" FOIA issues. This initial gathering of interested federal agencies was a preliminary step toward that goal.
10. See Appendix A. An additional "electronic record" FOIA issue concerns the "agency record" status of "electronic mail." That issue is presently before the courts in a pending case involving the "PROFS" electronic mail system employed by the Executive Office of the President and the National Security Council. See Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989), permission to take interlocutory appeal granted, No. 90-5173 (D.C. Cir. June 5, 1990) (oral argument scheduled Nov. 8, 1990).
11. A listing of all such agency regulations and policy statements identified by the survey can be found at Appendix C.
12. The survey received wide circulation within the executive branch. In the interest of establishing as comprehensive a compilation of agency views as possible, all survey responses received by the Office of Information and Privacy have been included. In some instances, distinct responses received from major sub-agencies are included as well.
13. Many agencies specifically declined to take a position on one or more of the survey issues. In some instances, it was not immediately apparent from the agency's discussion of an issue exactly which position, if any, it was taking, so it was necessary to discern that as best as possible from the totality of the agency's response.
14. This solitary reference to such matters in the legislative history of the FOIA, made regarding the fee provisions of the 1974 FOIA Amendments, states in full as follows:
With respect to agency records maintained in computerized form, the term "search" would include services functionally analogous to searches for records that are maintained in conventional form. Difficulties may sometimes be encountered in drawing clear distinctions between searches and other services involved in extracting information from computerized record systems. Nonetheless, the committee believes it desirable to encourage agencies to process requests for computerized information even if doing so involves performing services which the agencies are not required to provide -- for example, using its computer to identify records. With reference to computerized record systems, the term "search" would thus not be limited to standard record-finding, and in these situations charges would be permitted for services involving the use of computers needed to locate and extract the requested information.
S. Rep. No. 854, 93d Cong., 2d Sess. 12 (1974), reprinted in Freedom of Information Act & Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts & Other Documents, at 164, Subcomm. on Gov't Information & Individual Rights of the House Comm. on Gov't Operations/Subcomm. on Admin. Practice & Procedure of the Senate Comm. on the Judiciary (Joint Committee Print) (Mar. 1975).
15. Also complicating this picture is the fact that in some instances the "programming" activity necessary to achieve the desired result might require relatively few keystrokes by experienced personnel. Indeed, as has been observed, "[i]n many cases, new programming to retrieve computer records may be less costly and/or time consuming than searches for paper records." U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 229 (1988). Moreover, with "relational databases" and other advances in information technology, it can become increasingly difficult to distinguish between program modification and mere queries made through existing retrieval programs. See generally id. at 226-31.
16. See also Forsham v. Harris, 445 U.S. 169, 186 (1980) (declining to order step that "effectively would be compelling the agency to 'create' an agency record"); Krohn v. Department of Justice, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (agency "cannot be compelled to create the [intermediary records] necessary to produce the data, information and statistics" sought); U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 214-16 (1988) (discussing "intellectual debate" over "the line between record searching and record creation"); cf. Martin & Merrell, Inc. v. United States Customs Service, 657 F. Supp. 733, 734 (S.D. Fla. 1986) ("The Act in no way contemplates that agencies, in providing information to the public, should invest in the most sophisticated and expensive form of technology.").
17. FOIA requesters may also point to the increasing conversion of agency files from "conventional" to "electronic" systems and to their reasonable concern that public access to agency information not be diminished by this conversion process. Thus, a policy objective can be to ensure no diminution of public access through automation -- a sound principle that has animated much of the attention paid to "electronic record" FOIA issues thus far. See, e.g., Admin. Conf. of the U.S. Recommendation 88-10 (subpart E.3), 1 C.F.R. § 305.88-10 (1989) ("A proper rule of thumb is that it should not be any more difficult to obtain information under the FOIA after automation than before.").
The policy question more deeply underlying this principle, however, is whether agencies should take pains to afford significantly enhanced FOIA access to "electronic" files as compared to what was available when those files existed in "conventional" form. See, e.g., U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 217 (1988) (observing that, in comparable context, D.C. Circuit "determined that new capabilities of computers should not result in the expansion of duties imposed on agencies") (citing Yeager v. DEA, 678 F.2d 315, 322 (D.C. Cir. 1982)).
18. If viewed in isolation, of course, the administrative burden presented by any given FOIA request for "electronic records" might not seem to be unmanageably large in and of itself. And in many instances, it might actually be less than the burden involved in handling that request in "conventional" form. See note 15 supra. This assumes, however, that such a FOIA request would ever be made in a "conventional" realm.
19. The Clarke decision was not followed as precedent in an administrative appeal determination rendered on this issue within the Department of Energy. In a matter entitled National Security Archive, Case No. KFA-0146, slip op. at 4-5 (Nov. 24, 1987), the Department of Energy's Office of Hearings and Appeals ordered an agency component to "promptly conduct a new search for additional documents" through its computer system, "even if a computer must be programmed" to do so. Upon a request for clarification, however, the Office of Hearings and Appeals issued a new decision clarifying that its initial decision was based upon the belief that the agency component "had software capable of searching its database" in the manner requested; it stated that it "did not intend to imply in [that initial decision] that [the component] must reprogram its computers in order to comply with an FOIA request irrespective of the amount or type of programming required." Office of Scientific & Technical Information, Case No. KFA-0158, slip op. at 6 (May 26, 1988), reprinted in Federal Information Dissemination Policies & Practices: Hearings Before the Gov't Information, Justice & Agriculture Subcomm. of the House Comm. on Gov't Operations, 101st Cong., 1st Sess. 441-48 (1989). It specifically declined to address "the extent, if any, to which an agency is required to write or modify a program in order to retrieve computerized information." Id.
20. It is not uncommon to have difficulty with an undefined, "reasonableness" standard. The Office of Technology Assessment study of "electronic record" FOIA issues recognizes this difficulty: "Clearly, drawing lines between reasonable degrees of effort is a difficult task." U.S. Cong., Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age, 229 (1988). See also Federal Information Dissemination Policies & Practices: Hearings Before the Gov't Information, Justice & Agriculture Subcomm. of the House Comm. on Gov't Operations, 101st Cong., 1st Sess. 492 (1989) (discussing difficulty of delineating FOIA search obligations through use of term that "has no fixed meaning" and can be applied "inconsistently").
On the other hand, the American Bar Association recommends that agencies be permitted to deny FOIA requests on the basis of any programming activity involved only where such efforts "would be unreasonably burdensome" -- without attempting to define this talismanic term. American Bar Association Resolution No. 102, |2 (adopted Feb. 12-13, 1990), published in 15 Admin. L. News 1, 13 (Spring 1990). Similarly, the Administrative Conference recommends, without explanation, use of "a standard of reasonableness" in this regard. Admin. Conf. of the U.S. Recommendation 88-10 (subpart A.2), 1 C.F.R. § 305.88-10 (1989). See "Electronic Acquisition and Release of Federal Agency Information," Report Prepared for the Administrative Conference of the United States, at 106-07 (Oct. 1, 1988) (analyzing "programming" issue as "fees" issue only).
21. The importance of recovering the costs involved in the handling of FOIA requests was stressed by many agencies, regardless of their views on particular survey issues. Federal agencies are limited under the FOIA to "recovery of only the direct costs of search, duplication [and, in the case of 'commercial' requests,] review." 5 U.S.C. § 552(a)(4)(A)(iv) (1988); see also 5 U.S.C. § 552(a)(4)(A)(iv)(I)-(II) (1988) (further limitations on FOIA fees). It is widely believed that agencies should be able to recoup the costs incurred in searching for "electronic records," whether "programming" is involved or not. See, e.g., Admin. Conf. of the U.S. Recommendation 88-10 (subpart A.2 n.2), 1 C.F.R. § 305.88-10 (1989); see also Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10011, 10018-19 (Mar. 27, 1987) (addressing "Computer Searches for Records"). But see also note 28 infra and accompanying text.
22. In such a case, the requester may choose to regard the scope of his FOIA request as having been narrowed along the retrieval/segregation lines, in which case the request would be deemed fully satisfied. Alternatively, the requester would be entitled to challenge the agency's withholding of the exempt database portions, just as a requester may challenge an agency's withholding of entire records responsive to any ordinary FOIA request.
23. Unlike with the "search" issue, though, the comparative burdensomeness of "electronic processing" can often be far less. See, e.g., Yeager v. DEA, 1 Gov't Disclosure Serv. (P-H) ¶ 80,283, at 80,690 (D.D.C. 1980) (observing that "processing" by computer can be "relatively simple" if a program can be devised to accomplish it: "The computer does the excising ordinarily performed by an agency employee with a black marking pen.") (dicta), aff'd, 678 F.2d 315 (D.C. Cir. 1982). Many agencies already possess software packages that can readily accomplish this.
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