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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. XIX, No. 3

FOIA Counselor: Questions & Answers

When an agency completes its annual FOIA report in the new form for fiscal year 1998, should it send the report to Congress as in the past?

No. As a result of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, both the content and the reporting procedure for agencies' annual FOIA reports have been changed. Under the amended statute, federal agencies are required to complete their annual FOIA reports within four months after the end of each fiscal year (e.g., by February 1, 1999, for the report covering fiscal year 1998), and to both submit them to the Justice Department and also make them available to the public through their FOIA sites on the World Wide Web. See 5 U.S.C. § 552(e)(1)-(2) (1994 & Supp. II 1996); see also FOIA Update, Winter 1998, at 5. The Justice Department's FOIA web site (, which now contains links to the FOIA web sites of other federal agencies, see FOIA Update, Spring 1998, at 2, will be used to electronically link all agencies' annual FOIA reports together each year in accordance with the Act's new requirements, see 5 U.S.C. § 552(e)(3). Accordingly, when each agency submits its annual FOIA report to the Justice Department each year (which it should do under cover of a letter addressed to the Office of Information and Privacy), it should specify the electronic address (the "Uniform Resource Locator," or "URL") for that document. See FOIA Update, Summer 1997, at 7. Additionally, all agencies should notify OIP of any change in their pertinent URLs, just as they do for any change in name or address of their FOIA administrative and legal contacts. See, e.g., FOIA Update, Spring 1998, at i.

If an agency can most readily compile its statistics for the new form of annual FOIA report by using "working" days rather than calendar days, should it do so?

Yes. To compile their annual FOIA reports under the amended Act, agencies now must satisfy an entirely new requirement that they keep track of and calculate "the median number of days" that their FOIA requests were pending for processing during the fiscal year. 5 U.S.C. § 552(e)(1)(C), (E); see also FOIA Update, Summer 1997, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports"). As agencies work to meet this statutory requirement, a primary concern is the "practicability" of the means by which they do so. See FOIA Update, Winter 1998, at 6 (advising agencies to use calendar days premised upon it being "impracticable" to do otherwise). So if any agency can most readily track and compile its FOIA statistics by using "working" rather than calendar days, particularly in an automated case-tracking system, it should do so. Accord H.R. Rep. No. 104-795, at 29 (1996) (expressing concern that statistic-calculation process "not increase the reporting burden on agencies").

For purposes of the new annual FOIA report, how should an agency count a request for which the requester refuses to pay an applicable FOIA fee?

Such a request should be counted as a "processed" request in an agency's annual FOIA report, but the agency need not regard the request as having been "pending" during the entire time that it might take to reach the conclusion that the requester will not pay the anticipated fee. An agency may by regulation provide that if a FOIA requester is notified of an anticipated fee (in excess of $25.00) and does not respond with an agreement to pay that fee, the request ultimately will be closed on that basis. See, e.g., 28 C.F.R. § 16.11(e) (1998) (Justice Department regulation). In such a case, the FOIA request should be included in the "disposition of initial requests" category of the agency's annual FOIA report, see FOIA Update, Summer 1997, at 5 (annual report guidelines, category V.B.4.d.), but the "processing time" for that request, see id. at 6 (category VII.A.) should include only the time prior to the point at which the requester is notified of the need to "perfect" that request, see id. at 4, not the time spent waiting for the requester to do so.

Do the grand jury secrecy restrictions of Rule 6(e) of the Federal Rules of Criminal Procedure prohibit agency FOIA officers from gaining access to grand jury information for FOIA administration purposes?

No. It is certainly true that a longstanding rule of federal criminal procedure, Rule 6(e), establishes strict limitations on access to (as well as disclosure of) any "matters occurring before [a] grand jury" by government personnel. Fed. R. Crim. P. 6(e). Absent a court order, that rule allows access to grand jury information by only "government personnel . . . deemed necessary." Fed. R. Crim. P. 6(e)(3)(A)(ii). This restriction does not prohibit necessary access to grand jury information by FOIA personnel. In fact, the Department of Justice's Criminal Division has addressed this very point in its manual governing grand jury policies and procedures: "Necessarily, 'government personnel' also includes administrative personnel who need to determine the applicability of Rule 6(e)'s disclosure prohibition for purposes of responding to requests for records under the [FOIA]. Such administrative personnel assist prosecuting attorneys in the proper enforcement of the Rule by ensuring that unauthorized disclosure of 6(e) matters does not occur and that information not covered by Rule 6(e) is not withheld improperly." Federal Grand Jury Practice 173 (Jan. 1993). Therefore, no prosecutor should bar FOIA personnel from examining any grand jury information in order to determine its FOIA status. See Canning v. Department of Justice, No. 92-0463, slip op. at 4-5 (D.D.C. June 26, 1995) (citing manual to conclude that "FOIA agents . . . are among those with approved access to grand jury material").

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Updated August 13, 2014