Vol. VI, No. 2
FOIA Counselor: Questions & Answers
Are FOIA lawsuits routinely entitled to priority in court over other civil actions?
No. Subsection (a)(4)(D) of the FOIA, which was added as part of the 1974 Amendments to the Act, provided that except for matters which a court considered to be of "greater importance," FOIA cases were to automatically "take precedence on the docket over all cases
Can a FOIA requester require an agency to make "automatic" releases of its records as they are created?
No. It is a well-settled principle of FOIA law that "[t]he Act compels disclosure only of existing records." Nolen v. Rumsfeld, 535 F.2d 890, 891 (5th Cir. 1976), cert. denied, 429 U.S. 1104 (1977). The Supreme Court emphasized this point in its decision in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), in which it also specifically concluded, based upon the FOIA's legislative history, that "agencies generally are not obligated to provide extensive services in fulfilling FOIA requests." 445 U.S. at 154. Indeed, in the few cases to have raised the issue of "prospective" FOIA requests the courts have uniformly held that such requests are not proper. As long ago as 1969, for example, the U.S. Court of Appeals for the Seventh Circuit rejected the argument that the FOIA entitles requesters to automatically receive updates of existing requested documents, because acceptance of such a notion would mean that agencies could be required to "run what might amount to a loose-leaf service" for FOIA requesters. Tuchinsky v. Selective Service System, 418 F.2d 155, 158 (7th Cir. 1969). Likewise, when a FOIA requester contended that an agency was obligated to provide "automatic mailings of updated materials," the U.S. Court of Appeals for the First Circuit found that there is nothing in the law which "imposes such an explicit mandate on agencies." Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978). Most recently, the U.S. Court of Appeals for the Eleventh Circuit has also declared: "Nothing in the FOIA can be construed as requiring an agency to set up a mailing list to automatically disseminate agency records or information." Mandel Grunfeld & Herrick v. United States Customs Service, 709 F. 2d 41, 43 (11th Cir. 1983). See also Disabled Officer's Association v. Rumsfeld, 428 F. Supp. 454, 459 (D.D.C. 1977) ("The FOIA obligates an agency only to produce non-exempt records and information which it presently
Can the deliberative process privilege under Exemption 5 be invoked to withhold the identities of authors of predecisional documents?
Yes, under some circumstances. The deliberative process privilege, as it is incorporated into Exemption 5, recognizes the necessity of protecting an agency's decisionmaking process leading up to the adoption of final agency policy. See generally Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866-68 (D.C. Cir. 1980). Underlying the need for such protection of the decisionmaking process is the importance of encouraging open and candid advice, recommendations and exchanges of views within an agency. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-52 (1975). However, the privilege protects from disclosure only that information which, if disclosed, would harm the deliberative "process," Montrose Chemical Corp. v. Train, 491 F.2d 63, 68-71 (D.C. Cir. 1974), not simply all deliberative "materials," ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1239 (D.C. Cir. 1983), rev'd on other grounds, 104 S. Ct. 1936 (1984).
In many circumstances, disclosure of the name of the agency employee who authored a document will not in any way harm the agency's deliberative process. For example, it may be obvious that an agency head would act on a particular matter only after having received the advice of the assistant secretary responsible for that program area; in such a situation, it cannot be said that the identity of the advising official is sensitive and that its disclosure would impair the agency's decisionmaking process. On the other hand, where any one of several individuals could be responsible for providing a recommendation to a decisionmaker, it is possible that identification of the actual advisor could cause sufficient impairment to justify Exemption 5 protection. See, e.g., City of West Chicago v. NRC, 547 F. Supp. 740, 750 (N.D. Ill. 1982) (list of "contributors" to draft document held properly protectible in order to keep them "free of publicity and the concomitant need to justify in public their tentative opinions"). See also Brinton v. Department of State, 636 F.2d 600, 604 (D.C. Cir. 1980) ("If these agency records are indeed deliberative, it is appropriate to apply Exemption 5 to the documents themselves, as well as to the names of their authors."), cert. denied, 452 U.S. 905 (1981); Tax Reform Research Group v. IRS, 419 F. Supp. 415, 423-24 (D.D.C. 1976) ("One aspect of the deliberative process
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