FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1984
FOIA Update
Vol. V, No. 1

FOIA Counselor: Questions & Answers

How should an agency charge applicable search fees when it has more than one request for the same records?

The fee provision of the FOIA provides that an agency may charge fees to recover "the direct costs of [document] search and duplication." 5 U.S.C. § 552(a)(4)(A). Accordingly, once an agency commences a search pursuant to a FOIA request for certain records, subsequent FOIA requesters of the same records should not be charged search fees; inasmuch as that is a cost that is normally incurred by a first requester only, it cannot be considered a "direct cost" for subsequent requesters.

Equitable considerations require application of a different rule, however, when an agency has more than one request for the same records in a pending request backlog. In such instances, even though one request will probably have been made before the others, agencies should process the requests together and should apportion the search fees evenly among all existing requesters. The key point in this latter situation is that at the time at which the search efforts are commenced, those efforts must fairly be regarded as being expended on behalf of all persons with requests pending for the records in question.

How far does an agency have to extend its review efforts to make sure that requested information withholdable under the FOIA has not previously been made public?

As a general rule, an agency need not conduct a collateral "investigation" to determine whether information protectible under one or more of the FOIA's exemptions has previously been disclosed, at least not in the absence of a specific demonstration by the requester that such a disclosure has been made. See Williams v. United States Department of Justice, 556 F. Supp. 63, 66 (D.D.C. 1982) (refusing to impose upon an agency an obligation to investigate the possibility that privacy interests of individuals mentioned in ABSCAM files "may have been breached in the course of many-faceted proceedings occurring in different courts over a period of prior years," because the plaintiff had "presented no specific, concrete cases of withheld materials that have been made public in [such] proceedings"); see also, e.g., Dow, Lohnes & Albertson Presidential Commission on Broadcasting to Cuba, Civil No. 82-0929, slip op. at 14-15 (D.D.C. Jan. 23, 1984) ("plaintiff fail[ed] to demonstrate that the withheld information has already been specifically revealed to the public") (emphasis in original). Similarly, in a "prepublication review" case, the D.C. Circuit Court of Appeals recently held that the CIA "cannot reasonably bear the burden of conducting an exhaustive search to prove that a given piece of information is not published anywhere." McGehee v. CIA, 718 F.2d 1137, 1141 n.9 (D.C. Cir. 1983). See also Dunaway v. Webster, 519 F. Supp. 1059, 1078 & n.17 (N.D. Cal. 1981) (Exemption 7(C) upheld to protect identities of individuals of investigative interest to FBI, despite plaintiff's claim that some might be deceased, because "it would be a task beyond the scope of reasonable endeavor to expect the government to track them all down"); but see also Diamond v. FBI, 532 F. Supp. 216, 227 (S.D.N.Y. 1981) (ordering agency to re-check its files, including some 200,000 pages outside the scope of the request, to determine whether each individual whose identity was protected pursuant to Exemption 7(C) in documents thirty years old was still alive and, if so, whether he had "indicated in any manner preferences about disclosing his name and involvement"), aff'd on other grounds, 707 F.2d 75, 77 n.2 (2d Cir. 1983), cert. denied, 52 U.S.L.W. 3548 (U.S. Jan. 23, 1984) (No. 83-258).

It should be remembered, however, that prior official public disclosures can hardly be ignored in FOIA processing. See, e.g., Tigar & Buffone v. United States Department of Justice, Civil No. 80-2382, slip op. at 10-11 (D.D.C. Sept. 30, 1983) (FOIA affiant must be familiar with matters that were subjects of public congressional hearings and criminal prosecutions). See also FOIA Update, Spring 1983, at 6 (discussing standards governing "waiver" under the FOIA).

Do agencies have a duty under the FOIA to answer written questions?

No, not unless such a question can fairly be read as constituting a "reasonably described" request for access to particular records within the meaning of 5 U.S.C. § 552(a)(3). The Supreme Court has squarely held that the FOIA does not require agencies to "create explanatory material." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1974). See also, e.g., Borom v. Crawford, 651 F.2d 500, 501 (7th Cir. 1981) (FOIA does not require the compilation of statistical data); Krohn v. Department of Justice, 628 F.2d 195, 198 (D.C. Cir. 1980) (same); Giza v. HEW, 628 F.2d 748, 751 (1st Cir. 1980) (agency expert could not be compelled to explain statements in previously disclosed records); but see also Diamond v. FBI, 487 F. Supp. 774, 777 (S.D.N.Y. 1979) (FBI required to provide a description of technical jargon and abbreviations which would be unintelligible to the average layman), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983), cert. denied, 52 U.S.L.W. 3548 (U.S. Jan. 23, 1984) (No. 83-258). However, while agencies do not have to create or compile new records in response to FOIA requests (whether formulated in question form or not), they should make good faith efforts to assist requesters in honing any requests for readily accessible records which are "inartfully presented in the form of questions." Ferri v. Bell, 645 F. 2d 1213, 1220 (3d Cir. 1981).

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