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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. XVI, No. 3

FOIA Counselor: Questions & Answers

Should an agency take any special step before providing a FOIA requester with a photocopy of a record that is a poor copy or is not entirely legible?

Yes. All federal agencies "should handle requests for information in a customer-friendly manner." President's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in FOIA Update, Summer/Fall 1993, at 3. To apply this principle in this situation, there are three things that an agency can do. First, it should make reasonable efforts to check for any better copy of a record that could be used to make a better photocopy for the FOIA requester. Second, when necessary, it should make sure that the requester knows that what is being provided is in fact the best copy that is available. This can be accomplished by a specific reference to that fact in a cover letter or by the use of a "Best Copy Available" stamp on each individual page, preferably both. Third, in any case in which the photocopy provided to a requester is not entirely legible but the illegible information is nonetheless known to the agency, the agency should try to provide that information to the requester in the best way reasonably possible. Accord FOIA Update, Spring 1994, at 1 (emphasizing Attorney General's "customer-service objectives" in communications with FOIA requesters).

Does the deliberative process privilege continue to apply even after the agency decision involved is made?

Yes. This frequently asked question reflects a common misconception that Exemption 5's deliberative process privilege -- which protects predecisional opinions, recommendations, etc. -- ceases to apply once the underlying agency decision is made. To the contrary, the privilege requires only that a record be predecisional at the time at which it is created, not at any later time at which it might be withheld. See, e.g., Federal Open Mkt. Comm. v. Merrill, 443 U.S. 360, 360 (1979) (deliberative process records "remain privileged even after the decision to which they pertain" is made). At that later time, though, the fact that an underlying decision has been made could be a strong factor favoring disclosure of a privileged record as a matter of administrative discretion. See FOIA Update, Spring 1994, at 4.

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Updated August 13, 2014