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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. IV, No. 1

FOIA Counselor: Questions & Answers

What showing is necessary to satisfy the threshold requirement of Exemption 7?

In determining whether a document qualifies as an "investigatory record compiled for law enforcement purposes" under Exemption 7, the courts have generally distinguished between agencies with both law enforcement and adminstrative functions and those whose principal function is criminal law enforcement. An agency whose functions are "mixed" usually must show that its investigation involved the enforcement of a statute or regulation within its authority, Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1980), and that the records were compiled for specific "adjudicative or enforcement purposes." Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 80 (D.C. Cir. 1974).

Far less scrutiny is applied to the records of criminal law enforcement agencies. Indeed, some courts have upheld Exemption 7 claims asserted by the FBI even absent the showing of a connection between the organization or activities being investigated and specific violations of federal law, on the rationale that "investigatory records of law enforcement agencies are inherently compiled for 'law enforcement purposes.'" Irons v. Bell, 596 F.2d 468, 475 (1st Cir. 1979). See also Kuehnert v. FBI, 620 F.2d 662, 667 (8th Cir. 1980). The D.C. Circuit requires also that a "nexus" between the investigation and one of the agency's law enforcement duties be shown based on information sufficient to support at least "a colorable claim" of its rationality. Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982).

For a further discussion of these and related points, see the 1982 Freedom of Information Case List ("Short Guide to the Freedom of Information Act") at 206-07.

Are drafts absolutely protected under Exemption 5?

No, but they have been identified as a class of documents very likely to be found exempt. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (Exemption 5 "covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency"). To withhold draft documents under Exemption 5, an agency must be able to describe both the particular deliberative process involved and the "role played by the documents in that process." Id. at 868. See also King v. IRS, 684 F.2d 517, 519-20 (7th Cir. 1982). A careful description of these elements is essential because a court may not be able to discern them on its own. See Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982). It must also be shown that the draft is both predecisional (written before the adoption of a policy) and deliberative (reflective of the "give-and-take" of the consultive process). Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 866.

In the recent case of Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982), it was argued that Exemption 5 could not protect a particular draft report because it did not precede an actual decision. The D.C. Circuit decisively held, however, that the very finalization of the report was in and of itself an agency decision, to which the draft was surely "predecisional." Id. at 1049 n.1. Significantly, the D.C. Circuit distinguished its ruling in Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir. 1982), by noting that Russell involved a document preceding a final report, whereas Playboy involved a report in its final form. See 684 F.2d at 1047.

Predecisional status is lost, however, if the draft is utilized for policy guidance so that it becomes the "working law" of the agency. See Arthur Andersen & Co. v. IRS, 679 F.2d at 259; Taxation With Representation Fund v. IRS, 646 F.2d 666, 682 (D.C. Cir. 1981) (documents were indexed and consulted by IRS agents as sources of law); Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 860 (draft document actually cited as precedent to the public). Merely retaining a draft in an agency file, however, will not render the deliberative process protection of Exemption 5 inapplicable. See, e.g., King v. IRS, 684 F.2d at 521.

Can a FOIA requester go to court before the completion of the administrative process?

Yes, under some circumstances. Although the general rule of administrative law is that all administrative remedies must be fully exhausted before one can sue, the FOIA provides an exception. Under 5 U.S.C. § 552(a)(6)(C), a FOIA requester is "deemed to have exhausted his administrative remedies" when an agency fails to meet the statutory time limits. Thus, when an agency does not respond to a FOIA request within 10 working days, the requester can seek immediate judicial review. See, e.g., Jenks v. United States Marshals Service, 514 F. Supp. 1383, 1384-87 (S.D. Ohio 1981); Information Acquisition Corp.v. Department of Justice, 444 F. Supp. 458, 462 (D.D.C. 1978).This is so even where the agency responds before the filing of a suit. See Martinez v. FBI, 3 GDS ¶ 83,005 (D.D.C. 1982).

To what standards are agencies generally held on "adequacy of search" issues?

An agency is required to make reasonable efforts to locate documents responsive to a FOIA request, but it is not required to "reorganize its filing system in response to a request," nor to search every document in its possession. Goland v. CIA, 607 F.2d 367, 369-70 (D.C. Cir. 1979) (supplemental opinion), cert. denied, 445 U.S. 927 (1980). The test is one of overall reasonableness; nonconclusory affidavits explaining in reasonable detail the scope and method of the search conducted by the agency and submitted in good faith should suffice to demonstrate adequacy of search. See, e.g., Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982); Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). In cases in which it is clear that requested documents did at one time exist, courts usually require not only a detailed explanation of the search conducted but also a convincing explanation of why further searches would be unreasonably burdensome. See, e.g., Weisberg v. Department of Justice, 627 F.2d 365, 370-71 (D.C. Cir. 1980). However, where an agency's affidavit is sufficiently detailed, a requester's general assertions that more documents "must exist" should be no obstacle to dismissal. See, e.g., Goland v. CIA, 607 F.2d 339, 353-55 (D.C. Cir. 1978) (original opinion); Ground Saucer Watch, Inc. v. CIA, 1 GDS ¶ 80,128 (D. D.C. 1980), aff'd, 692 F.2d 770, 771-72 (D.C. Cir. 1981) (per curiam).


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Updated December 9, 2022