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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. III, No. 3

FOIA Counselor: Questions & Answers

Are "personal notes" maintained by an agency employee subject to FOIA disclosure?

Because the FOIA applies only to agency records, "personal notes" maintained by an agency employee should not be subject to FOIA disclosure. Unfortunately, the terms "agency record" and "personal notes" are not adequately defined. Therefore, issues involving the applicability of the FOIA to "personal notes" must be decided on a case-by-case basis. Surprisingly, there have been very few such cases litigated. One case recently decided, however, suggests the factors that courts may consider in determining the status of "personal notes." The documents at issue in British Airports Authority v. CAB, 531 F. Supp. 408, 412 (D.D.C. 1982), were handwritten notes made by an employee solely for use in preparing a memorandum for other agency officials. In holding that such notes were not agency records subject to the FOIA, the court emphasized that they were personal in nature, that the employee need not have created them, that he intended them not to be permanent, and that he kept them in his personal desk files with no intent to distribute them. See also Porter County Chapter of Isaak Walton League v. AEC, 380 F. Supp. 630, 633 (N.D. Ind. 1974) (handwritten materials created by agency employees for their own purposes while executing employment responsibilities not "agency records" under FOIA).

What rights do foreign nationals have under the Freedom of Information Act?

Under existing law, foreign nationals have the same rights of access under the Freedom of Information Act as do United States citizens. The only point of difference in this regard is that when an agency advises a foreign national requester of his right to review in federal district court, he need not be advised that he can bring suit in a judicial district of his residency (unless he has been lawfully admitted for permanent residence). By contrast, the Privacy Act of 1974 limits its access rights to United States citizens and aliens lawfully admitted for permanent residence. See, e.g., Raven v. Panama Canal Co., 583 F.2d 169, 170 (5th Cir. 1978), (citing 5 U.S.C. § 552a(a)(2),cert. denied, 440 U.S. 980 (1979).

When a record requested under the FOIA is found in the files of one agency but was originated in another agency, which agency (1) is responsible for responding to the request, and (2) is the proper party defendant in a lawsuit brought to compel disclosure of the record?

When an agency receives a FOIA request, it typically refers any requested documents originating with other agencies to those agencies for processing. The rationale behind this is at least two-fold. First, such referral saves time. The originating agency is presumably more familiar with the material and can therefore process its own records faster and more effectively. Indeed, if the custodial agency were to process the records itself it would probably have to consult with the originating agency. The second reason is limited to those cases involving classified material. Because in most instances only the originating agency has the authority under the Executive Order to review and declassify documents which it classified, the custodial agency would be incapable of responding to the request.

For these reasons, the law is now clear that only the originating agency is a proper party defendant in a lawsuit brought to compel disclosure of records it generated. See, e.g., McGehee v. CIA, 533 F. Supp. 861, 869 (D.D.C. 1982) (in suit against CIA, court dismissed action as it pertained to documents originating in State Department and FBI because those agencies had not been made parties to the suit); British Airports Authority v. CAB, 531 F. Supp. 408, 418 (D.D.C. 1982) (in suit against CAB only, court lacked jurisdiction over document which originated with State Department). For a further discussion of these issues, see Strickland and Wood, "Agency Processing of FOIA Requests for Records That It Did Not Originate," PH Gov. Disclosure Service, Vol. 1, ¶ 7018.


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Updated December 9, 2022