FOIA Update: FOIA Counselor: Questions & Answers
Vol. XV, No. 3
FOIA Counselor: Questions & Answers
Yes. The administrative practice of making record referrals under the FOIA can facilitate the processing of requests, and be advantageous to the overall process of FOIA administration, but agencies should make sure that requesters are not placed at any disadvantage through their referral practices. As a practical matter, when an agency processes a request that encompasses records that originated with another agency, it often will be most efficient for it to refer those records to that originating agency for its direct disclosure determination and response to the FOIA requester. See FOIA Update, Summer 1991, at 3-4 ("OIP Guidance: Referral and Consultation Procedures"). This is a matter of longstanding administrative practice, one that allows a FOIA disclosure determination to be made directly by the agency that is best able to do so. See id. at 4; see also, e.g., Stone v. Defense Investigative Serv., No. 91-2013, slip op. at 1 (D.D.C. Feb. 24, 1992) ("Pursuant to a longstanding practice among agencies, the DIS referred those documents to the originating agencies for direct response."), aff'd, 978 F.2d 744 (D.C. Cir. 1992). In most instances, such a referral will lead to the resolution of the FOIA request with respect to the referred records by the agency of origination.
At bottom, however, the agency that receives a FOIA request retains the responsibility to defend any action taken with respect to the records found responsive to that request -- including any records referred to another agency. Therefore, in defending a FOIA lawsuit brought regarding a request that involved referred records, an agency should not overlook its responsibility to defend any nondisclosure action taken with respect to those records. In a case decided last year, for example, Williams v. FBI, No. 92-5176, slip op. at 2 (D.C. Cir. May 7, 1993), the D.C. Circuit reminded the defendant agency of its duty to defend the nondisclosure of a record that had been referred elsewhere. This obligation can be met by obtaining an applicable Vaughn affidavit from the agency of origination, through the coordination of litigation counsel. See, e.g., Gray v. Department of Justice, No. 92-775, slip op. at 3 (D.D.C. Sept. 24, 1993).
Additionally, agencies either making or receiving record referrals should ensure that the requester is not disadvantaged by the timing of that process. The agency receiving a referral should handle it on a first-in, first-out basis among its other FOIA requests -- but it should do so according to the date of the request's initial receipt at the referring agency (not the date of the referral), which should be specified by the referring agency. Accord Freeman v. Department of Justice, 822 F. Supp. 1064, 1067 (S.D.N.Y. 1993) (requester should "receive her rightful place in line as of the date upon which her request was received"). Similarly, in those cases in which multiple agencies have to be consulted in order to determine the disclosure status of a record, that should be accomplished most efficiently through a simultaneous (not sequential) consultation process. Accord President Clinton's FOIA Memorandum of Oct. 4, 1993, reprinted in FOIA Update, Summer/Fall 1993, at 3 (admonishing against unnecessary hurdles in processes of FOIA administration).
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