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FOIA Update: Proposed Electronic Record FOIA Principles Circulated

FOIA Update
Vol. XV, No. 4

Proposed Electronic Record FOIA Principles Circulated

A set of proposed principles on electronic record Freedom of Information Act issues has been drafted by an interagency working group and is being circulated both within and outside of the executive branch in contemplation of the possible development of consensus legislation addressing those issues.

Information Infrastructure Task Force

The principles were drafted by a working group of agency FOIA and technical experts that was formed within the structure of the federal government's Information Infrastructure Task Force (IITF), which is examining a wide range of telecommunication and information policy issues related to the development of the National Information Infrastructure. The working group was asked by the IITF's Information Policy Committee to examine the FOIA issues that arise in an electronic environment, with the ultimate objective of developing consensus positions on those issues in the form of remedial legislation. Serving as a backdrop to this activity were the proposed provisions of S. 1782, the Senate electronic record FOIA bill that received active consideration by the Senate, but not the House of Representatives, in the 103d Congress during the past year. (See FOIA Update, Summer 1994, at 1-2.)

The sixty-six principles drafted by this IITF working group represent its collective judgment of the electronic record FOIA rules that could be most workable for both federal agencies and the FOIA-requester community. They are being circulated for review within the IITF structure, as well as to agencies and interested members of the public, to lay the groundwork for the development of possible consensus positions on such issues. (See pages 3-6 of this issue of FOIA Update for the full text of the principles proposed.)

In summary, they contain the following primary points of proposed policy:

  • General principles. In general, the proposal would encourage federal agencies to make good use of electronic information technology in order to enhance their administration of the FOIA -- both directly under the Act and indirectly through "affirmative" information disclosure. The proposed principles recognize the importance of applying the FOIA to different types of information and circumstances found in an electronic environment, while at the same time emphasizing the importance of workable rules that clearly delineate all new agency obligations and minimize the potential for conflicts with FOIA requesters in that environment. They also recognize the increasing significance of electronic dissemination as a means of achieving public disclosure of government records and information, particularly regarding information that is not exempt in any respect.

    The proposed principles proceed from the basic premise that agencies should take affirmative steps to make information available in satisfaction of anticipated public demands for it -- entirely apart from the FOIA and consistent with the information-dissemination policies of OMB Circular A-130 -- and that FOIA processes ought not to be encumbered by requests for publicly available records or information. Accord ingly, they propose excluding from the Act's coverage any information that is affirmatively made available to the public by agencies through established electronic information outlets. Similarly, they propose such treatment for publicly available reference items (such as books, publications, and even commercially available computer software) as well.
  • Computer software. The principles propose treating all items of computer software as "records" that can be subject to FOIA requests -- as a flat, workable rule -- based upon the premise that effective statutory protection of the proprietary interests and agency security interests in many software items can be provided as well. They then distinguish among different categories of software according to the circumstances under which they come into an agency's possession and their commercial availability to any interested purchaser. In the most common circumstance of software that has been acquired by an agency and is commercially available, it is proposed that an agency be required under the FOIA to do no more than simply identify that software's commercial availability to a FOIA requester.

    On the other hand, any software generated within an agency, or by an outside contractor under circumstances in which no outside party retains any proprietary interest, would ordinarily be subject to FOIA disclosure. Such software in which an outside proprietary interest is maintained, including any software generated jointly under a cooperative research and development agreement, would be treated in accordance with existing statutory protections of those interests. Additionally, the principles also contemplate the circumstance in which FOIA access to an otherwise disclosable agency database might be impaired by the unavailability of the software that the agency has chosen to use for it; in such a circumstance, the principles would place a conversion obligation on the agency.
  • Definition of "record." The proposed principles specifically address other types of electronic information as well. They would treat "distributed" data -- i.e., information that is accessed electronically and merely viewed on-line, such as through a commercial electronic service -- as not a record subject to the FOIA unless it is actually retrieved into an agency database or printed out in paper form. Similarly, they would treat information maintained by an agency in "digitized" form as a record subject the Act, unless it is so transitory in character that it is not ordinarily preserved for agency documentation purposes. As for "dynamic" data -- i.e., information that is continuously changing within an electronic information system -- the principles would treat it as subject to the Act, but with a recognition that special procedures might be required to allow FOIA access without impairing the operation of the electronic system involved.
  • Automated search and retrieval. The principles propose the establishment of firm rules governing the longstanding question of the extent of an agency's obligation to undertake extraordinary "programming" activity in order to comply with a FOIA requester's particular database-retrieval preferences. They first would encourage agencies to extend the limits of their existing database-retrieval programs, as a matter of administrative discretion, in any case in which an agency determines that it can efficiently do so in satisfaction of a FOIA request. Beyond that, though, they propose that agencies be firmly required to do so in many cases -- any case in which the extraordinary database-retrieval effort involved meets an established, objective standard that can be made known to, and readily used by, agency personnel and FOIA requesters alike.

    The principles suggest that two person-hours of computer-program development time per request can be used as a workable objective standard for this purpose. They also propose the establishment of an independent limit on the amount of "computer system operation resources" (i.e., "machine time," as distinguished from "person time") that may be required to be consumed by a single FOIA request in any event, suggesting that such a limitation be set at a fixed dollar amount that can be calculated through use of a "resource algorithm" for each computer system involved.
  • Form or format of disclosure. The principles address both major aspects of the "choice of form" FOIA issue -- choice among existing record forms, and requests for the creation of new forms of records -- and in so doing cover information maintained in conventional record forms as well as information in electronic forms or formats. They propose that where the issue is a choice among alternative record forms or formats that already exist within an agency, a FOIA requester should be afforded his or her choice as a general rule. The only exceptions suggested to this rule would be for circumstances in which particular record forms cannot be handled or redacted in a FOIA administrative process due to practical difficulties with those record forms.

    Where the issue is whether an agency should be required to create a new form or format of an existing record upon request, the principles propose an approach very similar to the one proposed for determining agency data-retrieval obligations. They would start with the general rule that such record creation is a matter of agency discretion, which agencies should exercise on the basis of administrative efficiency and the identification of public demands for particular record forms. Beyond that, the principles would require an agency to undertake such record creation only for information that already exists in an electronic form to begin with -- where the requester seeks to obtain it in a different electronic format -- and as with the process of data retrieval, an agency would be required to engage in this electronic format conversion only within the same fixed limits on the expenditure of computer resources. The principles also would recognize a requester's entitlement to obtain any readily retrievable, nonexempt electronic information in paper "printout" form, if so preferred, upon payment of applicable costs.
Working Group Membership

The members of the working group that drafted these principles are: June W. Edwards, Associate General Counsel, NASA; Richard M. Friedman, Senior Attorney, Department of HHS; John N. Greer, Legislative Officer, CIA; Frank M. Machak, FOIA Coordinator, Department of State; David M. Pritzker, Senior Attorney, Administrative Conference of the United States; Steven L. Siciliano, Special Assistant to the General Counsel, Federal Reserve Board; and Charlie Y. Talbott, Chief, Freedom of Information Division, Department of Defense (FOIA experts).

Also: Linda G. Bagby, Deputy Director for C3I Policy, Department of Defense; William J. Olmstead, Associate General Counsel, NRC; Mary I. Ronan, Chief, Access Staff, NARA; Kenneth C. Scheflen, Director, Defense Manpower Data Center, Department of Defense; and Robert A. Weeks II, Management Control Officer, Executive Office for Asset Forfeiture, Department of Justice (technical experts); Virginia A. Huth and Peter N. Weiss, Policy Analysts, Office of Information and Regulatory Affairs, OMB (OMB liaisons); and Daniel J. Metcalfe, Co-Director, Office of Information and Privacy, Department of Justice (chair).

None of the agencies from whom the working group's members were drawn is by virtue of that membership necessarily committed to this proposal in any particular respect and, at this stage, no agency has yet taken any formal position on it.

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Updated December 6, 2022