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FOIA Update: Recordkeeping Procedures Examined

FOIA Update
Vol. III, No. 1

Recordkeeping Procedures Examined

With few exceptions, records in the physical possession of a federal agency are subject to the Freedom of Information Act.

Agencies do not, however, have to retain indefinitely all records which are created by or submitted to them. Under the Federal Records Act, 44 U.S.C. § 3102 and § 3103, agencies are required to establish records management programs which identify records that should be preserved and to plan for the storage and disposal of records having only temporary significance.

It is estimated that only about five percent of government records, because of their administrative, legal, research or other value, become part of the permanent national collection. For a variety of reasons, many more records are retained for longer periods of time than are required.

In addition, some materials can be returned to submitters in the private sector, because of the circumstances under which they were obtained, once there is no longer a need for them. Agencies should be aware that once a Freedom of Information Act request has been received, the requested records assume a special status and ordinarily must be retained until the requester's access rights are determined.

Federal records, generally speaking, fall into two categories: administrative materials which are standard throughout the entire government and for which there is a schedule for retention and disposition furnished by the National Archives and Records Service (NARS), and other materials which are related to the kinds of programs conducted by the individual agencies. Individual schedules for retention and final disposition of records are developed by agency personnel in consultation with the Archivist of the United States.

The Justice Effort

At the Justice Department, there is a full scale effort underway to help managers and clerical workers focus on files maintenance and records disposition practices. Under the guidance of Bernie Berglind of the Justice Management Division's Records and Publications Staff, a course in files maintenance and records disposition will be given five times in 1982, beginning with a class Jan. 5-6.

In the course, Berglind points out that almost every move made in government generates paperwork. Some of this material--for example, reading files, informational copies and acknowledgments--need not be kept. Other routine material need not be kept for as long as some offices may keep it. In fact, a significant portion is covered by the routine retention and disposal schedule.

At the FAA

Over the years, the Federal Aviation Administration (FAA) has reviewed a great deal of material in the complex process of certifying the airworthiness of airplanes and the safety of parts and modifications.

At first, the FAA took the position that this material -- called Type Design Data -- was the sort of "agency records" required to be retained. Although this information was generally thought to be in large part protected under Exemption 4 of the FOIA, it was often sought by tort litigants involved in suits against both large and small manufacturers. "A classic use of the FOIA in place of discovery," notes John Walsh, chief of the General Law Branch, FAA.

Then came two Supreme Court decisions clarifying what constitutes an "agency record" under the FOIA. "Two recent Supreme Court decisions establish that the Government has no obligation, and perhaps no right, to consider manufacturers' technical data not in its possession to be agency records covered by the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980); Forsham v. Harris, 445 U.S. 169 (1980)," Walsh noted in a memo.

He then concluded that technical data which "never physically reaches FAA premises because it is examined by designees of the Administrator is not 'obtained' by the FAA and, therefore, is not susceptible to disclosure under the FOIA."

Further, "technical data which has been returned by the FAA to the manufacturer before a FOIA request for it is received, because the FAA has no current need for it, is not in the possession or control of the FAA and, therefore, is not susceptible to disclosure under the FOIA . . ."

The FAA's new policy includes an agreement with the manufacturers that secures the records should a court disagree with agency policy or should there be some question as to the business future of a manufacturer.

The Antitrust Division

The Justice Department's Antitrust Division and the Federal Trade Commission follow similar procedures related to return of materials.

At the Antitrust Division, there is a long-standing practice of returning documents submitted in response to a grand jury subpoena or a civil investigative demand, once the investigation is completed. Rules for limiting the retention of these documents are spelled out in a Division Directive dated Dec. 18, 1980.

For case law authorizing the practice of returning subpoenaed documents see Application of Bendix Aviation Corp., 58 F. Supp. 953 (S.D.N.Y. 1945), and In re Petroleum Industry Investigation, 152 F. Supp. 646 (E.D. Va. 1957).

At the FTC, Jack Schwartz, deputy assistant general counsel, said that the 96th Congress, apparently noting that DOJ's practices seemed to be working, "in essence required the FTC to adopt a formal practice" of returning original documents to submitters. The FTC would keep copies, only as needed, Schwartz says. The FTC regulation, adopted in accord with P.L. 96-252, states that "[A]ny person who has submitted documentary material to the Commission may file a written request for the return of original documents which have not been received into evidence (1) after the close of the proceeding in connection with which the documents were submitted, or (2) when no proceeding in which the material may be used has been commenced within a reasonable time . . ."

In sum, the timely application of destruction schedules and other record disposition techniques can result in superior records management and less costly FOIA searches. A list of General Services Administration courses in records and files management appears on page 12 of FOIA Update.

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Updated August 13, 2014