Vol. XVIII, No. 1
Amendment Implementation Questions
The following is a compilation of questions raised concerning provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, and answers provided to guide agency implementation of those provisions:
Should agencies automatically place in their reading rooms the FOIA-processed records that they determine have become, or are likely to become, the subject of subsequent FOIA requests?
Yes, but only after first considering the small possibility that some of those records, or portions of them, might not be appropriate for public disclosure. New subsection (a)(2)(D) of the FOIA, 5 U.S.C. § 552(a)(2)(D),as amended by Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (effective Mar. 31, 1997), establishes this new category of FOIA "reading room" records. In the very large percentage of cases, the records in this new "subsequent requests" category will have been processed under the FOIA in a form in which they can readily be made available to the public in an agency's reading room. In an exceptional case, however, an agency might disclose information to a first-party FOIA requester that it would not disclose to a third-party requester or to the general public. See FOIA Update, Fall 1996, at 1. The primary example is personal information about a FOIA requester that would be withheld from others on the basis of FOIA Exemptions 6 or 7(C), but would not be withheld as exempt from that first-party requester. Accord FOIA Update, Spring 1989, at 5 (an agency "will not invoke an exemption to protect a requester from himself"). Another possible example is business information that falls within Exemption 4 but would not be withheld from the company to which it pertains. In either case, such information might be contained in a subject-matter file that could become the subject of multiple FOIA requests. So in order to avoid any possibility of violating the disclosure prohibitions of the Privacy Act of 1974, 5 U.S.C. § 552a, or the Trade Secrets Act, 18 U.S.C. § 1905, an agency should be sure that the FOIA-processed records that it places in its reading room do not contain any such information.
Does an agency have an obligation to comply with any subsequent FOIA requests that it receives for the FOIA-processed records that it places in its reading room under new FOIA subsection (a)(2)(D)?
Yes. Although the ordinary rule for records that are placed in an agency's reading room under FOIA subsection (a)(2) is that they cannot be the subject of a regular FOIA request under the Act, see, e.g., FOIA Update, Winter 1995, at 2 (pointing to language of subsection (a)(3)), Congress made clear that it did not intend this rule to apply to the FOIA-processed records that agencies place in their reading rooms under new subsection (a)(2)(D). See H.R. Rep. No. 104-795, at 21 (1996) ("Since not all individuals . . . are near agency public reading rooms, requestors would still be able to access previously-released FOIA records through the normal FOIA process."); see also FOIA Update, Fall 1996, at 1.
Does an agency have an obligation to place a record in its regular reading room even if it has made that record available to the public in its "electronic reading room" through its Internet or World Wide Web site?
Yes. Many persons do not yet have the capability to access an agency's "electronic reading room" on its Internet or World Wide Web site and such persons would no longer have potential reading room access to newly created records under subsection (a)(2) if those records were made available through remote, on-line access only. So records that are made available on-line in an agency's "electronic reading room" should continue to be made available in the agency's conventional reading room as well. See H.R. Rep. No. 104-795, at 21 (1996) (recognizing that "not all individuals have access to computer networks"); see also FOIA Update, Fall 1996, at 2.
Can an agency meet its reading room obligation for a record by having in its conventional reading room a computer terminal through which it affords any person on-line access to that record in the agency's "electronic reading room" instead of access to it in paper form?
Yes, so long as the agency provides the means by which a person who uses that reading room can exercise his or her statutory right to obtain a copy of any reading room record that is made available for public inspection in that way. See 5 U.S.C. § 552(a)(2) (specifying that users of FOIA reading rooms are entitled to both "public inspection and copying"). Agencies also must be mindful of their obligation to facilitate the inspection of reading room records, in either paper or electronic form, with an index of the records that are made available. See id.; see also FOIA Update, Fall 1996, at 2 (advising that agencies should make clear to their reading room users which records are available in which form).
How quickly must agencies provide electronic access to reading room records?
The requirement to provide electronic access to reading room records applies to newly created records -- i.e., "records created on or after November 1, 1996" -- and it carries an initial statutory deadline of "within one year after such date" -- i.e., November 1, 1997. 5 U.S.C. § 552(a)(2),as amended by Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048. Agencies should establish Internet or World Wide Web sites to meet this requirement through on-line access, should have these "electronic reading room" sites operational by no later than November 1, 1997, and should place all newly created records onto these sites as quickly as practicable once they are created or designated as reading room records. See also FOIA Update, Fall 1996, at 1-2.
Will materials that are published and sold need to be made available electronically?
No. The language of the statute has always provided that any records that are "promptly published and offered for sale" are not subject to the requirements of FOIA subsection (a)(2). 5 U.S.C. § 552(a)(2). Such published materials are not required to be placed in agency reading rooms, either conventional ones or "electronic" ones. See also FOIA Update, Fall 1996, at 1.
If an agency's FOIA operations are decentralized, may it have more than one reading room?
Yes. Many federal agencies have so many distinct components that they administer the FOIA on a decentralized basis. Such agencies may maintain separate reading rooms for all or some of their component subagencies or offices, including field offices, so long as their FOIA regulations clearly specify all of their reading room locations. For new "electronic reading rooms," some subagencies might be so large that they maintain separate Internet or World Wide Web sites -- with on-line access to each obtained through an entirely separate "home page" -- in which case the agency should ensure that all of its separate "FOIA reading room" sites are linked together electronically so as to facilitate efficient user access.
Who should determine which records fall within the new "subsequent requests" category of subsection (a)(2)(D)?
Each agency, or agency component that processes FOIA requests on a decentralized basis, should determine which of its FOIA-processed records "have become or are likely to become the subject of subsequent requests for substantially the same records" and therefore fall within this new reading room record category. See 5 U.S.C. § 552(a)(2)(D) ("the agency determines"). The personnel of each FOIA office are in the best position to make this determination, on a case-by-case basis, based upon their familiarity with the subject matter of their FOIA-processed records, their knowledge of the FOIA requests that they have received in the past, and their best judgment as to the types of FOIA requests that they are likely to receive in the foreseeable future. See also FOIA Update, Fall 1996, at 1 (advising that FOIA offices should routinely consider whether the records they disclose have already been the subject of subsequent FOIA requests or will likely be sought in "multiple requests in the future"). Additionally, in any case in which different components of an agency are aware that they may be making this determination for similar sets of records, they should try to coordinate their treatment of those records with respect to subsection (a)(2)(D).
What does the phrase "regardless of form or format" in new subsection (a)(2)(D) mean?
The phrase "regardless of form or format" means that agencies must place in their reading rooms copies of all FOIA-processed records that they determine fall into this new "subsequent requests" category, even if those records exist in some form other than conventional paper form -- for example, audiotape, videotape, or some electronic form. Agencies should make these FOIA-disclosed records available in a way that facilitates their inspection by subsequent potential FOIA requesters, so as to best serve this provision's underlying objective of "diverting some potential FOIA requests for previously-released records." H.R. Rep. No. 104-795, at 21 (1996); see also FOIA Update, Fall 1996, at 1.
How long should agencies maintain the availability of records in their reading rooms, particularly the availability of FOIA-processed records determined to fall within new subsection (a)(2)(D)?
As a general rule, an agency should continue to maintain a subsection (a)(2) record in its reading room for as long as it remains current. The policy statements and administrative staff manuals that agencies place in their reading rooms under subsections (a)(2)(B) and (a)(2)(C), for example, should remain available there for public reference purposes until they are replaced by superseding documents or otherwise are no longer in effect. See FOIA Update, Summer 1992, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)"). The FOIA-processed records placed within agency reading rooms under new subsection (a)(2)(D) are to be made available there for the purpose of "help[ing] to reduce the number of multiple FOIA requests for the same records requiring separate agency responses," H.R. Rep. No. 104-795, at 21 (1996), and should be maintained there to serve that purpose. After a lengthy period of time, agencies may determine that some such records no longer fall within this reading room category.
Should an agency's "electronic reading room" obligation apply to records that were generated outside the agency and then were obtained by the agency on or after November 1, 1996?
No. In enacting the Electronic FOIA amendments, Congress established this new "electronic reading room" obligation for all categories of reading room records, but it did so only "[f]or records created on or after November 1, 1996." 5 U.S.C. § 552(a)(2) (as amended). This cut-off date serves as an important practical limitation on an agency's "electronic reading room" obligation. By limiting this obligation to newly created reading room records -- records that presumably now would already be maintained by an agency in an electronic form, with few exceptions -- Congress ensured that agencies would more readily be able to satisfy it. Thus, as agencies create the new policy statements, staff manuals, and final opinions in the adjudication of cases that are required to be placed in their reading rooms under subsections (a)(2)(A)-(C), they will automatically make those records available electronically as well. See FOIA Update, Fall 1996, at 2.
By contrast, many agencies will deal with records in the new fourth reading room category that were not generated by them, but rather were generated elsewhere and were merely obtained by them for one purpose or another -- for example, documents submitted to regulatory agencies by regulated businesses or organizations. While such records may be determined by an agency to fall within new subsection (a)(2)(D), they are not "created" by the agency and should not be regarded as subject to the new electronic availability requirement. Accord United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989) (recognizing that agencies "either create or obtain" records that become subject to FOIA). An agency may choose as a matter of administrative discretion to make such records available electronically in any case in which it determines that to do so would be most cost-effective in serving public access needs under subsection (a)(2)(D). However, any agency that gives "electronic reading room" treatment to a record that an outside party has created should guard against the possibility that such extraordinarily wide dissemination of the record (as opposed to conventional reading room availability) might be regarded as copyright infringement by that outside party. Cf. FOIA Update, Fall 1983, at 4-5 (advising that ordinary FOIA disclosure usually will be "fair use" under copyright law); see also FOIA Update, Winter 1985, at 3-4 (advising that proprietary interest holders should be given an opportunity to claim "adverse market effect" in cases of exceptional intrinsic value).
When a record is now processed for FOIA disclosure, and is disclosed with redactions, does that make it a newly created record that may be subject to the electronic availability requirement?
No. When a record is processed for FOIA disclosure, it should not be regarded as being "created" or "re-created" at that time, even if it is disclosed in a new redacted form. This is so also for a classified record that is declassified for disclosure either in whole or in part. Cf. Exec. Order No. 12,958, § 3.5(b), 3 C.F.R. 333, 345 (1996), reprinted in 50 U.S.C.A. § 435 note (West 1996) (treating record "creation" as occurring prior to any declassification). So if an agency determines that a record falls within the new "subsequent requests" reading room category, that record should be placed in the agency's conventional reading room; it additionally must be placed in the agency's "electronic reading room" only if the time of its creation by the agency, not its FOIA redaction by it, postdated the November 1, 1996, cut-off date. See also FOIA Update, Fall 1996, at 2 (observing that during near future most records in this new reading room category will not be subject to electronic availability).
If an agency maintains a record in more than one form or format, can a FOIA requester now choose the one in which it will be disclosed?
Yes, with only limited exception. Under new subsection (a)(3)(B) of the Act, a FOIA requester may choose among existing forms or formats of a record, so long as the record is "readily reproducible" in the chosen form. 5 U.S.C. § 552(a)(3)(B) (effective Mar. 31, 1997). This provision was designed to specifically overrule any precedent to the contrary, such as Dismukes v. Department of the Interior, 603 F. Supp. 760, 763 (D.D.C. 1984). See H.R. Rep. No. 104-795, at 21 (1996) (specifically referencing Dismukes). In almost all cases, an agency will be able to readily reproduce any existing form or format of a record for which a requester expresses a preference. See also FOIA Update, Fall 1996, at 2.
If a requester asks an agency to disclose a record in a new form or format, what obligation does the agency have to do so?
Under the provisions of new subsection (a)(3)(B), a requester may ask to have a record disclosed in a new form or format and an agency must do so if the record is "readily reproducible" in that form or format with "reasonable efforts." 5 U.S.C. § 552(a)(3)(B);see H.R. Rep. No. 104-795, at 18 (1996) ("Agencies must make a 'reasonable effort' to comply with requests to furnish records in other formats."); see also FOIA Update, Fall 1996, at 2. In some situations, such as where the record already exists in one electronic format and an agency is readily able to convert it to a different electronic format upon request, the agency will be obligated to comply with that request. In other situations, such as where records exist only in paper form and the requester seeks to have them converted to an electronic form, an agency may determine that it cannot readily do so with a reasonable amount of effort. In all situations, an agency is obligated to consider the particular set of circumstances involved before determining whether it can reasonably comply with what a particular requester seeks. See also 5 U.S.C. § 552(a)(4)(B) (as amended, effective Mar. 31, 1997) (providing special deference to agency determinations made under this subsection).
Does new subsection (a)(3)(B) require agencies to alter their records-maintenance and records-disposition practices, beyond the scope of the FOIA?
No. The second sentence of subsection (a)(3)(B) provides: "Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section." 5 U.S.C. § 552(a)(3)(B). This sentence should be read in conjunction with the other sentence of the subsection, which enunciates the "readily reproducible" standard for form or format issues. Together they address issues involving both existing record forms and possible new record forms, and they do so in the context of an agency's compliance with a particular FOIA request. See H.R. Rep. No. 104-795, at 18 (1996). There is no indication that this amendment provision was intended to extend beyond the confines of the FOIA and more broadly regulate agency records-maintenance and records-disposition practices in any remarkable new way. Rather, the House Report accompanying the amendments explains the entirety of new subsection (a)(3)(B) in a single paragraph devoted to the Dismukes decision, id. at 21, and in a summary paragraph that simply speaks of an agency's obligation to comply with the provision's two different types of FOIA requests, id. at 18. See also FOIA Update, Fall 1996, at 2.
Cannot searching for records electronically result in creating new records, something which agencies are not required to do under the FOIA?
No. In enacting the Electronic FOIA amendments, Congress specifically rejected such a view of electronic database searches under the FOIA when it defined the term "search" to include efforts to locate records "by automated means." 5 U.S.C. § 552(a)(3)(D) (effective Mar. 31, 1997); see H.R. Rep. No. 104-795, at 22 (1996) ("Under [this] definition . . . the review of computerized records would not amount to the creation of records."). Accordingly, new FOIA subsection (a)(3)(C) requires agencies to "make reasonable efforts to search for records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system." 5 U.S.C. § 552(a)(3)(C) (effective Mar. 31, 1997). The first part of this general standard must necessarily be applied on a case-by-case basis to any new computer programming and data-retrieval efforts that might be involved in a particular FOIA request; the second part accommodates the exceptional situation in which the implementation of a search program would impair an agency's computer system operations. See also FOIA Update, Fall 1996, at 2.
What is meant by the term "technically feasible"?
The term "technically feasible" is used in the Electronic FOIA amendments to set a limit on an agency's obligation to indicate its record deletions at a particular location on a partially disclosed record. The amendments require that, except in extraordinarily sensitive cases, the "amount of information deleted" from a record must be "indicated on the released portion of the record" and that, "[i]f technically feasible," this indication must appear "at the place in the record where such deletion is made." 5 U.S.C. § 552(b) (as amended, effective Mar. 31, 1997); see also 5 U.S.C. § 552(a)(2) (as amended, effective Mar. 31, 1997) (counterpart provision for reading room records). Agencies should follow the sound administrative practice of providing this deletion specification for FOIA requesters with respect to all forms of records that are disclosed, through deletion markings on FOIA-processed records, so that requesters can have a clear understanding of how much information is deleted and exactly where those deletions are made. See FOIA Update, Fall 1996, at 10. However, the Electronic FOIA amendments recognize that in some instances, particularly for complex electronic records, it might be difficult to indicate a deletion at its exact location and they accord special deference to an agency's "determination as to technical feasibility" in any such situation. 5 U.S.C. § 552(a)(4)(B) (as amended, effective Mar. 31, 1997). Agencies should use electronic markings to show the locations of electronic record deletions, equivalent to the markings that show deletions on paper records, to the extent that it is "technologically" practicable to do so. H.R. Rep. No. 104-795, at 27 (1996).
If an agency's FOIA operations are decentralized, may it institute "multitrack processing" on a component-by-component basis?
Yes. The Electronic FOIA amendments provide that agencies may institute systems for the "multitrack processing" of FOIA requests through their FOIA regulations. 5 U.S.C. § 552(a)(6)(D) (as amended, effective Oct. 2, 1997). Such regulations may allow an agency's components the latitude to maintain different multitrack processing systems, based upon the particular circumstances of their backlogs and their own individual FOIA operations, and to promptly modify them as those circumstances change. See also FOIA Update, Fall 1996, at 10. Components without a backlog of requests need not maintain multitrack systems.
Are the new requirements for annual FOIA reports retroactive to 1996?
No, nor are they applicable to most of 1997. Agencies remain on a calendar year reporting schedule for 1996, and for the first nine months of 1997, under the existing annual FOIA report format and requirements. The reporting period for calendar year 1997 will run only from January 1 through September 30, 1997. The new fiscal year reporting period and new reporting requirements will take effect as of October 1, 1997, beginning with fiscal year 1998. See H.R. Rep. No. 104-795, at 28 (1996); see also FOIA Update, Fall 1996, at 11.
Where the amendment to subsection (a)(4)(B) states that courts must accord substantial weight to an agency's determinations of technical feasibility under "paragraph (a)(2)(C)," which pertains to administrative staff manuals and instructions to staff, is that an error?
Yes, it is a minor drafting error. This provision evidently was intended to refer to the technical feasibility of deletions under "paragraph (2)" of the FOIA, which pertains to reading room records more generally. See also H.R. Rep. No. 104-795, at 22 (1996).
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