OIP Issues New Guidance on the Definition of a Record and the Processing of Records Responsive to a Request

One of the first questions that an agency must answer as it begins to process a FOIA request is: “What exactly is the requester seeking?” The answer to that question will determine the scope of the agency’s search for responsive records and that in turn will create the universe of records that needs to be processed for release. Sometimes a requester seeks information on a particular topic and in the course of conducting their search for records on that topic, the agency may locate documents that discuss a number of different subjects, only some of which relate to the topic of the FOIA request. If only a portion of a document concerned the topic of a request, a common practice has been for an agency to process only the responsive portion and redact the other portions as “non-responsive” or “outside the scope” of the request. Given that the processing of FOIA requests can be very labor-intensive and time-consuming, it is in both the requesters’ interests and the agencies’ that time and resources not be expended unnecessarily by reviewing material that was not requested. While many district courts had approved the practice of agencies redacting “non-responsive” material from records processed for release under the FOIA, in July 2016, the issue was addressed by the Court of Appeals for the District of Columbia Circuit in American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016).

OIP’s guidance summarizes the Court of Appeals for the District of Columbia’s holding that the FOIA “does not provide for . . . redacting non-exempt information within responsive records.” As declared by the court, “once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.” As a result of the ruling in AILA, it will be important for agencies to carefully define what they consider to be the “records” responsive to any given FOIA request. In addition to some practical considerations, OIP’s guidance provides principles for agencies to follow when determining what constitutes a “record” responsive to a FOIA request.

The full text of the guidance, along with all other guidance issued by OIP, is available on our guidance page. If you have any questions regarding this new guidance, please contact OIP’s FOIA Counselor Service at (202) 514-FOIA (3642).