Proactive Disclosure of Non-Exempt Agency Information:
Making Information Available Without the Need to File a FOIA Request
The fundamental purpose of the Freedom of Information Act (FOIA) is to inform citizens about “what their government is up to” through disclosure of agency records. DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989). The FOIA provides for such disclosure through three distinct, yet complementary, access provisions which are codified in subsections (a)(1), (a)(2), and (a)(3) of the law. See 5 U.S.C. § 552(a)(1) – (3) (2006 & Supp. IV. 2010). While the most familiar access provision of the FOIA is contained in subsection (a)(3) – which provides members of the public with the ability to submit requests to federal agencies for records that are of interest to them – the FOIA also has two proactive disclosure provisions, contained in subsections (a)(1) and (a)(2).
Subsection (a)(1) requires publication of certain information in the Federal Register, while subsection (a)(2) requires agencies to make certain other information available “for public inspection and copying,” which is typically accomplished by posting the records on the agency’s website. These proactive disclosure provisions have long required agencies to make certain categories of non-exempt records available to the public without waiting for a formal request. Moreover, to the extent that requests are made, if the agency determines that they concern a matter of popular interest and so are likely to be the subject of subsequent requests, the FOIA requires agencies to proactively post those FOIA-processed records so that they are readily available to everyone.
Systematically Posting Information
Beyond the legal requirements imposed by the FOIA itself to publish and post various types of records, President Obama in his FOIA Memorandum directed agencies to “take affirmative steps to make information public.” Likewise, Attorney General Holder, in his FOIA Guidelines, directed agencies to “readily and systematically post information online in advance of any public request.” Both the President and Attorney General stressed the importance of achieving greater transparency through proactive disclosures so that the public is informed about “what is known and done by their government.” When agencies make proactive disclosures they are enhancing transparency by ensuring that certain key information about the operations and activities of the government is readily and efficiently made available to all.
Increased Use of Technology
Over the past decade there has been a sea change in the way proactive disclosures are made as traditional paper-based, physical “Reading Rooms” have been replaced with robust agency websites where a diverse spectrum of information is now posted online. See, e.g., OIP Guidance, “Using Metadata in FOIA Documents Posted Online to Lay the Foundation for Building a Government-Wide FOIA Library” (3/12/13). Agencies are also using social media to disseminate information, reaching new audiences in real time, on trending topics of public interest, in yet another innovative way to increase transparency.
This guidance will provide an overview of the legal requirements imposed by the FOIA to make various types of records available proactively, with a focus on the requirement that agencies post FOIA-processed records on popular topics that the agency determines are, or are likely to be, the subject of multiple FOIA requests. In addition, this guidance will address ways in which agencies can take additional steps to improve transparency through proactive disclosures in keeping with the President’s Memorandum on the FOIA and the Attorney General’s FOIA Guidelines.
Overview of the FOIA’s Proactive Disclosure Provisions
The FOIA has two distinct provisions requiring proactive disclosure of records or information in one of two different ways.
First, subsection (a)(1) of the FOIA requires agencies to “publish in the Federal Register for the guidance of the public” certain general information about the agency, specifically:
- descriptions of agency organization and the established places and methods for obtaining information,
- general statements regarding the agency’s methods of operation,
- rules of procedure and descriptions of forms, and
- substantive agency rules and policies of general applicability.
5 U.S.C. § 552(a)(1)(A-E). Publication of these four categories of information in the Federal Register is intended “to enable the public ‘readily to gain access to the information necessary to deal effectively and upon equal footing with the Federal agencies.’” Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 4 (June 1967) [hereinafter 1967 Attorney General’s Memorandum] (quoting S. Rep. No. 1219 at 3 (1964)). Such publication serves as a “‘guide [to] the public in determining where and by whom decisions are made, as well as where they may secure information and make submittals and requests.’” Id. at 5.
The second proactive disclosure provision is contained in subsection (a)(2) of the FOIA. This provision requires agencies to “make available for public inspection and copying” four categories of records, “unless the materials are promptly published and copies offered for sale.” 5 U.S.C. § 552(a)(2). The first three of these categories consist of records that are sometimes referred to as “operational” documents of the agency. These three categories of records include:
- final agency opinions and orders rendered in the adjudication of cases,
- specific policy statements that are not published in the Federal Register, and
- administrative staff manuals and instructions to staff that affect a member of the public.
The requirement contained in subsection (a)(2) to make such records available to the public for inspection and copying has a similar purpose to the first proactive disclosure provision contained in subsection (a)(1). The basic purpose behind the requirement to make this operational information available proactively is “‘to afford the private citizen the essential information to enable him to deal effectively and knowledgably with the Federal agencies.’” 1967 Attorney General’s Memorandum 14 (quoting S. Rep. No. 1219 at 12).
The fourth category of records required to be made available proactively consists of non-exempt records requested under the FOIA which “have become or are likely to become the subject of subsequent requests.” 5 U.S.C. § 552(a)(2)(D). In contrast to agency “operational” documents, the obligation to post this category of records is based on an agency determination that the records concern a popular topic and there are, or are likely to be, multiple requests for the same records. By posting this material agencies eliminate the need for others to have to make individualized requests for access, thereby more efficiently providing the public with access to records of interest to many. The requirement to post “frequently requested” material online will be discussed in more detail below.
The FOIA’s nine exemptions apply as appropriate to any records that are required to be disclosed under any of the provisions of the FOIA, including the proactive disclosure subsections. See, e.g., Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979) (applying commercial privilege to subsection (a)(1) record and recognizing that subsection (a)(2) records likewise may be protected by FOIA exemptions in determining that an (a)(2) document could still be withheld pursuant to the work-product privilege); Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 n.21 (1975) (acknowledging that subsection (a)(2) records may be protected by FOIA exemptions); see also Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act 19 (Feb. 1975) (noting that “[a]n agency is not required to make available for public inspection and copying (a)(2) materials which fall within one of the [FOIA] exemptions”). Agencies should therefore review documents they intend to proactively disclose just as they review documents for disclosure in response to FOIA requests, taking into account the Attorney General’s strong encouragement to make discretionary disclosures. When proactive disclosures are made in partly-redacted form, all redactions must be marked and the basis for the redaction noted on the document that is posted online. See 5 U.S.C. § 552(a)(2) (requiring that “justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the [FOIA exemption]”).
Method of Disclosure
Historically, agencies made records “available for public inspection and copying” as required by subsection (a)(2) of the FOIA, by placing hard copies of the records in dedicated places in government buildings, known as “Reading Rooms.” With development of the internet agencies began posting the records online as part of their FOIA webpages in what were termed “Electronic Reading Rooms.” Today that concept has evolved further still with “Electronic Reading Rooms” now being transformed into digital “FOIA Libraries.”
This transition from hard-copy to online proactive disclosure began with the passage of the e-FOIA Amendments of 1996, which amended the FOIA to, among other things, require agencies to use “computer telecommunications” when making proactive disclosures of records created after November 1, 1996. Pub. L. No. 104-231, 110 Stat. 3048. Those amendments also provided that agencies may use “other electronic means,” if “computer telecommunications” had not been established by an agency. See 5 U.S.C. § 552(a)(2). Of course, today all agencies now have “computer telecommunications” capabilities and so agency websites are readily used as the vehicle to release records to the public proactively.
Congress intended the term “computer telecommunications” to mean online access -- i.e., that agencies would make proactive disclosures by posting the information on the internet. See S. Rep. No. 104-272, at 11 (1996) and H.R. Rep. No. 104-795, at 20-21 (1996) (noting that e-FOIA Amendments would require (a)(2) materials to be made available online); 142 Cong. Rec. S10893, S10894 (statement of Sen. Leahy) (“the bill would encourage agencies to increase on-line access to government records”); 142 Cong. Rec. H10447, H10451 (statement of Rep. Maloney), (“[the bill] would encourage agencies to offer online access to Government information, effectively transforming an individual’s home computer into a Government agency’s public reading room.”).
Today, that transformation has certainly occurred. Indeed, many members of the public would find it hard to imagine the days before online availability of information, where it was necessary to physically travel to a “reading room” in order to view records. Now, records are easily accessible at any time and from virtually anywhere with just a few clicks of the mouse on the computer.
At the same time, though, it is important to remember that while providing online access to records will readily meet the needs of most members of the public, there are occasions where individuals will still ask for the records to be provided to them individually. For example, some individuals do not have access to a computer or are not comfortable using one. The FOIA’s proactive disclosure provisions are intended to ensure that the public has ready access to certain key information about their government without the need to make a FOIA request. While the FOIA provides that records “made available” under the FOIA’s proactive disclosure provisions of subsection (a)(1) and (a)(2) are not themselves subject to individualized FOIA requests, see 5 U.S.C. § 552(a)(3)(A), as a matter of good customer service agencies are encouraged to work with those requesters for whom the internet is not a viable option to assist them in obtaining access to posted material. In doing so they will be demonstrating the “spirit of cooperation” in FOIA administration that the President and Attorney General have called for.
“Frequently Requested” Records
The requirement to proactively disclose “frequently requested” records was not original to the FOIA. Rather, it was added by Congress three decades after initial passage of the law, as part of the 1996 e-FOIA Amendments. This provision brought something to the FOIA that was fundamentally different: While the FOIA had always required agencies to post operational documents so that the public knew how to interact with their government, the obligation to post “frequently requested” records was added to the FOIA for a more pragmatic reason, to help agencies achieve greater efficiencies by reducing the need to respond to numerous requests for the same records.
Specifically, the fourth category of records encompassed by FOIA’s subsection (a)(2) proactive disclosure provision requires posting of “copies of all records, regardless of form or format, which have been released to any person under subsection (a)(3) [i.e., in response to a request] and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.” 5 U.S.C. § 552(a)(2)(D). Congress envisioned that when agencies made publicly available “previously released records on a popular topic,” it would “reduce the number of multiple FOIA requests for the same records requiring separate agency responses.” H.R. Rep. No. 104-795, at 21 (1996). This has obvious benefits to both agencies and requesters alike.
Identifying “Frequently Requested” Records
In deciding what number of requests or anticipated requests is enough to trigger the requirement to post the processed documents online, the Department of Justice has long used a “rule of three,” advising agencies that this posting requirement by definition begins with a request and receipt, or anticipated receipt, of at least two other such requests. If either is the case, then once the agency has processed the records, it should also consider proactively posting them in their FOIA-processed form on its agency website.
Agencies need to continually be mindful of their obligation to post frequently requested, non-exempt records on popular topics. They should have procedures in place to identify when such records have been, or are likely to be requested repeatedly. These are considerations that should be made throughout the course of processing requests.
First, as part of its ongoing management of its FOIA program agencies should be systematically reviewing each request when it is first received to determine whether it has received other requests that will involve the same or similar records. This assessment not only assists the FOIA office in managing the requests themselves, but it also serves as a ready way to flag requests where the agency will want to consider proactively posting the FOIA-processed records, once processing is complete.
Second, even in the absence of multiple requests for the same or similar records, agencies should use their best judgment at the time each request is received to determine whether they believe the responsive records concern a popular topic that is likely to become the subject of subsequent requests in the future. If so, that would also be a trigger to consider posting once the records are processed.
Finally, if during the course of processing requests agencies discover that there are certain records that are common to multiple requests, this is yet another trigger to flag those records for posting once processing is complete. By employing all these procedures agencies will ensure that they are efficiently and effectively identifying records on popular topics that are, or will be, “frequently requested.”
Posting Before Receipt of Even One Request
in Accordance with the President’s and Attorney General’s FOIA Memoranda
By virtue of their position in an agency’s FOIA office, FOIA professionals are uniquely situated to identify records that are of interest to the public. Although the FOIA requires the posting of such records after the receipt, or likely receipt, of multiple requests for substantially the same records, agencies should, as a matter of policy, consider posting any FOIA disclosure as a matter of discretion. Indeed, for the past six years agencies have been posting a wide variety of records even before receipt of the first request in accordance with the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines. The President stressed that agencies “should not wait for specific requests from the public” and the Attorney General directed agencies to “readily and systematically post information online in advance of any public request."
OIP’s guidance to agencies on implementing these directives emphasized a series of steps that agencies could take to increase their proactive disclosures. Specifically, OIP advised agencies to:
- Implement systems and establish procedures to identify records of interest to the public on an ongoing basis and to systematically post such records.
- Link FOIA Professionals and program offices to help identify records appropriate for posting, and
- Establish procedures in key offices where officials routinely identify in advance, or as records are finalized, those records that are good candidates for posting.
In all of these ways agency FOIA professionals can assist their agencies in identifying records for proactive release even before there has been a request.
As to those records that have been requested, agencies are encouraged to post the FOIA-processed documents to the extent it is feasible whenever they think that the records might be of interest to someone else. Another alternative is to post a log or other description of FOIA disclosures that have been made, thereby allowing the public to review topics of previously released records to which they may gain prompt access.
Ensuring that Posted Information Is Usable
Agencies are also encouraged to find new and innovative ways of making information available online. Material posted online should be presented in a user-friendly format considering the nature of the information and the likely usefulness of alternative formats. For instance, data sets, logs, and other data-heavy materials are often most useful when they are posted in an open format which allows for the extraction and use of data rather than the viewing of a static document.
Serving as the foundation for agency efforts towards this goal is the Open Government Directive, which requires agencies to “take prompt steps to expand access to information by making it available online in open formats” in order to promote accountability and informed participation by the public. Additionally, agencies should consult resources such as the Open Data Policy, Digital Government Strategy, and Digital Services Playbook for steps and best practices in making government information online more accessible and usable.
Choosing a Website Location
While agency websites should be the primary mechanism for making proactive disclosures under the FOIA, including both required disclosures pursuant to subsection (a)(2) of the FOIA and additional information that is posted online as a matter of agency discretion, the precise website location for such disclosures is generally a matter of agency discretion. More specifically, agencies are encouraged to make proactive disclosures of non-exempt operational documents – i.e. policy statements; final opinions & orders; and staff manuals/instructions – available wherever, and in whatever format, is most useful to the public, considering the needs of the community of individuals who access their websites. As to those records that are “frequently requested” under the FOIA, while they too may be posted anywhere on an agency’s website, agencies are also encouraged to include them in their agency’s FOIA Library, as that affords the public the ability to quickly and easily locate those prior FOIA disclosures that have been of interest to multiple requesters. Agencies should periodically review their FOIA Libraries and ensure that they are organized and user-friendly and that proactively disclosed documents are easy to locate.
As outlined in OIP’s Guidance on Using Metadata in FOIA Documents Posted Online, OIP has begun laying the foundation for creation of a “virtual government-wide FOIA Library” where all FOIA-processed records can be readily located by using simple, existing internet search engines. OIP envisions that creation of this “virtual government-wide FOIA Library” will allow the public to readily locate already-posted FOIA-processed records from across the government using the same intuitive search mechanism already widely used by the public for any internet search.
The automatic disclosure provisions of the FOIA work in tandem to ensure that information about what the government is “up to” is released consistently, routinely, and promptly. Proactive disclosures inform the public about the operations of their government, and they efficiently satisfy the demand for records of interest to multiple people.
Beyond the legal requirements imposed by the FOIA, agencies should, as a matter of discretion, be routinely posting material that is of interest to the public, taking advantage of technology and new tools to make that posted data usable and easily accessible. By doing so, they will be answering the President’s and Attorney General’s call to post more information online than is required, so that the public will be better informed “about what is known and done by their government.”