Defining a “Record” Under the FOIA
One of the first questions that an agency must answer as it begins to process a Freedom of Information Act 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. In some instances, this is a straightforward process. For example, the requester might seek a specific report. The agency will search for the requested report and when it locates it, the entirety of the report will be the “record” that is processed. Similarly, the requester might seek all documents authored by a particular person during a certain time frame. The agency will search for such documents and when it locates them, they will all constitute the “records” that need to be processed in response to the request.
There are other times, however, where requesters seek information on a particular topic. In the course of conducting their search for records on that topic, agencies 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. The practice of not routinely processing portions of a document that are not responsive to a request, but just happen to be physically adjacent to responsive portions, promotes efficiency. By focusing their time and efforts on processing only those portions of records that are responsive to the request, the agency can often respond to the request in a timelier manner while potentially assessing fewer fees to the requester. While many district courts had approved the practice of agencies redacting “non-responsive” material from records processed for release under the FOIA, the propriety of doing so was not addressed by the Court of Appeals for the District of Columbia Circuit until July 2016, when it decided American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016).
The American Immigrant Lawyers Association Decision
In American Immigration Lawyers Association v. EOIR, the plaintiff submitted a request to the agency for records regarding complaints made against immigration judges. AILA, 830 F.3d at 669. The agency processed thousands of pages of complaint files, but made redactions of information that the agency deemed to be non-responsive to the FOIA request. Id. at 672. Responding to a challenge to this practice, the D.C. Circuit ruled that the FOIA “sets forth the broad outlines of a process for agencies to follow when responding to FOIA requests: first, identify responsive records; second, identify those responsive records or portions of responsive records that are statutorily exempt from disclosure; and third, if necessary and feasible, redact exempt information from the responsive records.” Id. at 677. Significantly, the court ruled that “[t]he statute does not provide for . . . redacting non-exempt information within responsive records.” Id.
Relying on the Supreme Court’s ruling in Milner v. Department of the Navy that the FOIA’s exemptions are “‘exclusive’ and must be ‘narrowly construed,’” 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973) & FBI v. Abramson, 456 U.S. 615, 630 (1982)), the D.C. Circuit ruled that “non-responsive redactions . . . find no home in FOIA’s scheme.” AILA, 830 F.3d at 677. “Rather,” the court declared, “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.” Id.
In arriving at this conclusion the court did not attempt to answer the important antecedent question of what a “record” is under the FOIA. Id. at 678. Indeed, it noted that the “practical significance of FOIA’s command to disclose a responsive record as a unit (after deletion of exempt information) depends on how one conceives of a ‘record.’” Id. In the case before it, the parties had not addressed this antecedent question and so the court simply took “as a given” the agency’s own understanding of what constitutes a “record.” Id. The court then held that “once an agency itself identifies a particular document or collection of material –such as a chain of emails—as a responsive ‘record,’ the only information the agency may redact from that record is that falling within one of the statutory exemptions.” Id. at 678-79.
The court explained that the FOIA itself contains no definition of the term “record,” and that “agencies . . . in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request.” Id. at 678. The court also pointed out that there were a “range of possible ways in which an agency might conceive of a ‘record’” and noted that the Department of Justice had issued guidance on the topic of processing documents that concern multiple, unrelated topics that agencies could use “when determining whether it is appropriate to divide such a document into discrete ‘records.’” Id.
Key Considerations Identified in the D.C. Circuit’s Decision
As a result of the D.C. Circuit’s 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. Once they determine that something is a “record” they must process it in its entirety for exemption applicability. Only those portions of the record that are exempt can be redacted. After the court’s decision in AILA it is not permissible to redact information within a record as “non-responsive.”
In light of this, agencies will want to ensure that they are carefully defining what is a “record” responsive to a request so that they are not unnecessarily processing material that is not what the requester sought. While the D.C. Circuit did not itself define the term "record" for purposes of the FOIA, some helpful principles emerge from the court's opinion that can guide agencies in making their determinations. First, the court recognized that there are a range of ways to define what is a “record,” and that it is the very process of searching for what has been requested by each requester that forms the basis for the determination. Second, while the court drew attention to a number of different disclosure statutes, the “record” definition from the Privacy Act is particularly relevant, given that the Privacy Act is the sister statute to the FOIA, often working in tandem with it. The Privacy Act defines a “record” as “any item, collection, or grouping of information.” 5 U.S.C. § 552a(a)(4). Applying this definition of "record" to the FOIA, a record would be any item, collection, or grouping of information that pertains to the subject of a specific FOIA request. This can be a useful construct for FOIA professionals to apply.
Guidance on Defining a “Record”
Based upon these important considerations, in the absence of a legal definition of “record” for FOIA purposes, we urge agencies to apply the following principles in determining what constitutes a "record" responsive to a FOIA request.
- Be Guided by the Privacy Act’s Definition of “Record”
Agencies can use the definition of record found in the Privacy Act to guide their decisions as to what is a record for purposes of the FOIA. Thus, each “item, collection, or grouping of information” on the topic of the request can be considered a distinct “record.” This approach allows for a more fine-tuned, content-based approach to the decision, which applies irrespective of the physical attributes of a document. Thus, a “record” can potentially constitute an entire document, a single page of a multipage document, or an individual paragraph of a document. Moreover, based on the subject of a particular FOIA request, an entire string of emails, a single email within a string of emails, or a paragraph within a single email could potentially constitute a "record" for purposes of the FOIA.
- Link Records to Subject of Request
The nature of a FOIA "record" is defined by both the content of a document and the subject of the request. For example, if a document consists of a list of summaries of complaints against immigration judges organized by the name of each judge, and the subject of the FOIA request is "complaints against all immigration judges" then the entire document is the "record" for purposes of that FOIA request because the entire document is a “collection or grouping of information” on the subject of the request. Conversely, if the FOIA request specifically concerns "complaints against Judge Smith," then only the complaint summaries concerning Judge Smith would constitute the "record" for purposes of that FOIA request, as only those portions would be the “collection or grouping of information” on Judge Smith.
These distinctions are most easily made when the document can reasonably be broken into discrete units. In the example above, the document was organized by the name of each judge and so readily lent itself to division according to that criterion. In reviewing multi-subject documents to determine whether they can be viewed as a series of distinct “records,” agencies should ensure that the document can readily be divided into distinct “items or groupings” of information on different topics so that it is reasonable to view it as a collection of “records.” For example, if there are topical headings setting items apart, or bulleted lists describing discrete topics, those are helpful indicators to use in dividing the document into discrete “records.” Once that is done, only the discrete “records” that are subject to the request need to be processed. A paragraph within an email or document could potentially constitute a distinct record, but only if the subject of the request is sufficiently specific to pertain only to that paragraph and the subject of the paragraph is sufficiently distinct from the surrounding paragraphs to constitute a distinct record.
By contrast, if a document cannot be viewed as containing discrete “items or groupings” of information on different topics then it must be treated as a single “record” and the entirety must be processed for exemption applicability. Logically, the smaller the document, the more difficult it will be to segregate an item of information as a distinct FOIA "record." Indeed, in the AILA case, the D.C. Circuit noted that it found “it difficult to believe that any reasonable understanding of a ‘record’ would permit withholding an individual sentence within a paragraph within an email on the ground that the sentence alone could be conceived of as a distinct, non-responsive ‘record.’” AILA, 830 F.3d at 679.
To the extent agencies identify multi-subject documents that they divide into discrete "records" for purposes of responding to a particular FOIA request, they must ensure that they take that into account anytime they refer to the volume of "records" responsive to the request. For example, when providing an estimate of the volume withheld, if an agency has divided one ten-page document into five distinct "records," three of which are responsive to the request, when referring to the number of records processed it should use the number three, not one. If the individual emails within a string of emails have been divided into separate "records," then each individual responsive email should be counted when calculating the number of "records" processed or withheld. When dealing with large volumes of material agencies may find it easier to refer to the volume using other metrics, such as the number of pages, rather than the number of "records."
Similarly, when marking records for disclosure, if an agency has divided a multi-subject document into distinct records, it should mark the distinct records clearly so that the requester can readily see how the agency has defined the records responsive to his or her request. To the extent the document has headings, bullets or other textual content that illustrates that the document contains multiple subjects, agencies should release those headings or indicators to the extent possible so that the requester can readily see why and how the agency divided the document into distinct "records."
In sum, after the decision in AILA it is important for agencies to carefully consider what constitutes a “record” responsive to any given FOIA request. When documents contain multiple subjects, agencies can review them to determine whether they can be divided into distinct records, based on both the subject of the request and the content of the document. This guidance sets forth workable principles that agencies can apply in making such determinations.