FOIA Update
Vol. XIII, No. 3
1992

OIP Guidance

In administering the disclosure provisions of the Freedom of Information Act, federal agencies most commonly are concerned with "FOIA requests" for agency records -- in other words, disclosure requests that are filed with agencies under subsection (a)(3) of the Act, 5 U.S.C. § 552(a)(3). Less commonly known are the disclosure obligations that are placed upon all federal agencies under subsections (a)(1) and (a)(2) of the Act, 5 U.S.C. § 552(a)(1), (a)(2). These two lesser-known provisions of the FOIA, which require the "automatic" disclosure of certain types of agency information independent of any "FOIA request," should not be overlooked by agencies in their overall administration of the Act.

The first of these two FOIA provisions, subsection (a)(1), deals solely with the publication of agency information. It requires each agency to "currently publish in the Federal Register for the guidance of the public" a range of basic information regarding its structure and operations -- such as agency "organization," "functions," "rules of procedure," "substantive rules" and "statements of general policy." 5 U.S.C. § 552(a)(1)(A)-(E).

The basic purpose of these publication requirements -- which carry over from the preexisting requirements of the Administrative Procedure Act, of which the FOIA is a part -- is "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, 88th Cong., 2d Sess. 3 (1964)). To effectuate that purpose, the subsection explicitly provides that no person may be "adversely affected" by any agency action as a result of an agency's failure to meet its publication obligations. See, e.g., Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir. 1977) (ordering food stamp refunds due to agency noncompliance).

In determining items to be published in compliance with this FOIA subsection, agencies should bear in mind that "[a]n agency pronouncement must be published if it is of such a nature that knowledge of it is needed to keep parties informed of the agency's requirement as a guide for their conduct." D&W Food Ctrs., Inc. v. Block, 786 F.2d 751, 757 (6th Cir. 1986); see also Nguyen v. United States, 824 F.2d 697, 701 (9th Cir. 1987) ("best approach"is to provide "guidance for the legitimate expectations of the regulated public").

There sometimes exists some uncertainty over the timing of an agency's publication obligations under subsection (a)(1), due to the Act's use of the phrase "currently publish" with respect to those obligations. The term "currently" is not defined in the text of the FOIA or anywhere in its underlying legislative history. Obviously, the Act's use of the term requires agencies to keep their subsection (a)(1) issuances reasonably up to date, with revisions made as required with the passage of time. See also 5 U.S.C. § 552(a)(1)(E) (specifically requiring publication of any "amendment, revision or repeal"). In some instances, though, agencies have sought to meet their subsection (a)(1) obligations through publication on an annual basis, rather than more frequently as may be required under the Act. See U.S. Gen. Accounting Office, Freedom of Information Act:   Noncompliance With Affirmative Disclosure Provisions 20 (Apr. 1986) [hereinafter 1986 GAO Report].

The Department of Justice recommends that agencies keep their Federal Register issuances as current as reasonably possible under subsection (a)(1), but in no case on less than a quarterly basis. The use of this minimum time benchmark for subsection (a)(1) compliance fully comports with the treatment of a comparable publication obligation in subsection (a)(2) of the Act. See 5 U.S.C. § 552(a)(2) (requiring agency maintenance of "current" indices, which agencies must "promptly publish," with a frequency of not less than "quarterly"); see also Merrill v. Federal Open Mkt. Comm., 413 F. Supp. 494, 505 (D.D.C. 1976) (new policy statements should be published under subsection (a)(1)(D) before becoming "outdated").

A second question sometimes arising under this subsection involves the extent of an agency's obligation to publish a description of its "field organization" under subsection (a)(1)(A). Consistent with the 1986 GAO Report addressing this subject, the Department of Justice advises its components, and other federal agencies as well, to publish comprehensive lists of all of their "field" offices, as well as a list of all offices at which the public may obtain information or make requests to the agency. Accord H.R. Rep. No. 1497, 89th Cong., 2d Sess. 7 (1966). As regards an agency's organizational structure, publication in the United States Government Manual, a special edition of the Federal Register, may suffice. See DiCarlo v. Commissioner, T.C. Memo 1992-280, slip op. at 9-10 (May 14, 1992) (citing 1 C.F.R. § 9 (1992)).

Subsection (a)(2) of the FOIA, which provides what is commonly referred to as "reading room" access, applies to the types of agency records that, while not automatically published, should routinely be available to the public. It requires that such items as "final opinions" rendered in the adjudication of administrative cases, specific agency policy statements and certain administrative staff manuals be made "available for public inspection and copying." 5 U.S.C. § 552(a)(2)(A)-(C). Such records also must be indexed by agencies in order to facilitate the public's "reading room" access. This FOIA subsection "represents an affirmative congressional purpose to require disclosure of documents which have the 'force and effect of law.'" NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess. 7 (1966)).

The obligations imposed under FOIA subsection (a)(2), like those of subsection (a)(1), apply to all federal agencies that are subject to the Act. See 1967 Attorney General's Memorandum at 4; see also 5 U.S.C. § 552(f). Further, they apply to all components of agencies, regardless of the character of their particular activities. See Green v. FBI, No. 89-699-CIV, slip op. at 11-12 (E.D.N.C. Jan. 8, 1992) (holding subsection (a)(2) fully applicable to FBI notwithstanding that its activities are not "regulatory" in character).

In general, subsection (a)(2) requires disclosure of what might otherwise be regarded as an agency's "secret law." Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 19 (Feb. 1975). Together, its three subparts encompass "those documents which contain what the agency has treated as authoritative indications of its positions on legal or policy questions." Id.; see also, e.g., Bristol-Meyers Co. v. FTC, 598 F.2d 18, 25-26 (D.C. Cir. 1978) (describing respective scopes of subsections (a)(2)(A), (a)(2)(B) and (a)(2)(C)).

Nevertheless, the law is clear that an agency may withhold any record or record portion falling within subsection (a)(2) (or subsection (a)(1), for that matter) if it is of such sensitivity as to fall within a FOIA exemption. See Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 n.21 (1975) (citing 5 U.S.C. § 552(b)); see also 5 U.S.C. § 552(a)(2) (additionally providing for deletion of "identifying details" on personal privacy grounds). Inasmuch as subsection (a)(2) records embody final agency action, they do not get "deliberative process privilege" protection under Exemption 5, see NLRB v. Sears, Roebuck & Co. 421 U.S. at 154-55, but they are eligible for Exemption 5 protection on the basis of other privileges, see, e.g., Merrill v. Federal Open Mkt. Comm., 443 U.S. 340, 360 n.23 (1979) (applying "commercial" privilege to (a)(2) records). But see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1203-05, 1206 (D.C. Cir. 1991) (mistakenly failing to apply attorney work-product privilege to records embodying "final decisions").

In order to meet its obligations under subsection (a)(2), an agency must allow both "inspection and copying" of such records. 5 U.S.C. § 552(a)(2). While the Act does not require maintenance of a "public reading room" dedicated exclusively to this purpose, see U.S. Gen. Accounting Office, Freedom of Information Act: Agency Reading Rooms 1 (May 1989), all agencies should at a minimum have published procedures by which public access is allowed. Accord 1967 Attorney General's Memorandum at 14; 5 U.S.C. § 552(a)(1)(A).

In sum, all federal agencies should be mindful of their statutory obligations under subsections (a)(1) and (a)(2) as they administer FOIA programs that deal overwhelmingly with "FOIA requests" under subsection (a)(3). They should remember that the information and records encompassed by the FOIA's first two subsections must be "automatically available for public inspection; no demand is necessary." Jordan v. United States Dep't of Justice, 591 F.2d 753, 756 (D.C. Cir. 1978) (en banc). By the same token, it should not be forgotten that these aspects of the FOIA are mutually exclusive -- i.e., a "FOIA request" under subsection (a)(3) cannot be made for records that are "already released under [subsections] (a)(1) and (a)(2)." Id.; see also FOIA Update, Spring 1991, at 5 (distinguishing "reading room-fashion" availability from true (a)(2) applicability).

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