FOIA Update
Vol. XVII, No. 4
1996

In an action that culminates several years of legislative and administrative consideration of electronic record FOIA issues, Congress has enacted amendments to the Freedom of Information Act that address those issues and other procedural aspects of FOIA administration.

On September 17 and 18, respectively, the House of Representatives and the Senate passed H.R. 3802, a slightly modified version of a bill that was developed by the House Subcommittee on Government Management, Information, and Technology, chaired by Rep. Stephen Horn (R. Cal.). The bill received bipartisan support both in the House and in the Senate, where its principal sponsor was Sen. Patrick Leahy (D. Vt.).

Entitled the "Electronic Freedom of Information Act Amendments of 1996," the bill was signed into law by President Clinton on October 2, with the observation that it "reforges an important link between the United States Government and the American people." (See page 9 of this issue of FOIA Update for the text of President Clinton's signing statement.)

The amendments made to the Act by this new law address the subject of electronic records for the first time ever in the text of the statute. They also address the subject area of time limits and agency backlogs of FOIA requests, among other procedural provisions.

Many of the amendments will take effect after a 180-day period, but the time limit and backlog-related provisions will take effect after one year, and some other provisions have specific other effective dates for implementation. (See chart at the end of this section.) For purposes of agency implementation, the amendments can be considered within several distinct subject areas.

A major change made by the FOIA amendments involves the maintenance of agency reading rooms under subsection (a)(2) of the Act. Under that part of the FOIA, agencies are required to make three categories of records -- final opinions rendered in the adjudication of administrative cases, specific agency policy statements, and administrative staff manuals that affect the public -- routinely available for public inspection and copying. See FOIA Update, Summer 1992, at 4. (This obligation does not apply to any records that "are promptly published and [are] offered for sale." 5 U.S.C. § 552(a)(2).) The new amendments both add to those categories of reading room records and establish a requirement for electronic availability of reading room records, most efficiently through on-line access, in what can be regarded as "electronic reading rooms."

First, the amendments create a new category of records that will be required to receive "reading room" treatment -- a category consisting of any records processed and disclosed in response to a FOIA request that "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) (as amended, effective Mar. 31, 1997). Under this provision, when records are disclosed in response to a FOIA request, an agency will be required to determine if they have already become the subject of subsequent FOIA requests or, in the agency's best judgment based upon the nature of the records and the types of requests regularly received, are likely to be the subject of multiple requests in the future. If either is the case, then those records in their FOIA-processed form (but not, of course, any information about a first-party requester that would not be disclosed to any other FOIA requester) will become "reading room" records to be made automatically available to potential FOIA requesters. Ideally, that availability will satisfy much of the future public demand for those processed records, in a more efficient fashion, but any FOIA request received for the records will have to be responded to in a regular fashion as well.

Second, the amendments will require agencies to use electronic information technology to enhance the availability of their reading room records. They specify that for any newly created reading room records (i.e., "records created on or after November 1, 1996"), an agency must make them available to the public by "electronic means." 5 U.S.C. § 552(a)(2). The amendments embody a strong statutory preference that this new electronic availability be provided by agencies in the form of on-line access, which can be most efficient for both agencies and the public alike, and they allow until November 1, 1997 for it to be provided. To meet this new requirement through on-line access, agencies should have Internet or World Wide Web sites prepared to serve this "electronic reading room" function by no later than that date.

This means that as of mid-1997, agencies will begin to maintain both conventional reading rooms and "electronic reading rooms" in order to meet their FOIA subsection (a)(2) responsibilities. As of March 31, the basic effective date of the amendments, they must begin to place in their reading rooms copies of any FOIA-processed records determined to fall within the new fourth subsection (a)(2) category, just as they regularly place their other subsection (a)(2) records there. Additionally, they must identify any of their reading room records that were created on or after the November 1, 1996 cut-off date and then make those records available (by no later than the November 1, 1997 electronic access deadline) through their electronic sites as well.

For traditional subsection (a)(2) records such as administrative staff manuals, for example, virtually everything that an agency places in its reading room, in time, will be newly created and therefore will be required to be made available electronically also. (Where only part of a manual is updated, it would be advisable for the agency to place the entire manual on its electronic site, in order to avoid confusion.) In the case of FOIA-processed records, on the other hand, a very large proportion of those records will have been created prior to the 1996 cut-off date, at least as of the outset of the new law's implementation, and therefore will not be subject to the electronic availability requirement.

Accordingly, agencies will have to make it clear to the users of their electronic reading rooms that while all of their subsection (a)(2) records are available in their conventional reading rooms, only the newly created ones are available through their electronic sites. Agencies should utilize indices to facilitate use of both types of reading rooms. They are required by the amendments to maintain an index of their FOIA-processed records and to make it available on-line by December 31, 1999.

The amendments contain several provisions that pertain to the processing of FOIA requests for records in electronic form. First, they define the term "record" simply as including "any information that would be an agency record subject to the requirements of [the FOIA] when maintained by an agency in any format, including an electronic format." 5 U.S.C. § 552(f)(2) (as amended, effective Mar. 31, 1997). This definition appears to confirm existing general practices of treating information maintained in electronic forms as subject to the FOIA and, while it references no particular electronic item such as computer software, seems to broadly encompass information maintained in electronic form.

Second, they address the form or format in which a requested record is disclosed under the FOIA, requiring that "an agency shall provide the record in any form or format requested . . . if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B) (as amended, effective Mar. 31, 1997). Additionally, this new subsection of the Act provides that an agency "shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of the [FOIA]." Id. Taken together, these two provisions will require agencies to honor a requester's specified choice among existing forms of a requested record (assuming no exceptional difficulty in reproducing an existing record form) and to make "reasonable efforts" to disclose a record in a different form or format when that is requested and the record is "readily reproducible" in that new form or format.

The first of these two aspects is relatively straightforward. The requester, not the agency, ordinarily will be entitled to choose the form of disclosure when multiple forms of a record already exist; the amendments thus overrule any precedent such as Dismukes v. Department of the Interior, 603 F. Supp. 760, 763 (D.D.C. 1984), which holds to the contrary. Any further request for a record to be disclosed in a new form or format will have to be considered by an agency, on a case-by-case basis, to determine whether the records are "readily reproducible" in that form or format with "reasonable efforts" on the part of the agency. Under a separate provision of the amendments, an agency's determination regarding "reproducibility" is entitled to special deference if challenged in court. 5 U.S.C. § 552(a)(4)(B) (as amended, effective Mar. 31, 1997).

The amendments likewise apply a general "reasonable efforts" standard to the matter of an agency's search obligation in connection with electronic records. They provide that "an agency shall make reasonable efforts to search for [such] 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) (as amended, effective Mar. 31, 1997). This provision promotes electronic database searches and encourages agencies to expend new efforts in order to comply with the electronic search requirements of particular FOIA requests. It will necessarily require an agency to determine, in any case in which a requested database search would involve new programming and database-retrieval efforts, whether those efforts are "reasonable" under the particular circumstances involved. Additionally, this amendment provides that an agency would not be required to undertake any such efforts in any exceptional case in which the implementation of a data-retrieval program for a requested FOIA search would "significantly interfere" with its computer systems' operations.

The amendments contain several different provisions pertaining to the timing of agency responses to FOIA requests, all of which take effect after one year. First, they increase the Act's basic time limit for agency responses to FOIA requests, lengthening it from ten to twenty working days. For agencies that can regularly act on their FOIA requests within the existing ten-day time limit, this change should not affect their administration of the Act.

Second, the amendments encourage agencies that experience difficulties in meeting the Act's time limits to promulgate regulations providing for "multitrack processing" of their FOIA requests, "based on the amount of work or time (or both)" that is involved in processing them. 5 U.S.C. § 552(a)(6)(D) (as amended, effective Oct. 2, 1997). An agency or component of an agency that maintains two or more processing tracks must handle its requests on a first-in, first-out basis within each track, but will have the flexibility to respond to relatively simple FOIA requests more quickly through its multitrack system. It also can provide requesters with an opportunity limit their requests in order to obtain faster processing. Agencies that handle their FOIA requests on a decentralized basis through separate agency components should allow multitrack processing systems to be maintained according to the individual circumstances of each component.

Third, a closely related amendment supplements the provision in the Act by which an agency may take additional time for responding to a request based upon "unusual circumstances" involved in the request -- such as the volume of records sought. 5 U.S.C. § 552(a)(6)(B) (as amended, effective Oct. 2, 1997). Under existing law, an agency may take only an additional ten working days based upon such "unusual circumstances." Under the amendments, however, an agency notifying a requester of "unusual circumstances" may specify that additional time is required and offer the requester the opportunity "to limit the scope of the request" and/or "to arrange with the agency an alternative time frame for processing the request or a modified request." 5 U.S.C. § 552(a)(6)(B)(i), (ii). This provides a basis for agencies and FOIA requesters to reach agreement on the timing of agency responses in cases in which the circumstances of the particular request, rather than a more general agency backlog, cause difficulty in meeting the Act's time limits.

Fourth, the amendments address the subject of general agency backlogs by limiting the conditions under which the Act's "exceptional circumstances" provision may apply. They specify that such circumstances will "not include a delay that results from a predictable agency workload of [FOIA requests], unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." 5 U.S.C. § 552(a)(6)(C)(ii) (as amended, effective Oct. 2, 1997). This amendment will limit the ability of an agency with a heavy FOIA backlog to obtain a stay of judicial proceedings on the basis of that backlog, under the precedent of Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), if a delayed FOIA request proceeds to litigation. Such a stay may be granted when an agency can demonstrate "reasonable progress" in its backlog-reduction efforts. It also could be granted where a requester refuses "to reasonably modify the scope of a request or arrange an alternative time frame for processing" it; two separate amendment provisions specify that this "shall be considered as a factor in determining whether exceptional circumstances exist." 5 U.S.C. § 552(a)(6)(B)(ii), (a)(6)(C)(iii) (as amended, effective Oct. 2, 1997).

A fifth time limit-related amendment addresses requests for "expedited processing" under the Act. The amendments require all agencies to promulgate regulations under which they will consider such requests and grant them whenever a "compelling need" is shown. The term "compelling need" is defined as (1) involving "an imminent threat to the life or physical safety of an individual," or (2) in the case of a request made by "a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. § 552(a)(6)(E) (as amended, effective Oct. 2, 1997).

Under this provision, a FOIA requester may make a request for expedited processing with a certification of "compelling need." 5 U.S.C. § 552(a)(6)(E)(vi). Then "within 10 days after the date of the request" (which as a practical matter may be determined by a postmark in some cases), the agency will be required to decide whether to grant expedited processing and to notify the requester of its decision. 5 U.S.C. § 552(a)(6)(E)(ii)(I). If expedited processing is granted, the agency must give priority to that FOIA requester and process the requested records for disclosure "as soon as practicable." 5 U.S.C. § 552(a)(6)(E)(iii). If expedited processing is not granted, the agency must likewise give "expeditious consideration" to any administrative appeal of that denial. 5 U.S.C. § 552(a)(6)(E)(ii)(II). Any judicial review of a denial of expedited processing will be based on the administrative record of the correspondence between the requester and the agency. 5 U.S.C. § 552(a)(6)(E)(iii).

The amendments contain two provisions that deal with an agency's obligation to specify to a FOIA requester information that is denied in response to a request. First, in the situation in which information is deleted from a record that is disclosed in part, the amendments require that "[t]he amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the [applicable] exemption." 5 U.S.C. § 552(b) (as amended, effective Mar. 31, 1997). This provision was enacted under a bill section entitled "Computer Redaction," and accordingly it further provides that "[i]f technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made." Id. However, its terms are not limited to information maintained in electronic form, so it also codifies the sound administrative practice of marking records to show all deletions when records are disclosed in conventional paper form.

A second such provision deals with the situation in which entire records, or entire pages of them, are withheld. This amendment requires an agency to "make a reasonable effort to estimate the volume" of what is withheld and "to provide any such estimate to the person making the request." 5 U.S.C. § 552(a)(6)(F) (as amended, effective Oct. 2, 1997). Ordinarily, agencies will meet this requirement by specifying in their denial letters the volume of what is withheld in numbers of entire pages, documents, or some other applicable form of measurement. Like the deletion provision above, this provision does not apply in the exceptional situation (e.g., a "neither confirm nor deny" case) in which disclosing the volume of records withheld would be harmful. This amendment carries the same effective date as the time limit and backlog-related amendments because it was contained in the same section of the bill.

The amendments also address the process by which agencies provide information about their administration of the FOIA, both through their annual reports to Congress and in the basic reference information that they make available to the public. First, the amendments make extensive revisions to the annual report subsection of the Act, subsection (e), modifying the content, timetable, and procedure for the filing of those reports. The statistics to be contained in annual reports under this new system will include the number of requests received, the number of requests processed, the number of requests pending as of the end of the reporting year, and the median number of days that those requests were pending. Agencies also will be required to specify the resources devoted by them to the processing of their requests, in terms of both dollars and full-time staff, and to include information about the Exemption 3 statutes upon which they rely to withhold information.

Under the amendments, the annual reporting period will change from a calendar year to a fiscal year, as of the beginning of fiscal year 1998 on October 1, 1997. Prior to that date, the Department of Justice will develop annual report guidelines for all agencies, in consultation with the Office of Management and Budget, for the compilation of fiscal year 1998 statistics and the preparation of a uniform new type of annual report. (This timetable conversion will leave a nine-month reporting period for calendar year 1997 reports to be filed under the current system.) The new annual reports will be due to be completed by February 1 of each year, in electronic form, and will be submitted to the Attorney General so that they can be made available to the public through a single World Wide Web site. Each agency also should make its annual report available for public reference in its reading room as well as through its own electronic site.

Additionally, the amendments require each agency to maintain "reference material or a guide for requesting records or information from the agency," which an agency should make publicly available in its reading room and through an electronic site, as well as upon any request. 5 U.S.C. § 552(g) (as amended, effective Mar. 31, 1997). Under new subsection (g) of the Act, this reference guide for potential FOIA requesters must include "an index of all major information systems of the agency" (except in any instance in which such system identification would cause exemption harm), "a description of [its] major information and record locator systems," and "a handbook for obtaining various types and categories of public information from the agency" both through FOIA requests and through non-FOIA means. Id.

This reference guide should aid potential requesters in making specific requests for agency records or in learning about records and information that is readily available from the agency without the necessity of a FOIA request, including through electronic access. It should give a clear picture of the types of records maintained by the agency; the process by which FOIA requests are handled by it (including references to its FOIA regulations and any forms required to be submitted by requesters); the FOIA requester's rights to administrative appeal and judicial review; the types of FOIA litigation cases brought against the agency; and the availability of agency information through means other than the FOIA. In preparing these guides, agencies should also consult the House Report accompanying the legislation, H.R. Rep. No. 795, 104th Cong., 2d Sess. (1996).

March 31, 1997        • General effective date for many amendment provisions.

October 1, 1997       • Due date for Justice Department annual reporting guidelines;  
                        statistical compilation for new form of annual report begins.   

October 2, 1997       • Effective date for provisions regarding time limits, 
                        multitrack processing, unusual circumstances, exceptional  
                        circumstances, expedited processing, and volume estimation.  

November 1, 1997      • Deadline for making available electronically all reading 
                        room records created on or after November 1, 1996. 

February 1, 1999      • Due date for first annual report using new form and new 
                        fiscal year timetable (report for fiscal year 1998). 

December 31, 1999     • Deadline for making available on-line agency's index of 
                        selected FOIA-disclosed records.  

The Center pages of this isuue of FOIA Update contain the text of the Freedom of Information Act in its amended form.

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