ML20217H058

Discusses Electronic Freedom of Info Act Amends of 1996 Signed by President Clinton on 961002

ML20217H058
Person / Time
Issue date:	11/07/1996
From:	Cyr K NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Diaz N, Dicus G, Shirley Ann Jackson, Mcgaffigan E, Rogers K, The Chairman NRC COMMISSION (OCM)
Shared Package
ML20217H029	List: ML20217H025 ML20217H058 ML20217H095 ML20217H119 ML20217H221 ML20217H247 ML20217H251 ML20217H304 ML20217H334 ML20217H357 ML20217H382 ML20217H406 ML20217H505 ML20217H541 ML20217H697 ML20217H714 ML20217H725 ML20217H729 ML20217H740 ML20217H758
References
FRN-62FR46922, FRN-64FR46922, RULE-PR-9 AF78-1-002, NUDOCS 9910220046
Download: ML20217H058 (45)

Text

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,I UNITED STATES A

• a ntouq'o, NUCLEAR REGULA'ORY COMMISSION dl.y WAsHINGToh, D C. 20555 4 001 h

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November 7,1996 OFFICE of THE GENERAL COUNSEL MEMORANDUM TO:

Chairman Jackson Commissioner Rogers Commissioner Dieus Commissioner Diaz Commissioner McGaffigan FROM:

Karen D. Cyr General Counse

SUBJECT:

ELECTRONIC FREEDOM OF INFO. MATION ACT AMENDMENTS OF 1996 On October 2,1996, President Clinton signed into law the Electronic Freedom of Information Act Amendments of 1996, P.L.104 231. This significant legislation, which amends the Freedom of Information Act (FOIA) codifies judicial decisions holding that documents maintained in electronic form (including e-mail) are " agency records" subject to public disclosure under FOIA, and requires agencies to provide, wherever reasonably possible, disclosable FOIA materialin the format of the requestor's choice, whether that be a hardcopy of the document or in electronic format such as tape, CD-ROM disk, diskette or other digital media. Agencies are expected to use, where appropriate, electronic search mechanisms to assist in the search for documents falling within the scope of a FOIA request. The time period for responding to a FOIA request has been enlarged. The c'ssses of information exempt from public disclosure under the FOIA have not been modified.

Most of the provinbns of the Act become effective on April 1,1997; others not until October 1,1997, and the latest December 31,1999. Several of the provisions of the legislation require enactment of regulations by the NRC through notice and comment rulemaking.

The primary objective of the legislation is to provide the public with government information on a more timely basis in a format that is most usable for the requestor. Simply put, the ultimate goalis to improve public access to government information available under FOIA to enable the public to more directly obtain and use government information.

The following is an overview of the most significant aspects of the new law.

A more detailed summary and analysis is attached (Attachment 1).

CONTACT:

Geraldine Fehst, OGC (301)415 1614 9910220046 991020

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4-A The Commissioners 2-A. Provisions Which Take Effect on April,1,1997 The definition of agency " record" has been expanded to include information maintained by the agency in any format, including an electronic format, thus requiring agencies to conduct FOIA searches of agency records kept electronically as well as on paper. This means e-mail communications, as well as documents found on the various computer drives used by agency employees, must be searched to determine whether they contain agency records falling within the scope of a FOIA request. To satisfy this requiren,ent, electronic search mechanisms will need to be utilized.

Agencies must produce records subject to FOIA in the format of choice sought by the requestor, such as CD-ROM and diskette, whenever reasonably possible.

Agencies must indicate the amount of material withheld from a requestor. If portions of a document are released, where it is technologically feasible to do so, the agency is to show where the deletion takes place. In some cases for electronic records this may be a chellenging task.

B. Provisions Taking Effect on October 1,1997 The initial agency response time to FOIA requests willincrease to 20 working days from the current 10 days. There are two mechanisms for further enlargement of the 20 working day response time:

In " unusual circumstances," agencies can take an additional 10 working days by providing the requestor with a written statement explaining why " unusual circumstances" require additional time to process the request. The statute defines " unusual circumstances" as time needed to search for and collect the requested records from field f acilities or other establishments separate from the agency processing the request; search and examination time rieeded for voluminous amounts of mater al; and consultation time with various components of the agency maintaining the record or other interested Federal agencies.

In addition, the agency can negotiate with the requestor an enlarged response period that goes beyond 30 working days. The requestor is under no obligation to negotiate an extension of a response time or alter his or her request and the agency may not discriminate against those requestors unwilling to negotiate an agreement extending the response time.

If a requestor is dissatisfied with the failure of an agency to provide the records within the prescribed time frames, the requestor can seek judicial relief. A court may provide an I

agency with additional time to respond to a request in " exceptional circumstances."

While the new statute does not specify what exactly constitutes " exceptional circumstances," the statute makes clear that routine agency backlogs of FOIA requests do i

not qualify as " exceptional circumstances," although courts shall consider agency efforts l

to reduce loads when considering extension requests.

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e The Commissioners 3-Agencies must promulgate regulations to provide for " expedited processing" in cases where the person requesting the records demonstrates a

" compelling need" or in other cases where the agency determines expedited processing is warranted. " Compelling need" is defined to cover two situations: where a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or where "a person primarily engaged in disseminating information" to the public has "an urgency to inform the public concoming actual or alleged Federal Gcvernment activity." Agencies have 10 days from the date of the request to inform the requestor whether the request qualifies for expedited processing. If it qualified, the agency is to complete its processing of the request as soon as possible.

Agencies may promulgate regulations octablishing separate processing systems within the agency to handle simple and complex requests. Termed "multitrack processing," the dual syst s would categorize FOlA requests based on the amount of agency effort required to process a request.

Requestors will have the option of limiting the scope of their requests to qualify for processing under a faster track, thus giving requestors an incentive to frame narrower requests.

Agencies currently must make available for public copying and inspection certain information, such as agency adjudicatory opinions, statements of policy and interpretations which have been adopted by the agency and not published in the Federal Register, and administrative staff manuals and staff instructions that affect a member of the public. The new law expands these categories to include agency records which are likely to be subject to repetitive FOIA requests. The statute provides, that to the extent feasible, all of the records generated after November 1,1996, which fallin any of the above categories be made available to the public through onlir.e electronic access no later than October 1,1997. A generalindex of these records is also to be available on line by December 31,1999. If it is not feasible to provide online access to these documents by these dates, the agency is to have the material available through other electronic means such as CD-Rom or diskette.

The NRC staff believes this provision will require the NRC to develop both a capability and a discipline for maintaining records in electronic form or have the capability to prepare an electronic version when required. This presents both a daunting and an immediate challenge for the NRC staff to devise a plan to meet this requirement.

l On or before February 1 of each year, beginning in 1998, agencies must submit to the Attorney General an annual report covering the preceding fiscal year and containing information about FOIA requests, including but not limited to: the number of determinations made by the agency not to comply with records requests and the reasons for those determinations; the number of appeals of denials and the ultimate results of those appeals; the number of requests pending before the agency as of September 30 of that preceding i

o The Commissioners year and the median number of days that such requests had been pending as of that date; the number of requests received and processed, the fees collected for processing, the total amount for processing such requests; and the number of full time staff devoted to the processing of requests for records and the average amount of time the agency estimates as necessary for compliance with different kinds of requests. The Department of Justice 3

(DC i), in consultation with tlie Office of Management and Budget,is to i

provide guidance to Federal agencies on the contents of these reports.

Agencies must prepare for public availability reference material or a guide for requesting records from the agency that includes an index of all major infortnation systems of the agency, a description of major information and record locator systems maintained by the agency and a handbook for obtaining various types and categories of public information from the agency. That guide must use " clear and simple language" to explain what records can and cannot be obtained from the agency through FOlA requests.

In sum, the NRC staff will need to modify NRC's FOIA regulations found in 10 C.F.R. Part 9 on an expedited basis so that they are in accord with the requirements of the new Act. Staff also must begin preparing a guide to implement FOlA.

The Department of Justice (DOJ) provides agencies with guidance regarding interpretation and implementation of FOIA provisions. The DOJ Office of Information and Privacy wai provide an overview of the Act in its FOIA update scheduled for issuance later this month.

DOJ willissue implementing regulations later this year. In addition, we have been informed that,if necessary, the Attorney General could decide to address issues that have arisen in interpreting the legislation in a memorandum to agencies sometime next year.

DOJ is required to issue an Annual Report in October 1997. Thus, we expect to receive guidance from that agency in the near future.

Attachments:

1. Detailed Summary and Analysis

2.. Text of Statute cc w/ attachments: All agency offices l

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' Addresses - Memorandum Dated 11/7/9696 Office Directors and Regional Administrators

SUBJECT:

MULTIPLE CC's LIST ELECTRONIC FREEDOM 0F INFORMATION ACT AMENDMENTS OF 1996 Mail

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John T. Larkins, Executive Director, Advisory Committee on Reactor Safeguards and Advisory Committee on Nuclear Waste T-2 E26 B. Paul Cotter, Jr., Chairman, Atomic Safety and Licensing Board Panel-

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T-3 F23 John F. Cordes, Jr., Acting Director, Office of Commission Appellate Adjudication 0-16 GIS Hubert T. Bell, Inspector General T-5 D28 Carlton Stoiber, Director, Office of International Programs 0-17 F2 Dennis K. Rathbun, Director, Office of Congressional Affairs 0-17 A3

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William M.' Beecher, Director, Office of Public Affairs 0-2 G5 John C. Hoyle, Secretary of the Commission 0-16 GIS James M. Taylor, Executive Director for Operations 0-17 G21 Gerald F., Cranford, Director, Office of Information Resources Management T-6 FIS Patricia G. 'Norry, Director, Office of Administration T-7 D59 Edward L. Jordan, Director, Office.for Analysis and Evaluation of Operational Data T-4 D18 Ronald M. Scroggins, Deputy Chief Financial Officer / Controller T-9 F6 James Lieberman, Director, Office of Enforcement 0-7 H5 Guy P. Caputo, Director, Office of Investigations 0-3 E4 Edward E. Tucker, Acting Director,- Office of Small Business and Civil Rights T-2 FIS Carl J. Paperiello, Director, Office of Nuclear Material Safety T-8 A23 and Safeguards Frank J. Miraglia, Jr., Acting Director, Office off Nuclear Reactor Regulation 0-12 G18 David L. Morrison, Director, Office of Nuclear Regulatory Research T-10 F12 Richard L. Bangart, Director, Office of State Programs, 0-3 023 Hubert J. Miller, Regional Administrator, Region I RGN-I Stewart D. Ebneter, Regional Administrator, Region 11 RGN-II Arthur B. Beach, Regional Administrator, Region III RGN-Ill Leonard J.' Callan, Regional Administrator, Region IV RGN "'

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ATTACHMENT 1 Detailed Summary and Analysis S

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Summary of the Electronic Freedom of informathn Act Amendments of 1996 The following summary and analysis focuses on changes to the Freedom of Information Act (FOIA), which is codified at 5 United States Code section 552. Some provisions of the current law were not modified and are therefore not discussed in this document.

Because the Senate adopted the House version of the bill, the House legislative history is most instructive in interpreting the legislation, although reference is made to the Senate i

legislative history where appropriate.

Section 552-Public information: acency rules. ooinions. orders records, and oroceedinos 3ection 2. Findinos and Purooses.

The findings proc! aim that the FOIA is a valuabk moons for the public to leam how the Federal Government operates and that government mncies should use new technology to enhance puolic access to agency records. The purp)ses of the Act include improving public access to information, and ensuring agency compliar co with statucory time limits for responding to FOIA requests.

Section 3. Acolication of Reovirements to Electronic Format Information.

The term " record" under the amended FOIA includes "any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format." The House Government Reform and Oversight Committee Report acknowledges that while the FOIA frequently uses the term

" record", at places the terms "information" and " matter" are used interchangeably with

" record". H. Rep. No. 75,104th Cong., 2nd Sess. 19 (1996M"H. Rep.") The amendment codifies the holdings of federal court decisions that electronic mailis subject to FOIA disclosure.

The legislative history makes clear that a record in electronic format can be requested just like a record on paper or any other format, subject to the same exceptions to disclosure.

Computer tapes, computer diskettes, CD ROMS, all other digital or electronic media, microfiche and microforms are " records". "When other, yet-to-be invented technologies are developed to store, maintain, produce, or otherwise record information, these will be records as well. Whan determining whether information is subject to the FOIA, the form or format in which it is maintained is not relevant to the decision." H. Rep. at p.20.

i Indeed, the legislative history explicitly states that information that passes the threshold test of being an agency record remains a record, no matter how it is preserved. "This provision should restrain agencies from evading the clear intent of the FO!A by deeming some forms of data as not being agency records and not subject to the law. The primary l

focus should always be on whether information is subject to disclosure or is exompt, rather than the form or format it is stored in."li

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2-Electronic information or material maintained outside of the government that is accessed electronically by an agency should not be considered within the agency's possession and control. However, any such data on a networked computer that is retrieved into an agency database by an agency employee or agent in printed or in paper form, becomes subject to FOlA disclosure according to the Committee. It is his view that rules governing the circumstances under which agencies may merely view, and not preserve, data distributed over networked computers in the performance of their functions should be established through legal and policy mechanisms other than the FOlA." Additional Views of Senator Leahy, S. Rep. 272,104th Cong. 2nd Sess. 31 (1996)'.

The amendments specifically reject the definition of records found in SDC Develooment

.Coro, v. Mathews,542 F.2d 1116 (9th Cir.1996), that an agency-created computer I

database of research abstracts was not an agency " record" because it was library material. Information an agency has created and is directly or indirectly disseminating remains subject to the FOlA in any of its forms or formats. H. Rep. at 20. However, intellectual propsrty, such as computer software, will be exei,pt from disclosure ender i

FOIA exemption four. Thus a copy of Wordperfect 6.1 would be an agency " record" but I

would not have to be provided to a FOIA requestor.

Section 4. Information Made Available in Electronic Format and Indexation of Records.

Agencies must make available for public inspection and copying certain information, such as agency adjudicatory opinions, statements of policy and interpretations adopted by the agency which have not been published in the Federal Register, and administrativa staff manuals and staff instructions that affect a member of the public. 552 U.S.C. SG2(a)(2).

The new law expands these categories to include agency records which have been made publicly available and are likely to be the subject of repetitive public requests, as well as a generalindex of these frequently sought documents. The expectation is that the index of frequently sought publicly available documents should permit agencies to assign their FOlA resources to tocess requests for documents which have not been requested previously by s

reuucing the number of multiple FOIA requests for the same records. H. Rep. at p. 21.

However, since not all members of the public have access to computers or agency public reading rooms, agencies must still provide requestors with access to previously released FOIA materials through the normal FOIA process. The House Committee report explains that to prevent unwarranted invasions of personal privacy, an agency may delete identifying details when it makes available or publishes the index and copies of previously-released records.11 The agency need not release the FOIA material and index of records pertaining to it if those materials are promptly published and copies are offered for sale.

5 U.S.C. 552 (a)(2).

The amendments further provide that section 552(a)(2) records which are created on or j

after November 1,1996 must be made available by computer telecommunications, within l

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'Sen. Leahy, one cf the authors.of the legislation, provided additional views after concluding that the Committee Report did not address certain issues that he believed warranted further explication.

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4 one year after tho'date of enactment of the law (by October 1,1997), or if computer

' telecommunications have not been established by other electronic means. The general

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leadox of these records is supposed to be available by computer telecommunications by December 31,1999. The meaning of the term " computer telecommunications" is not

'_ defined in the text of the legislation nor is it explained in the House legislative history.

However, the Senate Committee indicated that.the term "is meant to be synonymous with on-line access." S. Rep. 272,;104th Cong. 2nd Sess. 10 (1996) (hereinafter "S. Rep.")

Finally, where material has been withheld in electronic records made available to the public, the extent of the deletions must now be indicated on the portion of the record made available or published and, where technically possible, must be indicated at the place in the record where the deletion occurred. (See discussion below in section 9 regarding further discussion of computer redaction).

Section 5. Honorino ' Form or Format Reauests.

This section contains two significant provisions. First, the amendments require agencies, when making records available to the public, to do so "in any form or format requested by

~ he person if the record is readily reproducible by the agency" in the requested manner.

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Apsncies must make " reasonable efforts" to maintain their records in forms and formats

. reproducible for these purposes. The amendments reject Dimmukes v. Denartment of the jalarici. 603 F.Supp. 760,763 (D.D.C.1984), which had held that an agency was under

. no obligation under FOIA to accommodate the requestor's preference for format.

In discussing the proposed legislation on the House floor, Congressman Tate stated that these amendments " require Federal agencies to make a concerted effort to produce 2 records in the preferred format-such as CD Rom or computer disk--ensuring that

. Govemment information is not only readily available but also readily usable. The use of the latest technology by the Govemment agencies will harness the benefits of computer technology and deliver to everyone increased Govemment accessibility " 142 Cong. Rec at H10450 (September 17,1996). The Committee reports and floor debates do not shed any light on whether the term " format" encompasses only types of electronic media (a diskette, tape, or CD-Rom disk) or whether it also includes porticular software programs

. (such as Wordperfect 6.1 or Microsoft Word).

l The Senate Committee stated _that the Office of Management and Budget (OMB) had suggested that agencies not be required to spend more than two hours of time accommodaCng a request that the document be released in a particular format. The Senate Committee indicated that in some circumstances some agencies could determine that two hours is the maximum amount of time to be spent on this endeavor, but that

' other agencies could determine that significantly more or less time is reasonable under the circumstances. S. Rep at 15. The Senate Committee further indicated that agencies gnay charge appropriate fees to recover copying costs, regardless of what medium is used for duplication. }&

This approach raises policy issues that will have to be addressed by the NRC.

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4 The effect of the amendments made in sections 3 and 5 is to require the agency to make available in electronic media those documents falling within 552(a)(2) and those which

have been requested pursuant to the FOlA. The NRC's public document room while containing those documents, also contains thousands of documents which the NRC has voluntarily made public and which are not covered by sections 3 and 5. The NRC will need to decide whether it is willing to make all of those documents that are convertible to en electronic format available in electronic media upon request. If not, the agency will need to devise a means for readily identifying which PDR documents fall within the purview of sections 3 and 5.

Second, the amendments make clear that when a FOIA request is received, an agency l.

abould not only search for hard copies, but should also conduct automated (electronic) searches to ascertain if the agency has any records falling within the scope of the request.

A " search" under the amendments means "to review, manually or by automated means, i

- agency records for the purpose of loc: ting those records which are responsive to a request." 5 U.S.C. 552 (a)(3)(D). The House Committee suggests that electronic j

searches "should not result in any greater expeaditure of agency's resources than would have occurred with a conventional paper based search for documents." H. Rep. at 22.

j Electronic searches are not required if they "would significantly interfere with the l

operations of the agency or the agency's use of its computers." Id. In those cases where requestors seek data retrieved by specifications other than those ordinarily used by agencies for data retrieval, agencies should comply with'such requests where they can

" reasonably and efficiently" do so, but, this should not involve a disruption of agency

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functions.' S. Rep. at 15. What constitutes " reasonable" electronic searches will vary with the circumstances under which the records are held, according to Senator Leahy. J1 at 28.

L The House Committee indicates that under the definition of " search" in the bill, the review L

of computerized records would not amount to the creation of records. Thus, any index of i

documents'which identifies documents searched to determine whether they fell within the scope of a FOIA request would not be an agency record subject to FOIA. H. Rep. at 22.

l-For a number of years FO!A has provided that most requestors receive the first two hours of agency search time for free. The House Committee states that except in unusual

'instancss, the cost of computer time should not be considered in calculating the two free hours of search time normally allowed to requesters under FOIA. This assertion reflects the reduced costs of computerized searches. For any searches conducted beyond the first o

two hours, an agency shall only charge the direct charges of conducting such searches.

11 L While this is useful guidance, many questions not addressed in the legislation will be raised i.

by the electronic search i,rovisions. Among them is whether an agency must search

computer beckup tapes to determine whether they contain agency records falling within the scope of a FOIA request. Another is the extent of agency obligation in cases where l one employee sends an e-mail message to another employee that falls within the scope of a FOIA request, but the originator deletes the message from the computer. The question becomes whether the agency is under an obligation to seek to discover who the recipients I

of the message were and to ascertain whether they still retain a copy of the message.

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5-Section 6. Stand =d For.Andicial Review l

. in those instances.where an agency decision refusing to disclose agency records has been challenged in federal court, the court must give " substantial weight" to an affidavit of an agency concerning the agency's determination whether records are "readily reproducible"

'in a requested format or whether it is " technically feasible" to indicate the amount of information deleted., As the House Committee notes, "this deference is warranted because

agencies are the most familiar with the availability of their own technical resources to process, redact, and reproduce records,... and that (the standard of review provision) applies narrowly to agency determinations with regard to technical feasibility," and not any other agency affidavit on any other matter. H. Rep. at 22.

hetion 7. Ensurino Timelv Resoonses To Reauasts.

Today throughout the Federal Govemment many FOlA requests are not processed until long after the 10 working day period' prescribed unde' the current statute. In recognition r

of the fact that 10 days is not s' realistic standard, as set forth in section 8 below, the amendments enlarge the responta time to twenty working days. However, there is a recognition that even with this enlargement, many agencies may not be prepared to meet a 20 working day deadline. As the amendments and accompanying legislative history make clear, to meet the new deadline, agencies will need to employ better records management systems and set priorities for more efficient use of their FOIA resources. The House Committee nonetheless stresses that while agencies are to act more promptly in

- responding to FOIA requests, agencies must be careful that exempt material not be inadvertently released in the rush to act upon FOIA requests. The Committee specifically cites the national security exemption as an area that may require additional processing time to carefully screen material against " inadvertent disclosure." H. Rep. at 23. To help ensure timely' agency responses to requests, Congress suggested the use of multitrack processing.

i Multitrack Processino The amendments authorize agencies to promulgate regulations, through notice and comment rulemaking, which would establich separate systems within the agency for the handling of simple and complex requests. Called "multitrack processing," requests would

- be_ categorized based on the amount of agency effort involved in processing the request.

This would supplant the first-in, first out approach generally employed currently. Agencies must still exercise due diligence within each track. Agency regulations would give requesters the opportunity to limit the scope of their requests to qualify for processing under a faster track. This system should ensure that larger numbers of requests for smaller amounts of material will be completed more quickly, providing an incentive for requestors to frame narrower requests for fewer documents.

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I 6-Unusual Circumstances

. Even with use of multitrack processing, Congress recognized that in some circumstances the statutory response _ time.will not be met. - The new Act provides that agencies may extend the 20 working day response time to a request or the 20 working day response time to an appeal for an additional 10 working days in " unusual circumstances." Agencies must provide the requestor with written justifications for the exten4cn that contains the date of the expected agency response.

The amendments categorize " unusual circumstances" as time needed to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect and appropriately examine enormous amounts of materials demanded in a single request; and the need for consultation with another agency having a substantial interest !n the determination of the request or among two or more parts of the agency having substantial interest in the

- request.. Such consultations must be conducted "with all practicable speed." 5 U.S.C.

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in addition, the amendments authorize the agency and the requestor to negotiate a

. response time that exceeds the statutory maximum (20 working days plus a 10 working day extension) for those FOIA requests of exceptional " scope or complexity." The agency

- must offer the requestor an opportunity to limit the scope of the request so that it may be processed with the prescribed 20 wor _ king days. The House Committee asserted that this process for negotiated time limits reflects the policy that FOIA works best when requestors and agencies " work together to define and fulfill reasonable requests. When a

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requestor can modify a request to make it easier for the agency to process it, this benefits everyone." H. Rep. at 23. However, in those cases where a requestor and agency cannot agree upon a modification, each requestor "has the right to frams his or her own request,"

. providing that the request meets the legal standards of the FOIA. Agencies cannot discriminate against requestors whom the agency, on its own, has deemed " unreasonable" because of a refusal to modify a request. "The request must be processed as it would-have been had no modification been sought. An agency may not maintain a separate queue of

• unreasonable " requests or move such requests to the back of the queue. The Committee cautions agencies against using thir, limited test of ' reasonableness'in any way other than the narrow way that the statute provides." H. Rep. at 24. The Committee further indicated that agencies are expected to make diligent, good faith efforts to respond to FOIA requests within the statutory time frames and should seek extensions beyond the statutory 20 working days only in " rare" instances. %

Angregation of Renuests The amendments authorize agencies to promulgate notice and comment rulemaking to allow for the aggregation of FOIA. requests by the same requestor or by a group of requestors acting together. Aggregation may occur if the agency " reasonably believes" that these multiple requests do indeed constitute a single request. That aggregated " single request" 'must involve " clearly related matters" and must fit one of the three areas

- described above under " unusual circumstances" to qualify for aggregation, i.e. the location

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. of the requested records must be elsewhere from the office processing the request, the amount of material sought must be voluminous; or two different agencies or divisions within agencies need to consult about the FOIA materials sought. The amendments explicitly state that agencies shall not aggregate multiple requests involving unrelated matters. 5 U.S.C. 552(a)(6)(8)(iv)

Excenthal Circumstances Under provisiocs of the FOIA which were not modified in this new legislation, if an agency fails to complete action on a FOIA request within the prescribed time, a requestor may seek judicial relief, including a court order directing the agency to provide the requested materials, and to pay litigation costs, includirig attorneys fees.

Gle House Committee clarifies that the FOIA provides, in " exceptional circumstances,"

that a court can extend statutory time limits for egency response time to a FOIA request, "but does not specify what those circumstances are." 1 Routine, predictable agency backlogs for FOIA requests do ng.1 constitute " exceptional circumstances" for extensions of agency response time, unless the agency can demonstrate efforts made in reducing its backlog of per ding requests. if backlogs constituted " exceptional circumstancas", the practice would give agencies "an automatic excuse to ignore the time limits, since this provides a disincentive for agencies to clear up those backlogs." 1 The Committee Report notes that this is consistent with the holding in Ooen America v. Wateroate Soecial Prosecution Force, 547 F.2d 605 (D.C.Cir.1976), in that case, an unforeseen 3,000 percent increase in FOIA requests in one year, which created a massive backlog in an agency with insufficient resources to process those requests in a timely manner, constituted " exceptional circumstances" which warranted providing the agency with additional time to respond to the FOIA request.

Agencies seeking the " exceptional circumstances" extension of time before the courts should be able to point to the amount of material classified, the size and complexity of other requests processed by the agency, the resources being devoted to the declassification of classified material of public interest, or the number of requests for records by courts or administrative tribunals, as factors determining their need for additional response time. H. Rep, at 24. In addition, if a court concurs with an agency determination, arrived at by some undefined " objective standard" that a requestor has unreasonably refused to modify a request or extend a deadline, then the court can consider that refusal when determining whether " exceptional circumstances" exist for the agency's failure to respond to the request within the prescribed statutory time frame. E Section 8. Time Periods for Acency Consideration of Reauests.

As discussed above, section 8 extends the period for processing requests to 20 working days. In addition, this section provides that when agencies deny disclosure requests under FOlA, the agency must estimate the volume of any denied material and provide that information to the requestor unless such a disclosure would harm an interest protected by an exemption.

. Exoedited Processing Section 9 also provides that agencies must promulgate regulations through notice and comment rulemaking to provide for " expedited processing" in cases where the person requesting the records demonstrates a " compelling need" and in other cases where the agency determines expedited processing is warranted. The amendments define

" compelling need"in two ways. One is where "a failure to obtain requested records on an expedited basis... could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." The other is where a " person primarily engaged in disseminating information" to the public has "an urgency to inform the public concerning actual or alleged Foderal Government activity." Additionally, a person "primarily engaged" in the business of dissemination of information "should not include individuals who are engaged only incidentally in the dissemination of information," but requires that "information dissemination be the main activity of the requestor, although it need not be their sole occupation." A requestor w..o "on y incidentally" involved himself in information dissemination, in addition to other activities, would not satisfy this requirement. H. Rep.

at 26.

The term " urgency to inform," one of the qualifying elements for expedited processing, must involve a matter of ' current exigency to the American public" and any reasonable person could conclude that delaying a response to a FOlA request would compromise a "significant recognized interest." The public's right to know, while "significant and important," would not stand alone as sufficient to satisfy this standard. H. Rep. at 26.

Agencies will have to make both " factual and subjective judgments" about situations cited by requestors as reasons for expedited processing and must demonstrate " fairness and diligence" in exercising their discretion. Requestors must provide detailed explanations to j

support their expedited requests. In reaching decisions, agencies can take into account the credibility of requestors who have repeatedly made claims for expedited processing in the past with no foundation to support their claims. H. Rep. at 26. The House Committee i

states that in exercising its discretion in determining what requests should receive i

expedited processing, agencies should follow the requirements spelled out in the amendments as closely as possible. "Given the finite resources generally available for fulfilling FOIA requests, unduly generous use of the expedited processing procedure would unfairly disadvantage other requestors who do not qualify for its treatrnent." H. Rep.

at 26.

Agency regulations must guarantee that the requestor be informed within 10 days of the i

date of his or her request as to whether it qualifies for expedited processing. Once J

expedited processing is granted, agencies must process it "as soon as practicable."

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5 USC 552 (a)(6)(E)(iii). Any administrative appeal to a denial of expedited processing i

must be handled with

• expeditious consideration." 5 USC 552 (a)(6)(E)(ii)(ll). If an i

agency denies the request for expedited processing or fails to act upon the request within l

the prescribed 10 days, petitioner may seek judicial review. However, a federal district i

court has no jurisdiction to review an agency denial of expedited processing of a request for records if the agency has subsequently provided a complete response to the request for documents (albeit not on an expedited basis). The Committee Report makes it clear,

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though, that the courts still have the ability to consider a requestor's application for attorneys fees in such a case. H. Rep. at 25.

Section 9. Comouter Redaction.

The amendments require agencies to indicate the amount of deletions in the released portion of the record and also, where it is technologically feasible to do so, show the deletion at the place on the record where it was made. That requirement is eliminated if indicating the location of the deletion would harm an interest protected by an exemption.

Section 10. Reoort to the Conaress.

On or before February 1 of each year beginning in 1998, agencies mtist submit to the Attorney General an annual report that covers the pr 3 ding fiscal year and includes the number of determinations made by the agency not to comply with the requests for records made to the agency and the reasons for those determinations; the number of appeals made by persons, the results of those appeals, and the reason for the action upon each appeal that results in a denial of information; a complete list of all statutes that the agency used to authorize the agency to withhold information under Section 552 (b)(3), which exempts information that is specifically exempted from disclosure by other statutes; a description of whether a court has upheld the decision of the agency to withhold information under each of those statutes cited, and a concise description of the scope of any information upheld; the number of requests for records pending before the agency as of September 30 of the preceding year, and the median number of days that such requests had been pending before the agency as of that date; the number of requests for records received by the agency and the number of requests which the agency processed; the l

median number of days taken by the agency to process different types of requests; the l

total amount of fees collected by the agency for processing requests; the average amount of time that the agency estimates as necessary, based on the past experience of the l

agency, to comply with different types of requests; the number of full time staff of the i

agency devoted to the processing of requests for records under this section; and the total amount expended by the agency for processing such requests.

The amendments require each agency to make these annual reports available to the public through a computer network, or by other electronic means if computer networking is not a possibility for the agency. The Attorney General must then make each electronic report

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filed available at a single electronic access point and must make that information known, no later than April 1 of the year in which each st.c.h report has been issued, to the Chairman and ranking minority member of the Committee on Government Reform and

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Oversight of the Houso of Representatives and the Chairman and ranking minority member j

of the Committees on Governmer;tal Affairs and the Judiciary of the Senate.

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The Attorney General,in consultation with the Director ~ of the Office of Management and Budget (OMBL shall develop reporting and performance guidelines by October 1,1997,in connection with reports required by the amendments, and may establish additional requirements for these reports as the Attorney General determines to be "useful." In j

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. addition, on or before' April 1 of each calendar year, the Attomey General shall submit an annual report citing for the prior calendar year the number of FOIA cases in the Federal courts, the exemptions involved in 'esch case, the disposition of the case; and the attorneys fees and other litigation costs assessed against the Federal agency for i

noncompliance with the FOIA. The report must include efforts undertaken by the j

Department of Justice (DOJ) to encourage agency compliance with FOIA.

)

~.Since the amendments require that all FOlA reports be available by electronic means, the House Committee anticipates that DOJ will create a home page for access to all agency reports.. Until a single site of electronic access is available for all reports, the Attorney General will forward to Congress print copies of all reports not available electronically.

Agencies must make print reports available to the public, including distribution to

. Depository I.ibraries, if they do not provide electronic access to the reports. H. Rep. at 28.

The House Committee states that agencies must report the staff and budget burden for processing FOIA requests in order for Congress to effectively weigh agency outcry about the statutory requirements of FOIA against the adequacy of agency resources. " Effective future congressional oversight of the FOIA requires more detailed information about the level of resources that agencies devote to FOlA, the effectiveness of their utilization and i

the icyc! of resources that might be required for agencies to fully comply with the FOIA,"-

j the Commit'.ee Report stated. Agencies should inform Congress of the additional resources needed to fully comply with the FOIA. 'in the absence of such information on budget requests and management initiatives, the complaint by agencies that Congress has denied the resources necessary to comply with the statutory deadlines is unsupportable."

H. Rep. at 2g.

Section'11. ~ Reference Material and Guides.

Finally, th' e amendments require the head of each agency to prepare and make publicly available upon request reference material or a guide for requesting records or information from the agency. This includes an index of all major information systems of the agency, a description of major information and record locator systems maintained by the agency, and a handbook for obtaining various types and categories of public information from the agency pursuant to the Paperwork Reduction Act.

According to the House Committee, the guide is intended to be a "short and simple explanation" for tho'public of what the Freedom of information Act is designed to do, and how the public can use it as a resource for accessing governmer,t records. H. Rep. at 30.

Agencies must use " clear and simple language" to explain what records can and cannot be obtained from the agency through FOlA requests, and explain how the agency makes those determinatiorn.. E Agencies must explain in the guide how to make a FOlA o

0 request, how long to expect to wait for a reply, what the requestor's rights are under the law to appeal to the courts to alter any agency action. Agencies must include a brief history of recent litigation it has been involved in and what the resolution of those cases has been. The guide should include any agency forms that agencies require requestors to use, such as request forms for expedited processing.1

E,'

The guide should supplement other information locator systems, like the Government information Locator System (GILS), an information locator system required by the l

. Paperwork Reduction Act of 1995. Agencies must reference GILS in their guide as well as any other specific locator system the agency has designed for finding agency information

. and must explain how a requestor can obtain more information about them.1 OMB is expected to work with agencies to assure that all guides use common terminology about

- records systems, FolA filing procedures, and descriptior's of other locator systems.

Additionally, OM8 should assuro that all agencies follow a common format to make it easier for requestors using the guides from two or more agencies. E.

The House Committee states that guides should be available through electronic means and should be linked to the annual reports. In other words, a citizen referencing a FOIA guide should be told how to access the annual report; a reader of the annual report should be informed of the existence of the guide and instructed how to access it.

Section 12. Effective Date.

Agencies have until October 1.1997 to implement Sections 7 and 8. This means by that date the NRC must promulgate regulations addressing multitrack and expedited processing procedures. In addition, at that time the response times to FOIA requests will be enlarged to 20 working days and the agency will be required to estimate the amount of material

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. denied in a FOIA request. All other sections take effect on April 1,1997.

Under the Small Business Regulatory Enforcement Act, the Commission must provide a copy of the implementing regulations to the Congress and the GAO prior to their effective

' date. 5 U.S.C. 801.

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ATTACHMENT 2 Text of Statute l

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'ftp://ftp. loc. gov /...c104/h3802.cnr.txt ftp://ftp. loc. gov /...c104/h3802.enr.txt FILE h3802.ent

--H.R.3802--

H.R.3802 One Hundred Fourth Congress of the United States of America AT THE SECOND SESSION Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six An Act To amend section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, to provide for public access to information in an electronic format, and for other purposes.

[ Italic->]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, [c-Italic]

SECTION 1. SHORT TITLE.

This Act may be cited as the ' Electronic Freedom of Information Act Amendments of 1996',

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS-The Congress finds that--

(1) the purpose of section 552 -f title 5, United States Code, popularly known as the Ezeedom of Information Act, is to require agencies of the Federal Cavernment to make certain agency information available for stblic inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose; (2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a :aluable means through which any person can learn how the Federal Government operates; j

(3) the Freedom of Information Act has led to the disclosure I

of waste, fraud, abuse, and wrongdoing in the Federal Government; (4) the Freedom of Information Act has led to the l

identification of unsafe consumer products, harmful drugs, and

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i serious health hazards; (5) Government agencies increasingly use :omputers to conduct f

.gency business and to store publicly valuable agency records and information; and l

(6) Government agencies should use new technology to enhance u

public access to agency records and information.

(b) PURPOSES-The purposes of this Act are to--

f (1) foster democracy by ensuring public access to agency j

records and information; i

(2) improve public access to agency records and information; j

(3) ensure agency compliance with statutory time limits; and (4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.

SEC.

3. APPLICATION OF REQUIREMENTS TO ELECTRONIC FORMAT INFORMATION.

Section 552 (f) of title 5, United States Code, is amended to read as follows:

'(f) For purposes of this section, the term--

I

'(1) ' agency' as defined in section 551(1) of this title i

includes any executive department, tailitary department,

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Government corporation, Government controlled corporation, or

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other establishment in the executive branch of the Government (including the Executive Office of the President), or any l

6 independent regulatory agency; and

'(2) ' record' and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format.

including an electronic format.'.

)

SEC.

4.

INFORMATION MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEKATION OF RECORDS.

f

ftp'://ftp. loc. gov /...c104/h3802.enr.txt ftp://ftp. loc. gov /...c104/h3802.enr.txt Section 552 (a) (2) of title 5, United States Code, is amended--

(1) in the second sentence, by striking 'or staff manual or instruction' and inserting ' staff manual, instruction, or copies of records referred to in subparagraph (D)';

(2) by inserting before the period at the end of the third sentence the following: ', and the extent of such deletion shall be indicated on the portion of the record which is made avsklable or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made';

(3) by inserting after the third sentence the following:

'If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. ;

(( - in subparagraph (B), by striking 'and' after the semicolon; (5) by inserting after subparagraph (C) the following:

'(D) copies of all records, regardless of form or format, which have been released to any person under paragra7h (3) 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 recordsr and

'(E) a general index of the records referred to under aubparagraph (D);';

(6) by inserting after the fifth sentence the following:

'Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.'; and (7) by inserting after the first sentence the following: 'For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.'.

SEC.

5. HONORING FORM OR FORMAT REQUESTS.

Section 552 (a) (3) of title 5, United States Code, is amended--

(1) by inserting '(A)' af ter " (3) ';

(2) by striking '(A)' the second place it appears and inserting ' (i) ' ;

(3) by striking ' (B) ' and inserting '(ii)'; and (4) by adding at the end the following new subparagraphs:

'(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or formats Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

'(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the cperation of the agency's automated information system.

'(D) For purposes of this paragraph, the term ' search' means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.'.

SEC. 6. STANDARD FOR JUDICIAL REVIEW.

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Section [52 (a) (4) (B) of title 5, United States Code, is amended by adding at the end the following new sentence: 'In addition to any other matters to which a court accords substantial weight, a

court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2) (C) and subsection (b) and reproducibility under paragraph (3) (B). '.

SEC. 7.

ENSURING TIMELY RESPONSE TO REQUESTS.

(a) MULTITRACK PROCESSING-Section 552 (a) (6) of title 5, United States Code, is amended by adding at the end the following new subparagraph:

' (D) (1) Each agency may promulgate regulations, pursuant to

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[ftp://ftp. loc. gov /...c104/h3802.enr.txt ftp://ftp. loc. gov /...c104/h3802.enr.txt notice and, receipt ~of'public comment, providing for multitrack processing of requests for records based on the amount of work or time - (or both) involved in processing requests.

'(ii). Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in orde. to qualify for faster processing.

'(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.'.

(bl UNUSUAL CIRCUMSTANCES-Section 552 (a) (6) (B) of title 5, United States code, is amended to read as follows:

' (B) (i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (1) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual

.circuratances for such extension and the date on which a deteruination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.

'(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).

' (111) As used in this subparagraph, ' unusual circumstances' means, but only to the extent reasonably necessary to the proper processing of the particular requests--

'(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

'(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single requests or

'(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

'(iv) Each agency may pror lgate regulations, pursuant to notice and receipt of puolic comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters.

Multiple requests inv'4ving unrelated matters shall not be aggregated.'.

(c) EXCEPTIONAL CIRCUMSTANCES-Section 552 (a' (6) (C) of title 5, United States Code, is amended by inserting 'ii)' af ter ' (C) ', and by adding at the end the following new clautem:

'(ii) For purposes of this subparagraph, une term ' exceptional circumstances' does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.

'(iii) Refusal by a person to reasonably modify the scope of a request or_ arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the-request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.'.

SEC.

S. TIME PERIOD FOR AGENCY CONSIDERATION OF REQUESTS.

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G ftpI//ftp. loc. gov /...c104/h3802.enr.txt ftp://ftp. loc. gov /...cl04/h3802.enr.txt a

l (a) EXPEDITED PROCESSING-Section 552 (a) (6) of title 5, United l

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amended by adding at the end the following new subparagraph:

States Code (as amended by section 7(a) of this Act), is further

' (E) (i) Each agency shall promulgate regulations, pursuant to l

notice and receipt of public comment, providing for expedited l

processing of requests for records--

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'(I) in cases in which the person requesting the records demonstrates a compelling need; and l

'(II) in other cases determined by the agency.

'(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure--

'(I) that a determination of whether to provide expedited l

processing shall be made, and notice of the determination shall l

be provided to the person making the request, within 10 days l

after the date of the request; and

'(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.

'(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4),

except that the judicial.aview shall be based on the record before the agency at the time of the determination.

'(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.

'(v) For purposes of this subparagraph, the term ' compelling need' means--

'(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to tha life or physical safety of an individual; or

'(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

'(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief.'.

(b) EXTENSION OF GENERAL PERIOD FOR DETERMINING WHETHER TO COMPLY WITH A REQUEST-Section 552 (a) (6) (A) (1) of title 5, United States Code, is amended by striking ' ten days' and inserting '20 days'.

(c) ESTIMATION OF MATTER DENIED-Section 552 (a) (6) of title 5, United States Code (as amended by section 7 of this Act and subsectior. (a) of this section), is further amended by adding at the end the following new subparagraph:

'(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the persce making the request, unless providing such estimate would harm an interest protected by the 2xemption in subsection (b) pursuant to which the denial is made.'.

SEC.

9. COMPUTER REDACTION.

Section 552(b) of title 5, United States Code, is amended in the matter following paragraph (9) by inserting after the period the following: 'The amount of information deleted shall be indicated on the releaJed portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.'.

SEC. 10. REPORT TO THE CONGRESS.

Section 552 (e) of title 5, United States Code, is amended to read as follows:

' (e) (1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which

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i shall cover the~ preceding fiscal year and which shall 11clude--

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'(A) the number of determinations made by the ageacy not to comply with requests for records made to such agency under j

subsection (a) and the reasons for each'such determination;

' (B) (i).the number of appeals made by persons under subsection (a) (6),: the result of such appeals, and the reason for the action upon each appeal that results in a' denial of informations.and i

'(ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b) (3), a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any inforination withheld;

..'(C).the number of requests for records pending before the agency as of September 30 of the preceding year, and the median number of days that such requests had been pending before the agency as of that date;

'(D) the number of requests.for records received by the Lagency and the number of requests which the agency processed; I

'(E) tha median number of days taken by the agency to process different. types of requests;

'(F) the total amount of fees c-11ected by the agency for i

I

. processing requests; and

'(G) the number of full-time st

'f of the agency devoted to processing requests for records tocer this section, and the total amount expended by the agency for processing such requests.

'(2) Each agency shall make each such report available to the i

public including by computer teleccmmunications, or if computer telecommunications means have not been established by the agency,

'by other electronic means.

'(3) The Attorney General of the United States shall make each report which has been made L=ailable by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the j

Committees on Governmental Af fairs and the Judiciary of the Senate, no later than April 1 of the year in which each such_. report is issued, that such reports are available by electronic means.

'(4) The Attorney Ge.;eral of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful.

'(5) The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section. the exemption involved in each case, _the disposition of such case, and the cost, fees, and penalties = assessed under subparagraphs (E), (F), and (G) of subsection - (a) (4 )..

Such report shall also include a description of the efforts undertaken by the Department of-Justice to encourage agency compliance with this section.'.

SEC. 11. REFERENCE MATERIALS AND GUIDES.

Section 552 of title 5, United States Code, is amended by adding af ter subsection (f) the following new subsection:

'(g) The head of each~ agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including--

'(1) an index of all major information systems of the agency;

'(2)- a description of major information and record locator systems. maintained by the agency; and

'(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section.'.

SFt. 12. EFFECTIVE DATE.

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-(a) IN GENERAL-Except as provided in subsection (b), this Act shall take.effect 180 days after the date of the enactment of thi; Act.'

(b) PROVISIONS EFFECTIVE ON ENACWENT-Sections 7 and 8 shall take effect one year after the date of the enactmenc of this Act.

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

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l L0ffice of fl}clitorncu 6eneral I

Basiington.B.G. 20330 l

9 May 1, 1997

' MEMORANDUM FOR HEADS OF DE T ENTS IES FROM:

THE ATTORNE ERAL

SUBJECT:

THE FREEDOM OF INFORMATION ACT As you know, the President signed legislation last fall to amend and strengthen the Freedom of Information Act ("FOIA"),

5 U.S.C. S 552, as a means of public access to information about the activities of the departments and agencies of the Federal Government.

I am writing to bring to your attention the significant new l

requirements of this legislation that take effect at different times this year, and also to reemphasize the importance of the Administration's policy of striving for the maximum responsible 4

disclosure of information under the FOIA.

The Electronic Freedom of Information Act Amendments of 1996

(" Electronic FOIA amendments"),

P.L.

204-231, 110 Stat. 3048, l

contain provisions amending the FOIA with respect to records maintained in electronic formats, the timing of agency responses to FOIA requeste, the maintenance of reading rooms, and other l

procedural matters.

(Attached is a copy of the amended statute with an accompanying amendment descri; tion. )

The most significant.of these Electronic FOIA amendments are:

Provisions that confirm that the Act applies to

)

information maintained in electronic formats and establish a

" reasonable efforts" standard governing the search for and production of information in electronic form, effective as of March 31, 1997.

A provision requiring " reading room" treatment for FOIA-processed records that an agency considers likely to be the subject of subsequent FOIA requests, a190 effective as of March 31, 1997.

An " electronic reading room" provision that requires e

agencies to provide electronic availability for their newly created reading rcom records (i.e.,

created by the agency on or after November 1, 1996), as'of November 1, 1997.

Provisions that lengthen the Act's time limits for responding to requests, establish procedures for circumstances in which agencies cannot meet those time limits, and establish

.o.

4 lt-Memorandum'forl Heads of Departments and Agencies Page 2 L

Subject:

. Freedom;of.Information Act-L standards under which-FOIA' requesters.can seek " expedited processing"Jof their requests.

These provisions become effective

on October'2, 1997.

e:.A provis' ion _ limiting the circumstances under which an.

agency's backlog may be.used toajustify a delay in responding to

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a_FOIA request',..also effective as of; October 2, 1997.

A provision requiring agencies to prepare reference e

material orfa.guideLfor: requesting records from the agency, effe'etive as of March 31,-1997.

The Office of Management and Budge.tLhas issued guidance to agenciesLon'this subject (copy i

attached).

Amendments to the Act's requirements for the filing of l

e.

L annual FOIA reports, effective as of fiscal year 1998, beginning on October 1, 1997.

'As.provided for in the Electronic FOIA amendments, the Department of Justice will develop annual report guidelines, in.

' consultation with the Office of Management:and Budget, for use by

.all agencies in their compilation of annual report _ statistics beginning on October.1, 1997.

The Department of Justice is preparing to issue implementing regulations and a'FOIA reference

-guide to which1 agencies can look in their own implementation _of

-.the amendments.

The Department ~also will continue to address agency: questions concerning the amendments through its publications, training' activities, and its FOIA Counselor

service,

< As your department car agency implements the' Electronic FOIA amendments,1I urge.you to be.sure to continue our' strong

commitment.to the openness-in-government principles.that

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President Clinton and I established on October 4, 1993.

These principles include applying customer-service attitudes toward

.FOIA-requesters,~following the spirit asfwell as the letter of the Act,-and applying a presumption of-disclosure in FOIA decision making.' Most significant is that an agency should make

?a discretionary disclosure of~ exempt information whenever-it is that possible to do so without. foreseeable harm to any interest

'is protected-by a FOIA exemption; an agency should. withhold

.information:under-the FOIA only when it is-necessary to do so.

These. principles remain vital to the continued success of our'FOIA policy.

They also require that each department and agency-place a sustained priority on its FOIA administration responsibil'ities,-including through the elimination or reduction

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Memorandum for Heads of Departments and Agencies Page 3

Subject:

Freedom of Information Act l

of_any. backlog vu pending FOIA requests.

The reduction of j

existing agency rOIA backlogs will take on heightened significance under the-provisions of the Electronic FOIA amendments.

. Copies of the' statements of FOIA policy that President Clinton and I issued on October 4, 1993, are attached.

In furtherance of the President's directives, I ask that you promote l

our continued commitment to open government by redistributing l

these policy statements,. together with this memorandum and its

. attachments,.throughout your department or agency, with particular attention to your agency's recent appointees.

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FOIA UPDATE 3

m The Freedom of Information Act 5 U.S.C. s 552, As Amended By Public Law No. 104-231,110 Stat. 3048 Below is thefull text of the Freedom ofinformation Act in (D) copies of all records, regardless of form or for-aform showing all amendments to the statute made by the mat, which have been released to any person under

" Electronic Freedom of Information Act' Amendments of paragraph (3) and which, because of the nature of their 1996. ' All newly enacted provisions are in boldface type.

subject matter, the agency determines hase become or are likely to become the subject of subsequent requests 5 552. Public information; agency rules, opinions, orders, for substantially the same records; and (E) a generalindex of the records referred to under records, and proceedings subparagraph (D)t (a) Each agency shall make available to the peblic kJor-unless the materials are promptly published and copies offered for sale. For records created on or after Nosem-mation as follows:

(1) Each agency shall separately state and currently her 1.1996, within one year after such date, each agency publish in the Federal Register for the guidance of the shall make such records available including by computer telecommunications or, if computer telecommunications public--

means hase not been established by the agency, by other (A) descriptions of its central and field organization and the established places at which, the employees (and in electronic means. To the extent required to prevent a the case of a uniformed service, the members) from whom, clearly unwarranted invasion of personal priv wy, an agency and the methods whereby, the pubhc may obtain infor-may delete identifying details when it makes aw%ble or mation, make submittals or ter,uests, or obtain decisions; publishes an opmion, statement of pohey, mterpretanon, m (B) statements of the gt 1eral course and method by W4nanuJ m.c

, staff manual, instruction. or which its functions are chanwed and determined, including copies of records referred to in subparagraph (D). How-the nature and requirements of all formal and informal eser, in each case the justification for the deletion shall be explained fully in wnting, and the extent of such deletion procedures available; shall be indicated on the portion of the record which is (C) rules of procedure, descriptions of forms available or the places at which forms may be obtamed, and mstruc-made available or published, unless including that indi-tions as to the scope and contents of all papers, reports, or cation would harm an interest protected by the exemp-tion in subsection (b) under which the deletion is made.

examinations; (D) substantisc rules of general apphcabihty adopted if technically feasible, the extent of the deletion shall be as authorized by law, and statements of general policy or indicated at the place in the record where the deletion interpretations of general apphcabihty formulated and was made. Each agency shall also maintam and make avail-indexes adopted by the agency; and able for public inspection and copying current (E) each amendment, resision, or repeal of the fore-providmg ident fymg mformation for the public as to any matter issued. adopted, or promulgated after July 4.1967.

going.

Except to the extent that a person has actual and timely and required 5j this paragraph to be made available or pub-notice of the terms thereof, a person may not in any manner hshed. Each agency shall promptly publish, quarterly or be required to resort to, or be adversely affected Sy, a more frequently, and distnbute (by salc or otherwise) copies matter required to be published in the Federal Register and of each index or supplements thereto unless it determines by not so published. For the purpose of this paragraph. matter order published in the Federal Register that the publication reasonably available to the class of persons affected thereby would be unnecessary and impracticable, m which case the is deemed published in the Federal Register when mco po-agency shall nonetheless provide copies of an mdex on rated by reference therein with the approval of the Director request at a cost not to exceed the direct cost of duplication.

Each agency shall make the index referred to in subpara-i of the Federal Register.

graph (E) available by computer telecommunications by I

(2) Each agency, in accordance with published rules, shall December 31, 1999. A final order, opinion, statement of make available for public inspection and copying-(A) final opinions, includmg concurring and dissentmg pohcy, interptctation, or staff manual or mstruction that affects a member of the public may be relied on, used, or opinions, as well as orders, made m the adjudication of cited as precedent by an agency against a party other than cases; (B) those statements of pohey and mterpretations which an agency only if--

ti) it has been indexed and either made available or have been adopted by the agency and are not published m published as provided by this paragraph; or the Federal Register; ami (C) administrative staff manuals and instructions to (ii) the party has actual and timely notice of the Cont'd on next page staff that affect a member of the public:

l FOIA UPDATE Fall 1996 e

Text of the FOIA as Amended I

Cont'd from precedmg page government and is not primanly in the commercial mterest terms thereof.

of the requester.

(3)(A) Except with respect to the records made available (iv) Fee schedules shall provide for the recovery of under paragraphs (1) and (2) of this subsection, each only the direct costs of search, duplication, or review.

agency, upon request for records which W (i) reasonably Review costs shall include only the direct costs incurred describes such records and @) (ii) is made in accordance during the initial examination of a document for the pur-with published rules stating the time, place, fees (if any),

poses of determining whether the documents must be dis-and procedures to be followed, shall make the records closed under this section and for the purposes of withholding promptly available to any person.

any portions exempt from disclosure under this section. Re-(B) In making any record available to a person view costs may not include any costs incurred in resolving under this paragraph, an agency shall provide the record issues of hw or policy that may be raised in the course of in any form a format requested by the person if the processing a request under this section. No fee may be record is readily reproducible by the agency in that form charged by any agency under this section-or formnt. Each agency shall make reasonable efforts to (I) if the costs of routine collection and processmg maintain its records in forms or formats that are repro-of the fee are likely to equal or exceed the amount of the ducible for purposes of this section.

fee: or (C) In responding under this paragraph to a request (II) for any request described in clause (ii)(II) or for records, an agency shall make reasonable efforts to (III) of this subparagraph for the first two hours of search search for the records in electronic form or format, time or for the first one i ridred pages of duphcation.

except when such efforts would significantly interfere (v) No agency may require advance payment of any l'

vith the operation of the agency's automated information fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determmed that the fee system.

(D) For purposes of this paragrapn, the term will exceed $250.

"scarch" means to review, manually or by automated tvi) Nothing in this subparagraph shall supersede means, agency records for the purpose of locating those fees chargeable under a statute specifically providing for j

l records which are responsive to a request, setting the level of fees for particular types of records.

(4)(A)(i) In order to carry out the provisions of this (vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the the matter de novo, provided that the court's review of the schedule of fees applicable to the processmg of requests mater shall be limited to the record before the agency.

under this section and establishing procedures and guidelines (B) On complaint, the district court of the United States for determining when such fees should be waived or re-m the district in which the complainant resides, or has his duced. Such schedule shall conform to the gui&nes which principal place of business, or in which tiic agency records shall be promulgated, pursuant to notice and receipt of are situated, or in the District of Columbia, has jurisdiction public cornment, by the Director of the Office of Manage-to enjoin the agency from withholding agency records and ment and Budget and which shall proside for a umform to order the productwn of any agency records improperly wnhheld from the complainant. In such a case the court schedule of fees for all agencies.

(ii) Such agency regulations shall provide that--

shan.mermine the matter de novo, and may examine the (1) fees shall be limited to reasonable standard contents of such agency records in camera to determine whether such records or any pan thereof shall be withheld charges for document search, duphcation, and review, when under any of the exemptions set forth m subsection (b) of records are requested for commercial use:

(11) fees shall be limited to reasonable standard this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court charges for document duplication when records are not accords substantial weight, a court shall accord sub-sought for commercial use and the request is made by an stantial weight to an affidavit of an agenc3 concerning educational or noncommercial scientific institution, whose l

purpose is scholarly or scientific research; or a represen-the agency's determination as to technical feasibilit) under paragraph (2)(C) and subsection (b) and repro-tative of the news media; and (III) for any vquest not described in (1) or (11),

ducibility under paragraph (3)(B).

fees shall be limited to reasonable standard charges for (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any document search and dup ication.

(iii) Documents shall be furnished without any complaint made under this subsection within thirty days after charge o: at a charge reduced below the fees ntablished service upon the defendant of the pleading in which such under clause (ii) if disclosure of the information is in the complaint is made, urdess the court otherwise directs for public interest because it is likely to contribute significantly good cause shown.

Cont'd on next page j

to public understanding of the operations or activities of the j

F:ll1996 FOIA UPDATE 5

km Text of the FOIA as Amended

!P' 'n ===' 6censtare :.

w!Eed

k Cont'd from preceding page

[(D) E =p: = n ca=: me =un cr.i&s ^f pea:::

wbp=g :;+, 'he-44mc "-!:: p:ce:ibed :.iie:!=,9

- &use (ii) c' ubp=g pF W =:. '.. ' nded 51 impc~==, proceeding: 'e4:e ^e distric: =ur as authetized b; t cub =:i=, =d :p;el: :'e efn ' ::d.e wfka

.. '. ' c persca-muing suc' c;u '. ia; pfecedew ' 'he doek: c.e: d! :.e: =d ad! 5'e =.4g,+-

fe ~ ' "a =

'., ch e a.

nJ :' &N hich

" '- ' ring =d :rir! c: '- = gena : : #e ear!k : pmc-a4etemd "

apeced t ' H dispad:ed % sudete ticab'e dr.e =d = pedi: d i::=rj x y. Repealed by Pub.

shaWspecify : &N 'h:: culd esuh

=ci-4-

L 98-620, Title IV,402(2), Nov. 8,1984,98 Stat. 3335, 1 'h= t

=kmp4ay:n * : used i 'hL subp=2paph

~=u=! sfcu-

=/

e=, bu: ca!y ' 'he e :e-" tea-3357.]

(E) The court may assess against the United States

% c==rj 'c ^e p;cper p:c= :ng ? *e partsdar reasonable attomey fees and other litigation costs reasonably request- -

incurred in any case under this section in which the

(!) ^e =ed : : se=' '

=d ="=: 1. eq=s:ed complainant has substantially prevailed.

fe=+ '

'ield fri!" = c: 0er..cb!!dmems-4 hat-are (F) Whenever the court orders the production of any sep=:e f:cm ^e ofEx p c =ing :'e eq= ',

agency records improperly withheld from the complainant m) 'he red :c==h 4, ="=+,--aM.eppmpriatelv

- and assesses against the United States reasonable attorney n=i.

re!u?cus =c=', < ep=n 'nd diamei fees and other litigation costs, and the court additionally teec:6 '95 = & n=&d : : : ng!c eq=, m

. eed '~ =.u!: '

N' * " he issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel

=nhe:eJ ith a!! p:=> =ble sp=d.

" = 9 riene+

acted arbitrarily or capriciously with respect to the with-hr. n; a subs:=na!

'c./

• e & crimnm of S

"^

e holding, the Special Counsel shall promptly initiate a pro-req ='

= cag::e -

s _ up==

. c ceeding to determine whether disciplinary action is warrant-havm; su's =S! subjwaesmeres vein ed against the officer or employee who was primanly re-(B)(i) In unusual circumstances as specified in this sponsible for the withholding. The Special Counsel, after subparagraph, the time limits prescribed in either clause investigation and consideration of the evidence submitted, (i) or clause (ii) of subparagraph (A) may be extended b) shall st bmit his findings and recommendations to the admin-written notice to the person making such request setting istrative r.uthority of the agency concerned and shall send forth the unusual circumstances for such extension and copies of the findings and recommendations to the officer or the date on which a determination is expected to be dis-employee or his representative. The administrative authonty patched. No such notice shall specify a date that uould shall take the corrective action that the Special Counsel rec-result in an extencion for more than ten working da>s, except as provideu in clause (ii) of this subparagraph.

ommends.

(G) in the event of noncompliance with the order of the (ii) With respect to a request for which a written court, the district court may punish for contempt the respon-notice under clause (i) cxtends the time limits prescribed sible employee, and in the case of a uniformed settice, the under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request rasponsible member.

(5) Each agency having more than one member shall cannot be processed within the time limit specified in maintain and make available for public inspection a record that clause and shall proside the person an opportunity to limit the scope of the request so that it may be of the final votes of each member in every agency pro-processed within that time limit or an opportunity to cceding.

(6)(A) Each agency, upon any request for records made arrange with the agency an alternative time frame for under paragraph (1), (2), or (3) of this subsection, shall--

processing the request or a modified request. Refusal by (i) determine within ten-daw, twenty days (exceptmg the person to reasonably modify the request or arrange Saturdays, Sundays, and legal public holidays) after the such an alternative time frame shall be considered as a receipt of any such request whether to comply with such factor in determining whether exceptional circumstances request and shall immediately notify the person making such exist for purposes of subparagraph (C).

(iii) As used in this subparagraph, " unusual request of such determination and the reasons therefor, and circumstances" means, but only to the extent reasonably of the right of such person to appeal to the head of the

'necessary to the prope'r processing of the partular f

agency any adverse determination; and (ii) make a determir.ation with respect to any appeal requests--

I within twenty days (excepting Saturdays, Sundays, and legal (1) the need to search for and collect the re-public holidays) after the receipt of such appeal. if on q sested records from field facilities or other establish-appeal the demal of the request for records is in whole or in nie its that are separate from the office processing the re-part upheld, the agency shall notify the person making such quest; (II) the need to search for, collect, and appro-request of the provisions for judicial review of that deter-Cont'd on next page mination under paragraph (4) of this subsection.

1 1

FOIA UPDATE Fall 1996 6

Text of the FOIA as Amended Cont'd from preceding page vide a person making a request that does not qualify for priately examine a voluminous amount of separate and the fastest multitrack processing an opportunity to limit distinct records which are demanded in a single request; the scope of the request in order to qualify for faster processing.

or GII) the need for consultation, which shall be (iii) This subparagraph shall not be considered to conducted with all practicable speed, with another agen-affect the requirement under subparagraph (C) to ey having a substantial interest in the determination of exercise due diligence.

the request or among two or more components of the (E)(i) Each agency shall promulgate regulations.

rgency havint substantial subject matter interest therein.

purstunt to notice and receipt of public comment, (iv) Each agency may promulgate regulations, providing for expedited processing of requests for l

pursuant to notice and receipt of public comment, pro-records-viding for the aggregation of certain requests by the

0) in cases in which the person requesting the same requestor, or by a group of requestors acting in records demonstrates a compelling need; and concert, if the agency reasonably believcs that such re-OI) in other cases determined by the agency.

quests actually constitute a single request, which would (ii) Notwithstanding clause (i), regulations under otherwise satisfy the unusual circumstances specified in this subparagraph must ensure--

this subparagraph, and the requests involve clearly re-

0) that a detennination of whether to provide i

lated matters. Multiple requests involving unrelated expedited processing shall be made, and notice of the determination shall be provided to the person making the matters shall not be aggregated.

(C)(i) Any person making a request to any agency for request, within 10 days after the date of the request; and records under paragraph (1), (2) or (3) of this subsection GI) expeditious consideration of administrative shall be deemed to have exhausted his administrative appeals of such detenninations of whether to provide remedies with respect to such request if the agency fails to expedited processing.

comply with the applicable time limit provisions of this (iii) An agency shall process as soon as practicable paragraph. If the Government can show exceptional circum-any request for records to which the agency has granted stances exist and that the agency is exercising due diligence expedited processing under this subparagraph. Agency in responding to the request, the court may retain jurisdic-action to deny or affirm denial of a request for exp(dited tion and allow the agency additional time to complcte its processing pursuant to this subparagraph, and failure by review of the records. Upon any determinauon by an apn-an agency to respond in a timely manner to such a re-cy to comply with a regoest for records, the records shall be quest shall be subject to judicial resiew under paragraph made promptly available to such person making such re-(4), except that the judicial review shall be based on the quest. Any notification of denial of any request for records reco. before the agency at the time of the detennina-under this subsection shall set forth the names and titles or

tion, I

(iv) A district court of the United States shall not positions of each person responsible for the denial of such hasejurisdiction to resicw an agency denial of expedited request.

(ii) For purposes of this subparagraph, the tenn processing of a request for records after the agency has

" exceptional circumstances" does not include a delay that provided a complete response to the request.

results from a predictable agency workload of requests (v) For purposes of this subparagraph, the tenn under this section, unless the agency demonstrates

" compelling need" means-reasonable progress in reducing its backlog of pending

0) that a failure to obtain requested records on an expedited basis under this paragraph could reasona.

requests.

(iii) Refusal by a r on to reasonably modify the bly be expected to pose an imminent threat to the life or scope of a request or at.nge an alternative time frame physical safety of an individual; or for processing the request (or a modified request) under

01) with respect to a request made by a person clause (ii) after being gisen an opportunity to do so by primarily engaged in disseminating informaticn, urgency the agency to w hom the person made the request shall be to inform the public concerning actual or alieged Federal i

considered as a factor in determining whether excep-Gmernment activity.

f tional circumstances exist for purposes of th's subpara-bi) A demonstration of a compelling need by a person making a request for expedited processing shall I

graph.

be made by a statement certified by such person to be fD)(i) Each agency may promulgate regulations, true and correct to the best of such person's knowledge

[

pursuant to notice and receipt of public comment, pro-siding for multitrack processing of requests for rect'rds and helief, based on the amount of work or time (or both) imoised

0) in denying a request for rec (>rds, in whole or in part, an agency shall make a reasonable effort to esti-in processing requests, Cont'd on next page (ii) Regulations under this subparagraph may pro-

~

E Fall 1996 FOIA UPDATE 7

Text of the FOIA as Amended Cont'd from preceding page (9) geological and geophysical infonnation and data, mate the volume of any requested matter the provision including maps, concerning we!!s.

cf which is denied, and shall provide any such estimate Any reasonably segregable portion of a record shall be to the person making the request, unless providing such provided to any person requesting such record after deletion 1

estimate would harm an interest protected by the exemp-of the portions which are exempt under this subsection.

l tion in subsection (b) pursuant to which the denial is The amount of information deleted shall be indiceted on I

made.

the released portion of the record, unless including that indication would harm an interest protected by the ex-(b) This section does not apply to matters that are--

emption in this subsection under which the deletion is (1)(A) specifically authorized under criteria established by made. If technically feasible, the amount of theinforma-an Executive order to be kept secret in the interest of tion deleted shall be indicated at the place in the record national defense or foreign policy and (B) are in fact where such deletion is made, properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and (c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and-practices of r.n agency; (3) specifically exempted from disclosure by statute (other (A) the investigation or proceeding involves a possible than section 552b of this title), provided that such statute violation of criminal law; and 3

( A) requires that the matters be withheld from the public in (B) there is reason to believe that (i) the subject of the l

such a manner as to leave no discretion on the issue, or (B) investigation or proceeding is not aware of its pendency, and j

establishes particular cnteria for withholding or refers to (ii) disclosure of the existence of the records could j

particular types of matters to be withheld; reasonably be expected to interfere with enforcement pro-i (4) trade secrets and commercial or financial information ceedings, the agency may, during only such time as that cir-

)

I obtained from a person and pnvileged or confidential:

cumstance continues, treat the records as not subject to the I

(5) inter-agency or intra agency memorandums or letters requirements of this section.

which would not be available by law to a party other than (2) Whenever informant records maintained by a crimmal an agency in litigatica with the agency; law enforcement agency under an informant's name or (6) personnel and medical Gles and similar files the personal identifier are requested by a third pany according disclosure of which would constitute a cleuly unwarranted to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of invasion of personal privacy; (7) records cc information compiled for law enforcement this section unless the informant < status as an informant has purposes, but only to the extent that the production of such been officially confirmed, law enforcement records or information (A) could reason-

0) Whenever a request is made which involves access to ably be expected to interfete with enforcement proceedings, records maintained by the Federal Bureau of Investigation (B) would deprive a person of a nght to a fair inal or an penaining to foreign intelligence or counterintelligene, or impartial adjudication, tC) could reasonably be expected to mternational terrorisrn, and the existence of the recc: 5 is constitute an unwarranted invaston of personal pnvacy, t Di classified information as provided in subsection (b)(1), the

.could reasonably be expected to disclose the identity of a Bureau may, as long as the existence of the records remams confidential source, including a State, local, or foreign classified information, treat the records as not subject to the agency or authority or any p;ivate institution which fur-reqmrements of this section.

nished information on a confidential basis, and, in the case of a record or information compiled by a criminal law en-(d) This section does not authorize the withholding of forcement authority in the course of a criminal investigation mformation or limit the availability of records to the public.

or by an agency conductmg a lawful national secunty intel-except as specifically stated in this section. This section is ligence investigation,information fumished by a confidential not authonty to withhold information from Congress.

source, (E) would disclose techniques and procedures for lar nforcement investigations or prosecutions, or would f e) on - N'm '!=? ' " each calend er. ch j

disclore guidelines for law enforcement investigations or p y+ hal!sub: :: re;wt er enng :N p:eceding c&nda prosecutions if such disclosure could reasonably be expected yer -

'h; Spei " % %=e c' Nptmatan,

=d i

to risk circumvention of the law, or tF) could reasonably be pr9c afti= Sen=: '- efea ! - t appmpnate f

expected to endanger the life or physical safety of any in-cc- "2 " he Cong:= The ep; ~ -ha!! : &de 9 4he-mmhe e g; m,jm. g q g apn3_,w r

dividual; (8) contained in or related to examination, operatmg, or m*

• ply " eque:/ ' :ewit m* - wh up s j

condition reports prepared by, on behalf of, or for the use un& Aenf + a"

+er

'c

. h =h of an agency responsible for the regulation or supervision of demmmammi Cont'd on next page financial institutions; or

8 FOIA UPDATE Fall 1996

)

i Text of the FOIA as Amended Cont'd from preceding page processed; (2) ^: =nic c' appei n=& by pcm

=&r (E) the median number of days taken by the agency

bw :!cn ( )(5), he re=!: ef such app;&, =J :':=

to process different types of requests; fee-th: neuen upcn :=h-apped h:: :=uh: 5 : & =!

(F) the total amount of fees collected by the agency informathmt for processing requests; and (3) "x n==: =d i"=

pos::. " =h per=

(G) the number of full-time staff of the agency de-r=percib!: '- h: &nid cf :=er& :=;u=*:d. n&- :his voted to processing requests for records under this ser-j

= c:ica, = d % : numb = " :rs:== " p=:icip.

or tion, and the total amount expended by the agency for f

eac4e processing such requests.

(4Fehewesults-cf :=h preceeding tendaeted p===: :c (2) Each agency shall make each such repon available

=b=:!cn (a)(1)(5, :nduding : ::pe cf de d!=ip!:nry to the public including by computer telecommunications, j

:!c ::k= a;d=: 6: c"i= = =p!cy= "hc== pr or if computer telecommunications means have not been mari!y r= pen"b!: fr- % prep =!y "'he! ding:==& :

established by the agency, by other electronic means.

e*p!=r": cf " hy d!=ip!:n=y =:!= 1.= neHakeat (3) The Attorney General of the United States shat!

I (5) : =py ef := y -& n=& by =h :g =y eg= ding make each report which has been made available by thi: =:!cr; electronic means available at a single electronic access (5): =py uf 1: f= =hedu!: =d de :::d =cun' "'=

point. The Attorney Genera'. of the United States shall ec"=::d by h: :;;=y e-nckin; :e=& =d!^'e =&-

notify the Chairman and ranking minority member of r

thi w = nc

=d the Committee on Government Refonn and Oversight of

(?) =' ": iaformanen = :ndia:; eff = -

the llouse of Representatives and the Chairman and administer 4alh F =:!c-ranking minority member of the Committees on Govern-The ^"e =y C==d -hd! =bmi: = =nud epn mental Affairs and the Judiciary of the Senate, no later bef= 4= h ' " =h ed=& y = Wh - hd! :-du&

than April I of the year in which each such report is is-

'e " pr

='=d= ; = c !!s:ing e

'r =r'= c =

sued, that such reports are available by electronic r

r ruin; =de "& =:!en,-the-enemp+ica :- ' d : =h

means, ene, he dispasi:im cf =h cm =d ^ :c, ':;, =d (4) The Attorney General of the United States, in pend i= =:=ed =d= r'=n

(c)M)(E), 'r) =d (G)-

consultation with the Director of the Office of Man-Swh epan ddl &c - du;.. -a d==ip:

" "u ? fens agement and Budget, shall develop reponing and per-

=&ndr M he %;=nm= " '=: = - : x=+ age fonnance guidelines in connection with repons required

=cy =mpli==

"h 6 =:!c-by this subsection by October 1,1997, and may establish additional requirements for such reports as the Attorney (e)(1) On or before February 1 of each 3 car, each agency General determines may be useful.

shallsubmit to the Attorney General of the United States (5) The Attorney General of the United States shall a repon which shall emer the preceding fiscal year and submit an annual report on or before April I of each which shall include-calendar year which shall include for the prior calendar (A) the number of determinations made by the year a listing of the number of cases arising under this agency not to comply with requests for records made to section. the exemption involved in each case, the disposi-such agency under subsection (a) and the reasons for tion of such cm, and the cost, fees, and penalties asses-each such determination; sed under subparagraphs (E), (F), and (G) of subsection (B)(i) the number of appes !s made by persons under (a)(4). Such report shall also include a description of the subsection (a)(6), the result m' such appeals, and the efforts undenaken by the Department of Justice to en-reason for the action upon each appeal that results in a courage agency compliance with this section.

denial of information; and (ii) a complete list of all statutes that the agency

@ "~ pepc c'^" = -

"1

=w ",p.(t "- 6 relies upon to authorize the agency to withhold informa-

&%:d i- =ne-5510) of "& F": inc4edeway E =u se tion under subsection (b)(3), a description of whether a

&p=: met, "i:=y &;mnmex, Oct eranu ; = pc-a j

l coud has upheld the decision of the agency to withhold Cater==: =nac!!:d = ; era:H,

1r =taWhment information under each such statute, and a concise

" ^: :=um e b =h " " Oc'ern e 'i: duding 1:

f description of the scope of any information withheld; becum: Offi= c' he Ni&~,

- =; n&p=&w 1

(C) the number of requests for records pending regulate-) age =y before the agency as of September 30 of the preceding 3 ear, and the median number of days that such requests (f) For purposes of this section, the term-t had been pending before the agency as of that date; (1) " agency" as defined in section 551(1) of this title (D) the number of requests for records received by includes any executive department, military depanment, Cont'd on next page the agency and the number of requests which the agency t

J

Fall 1996 l'OIA UPDATE 9

Text of the FOIA as Amended Cont'd from preceling page ciuding-Government corporation, Government controlled corpo-(1) an index of all major information systems of the ration, or other establishment in the executive branch of agency; i

the Government (including the Executive Office of the (2) a description of major information and record j

President), or any independ* - :ulatory agency; and locator systems maintained by the agency; and (2) " record" and any other to... used in this section in (3) a handbook for obtaining various types and cat-reference to information includes any information that egories of public information from the agency pursuant would be an agency record subject to the requirements to chapter 35 of title 44, and under this section.

of this section when maintained by an agency in any format, including an electronic format.

Section 12. Effective Date [not to be codifiedj.

l 1

(a) Except as provided in subsection (b), this Act shall (g) The head of each agency shall prepare and make take effect 180 days after the date of the enactment of publicly available upon request, reference material or a this Act [ March 31,1997],

guide for requesting records or information from the (b) Sections 7 and 8 shall take effect one year after the agency, subject to the exemptions in subsection (b), in-date of the enactment of this Act [ October 2,1997].

Below is thefull text of the statement issued by President Clinton upon signing the 1996 FOIA amendments into lau on October 2, I996:

I am pleased to sign into law today li.R. 3802, the " Electronic Freedom of Information Act Amendments of 1996."

This bill represents the culmination of several years of leadership by Senator Patnck Leahy to bnng this impor tant law up to date. Enacted in 1966, the Freedom of Information Act 'FOIA) was the first law to establish an effec-tive legal right of access to government information, underscoring the crucial need in a democracy for open access to i

government information by citizens. In the last 30 years. citizens, scholars, and reporters have used FOI A to obtam vital and valuable government information.

Since 1966, the world has changed a great deal. Records are no longer principally maintained in paper format.

Now, they are maintained in a variety of technolog:es includmg CD ROM and computer tapes and diskettes, making I

it easier to put more inf 3rmation on line.

/

My Adrmnistration has launched numerous tmtiatives to bnng more government information to the public. We l

have established World Wide Web pages, which identify and link information resources throughout the Federal Government. An enormous range of documents and data, including the Federal budget, is now available on-lme or in electronic format, making government more accessible than ever. And in the last year, we have declassified unprecedented amounts of national secunty matenal. including information on nuclear testing.

The legislation i sign today bnngs FOIA into the information and electronic age by clanfymg that it applies to records maintained in electronic fonnat. This law also broadens puSlic access to government mformation by placmg i

more matenal on line and expanding the role of the agency readmg room. As the Government actively dissemmates more information, I hope that there will be less need to use FOIA to obtain government information.

This legislation nat only affinns the importance, but also the challenge of maimaining openness in govemment.

In, period of governmer. dowmizmg, the numbers of requests continue to rise. In addition, growing numbers of requests are for information that m!ist be reviewed for declassification, or in which there is a propnetary interest or a privacy concern. The result m many agencies is huge backlogs of requests.

In this Act, the Congress recognized thai with today's limited resources, it is frequently difficult to respond to a FOlA request within the 10 days formerly required in the law. This legislation extends the legal response penod to j

20 days.

More importantly, it recognizes that many FOI A requests are so broad and complex that they cannot possibly bj completed even within this longer period, and the time spent processing them only delays other requests. Accordinl l

)

ly, it.R. 3802 establishes procedures for an agency to discuss with requesters ways of tailoring large requests to im-prove responsiveness. This approach explicitly recognizes that FOIA v.orks best when agencies and requeste I

together.

l Our country was founded on democratic pnnciples of openness and accauntability, and for 30 years. FOI A has l

supported these principles. Today, the " Electronic Freedom of Information Act Amendments of 1996' reforges a imponant link between the United States Government and the Amencan people.

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U.S. Department of Justice Vol. NVII, No. 4 Fall 1996 Office of Information and Pnvacy FOIA { p g g v

Congress Enacts FOIA Amendments In an action that culmmates several ears of legislatis quirement for electronic availability of reading room ree-l and administrative consideration of electronic record FOIA ords, most efficiently through on-line access, in what can be issues, Congress has enacted amendments to the Freedom of regarded as " electronic reading rooms."

Information Act that address those issues and other proced.

First, the amendments create a new category of records ural aspects of FOIA administration.

that will be required to receive " reading room" treatment--a On September 17 and 18, respectively. the flouse of category consisting of any reentds processed and disclosed Representatives and the Senate passed H.R. 3802, a slightly in response to a FOIA request that "the agency determines modified version of a bill that was developed by the House have become or are likely to become the subject of subse 6

Subcommittee on Govemment Management, Informanon.

quent requests for substantially the same records?

and Technology, chaired by Rep. Stephen llom < R. Cal.L U.S.C. s 552(aH2H D) (as amended, effective Mar. 31.

The bill received bipanisan support both in the flouse and 1997L Under this provision, when records are disclosed m in the Senate, where its prmcipal sponsor was Sen Patnck response to a FOIA request, an agency will be required to determme if they have already become the subject of subse-Leahy (D. Vt.),

Enutled the " Electronic Freedom of Informanon Act quent FotA requests or, in the agency's best judgment Amendments of 1996 " the bill was signed into law by Pres-based upon the nature of the records and the types of re-ident Clinton on October 2, with the observation that it "re-quests regularly received, are likely to be the subject of forges an important ImL between the United States Govern-multiple requests in the future, if either is the case, then ment and the Amencan people? (See page 9 of this issue those records in their FOIA-processed form (but not, of of Fot A Undate for the text of President Clinton's sigmng course, any information about a first-ps.rty requester that would not be disclosed to any other FOIA requesteri wd!

statement.)

The amendments made to the Act by this new law ad-become "readmg room" records to be made automancally dress the subjen of electronic records for the first time ever available to potential FOlA requesters. Ideally, that avad.

in the text of he statute. They also address the subject area abiht) will sausfy much of the future pubhc demand for t

of time hmits and agency backlogs of FOIA requests, those processed records. m a more effiaent fashion. but any I OlA request received for the records wdl hase to be re-among other procedural provisions.

Many of the amendments w dl take effect at'ter a 180-sponded to m a regular fashion as well.

Second, the amendments wdl require agencies to use day period, but the ame limit and backlog related provisions will take effect after one year, and some other provisions electronic mformation technology to enhance the availabihty have specific other effecuve ddes for implementanon. (See of their reading room records. They specify that for am chart on page 11a For purposes of agency implementation, newly created readmg room records o c. " records created the amendments can be considered withm several distinct on or after November 1, i996"), an agency must make them available to the public by "electrome meansJ 5 U S C.

subject areas.

Electronic Reading Rooms

% 552(a)(21. The amendments embody a strong statutors A major change made by the FOIA amendments in-preference that this new electronic avadabihty be provided volves the maintenance of agency reading rooms under sub-by agencies m the form of on.ime access, which can be section (aH2) of the Act. Under that part of the FOIA, most ef ficient for both agencies and the pubhc alike, and agencies are required to make three categones of records--

they allow until November 1,1997 for it to be provided final opinions rendered in the adjudicanon of admmistrante To meet this new requirement through on-line access, agen-cases, specific agency policy statements and admimstratise cies should hase Internet or World Wide Web sites prepared staff panuals that affect the public -routmely avadable for to serve this "electrome readmg room" funcuon by no later than that date.

Cont'd on nest page public inspection and copying. See FOI A Update Summer e

1992, at 4, (This obligation does not apply to any records that "are promptly pubbshed and jarel offered for sale " 5 The center pages of this issue of FOIA Update con-U.S.C. 6 552(aW20) The new amendments both add to tain the test of the Freedom of Information Act in its those catepones of reading room records and establish a re-amended form.

r 9

FOIA UPDATE Fall 1996 Electronic Sites to be Prepared Cont'd from preceding page formats that are reproducible for purposes of the [FOIA)."

This means that as of mid 1997, agencies will begin to h!, Taken together, these two provisions will require agen-maintain both conventional reading rooms and,* electronic cies to honor a requester's specified choice among existing reading rooms" in order to meet their FO!A subsection forms of a requested record (assuming no exceptional diffi-(a)(2) responsibilities. As of March 31, the basic effective culty in reproducing an existing record form) and to make date of the amendments, they must begin to place in their

" reasonable efforts" to disclose a record in a different fonn reading rooms copies of an FOIA-processed records deter-or format when that is requested and the record is "readily mined to fall within the new founh subsection (a)(2) cate-reproducible" in that new form or format.

gory, just as they regularly place their other subsection The first of these two aspects is relatively straightfor-(a)(2) records there. Additionally,they must identify any of ward. The requester, not the agency, ordinarily will be en-their reading room records that were created on or after the titled to choose the form of disclosure when multiple forms November 1,1996 cut-off date and then make those records of a record already exist; the amendments thus overrule any available (by no later than the November 1,1997 electror"-

precedent such as Dismukes v. Department of the Interior, access deadline) throug' their electronic sites as well.

603 F. Supp. 760,763 (D.D.C.1984), which holds to the a

For traditional subsection (a)(2) records such as ad-contrary. Any funber request for a record to be disclosed l

ministrative staff manuals, for example, vinually everything in a new form or format will have to be considered by an that an agency places in its reading room, in time, will be agency, on a case-by-case basis, to determine whether the newly created and therefore will be required to be made records are "readily reproducible" in that fonn or format available electromcally also. (Where only part of a manual with " reasonable effons" on the part of the agency. Under is updated, it would be advisable for the agency to place the a separate provision of the amendments, an agency's deter-entire manual on its electronic site, in order to avoid con-mination regarding " reproducibility" is entitled to special fusion.) In the case of FOIA-processed records, on the deference if challenged in coun. 5 U.S.C. # 552(aH4)@

other hand a very large proportion of those records will (as amended, effective Mar. 31, 1997).

have been created prior to the 1996 cut-off date, at least as The amendments likewise apply a general

• reasonable of the outset of the new law's implementation and therefore efforts" standard to the matter of an agency's search obli-will not be subject to the electronic availability requirement, gation in connection with electronic records. They provide Accordingly, agencies will have to make it clear to the that "an agency shall make reasonable efforts to search for users of their electronic reading rooms that while all of their

[such] records in electronic form or format, except when subsection (a)(2) records are available in their conventional such efforts would significantly interfere with the operation reading rooms, only the newly created ones are available of the agency's automated information system." 5 U.S.C.

through their electronic sites. Agencies should utihze in-Q 552(a)(3)(C)(as amended, effective Mar. 31, 1997). This dices to facilitate use of both types of reading rooms. They provision ptomates electronic database searches and encour-are required by the amendments to maintain an mdex of ages agencies to expend new efforts in order to comply with their FOlA processed records and to make it available on-the electrome search requirements of particular FOIA re-tme by December 31,1999 quests. It will necessarily require an agency to detemune.

Electronie Records in any case m which a requested database search would in-The amendments contain several provisions that pertain volve new programming and database-retneval efforts, to the processing of FOlA requests for records m electrome whether those effons are " reasonable" under the particular form. First, they define the term " record" simply as includ-circumstances involved. Additionally, this amendment pro-ing "any information that would be an agency record subject vides that an agency would not be required to undertake any to the requirements of Ithe FOIA) when maintained by an such efforts in any exceptional case in which the imple-agency in any format, including an electronic fonnat." 5 mentation of a data-retrieval program for a requested FOIA U.S.C % 552(f)(2)(as amended, effectise Mar. 31, 1997).

search would "significantly interfere" with its computer sys-This definition appears to confirm existing general practices tems' operations.

Time Limits and Ilacklogs of treating mformation maintained in electronic forms as The amendments contain several different provisions subject to the FOIA and, while it references no particular pertaining to the timing of agency responses to FOIA re-electronic item such as computer software, seems to broadly

{

encompass information maintained in electronic form.

quests, all of which take effect after one year. First, they Second, they iddress the form or format in which a re-mcrease the Act's basic time limit for agency responses to quested record is disclosed under the FOIA, requinng that FOIA requests, lengthening it from ten to twenty working "an agency shall provide 'he record in any form or format days. For agencies that can regularly act on their FOIA j

/

l requested if the record is readily reproducible by the requests within the existing ten-day time limit, this change l

agency in that form or format." 5 U.S.C. 9 552(a)(3)(B) should not affect thei,r administration of the Act.

(as amended, effective Mar. 31, 1997). Additionally, this Second, the amendments encourage agencies that c.xper-I new subsection of the Act provides that an agency "shall icnce difficultiesin meeting the Act's time !imits to promul-Cont'd on page 10 l

make reasonable efforts to maintain its records in forms or 4

f I

i 10 FOIA UPDATE Fal!1996 l

Implementing Regulations Required Cont'd from page 2 A fifth time limit-related amendment addresses requests gate regulations providing for "multitrack processing" of for "exped:ted processing" under the Act. The amendments a

their FOIA requests, " based on the amount of work or time require all agencies to promulgate regulations under which i

(or both)" that is involved in processing them. 5 U.S.C they will consider such requests and grant them wheneser a 6 552(a)(6)(D) (as amended, effective Oct. 2,1997). An

" compelling need" is shown. The term "compelhng need" agency or component of an agency that maintains two or is defined as (1)involvmg "an immment threat to the life or more processing tracks must handle its requests on a first-in, physical safety of an individual," or (2) in the case of a first-out basis within ea-h track, but will have the Hexibility request made by "a per son primarily engaged in dissemmat-I to respond to relatively simple FOIA requests more quickly ing information, urgency to inform the pubhc concernmg throt gh its multitrack system. It also can provide requesters actual or alleged Federal Government activity." 5 U.S.C.

with an opportunity limit their requests in order to obtain s 552(a)(6)(E)(as amended, effective Oct. 2.1997).

j faster processing. Agencies that handle their FOIA requests Under this provision, a FOI A requester may make a re.

j on a decentraliz

• basis through separate agency components quest for expedited processmg with a certincation of "com-I should allow multitrack processing systems to be maintained pelling need." 5 U.S.C. s 552(a)(6)(EXvi). Then "withm l

according to the individual circumstances of each com-10 days after the date of the request" (which as a practical f

ponent.

matter may be determined by a postmark in some cases), the l

Third, a closely related amendment supplements the agency will be required to decide whether to grant expedited provision in the Act by w hich an agency may take additional processing and to notify the requester of its decision. 5 time for responding to a request based upon " unusual cir-U.S.C. $ $52(a)(6)tEWiiXI). If expedited processmg a cumstances" involved m the request--such as the volume of granted, the agency must give pnority to that FOI A request-records sought. 5 U.S.C. ( 552(a)(6HB) las amended, ef-er and process the requested records for disclosure "as soon fective Oct. 2,1997), Under existing law, an agency may as practicable." 5 U.S C. p 552(ax6HEHiiit If expedited take only an additional ten working days based upon such processmg is not granted, the agency must hkewise give l

" unusual circumstances." Under the ametJtnents, how ever.

" expeditious consideration" to any administratis e appeal of an agency notifying a requester of " unusual w.wistances" that denial. 5 U.S.C. N 552(an6xEHiihli). Any judicial may specify that additional time is required and offer the reuew of a denial of expedited procesung will be based on l

requester the opportunity "to limit the scope of the request" the administrative record of the correspondence between the and/or "to arrange with the agency an alternauve time frame requester and the agency. 5 U.S.C. } 552(ah6xEumt for processing the request or a modi 6ed request." 5 U.S.C Denial Specification s $52(a)(6)(Bxi), (ii). His provides a basis for agencies The amendm-s contain two provisions that deal with and FOIA requesters to reach agreement on the timmg of an acency's obligation to specify to a FOl A requester mtor-agency responses in cses in which the circumstances of the mation that is denied in response to a request, First. m the particular request, rather than a more general agency back-situation in which information is deleted from a record. hat log. cause difficulty in meeting the Act's time limits.

is disclosed in part, the amendments require that "[tlhe Fourth, the amendments address the subject of general amount of mformation deleted shall be indicated on the re-agency backlogs by hmitmg the condinons under u hich the leased poruon of the record, unless includmg that mdtcation Act's " exceptional circumstances" prouston may apply.

would harm an mterest protected by the lapphcablel exemp-They specify that such circumstances will "not mclude a tion." 5 C S.C

• 552(b) tas amended effecove Mar. 31.

delay that results from a predictable agency workload of 1997). This pr. vision was enacted under a bill section en-

[FOIA requests), unless the agency demonstrates reasonable titled "Comput' r Redaction," and accordmgly it further pro-progress in reducing its backlog of pending requests." 5 vides that "[ilf techmcally feasible, the amount of the m-U.S.C. Q 552(a)(6)(C)(ii) (as amended, effective Oct. 2.

formation deleted shall be mdicated at the place m the rec-1997). This amendment willlimit the ability of an agency ord where such deletion is made " Id, Howeser, its terms with a heavy FOIA backlog to obtain a stay of judicial pro-are not limited to information mamtamed m electrome torm.

ceedings on the basis of that backlog, under the precedent so it also codifies the sound adrninistrative practice of mark-of Onen America v. Watergate Special Prosecution Force, ing records to show all deletions when records are disclosed 547 F.2d 605 (D.C. Cir.1976), if a delayed FOIA request in conventional paper form.

proceeds to litigation. Such a stay may be granted when an A second such provision deals with the situation m agency can demonstrate " reasonable progress" in its back-which entire records. or entire pages of them are withheld log reduction efforts. It also could be granted where a This amendment requires an agency to "make a reasonable requester refuses "to reasonably modif the scope of a re-et brt to estimate the volume" of what b withheld and 'to I

quest or arrange an altemative time frame for processing" povide any such esumate to the person makm; the rt -

it, two separate amendment provisions specify that this quest. " 5 U.S C. ! 552(aH6HFi ias amended, etteense "shall be considered as a factor in determining whether ex-Oct. 2,1997). Ordmarily, agencies will meet this require-ceptional circumstances exist." 5 U.S.C. s 552(aH6KBuii),

ment by specifying in their denialletters the solume of wha' Cont'd on nnt page (aK6HC)(iii)(as amended, effective Oct. 2.1997).

f Fall 1996 FOIA UPDATE 1i 1

... Amendment Effective Dates Vary Cont'd from preceding page nual reports will be due to be completed by February I of is withheld in numbers of entire pages, documents, or some each year. in electronic form, and will be submitted to the other applicable form of measurement. Like the deletion Attorney General so that they can be made available to the provision above, this provision does not apply in the excep-public through a single World Wide Web site. Each agency tional situation (e.g., a "neither confirm nor deny" case) in also should make its anr.ual report available for pubhc ref-which disclosing the volume of records withheld would be crence in its reading room as well as through its own elec-harmful. This amendment carries the same effective date as tronic site, the time limit and backlog-related amendments because it Additionally, the amendments require each agency to was contained in the same section of the bill.

maintain " reference material or a guide for requesting rec-Annual Reports and Reference Guides '

ords or information from the agency," which an agency The amendments also address the process by which should make publicly available in its reading room and agencies provide information about their administration of through an electronic site, as well as upon any request. 5 the FO!A, both through their annual reports to Congress and U.S.C. Q 552(g) (as amended, effective Mar. 31, 1997).

in the basic reference information that they make available Under new subsection (g) of the Act, this reference guide to the public. First, the amendments make extensive revi-for potential FOIA requesters must include "an index of all sions to the annual report subsection of the Act, subsection major information systems of the agency" (except in any in-(c), modifying the content, timetable, and procedure for the stance in which such system identification would cause ex-filing of those reports. The statistics to be contained in emption harm), "a description of [its] major infonnation and annual reports under this new system will iitclude the num-record locator systems," and "a handbook for obtainmg var-ber of requests received, the number of requests processed, ious types and categories of public information from the the number of requests pending as of the end of the report-agency" both through FOI A requests and through non-FOI A ing year, and the median number of days that those requests means. Ld_

were pending. Agencies also will be required to specify the Ttus reference guide should aid potential requesters in resources devoted by them to the processmg of their e-making specific requests for agency records or in learnmg quests, in terms of both dollars and full-time staff, and to about records and information that is readdy available from include information about the Exemption 3 statutes t pon the agency without the necessity of a FOIA request, mclud-which they rely to withhold information.

ing through electronic access. It should give a clear picture

' Under the amendments, the annual reporting snod will of the types of records maintained by the agency; the proc-change from a calendar year to a fiscal year, as of the be-ess by which FOI A requests are handled by it imcluding ret-ginning of 6 scal year 1998 on October 1,1997. prior to erences to its FOIA regulations and any forms required to that date, the Depanment of Justice will develop annual re-be submitted by r,uesters); the FOIA requester's rights to port guidelines for all agencies, in consultation with the administrative appeal and judicial review; the types of FOI A Office of Management and Budget, for the compdanon of 1,tigatmn cases brought against the agency; and the avail-fiscal year 1998 statistics and the preparation of a umform ability of agency mformation through means other than the new type of annual repert. (This timetable conversion will FOI A. In preparing these guides, agencies should also con-leave a nine month reporting period for ca!mdar year 1997 sult the House Report accompanying the legistanon, it.R reports to be filed under the current system.) The new an-Rep. No. 795,104th Cong.,2d Sess. (1996r Effective Dates and Timetable for FOIA Amendments March 31,1997

• General effective date for many amendment provisions.

October 1,1997

• Duc date for Justice Department annual reporting guidelines; statistical compdation for new form of annual report begins.

October 2,1997

. Effective date for provisions regardmg time limits, multitrack processmg, unusual circumstances, excepuonal circumstances, expedited processing, and volume i

estimation.

November 1,1997

• Deadline for making available electromcally all readmg room records created on or after November 1,1996.

February 1,1999

• Duc date for first annual repo t using new form and new fiscal year ometable (report for fiscal year 1998).

December 31,1999

• Deadline for making available on-tme agenef s index of selected FOI A-disclosed records.

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p EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND CUDGET.

WA",HINCTON. O C. 20503 April 7, 1997 M 1 o MEMORANDUM FOR THE HEADS OF EXECUTIVE AGENCIES I

FROM:

Franklin D. Raines

=

SUBJECT:

Guidance on Developing a Handbook for Individuals Seeking Access to Public Information On October 2,1996, the President signed into law the " Electronic Freedom of Information' Act Amendments of 1996" (P.L.104-231). The purpose of this memorandum is to

- provide guidance to agencies on Section 11, which requires each agency to issue reference material or a guide for requesting records or information from the agency. Section 11 amended the Freedom ofInformation Act (FOIA) by adding 5 U.S.C. 552(g), which states:

"The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, including--

"(1) an index of all major information systems of the agency;

"(2) a description of major information and record locator systems maintained by j

the agency; and

"(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section."

The purpose of this " reference material" or " guide" is to provide the public with reference tools on how to find and obtain public information. This provision is in effect as of March 31,1997.

With respect to paragraphs (1) and (2), an agency can satisf'/ these requirements by establishing a Government Information Locator Service (GILS) presence. The requirements for GILS are described in the attached OMB Bulletin 95-01," Establishment of Government Information Locator Service."

With respect to paragraph (3), each agency should prepare a document that describes in one place the various ways.by which a person can obtain public information from the agency, as well as the types and categories ofinformation available. In preparing the document, each j'

agency should review the dissemination policies and practices set out in OMB Circular No. A-130," Management of Federal Infonnation Resources." The document should be in plain English and user-friendly. Where applicable, it should indicate that the public is encouraged to access infonnation electronically via the agency's home page or to search in its reading room, and that i

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the public may also submit a request to the agency under the Freedom ofInformation Act.

" Types and categories" of available information will vary from agency to agency, and agencies should describe their information resources in whatever manner seems most appropriate.

This document should be available in paper fonnat as well as electronically, and should include the following:

the location of readmg rooms within the agency and within its major field offices, as well as a brief description of the types and categories ofinformation available; the location of the agency's World Wide Web home page; a reference to the agency's FOIA regulations and how to get a copy; a reference to the agency's Freedom ofInforma!!on Act annual report and how to get a copy; the location of the agency's GILS page; and a brief description of the types and categories ofinformation generally available from the agency.

If an agency already has a document that addresses how the public can obtain agency information. such as a customer service handbook or a FOIA requester's handbook, the agency should review the document and revise it, if necessary, to reflect the new requirements.

Should your staff have any questions regarding this memorandum, they may contact Virginia Huth in the Office ofInformation and Regulatory Affairs in the Office of Management and Budget at (202) 395-3785.

Attachment 2

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TH E WHITE HOUS E-WAs H t NGTO N October'4, "993 MEMORANDUM'FOR HEADS OF DEPARTMENTS'AND AGENCIES

SUBJECT:

The' Freedom of Information Act I am writing to. call your attention to a subject that is of great importance to.the American public and to all Federal departments and' agencies ---the administration of the Freedom

- of Information Act, as amended 'the "Act").

The Act is a vital part of.che participatory system of government.

I am committed to. enhancing its etfactiveness'.in my Administration.

For more than'a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form'of government.

The statute.was enacted based upon the fundamental-principle that an" informed citizenry is essential to the. democratic process and that the more the American people know about their-government the better they will be governed.

openness in government is essential to accountability and the Act has become an integral part'of that process.

- The Freedom of Information Act, moreover, has been one of the primary means by which members of the public inform themselves about their government.

As Vice President Gore made clear

' in_the. National Performance Review, the American people are

~ the' Federal Government's customers.

Federal departments and agencies'should handle requests for information in a customer-friendly manner.- The use of the Act by ordinary citizens is

- not complicated, nor should it be.

The existence of unnecessary i

bureaucratic hurdles has no place in its implementation.

I therefore call upon all Federal departments and agencies-

)

to renew their commitment to the Freedom of Information Act, toLits underlying principles of government openness, and to its-sound administration.

This is an appropriate time for all' agencies-to take a fresh look at.their administration

-of the Act, to reduce backlogs of Freedom of Information lAct requests,._and,to' conform agency practice to the new litigation guidance issued by the Attorney General, which is attached.

rurther, I remind agencies that our commitmerit to openness F

requires'more than merely responding to requests from the

_public.

Each agency has a responsibility to distribute information on'its own initiative, and to enhance public access througn the use of electronic information systems.

Taking.these--steps will ensure compliance with both the letter and spirit of the Act.

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TH E WHITE HOUSE WAs H I N GTO N t

October 4, f.993 MEMORANDUM FOR HEADS OF DEPARTMENTS AND' AGENCIES

SUBJECT:

The Freedom of Information Act I am writing to call your attention to a subject that is of great importance to the American public and to all Tederal departmal.ts and agencies.-- the administration of ti.e Freedom of Information Act, as amended (the "Act").

The Act is a vital part.of the participatory system of government.

I am committed to enhancing its effectiveness in'my Administration.

l-For more than a' quarter. century now, the Freedom of Information.

Act has played a unique role in strengthening our democratic form of government.

The statute was enacted based upon the fundamental. principle that an informed citizen;;y is essential to the democratic process and that the more the American people know about their government the better they will be governed.

Openness in government is. essential _to accountability and the Act has become~an integral,part-of that process.

' The Freedom of Information Act, moreover, has been one,of the primary means'by which members of the public inform themselves about their government.

As Vice President Gore made clear

- in the National Performance Review, the American people are the Federal Government's customers.

Federal departments and agencies should handle requests for information in a customer-friendly manner.- The use of the Act by ordinary citizens is not complicated,'nor should it be.

The existence of unnecessary bureaucratic hurdles has no place in its implementation.

I therefore. call upon all Federal' departments and agencies to renew their commitment to the Freedom of Information Act, to its underlying principles of government openness, and to its sound administration.

This is an appropriate time for L

all agencies to take a fresh look at their administration

-offthe Act,-to' reduce backlogs of Freedom of-Information '

l Act' requests,.and to. conform agency _ practice to the new l

litigation guidance' issued by the Attorney General, which

-is attached.

Further, I remind agencies that our commitment to openness requires more than nerely responding to requests from the public-Each agency has a responsibility to distribute information on its own initiative,_and to enhance public access througn the use of _ electronic information systems.

._Taking these steps will ensure compliance with both the letter and_ spirit of the Act.

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@ffice of the litorncu 6cncral

&s hington.D. C. ca330 October 4, 1993 MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

SUBJECT:

The Freedom of Information Act President Cl35 ton has asked each Federal department and agency to take steps to ensure it is in compliance with both the letter and the spirit cf the Freedom of Information Act (FOIA), 5 U.S.C.

S 552.

The Department of Justice is fully committed to this directive and stands ready to assist all agencies as we implement this new policy.

First and foremost, we must ensure that the principle of openness in government is applied in each and every disclosure and nondisclosure decision that is required under the Act.

Therefore, I hereby rescind the Department of Justice's 1981 guidelines for the defense of agency action in Freedom of Information Act litigation.

The Department will no longer defend an agency's withholding of information merely because there is a

" substantial legal basis" for doing so.

Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure.

To be sure, the Act' accommodates, through its exemption structure, the countervailing interests that can exist in both disclosure and nondisclosure of government information.

Yet while the Act's exemptions are designed to guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied with specific reference to such harm, and only after consideration of the reasonably expected consequences of disclosure in each particular case.

In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.

Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be.

It is my belief that this change in policy serves the public interest by achievi7g the Act's primary objective -- maximum responsible disclosure of government information -- while preserving essential confidentiality, Accordingly, I strongly encourage your FOIA officers to make " discretionary disclosures"

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2 whenevar possible under the Act.

Such disclosures are possible underna number of!FOIA exemptions, especially when only_a

. governmental' interest'would be affected.

The exemptions and opportunities for " discretionary disclosures" are discussed in the Discretionary Disclosure and Waiver section of th.' " Justice Department Guide to the Freedom of Information Act."

As that discussion points out, agencies can make discretionary FOIA disclosures as a. matter of good public policy without concern for

' future." waiver consequences"-for similar.information.

Such disclosures can also readily satisfy an agency's " reasonable segregation" ohligation under the Act in. connection with marginally execpt information,. gag 5 U.S.C. S 552(b), and can lessen an agency's administrative burden at all levels of the edministrative. process'and in litigation..

I-note that this policy is not. intended to create any substantive or procedural rights enforceable at law.

In connection'with.the_ repeal of the 1981 guidelines, I am

-requesting that the Assistant Attorneys General for the Department's Civil'and Tax Divisions, as well as the United States Attorneys, undertake a review of the merits of all pending FOIA cases handled by_them, according to the standards set forth above.. The Department's litigating attorneys will strive to work closely;with your general counsels and their litigation staffs to

. implement'this new policy on a case-by-case basis.

The Department's Office of Information and Privacy can also be called upon for' assistance in this process, as well as for policy guidance to agency FOIA officers.

In addition,.at the Department of Justice we are undertaking a complete review and revision of our regulations implementing the

FOIA, all related regulations pertaining to the Privacy Act of

-1974, 5 U.S.C.JS 552a, as well as'the Department's disclosure policies generally.

We are also planning to conduct a Department-wide "FOIA Form Review."

Envisioned is a comprehensive review of all standard FOIA forms and corraspondence utilized by the Justice Department's various components.

These items will be reviewed for their correctness, completeness, consistency, and particularly for their use of clear: language.

As we conduct this review, we will be especially mindful that FOIA requesters are users of a government service, participants in an' administrative process, and constituents'of our democratic society.

I. encourage you to do likewise at your

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departments and agencies.

L Finally, I would like to take this opportunity to raise with you the longstanding problem of administrative backlogs under the Freedom of Information Act.

Many Federal departments and agencies are often unable to meet the Act's ten-day time' limit for processing.FOIA requests, and sone agencies -- especially

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those dealing with high-volume demands for particularly sensitive records -- maintain large FOIA backlogs greatly exceeding the mandated time period.

The reasons for this may vary, but principally it appears to be a problem of too few resources in the face of too heavy a workload.

This is a serious problem --

f one of growing concern and frustration to both FOIA requesters and Congress, and to agency FOIA officers as well.

It is my hope that we can work constructively together, with Congress and the FOIA-requester community, to reduce backlogs during the coming year.

To ensure that we have a clear and current understanding of the situation, I am requesting that each of you send to the Department's Office of Information,and Privacy 1

a copy of your agency's Annual FOIA Report to Congress for 1992.

Please include with this report a letter describing the extent of any present FOIA backlog, FOIA staffing difficulties and any other observations in this regard that you believe would'be helpful.

3 In closing, I want to reemphasize the importance of our cooperative efforts in this area.

The American public's understanding of the workings of its government is a cornerstone of our democracy.

The Department of Justice stands prepared to assist all Federal agencies as we make government throughout the executive branch more open, more responsive, and more accountable.

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