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FOIA COMMENTARY BY ACCESS REPORTS

I. INTRODUCTION

The following text is an analysis of the Freedom of Information Act (FOIA). Included is a brief history of its passage and subsequent amendments, a section-by-section analysis with an emphasis on judicial interpretations, and a discussion of certain general topics which do not fit under any one section. This analysis is intended to be an objective description of the current state of the law, although some may disagree with specific portions. Where there is clearly an unresolved legal question, that fact has been indicated.

Below is a list of certain reference materials and the shortform citation which is used to refer to them in the text:

1. Freedom of Information Source Book: Legislative Materials, Cases, Articles, Senate Doc. No. 93-82, 93d Cong., 2d Sess. (1974) (relates to the original FOIA passed in 1966). Referred to in text as Source Book I.

2. Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Joint Committee Print, 94th Cong., 1st Sess. (1975). Referred to in text as Source Book II.

3. Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (1967). Referred to in text as 1967 Blue Book.

4. Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act (1974). Referred to in text as 1975 Blue Book.

5. Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act (1987). Referred to in text as 1987 Blue Book.

6. FOIA Update. A quarterly newsletter published by the Department of Justice's Office of Information and Privacy to provide guidance to federal agencies on FOIA matters. Referred to in text by issue designation; e.g., Spring 1981.

7. Government in the Sunshine Act -- S.5, Source Book: Legislative History, Texts, and Other Documents, Joint Committee Print, 94th Cong., 2d Sess. (1976). Referred to in text as Sunshine Act Source Book.

The Office of Information and Privacy also publishes two other extremely useful references:

1. Freedom of Information Case List. Published every other year and available from the U.S. Government Printing Office, ISBN 0-16-049785-X. The current edition is September 1998.

2. Freedom of Information Act Guide & Privacy Act Overview. Published every year and also available from the U.S. Government Printing Office, ISBN 0-16-049784-1. The current edition is September 1998.

Congress passed the original FOIA in 1966 with an effective date of July 4, 1967. Dissatisfied with the executive branch's implementation of the Act, and with the Supreme Court's decision in EPA v. Mink (discussed below under Exemption 1), it overrode a presidential veto to amend the Act significantly in 1974. Another Supreme Court decision led to amendment of Exemption 3 in 1976, while the Civil Service Reform Act of 1978 (P.L. 95-454) necessitated the substitution in 5 U.S.C. §552(a)(4)(F) of "Special Counsel" for "Civil Service Commission." In 1984, Congress enacted legislation which gave courts a great deal of discretion in determining whether to grant the expedited treatment of FOIA cases called for in 5 U.S.C. §552(a)(4)(D). 28 U.S.C. §1657.

The next amendment was the Freedom of Information Reform Act of 1986 (part of the Anti-Drug Abuse Act of 1986, P.L. 99-570). It dealt with questions of fees to be charged to requesters, and protections afforded to law enforcement records.

Ten years later, in October 1996, Congress enacted the Electronic Freedom of Information Act (EFOIA), the most comprehensive FOIA amendments since 1974. See P.L. 104-231. This legislation contained: (1) significant amendments to the reading room requirements; (2) equally significant amendments to the agencies' obligations in responding to requests; (3) an addition to the judicial review standards; (4) an extension of the administrative time limits for responding to initial requests from 10 to 20 working days; (5) new definitions of unusual and exceptional circumstances; (6) authorization for a multitrack processing procedure; (7) a requirement to agencies to promulgate regulations providing for expedited processing of certain requests; (8) new requirements for indicating redactions of portions of records; (9) changes to the annual report requirements; (10) a new definition of "agency" and an initial one of information. Most of these amendments took effect on March 31, 1997, but those relating to time limits and backlogs (4-7 above) did not become effective until October 2, 1997.

The Office of Information and Privacy published guidance concerning implementation of EFOIA in the Fall 1996 (Vol. XVII, No. 4) and Summer 1998 (Vol. XIX, No. 3) issues of FOIA Update. See also, the Department of Justice's implementing regulations at 63 Fed.Reg. 29591 (June 1, 1998), codified in Part 16 of 28 C.F.R.

The complete text of each section in set out in full at the beginning of the relevant analysis. Text which has remained unchanged since the FOIA was passed in 1966 is unmarked. Portions added by the 1974 Amendments are in italics. The language added in 1976 by a provision in the Sunshine Act is underlined. The 1986 amendments are in boldface. The 1996 Amendments are indicated in bold italics.

The exemptions from mandatory disclosure in the FOIA are set forth in 5 U.S.C. §552(b). The specific exemptions will be referred to in the text by either (1) their full citation, (2) Exemption _, or (3) the (b)( ) exemption.

Next Section: II. HISTORY