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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

C. Right to Request Access

Text:

(a)(3). Except with respect to records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.

(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 format. 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 operation 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.

Discussion:

This section is by far the FOIA's best known disclosure requirement. It provides that any person may request any record from an agency, and that the agency must make that record "promptly available." The 1996 amendments added a requirement that agencies "shall provide [records] in any form or format requested. . .If the [records are] readily reproducible. . .in that form or format." Where an agency maintains responsive records in more than one format, the requester has a right to receive copies of non-exempt records in whichever format he/she chooses. The only requirements are that the requester reasonably describe the records being sought, and make the request in accordance with the agency's regulations.

There is no mention in Section (a)(3) itself of any exemptions from the disclosure requirement, but it is clear that agencies can properly withhold any record covered by one or more of the provisions in Section (b).

A number of questions have arisen concerning the interpretation of the deceptively simple section. Some concern the statutory language. What is meant by the phrase "reasonably describe"? If an agency's regulations require that FOIA requests be expressly identified as such, can it refuse to process a request which does not do so? What if the request appears to be one for information rather than records?

The Attorney General had the following to say about the reasonably describe requirement in his 1975 Blue Book at 23: "It is not enough that the request provide enough data to locate the record; it must enable it to be located in a manner which does not involve an unreasonable amount of effort." This interpretation is supported by the legislative history and by the limited case law. E.g., AFGE, Local 2827 v. Dept. of Commerce, 907 F.2d 203 (D.C. Cir. 1990); Krohn v. Dept. of Justice, 628 F.2d 195 (D.C. Cir. 1980). Of course there are differences of opinion as to what constitutes a reasonable amount of effort.

In Nation Magazine v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995), the court held that it was unreasonable to require the agency to do a subject matter search of unindexed files spanning 23 years, but since it maintained these files chronologically, it was not unreasonable to required a search for a specific 1981 memorandum. A short time later the same court held that courts were to evaluate the reasonableness of an agency's search by the information in its possession at the time it conducted the search. Thus, requesters cannot require agencies to do new searches by submitting additional information after an agency has completed the search. To impose such a requirement, a requester must submit a new request. If, in conducting its search, however, an agency finds a clear indication that there are other responsive records in another, previously unidentified, location, it must expand its search to include that location. Kowalczyk v. Dept. of Justice, 73 F.3d 386 (D.C. Cir. 1996).

The Attorney General went on to say that "when an agency receives a request which does not `reasonably' describe' the records sought, it should notify the requester of the defect. In addition it is recommended that, when practicable, the agency offer assistance in reformulation of the request to comply with the Act." 1975 Blue Book at 23.

The Justice Department's Office of Information Law and Policy (now the Office of Information and Privacy (OIP)) reemphasized these points in the Winter 1980 issue of FOIA Update. It indicated that agencies should not interpret the requirement that FOIA requests be made in accordance with agency regulations literally, but rather treat any written request which could reasonably be interpreted as one for existing agency records (including one which purported to be a request for information) as an FOIA request. This interpretation seems to be more in keeping with the spirit of the FOIA than one which would reject all requests which did not conform to an agency's regulations. See Ferri v. Bell, 645 F.2d 1213 (3rd Cir. 1981).

Two recent decisions appear to indicate that the courts may be ready to take a harder line. In Lehrfield v. Richardson, 132 F.3d 1463 (D.C. Cir. 1998), the court appeared sympathetic to the argument that an agency did not need to respond to a request which did not comply with a regulatory requirement "that a FOIA request state that it is being made pursuant to the FOIA," but did not rule on the issue. The court in Taylor v. U.S. Treasury Dept., 127 F.3d 470 (5th Cir. 1997) held that a Privacy Act requester who failed to comply with a regulation requiring a requester to "[g]ive the name of the system or subsystem or category of records to which access is sought . . . had failed to make a proper request." The Taylor court also held that it was proper for an agency to refuse to process a request from a requester who had failed to pay the fees for an earlier request. As discussed below, a requester's compliance with these regulations may be significant for purposes of computing the deadline for an agency's response under Section (a)(6)even if a failure to comply does not justify ignoring the request altogether.

There are situations, however, in which a requester's failure to comply with an agency's properly published rules will justify the agency's not processing the request exactly as the requester desired. In Church of Scientology of Cal. v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986), the court held that, in view of the fact that the applicable IRS rules (1) clearly provided that requests are to be made to the office having custody of the information, and (2) give detailed instructions concerning the various offices, there was "no merit in the Church's contention that the IRS's failure to explain earlier that the request [to Headquarters] for a search of all district and regional offices was misdirected should have led the District Court to require a search of those offices."

The question of how to deal with requests that are phrased as ones for information has been a particularly sticky one. It is generally agreed that an FOIA request under Section (a)(3) applies only to agency records already in existence at the time it is received. DeBolo v. Stimson, 735 F.2d 1037 (7th Cir. 1984). Thus it does not require an agency to create a record solely to respond to an FOIA request; i.e., an agency can properly deny an FOIA request if it does not have records within the scope of the request (of course its assertion that it does not is itself subject to judicial review). Villaneuva v. Dept. of Justice, 782 F.2d 528 (5th Cir. 1986); Giza v. Secretary of Health, Ed. & Welfare, 628 F.2d 748 (1st Cir. 1980).

What happens, however, if all or part of the requested information is contained in existing agency records? It is generally agreed that the agency has two choices in that situation: (1) it can make the entire record available to the requester and let him extract what he wants; or (2) it can do the extraction itself. It cannot make a "no records" response, but is not required to manipulate or reorganize the existing data in any way. See Disabled Officers Association v. Rumsfeld, 428 F.Supp. 454 (D.D.C. 1977), aff'd No. 77-1504 (D.C. Cir. 1978). But, see, Lehrfeld v. Richardson, 132 F.3d 1463 (D.C. Cir. 1998), in which the court seemed to imply that agencies could by regulation insulate themselves from having to process requests for information as ones for records containing that information.

Clearly, an FOIA request does not obligate agencies to provide records produced after the request is processed. Tuchinsky v. Selective Service System, 418 F.2d 155 (7th Cir. 1969). An agency which produces a monthly report, for example, cannot be forced, by an FOIA request, to place the requester on a mailing list to receive each issue as it is produced. Certainly it can do so if it wishes, but the FOIA cannot be used to compel it to do so. See also, Mandel Grunfeld and Herrick v. U.S. Customs Service, 709 F.2d 41 (11th Cir. 1983).

It has become an accepted principle that, when the mere fact of whether an agency held records within the scope of a particular request was itself information protected by an FOIA exemption, the agency can refuse to confirm or deny whether it has such records. Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976). These refusals are called Glomar denials because of the records involved in Phillippi. See Minier v. Central Intelligence Agency, 88 F.3d 796 (9th Cir. 1996). Congress arguably codified this procedure in certain situations as part of its 1986 amendments. Benavides v. DEA, 968 F.2d 1243 (D.C. Cir. 1992). See discussion of 5 U.S.C. §552(c) below. There is no reason to believe, however, that it meant this codification to eliminate the procedure's use in other situations.

When agencies receive FOIA requests made under Section (a)(3) they are obligated to conduct a reasonable search for records within the scope of the request. McGehee v. CIA, 533 F.Supp. 861 (D.D.C. 1982). The adequacy of that search is subject to judicial review, but it is clear that a requester must do more than make an unsupported allegation that the search was not adequate; e.g., he could describe a category of files which he believes contains records within the scope of his request, but which the agency did not search.

It has been firmly established that an FOIA requester cannot, by means of a general request, compel an agency to search all of its files on the theoretical possibility that they might contain records within the scope of the request. Agencies are required to search only those files which might reasonably be expected to contain such records. Church of Scientology of Cal. v. IRS, 792 F.2d 146 (D.C. Cir. 1986); Fonda v. CIA, 434 F.Supp. 498 (D.D.C. 1977). If, however, the adequacy of an agency's search has been challenged in an FOIA suit, and its affidavits do not affirmatively establish that it did search the files which reasonably might contain records within the scope of the request, it is improper for the court to grant the government's motion for summary judgment. Neugent v. Dept. of Interior, 640 F.2d 386 (D.C. Cir. 1981). The fact that an agency located additional responsive records in a subsequent search does not automatically mean that the initial search was deficient. The test is not whether a search was perfect, but whether it was reasonable under the circumstances that existed at the time. Grand Central Partnership v. Cuomo, 166 F.3d 473 (2d Cir. 1999).

It is also improper for a district court to grant summary judgment for the government concerning the adequacy of its search solely on the basis of a finding that the government did not act in bad faith. It must also "expressly conclude that the search was adequate or that it satisfied the reasonableness standard." Krikorian v. Dept. of State, 984 F.2d 461, 468 (D.C. Cir. 1993). E.g., if a plaintiff raises a credibility claim that an agency should have searched certain specified locations, the district could should require the agency "to explain why a search of those offices [was] not necessary" before granting the agency's motion for summary judgment. 984 F.2d 469.

The D.C. Circuit has set forth a concise summary of the criteria to be employed in evaluating the adequacy of an agency's search:

Appellant's challenge to the adequacy of the government's affidavits is, we believe, based on a misreading of these FOIA precedents. Neither Weisberg nor Founding Church of Scientology demands in every FOIA case that the affidavits of the responding agency set forth with meticulous documentation the details of an epic search for the requested records. Rather, in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA. In considering a challenge to an agency's retrieval procedures, a reviewing court must thus determine whether the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted. Where the agency's responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory, summary judgment in the government's favor would usually be inappropriate.

See Exxon Corp. v. FTC, 466 F.Supp. 1088, 1094 (D.D.C. 1978), aff'd, 633 F.2d 120 (D.C. Cir. 1980). Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).

It then characterized the issue as being "not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Id. at 128, accord, Weisberg v. Dept. of Justice, 745 F.2d 1476 (D.C. Cir. 1984). See also, Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993).

Another court stated the test in a slightly different manner:

In demonstrating the adequacy of its search, however, an agency may not rest on an affidavit that simply avers that the search was conducted in a manner "consistent with customary practice and usual procedure." Rather, the affidavit must be reasonably detailed, "setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched" so as to give the requesting party an opportunity to challenge the adequacy of the search.

Ethyl Corp. v. EPA, 25 F.3d 1241, 1246-47 (4th Cir. 1994).

Still another court added that an affidavit containing the requisite detail from the supervisor responsible for the search was sufficient, and that 'there is no need for the agency to supply affidavits from each individual who participated in the actual search." Carney v. Dept. of Justice, 19 F.3d 807, 814 (2d Cir. 1994).

In Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998), the court held that "[w]hen a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return. . ." This rule is not an absolute one, however; when the agency's initial search uncovers evidence that responsive records are likely to exist in other systems, the agency must search those systems. "Consequently, the court [will evaluate] the reasonableness of an agency's earch based on what the agency knew at its conclusion, rather than what the agency speculated at its inception." Id.

For an example of a holding that the agency failed to establish the adequacy of its search, see Founding Church, Etc. v. U.S. Marshals Service, 516 F.Supp. 151, 156 (D.D.C. 1980); Pollack v. Bureau of Prisons, 879 F.2d 406 (8th Cir. 1989) In Steinberg v. Dept. of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994), the court held that the agency's declaration was inadequate because it did not "describe in any detail what records were searched, by whom, and through what process."

In a more recent example, the court reversed a grant of summary judgment to the agency because the facts showed that it had failed "to search the [office] it had identified as a likely place where the requested documents might be located. . . It is well-settled that if an agency has reason to know that certain places might contain responsive documents, it is obligated under FOIA to search barring an undue burden." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999). This court also held that on the facts of this case, the agency should have contacted a specific agency official whom it had reason to believe might know what had happened to the requested records. "When all other sources fail to provide leads to the missing records, agency personnel should be contacted if there is a close nexus. . . between the person and the particular records." Id.

Courts have been reluctant to excuse an agency from complying with a request involving a known, finite quantity of records on the grounds that the search was unduly burdensome. Ruotolo v. Dept. of Justice, 53 F.3d 4 (2d Cir. 1995).

In McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983), the court examined the CIA's practice of always limiting its search to records in existence as of the date of the request. In this case, the agency had not begun processing until 2 1/2 years after that date. The court rejected the use of any automatic cut-off date, holding that any method of computing such a date "is only valid when the limitation is consistent with the agency's duty to take reasonable steps to ferret out requested records." 697 F.2d at 1101. The court added that "it would be extremely difficult for the CIA to convince us that it may `reasonably' use any cut-off date without so informing the requester." Id. at 1105.

The fact that the records requested may be stored in computer memory does not affect an agency's duty to search, but it is not required to create a new program to retrieve exactly what the requester seeks. Nor does the FOIA obligate an agency to "use so-called `disclosure-avoidance techniques' in fulfilling its duty to release reasonably segregable nonexempt portions of records." Yeager v. DEA, 678 F.2d 315, 317 (D.C. Cir. 1982). EFOIA codified this search requirement.

Requesters are increasingly seeking to conduct discovery concerning the facts of an agency's search. Appellate courts have held that the decision on such requests is within the discretion of the district courts, and that they will review such rulings on an abuse of discretion standard. E.g., Gillin v. IRS, 980 F.2d 819, 823 (1st Cir. 1992): "Where the agency's affidavits are adequate to substantiate the adequacy and result of its search. . .the `district court judge has the discretion to forego discovery and award summary judgment on the basis of affidavit.' Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)."

"In order to justify discovery [concerning the adequacy of an agency's search] once the agency has satisfied its burden, [a] plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations. . ." Carney v. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994).

Another point to consider under Section (a)(3) is the meaning of the requirement that non-exempt records be made "promptly available." This requirement is repeated in Section (a)(6)(C). The court generally (in the few cases where this question has arisen) have answered the question in terms of what is reasonable under the circumstances of the specific case. An agency would not, for instance, be required to cease all other work in order to make records available under the FOIA.

The Supreme Court has expressly held that agencies cannot purposely delay release of non-exempt records on the ground that such action would hinder the performance of their mission. Federal Open Market Committee v. Merrill, 443 U.S. 340, 353-54 (1979). Similarly, the D.C. Circuit has held that "the statute [i.e., the FOIA] does not confer judicial discretion to balance its dictates against the administrative burdens of disclosure." Tax Analysts v. Dept. of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988).

It seems evident that agencies do not have to provide an FOIA requester with access to duplicates of records which have been furnished him by another agency. Crooker v. State Dept., 628 F.2d 9 (D.C. Cir. 1980). What is an agency's responsibility, however, with regard to records in its possession which were originated by another agency which the requester has not contacted? Must the agency to whom the request was addressed process those records, or can that agency refer them to the originating agency for processing?

The question does not arise often in a judicial context because requester do not usually care which agency responds to their request -- so long as someone does. The fact that Congress expressly recognized in Section (a)(6)(B)(iii) that an agency might, in processing an FOIA request, need to consult "with another agency having a substantial interest in the determination of the request," supports a thesis that agencies in this situation should generally consult with the originating agency rather than refer the records for its response. The limited case law on this question, however, seemed to lean strongly towards upholding such referrals. See, e.g., McGehee v. CIA, 583 F.Supp. 861 (D.D.C. 1982); British Airports Authority v. CAB, 531 F.Supp. 408 (D.D.C. 1982).

More recently, a requester who had sued the respondent agency sought to enjoin a third agency to which the defendant had referred the records for a direct response to the requester. The requester's rationale was his suit would not reach these records. The court disagreed. "Once a FOIA request has been made to an agency, that agency's referral to a different agency regarding disclosure does not divest the original agency of responsibility to respond to the FOIA request." Matter of Wade, 969 F.2d 241, 247 (7th Cir. 1992). The court have not expanded, or even enforced, these holdings, but it still seems that agencies would be well-advised to make sure that, by referring a request to the agency that originated the records at issue, they do not impose any additional burdens on the requester, and that the referring agency may well be held accountable (in a suit under Section (a)(4)(B) for actions of referred agencies.

Peralta v. U.S. Attorney's Office, 136 F.3d 169 (D.C. Cir. 1998) dealt with yet another variation of this issue. The request was for records of the Office of the United States Attorney for the Central District of California. Under DOJ procedures, the Executive Office of United States Attorneys (EOUSA) processed the request. It did not respond within the administrative time limit, however, and the requester sued. EOUSA did respond while the suit was pending and filed a motion to dismiss. Since its response included a referral to the FBI, EOUSA's motion included a request for a stay with regard to the FBI's processing of that referral. The district court granted the motion, but the appellate court disagreed. It held that by dismissing the only defendant party to the action, the district court had entered a final order within the meaning of 28 U.S.C. 1291. "The fact that the district court concurrently entered a stay on behalf of a non-party does not render that order any less final." 136 F.3d at 175. It went on to hold that granting EOUSA's motion to dismiss without deciding whether the referral to the FBI constituted an improper withholding constituted reversible error.

In Fendler v. U.S. Parole Commission, 774 F.2d 975 (9th Cir. 1985), the court dealt with the issue of what form of access was required by this section. It reversed the district court's holding that an opportunity to view a presentence report and take verbatim notes was tantamount to making the record available. It held that, where disclosure was required, the requester was entitled to a copy.

In Oglesby v. Dept. of the Army, 920 F.2d 57 (D.C. Cir. 1990), the court seemed to imply a contra result, i.e., that agencies could satisfy FOIA's requirements by making records available for inspection at their offices even if the requester lived thousands of miles away. The Department of Justice has quite responsibly advised agencies not to follow this dicta.

The D.C. Circuit has rejected the argument that an agency can "deny access to records otherwise disclosable [i.e., non-exempt] on the ground that they are available elsewhere." Tax Analysts v. Dept. of Justice, 845 F.2d 1060, 1065 (D.C. Cir. 1988). The Supreme Court affirmed this decision, which involved decisions in tax cases by various federal courts, in strong terms. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. (1989). The government attempted to argue that the fact that agencies did not have to make available under Section (a)(3) records which they had already published under Sections (a)(1) or (a)(2) "demonstrates the inapplicability of the FOIA's disclosure requirements to previously disclosed publicly available materials." 109 S.Ct. at 2851. The Court responded that:

The disclosure requirements set out in subsections (a)(1) and (a)(2) are carefully limited to situations in which the requested materials have been previously published or made available by the agency itself. It is one thing to say that an agency need not disclose materials that it has previously released; it is quite another to say that an agency need not disclose materials that some other person or group may have previously released.

109 S.Ct. at 2851-52.

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