IV. ANALYSIS

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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

A. Affirmative Requirements of Disclosure

Text:

(a) Each agency shall make available to the public information as follows:

(1). Each agency shall separately state and currently publish in the Federal Register for the guidance of the public --

(A) descriptions of its central and field organization and the established places at which the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and methods by which its functions are channeled and determined, including the nature and requirements of all formal and information procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

Discussion:

This section is probably one of the FOIA's least known (and many of those who have heard of it in substance do not know it is part of the FOIA) but it is an extremely significant provision. It lists five categories of information (not records) which agencies must compile in written form and publish in the Federal Register. It is one of the two instances where the FOIA requires creation of a record. (The other is the requirement discussed below in Section (a)(2) for the creation of an index of certain records.)

Section (a)(1)'s purpose is to insure that members of the public who must deal with a federal agency have access to a published source containing the essential information they need to do so effectively. Thus, its publication requirement is independent of that in the APA section (5 U.S.C. §553) which prescribes the notice and comment procedures for informal rulemaking.

The sanction for failure to comply with (a)(1)'s publication requirement is intentionally a severe one. Unless "a person has actual and timely notice of" the information which was not published, it cannot be relied on by the agency in any way which will have an adverse effect on the person. This questions comes up most often in cases involving "substantive rules of general applicability," and there have been instances of a court's declaring an agency policy null and void because that policy was not published in the Federal Register. E.G, Anderson v. Butz, 550 F.2d 459 (9th Cir. 1977); Lewis v. Weinberger, 415 F.Supp. 652 (D.N.M. 1976). In D&W Food Centers Inc. v. Block, 786 F.2d 751, 757 (6th Cir. 1986), the court struck down the Department of Agriculture's interpretation of a portion of the Federal Meat Inspection Act (21 U.S.C. §606), stating: "An agency pronouncement must be published [in the Federal Register] if it is of such a nature that knowledge of it is needed to keep parties informed of the agency's requirement as a guide for their conduct." Publication is not required, however, when the rule in question is "not a statement of general policy but, rather, is an expression of a specific application of a policy already announced." Tearney v. National Transp. Safety Board, 868 F.2d 1451, 1454 (5th Cir. 1989).

The Ninth Circuit has held that this section cannot be used to strike down an agency's action "unless the unpublished material at issue affected [the plaintiff's] substantial rights." Nguyen v. United States, 824 F.2d 697, 699 (9th Cir. 1987). It went on to define a three-stage test for determining whether this criteria was met in a particular case:

1. Does the agency action change existing rules, policy or practice?

2. Does the agency action deviate from the plain meaning of the statute or regulation at issue?

3. Is the agency action of binding force with little room left for the agency to exercise its discretion?

It reaffirmed this test in Lake Mohave Boat Owners' Association v. National Park Service, 72 F.3d 1360 (9th Cir. 1996).

If there is no adverse effect, there is no basis for challenging an agency policy. Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir. 1982). This section will also be held inapplicable when the material challenged is found to be an internal administrative guideline or delegation of authority rather than a substantive rule of general applicability. Hughes v. U.S., 953 F.2d 531 (9th Cir. 1992); Welch v. United States, 750 F.2d 1101 (1st Cir. 1985); Powderly v. Schweiker, 704 F.2d 1092 (9th Cir. 1983).

Policies will be enforced, however, against persons who have "actual and timely notice" even if they have not been published in the Federal Register. E.g., Nason v. Kennebec County CETA, 646 F.2d 10 (1st Cir. 1981).

No cause of action lies under this section (for failure to publish) if the plaintiff fails to "allege that he was adversely affected by a lack of publication or that he would have been able to pursue an alternative course of conduct" had the rule in question been published. Zaharkis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984). Accord, Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).

Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) illustrates another, although unusual, reason that the courts will decline to employ section (a)(1)'s sanctions. This case arose out of the FCC's rejection of plaintiff's application to construct FM radio stations because the proposed height of the antennae violated a restriction in an agreement between the United States and Mexico. One of the grounds on which plaintiff attacked this rejection was that the FCC had not published this restriction in the Federal Register. The court's response was that "section 552(a)(1) is inapplicable to this case. . .because the 300-foot limit on antenna height is set out by international agreement binding upon the Commission, and not by `rule' of the FCC." 935 F.2d at 1318.

Section (a)(1) does contain a provision for incorporation by reference of another record in the Federal Register, but only wit the approval of that publication's Director. See 1 C.F.R. Part 20.

It is clear that this section is an important one for both federal agencies and persons who deal with them. It requires agencies to generate certain information and publish it. It also provides the public with a reasonably easy means to obtain sources of information and gives members of the public a cause of action to challenge any agency action which adversely affects them and which is based on matter which the agency was required to publish but did not.

B. Affirmative Disclosure of Nonpublished Materials

Text:

(a)(2). Each agency, in accordance with published rules, shall make available for public inspection and copying --

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases,

(B) those statements of policy and interpretations which have been adopted,

(D) copies of all records, regardless of form or format, which have been released to any person under paragraph (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 record; and

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

unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including be computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (d). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record were the deletion was made. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if --

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

Discussion:

This section prescribes five categories of records which agencies must affirmatively seek to make available regardless of whether a member of the public ever asks them to do so. Specifically, agencies are required to make these categories of records "available for public inspection and copying" and to prepare and make available current indexes of these records. These indexes constitute the second and last instance (the other being Section (a)(1)) where the FOIA requires agencies to create a record.

Since this Section applies only to the five categories of records listed, it is theoretically possible for an agency to have no qualifying records, and thus no requirement to do anything under its terms. The 1996 addition of category (D), however, makes this result much less likely. More significant is the 1996 requirement that by November 1, 1997, agencies are to make all (a)(2) records created on or after November 1, 1996, "available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means." Most agencies are implementing this requirement through use of a home page on its World Wide Web site. See, e.g., 28 C.F.R. §16.2(c).

The 1996 amendments also added category (E), which is an index of the records in category (D). Agencies must make this index available by computer telecommunications by December 31, 1999.

Agencies can still redact identifying particulars from any (a)(2) materials when not doing so would result in a clearly unwarranted invasion of personal privacy, but they must clearly indicate such redactions unless doing so "would harm an interest in the exemption in subsection (b) under which the deletion is made." When "technically feasible," they are to indicate the exact location and extent of the redaction.

The legislative purpose behind Section (a)(2) was to eliminate "secret law," i.e., precedents, internal policies, manuals, etc., which are known to agency personnel and available to them in making decisions, but which are not readily available to the public. It is designed to accomplish this purpose by creating the means by which members of the public can research the "law" of an agency in the same way they would the statutory law and case law of a political jurisdiction.

A suit can be brought under the FOIA (Section (a)(4)(B) discussed below) to enjoin an agency from failing to comply with either the public inspection requirement or the indexing one. If an agency fails to comply with Section (a)(2), it cannot rely on the records with regard to which the failure occurred in any way which will have an adverse effect on the member of the public involved, unless that person has actual and timely notice. See, e.g., Smith v. National Transp. Safety Bd., 981 F.2d 1326, 1327 (D.C. Cir. 1993), in which the court reversed an order suspending Smith's commercial pilot's license "because the FAA sanctions policy upon which it [was] based was not available to the public at the time of the conduct for which Smith was sanctioned." It held that the language in subsection (a)(2)(C) clearly included "a manual setting out the sanctions policy by which the agency will henceforth be governed in deciding particular cases."

The exemptions in Section (b) apply in theory to Section (a)(2), but the courts have shown great reluctance to find that any exemption, except those designated to protect personal privacy or confidential informants, applies to a record which is characterized as secret law. E.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).

The argument has also been advanced that since Section (a)(2)'s legislative history makes it clear that Section (a)(2)(C) does not apply to law enforcement (i.e., "how to catch crooks") manuals (that is, such manuals are not required by that section to be published), Section (a)(2) constitutes a valid ground for withholding such manuals when they are requested under Section (a)(3) so that there is no need to consider Section (b). The better and more widely-accepted argument, however, is that the disclosure requirements of Sections (a)(2) and (a)(3) are completely independent of each other, and that the only basis for withholding an agency record requested under the latter is its coverage by an exemption in Section (b). E.g., Sladek v. Bensinger, 605 F.2d 899 (5th Cir. 1979); Jordan v. Dept. of Justice, 591 F.2d 753 (D.C. Cir. 1978). Moreover, this whole dispute, at least as it applies to law enforcement manuals, was mooted by the 1986 amendment to Section (b)(7)(E) as discussed below.

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