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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

O. Requirement to Disclose

Text:

(d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

Discussion:

This section provides the statutory basis for the generally accepted principle that the courts must order agencies to release records which they find are not covered by any of the nine exemptions; i.e., that they cannot, under a theory of equitable discretion, refuse to order the release of non-exempt records. See, e.g., dictum in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978):

In 5 U.S.C. §552(b), Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements in order to protect specified confidentiality and privacy interests. But unless the requested material falls within one of these nine statutory exemptions, FOIA requires that records and materials in the possession of federal agencies be made available on demand to any of the general public.

(emphasis added).

For more express rejections of the equitable discretion theory, see County of Madison v. Dept. of Justice, 641 F.2d 1036 (1st Cir. 1981); Caplan v. Bureau of Alcohol, Tobacco and Firearms, 587 F.2d 544 (2d Cir. 1978); Freuhauf Corporation v. IRS, 522 F.2d 284 (6th Cir. 1975); Tax Analysts & Advocates v. IRS, 505 F.2d 350 (D.C. Cir. 1974 (and cases cited therein); Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (4th Cir. 1974).

The only support for this theory is contained in two Ninth Circuit decisions and in dictum from the D.C. Circuit. General Services Administration v. Benson, 415 F.2d 878 (9th Cir. 1969); Theriault v. United States, 503 F.2d 390 (9th Cir. 1974); Halperin v. Dept. of State, 565 F.2d 699 (D.C. Cir. 1977). In Hardy v. Bureau of Alcohol, Tobacco and Firearms, 631 F.2d 653, 655, n.1 (9th Cir. 1980), however, the Ninth Circuit seems to have retreated somewhat from its previous dicta:

Although language in some of our opinions suggests approval of the use of equitable powers in Freedom of Information Act cases. . .[to allow withholding non-exempt records], we reserve ruling on the issue until it is before us.

Finally, in Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1272 (9th Cir. 1984), the court unanimously rejected this theory.

The D.C. Circuit has rejected the availability of such equitable powers on numerous occasions. E.g., Tax Analysts & Advocates v. IRS, supra.

Section (d) also makes it clear that agencies cannot use FOIA exemptions to withhold records from Congress. Despite the ambiguity created by the D.C. Circuit in Murphy v. Dept. of Army, 613 F.2d 1151 (D.C. Cir. 1979), the government does not interpret this restriction as applying to requests from individual congressmen. See legal and policy guidance distributed to all federal departments and agencies by the Office of Information Law and Policy under cover of memorandum dated June 6, 1980.

P. Annual Reports

Text:

(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 shall cover the preceding fiscal year and which shall include --

(A) the number of determinations made by the agency not to comply with requests for records made to such agency under 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 reasons for the action upon each appeal that results in a denial of information; and

(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 information 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 agency and the number of requests which the agency processed;

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

(F) the total amount of fees collected by the agency for processing requests; and

(G) the number of full-time staff of the agency devoted to processing requests for records under 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 public, including by computer telecommunications, 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 as been made available 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 Committees on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in which each report is issued, that such reports are available by electronic means.

(4) The Attorney General 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 section (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.

Discussion:

The 1996 Amendments completely revised the annual reporting requirements. No longer will the various agencies submit individual reports to Congress. Instead, they will now make the reports available by electronic means. The Attorney General is also charged with making all the agency reports available by electronic means available at a single electronic access site. The Attorney General is required to inform the chair and ranking minority member of the House Government Reform and Oversight Committee and the Senate Government Affairs Committee and Judiciary Committee that the reports are available by electronic means. The new language also requires a great deal more information about agency backlogs and the time they take to process requests, and added a requirement that the Attorney General submit an annual report to Congress on all FOIA litigation during the preceding year. It continues the requirement that the Attorney General continue to report on efforts to "encourage agency compliance with" the FOIA.

Next Section: Q. Definition of Agency