Electronic FOIA Act Adopted; 
Will Affect Paper Records Too

by James X. Dempsey,

National Security Archive Special Counsel

October 22, 1996

The Electronic Freedom of Information Act Amendments of 1996 were signed into law by President Clinton on October 2, 1996. The stated intent of the legislation, the first significant rewrite of FOIA since 1986, was to "bring the FOIA into the electronic age." The legislation may also have far-reaching positive effects on the processing of requests for old-fashioned paper records. Enactment of the E-FOIA law culminates a years- long effort by FOIA champion Sen. Patrick Leahy (D-VT).

Note that most provisions of the law do not take effect for 6 months; some are not effective until a year from now.

I. Providing Records in Electronic Format

The legislation's provision (sec. 3) making it clear that a record for FOIA purposes includes information stored in electronic form merely serves to codify what the courts and the Department of Justice had long since recognized: that computer databases and other electronic records are "agency records" covered by FOIA.

More significant is the amendment (sec. 5) requiring agencies to provide information "in any form or format requested," including in electronic form, "if the record is readily reproducible by the agency in that form or format." This provision overrules Dismukes v. Dept. of Interior, 603 F.Supp 760 (D.D.C. 1984), which had held that an agency had no obligation under the FOIA to accommodate a requester's format preference. This change will make it easier for requesters to obtain information in formats facilitating computer analysis and on-line redissemination.

II. Computer Searches

Section 5 also defines "search," as meaning "to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request." This clarification is important since the retrieval of records from a computer database may require the application of codes or some form of programming. The amendment makes it clear that such manipulation of the information does not constitute the creation of new records. (In responding to a FOIA request, agencies are not required to "create" documents that do not otherwise exist.)

III. Electronic Reading Rooms

In a provision applicable to both paper and electronic records, the legislation requires all agencies to make available for inspection and copying copies of records released in response to FOIA requests that the agencies determine "are likely to become the subject of subsequent requests for substantially the same records," and to create an index of such records. (sec. 4.) Many agencies already do this in their FOIA "reading rooms," but the legislation makes the practice mandatory in an effort to help reduce the number of multiple requests for the same records requiring separate agency responses. (Since not all individuals are near agency reading rooms, requesters would still be able to request previously-released records through the normal FOIA process.)

In addition, section 4 of the legislation requires agencies to post on-line copies and indexes of released records that are likely to be the subject of frequent requests, as well as materials such as administrative opinions, policy statements, and staff manuals that they are already required under subsection (a)(2) of FOIA to make public, creating in essence electronic reading rooms. Agencies must comply with this electronic access provision by November 1, 1997, and the requirement only applies to records created on or after November 1, 1996. The index of previously released records need not be on-line until December 31, 1999.

IV. Responding to Agency Delays

In provisions that are not limited to electronic records, the legislation addresses one of the most serious problems in the operation of the FOIA, namely, agency delays in responding to requests. The success of the legislation in this regard will depend on agency commitment to change and judicial interpretation of the new language.

1. 10 Days Extended to 20

In recognition of the fact that many agencies routinely fail to meet the current statutory requirement that they respond to FOIA requests within 10 days, the legislation doubles the time limit to 20 days. (sec. 8(b).) Since delays of two or three years are common at many agencies, particularly those in the national security arena, it is not clear what, if any, significance this change will have. (It will mean that those who wish to file suit based on a non-reply will have to wait another 10 days before going to court.)

2. Multi-Track Processing

Some agencies now adhere to a first-in, first-out processing system, which results in lengthy delays even for simple requests. In an effort to encourage agencies to employ better request management practices, section 7(a) of the legislation expressly permits agencies to adopt multi-track systems, and to provide a person whose request does not qualify for the fastest track an opportunity to limit the scope of the request in order to qualify for faster processing. This provision is permissive and merely hortatory, since agencies have never been precluded from adopting multi-track processing. Indeed, for many years some agencies have been using multi-track processing of one sort or another.

3. "Unusual Circumstances"

In the past, the FOIA allowed an agency in "unusual circumstances" to extend the response time for a maximum of 10 working days. Recognizing that in some unusual cases even 10 more days is not enough, the new legislation (sec. 7(b)) authorizes an agency in such a case to provide the requester an opportunity to limit the scope of the request so that it may be processed within the extra 10 days or to arrange an alternative time frame. The refusal of the requester to reasonably limit the request or agree on an alternate time frame shall be considered in determining whether "exceptional circumstances" exist for purposes of an Open America stay. However, the legislation does not require the government to provide such an opportunity to limit the scope of a request, nor does it indicate how the reasonableness of the government's position will be assessed. In this case, therefore, the legislation seems merely to be giving a statutory basis to what agencies and requesters already do, with mixed results.

4. "Exceptional Circumstances" and Open America

The FOIA provides that in "exceptional circumstances," a court may extend the statutory time limits for an agency to comply with FOIA, but the statute has not specified what those circumstances might be. Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), held that a massive backlog of requests could constitute "exceptional circumstances," and the courts have since tolerated lengthy delays based on backlogs without inquiring into whether the agencies were doing anything to address them.

In a potentially significant change, section 7(c) of the E- FOIA legislation makes it clear that routine, predictable agency backlogs for FOIA requests do not constitute "exceptional circumstances" justifying an agency's failure to comply with the statutory time limits, unless the agency demonstrates reasonable progress in reducing its backlog. While this is consistent with the facts of Open America -- the case involved an unforeseen 3,000 percent increase in FOIA requests in one year, in an agency with insufficient resources to process those requests -- the courts have been very deferential to the agencies in applying the Open America doctrine. The amendment in the E-FOIA bill makes it clear that routine backlogs do not give agencies an automatic excuse to ignore the time limits. Henceforth, those agencies with backlogs must make efforts to reduce that backlog before exceptional circumstances will be found to exist.

5. Expedited Processing

In another provision of potential significance, the legislation (sec. 8(a)) requires all agencies to promulgate regulations providing for expedited processing of requests in cases in which the requester "demonstrates a compelling need," defined as a situation posing an imminent threat to the life or physical safety of an individual or, "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." The requester bears the burden of showing that expedition is appropriate. An agency must rule on a request for expedited processing within 10 days, and the denial of expedited treatment can be challenged in court, based on the record that was before the agency at the time of the denial. However, the usefulness of the provision may be limited by the fact that the legislation does not specify how quickly an agency must respond to a request to which it grants expedited treatment; the amendment only states that an agency shall process such requests "as soon as practicable."

V. Redaction

The legislation requires an agency, when it deletes information from a record it is releasing, to indicate the amount of information deleted on the released portion of the record. The section (sec. 9) is entitled "Computer Redaction," and was prompted by the fact that it is at times impossible to tell whether information redacted from a computer record consists of a few words or many pages, but the amendment also applies generally to paper records. It may have significance for intelligence agencies, which regularly release snippets of information with no indication of context, although the agencies can continue to argue that any indication of context will itself injure national security.

VI. Oversight

Section 10 of the legislation requires each agency annually to publish on-line a report on FOIA compliance, including the number of FOIA denials, the number and dispositions of appeals, a complete description of all statutes relied upon as (b)(3) withholding laws, the number of pending requests, the median number of days such requests have been pending, and the number of full-time staff devoted to FOIA.

VII. Public Interest

The E-FOIA act includes a "Findings and Purpose" section (sec. 2), which states that the "purpose" of FOIA is to require agencies to make certain information available to the public and to establish an enforceable right of access "for any public or private purpose." This was intended as a response to the holding of the Supreme Court in the case of DOJ v. Reporters Committee, in which the Court indicated that the "basic purpose" of FOIA was to shed light on the workings of the government and that, for (b)(7)(C) purposes, privacy interests would outweigh the interest in disclosure of records about individuals in the hands of the government that indicated nothing about "the workings of the government." This should help turn the courts away from second- guessing the bona fides of a request.

VIII. Effective Date

To provide agencies time to implement the new requirements under the Act, the sections concerning multi-track and expedited processing, unusual and exceptional circumstances, and the doubling of the statutory time limit will take effect one year after the October 2, 1996 date of enactment, and the other provisions will take effect 180 days after date of enactment.

Text of the E-FOIA amendments

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