The Electronic Freedom of Information Act Amendments: a minor upgrade to public access law.

• Author: MacDonald, David

1. INTRODUCTION

   On October 2, 1996, President Clinton signed into law the Electronic Freedom of Information Act Amendments ("EFOIAA").(1) EFOIAA clarifies the status of electronic records under public access law and encourages federal agencies to adopt electronic formats and electronic methods of dissemination. EFOIAA implements several administrative reforms, including permissive multitracking, "notify-and-negotiate" requester requirements, affirmative publication of frequently requested FOIA information, and expedited processing of "compelling need" requests. EFOIAA doubles the allowable agency response time, but also limits agency recourse to the courts under the "exceptional circumstances" exception to statutory time periods.

   This Note explains the important provisions of EFOIAA and argues that the amendments are an incremental reform which provide mere technological gap-fillers for handling electronic records. EFOIAA includes permissive and mandatory administrative procedures which are likely to increase agency costs and the potential for litigation between agencies and requesters. EFOIAA fails to address the need for Congressional funding of agency compliance costs, either by direct allocation or FOIA fee revenue-sharing, and compounds this oversight by significantly increasing agency obligations. Finally, EFOIAA avoids reformulating public access policy in light of advancing information technologies, and instead chooses to extend the current access regime despite the danger of technological obsolescence.

2. BACKGROUND

   The Freedom of Information Act ("FOIA")(2) requires mandatory disclosure of public information, subject to certain exemptions and housekeeping concerns. FOIA,'s primary goal is to ensure open government by providing citizens with access to the inner workings of the executive branch. "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed."(3) President Lyndon B. Johnson underscored the essentially democratic nature of the statute by signing FOIA into law in a July 4th ceremony, declaring that "[t]his legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation permits."(4)

   FOIA requires executive branch agencies to publish their final opinions, statements of policy, and administrative staff materials.(5) Other records require a written request(6) from the public, which must conform to rules published by the agency in the Federal Register.(7) FOIA includes nine categories of information that are exempt from mandatory disclosure,(8) although with respect to eight of the exemptions, agencies still retain the discretionary power to disclose the information.(9) The exemptions are substantial.(10)

   Under FOIA, any requester seeking information not included in the category of final opinions, statements of policy, or administrative staff manuals, must submit a written request to the agency holding the information.(11) The request must reasonably describe the desired records, and must be in conformity with the agency's published rules regarding such requests.(12) There may also be applicable fees, usually "reasonable standard charges," for agency expenses such as searching, reviewing, and copying the requested material.(13)

   Agencies have ten business days to decide whether to disclose the information, but the time limit may be extended another ten days if the agency can demonstrate "unusual circumstances" in its attempt to fulfill the request.(14) "Unusual circumstances" can include the need to search for and retrieve records outside the agency's immediate control, e.g., in a field office;(15) the need to search, collect, and examine a large volume of records in order to complete the request;(16) or the need to consult with other agencies which may have an interest in the requested material.(17) Such circumstances, however, will not serve to extend the time limit absent a diligent, good faith effort by an agency to comply with the request.(18) Upon the lapse of the twenty days, a requester may resort to judicial review,(19) or may appeal a denial or lapse directly to the agency.(20) An agency appeal must also be decided within twenty days.(21)

   1. Agency Backlogs and Delays

      By the early 1990s, the general inability of many agencies to meet the required time limits under FOIA was apparent.(22) The INS, for example, had a backlog of over 10,000 FOIA, requests at any given time, and was averaging a response time of eighty-five days.(23) The State Department was taking from 243 to 483 days to respond to several thousand pending requests.(24) The FBI had become so unresponsive to FOIA requests that Congress called the agency to account in 1990.(25) At the time, the FBI was facing a backlog of over ten thousand requests and averaging several hundred days to respond to each.(26) Even more disturbing, the FBI was ultimately denying access to over three-fourths of the FOIA requests.(27)

      Agencies often justified these delays in processing FOIA requests under Section 552(a)(6)(C) of the statute, which allowed an agency to exceed the normal response time if it could show that 64exceptional circumstances exist and that [it] is exercising due diligence in responding to the request . . . ."(28) The definitions of t4exceptional circumstances" and "due diligence" were the key to the exception. Agencies claimed that "exceptional circumstances" could result from an excessive number of FOIA requests, creating inevitable backlogs.(29) Processing the backlog of requests on a "first-in, first-out" ("FIFO") basis, agencies argued, qualified as "due diligence" under the statute.(30)

      The Court of Appeals for the District of Columbia faced the issue as a matter of first impression in Open America v. Watergate Special Prosecution Force.(31) In Open America several parties were seeking information from the Watergate Special Prosecution Force and the FBI.(32) The FBI had a backlog of 5,137 FOIA requests, only 1,084 of which were in some stage of completion.(33) This volume of requests, the Court reasoned, was beyond the levels anticipated by Congress when it enacted the 1974 FOIA amendments.(34) The Court held that this volume of requests, combined with the inadequate resources available to process them, qualified as "exceptional circumstances" under subsection (a)(6)(C).(35) The Court also reviewed the FBI's procedures for processing FOIA requests.(36) It ratified the FIFO process, holding that the procedure was a sufficient showing of "due diligence" to wan-ant the subsection (a)(6)(C) exception.(37)

      Following Open America, federal agencies began to rely with greater frequency and success on the "exceptional circumstances" exception.(38) Similarly, the FIFO processing of FOIA requests became the de facto "due diligence" argument for agencies seeking the subsection (a)(6)(C) exception.(39)

   2. Narrowing Agency Discretion

      The Clinton Administration undertook a major effort in 1993 to alleviate backlogs, reduce litigation, and revive the public access policy underlying FOIA by: (1) requiring federal agencies to apply a "presumption" in favor of disclosure; (2) requiring a showing of foreseeable harm in order to defeat the presumption; and (3) encouraging agencies to make discretionary disclosures wherever possible.(40) The presumption of access and foreseeable harm requirements were aimed at narrowing the scope of agency discretion with regard to records that were subject to the written request procedure under subsection (a)(3) of the FOIA statute. Under the new policy, the Department of Justice ("DOJ") would no longer defend an agency decision to withhold information just because there was a "substantial legal basis" to do so.(41) Rather, the DOJ would defend an exemption only if "the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption."(42) In other words, if no substantial government interest is harmed by permitting the requested access, technical arguments for withholding disclosure should not be considered.(43)

      The DOJ also implemented the third element of the Clinton administration policy in its own domain. The DOJ instituted a policy of automatic disclosure of attorney misconduct investigations conducted by the Office of Professional Responsibility, whether or not the files were the subject of a specific FOIA request.(44) The DOJ as a regular practice was "trying to anticipate public demands for Department of Justice records, in an effort to make information available without encumbering the FOIA process."(45)

   3. Access to Electronic Records

      In addition to backlogs and delays, agencies were also increasingly stymied by FOIA requests for electronic records, computer data and programs.(46) As federal agencies became increasing computerized, this threshold question was sure to gain significance.(47) The rapid implementation of information technologies for efficiency, as well as cost and convenience reasons,(48) meant that large numbers of records were becoming digitized, sometimes without a paper-based counterpart, affording agencies undue discretion over electronic records.(49) Even if paper-based versions were available, the electronic document could often be more useful to the requester.(50) But most, if not all, of these information systems had been designed without regard for issues of public access.(51)

      FOIA was "enacted prior to the widespread use of electronic information technology, [and] is ill-suited to treat the vastly expanding body of computerized federal records.(52) Most tellingly, the statute was mute on the status of electronic records.(53) As a result, in the early stages of rapid computerization, the advent of advanced technologies designed to ease information dissemination actually threatened to reduce and...