6 May 1998
Source:
http://www.usdoj.gov/oip/foia/wpd.zip
(932K)
JUSTICE DEPARTMENT GUIDE TO THE
FREEDOM OF INFORMATION ACT
Subsection (a)(2) of the FOIA(1) provides
for what is commonly referred to as "reading room"
access.(2) It applies to certain basic agency
records that, while not automatically published under subsection (a)(1) of
the Act,(3) must routinely be made "available
for public inspection and copying" in agency reading
rooms.(4) Historically under the FOIA, three
categories of records--"final opinions" rendered in the adjudication of
administrative cases,(5) specific agency policy
statements,(6) and certain administrative
staff manuals(7)--have been made available
in agency reading rooms.(8) Such records must
be indexed by agencies in order to facilitate the public's access to
them.(9)
Public access to such records serves to guard against the development of
agency "secret law" known to agency personnel but not to members of the public
who deal with agencies.(10) Additionally,
agencies have made use of their FOIA reading rooms in achieving efficient
"affirmative" disclosure of records that otherwise would be sought through
less efficient FOIA requests.(11) In so doing,
however, they must be mindful of the distinction between subsection (a)(2)
records and subsection (a)(3) records under the
Act.(12)
The Electronic Freedom of Information Act Amendments of
1996(13) substantially modified the requirements
of subsection (a)(2) by creating a fourth category of "reading room"
records,(14) and by establishing a requirement
for the electronic availability of "reading room" records in what may be
regarded as "electronic reading
rooms."(15) The first of these two modifications
took effect on March 31, 1997, and the second takes effect on November 1,
1997.(16)
In addition to the traditional three categories of "reading room" records
discussed above, agencies now must also include any records processed and
disclosed in response to a FOIA request that "the agency determines have
become or are likely to become the subject of subsequent requests for
substantially the same records."(17) Under
this new provision, when records are disclosed in response to a FOIA request,
an agency is required to determine if they have become the subject of subsequent
FOIA requests or, in the agency's best judgment based upon the nature of
the records and the types of requests regularly received, are likely to be
the subject of multiple requests in the
future.(18) If either is the case, then those
records in their FOIA-processed form will become "reading room" records to
be made automatically available to potential FOIA
requesters.(19) Ideally, this availability
will satisfy much of the future public demand for those processed records
in a more efficient fashion.(20) Nevertheless,
any subsequent FOIA request received for such records will have to be responded
to in the conventional way as well, if the requester so
chooses.(21)
Furthermore, the Electronic FOIA amendments will require agencies to use
electronic information technology to enhance the availability of their "reading
room" records: Agencies must make their newly created "reading room" records
(i.e., records created by agencies on or after November 1,
1996,(22) in all four reading room categories)
available to the public by "electronic
means."(23) The Electronic FOIA amendments
embody a strong statutory preference that this new electronic availability
be provided by agencies in the form of online access, which can be most efficient
for both agencies and the public
alike.(24) Under the Electronic FOIA amendments,
agencies should have Internet or World Wide Web sites prepared to serve this
"electronic reading room" function as of November 1,
1997.(25)
Agencies must therefore place in their conventional "paper" reading rooms
copies of any FOIA-processed records determined to fall within the new fourth
subsection (a)(2) category,(26) and must
identify such records that were created by them on or after the November
1, 1996 cut-off date in order to make them available through their "electronic
reading rooms" as well.(27) In doing so,
they should be mindful that some of the records falling under this new fourth
category might not have been created by the agency and instead might have
been generated elsewhere; while such records may be determined by the agency
to fall within new subsection (a)(2)(D), they are not "created" by the agency
and should not be regarded as subject to the new electronic availability
requirement.(28) However, an agency may as
a matter of administrative discretion choose to make such records available
electronically even though they were not generated by the agency, or created
after November 1, 1996, where to do so would be most cost-effective in serving
public access needs under subsection
(a)(2)(D).(29)
Agencies also should make clear to the users of their "electronic reading rooms" that while all of their subsection (a)(2) records are available in their conventional reading rooms, generally only those records created on or after November 1, 1996 are available in their electronic ones.(30) In addition, they should utilize indices to facilitate use of both types of reading rooms;(31) in fact, they are required by the Electronic FOIA amendments to maintain an index of the FOIA-processed records in the new fourth reading room category and to make it available online by December 31, 1999.(32)
1. 5 U.S.C. 552(a)(2) (1994), as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. 552 (West 1996 & Supp. 1997).
2. See FOIA Update, Summer 1992, at 3-4 ("OIP Guidance: The `Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)").
3. 5 U.S.C. 552(a)(1) (providing for Federal Register publication of very basic agency records, as discussed under Introduction, above).
4. 5 U.S.C. 552(a)(2); see Jordan v. United States Dep't of Justice, 591 F.2d 753, 756 (D.C. Cir. 1978) (en banc) (observing that subsection (a)(2) records must be made "automatically available for public inspection; no demand is necessary"); see also FOIA Update, Winter 1997, at 4 (advising that large agencies with decentralized FOIA operations may maintain separate reading rooms for agency components).
5. 5 U.S.C. 552(a)(2)(A); see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155-59 (1975) (holding that NLRB advice and appeals memoranda deciding not to file unfair labor complaint was "final opinion" when decision not to file effectively put an end to formal complaint procedure); National Prison Project v. Sigler, 390 F. Supp. 789, 792-93 (D.D.C. 1975) (determining that parole board decisions denying inmate applications for parole were "reading room" records).
6. See 5 U.S.C. 552(a)(2)(B); see, e.g., Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1977) (stating that Social Security rule providing examples of medical conditions to be treated as "per se nonsevere" fell under subsection (a)(2)(B)); Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259, at *9 (D.D.C. Mar. 15, 1996) (holding that IRS Field Service Advice Memoranda, even when not binding on IRS personnel, were "statements of policy"), aff'd, 117 F.3d 607 (D.C. Cir. 1997); Public Citizen v. Office of United States Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992) (concluding that USTR submissions to GATT panel containing agency's interpretation of U.S.'s international legal obligations were "statements of policy and interpretations adopted by the USTR").
7. See 5 U.S.C. 552(a)(2)(C); see, e.g., Sladek v. Bensinger, 605 F.2d 899, 901 (5th Cir. 1979) (finding portions of DEA agents' manual concerning treatment of confidential informants and search warrant procedures to be subsection (a)(2)(C) records); Stokes v. Brennan, 476 F.2d 699, 701 (5th Cir. 1973) (determining that "Training Course for Compliance Safety and Health Officers," including all instructor and student manuals, training slides, films, and visual aids, must be made available for public inspection and copying); Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1364-65 (N.D. Ohio 1976) (ruling that memoranda approved by Office of Standards Enforcement, which set forth agency's policy regarding sampling plans that office must follow when tire fails lab test under Federal Motor Vehicle Safety Standard were "reading room" records).
8. See FOIA Update, Summer 1992, at 4. But see FOIA Update, Fall 1996, at 1 (noting that reading room obligation does not apply to any records that "are promptly published and [are] offered for sale") (quoting 5 U.S.C. 552(a)(2)).
9. See 5 U.S.C.A. 552(a)(2) (West 1996 & Supp. 1997); see, e.g., Irons & Sears v. Dann, 606 F.2d 1215, 1223 (D.C. Cir. 1979) (requiring agency to provide "reasonable index" of requested decisions); Taxation With Representation Fund v. IRS, 2 Gov't Disclosure Serv. (P-H) 81,028, at 81,080 (D.D.C. Apr. 22, 1980) (recognizing agency's "continuing duty" to make subsection (a)(2) records and indices available); see also FOIA Update, Fall 1996, at 2 (discussing statutory indexing requirements under Electronic FOIA amendments).
10. See, e.g., Sears, 421 U.S. at 153-54; Skelton v. Postal Serv., 678 F.2d 35, 41 (5th Cir. 1982) ("That requirement was designed to help the citizen find agency statements `having precedential significance' when he becomes involved in `a controversy with an agency.'" (quoting H.R. Rep. No. 89-1497, at 8 (1966))); see also Vietnam Veterans of America v. Department of the Navy, 876 F.2d 164, 165 (D.C. Cir. 1989) (finding that opinions in which Judge Advocates General of Army and Navy have authority only to dispense legal advice--rendered in subject areas for which those officials do not have authority to act on behalf of agency--were not "statements of policy or interpretations adopted by" the agencies and were not required to be published or made available for public inspection); see also FOIA Update, Summer 1992, at 4 (noting that "an agency may withhold any record or record portion falling within subsection (a)(2) . . . if it is of such sensitivity as to fall within a FOIA exemption") (citing, e.g., Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 n.21 (1975)).
11. See FOIA Update, Winter 1995, at 1-2 (promoting "affirmative" agency disclosure practices through "reading room" access, among other means).
12. See, e.g., FOIA Update, Winter 1995, at 2 (reminding that "an agency cannot convert a subsection (a)(3) record into a subsection (a)(2) record (which cannot be the subject of a FOIA request under subsection (a)(3)) just by voluntarily placing it into its reading room"); FOIA Update, Spring 1991, at 5 (advising that FOIA requesters may not be deprived of subsection (a)(3) access rights through voluntary "reading room" availability); see also Reeves v. United States, No. 94-1291, slip op. at 3-4 (E.D. Cal. Nov. 10, 1994) (describing different treatment of subsection (a)(1), (a)(2), and (a)(3) records under Act). But see FOIA Update, Winter 1997, at 3 (advising of exception to general rule for records in new fourth reading room category under Electronic FOIA amendments).
13. 5 U.S.C.A. 552 (West 1996 & Supp. 1997).
14. See id. 552(a)(2)(D) (West 1996 & Supp. 1997).
15. See id. 552(a)(2) (West 1996 & Supp. 1997); see also FOIA Update, Fall 1996, at 1-2 (discussing statutory changes).
16. See FOIA Update, Fall 1996, at 11 (including chart showing different effective dates for different amendment provisions).
17. 5 U.S.C.A. 552(a)(2)(D) (West 1996 & Supp. 1997). But see FOIA Update, Spring 1997, at 2 (advising that agencies need not include records processed for contemporaneous multiple requests if they are not likely to be requested again, e.g., certain types of government contract submissions).
18. See FOIA Update, Winter 1997, at 3-4 (advising on processes for exercise of agency judgment under new reading room category).
19. See FOIA Update, Fall 1996, at 1-2. But see FOIA Update, Winter 1997, at 3 (cautioning that any information about any first-party requester that would not be disclosed to any other FOIA requester, such as information protected by Privacy Act of 1974 or Trade Secrets Act, would not be appropriate for automatic public disclosure under new reading room category).
20. See FOIA Update, Spring 1997, at 2 (citing H.R. Rep. No. 104-795, at 21 (1996)); FOIA Update, Fall 1996, at 1 (emphasizing connection between new reading room category and new "electronic reading room" mechanism in meeting public access demands).
21. See FOIA Update, Winter 1997, at 3 (advising that while ordinary rule is that records placed in reading room under subsection (a)(2) cannot be subject of regular FOIA request, Congress made clear that such rule does not apply to new reading room category of FOIA-processed records) (citing H.R. Rep. No. 104-795, at 21 (1996)).
22. See 5 U.S.C.A. 552(a)(2) (West 1996 & Supp. 1997); see also FOIA Update, Winter 1997, at 4-5.
23. 5 U.S.C.A. 552(a)(2) (West 1996 & Supp. 1997); see FOIA Update, Winter 1997, at 3 (advising that records made available in "electronic reading rooms" must nevertheless be made available in conventional "paper" reading rooms as well) (citing H.R. Rep. No. 104-795, at 21 (1996)); see also id. (suggesting that computer terminals may be used to facilitate such reading room access).
24. See 5 U.S.C.A. 552(a)(2) (stressing use of "computer telecommunications") (West 1996 & Supp. 1997); see, e.g., FOIA Update, Summer 1997, at 1-2 (describing efficiency of online public access).
25. 5 U.S.C.A. 552(a)(2) (West 1996 & Supp. 1997); see FOIA Update, Summer 1997, at 1-2 (describing agency development of World Wide Web sites for "electronic reading room" purposes); FOIA Update, Winter 1997, at 4 (setting forth statutory deadline for "electronic reading room" availability); see also id. (advising that agencies with separate "electronic reading rooms" for separate components "should ensure that [they] are linked together electronically so as to facilitate efficient user access").
26. See FOIA Update, Winter 1997, at 4 (advising that agencies may determine that records no longer fall within new reading room category after passage of time).
27. See FOIA Update, Winter 1997, at 5 (advising that redaction of record during FOIA processing does not amount to record "creation" for purposes of determining applicability of electronic availability requirement); FOIA Update, Fall 1996, at 2 (observing that in case of FOIA-processed records, very large proportion of those records will have been created prior to November 1, 1996 cut-off date, at least as of outset of new law's implementation, and therefore will not be subject to electronic availability requirement).
28. See FOIA Update, Winter 1997, at 4-5 (citing United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989)).
29. But see FOIA Update, Winter 1997, at 5 (cautioning agencies to guard against possibility that "electronic reading room" treatment of record generated by outside party might be regarded as copyright infringement by that party).
30. See FOIA Update, Fall 1996, at 2; see also FOIA Update, Spring 1997, at 2 (advising agencies on practical treatment of written signatures on adjudicatory orders for "electronic reading room" purposes).
31. See FOIA Update, Winter 1997, at 3; cf. FOIA Update, Summer 1997, at 1-2 (describing agency use of "home pages" and electronic "links" for FOIA purposes on agency World Wide Web sites).
32. 5 U.S.C.A. 552(a)(2)(E) (West 1996 & Supp. 1997); cf. FOIA Update, Summer 1997, at 3-7 (setting forth Justice Department guidelines for agency preparation and submission of new form of agency annual FOIA reports, which should be prepared by all agencies electronically and made available on World Wide Web as of 1999).