6 May 1998
Source: http://www.usdoj.gov/oip/foia/wpd.zip  (932K)

JUSTICE DEPARTMENT GUIDE TO THE
FREEDOM OF INFORMATION ACT

Table of Contents

PROCEDURAL REQUIREMENTS

The Freedom of Information Act applies to "records" maintained by "agencies" within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies.⁽¹⁾ Not included are records maintained by state governments,⁽²⁾ by municipal corporations,⁽³⁾ by the courts,⁽⁴⁾ by Congress,⁽⁵⁾ or by private citizens.⁽⁶⁾

In general, the FOIA does not apply to entities that "are neither chartered by the federal government [n]or controlled by it."⁽⁷⁾ Nor does the FOIA apply to a presidential transition team.⁽⁸⁾

The personal staff of the President⁽⁹⁾ and units within the Executive Office of the President whose sole function is to advise and assist the President are not intended to fall within the definition of "agency."⁽¹⁰⁾ The Court of Appeals for the District of Columbia Circuit illustrated this point in holding that the former Presidential Task Force on Regulatory Relief--chaired by the Vice President and composed of several cabinet members--was not an agency for purposes of the FOIA, as the cabinet members were not acting as heads of their departments "but rather as the functional equivalents of assistants to the President."⁽¹¹⁾ Further, the D.C. Circuit recently evaluated the structure of the National Security Council, its proximity to the President, and the nature of the authority delegated to it, and it determined that the National Security Council is not an agency subject to the FOIA.⁽¹²⁾

However, such government entities whose functions are not limited to advising and assisting the President are "agencies" under the FOIA.⁽¹³⁾ For example, the D.C. Circuit, after examining the responsibilities of one entity in the Executive Office of the President in detail, concluded that its investigatory, evaluative, and recommendatory functions exceeded merely advising the President and that it therefore was an "agency" subject to the FOIA.⁽¹⁴⁾

The Supreme Court has articulated a basic, two-part test for determining what constitutes an "agency record" under the FOIA: "Agency records" are documents which are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request.⁽¹⁵⁾ The D.C. Circuit has provided comprehensive discussions of relevant factors and precedents regarding the "agency record" concept⁽¹⁶⁾ and also regarding how certain records maintained by agency employees may qualify as "personal" rather than "agency" records.⁽¹⁷⁾

Each federal agency is required to publish in the Federal Register its procedural regulations governing access to its records under the FOIA.⁽¹⁸⁾ These regulations must inform the public of where and how to address requests; its schedule of fees for search, review, and duplication; its fee waiver criteria; and its administrative appeal procedures.⁽¹⁹⁾ The Electronic Freedom of Information Act Amendments of 1996⁽²⁰⁾ affect several procedural aspects of FOIA administration--including matters pertaining to the timing of the processing of FOIA requests--which are discussed below.⁽²¹⁾ Each federal agency is required to promulgate implementing regulations in the Federal Register addressing these matters as well.⁽²²⁾

Although an agency may occasionally waive some aspect of its published procedures for reasons of public interest, speed, or simplicity, all agencies should be mindful that any "unnecessary bureaucratic hurdle has no place in [the Act's] implementation"⁽²³⁾ and that no requirement may be imposed on a requester beyond those prescribed in an agency's regulations.⁽²⁴⁾ Of course, agencies must strictly adhere to their own regulations when that is advantageous to the FOIA requester.⁽²⁵⁾ By the same token, a requester's failure to comply with an agency's procedural regulations governing access to records may be held to constitute a failure to properly exhaust administrative remedies.⁽²⁶⁾

A FOIA request can be made by "any person," as defined in 5 U.S.C. 551(2) (1994), which encompasses individuals (including foreign citizens), partnerships, corporations, associations and foreign or domestic governments.⁽²⁷⁾ The statute specifically excludes federal agencies from the definition of a "person,"⁽²⁸⁾ but state agencies certainly can make FOIA requests.⁽²⁹⁾ The only apparent exception of any significance to this broad "any person" standardis for those who flout the law, such as a fugitive from justice, who may be denied judicial relief by the courts.⁽³⁰⁾ This holds true also when the FOIA plaintiff is an agent acting on behalf of a fugitive.⁽³¹⁾

FOIA requests can be made for any reason whatsoever, with no showing of relevancy required; because the purpose for which records are sought "has no bearing" upon the merits of the request, FOIA requesters do not have to explain or justify their requests.⁽³²⁾ As a result, despite repeated Supreme Court admonitions for restraint,⁽³³⁾ the FOIA has been invoked successfully as a substitute for, or a supplement to, document discovery in the contexts of both civil⁽³⁴⁾ and criminal⁽³⁵⁾ litigation.

By the same token, as the Supreme Court has stated, a FOIA requester's basic rights to access "are neither increased nor decreased" by virtue of having a greater interest in the records than that of an average member of the general public.⁽³⁶⁾ However, such considerations do logically have a bearing on certain procedural areas of the FOIA--such as expedited access, waiver or reduction of fees, and the award of attorney's fees and costs to a successful FOIA plaintiff--in which it is appropriate to examine a requester's need or purpose in seeking records. And as the Supreme Court has observed, a requester's identity can be significant in one substantive respect: "The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating [an exemption] differently as to one class of those who make requests than as to another class."⁽³⁷⁾ In short, this means that an agency should not invoke a FOIA exemption to protect a requester from himself.⁽³⁸⁾

The FOIA specifies only two requirements for access requests: that they "reasonably describe" the records sought⁽³⁹⁾ and that they be made in accordance with agencies' published procedural regulations.⁽⁴⁰⁾ The legislative history of the 1974 FOIA amendments indicates that a description of a requested record is sufficient if it enables a professional agency employee familiar with the subject area to locate the record with a "reasonable amount of effort."⁽⁴¹⁾ It has been observed that "[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters,"⁽⁴²⁾ or to allow requesters to conduct "fishing expeditions" through agency files.⁽⁴³⁾ Accordingly, one FOIA request was held invalid on the grounds that it required an agency's FOIA staff either to have "clairvoyant capabilities" to discover the requester's needs or to spend "countless numbers of personnel hours seeking needles in bureaucratic haystacks."⁽⁴⁴⁾

An agency "must be careful not to read [a] request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester."⁽⁴⁵⁾ In liberally interpreting the intended scope of a FOIA request,⁽⁴⁶⁾ agencies should heed President Clinton's admonition to "handle requests for information in a customer-friendly manner [in order to] ensure compliance with both the letter and spirit of the Act."⁽⁴⁷⁾ And agencies should be careful that any "scoping" of documents found in response to a request is done only with full communication with the FOIA requester.⁽⁴⁸⁾

The fact that a FOIA request is very broad or "burdensome" in its magnitude does not, in and of itself, entitle an agency to deny that request on the ground that it does not "reasonably describe" the records sought.⁽⁴⁹⁾ The key factor is the ability of an agency's staff to reasonably ascertain exactly which records are being requested and locate them.⁽⁵⁰⁾ The courts have held only that agencies are not required to conduct wide-ranging, "unreasonably burdensome" searches for records.⁽⁵¹⁾

Prior to the enactment of the Electronic Freedom of Information Act Amendments of 1996, several courts held that agencies do not have to organize or reorganize file systems in order to respond to particular FOIA requests,⁽⁵²⁾ to write new computer programs to search for "electronic" data not already compiled for agency purposes,⁽⁵³⁾ or to aggregate computerized data files so as to effectively create new, releasable records.⁽⁵⁴⁾ More than one court ruled, though, that agencies may be required to perform relatively simple computer searches to locate requested records, or to demonstrate why such searches are unreasonable in a given case.⁽⁵⁵⁾ Consistent with these latter cases, and to promote electronic database searches, the Electronic FOIA amendments now require that agencies make "reasonable efforts" to search for requested records in electronic form or format, "except when such efforts would significantly interfere with the operation of the agency's automated information system."⁽⁵⁶⁾ The Electronic FOIA amendments now expressly define the term "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."⁽⁵⁷⁾

The adequacy of an agency's search under the FOIA is determined by a test of "reasonableness," which may vary from case to case.⁽⁵⁸⁾ As a general rule, an agency must undertake a search that is "reasonably calculated" to locate the requested records⁽⁵⁹⁾ and, if challenged in court, must be able to show "what records were searched, by whom, and through what process."⁽⁶⁰⁾ Agency personnel conducting a search must also apply reasonable search standards; for example, one court has held that a search was inadequate where agency employees were not properly instructed on how to distinguish "personal records from agency records."⁽⁶¹⁾ (For a discussion of the litigation aspects of adequacy of search, see Litigation Considerations, Adequacy of Search, below.)

Although "a person need not title a request for government records a `FOIA request,'"⁽⁶²⁾ a request should be made in full observance of an agency's procedural regulations.⁽⁶³⁾ However, agencies should exercise sound administrative discretion in this regard--for example, a first-party access request that cites only the Privacy Act of 1974⁽⁶⁴⁾ should be processed under both that statute and the FOIA as well.⁽⁶⁵⁾ Again, agencies should strive to follow not only the letter of the Act, but "its underlying spirit as well."⁽⁶⁶⁾

Until a FOIA request is properly received by an agency (and, further, by the proper component of that agency), there is no obligation on the agency to search, to meet time deadlines, or to release documents.⁽⁶⁷⁾ Requests not filed in accordance with published regulations are not deemed to have been received until such time as they are identified as proper FOIA requests by agency personnel.⁽⁶⁸⁾ For example, the Department of Justice regulation requiring either a requester promise to pay fees (above a minimum amount) or an agency determination to waive all fees before the request is deemed received⁽⁶⁹⁾ has been specifically upheld.⁽⁷⁰⁾ Moreover, if a requester fails to pay properly assessed search, review, and/or duplication fees, despite his prior commitment to pay such an amount, an agency may refuse to process subsequent requests until that outstanding balance is fully paid by the requester.⁽⁷¹⁾ In fact, the agency practice of requiring payment prior to release of records, but after processing and duplication, has been specifically upheld--with the court observing that otherwise the "Government would effectively be bankrolling search and review, and duplicating expenses because there would never be any assurance whatsoever that payment would ever be made once the requesters had the documents in their hands."⁽⁷²⁾ (For a discussion of procedures pertaining to the assessment of fees, see Fees and Fee Waivers, below.)

Previously, once an agency was in receipt of a proper FOIA request, it was required to inform the requester of its decision to grant or deny access to the requested records within ten working days.⁽⁷³⁾ The Electronic FOIA amendments increase the Act's basic time limit for agency responses, lengthening it from ten to twenty working days.⁽⁷⁴⁾ Agencies are not necessarily required to release records within the statutory time limit, but access to releasable records should, at a minimum, be granted promptly thereafter.⁽⁷⁵⁾

The time period for processing a FOIA request may be extended by ten working days by written notice to the requester explaining why an extension is needed and stating when a determination will be made on the request.⁽⁷⁶⁾ If the required extension is longer than ten days, the agency must allow the requester an opportunity to modify his or her request, or to arrange for an alternative time frame for completion of the agency's processing.⁽⁷⁷⁾ The FOIA provides for such extensions of initial time limits under "unusual circumstances," which are defined as (1) the need to search for and collect records from separate offices; (2) the need to examine a voluminous amount of records required by the request; and (3) the need to consult with another agency or agency component.⁽⁷⁸⁾ Determinations of administrative appeals are required to be made within twenty working days.⁽⁷⁹⁾

In many instances, though, agencies are unable to meet these time limits for a variety of reasons, including the limitations of their resources.⁽⁸⁰⁾ The D.C. Circuit has approved the general practice of handling backlogged FOIA requests on a "first-in, first-out" basis.⁽⁸¹⁾ Under the Electronic FOIA amendments, agencies are now expressly authorized to promulgate regulations providing for "multitrack processing" of their FOIA requests--which allows for the processing of requests on a first-in, first-out basis within each track, but permits agencies to respond to relatively simple requests more quickly than requests involving complex and/or voluminous records.⁽⁸²⁾ Also, FOIA case law provides that if a FOIA requester can show an "exceptional need or urgency," his or her request may be "expedited" and processed out of sequence.⁽⁸³⁾ Expedited access has been granted when exceptional circumstances surrounding a request warrant such treatment to the relative disadvantage of prior FOIA requesters, such as when there is jeopardy to life or personal safety,⁽⁸⁴⁾ or a threatened loss of substantial due process rights.⁽⁸⁵⁾

As of October 2, 1997, the Electronic FOIA amendments require agencies to promulgate regulations providing for expedited processing of requests for records in cases in which the person requesting the records demonstrates a "compelling need," as defined by the amended statute, or in any other case determined by the agency to be appropriate under its regulations.⁽⁸⁶⁾ Under the statute as amended, "compelling need" can be shown when failure to obtain the records quickly "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or if the requester is a "person primarily engaged in disseminating information" and can demonstrate that there is an "urgency to inform the public concerning actual or alleged Federal Government activity."⁽⁸⁷⁾ Agencies must act on requests for expedited access within ten calendar days of their receipt by the proper FOIA office,⁽⁸⁸⁾ and they may continue to exercise sound administrative discretion in granting expedited treatment under additional circumstances as well.⁽⁸⁹⁾ (For a further discussion of expedited access, see Litigation Considerations, "Open America" Stays of Proceedings, below.)

When an agency locates records responsive to a FOIA request, it should determine whether any of those records, or information contained in those records, originated with another agency or agency component.⁽⁹⁰⁾ As a matter of sound administrative practice, an agency receiving such a request should consult with the component or agency whose information appears in responsive records and, if the response to that consultation is delayed, notify the requester that a supplemental response will follow its completion.⁽⁹¹⁾ When entire records originating with another agency or component are located, those records ordinarily should be referred to their originating agency for its direct response to the requester,⁽⁹²⁾ and the requester ordinarily should be advised of such a referral.⁽⁹³⁾ Some agencies have streamlined their practices of continually referring certain routine records or classes of records to other agencies or components by establishing standard processing protocols.⁽⁹⁴⁾

All agencies should remember, however, that even after they make such record referrals in response to FOIA requests, they retain the responsibility of defending any agency action taken with respect to those records if the matter proceeds to litigation.⁽⁹⁵⁾ Additionally, agencies receiving such referrals should handle them on a "first-in, first-out" basis among their other FOIA requests--but they should be sure to do so according to the date of the request's initial receipt at the referring agency, lest FOIA requesters be placed at a timing disadvantage through agency referral practices.⁽⁹⁶⁾

Regarding the mechanics of responding to FOIA requests, it should be noted that the D.C. Circuit has suggested that an agency is not required to mail copies of requested records to a FOIA requester if it prefers to make the "responsive records available in one central location for [the requester's] perusal," such as in a "reading room."⁽⁹⁷⁾ As a matter of sound policy and administrative practice, however, the Department of Justice strongly advises agencies to decline to follow such a practice except where it is the requester's preference as well.⁽⁹⁸⁾ It is also important for both agencies and requesters alike to distinguish between the records that are made available in agency reading rooms (both conventional and "electronic") under subsection (a)(2) of the Act⁽⁹⁹⁾ and records that are sought through FOIA requests.⁽¹⁰⁰⁾ (For a discussion of "reading room" records, see FOIA Reading Rooms, above.)

The Act requires that "any reasonably segregable portion of a record" must be released after appropriate application of the nine exemptions.⁽¹⁰¹⁾ Agencies should pay particularly close attention to this "reasonably segregable" requirement as the courts can closely examine whether segregability determinations have been made properly.⁽¹⁰²⁾ (For a further discussion of segregability, see Litigation Considerations, "Vaughn Index," below.) If, however, an agency determines that nonexempt material is so "inextricably intertwined" that disclosure of it would "leave only essentially meaningless words and phrases," the entire record may be withheld.⁽¹⁰³⁾ In cases involving a large amount of records or an unreasonably high-cost "line-by-line" review, it has been held that agencies may withhold small segments of nonexempt facts "if the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing by the courts would impose an inordinate burden."⁽¹⁰⁴⁾

Previously, the courts held that the agency, not the requester, could choose the format of disclosure, if the agency chose reasonably under the circumstances presented.⁽¹⁰⁵⁾ Under the Electronic FOIA amendments, however, an agency must "provide the [requested] record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format" and "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes.⁽¹⁰⁶⁾ Together, these two provisions will require agencies to honor a requester's specific choice among existing forms of a requested record (assuming no exceptional difficulty in reproducing an existing record form)⁽¹⁰⁷⁾ and to make "reasonable efforts" to disclose a record in a different form or format when that is requested and the record is "readily reproducible" in that new form or format.⁽¹⁰⁸⁾

While it is well established "that computer-stored records, whether stored in the central processing unit, on magnetic tape, or in some other form, are records for the purposes of the FOIA,"⁽¹⁰⁹⁾ it also has been held that the FOIA "in no way contemplates that agencies, in providing information to the public, should invest in the most sophisticated and expensive form of technology."⁽¹¹⁰⁾ Yet agencies should be encouraged to use advanced technology to satisfy existing or potential FOIA demands most efficiently--including through "affirmative" electronic disclosures.⁽¹¹¹⁾

All notifications to requesters of denials of initial requests and appeals should contain certain specific information--including an estimation of the volume of any denied information, unless providing that information is contrary to the protection provided by an exemption.⁽¹¹²⁾ In addition, the Electronic FOIA amendments require agencies to indicate the amount of information that has been deleted at the point in the record where the deletion has been made, wherever it is "technically feasible" to do so.⁽¹¹³⁾

While "[t]here is no requirement that administrative responses to FOIA requests contain the same documentation necessary in litigation,"⁽¹¹⁴⁾ a decision to deny an initial request must inform the requester of the reasons for denial; of the right to appeal; and of the name and title of each person responsible for the denial.⁽¹¹⁵⁾ Agencies also must include administrative appeal notifications in all of their "no record" responses to FOIA requesters.⁽¹¹⁶⁾ An administrative appeal decision upholding a denial must inform the requester of the reasons for denial, of the requester's right to judicial review in the federal courts, and of the name and title of each person responsible for the appeal denial.⁽¹¹⁷⁾

Notifications to requesters should also contain other pertinent information: when and where records will be made available; what fees, if any, must be paid prior to the granting of access; what records are or are not responsive to the request; the date of receipt of the request or appeal; and the nature of the request or appeal and, when appropriate, the agency's interpretation of it.⁽¹¹⁸⁾ Agencies may apply a "cut-off" date for including records as responsive to requests.⁽¹¹⁹⁾ When an agency employs a particular "cut-off" date, however, it should give notice of that to requesters through a published regulation to that effect, if not also in the agency's letter to the requester as well.⁽¹²⁰⁾ And in furtherance of its obligation to provide a FOIA requester with the "best copy available" of a record, an agency should address any problem with the quality of its photocopy of a disclosed record in its correspondence also.⁽¹²¹⁾

An agency's failure to comply with the time limits for either the initial request or the administrative appeal may be treated as a "constructive exhaustion" of administrative remedies, and a requester may immediately seek judicial review if he or she wishes to do so.⁽¹²²⁾ However, the D.C. Circuit has modified this rule of constructive exhaustion by holding that once the agency responds to the FOIA request--after the statutory time limit but before the requester has filed suit--the requester must administratively appeal the denial before proceeding to court.⁽¹²³⁾ (For a discussion of this litigation aspect, see Litigation Considerations, Exhaustion of Administrative Remedies, below.)

Under the law existing prior to October 2, 1997, once in court, if an agency could show that its failure to meet the statutory time limits resulted from "exceptional circumstances" and that it was applying "due diligence" in processing the request, the agency was generally allowed additional time to complete its processing and possibly to prepare a Vaughn Index as well.⁽¹²⁴⁾ Previously, the need to process an extremely large volume of requests was held to constitute "exceptional circumstances," and the commitment of large amounts of resources to process requests on a first-come, first-served basis has been held to constitute "due diligence" under this subsection.⁽¹²⁵⁾ The Electronic FOIA amendments, however, will explicitly exclude "a predictable agency workload" of FOIA requests as "exceptional circumstances . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests."⁽¹²⁶⁾ However, a refusal by a requester "to reasonably modify the scope of a request or arrange for an alternative time frame for processing the request," may be used as evidence of "exceptional circumstances."⁽¹²⁷⁾ (For a discussion of the litigation aspects of the "exceptional circumstances" provision of the Act, see Litigation Considerations, "Open America" Stays of Proceedings, below.)

The FOIA applies only to "records," not to tangible, evidentiary objects.⁽¹²⁸⁾ The courts initially defined a "record" by relying on the dictionary meaning of the term.⁽¹²⁹⁾ Subsequently, the Supreme Court looked to the Records Disposal Act⁽¹³⁰⁾ as influential in its analysis of the term "record."⁽¹³¹⁾ With recent technological advances, at least one court has expanded its interpretation of the term to encompass computer programs, or "software," in light of the FOIA's purpose of encouraging widespread public access.⁽¹³²⁾ The Electronic FOIA amendments define the term "record" as simply "includ[ing] any information that would be an agency record . . . when maintained by an agency in any format, including an electronic format."⁽¹³³⁾

Finally, several miscellaneous characteristics of the FOIA should also be noted. As a general rule, agencies are not required to create records in order to respond to FOIA requests.⁽¹³⁴⁾ Nor are agencies required to answer questions posed as FOIA requests.⁽¹³⁵⁾

It likewise is well recognized that the FOIA does not provide for limited disclosure; rather, it "speaks in terms of disclosure and nondisclosure. It ordinarily does not recognize degrees of disclosure, such as permitting viewing, but not copying, of documents."⁽¹³⁶⁾ Similarly, providing exempt information to a requester and limiting his ability to further disclose it through a protective order is "not authorized by FOIA."⁽¹³⁷⁾ And it has been held that requesters cannot compel agencies to make automatic releases of records as they are created,⁽¹³⁸⁾ which means that requests cannot properly be made for "future" records not yet created.⁽¹³⁹⁾

There also is no damage remedy available to FOIA requesters for nondisclosure.⁽¹⁴⁰⁾ Furthermore, agencies are not required to seek the return of records wrongfully removed from their possession;⁽¹⁴¹⁾ to recreate records properly disposed of;⁽¹⁴²⁾ to respond to requests for records that fall within subsection (a)(2) of the Act and are already available for "reading room" inspection and copying;⁽¹⁴³⁾ or to seek the delivery of records held by private entities.⁽¹⁴⁴⁾ And the FOIA may not be used as an "enforcement mechanism" to compel agencies to perform their missions.⁽¹⁴⁵⁾ Lastly, the District Court for the District of Columbia has held, in a singular such decision, that under some circumstances a FOIA claim may not be extinguished by the death of a requester.⁽¹⁴⁶⁾

1. 5 U.S.C. 552(f) (1994), as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. 552(f)(1) (West 1996 & Supp. 1997).

2. See, e.g., Ortez v. Washington County, 88 F.3d 804, 811 (9th Cir. 1996); Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980); Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 WL 411590, at *2 (D.D.C. July 11, 1996) (appeal pending); see also Beard v. Department of Justice, 917 F. Supp. 61, 63 (D.D.C. 1996) (holding District of Columbia Police Department to be "local" law enforcement agency not subject to FOIA); Gillard v. United States Marshals Serv., No. 87-0689, slip op. at 1-2 (D.D.C. May 11, 1987) (stating that District of Columbia Government records are not covered).

3. See, e.g., Rankel v. Town of Greensburgh, 117 F.R.D. 50, 54 (S.D.N.Y. 1987).

4. See, e.g., Warth v. Department of Justice, 595 F.2d 521, 523 (9th Cir. 1979); Williams v. Thornburgh, No. 89-2152, slip op. at 2 n.2 (D.D.C. Mar. 24, 1992), summary affirmance granted sub nom. Williams v. Barr, No. 92-5149 (D.C. Cir. Jan. 29, 1993); see also Andrade v. United States Sentencing Comm'n, 989 F.2d 308, 309-10 (9th Cir. 1993) (determining that Sentencing Commission, an independent body within judicial branch, is not subject to FOIA); Butler v. United States Probation, No. 95-1705, 1996 U.S. Dist. LEXIS 5241, at *2 (D.D.C. Apr. 22, 1996) (concluding that U.S. Probation Department is not agency within meaning of FOIA).

5. See, e.g., Smith v. United States Congress, No. 95-5281, 1996 WL 523800, at *1 (D.C. Cir. Aug. 28, 1996) (stating that FOIA does not apply to records held by Congress); Goland v. CIA, 607 F.2d 339, 348 (D.C. Cir. 1978) (holding that hearing transcript is congressional document and not subject to FOIA); Dow Jones & Co. v. Department of Justice, 917 F.2d 571, 574 (D.C. Cir. 1990) (holding that Congress is not "agency" for any purpose under FOIA); see also Mayo v. United States Gov't Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1994) (deciding that Government Printing Office is part of congressional branch and therefore is not subject to FOIA); Owens v. Warner, No. 93-2195, slip op. at 1 (D.D.C. Nov. 24, 1993) (ruling that office of Senator John Warner is not subject to FOIA), summary affirmance granted, No. 93-5415 (D.C. Cir. May 25, 1994).

6. See, e.g., Buemi v. Lewis, No. 94-4156, 1995 U.S. App. LEXIS 7816, at *6 (6th Cir. Apr. 4, 1995).

7. H.R. Rep. No. 93-1380, at 14 (1974); see, e.g., Forsham v. Harris, 445 U.S. 169, 179-80 (1980) (holding that private grantee of federal agency is not subject to FOIA); Public Citizen Health Research Group v. HEW, 668 F.2d 537, 543-44 (D.C. Cir. 1981) (stating that medical peer review committees are not "agencies" under FOIA); Irwin Mem'l Blood Bank v. American Nat'l Red Cross, 640 F.2d 1051, 1057 (9th Cir. 1981) (determining that American Red Cross is not an "agency" under FOIA); Leytman v. New York Stock Exch., No. 95 CV 902, 1995 WL 761843, at *2 (E.D.N.Y. Dec. 6, 1995) (relying on Independent Investor Protective League v. New York Stock Exch., 367 F. Supp. 1376, 1377 (S.D.N.Y. 1973), finding that although "[t]he Exchange is subject to significant federal regulation, . . . it is not an agency of the federal government"); Rogers v. United States Nat'l Reconnaissance Office, No. 94-B-2934, slip op. at 7 (N.D. Ala. Sept. 13, 1995) ("[T]he degree of government involvement and control over [private organizations which contracted with government to construct office facility is] insufficient to establish companies as federal agencies for purposes of the FOIA."). But see Cotton v. Adams, 798 F. Supp. 22, 24 (D.D.C. 1992) (holding that Smithsonian Institution is "agency" under FOIA on basis that it "performs governmental functions as a center of scholarship and national museum responsible for the safe-keeping and maintenance of national treasures"), holding questioned on appeal of award of attorneys fees sub nom. Cotton v. Heyman, 63 F.3d 1115, 1123 (D.C. Cir. 1995) (noting that Smithsonian Institution could "reasonably interpret our precedent to support its position that it is not an agency under FOIA"); Association of Community Orgs. for Reform Now v. Barclay, No. 3-89-409T, slip op. at 8 (N.D. Tex. June 9, 1989) (holding federal home loan banks "agencies" under FOIA); cf. Dong v. Smithsonian Instit., 878 F. Supp. 244, 250 (D.D.C. 1995) (ruling that Smithsonian Institution is "agency" under Privacy Act) (appeal pending).

8. See Illinois Inst. for Continuing Legal Educ. v. United States Dep't of Labor, 545 F. Supp. 1229, 1232-33 (N.D. Ill. 1982); see also FOIA Update, Fall 1988, at 3-4 ("FOIA Counselor: Transition Team FOIA Issues").

9. See Sweetland v. Walters, 60 F.3d 852, 855-56 (D.C. Cir. 1995) (holding that Executive Residence staff, which is "exclusively dedicated to assisting the President in maintaining his home and carrying out his various ceremonial duties," is not "agency" under FOIA); cf. Katz v. National Archives & Records Admin., 68 F.3d 1438, 1442 (D.C. Cir. 1995) (finding that autopsy x-rays and photographs of President Kennedy, created and handled as personal property of Kennedy estate, are presidential papers, not records of any "agency").

10. See S. Conf. Rep. No. 93-1200, at 14 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6293; see, e.g., Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042-43 (D.C. Cir. 1985) (ruling that Council of Economic Advisers is not "agency" under FOIA); Nation Co. v. Archivist of the United States, No. 88-1939, slip op. at 5-6 (D.D.C. July 24, 1990) (finding that Tower Commission is not "agency" under FOIA); National Sec. Archive v. Executive Office of the President, 688 F. Supp. 29, 31 (D.D.C. 1988) (concluding that Office of Counsel to President is not "agency" under FOIA), aff'd sub nom. National Sec. Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990); see also FOIA Update, Summer/Fall 1993, at 6-8 (Department of Justice memorandum specifying consultation process for agencies possessing White House-originated records or information located in response to FOIA requests).

11. Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993); cf. Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 911 (D.C. Cir. 1993) (declaring that President's Task Force on National Health Care Reform, composed of cabinet officials and chaired by First Lady, is not subject to Federal Advisory Committee Act); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 8 (D.D.C. 1995) (holding that trust to assist President Clinton with personal legal expenses "established by a government officer [President Clinton] in his personal capacity without the use of public funds, and which renders absolutely no advice on official government policy" is not subject to Federal Advisory Committee Act), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).

12. Armstrong v. Executive Office of the President, 90 F.3d 553, 559-65 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997).

13. See Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971); see also Ryan v. Department of Justice, 617 F.2d 781, 784-89 (D.C. Cir. 1980).

14. Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980) (holding that Council on Environmental Quality is "agency" under FOIA); cf. Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85 (D.C. Cir. 1990) (determining that Defense Nuclear Facilities Safety Board is "agency" because of multiple functions).

15. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (holding that court opinions in agency files are "agency records"); see, e.g., International Bhd. of Teamsters v. National Mediation Bd., 712 F.2d 1495, 1496 (D.C. Cir. 1983) (holding that submission of gummed-label mailing list as required by court order not sufficient to give "control" over record to agency); Tax Analysts v. United States Dep't of Justice, 913 F. Supp. 599, 607 (D.D.C. 1996) (finding that electronic legal research database contracted by agency is not "agency record" because licensing provisions specifically precluded agency control), aff'd, 107 F.3d 923 (D.C. Cir. 1997) (unpublished table decision); KDKA v. Thornburgh, No. 90-1536, slip op. at 11 (D.D.C. Sept. 30, 1992) (concluding that Canadian Safety Board report of aircrash, although possessed by National Transportation Safety Board, is not under agency "control" because of restrictions imposed by Convention on International Civil Aviation); Teich v. FDA, 751 F. Supp. 243, 248-49 (D.D.C. 1990) (holding that documents submitted to FDA in "`legitimate conduct of its official duties'" are agency records notwithstanding FDA's presubmission review regulation allowing submitters to withdraw their documents from agency's files (quoting Tax Analysts, 492 U.S. at 145)), appeal voluntarily dismissed, No. 91-5023 (D.C. Cir. July 2, 1992); Rush v. Department of State, 716 F. Supp. 598, 600 (S.D. Fla. 1989) (finding that correspondence between former ambassador and Henry Kissinger (then Assistant to the President) were "agency records" of Department of State as it exercised control over them); see also FOIA Update, Summer 1992, at 5 (advising that records subject to "protective order" issued by administrative law judge remain within agency control and are subject to FOIA).

16. See Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (finding data tapes created and possessed by contractor to be "agency records" because of extensive supervision exercised by agency which evidenced "constructive control"); Wolfe v. HHS, 711 F.2d 1077, 1079-82 (D.C. Cir. 1983) (holding that transition team records, physically maintained within "four walls" of agency, were not "agency records" under FOIA); see also, e.g., Tax Analysts, 492 U.S. at 146 (declaring that federal court tax opinions maintained and used by Justice Department's Tax Division are "agency records"); Hercules, Inc. v. Marsh, 839 F.2d 1027, 1029 (4th Cir. 1988) (holding that army ammunition plant telephone directory prepared by contractor at government expense, bearing "property of the U.S." legend, is "agency record"); General Elec. Co. v. NRC, 750 F.2d 1394, 1400-01 (7th Cir. 1984) (determining that agency "use" of internal report submitted in connection with licensing proceedings renders report an "agency record"); Chicago Tribune Co. v. HHS, No. 95-C-3917, 1997 U.S. Dist. LEXIS 2308, at *33 (N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (finding that notes and audit analysis file created by independent contractor were "agency records" as they were created on behalf of and at request of agency and agency maintained "effective control" over them), adopted (N.D. Ill. Mar. 28, 1997); see also Judicial Watch, 880 F. Supp. at 11-12 (following Washington Post v. DOD, 766 F. Supp. 1, 17 (D.D.C. 1991), finding transcript of congressional testimony provided "solely for editing purposes," with cover sheet restricting dissemination, is not "agency record"); Baizer v. United States Dep't of the Air Force, 887 F. Supp. 225, 228-29 (N.D. Cal. 1995) (holding that database of Supreme Court decisions, used for reference purposes or as research tool, is not "agency record"); Animal Legal Defense Fund v. Secretary of Agric., 813 F. Supp. 882, 892 (D.D.C. 1993) (ruling that plans regarding treatment of animals maintained on-site by entities subject to USDA regulation are not "agency records") (non-FOIA case brought under Administrative Procedure Act), vacated for lack of standing sub nom. Animal Legal Defense Fund v. Espy, 29 F.3d 720 (D.C. Cir. 1994); Rush Franklin Publ'g, Inc. v. NASA, No. 90-CV-2855, slip op. at 10 (E.D.N.Y. Apr. 13, 1993) (finding that computer tape maintained by contractor is not "agency record" in absence of agency control); Lewisburg Prison Project, Inc. v. Federal Bureau of Prisons, No. 86-1339, slip op. at 4-5 (M.D. Pa. Dec. 16, 1986) (holding that training videotape provided by contractor is not "agency record"); Marzen v. HHS, 632 F. Supp. 785, 801 (N.D. Ill. 1985) (declaring that records created outside federal government which "agency in question obtained without legal authority" are not "agency records"), aff'd on other grounds, 825 F.2d 1148 (7th Cir. 1987); Waters v. Panama Canal Comm'n, No. 85-2029, slip op. at 5-6 (D.D.C. Nov. 26, 1985) (finding that Internal Revenue Code is not "agency record"); Center for Nat'l Sec. Studies v. CIA, 577 F. Supp. 584, 586-90 (D.D.C. 1983) (holding that agency report, prepared "at the direct request of Congress" with intent that it remain secret and transferred to agency with congressionally imposed "conditions" of secrecy, is not "agency record"); cf. SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) (reaching "displacement-type" result for records governed by National Library of Medicine Act); FOIA Update, Fall 1990, at 7-8 n.32.

17. See Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C. Cir. 1994) (stating that letters written on agency time on agency equipment by board member seeking renomination, which had been reviewed by other agency employees but not integrated into agency record system and over which author had not relinquished control, are not "agency records"); Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1488-96 (D.C. Cir. 1984) (holding that appointment calendars and telephone message slips of agency official are not "agency records"); Spannaus v. United States Dep't of Justice, 942 F. Supp. 656, 658 (D.D.C. 1996) (finding that "`personal' files" of attorney no longer employed with agency were "beyond the reach of FOIA" if they were not turned over to agency at end of employment); Judicial Watch, 880 F. Supp. at 11 (concluding that "telephone logs, calendar markings, [and] personal staff notes" are not "agency records"); see also Hamrick v. Department of the Navy, No. 90-283, slip op. at 6 (D.D.C. Aug. 28, 1992) (finding that employee notebooks containing handwritten notes and comments, created and maintained for personal convenience and not placed in official files or referenced in agency documents, are not "agency records"), appeal dismissed, No. 92-5376 (D.C. Cir. Aug. 4, 1995); Sibille v. Federal Reserve Bank, 770 F. Supp. 134, 139 (S.D.N.Y. 1991) (ruling that handwritten notes of meetings and telephone conversations taken by employees for their personal convenience and not placed in agency's files are not "agency records"); Dow Jones & Co. v. GSA, 714 F. Supp. 35, 39 (D.D.C. 1989) (determining that agency head's recusal list, shared only with personal secretary and chief of staff, is not "agency record"); Forman v. Chapotan, No. 88-1151, slip op. at 14 (W.D. Okla. Dec. 12, 1988) (rejecting contention that materials distributed to agency officials at privately sponsored seminar are "agency records"), aff'd, No. 89-6035 (10th Cir. Oct. 31, 1989); American Fed'n of Gov't Employees v. United States Dep't of Commerce, 632 F. Supp. 1272, 1277 (D.D.C. 1986) (finding that employee logs created voluntarily to facilitate work are not "agency records" even though containing substantive information), aff'd, 907 F.2d 203 (D.C. Cir. 1990); Kalmin v. Department of the Navy, 605 F. Supp. 1492, 1494-95 (D.D.C. 1985) (holding that uncirculated personal notes maintained at residence or in office desk drawer are personal property, not "agency records"); British Airports Auth. v. CAB, 531 F. Supp. 408, 416 (D.D.C. 1982) (ruling that employee notes maintained in personal file and retained at employee's discretion are not "agency records"); Porter County Chapter of the Izaak Walton League of Am. v. United States Atomic Energy Comm'n, 380 F. Supp. 630, 633 (N.D. Ind. 1974) (determining that handwritten notes within personal files are not "agency records"); see also FOIA Update, Fall 1988, at 3-4 (discussing circumstances under which presidential transition team documents can be regarded as "personal records" when brought to federal agency); FOIA Update, Fall 1984, at 3-4 ("OIP Guidance: `Agency Records' vs. `Personal Records'"). But see Washington Post Co. v. United States Dep't of State, 632 F. Supp. 607, 616 (D.D.C. 1986) (holding that logs compiled by Secretary of State's staff--without his knowledge--are "agency records"); see also Ethyl Corp. v. EPA, 25 F.3d 1241, 1247-48 (4th Cir. 1994) (finding agency search inadequate because employees "not properly instructed on how to distinguish personal records from agency records").

18. See 5 U.S.C. 552(a)(3), (a)(4)(A), (a)(6)(A); see also 5 U.S.C.A.

552(g) (West 1996 & Supp. 1997) (requiring agencies to make available "reference material or a guide for requesting records or information from the agency"); FOIA Update, Spring 1997, at 1 (discussing electronic publication of Justice Department's FOIA Reference Guide).

19. See, e.g., 28 C.F.R. pt. 16 (1996) (Department of Justice FOIA regulations).

20. 5 U.S.C.A. 552 (West 1996 & Supp. 1997).

21. See FOIA Update, Fall 1996, at 1-2, 10-11 (discussing statutory changes).

22. 5 U.S.C.A. 552(a)(6)(D), (a)(6)(E) (West 1996 & Supp. 1997); see, e.g., Revised Department of Justice Freedom of Information Act Regulations, 62 Fed. Reg. 45,184 (1997) (to be codified at 28 C.F.R. pt. 16) (proposed Aug. 26, 1997).

23. President's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993) [hereinafter President Clinton's FOIA Memorandum], reprinted in FOIA Update, Summer/Fall 1993, at 3; see, e.g., FOIA Update, Summer 1994, at 6 (cautioning against practices that would cause unwarranted disadvantages to requesters in record-referral processes); see also FOIA Update, Spring 1997, at 1 (discussing Attorney General's reiteration of Administration's "openness-in-government principles").

24. See Zemansky v. EPA, 767 F.2d 569, 574 (9th Cir. 1985); see also FOIA Update, Summer 1989, at 5 (addressing submission of FOIA requests by "fax" in relation to agency regulation).

25. See, e.g., Ruotolo v. Department of Justice, 53 F.3d 4, 10 (2d Cir. 1995) (charging that agency failed to comply with its own regulation requiring

it to assist requesters in reformulating requests determined not to reasonably describe records sought); Public Citizen Health Research Group v. FDA, No. 94-0018, slip op. at 2 (D.D.C. Feb. 9, 1996) (criticizing agency for asserting that request did not reasonably describe "records which could be located in the FDA's record keeping system without an unduly burdensome search" and ignoring plaintiff's concession to limit scope of request, court concluded that agency violated its own regulatory requirement to seek more specific information and to narrow scope of request).

26. See, e.g., Pollack v. Department of Justice, 49 F.3d 115, 119 (4th Cir.) (plaintiff's refusal to pay anticipated fees constitutes failure to exhaust administrative remedies); Wells v. SEC, No. 96-6237, 1997 WL 274270, at *3 (2d Cir. May 22, 1997) (ruling that plaintiff failed to exhaust administrative remedies by neglecting to administratively appeal pursuant to agency regulations); Thomas v. Office of U.S. Attorney, 171 F.R.D. 53, 54 (E.D.N.Y. 1997) (ruling that administrative remedies not exhausted when plaintiff made further request for documents in appeal of agency's denial of plaintiff's initial request); Smith v. Reno, No. 93-1316, 1996 U.S. Dist. LEXIS 5594, at *9 (N.D. Cal. Apr. 23, 1996) (stating that "National Records Administration is not an HUD information center," and holding that plaintiff failed to exhaust administrative remedies by directing FOIA request to wrong agency) (appeal pending); Graphics of Key West v. United States, No. 93-718, 1996 U.S. Dist. LEXIS 1888, at **17-18 (D. Nev. Feb. 5, 1996) (finding that requests made to IRS employees are "more arguments than clear requests for information" and "do not even come close to constituting proper requests for information," court dismissed for failure to exhaust administrative remedies); Sands v. United States, No. 94-0537, 1995 U.S. Dist. LEXIS 9252, at **10-12 (S.D. Fla. June 16, 1995) (noting clarity of agency's rules and reasonableness of agency's treatment of misdirected request, court found that plaintiff failed to exhaust administrative remedies by not directing request to appropriate office); United States v. Agunbiade, No. 90-CR-610, 1995 WL 351058, at *6 (E.D.N.Y. May 10, 1995) (ruling that plaintiff who did not direct request to "appropriate parties and agencies" in accordance with agency-specific rules failed to exhaust administrative remedies), aff'd sub nom. United States v. Osinowo, 100 F.3d 942 (2d Cir. 1996) (unpublished table decision); Klayman v. United States Int'l Trade Comm'n, No. 95-0009, slip op. at 1 (D.D.C. Apr. 19, 1995) (stating that plaintiff failed to exhaust administrative remedies by failing to comply with agency regulations governing appeals); Polewsky v. Social Sec. Admin., No. 5:93-CV-200, slip op. at 8 (D. Vt. Mar. 31, 1995) (magistrate's recommendation) (noting that agency is not required to inform requesters of proper administrative procedures, other than through publication in Federal Register, and finding that plaintiff did not comply with agency regulations and therefore has not exhausted administrative remedies), adopted (D. Vt. Apr. 13, 1995), aff'd on other grounds, 101 F.3d 108 (2d Cir. 1996) (unpublished table decision).

27. See, e.g., Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 840 n.2 (6th Cir. 1988) (recognizing standing of attorney to request documents on behalf of client). See generally Doherty v. United States Dep't of Justice, 596 F. Supp. 423, 427 n.4 (S.D.N.Y. 1984) (reviewing legislative history), aff'd on other grounds, 775 F.2d 49 (2d Cir. 1985).

28. See FOIA Update, Winter 1985, at 6 (citing 5 U.S.C. 551(2)).

29. See, e.g., Texas v. ICC, 935 F.2d 728, 728 (5th Cir. 1991); Massachusetts v. HHS, 727 F. Supp. 35, 35 (D. Mass. 1989).

30. See Doyle v. United States Dep't of Justice, 494 F. Supp. 842, 843 (D.D.C. 1980) (finding that fugitive not entitled to enforcement of the FOIA's access provisions because he cannot expect judicial aid in obtaining government records when he has fled the jurisdiction of the courts), aff'd, 668 F.2d 1365 (D.C. Cir. 1981). But cf. O'Rourke v. United States Dep't of Justice, 684 F. Supp. 716, 718 (D.D.C. 1988) (holding that convicted criminal, fugitive from his home country undergoing U.S. deportation proceedings, qualified as "any person" for purpose of making FOIA request); Doherty, 596 F. Supp. at 424-29 (same).

31. See Javelin Int'l, Ltd. v. United States Dep't of Justice, 2 Gov't Disclosure Serv. (P-H) 82,141, at 82,479 (D.D.C. Dec. 9, 1981).

32. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989); see also North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989) (rejecting requester's identity and intended use as factors for determining access rights under FOIA); Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986) ("Congress granted the scholar and the scoundrel equal rights of access to agency records."), cert. granted, judgment vacated on other grounds & remanded, 486 U.S. 1029 (1988); Forsham v. Califano, 587 F.2d 1128, 1134 (D.C. Cir. 1978) (reasoning that while factors such as need, interest, or public interest may bear on agency's determination of order of processing, they have no bearing on individuals' rights of access under FOIA); see also FOIA Update, Spring 1989, at 5; FOIA Update, Summer 1985, at 5.

33. See United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984); Baldrige v. Shapiro, 455 U.S. 345, 360 n.14 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974).

34. See, e.g., Jackson v. First Fed. Sav., 709 F. Supp. 887, 889 (E.D. Ark. 1989); see also FOIA Update, Dec. 1981, at 10. But cf. Injex Indus. v. NLRB, 699 F. Supp. 1417, 1419 (N.D. Cal. 1986) (holding that FOIA cannot be used to circumvent nonreviewable decision to impound requested documents); Morrison-Knudsen Co. v. Department of the Army of the United States, 595 F. Supp. 352, 356 (D.D.C. 1984) ("[T]he use of FOIA to unsettle well established procedures governed by a comprehensive regulatory scheme must be . . . viewed not only `with caution' but with concern."), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision). But see Environmental Crimes Project v. EPA, 928 F. Supp. 1, 2 (D.D.C. 1995) (ordering stay of FOIA case "pending the resolution of the discovery disputes" in parties' related lawsuit to foreclose requester's attempt to "`end run'" or interfere with discovery).

35. See, e.g., North, 881 F.2d at 1096. But cf. Jones v. FBI, 41 F.3d 238, 250 (6th Cir. 1994) ("FOIA's scheme of exemptions does not curtail a plaintiff's right to discovery in related non-FOIA litigation; but neither does that right entitle a FOIA plaintiff to circumvent the rules limiting release of documents under FOIA."); Agunbiade, 1995 WL 31058, at *7 (stating that FOIA requester "cannot employ the statute as a means to enlarge his right to discovery").

36. Sears, 421 U.S. at 143 n.10; see also United Tech. v. FAA, 102 F.3d 688, 692 (2d Cir. 1996) ("`Congress[] created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.'" (quoting FBI v. Abramson, 456 U.S. 615, 631 (1982))), cert. denied, 117 S. Ct. 2479 (1997); United States v. United States Dist. Court, Central Dist. of Cal., 717 F.2d 478, 480 (9th Cir. 1983) (holding that FOIA does not expand scope of criminal discovery permitted under Rule 16 of Federal Rules of Criminal Procedure); Johnson v. United States Dep't of Justice, 758 F. Supp. 2, 5 (D.D.C. 1991) ("Resort to Brady v. Maryland as grounds for waiving confidentiality is . . . outside the proper role of FOIA."); Stimac v. United States Dep't of Justice, 620 F. Supp. 212, 213 (D.D.C. 1985) ("Brady v. Maryland . . . provides no authority for releasing material under FOIA."); cf. Calder v. IRS, 890 F.2d 781, 783 (5th Cir. 1989) (holding that historian denied access under FOIA also has no "constitutional right of access" to Al Capone's tax records); Leach v. RTC, 860 F. Supp. 868, 871, 878-79 & n.13 (D.D.C. 1994) (individual Member of Congress not granted greater access to agency records than other FOIA requesters by virtue of position; issue held nonjusticiable), appeal dismissed per stipulation, No. 94-5279 (D.C. Cir. Dec. 22, 1994).

37. United States Dep't of Justice v. Julian, 486 U.S. 1, 14 (1988); accord Reporters Comm., 489 U.S. at 771 (recognizing single exception to general FOIA-disclosure rule in case of "first-party" requester).

38. See FOIA Update, Spring 1989, at 5 (advising agencies to treat first-party FOIA requesters in accordance with protectible interests that requesters can have in their own information, such as personal privacy information, and to treat third-party FOIA requesters differently).

39. 5 U.S.C. 552(a)(3)(A).

40. See id. 552(a)(3)(B); see, e.g., Borden v. FBI, No. 94-1029, slip op. at 2 (1st Cir. June 28, 1994) (per curiam) (affirming dismissal of case because requester failed to comply with agency's published regulations); McDonnell v. United States, 4 F.3d 1227, 1236-37 (3d Cir. 1993) ("[A] person whose name does not appear on [FOIA] request [as required by agency regulations] . . . has not made a formal request for documents within the meaning of the statute [and therefore] has no right to [the documents or to] sue in district court when the agency refuses to release requested documents."); Smith, 1996 U.S. Dist. LEXIS 5594, at *9 (declaring that plaintiff has not exhausted administrative remedies when request was directed to wrong agency).

41. H.R. Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271; see, e.g., Brumley v. United States Dep't of Labor, 767 F.2d 444, 445 (8th Cir. 1985); Goland, 607 F.2d at 353; Marks v. United States Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978).

42. Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff'd in pertinent part, No. 89-5414 (D.C. Cir. Aug. 13, 1990); see Frank v. United States Dep't of Justice, 941 F. Supp. 4, 5 (D.D.C. 1996) (appeal pending); Blakey v. Department of Justice, 549 F. Supp. 362, 366-67 (D.D.C. 1982), aff'd, 720 F.2d 215 (D.C. Cir. 1983) (unpublished table decision); see also Trenerry v. Department of the Treasury, No. 92-5053, slip op. at 6 (10th Cir. Feb. 5, 1993) (holding that agency not required to provide personal services such as legal research); Davis v. United States Dep't of Justice, 968 F.2d 1276, 1280-82 (D.C. Cir. 1992) (stating that burden is on requester, not agency, to show prior disclosure of otherwise exempt records); Lamb v. IRS, 871 F. Supp. 301, 304 (E.D. Mich. 1994) (finding requests outside scope of FOIA when they require legal research, are unspecific, or seek answers to interrogatories).

43. Immanuel v. Secretary of the Treasury, No. 94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4, 1995), aff'd, 81 F.3d 150 (4th Cir. 1996) (unpublished table decision); see also Freeman v. United States Dep't of Justice, No. 90-2754, slip op. at 3 (D.D.C. Oct. 16, 1991) ("The FOIA does not require that the government go fishing in the ocean for fresh water fish.").

44. Devine v. Marsh, 2 Gov't Disclosure Serv. (P-H) 82,022, at 82,186 (E.D. Va. Aug. 27, 1981); see also Goldgar v. Office of Admin., 26 F.3d 32, 35 (5th Cir. 1994) (holding that agency not required to produce information sought by requester--"the identity of the government agency that is reading his mind"--that does not exist in record form); Keenan v. United States Dep't of Justice, No. 94-1909, slip op. at 1 (D.D.C. Nov. 12. 1996) ("Plaintiff can not [sic] place a request for one search and then, when nothing is found, convert that request into a different search."); Graphics of Key West, 1996 U.S. Dist. LEXIS 1888, at *17 (finding plaintiff's request letters to be "more arguments than clear requests for information"); Kubany v. Board of Governors, Fed. Reserve Sys., No. 93-1428, slip op. at 6-8 (D.D.C. July 19, 1994) (holding that request relying on exhibits containing "multiple, unexplained references to hundreds of accounts, and various flowcharts, and schematics" is "entirely unreasonable"); Canning v. United States Dep't of Justice, No. 92-503, slip op. at 2 (D.D.C. July 15, 1992) (stating that subsequent request for additional searches of State Department files "not justified" after agency had conducted "reasonable and adequate search"); Massachusetts, 727 F. Supp. at 36 n.2 (holding that request for all records "relating to" particular subject is overbroad, "thus unfairly plac[ing] the onus of non-production on the recipient of the request and not where it belongs--upon the person who drafted such a sloppy request").

45. Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985); see also Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) (emphasizing that agency required to read FOIA request as drafted, "not as either [an] agency official or [the requester] might wish it was drafted"); Ferri v. Bell, 645 F.2d 1213, 1220 (3d Cir. 1981) (declaring that request "inartfully presented in the form of questions" cannot be dismissed, in toto, as too burdensome); Summers v. United States Dep't of Justice, 934 F. Supp. 458, 461 (D.D.C. 1996) (notwithstanding fact that plaintiff's request specifically sought access to J. Edgar Hoover's "commitment calendars," finding agency search inadequate as agency did not use additional search terms such as "appointment" or "diary" to locate responsive records); Canning v. United States Dep't of Justice, 919 F. Supp. 451, 460-61 (D.D.C. 1994) (when agency was aware that subject of request used two names, it should have conducted search under both names); Landes v. Yost, No. 89-6338, slip op. at 4-5 (E.D. Pa. Apr. 11, 1990) (finding that request was "reasonably descriptive" when it relied on agency's own outdated identification code), aff'd, 922 F.2d 832 (3d Cir. 1990) (unpublished table decision); FOIA Update, Summer 1983, at 5; cf. Truitt v. Department of State, 897 F.2d 540, 544-46 (D.C. Cir. 1990) (stating that when request was "reasonably clear as to the materials desired," agency failed to conduct adequate search as it did not include file likely to contain responsive records). But see Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993) (finding that agency search was properly limited to scope of FOIA request, with no requirement that secondary references or variant spellings be checked).

46. See FOIA Update, Fall 1995, at 3 (advising agencies to interpret terms of FOIA requests liberally) (citing Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).

47. President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3; see also Attorney General's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act (Oct. 4, 1993) [hereinafter Attorney General Reno's FOIA Memorandum], reprinted in FOIA Update, Summer/Fall 1993, at 4-5; FOIA Update, Summer 1994, at 6 (describing National Performance Review FOIA activities at Justice Department); cf. De Luca v. INS, No. 95-6240, 1996 U.S. Dist. LEXIS 2696, at *2 (E.D. Pa. Mar. 7, 1996) (agency offered--as matter of administrative discretion--to create certification that it had no record that requester was naturalized citizen).

48. See FOIA Update, Fall 1995, at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request") (advising of procedures and underlying considerations for document "scoping").

49. See Ruotolo, 53 F.3d at 10; Public Citizen Health Research Group, No. 94-0018, slip op. at 2 (D.D.C. Feb. 9, 1996); see also FOIA Update, Summer 1983, at 5.

50. See Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding valid request encompassing over 1,000,000 computerized records: "The linchpin inquiry is whether the agency is able to determine `precisely what records [are] being requested.'" (quoting legislative history)).

51. See Nation Magazine, 71 F.3d at 892 (agreeing that search which would require review of 23 years of unindexed files for records pertaining to former presidential candidate H. Ross Perot would be unreasonably burdensome, but disagreeing that search for dated memorandum through agency files indexed chronologically would be burdensome); Van Strum v. EPA, No. 91-35404, slip op. at 3 (9th Cir. Aug. 17, 1992) (accepting agency justification in denying or seeking clarification of overly broad requests which would place inordinate search burden on agency resources); American Fed'n of Gov't Employees v. United States Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (holding request which would require agency "to locate, review, redact, and arrange for inspection a vast quantity of material" to be "so broad as to impose an unreasonable burden upon the agency" (citing Goland, 607 F.2d at 353)); Marks, 578 F.2d at 263 (ruling that FBI is not required to search every one of its field offices); Spannaus v. United States Dep't of Justice, No. 92-372, slip op. at 6 (D.D.C. June 20, 1995) (finding that agency is not required to determine all persons having ties to associations targeted in bankruptcy proceedings "and then search any and all civil or criminal files relating to those persons"), summary affirmance granted in pertinent part, No. 95-5267 (D.C. Cir. Aug. 16, 1996); Canning v. United States Dep't of the Treasury, No. 91-2324, slip op. at 8 (D.D.C. Apr. 28, 1993) ("[I]f the locations to be searched are not plain from the face of the request, the government agency . . . need not imply additional locations into the search."); Roberts v. United States Dep't of Justice, No. 92-1707, slip op. at 3 (D.D.C. Jan. 28, 1993) (stating that agency is not expected to "search every nook and cranny of its vast offices" in order to locate records which requester believes may exist); Nance v. United States Postal Serv., No. 91-1183, slip op. at 5 n.3 (D.D.C. Jan. 24, 1992) (dictum) (suggesting that there may be instances when "search burden is too disruptive," regardless of requester's ability to pay fees); Hale Fire Pump Co. v. United States, No. 90-2714, slip op. at 2 (E.D. Pa. July 30, 1990) (determining that agency is not required to direct FOIA request to "hundreds of [its] installations that might have responsive documents"); see also, e.g., Nolen v. Rumsfeld, 535 F.2d 890, 891-92 (5th Cir. 1976) (finding that FOIA does not compel agencies to locate missing records). But see Truitt, 897 F.2d at 546 (requiring that subsequent search be conducted for responsive records that agency knew were removed from file).

52. See, e.g., Church of Scientology v. IRS, 792 F.2d 146, 150-51 (D.C. Cir. 1986); Miller v. United States Dep't of State, 779 F.2d 1378, 1385 (8th Cir. 1986); Neff v. IRS, No. 85-816, slip op. at 8 (S.D. Fla. Nov. 24, 1986); Auchterlonie v. Hodel, No. 83-C-6724, slip op. at 13 (N.D. Ill. May 7, 1984).

53. See Burlington N. R.R. v. EPA, No. 91-1636, slip op. at 4 (D.D.C. June 15, 1992); Clarke v. United States Dep't of the Treasury, No. 84-1873, slip op. at 2-3 (E.D. Pa. Jan. 24, 1986); see also FOIA Update, Spring 1992, at 3-7 (congressional testimony discussing "electronic record" FOIA issues).

54. See Yeager, 678 F.2d at 324; see also "Department of Justice Report on `Electronic Record' FOIA Issues" [hereinafter Department of Justice "Electronic Record" Report], reprinted in abridged form in FOIA Update, Spring/Summer 1990, at 8-21 (discussing use of "computer programming" for FOIA search and processing purposes). But cf. International Diatomite Producers Ass'n v. United States Soc. Sec. Admin., No. 92-1634, slip op. at 13-14 (N.D. Cal. Apr. 28, 1993) (ordering agency to respond to request for specific information, portions of which were maintained in four separate computerized listings, by either compiling new list or redacting existing lists), appeal dismissed, No. 93-16723 (9th Cir. Nov. 1, 1993).

55. See Thompson Publ'g Group, Inc. v. Health Care Fin. Admin., No. 92-2431, slip op. at 3-4 (D.D.C. Mar. 15, 1994) (finding that relatively simple computer searches and computer queries are reasonable for data that do not exist "in a single computer `document' or `file'"); Belvy v. United States Dep't of Justice, No. 94-923, slip op. at 7-9 (S.D. Fla. Dec. 15, 1994) (magistrate's recommendation) (rejecting agency's claim that it did not have to undertake computer search because it failed "to establish that the creation of such a [computer] program would be unreasonable"), adopted (S.D. Fla. Jan. 27, 1995); see also Department of Justice "Electronic Record" Report, reprinted in abridged form in FOIA Update, Spring/Summer 1990, at 8-17 (discussing issue of computer programming for search purposes).

56. 5 U.S.C.A. 552(a)(3)(C) (West 1996 & Supp. 1997); see also FOIA Update, Fall 1996, at 2 (discussing new electronic search requirements).

57. 5 U.S.C.A. 552(a)(3)(D) (West 1996 & Supp. 1997); see also FOIA Update, Winter 1997, at 6 (advising that new search provisions of Electronic FOIA amendments do not involve record "creation" in Congress's eyes).

58. See Zemansky, 767 F.2d at 571-73 (observing that reasonableness of agency search depends upon facts of each case (citing Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983))); see also Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1185 (D.C. Cir. 1996) (acknowledging plaintiff's assertion that search was inadequate because of previous FOIA requester's claim that agency provided her with "well over a thousand documents," court held that claim raises enough doubt to preclude summary judgment in absence of agency affidavit further describing its search); Ruotolo, 53 F.3d at 9 (finding that request which required 803 files to be searched not "unreasonably burdensome"); Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (determining that search was adequate when agency spent 140 hours reviewing relevant files, notwithstanding fact that agency was unable to locate 137 of 1000 volumes of records); Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) ("[A] search need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request."); Shewchun v. INS, No. 95-1920, slip op. at 7 (D.D.C. Dec. 10, 1996) ("plaintiff's identification of undisclosed documents that he has obtained through other sources [does not] render the search unreasonable"), summary affirmance granted, No. 97-5044 (D.C. Cir. June 5, 1997); Kronberg v. United States Dep't of Justice, 875 F. Supp. 861, 870-71 (D.D.C. 1995) (holding that search was inadequate when agency did not find records required to be maintained and plaintiff produced documents obtained by other FOIA requesters demonstrating that agency possessed files which may contain records sought); Okon v. IRS, No. 91-660, 1995 WL 231240, at *4 (D.N.M. Jan. 12, 1995) (finding that although plaintiff "has articulated intelligent and logical reasons why she believes other documents . . . may exist," agency conducted search "reasonably calculated to uncover all responsive documents"); Canning v. United States Dep't of Justice, 919 F. Supp. 451, 459-60 (D.D.C. 1994) (concluding that fact that plaintiff was able to "find a handful of documents through other sources is not necessarily indicative of an inadequate search"); Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1051-52 (D.D.C. 1994) ("[T]he mere fact that the documents produced reference other documents that Plaintiff may be interested in, does not, by itself, call into question the adequacy of the Defendant's [search] method.").

59. See, e.g., Voinche v. FBI, No. 96-5304, 1997 U.S. App. LEXIS 19089, at *3 (D.C. Cir. June 19, 1997) (ruling that agency was not obliged to "search for records beyond the scope of the request"), petition for cert. filed, 66 U.S.L.W. 3178 (U.S. Sept. 2, 1997) (No. 97-383); Kowalczyk v. Department of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996) (finding search limited to agency headquarters files reasonable because plaintiff directed his request there); Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (holding agency may not limit search to one record system if others are likely to contain responsive records); Nation Magazine v. United States Custom Serv., No. 94-00808, slip op. at 8, 13-14 (D.D.C. Feb. 14, 1997) (stating that reasonable search did not require agency to search individual's personnel file in effort to locate substantive document drafted by him); Summers, 934 F. Supp. at 462 (finding agency response to request for telephone message slips of J. Edgar Hoover which stated that "`[i]t is not the policy or practice of the FBI to maintain in file handwritten telephone messages'" inadequate when agency located "telephone note," suggesting that other such notes exist); Lesar v. CIA, No. 93-2598, slip op. at 3 (D.D.C. Oct. 12, 1995) (finding that agency search was inadequate when it limited scope of request to records generated or made available to former President Bush, in his capacities as Director of CIA and Vice President, even though requester also sought records "`generated by or made available' to former President Bush `or members of his staff'"); Eagle Horse v. FBI, No. 92-2357, slip op. at 2 (D.D.C. July 28, 1995) ("Agencies are not, however, obliged by a FOIA request to embark on a quest for responsive documents wherever they might be found within a vast bureaucratic organization spread across the country such as the FBI.").

60. Steinberg v. United States Dep't of Justice, 548 F.3d 548, 552 (D.C. Cir. 1994) (remanding issue of adequacy of search where agency did not "describe in any detail" what records were searched, by whom, and through what process); see also, e.g., Payne v. Department of Justice, No. 96-30840, slip op. at 4-5 (5th Cir. July 11, 1997) (stating that agency affidavits detailing files and databases searched are adequate and finding plaintiff's arguments that agency may have acted to conceal records "unavailing"); Hunsberger v. FBI, No. 96-1841, 1997 WL 162989, at *1 (1st Cir. Mar. 14, 1997) (per curiam) (specifically determining that agency affidavit, because both detailed and nonconclusory, showed that reasonable search had been made); Smith v. United States, No. 95-1950, 1996 WL 696452, at *4 (E.D. La. Dec. 4, 1996) (holding that affidavits from persons who did not have personal knowledge of search conducted over three-year period, that did not describe information storage system, and that did not describe why all locations were not searched during particular time period were inadequate) (appeal pending); Sousa v. United States Dep't of Justice, No. 95-375, 1996 U.S. Dist. LEXIS 18627, at **31-33 (D.D.C. Dec. 9, 1996) (directing agency to amend affidavits to "provide a description of their filing system and an explanation of why only certain files were searched"); Russell v. CIA, No. 95-1234, 1996 U.S. Dist. LEXIS 6108, at *7 (D.D.C. May 3, 1996) (requiring agency to provide additional information further clarifying which indices were searched and which search terms were used); Katzman v. Freeh, 926 F. Supp. 316, 320 (E.D.N.Y. 1996) (holding search inadequate when agency's own affidavit suggested that it may have conducted search using wrong file number); Master v. FBI, 926 F. Supp. 193, 196-97 (D.D.C. 1996) (finding agency declaration that included description of records systems searched, explanation of how agency files are accessed, search results of manual and automated indices, and reasonable explanation of clerical error to establish adequacy of search), aff'd, No. 96-5325 (D.C. Cir. May 15, 1997).

61. Ethyl Corp., 25 F.3d at 1247-48 (citing agency failure to follow guidance published in FOIA Update, Fall 1984, at 3-4).

62. Newman v. Legal Servs. Corp., 628 F. Supp. 535, 543 (D.D.C. 1986); see also FOIA Update, Winter 1986, at 6.

63. See, e.g., Church of Scientology, 792 F.2d at 150 (stating that requesters must follow "the statutory command that requests be made in accordance with published rules"). But see Summers v. United States Dep't of Justice, 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that 28 U.S.C. 1746 (1994)--which requires that unsworn declarations be treated with "like force and effect" as sworn declarations--can be used in place of notarized-signature requirement of agency regulation for verification of FOIA privacy waivers).

64. 5 U.S.C. 552a (1994) (amended 1996, 5 U.S.C.A. 552a (West Supp. 1997)).

65. See FOIA Update, Winter 1986, at 6.

66. FOIA Update, Summer/Fall 1993, at 9; accord President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3; Attorney General Reno's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 4 (stressing "both the letter and the spirit" of FOIA); see also id. at 5 (follow-up Attorney General memorandum calling for "new spirit of government openness" and "new institutional attitude toward FOIA administration"); FOIA Update, Spring 1997, at 1 (urging continued commitment to "openness-in-government principles"); FOIA Update, Spring 1994, at 1 (emphasizing importance of "better and more efficient communications with FOIA requesters").

67. See Brumley, 767 F.2d at 445; see also McDonnell, 4 F.3d at 1237-38 (holding that person whose name does not appear on request does not have standing).

68. See, e.g., Lykins v. United States Dep't of Justice, 3 Gov't Disclosure Serv. (P-H) 83,092, at 83,637 (D.D.C. Feb. 28, 1983).

69. See 28 C.F.R. 16.10(e); see also Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,186.

70. See Irons v. FBI, 571 F. Supp. 1241, 1243 (D. Mass. 1983), rev'd on other grounds, 811 F.2d 681 (1987); see also Pollack, 49 F.3d at 120; Oglesby, 920 F.2d at 66.

71. See Trenerry v. IRS, No. 95-5150, 1996 WL 88459, at *2 (10th Cir. Mar. 1, 1996); Atkin v. EEOC, No. 92-3275, slip op. at 5 (D.N.J. June 24, 1993); Crooker v. United States Secret Serv., 577 F. Supp. 1218, 1219-20 (D.D.C. 1983); FOIA Update, Spring 1986, at 2; see also 5 U.S.C. 552(a)(4)(A)(v).

72. Strout v. United States Parole Comm'n, 842 F. Supp. 948, 951 (E.D. Mich.), aff'd, 40 F.3d 136 (6th Cir. 1994).

73. See 5 U.S.C. 552(a)(6)(A)(i); see also FOIA Update, Summer 1992, at 5 (advising that merely acknowledging request within statutory time period is simply insufficient); cf. Judicial Watch, 880 F. Supp. at 10 (rejecting requester's claim that response in less than 10 working days is evidence of "bad faith").

74. See 5 U.S.C.A. 552(a)(6)(A)(i) (West 1996 & Supp. 1997); see also FOIA Update, Fall 1996, at 2, 10 (discussing new time limit provisions).

75. See 5 U.S.C. 552(a)(6)(C); see also Larson v. IRS, No. 85-3076, slip op. at 2-3 (D.D.C. Dec. 11, 1985) (finding that the FOIA "does not require that the person requesting records be informed of the agency's decision within ten days, it only demands that the government make [and mail] its decision within that time."). But see Manos v. United States Dep't of the Air Force, No. C-92-3986, slip op. at 12 (N.D. Cal. Feb. 10, 1993) (holding, in exceptional decision, that mailing response within 10-day period not sufficient and that requester must actually receive response within 10-day period).

76. See 5 U.S.C.A. 552(a)(6)(B)(i) (West 1996 & Supp. 1997).

77. See id. 552(a)(6)(B)(ii); see, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 44,187.

78. 5 U.S.C.A. 552(a)(6)(B)(iii) (West 1996 & Supp. 1997).

79. See 5 U.S.C. 552(a)(6)(A)(ii).

80. See, e.g., Zuckerman v. FBI, No. 94-6315, slip op. at 8 (D.N.J. Dec. 6, 1995) (noting effects of resource limitations in compliance with statutory time limits); see also FOIA Update, Spring 1994, at 2; FOIA Update, Summer/Fall 1993, at 5, 8-9; FOIA Update, Spring 1992, at 8-10; FOIA Update, Winter 1990, at 1-2; cf. FOIA Update, Winter 1995, at 1-2 (promoting practice of making agency records "affirmatively" available to public, rather than providing them only in response to particular FOIA requests, in order to benefit overall process of FOIA administration).

81. Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976) (citing 5 U.S.C. 552(a)(6)(C)).

82. See 5 U.S.C.A. 552(a)(6)(D) (West 1996 & Supp. 1997); see, e.g.,

FOIA Update, Winter 1997, at 6 (discussing multitrack processing for agencies with decentralized FOIA operations); FOIA Update, Fall 1996, at 10 (discussing implementing regulations); see also Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187; cf. FOIA Update, Summer 1997, at 3-7 (advising agencies regarding reporting of multitrack-processing information in annual FOIA reports, beginning with annual report for fiscal year 1998).

83. Open America, 547 F.2d at 616 (D.C. Cir. 1976) (citing 5 U.S.C. 552(a)(6)(C) (1976)); see also Whitehurst v. FBI, No. 96-572, slip op. at 5 (D.D.C. Feb. 5, 1997) (finding that expedited process is warranted where plaintiff's allegations regarding FBI crime laboratory potentially impact upon other criminal matters, where more than three years have elapsed, and where the agency has failed to release numerous documents it has already received and cleared for release to others); Schweihs v. FBI, 933 F. Supp. 719, 723 (N.D. Ill. 1996) (finding "no legal precedent or statutory or regulatory authority for prioritizing FOIA applicants by age or health status"); Gilmore v. FBI, No. 93-2117, slip op. at 3 (N.D. Cal. July 27, 1994) (ordering that request for information concerning government's key encryption and digital telephony initiative be expedited because material sought will "become less valuable if the FBI processes . . . on a first in-first out basis"); FOIA Update, Summer 1983, at 3 ("OIP Guidance: When to Expedite FOIA Requests"); see also FOIA Update, Summer 1992, at 5 (emphasizing need to promptly determine whether to expedite processing of request); cf. Fox v. United States Dep't of Justice, No. 94-4622, slip op. at 9 (C.D. Cal. Dec. 16, 1994) (ruling that agency not required to disrupt its routine unless requester has shown strong justification for obtaining documents in expedited manner), appeal dismissed, No. 94-56788 (9th Cir. Feb. 21, 1995), cert. denied, 116 S. Ct. 58 (1995).

84. See e.g., Aguilera v. FBI, 941 F. Supp. 144, 152 (D.D.C. 1996) (finding that expedited processing warranted when plaintiff "demonstrated that he faces grave punishment, his reason to believe documents may assist in his defense has been corroborated by objective proof, his request is limited in scope, and the [state's] criminal discovery process is unavailable"); Exner v. FBI, 443 F. Supp. 1349, 1353 (S.D. Cal. 1978) (holding that plaintiff entitled to expedited access after leak of information exposed her to harm from organized crime figures), aff'd, 612 F.2d 1202 (9th Cir. 1980); Cleaver v. Kelley, 427 F. Supp. 80, 81 (D.D.C. 1976) (determining that exceptional circumstances existed when plaintiff faced multiple criminal charges carrying possible death penalty in state court). Compare Freeman v. United States Dep't of Justice, No. 92-557, slip op. at 6 (D.D.C. Oct. 2, 1992) (granting expedited treatment when requester "reasonably has demonstrated" that FOIA release may produce information from limited amount of records that will assist his defense of pending state criminal charges when discovery not available), with Freeman v. United States Dep't of Justice, No. 92-557, slip op. at 11-12 (D.D.C. June 28, 1993) (denying any further expedited treatment for requested "hand search of approximately 50,000 pages").

85. See, e.g., Ferguson v. FBI, 722 F. Supp. 1137, 1141-43 (S.D.N.Y. 1989) (noting that "due process interest must be substantial" and holding that plaintiff's request for information regarding his particular postconviction proceeding required expedition); see also Edmond v. United States Attorney, 959 F. Supp. 1, 6 (D.D.C. 1997) ("In the absence of some other urgency, Plaintiff cannot meet his burden by merely making a naked assertion that the Government is withholding Brady material in order to accelerate his FOIA processing.").

86. 5 U.S.C.A. 552(a)(6)(E) (West 1996 & Supp. 1997); see also FOIA Update, Fall 1996, at 10 (discussing new statutory provision).

87. 5 U.S.C.A. 552(a)(6)(E)(v) (West 1996 & Supp. 1997); see, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187.

88. See, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187.

89. See FOIA Update, Spring 1994, at 2 (discussing establishment of Department of Justice policy of expediting requests that involve both widespread media interest and possible questions about government's integrity which affect public confidence); see also Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187 (continuing policy).

90. Accord 5 U.S.C. 552(a)(6)(B)(iii).

91. See FOIA Update, Summer 1991, at 3-4 ("OIP Guidance: Referral and Consultation Procedures"); see also FOIA Update, Summer/Fall 1993, at 6-8 (Department of Justice memorandum specifying consultation process in which agency retains responsibility for responding to requester regarding White House-originated records or information located within scope of FOIA request that agency has received).

92. See FOIA Update, Summer 1991, at 3-4; FOIA Update, Summer 1983, at 5; see also Stone v. Defense Investigative Serv., No. 91-2013, slip op. at 2 (D.D.C. Feb. 24, 1992) (advising that agencies may refer responsive records to originating agencies in responding to FOIA requests), aff'd, 978 F.2d 744 (D.C. Cir. 1992) (unpublished table decision); Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,186.

93. See FOIA Update, Spring 1991, at 6. But see id. (warning agencies not to notify requesters of identities of other agencies to which record referrals are made, in any exceptional case in which so doing would reveal sensitive abstract fact about record's existence).

94. See, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187.

95. See, e.g., Williams v. FBI, No. 92-5176, slip op. at 2 (D.C. Cir. May 7, 1993) (illustrating that, in litigation, referring agency is nevertheless required to justify withholding of record that was referred to another agency); see also FOIA Update, Summer 1994, at 6 (advising on referrals of records to other agencies); cf. Grove v. Department of Justice, 802 F. Supp. 506, 518 (D.D.C. 1992) (declaring that agency may not use "`consultation' as its reason for a deletion, without asserting a valid exemption").

96. See FOIA Update, Summer 1994, at 6 (observing that requester should "receive her rightful place in line as of the date upon which her request was received", and advising likewise regarding "consultation" practices) (citing Freeman v. Department of Justice, 822 F. Supp. 1064, 1067 (S.D.N.Y. 1993)); cf. Williams v. United States, 932 F. Supp. 354, 357 & n.7 (D.D.C. 1996) (urging agency to set up "express lane" for referred records so as to not "tie up other agencies by taking an inordinate period of time to review referred records [and] unnecessarily inhibit the smooth functioning of the [other] agencies' well oiled FOIA processing systems").

97. Oglesby, 920 F.2d at 69; cf. Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292, 296 (D.D.C. 1997) (holding that FBI's offer to make "visicorder charts" available to requester for review at FBI Headquarters met FOIA requirements due to exceptional fact that charts could be damaged if photocopied) (appeal pending).

98. See FOIA Update, Spring 1991, at 5 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision"); accord President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3 ("[A]gencies should handle requests for information in a customer-friendly manner" and erect no "unnecessary bureaucratic hurdles.").

99. 5 U.S.C.A. 552(a)(2) (West 1996 & Supp. 1997); see FOIA Update, Fall 1996, at 1-2 (discussing maintenance of both conventional and "electronic" reading rooms under Electronic FOIA amendments).

100. See 5 U.S.C. 552(a)(3) (generally excluding "reading room" records from Act's regular "FOIA request" provisions). But see FOIA Update, Winter 1997, at 3 (advising that Congress made clear that new reading room category of FOIA-processed records would stand as exception to general rule and be subject to regular FOIA requests as well).

101. 5 U.S.C. 552(b) (sentence immediately following exemptions).

102. See, e.g., Davin v. United States Dep't of Justice, 60 F.3d 1043, 1052 (3d Cir. 1995) ("The statements regarding segregability are wholly conclusory, providing no information that would enable [plaintiff] to evaluate the FBI's decisions to withhold."); Patterson v. IRS, 56 F.3d 832, 840 (7th Cir. 1995) (finding agency certainly not entitled to withhold entire document if only "portions" contain exempt information); Krikorian v. Department of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (affirming general application of exemption but nevertheless remanding to district court for finding as to segregability); Schiller v. NLRB, 964 F.2d 1205, 1209-10 (D.C. Cir. 1992) (noting that agency's affidavit referred to withholding of "documents, not information," and remanding for specific finding as to segregability); Wightman v. ATF, 755 F.2d 979, 983 (1st Cir. 1985) (holding that detailed "process of segregation" is not unreasonable for request involving 36 document pages); Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir. 1970) (stating that "statutory scheme does not permit a bare claim of confidentiality to immunize agency [records] from scrutiny" in their entireties); Church of Scientology v. IRS, 816 F. Supp. 1138, 1162 (W.D. Tex. 1993) ("The burden is on the agency to prove the document cannot be segregated for partial release."), appeal dismissed per stipulation, No. 93-8431 (5th Cir. Oct. 21, 1993); Schreibman v. United States Dep't of Commerce, 785 F. Supp. 164, 166 (D.D.C. 1991) (holding that segregation required for computer vulnerability assessment withheld under Exemption 2); see also FOIA Update, Summer/Fall 1993, at 11-12 ("OIP Guidance: The `Reasonable Segregation' Obligation").

103. Neufeld v. IRS, 646 F.2d 661, 663 (D.C. Cir. 1981); see Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988); Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977); see also Yeager, 678 F.2d at 322 n.16 (concluding that it was appropriate to consider "intelligibility" of document and burden imposed by editing and segregation of nonexempt matters); Eagle Horse, No. 92-2357, slip op. at 5-6 (D.D.C. July 28, 1995) (finding that release of polygraph examination, while protecting structure, pattern, and sequence, not feasible without reducing product to "unintelligible gibberish").

104. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979); see also Doherty, 775 F.2d at 53 ("The fact that there may be some nonexempt matter in documents which are predominantly exempt does not require the district court to undertake the burdensome task of analyzing approximately 300 pages of documents, line-by-line."); Neufeld, 646 F.2d at 666 (holding that segregation not required when it "would impose significant costs on the agency and produce an edited document of little informational value"); Journal of Commerce v. United States Dep't of the Treasury, No. 86-1075, slip op. at 16 (D.D.C. Mar. 30, 1988) (finding that segregation was "neither useful, feasible nor desirable" when it would compel agency "to pour through [literally millions of pages of documents] to segregate nonexempt material [and] would impose an immense administrative burden . . . that would in the end produce little in the way of useful nonexempt material").

105. See Coalition for Alternatives in Nutrition & Healthcare v. FDA, No. 90-1025, slip op. at 3 (D.D.C. Jan. 4, 1991) (holding that release of requested documents in microfiche format, rather than paper, is disclosure in "reasonably accessible form"); National Sec. Archive v. CIA, No. 88-119, slip op. at 1-2 (D.D.C. July 26, 1988) (stating that agency was not required to provide requested records in "electronic data base" format when it already had provided paper copy in response to FOIA request), aff'd on mootness grounds, No. 88-5298 (D.C. Cir. Feb. 6, 1989); Dismukes v. Department of the Interior, 603 F. Supp. 760, 761-63 (D.D.C. 1984) (providing requested data in microfiche form, rather than "9 track, 1600 bpi, DOS or unlabeled, IBM Compatible formats, with file dumps and file layouts," held proper in light of fact that microfiche form preferred by most requesters as well as by agency); see also Department of Justice "Electronic Record" Report, reprinted in abridged form in FOIA Update, Fall 1990, at 3-6 (discussing "choice of format" issues regarding "electronic records"); cf. Cleary, Gottlieb, Steen & Hamilton v. HHS, 844 F. Supp. 770, 780 (D.D.C. 1993) (determining that agency not required to provide records to FOIA requester in "orderly indexed and tabbed format" as it had for congressional inquiry). But see DeLorme Publ'g Co. v. NOAA, 907 F. Supp. 10, 11 (D. Me. 1995) (notwithstanding agency disclosure of charts in paper form, conversion of that information into digitized format rendered digitized information subject to disclosure in that form), appeal dismissed per stipulation, No. 96-1601 (1st Cir. July 8, 1996).

106. 5 U.S.C.A. 552(a)(3)(B) (West 1996 & Supp. 1997); see FOIA Update, Fall 1996, at 2 (discussing statutory provisions).

107. See, e.g., Chamberlin, 957 F. Supp. at 296 ("The substantial expense of reproducing the visicorder charts, as well as the possibility that the visicorder charts might be damaged if photocopied, make the Government's proposed form of disclosure [i.e., inspection] even more compelling.").

108. See FOIA Update, Winter 1997, at 5 (discussing agency obligations to produce records in requested forms or formats) (citing H.R. Rep. No. 104-795, at 18, 21 (1996) (noting that amendments overrule Dismukes)).

109. Yeager, 678 F.2d at 321; see Long v. IRS, 596 F.2d 362, 364-65 (9th Cir. 1979); see also FOIA Update, Fall 1996, at 2; FOIA Update, Spring/Summer 1990, at 4 n.1.

110. Martin & Merrell, Inc. v. United States Customs Serv., 657 F. Supp. 733, 734 (S.D. Fla. 1986) (holding that "computer terminals for public reference" not required); cf. Mayo, 9 F.3d at 1451 (holding no "common law right" to access slip opinions in electronic format from Government Printing Office, an arm of Congress, as such opinions are readily available in another form).

111. See FOIA Update, Winter 1995, at 1-2 (promoting efficient agency disclosure through Internet and other electronic means); FOIA Update, Fall 1994, at 3 (proposed electronic record FOIA principles); see also FOIA Update, Summer 1997, at 1-2 (describing agency development of World Wide Web sites for FOIA purposes); FOIA Update, Winter 1996, at 1-2 (describing use of document imaging in automated FOIA processing).

112. See 5 U.S.C.A. 552(a)(6)(F) (West 1996 & Supp. 1997); Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,188; see also FOIA Update, Spring 1997, at 2 (discussing alternative methods of satisfying obligations to estimate volume of deleted or withheld information); FOIA Update, Fall 1996, at 10-11 (discussing new statutory provision).

113. 5 U.S.C.A. 552(b) (concluding sentences) (West 1996 & Supp. 1997); see, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,187-88; see also FOIA Update, Winter 1997, at 6 (discussing use of "electronic markings to show the locations of electronic record deletions"); FOIA Update, Fall 1996, at 10 (advising that new statutory obligation "also codifies the sound administrative practice of marking records to show all deletions when records are disclosed in conventional paper form").

114. Crooker v. CIA, No. 83-1426, slip op. at 3 (D.D.C. Sept. 28, 1984); see Judicial Watch, 880 F. Supp. at 11 (finding that agencies need not provide Vaughn Index until ordered by court after plaintiff has exhausted administrative process); Schaake v. IRS, No. 91-958, slip op. at 9-10 (S.D. Ill. June 3, 1991) (ruling that court "lacks jurisdiction" to require agency to provide Vaughn Index at either initial request or administrative appeal stages); SafeCard Servs. v. SEC, No. 84-3073, slip op. at 4-5 (D.D.C. Apr. 21, 1986) (noting that requester has no right to Vaughn Index during administrative process), aff'd on other grounds, 926 F.2d 1197 (D.C. Cir. 1991); see also FOIA Update, Summer 1986, at 6.

115. See 5 U.S.C.A. 552(a)(6)(A)(i), (a)(6)(C)(i) (West 1996 & Supp. 1997); see also Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989) (denying plaintiff's request for Vaughn Index at administrative level, but suggesting that even agency's own regulations require "more information than just the number of pages withheld and an unexplained citation to the exemptions"), rev'd & remanded on other grounds sub nom. Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991); Hudgins v. IRS, 620 F. Supp. 19, 20-21 (D.D.C. 1985) (suggesting that statements of appellate rights should be provided even when request was interpreted by agency as not reasonably describing records), aff'd, 808 F.2d 137 (D.C. Cir. 1987); see also FOIA Update, Fall 1985, at 6 (discussing significance of apprising requesters of their rights to file administrative appeals of adverse FOIA determinations); cf. Kay v. FCC, 884 F. Supp. 1, 2-3 (D.D.C. 1995) (upholding notification that appeals were to be filed with General Counsel even though Commission took final action on them).

116. See Oglesby, 920 F.2d at 67 (holding that "no record" response constitutes "adverse determination" and therefore requires notification of appeal rights under 5 U.S.C. 552(a)(6)(A)(i)); see also FOIA Update, Spring 1991, at 5 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision") (superseding FOIA Update, Summer 1984, at 2).

117. See 5 U.S.C.A. 552(a)(6)(A)(ii), (a)(6)(C)(i) (West 1996 & Supp. 1997).

118. See, e.g., Astley v. Lawson, No. 89-2806, slip op. at 5 (D.D.C. Jan. 11, 1991) (suggesting that agency "might have been more helpful" to requester by "explaining why the information he sought would not be provided"); see also FOIA Update, Spring 1994, at 1 (describing Department of Justice "FOIA Form Review" as example for other agencies to follow); accord Attorney General Reno's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 4-5 (same).

119. See, e.g., Judicial Watch, 880 F. Supp. at 10 (observing that although agency provided plaintiff with document created after date of request letter, agency not required to do so because date of request can serve as "cut-off" for further search obligations under FOIA); Church of Scientology, 816 F. Supp. at 1148 (holding that documents generated subsequent to date specified in request outside of scope of request and need not be disclosed).

120. See McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir.), vacated on other grounds on panel reh'g & reh'g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983); see, e.g., Revised Department of Justice FOIA Regulations, 62 Fed. Reg. at 45,186; see also FOIA Update, Fall 1983, at 14.

121. See McDonnell, 4 F.3d at 1261 n.21 (observing that FOIA requester should "receive the best possible reproductions of the documents to which he is entitled"); Grove, 802 F. Supp. at 519 (requiring that agency provide plaintiff with legible copies of releasable records or else state that no better copies exist); FOIA Update, Fall 1995, at 5 (advising of procedures for cases involving poor photocopies of records); cf. Chamberlain, 957 F. Supp. at 296 (holding that FBI's offer to make "visicorder charts" available to requester for review at FBI Headquarters met FOIA requirements due to exceptional fact that charts could be damaged if photocopied).

122. See 5 U.S.C. 552(a)(6)(C); see, e.g., Spannaus v. United States Dep't of Justice, 824 F.2d 52, 58 (D.C. Cir. 1987); Perdue Farms v. NLRB, 927 F. Supp. 897, 904 (E.D.N.C. 1996), vacated on other grounds, 108 F.3d 519 (4th Cir. 1997); see also Information Acquisition Corp. v. Department of Justice, 444 F. Supp. 458, 462 (D.D.C. 1978); FOIA Update, Jan. 1983, at 6 (superseded in part).

123. Oglesby, 920 F.2d at 61-65; accord Ruotolo, 53 F.3d at 9 (finding that plaintiff exhausted administrative remedies when agency did not include notification of right to administratively appeal its determination that request not reasonably described); Pollack, 49 F.3d at 119 (holding that constructive exhaustion provision does not relieve requester of statutory obligation to pay fees which agency is authorized to collect); Taylor v. Appleton, 30 F.3d 1365, 1370 (11th Cir. 1994) (stating that once party has waited for response from agency, actual exhaustion must occur before court has jurisdiction to review challenges); McDonnell, 4 F.3d at 1240 (upholding dismissal of claim as proper when plaintiff filed suit before filing administrative appeal of denial received after exhaustion of statutory response period); see also FOIA Update, Spring 1991, at 3-4 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision"). But see Mieras v. United States Forest Serv., No. 93-CV-74552, slip op. at 3 (E.D. Mich. Feb. 14, 1995) (holding although case moot on other grounds, misapplying D.C. Circuit rules on constructive exhaustion in declaring that plaintiff had not exhausted administrative remedies as he failed to file administrative appeal after agency response, even though he initiated lawsuit before agency response was made).

124. See 5 U.S.C. 552(a)(6)(C); see also FOIA Update, Fall 1988, at 5.

125. See Open America, 547 F.2d at 615-16; see also Gilmore v. NSA, No. 94-16165, 1995 U.S. App. LEXIS 38274, at **3-4 (9th Cir. Dec. 11, 1995) (noting that even after agency's recent internal review of its FOIA operations to identify and correct deficiencies resulted in staff increase and implementation of "first-in/first-out" procedure, court determined it "unlikely that [agency] could process requests more quickly given that it must undertake a painstaking review of voluminous sensitive documents before disclosing requested information"); Jimenez v. FBI, 938 F. Supp. 21, 31 (D.D.C. 1996) ("In view of [the agency's] two-track system and the large volume of documents expected to be responsive to plaintiff's request, the Court finds that [the agency] has met the due diligence requirements for a stay."); Gilmore v. United States Dep't of State, No. 95-1098, slip op. at 27 (N.D. Cal. Feb. 9, 1996) (finding that in addition to other factors, "the recent and prolonged government shutdown provides a sufficient showing of exceptional circumstances"). See generally Attorney General Reno's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 4-5; FOIA Update, Summer/Fall 1993, at 8-9 (discussing possible solutions to backlog problem); FOIA Update, Spring 1992, at 8-10 (discussing agency difficulties with FOIA time limits and administrative backlogs); FOIA Update, Winter 1990, at 1-2 (discussing effects of budgetary constraints upon agency FOIA operations). But see Hunter v. Christopher, 923 F. Supp. 5, 8 (D.D.C. 1996) (finding that amount of time agencies requested to process limited amount of material, notwithstanding backlog and queue, cannot be justified and recommending establishment of "express lines for a limited number of items"); Matlack, Inc. v. EPA, 868 F. Supp. 627, 633 (D. Del. 1994) (asserting that agency's response that it has a "`large docket of Freedom of Information Act appeals and [is] working as quickly as possible to resolve them,' without more, is simply insufficient to demonstrate `exceptional circumstances'").

126. 5 U.S.C.A. 552(a)(6)(C)(ii) (West 1996 & Supp. 1997); see also FOIA Update, Summer 1997, at 3-7 (advising agencies regarding reporting of backlog-related information in annual FOIA reports, beginning with annual report for fiscal year 1998).

127. 5 U.S.C.A. 552(a)(6)(C)(iii) (West 1996 & Supp. 1997); see also H.R. Rep. No. 104-795, at 24-25 (1996) (elaborating on circumstances).

128. See Matthews v. United States Postal Serv., No. 92-1208, slip op. at 4 n.3 (W.D. Mo. Apr. 14, 1994) (holding that computer hardware is not "record"); Nichols v. United States, 325 F. Supp. 130, 135-36 (D. Kan. 1971) (holding that archival exhibits consisting of guns, bullets, and clothing pertaining to assassination of President Kennedy were not "records"), aff'd on other grounds, 460 F.2d 671 (10th Cir. 1972); see also FOIA Update, Winter 1993, at 1 (discussing implementation of President John F. Kennedy Assassination Records Collection Act of 1992, 44 U.S.C. 2107 note (1994)).

129. See DiViaio v. Kelley, 571 F.2d 538, 542 (10th Cir. 1978) ("[R]eliance may be placed on the dictionary meaning . . . as that which is written or transcribed to perpetuate knowledge."); Nichols, 325 F. Supp. at 135 (stating that reliance "placed on a dictionary of respected ancestry [Webster's]").

130. 44 U.S.C. 3301 (1994).

131. See Forsham, 445 U.S. at 183 (treating "record" as including "`machine readable materials . . . regardless of physical form or characteristics'" (quoting Records Disposal Act)); see also New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (holding that audiotape of Challenger astronauts is "record" as "FOIA makes no distinction between information in lexical and . . . non-lexical form"); Save the Dolphins v. United States Dep't of Commerce, 404 F. Supp. 407, 410-11 (N.D. Cal. 1975) (finding that motion picture film is "record" for purposes of FOIA).

132. Cleary, 844 F. Supp. at 782 ("These [computer] programs preserve information and `perpetuate knowledge.'" (quoting DiViaio v. Kelley, 571 F.2d at 542)); see also FOIA Update, Fall 1994, at 4-5 (proposed electronic record FOIA principles); accord President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3 (final paragraph); Department of Justice "Electronic Record" Report, reprinted in abridged form in FOIA Update, Fall 1990, at 6-12 (discussing issue of "record" status of computer software).

133. 5 U.S.C.A. 552(f)(2) (West 1996 & Supp. 1997); see also FOIA Update, Fall 1996, at 2 (discussing statutory amendment).

134. See, e.g., Sears, 421 U.S. at 162 (holding that agency not required to produce explanatory materials); Goldgar, 26 F.3d at 35 (stating that agency not required to produce information sought by requester that simply does not exist in record form); Yeager, 678 F.2d at 321-23 (concluding that agency not obligated to restructure records for release); Krohn v. Department of Justice, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (finding that agency "cannot be compelled to create the [intermediary records] necessary to produce" the information sought); De Luca, 1996 U.S. Dist. LEXIS 2696, at *4 (determining that agency not required to produce records that did not exist at time of request); Bartlett v. United States Dep't of Justice, 867 F. Supp. 314, 316 (E.D. Pa. 1994) (ruling that agency not required to create handwriting analysis); Gabel v. Commissioner, 879 F. Supp. 1037, 1039 (N.D. Cal. 1994) ("The government's responsibility under FOIA is to release specified documents unless a FOIA exception covers the documents; it is not to revamp documents or generate exegeses so as to make them comprehensible to a particular requestor."); Cleary, 844 F. Supp. at 779 (holding that agency not required to recreate original database sought by requester); Matthews, No. 92-1208, slip op. at 4 n.3 (W.D. Mo. Apr. 14, 1994) (declaring that agency not required to create "photocopy" of computer hardware); see also FOIA Update, Winter 1984, at 5. But see McDonnell, 4 F.3d at 1261 n.21 (suggesting, in dictum, that agency might be compelled to create translation of any disclosable encoded information); Jones v. OSHA, No. 94-3225, slip op. at 6 (W.D. Mo. June 6, 1995) (stating that agency must "retype," not withhold in full, documents required to be released by its own regulation, in order to delete FOIA-exempt information); FOIA Update, Winter 1997, at 5-6 (advising of new statutory obligations regarding electronic record searches and format of disclosure); cf. International Diatomite Producers, No. 92-1634, slip op. at 13-14 (N.D. Cal. Apr. 28, 1993) (giving agency choice of compiling responsive list or redacting existing lists containing responsive information).

135. See, e.g., Zemansky, 767 F.2d at 574; DiViaio, 571 F.2d at 542-43; Carnessale v. Reno, No. 95-0279, slip op. at 2 (C.D. Cal. May 2, 1995) (finding that request not proper under FOIA where it seeks answers to "a series of legal questions, some of them amounting to the rendition of a legal opinion"); Gillin v. Department of the Army, No. 92-325, slip op. at 10 (D.N.H. May 28, 1993) ("FOIA creates only a right of access to records, not a right to require an agency to disclose its collective reasoning behind agency actions, nor does FOIA provide a mechanism to challenge the wisdom of substantive agency decisions."); Patton v. United States R.R. Retirement Bd., No. ST-C-91-04-MU, slip op. at 3 (W.D.N.C. Apr. 26, 1991) (stating that the FOIA "provides a means for access to existing documents and is not a way to interrogate an agency"), aff'd, 940 F.2d 652 (4th Cir. 1991) (unpublished table decision); Hudgins, 620 F. Supp. at 21 (The "FOIA creates only a right of access to records, not a right to personal services."); see also FOIA Update, Winter 1984, at 5.

136. Julian v. United States Dep't of Justice, 806 F.2d 1411, 1419 n.7 (9th Cir. 1986), aff'd, 486 U.S. 1 (1988); Berry v. Department of Justice, 733 F.2d 1343, 1355 n.19 (9th Cir. 1984); see also Seawell, Dalton, Hughes & Timms v. Export-Import Bank, No. 84-241-N, slip op. at 2 (E.D. Va. July 27, 1984) (stating that there is no "middle ground between disclosure and nondisclosure").

137. Schiffer v. FBI, 78 F.3d 1405, 1410 (9th Cir. 1996) (reversing district court's conditional disclosure order).

138. See Mandel Grunfeld & Herrick v. United States Customs Serv., 709 F.2d 41, 43 (11th Cir. 1983) (determining that plaintiff not entitled to automatic mailing of materials as they are updated); Howard v. Secretary of the Air Force, No. SA-89-CA-1008, slip op. at 6 (W.D. Tex. Oct. 2, 1991) (concluding that plaintiff's request for records on continuing basis would "create an enormous burden, both in time and taxpayers' money"); see also FOIA Update, Spring 1985, at 6.

139. See, e.g., Tuchinsky v. Selective Serv. Sys., 418 F.2d 155, 158 (7th Cir. 1969) (ordering that no automatic release required of material relating to occupational deferments until request in hand; "otherwise, [agency] would be required to `run . . . loose-leaf service' for every draft counsellor in the country"); Lybarger v. Cardwell, 438 F. Supp. 1075, 1077 (D. Mass. 1977) (holding that "open-ended procedure" advanced by requester whereby records automatically disclosed not required by FOIA and "will not be forced" upon agency); cf. FOIA Update, Winter 1995, at 1 (citing OMB Federal Information Resources Management (Circular A-130), 59 Fed. Reg. 37,905 (1994) (prescribing policies to encourage agencies to affirmatively disseminate government information independent of FOIA context)).

140. See, e.g., Schwarz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S. App. LEXIS 4609, at **2-3 (D.C. Cir. Feb. 22, 1996) (per curiam); Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993) (per curiam); Wren v. Harris, 675 F.2d 1144, 1147 (10th Cir. 1982) (per curiam); Bologna v. Department of the Treasury, No. 93-1495, slip op. at 9 (D.N.J. Mar. 29, 1994); Papich v. United States Parole Comm'n, No. 92-790, slip op. at 1 (D.D.C. June 23, 1993); Daniels v. St. Louis VA Reg'l Office, 561 F. Supp. 250, 252 (E.D. Mo. 1983); Diamond v. FBI, 532 F. Supp. 216, 233 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983); King v. Califano, 471 F. Supp. 180, 182 (D.D.C. 1979).

141. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 151-55 (1980); cf. Spannaus, 942 F. Supp. at 658 (finding that "personal files" of attorney no longer employed with agency were "beyond the reach of FOIA" if they were not turned over to agency at end of employment).

142. See, e.g., Jones, 41 F.3d at 249. But see Cal-Almond, Inc. v. USDA, No. 89-574, slip op. at 3-4 (E.D. Cal. Mar. 17, 1993) (ordering agency to reacquire records which were returned mistakenly to submitter upon closing of administrative appeal), appeal dismissed per stipulation, No. 93-16727 (9th Cir. Oct. 26, 1994).

143. See Schwarz, 1996 U.S. App. LEXIS 4609, at **2-3. But see FOIA Update, Winter 1997, at 3 (advising that Congress made clear that new reading room category of FOIA-processed records would stand as exception to general rule and be subject to regular FOIA requests as well); FOIA Update, Winter 1995, at 2 (reminding that "an agency cannot convert a subsection (a)(3) record into a subsection (a)(2) record . . . just by voluntarily placing it into its reading room").

144. See Forsham v. Harris, 445 U.S. at 182-86 (data generated and held by federal grantee); Rush Franklin, No. 90-CV-2855, slip op. at 9-10 (E.D.N.Y. Apr. 13, 1993) (mailing list generated and held by federal contractor); Conservation Law Found. v. Department of the Air Force, No. 85-4377, slip op. at 8 (D. Mass. June 6, 1986) (computer program generated and held by federal contractor); cf. United States v. Napper, 887 F.2d 1528, 1530 (11th Cir. 1989) (stating that FBI entitled to return of documents loaned to city law enforcement officials, notwithstanding fact that copies of some documents had been disclosed) (non-FOIA case). But see Cal-Almond, No. 89-574, slip op. at 3-4 (E.D. Cal. Mar. 17, 1993) (ordering agency to reacquire records that mistakenly were returned to submitter upon closing of administrative appeal).

145. See, e.g., Niagara Mohawk Power Corp. v. United States Dep't of Energy, No. 95-0952, transcript at 10 (D.D.C. Feb. 23, 1996) (bench order) (admonishing that FOIA is not to be used to force agency to obtain information from another agency) (appeal pending); Gillin, No. 92-325, slip op. at 5 (D.N.H. May 28, 1993) ("request focused primarily upon the decisions made by the [agency] in granting [administrative permit], rather than the documentation upon which the [agency] relied").

146. D'Aleo v. Department of the Navy, No. 89-2347, slip op. at 3 (D.D.C. Mar. 21, 1991) (allowing decedent's executrix to be substituted as plaintiff). But see Hayles v. United States Dep't of Justice, No. H-79-1599, slip op. at 3 (S.D. Tex. Nov. 2, 1982) (dismissing case upon death of plaintiff when no timely motion for substitution filed).

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