FOIA Guide, 2004 Edition: Introduction

Freedom of Information Act Guide, May 2004

Introduction

The Freedom of Information Act ⁽¹⁾ generally provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

Enacted in 1966, and taking effect on July 4, 1967, the FOIA firmly established an effective statutory right of public access to executive branch information in the federal government. The principles of government openness and accountability underlying the FOIA, however, are inherent in the democratic ideal: "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." ⁽²⁾ The United States Supreme Court has emphasized that only "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." ⁽³⁾

To be sure, achieving an informed citizenry is a goal often counterpoised against other vital societal aims. Society's strong interest in an open government can conflict with other important interests of the general public -- such as the public's interests in the effective and efficient operations of government; in the prudent governmental use of limited fiscal resources; and in the preservation of the confidentiality of sensitive personal, commercial, and governmental information. ⁽⁴⁾ Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable scheme that encompasses, balances, and appropriately protects all interests, while placing primary emphasis on the most responsible disclosure possible. ⁽⁵⁾ It is this accommodation of strongly countervailing public concerns, with disclosure as the animating objective, that the FOIA seeks to achieve.

The FOIA evolved after a decade of debate among agency officials, legislators, and public interest group representatives. ⁽⁶⁾ It revised the public disclosure section of the Administrative Procedure Act, ⁽⁷⁾ which generally had been recognized as "falling far short" of its disclosure goals ⁽⁸⁾ and had come to be looked upon as more a withholding statute than a disclosure statute. ⁽⁹⁾

By contrast, under the thrust and structure of the FOIA, virtually every record possessed by a federal executive branch agency must be made available to the public in one form or another, unless it is specifically exempted from disclosure or specially excluded from the Act's coverage in the first place. ⁽¹⁰⁾ The nine exemptions of the FOIA ordinarily provide the only bases for nondisclosure, ⁽¹¹⁾ and generally they are discretionary, not mandatory, in nature. ⁽¹²⁾ (For a discussion of the discretionary nature of FOIA exemptions, see Discretionary Disclosure and Waiver, below.) Dissatisfied record requesters are given a relatively speedy remedy in the United States district courts, where judges determine the propriety of agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions. ⁽¹³⁾

The FOIA contains seven subsections, the first two of which establish certain categories of information that must "automatically" be disclosed by federal agencies. ⁽¹⁴⁾ Subsection (a)(1) of the FOIA ⁽¹⁵⁾ requires disclosure (through publication in the Federal Register) of information such as descriptions of agency organizations, functions, and procedures; substantive agency rules; and statements of general agency policy. ⁽¹⁶⁾ This requirement provides the public with automatic access to very basic information regarding the transaction of agency business. ⁽¹⁷⁾

Subsection (a)(2) of the FOIA ⁽¹⁸⁾ requires that certain types of records -- final agency opinions and orders rendered in the adjudication of cases, specific policy statements, certain administrative staff manuals, and some records previously processed for disclosure under the Act ⁽¹⁹⁾ -- be routinely made "available for public inspection and copying." ⁽²⁰⁾ This is commonly referred to as the "reading room" provision of the FOIA, ⁽²¹⁾ and it requires that some such records be made available by agencies in "electronic reading rooms" as well. ⁽²²⁾ (For a discussion of the operation of this FOIA subsection, see FOIA Reading Rooms, below.)

The courts have held that providing official notice and guidance to the general public is the fundamental purpose of the publication requirement of subsection (a)(1) and the "reading room" availability requirement of subsection (a)(2). ⁽²³⁾ Failure to comply with the requirements of either subsection can result in invalidation of related agency action, ⁽²⁴⁾ unless the complaining party had actual and timely notice of the unpublished agency policy, ⁽²⁵⁾ unless he is unable to show that he was adversely affected by the lack of publication, ⁽²⁶⁾ or unless he fails to show that he would have been able to pursue "an alternative course of conduct" had the information been published. ⁽²⁷⁾ However, unpublished interpretive guidelines that were available for copying and inspection in an agency program manual have been held not to violate subsection (a)(1), ⁽²⁸⁾ and it also has been held that regulations pertaining solely to internal personnel matters that do not affect members of the public need not be published. ⁽²⁹⁾ Of course, an agency is not required to publish substantive rules and policy statements of general applicability that it has not adopted. ⁽³⁰⁾

Under subsection (a)(3) of the FOIA -- by far the most commonly utilized part of the Act -- all records not made available to the public under subsections (a)(1) or (a)(2), or exempted from mandatory disclosure under subsection (b), or excluded under subsection (c), are subject to disclosure upon an agency's receipt of a proper FOIA request from any person. ⁽³¹⁾ (See the discussions of the procedural aspects of subsection (a)(3) (including fees and fee waivers), the exemptions of subsection (b), and the exclusions of subsection (c), below.)

Subsection (c) of the FOIA, ⁽³²⁾ which was added as part of the Freedom of Information Reform Act of 1986, ⁽³³⁾ establishes three special categories of law enforcement-related records that are entirely excluded from the coverage of the FOIA in order to safeguard against unique types of harm. ⁽³⁴⁾ The extraordinary protection embodied in subsection (c) permits an agency to respond to a request for such records as if the records in fact did not exist. ⁽³⁵⁾ (See the discussion of the operation of these special provisions under Exclusions, below.)

Subsection (d) of the FOIA ⁽³⁶⁾ makes clear that the Act was not intended to authorize any new withholding of information, including from Congress. While individual Members of Congress possess merely the same rights of access as those guaranteed to "any person" under subsection (a)(3), ⁽³⁷⁾ Congress as a body (or through its committees and subcommittees) cannot be denied access to information on the grounds of FOIA exemptions. ⁽³⁸⁾

Subsection (e) of the FOIA, ⁽³⁹⁾ which was modified as part of the Electronic Freedom of Information Act Amendments of 1996, ⁽⁴⁰⁾ requires an annual report from each federal agency regarding its FOIA operations and an annual report from the Department of Justice to Congress regarding both FOIA litigation and the Department of Justice's efforts (primarily through the Office of Information and Privacy) to encourage agency compliance with the FOIA. ⁽⁴¹⁾ Agencies now prepare their annual reports for submission to the Department of Justice, ⁽⁴²⁾ which reviews them for completeness ⁽⁴³⁾ and then makes them available to the public, in a consolidated compilation, at a single World Wide Web site. ⁽⁴⁴⁾ Each agency also must make its annual FOIA report readily available on its own FOIA Web site, ⁽⁴⁵⁾ and it should do so promptly in order to facilitate the Department of Justice's preparation of a summary compilation of all agencies' aggregate annual report data for each fiscal year. ⁽⁴⁶⁾

Subsection (f) of the FOIA ⁽⁴⁷⁾ defines the term "agency" so as to subject the records of nearly all executive branch entities to the Act and defines the term "record" to include information maintained in an electronic format. (See the discussions of these terms under Procedural Requirements, Entities Subject to the FOIA, below, and Procedural Requirements, "Agency Records," below.) Lastly, subsection (g) of the FOIA ⁽⁴⁸⁾ requires agencies to prepare FOIA reference guides describing their information systems and their processes of FOIA administration, as an aid to potential FOIA requesters. ⁽⁴⁹⁾

As originally enacted in 1966, the FOIA contained, in the views of many, several weaknesses that detracted from its ideal operation. In response, the courts fashioned certain procedural devices, such as the requirement of a "Vaughn Index" -- a detailed index of withheld documents and the justification for their exemption, established in Vaughn v. Rosen ⁽⁵⁰⁾ -- and the requirement that agencies release segregable nonexempt portions of a partially exempt record, which was first articulated in EPA v. Mink. ⁽⁵¹⁾

In an effort to further extend the FOIA's disclosure requirements, and also as a reaction to the abuses of the "Watergate era," ⁽⁵²⁾ the FOIA was substantially amended in 1974. ⁽⁵³⁾ The 1974 FOIA amendments considerably narrowed the overall scope of the Act's law enforcement and national security exemptions, and also broadened many of its procedural provisions -- such as those relating to fees, time limits, segregability, and in camera inspection by the courts. ⁽⁵⁴⁾ At the same time, Congress enacted the Privacy Act of 1974, ⁽⁵⁵⁾ which supplements the FOIA when requests are made by individuals for access to records about themselves ⁽⁵⁶⁾ and also contains a variety of separate privacy protections. ⁽⁵⁷⁾ (For an extensive discussion of the Privacy Act's provisions, see the Department of Justice's "Overview of the Privacy Act of 1974.")

In 1976, Congress again limited what could be withheld as exempt from disclosure under the FOIA, this time by narrowing the Act's incorporation of the nondisclosure provisions of other statutes. ⁽⁵⁸⁾ (See the discussion of Exemption 3, below.) A technical change was made in 1978 to update the FOIA's provision for administrative disciplinary proceedings, ⁽⁵⁹⁾ and in 1984 Congress repealed the expedited judicial review provision previously contained in former subsection (a)(4)(D) of the Act, replacing it with a more general statutory provision that allows courts to expedite a FOIA lawsuit only if "good cause therefor is shown." ⁽⁶⁰⁾

In 1986, after many years of administrative experience with the FOIA demonstrated that the Act was in need of both substantive and procedural reform, ⁽⁶¹⁾ Congress enacted the Freedom of Information Reform Act of 1986, ⁽⁶²⁾ which amended the FOIA to provide broader exemption protection for law enforcement information, plus special law enforcement record exclusions, and also created a new fee and fee waiver structure. ⁽⁶³⁾ The Department of Justice and other federal agencies took several steps to implement the provisions of the 1986 FOIA amendments. ⁽⁶⁴⁾

In 1996, after several years of legislative consideration of "electronic record" issues, ⁽⁶⁵⁾ Congress enacted the Electronic Freedom of Information Act Amendments of 1996, ⁽⁶⁶⁾ which addressed the subject of electronic records, as well as the subject areas of FOIA reading rooms and agency backlogs of FOIA requests, among other procedural provisions. ⁽⁶⁷⁾ (See the discussions of the various provisions of the Electronic FOIA amendments under FOIA Reading Rooms, Procedural Requirements, Fees and Fee Waivers, and Litigation Considerations, below.) The Department of Justice and other federal agencies have taken a number of steps to implement the provisions of the Electronic FOIA amendments. ⁽⁶⁸⁾

A more recent significant Freedom of Information Act development was the issuance in October 2001 of a statement of FOIA policy by Attorney General John Ashcroft. ⁽⁶⁹⁾ The Ashcroft FOIA Memorandum emphasizes the Bush Administration's commitment to full compliance with the FOIA as an important means of maintaining an open and accountable system of government. ⁽⁷⁰⁾ At the same time, it recognizes the importance of protecting the sensitive institutional, commercial, and personal interests that can be implicated in government records -- such as the need to safeguard national security, to enhance law enforcement effectiveness, to respect business confidentiality, to protect internal agency deliberations, and to preserve personal privacy. ⁽⁷¹⁾

The Ashcroft FOIA Memorandum establishes a "sound legal basis" standard governing the Department of Justice's decisions on whether to defend agency actions under the FOIA when they are challenged in court. ⁽⁷²⁾ Under this newer standard, agencies should reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information. ⁽⁷³⁾ The Ashcroft FOIA Memorandum also recognizes the continued agency practice of considering whether to make "discretionary disclosures" of information that is exempt under the Act, upon "full and deliberate consideration" of all interests involved. ⁽⁷⁴⁾ While it places particular emphasis on the right to privacy among the other interests that are protected by the Act's exemptions, ⁽⁷⁵⁾ it reminds agencies "to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA." ⁽⁷⁶⁾

Most recently, the FOIA was amended by the Intelligence Authorization Act of 2003, effective as of November 27, 2002. ⁽⁷⁷⁾ The FOIA now contains language that precludes agencies of the "intelligence community" ⁽⁷⁸⁾ from disclosing records in response to any FOIA request that is made by any foreign government or international governmental organization, either directly or through a representative. ⁽⁷⁹⁾ Significantly, this is the first time that Congress has departed from the general rule that "any person" may submit a FOIA request. ⁽⁸⁰⁾ It is perhaps part and parcel of heightened concerns about national security and now also homeland security in the wake of the horrific attacks of September 11, 2001, and the growth of both worldwide and domestic terrorism. ⁽⁸¹⁾ (See the discussions of these concerns under Exemption 1, Homeland Security-Related Information, below, and Exemption 2, Homeland Security-Related Information, below.)

 

In sum, the FOIA is a vital and continuously developing government disclosure mechanism which, with refinements over time to accommodate both technological advancements and society's maturing interests in an open and fully responsible government, truly enhances our democratic way of life. ⁽⁸²⁾

¹ 5 U.S.C.A. § 552 (1996 & West Supp. 2004).

²NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also NARA v. Favish, 124 S. Ct. 1570, 1580 (2004) (emphasizing that the FOIA's underlying purpose of allowing "citizens to know 'what the government is up to'" is "a structural necessity in a real democracy" (quoting United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989))), reh'g denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004).

³Reporters Comm., 489 U.S. at 773.

⁴See Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01) (emphasizing the public interest in protecting fundamental societal values, "[a]mong [which] are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy").

⁵See S. Rep. No. 89-813, at 3 (1965) (stating the FOIA's statutory objective as that of achieving "the fullest responsible disclosure"); see also Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 30 (Dec. 1987) [hereinafter Attorney General's 1986 Amendments Memorandum] (same) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979)); cf. 5 U.S.C. § 552b note (2000) (policy statement enacted as part of the Government in the Sunshine Act specifying that it is "the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government").

⁶See 112 Cong. Rec. H13641 (daily ed. June 20, 1966) (statement of Rep. John Moss describing protracted legislative efforts, including decade of hearings, required to develop and achieve enactment of FOIA).

⁷ 5 U.S.C. § 1002 (1964) (amended in 1966 and now codified at 5 U.S.C.A. § 552).

⁸EPA v. Mink, 410 U.S. 73, 79 (1973).

⁹See S. Rep. No. 89-813, at 5 (1965).

¹⁰See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).

¹¹See 5 U.S.C. § 552(d).

¹²See Chrysler Corp., 441 U.S. at 293; see also, e.g., FOIA Update, Vol. VI, No. 3, at 3 ("OIP Guidance: Discretionary Disclosure and Exemption 4").

¹³See 5 U.S.C. § 552(a)(4)(B)-(C); see also FOIA Update, Vol. VI, No. 2, at 6 (discussing provision of Federal Courts Improvement Act of 1984, 28 U.S.C. § 1657 (2000), which requires that any civil action, including FOIA cases, be expedited "if good cause therefor is shown").

¹⁴See FOIA Update, Vol. XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)").

¹⁵ 5 U.S.C. § 552(a)(1).

¹⁶See, e.g., Splane v. West, 216 F.3d 1058, 1065 (Fed. Cir. 2000); Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156, 168 (D.C. Cir. 1997); Hughes v. United States, 953 F.2d 531, 539 (9th Cir. 1992); NI Indus., Inc. v. United States, 841 F.2d 1104, 1107 (Fed. Cir. 1988); Bright v. INS, 837 F.2d 1330, 1331 (5th Cir. 1988); Cathedral Candle Co. v. United States Int'l Trade Comm'n, 285 F. Supp. 2d 1371, 1378 n.10 (Ct. Int'l Trade 2003) (dicta); see also DiCarlo v. Comm'r, T.C. Memo 1992-280, slip op. at 9-10 (May 14, 1992) (holding that publication in United States Government Manual, special edition of Federal Register, satisfies publication requirement of subsection (a)(1)(A) (citing 1 C.F.R. § 9 (1991))).

¹⁷See FOIA Update, Vol. XIII, No. 3, at 3-4 (advising agencies to meet their subsection (a)(1) responsibilities on no less than quarterly basis).

¹⁸ 5 U.S.C. § 552(a)(2).

¹⁹See id. § 552(a)(2)(A)-(D); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03).

²⁰ 5 U.S.C. § 552(a)(2). But see Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979) (acknowledging that portions of subsection (a)(2) records may nevertheless be protected by FOIA exemptions).

²¹See FOIA Update, Vol. XIII, No. 3, at 4; see also FOIA Update, Vol. XIX, No. 1, at 3-4; FOIA Update, Vol. XVIII, No. 1, at 3-5.

²²See FOIA Update, Vol. XVII, No. 4, at 1-2 (discussing provisions of Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048); see also FOIA Update, Vol. XIX, No. 3, at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing early agency development of World Wide Web sites for "electronic reading room" purposes). See generally FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (discussing need for agencies to devote further attention to compliance with FOIA's electronic availability obligations); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (reminding agencies to take all steps necessary to both attain and maintain full compliance with their electronic availability obligations through their FOIA Web sites).

²³See, e.g., Welch v. United States, 750 F.2d 1101, 1111 (1st Cir. 1985).

²⁴See, e.g., Kennecott Utah Copper Corp. v. United States Dep't of the Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996) ("Congress has provided [a] means for encouraging agencies to fulfill their obligation to publish materials in the Federal Register" by "protect[ing] a person from being adversely affected" by an unpublished regulation.); Checkosky v. SEC, 23 F.3d 452, 459, 482 (D.C. Cir. 1994) (per curiam) (finding that SEC cannot rely on unpublished opinion as precedent) (Silberman & Randolph, JJ., filing separate opinions); NI Indus., 841 F.2d at 1108 (holding that agency could not rely on unpublished policy pertaining to its "value engineering change program" to deny contractor its share of savings from that program); D&W Food Ctrs. v. Block, 786 F.2d 751, 757-58 (6th Cir. 1986) (ruling that agency's interpretation of statute requiring certain businesses to be continuously inspected could not be enforced against noncomplying parties because it was not published); Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir. 1977) (holding HUD instruction describing what must be treated as income for food stamp purposes void for failure to publish in Federal Register); Lewis v. Weinberger, 415 F. Supp. 652, 661 (D.N.M. 1976) (finding that an agency's policy regarding eligibility for an Indian Health Service program "has no effect for lack of publication in the Federal Register"); see also Tex. Health Care Ass'n v. Bowen, 710 F. Supp. 1109, 1113-14, 1116 (W.D. Tex. 1989) (enjoining agency from enforcing criteria established to implement Medicaid law, because criteria were not published and offered for comment).

²⁵See, e.g., Splane, 216 F.3d at 1065 (finding it unnecessary to decide whether publishing only summary of agency opinion violated subsection (a)(1), because plaintiff had actual notice of entire opinion); United States v. F/V Alice Amanda, 987 F.2d 1078, 1084-85 (4th Cir. 1993) (denying statutory defense of subsection (a)(1) when defendant had copy of unpublished regulations); United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (finding that the IRS's failure to publish tax forms did not preclude the defendants' convictions for income tax evasion, as the defendants had notice of their duty to pay those taxes, that duty was "manifest on the face" of statutes, a listing of places where forms can be obtained is published in Code of Federal Regulations, and those defendants had filed tax returns before); Lonsdale v. United States, 919 F.2d 1440, 1447 (10th Cir. 1990); Tearney v. NTSB, 868 F.2d 1451, 1454 (5th Cir. 1989); Bright, 837 F.2d at 1331; Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1018 (9th Cir. 1987); Sierra Club N. Star Chapter v. Peña, 1 F. Supp. 2d 971, 980 (D. Minn. 1998) (holding organization subject to unpublished agency interpretation when it was "repeatedly informed" of agency's position); see also United States v. $200,000 in United States Currency, 590 F. Supp. 866, 874-75 (S.D. Fla. 1984) (alternative holding) (determining that published regulations adequately apprised individuals of obligation to use unpublished reporting form).

²⁶See, e.g., Splane, 216 F.3d at 1065; Lake Mohave Boat Owners Ass'n v. Nat'l Park Serv., 78 F.3d 1360, 1368 (9th Cir. 1996); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1136 (D.C. Cir. 1994); Bowers, 920 F.2d at 222; Sheppard v. Sullivan, 906 F.2d 756, 762 (D.C. Cir. 1990); Nguyen v. United States, 824 F.2d 697, 702 (9th Cir. 1987); Coos-Curry Elec. Coop., Inc. v. Jura, 821 F.2d 1341, 1347 (9th Cir. 1987).

²⁷Alliance for Cannabis Therapeutics, 15 F.3d at 1136 (citing Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984)).

²⁸See McKenzie v. Bowen, 787 F.2d 1216, 1222-23 (8th Cir. 1986); see also Lake Mohave Boat Owners, 78 F.3d at 1368 (finding rate-setting guidelines to be "an agency staff manual governed by § 552(a)(2)," requiring only public availability, not Federal Register publication under subsection (a)(1)); Capuano v. NTSB, 843 F.2d 56, 57-58 (1st Cir. 1988); Pagan-Astacio v. Dep't of Educ., No. 93-2173, slip op. at 9 (D.P.R. June 1, 1995) (determining that agency need not publish directory explaining existing regulation when it publishes Federal Register notice explaining where directory is available), aff'd, 81 F.3d 147 (1st Cir. 1996) (unpublished table decision); Medics, Inc. v. Sullivan, 766 F. Supp. 47, 52-53 (D.P.R. 1991); Sturm v. James, 684 F. Supp. 1218, 1223 n.6 (S.D.N.Y. 1988).

²⁹See Hamlet v. United States, 63 F.3d 1097, 1103 (Fed. Cir. 1995) (holding that publication is not required for personnel manuals "related solely to the [agency's] internal personnel rules and practices"); Pruner v. Dep't of the Army, 755 F. Supp. 362, 365 (D. Kan. 1991) (holding that Army regulation governing procedures for applications for conscientious objector status concerned internal personnel matters and were not required to be published); see also Dilley v. NTSB, 49 F.3d 667, 669-70 (10th Cir. 1995) (holding that publication of policy regarding FAA's authority to suspend pilot certificates is not required when statute clearly grants agency broad disciplinary powers); Lonsdale, 919 F.2d at 1446-47 (holding that FOIA does not require publication of Treasury Department orders that internally delegate authority to enforce internal agency revenue laws); cf. Smith v. NTSB, 981 F.2d 1326, 1328-29 (D.C. Cir. 1993) (holding that unpublished policy bulletin regarding sanctions was not valid basis for suspension of license because sanctions policy affects public by altering public's behavior).

³⁰See 5 U.S.C. § 552(a)(1) (2000); see, e.g., Xin-Chang Zhang v. Slattery, 55 F.3d 732, 749 (2d Cir. 1995) (reversing a district court's order that had required the agency to give effect to an unpublished rule based upon the lower court's finding that the plaintiff had been adversely affected by lack of publication, because the rule actually was to be effective only on the date of its publication and "[b]y its own terms, the [r]ule never became effective"); Clarry v. United States, 891 F. Supp. 105, 110-11 (E.D.N.Y. 1995) (stating that failure to publish notice of ban for reemployment of strikers did not violate FOIA's notice requirement when rule was not "formulated and adopted" by agency but was authorized by presidential directive and by statute); Peng-Fei Si v. Slattery, 864 F. Supp. 397, 405 (S.D.N.Y. 1994) ("The FOIA cannot be used to force an agency to adopt a new regulation that it withdrew from publication for the specific purpose of determining whether or not it should be adopted."); Xiu Qin Chen v. Slattery, 862 F. Supp. 814, 822 (E.D.N.Y. 1994) ("[A]n agency cannot be bound by [an un]published rule in a situation in which the agency never actually adopted the rule."); cf. Kennecott, 88 F.3d at 1202-03 (finding that FOIA does not authorize district court to order publication of regulation that was withdrawn by new Administration before it could be published).

³¹See 5 U.S.C. § 552(a)(3)(A) (stating that FOIA requests under subsection (a)(3) cannot be made for any records "made available" under subsections (a)(1) or (a)(2)); see also FOIA Update, Vol. XVI, No. 1, at 2; FOIA Update, Vol. XIII, No. 3, at 4; FOIA Update, Vol. XII, No. 2, at 5. But see FOIA Update, Vol. XVIII, No. 1, at 3 (advising that while ordinary rule is that records placed in reading room under subsection (a)(2) cannot be subject of regular FOIA request, Congress made clear that this rule does not apply to subsection (a)(2)(D) category of FOIA-processed records (citing H.R. Rep. No. 104-795, at 21 (1996))); see also FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted 12/23/02) (describing second exception, applicable to intelligence agencies only); cf. FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted 8/30/02; supplemented 9/23/02) (describing how the National Technical Information Service "occupies a special status" with respect to making records available to the public, pursuant to a provision of the 1986 FOIA amendments, 5 U.S.C. § 552(a)(4)(A)(vi)).

³² 5 U.S.C. § 552(c).

³³ Pub. L. No. 99-570, Â§Â§ 1801-1804, 100 Stat. 3207, 3207-48.

³⁴See generally Attorney General's 1986 Amendments Memorandum 18-30; see also Favish, 124 S. Ct. at 1579 (evincing the Supreme Court's reliance on "the Attorney General's consistent interpretation of" the FOIA in successive such Attorney General memoranda).

³⁵See Attorney General's 1986 Amendments Memorandum 18, 27.

³⁶ 5 U.S.C. § 552(d).

³⁷See, e.g., EPA v. Mink, 410 U.S. at 93-94 (treating individual Members of Congress as ordinary FOIA requesters).

³⁸See FOIA Update, Vol. V, No. 1, at 3-4 ("OIP Guidance: Congressional Access Under FOIA" (citing, e.g., H.R. Rep. No. 89-1497, at 11-12 (1966) and 5 U.S.C. § 552a(b)(9) (2000) (counterpart provision of the Privacy Act of 1974) to advise that "[e]ven where a FOIA request is made by a Member clearly acting in a completely official capacity, such a request does not properly trigger the special access rule of subsection ([d]) unless it is made by a committee or subcommittee chairman, or otherwise under the authority of a committee or subcommittee")); id. at 3 (further advising that "[i]nsofar as the Murphy opinion indicates otherwise, it should not be followed"); see also Leach v. RTC, 860 F. Supp. 868, 878-79 & n.13 (D.D.C. 1994) (treating contrary statements in Murphy v. Dep't of the Army, 613 F.2d 1151, 1155-59 (D.C. Cir. 1979), as no better than "mere dicta"), appeal dismissed per stipulation, No. 94-5279 (D.C. Cir. Dec. 22, 1994); cf. Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 604 (D.C. Cir. 2001) (relying mistakenly on Murphy, 613 F.2d at 1155-59, in finding (correctly) that waiver did not result from disclosure of a document to an oversight subcommit-tee (a conclusion properly in accordance with 5 U.S.C. § 552(d)), as a result of overlooking the significant fact that the disclosure in Murphy was made to an individual Member of Congress and thus should not have been considered to be a 5 U.S.C. § 552(d) disclosure in the first place); Waxman v. Evans, No. 01-4530, slip op. at 15 (C.D. Cal. Jan. 22, 2002) (ordering Secretary of Commerce to release adjusted census data to sixteen members of House Committee on Government Reform, and going so far as to hold that 1920s-era "Seven Member Rule" long contained in 5 U.S.C. § 2954 (2000) requires that any agency must, upon request from any seven members of that committee, provide any information relating to any matter within that committee's jurisdiction, not just routine administrative report information as originally intended), appeal dismissed as moot, 52 Fed. Appx. 84, 84 (9th Cir. 2002) (taking cognizance of fact that census figures were ordered disclosed in Carter v. United States Dep't of Commerce, 307 F.3d 1084 (9th Cir. 2002)).

³⁹ 5 U.S.C. § 552(e).

⁴⁰ Pub. L. No. 104-231, 110 Stat. 3048.

⁴¹See 5 U.S.C. § 552(e)(5); see, e.g., FOIA Update, Vol. XIX, No. 3, at 6 (describing range of OIP policy activities in connection with governmentwide implementation of Electronic FOIA amendments); FOIA Update, Vol. XIV, No. 3, at 8-9 (describing range of OIP policy activities, including its "ombudsman" function); see also FOIA Update, Vol. VIII, No. 3, at 2 (further description of same).

⁴²See 5 U.S.C. § 552(e)(1); FOIA Update, Vol. XVIII, No. 3, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports"); see also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03); FOIA Post, "Annual Report Guidance for DHS-Related Agencies" (posted 8/8/03); FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01); FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies on additional aspect of annual FOIA reports).

⁴³See FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (describing Office of Information and Privacy's process of reviewing all annual FOIA reports and contacting individual agencies to resolve any discrepancies found); see also FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (describing progress made by agencies in improving quality of their annual FOIA reports).

⁴⁴See FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies on proper FOIA Web site treatment of their annual FOIA reports in compliance with electronic availability requirements of 5 U.S.C. § 552(e)(2)-(3), including through agency identification of URL (Uniform Resource Locator) for each report, and also referencing Department of Justice's FOIA Web site at www.usdoj.gov/04foia).

⁴⁵See 5 U.S.C. § 552(e)(2); see also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (advising agencies to correct any annual report error on Web site as well as in paper form); FOIA Update, Vol. XIX, No. 3, at 4 (advising agencies to "clearly indicate the year of each of [their annual FOIA] reports" on their FOIA Web sites).

⁴⁶See, e.g., FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 9/3/03).

⁴⁷ 5 U.S.C. § 552(f)(1)-(2).

⁴⁸Id. § 552(g).

⁴⁹ See FOIA Update, Vol. XIX, No. 3, at 3 (referencing revised Office of Management and Budget guidance to agencies on contents of FOIA reference guides); FOIA Update, Vol. XVIII, No. 2, at 1 (discussing electronic availability of Justice Department's FOIA Reference Guide); see also Mount of Olives' Paralegals v. Bush, No. 04-CV-0044, 2004 U.S. Dist. LEXIS 8504, at 6 (S.D. Ill. Jan. 23, 2004) (suggesting to plaintiff that it consult Justice Department's FOIA Reference Guide in future); Pub. Citizen v. Lew, 127 F. Supp. 2d 1, 21 (D.D.C. 2000) (finding that several agencies initially misapplied OMB guidance on what constitutes "major information system").

⁵⁰ 484 F.2d 820, 827 (D.C. Cir. 1973).

⁵¹ 410 U.S. at 91; see 5 U.S.C. § 552(b) (sentence immediately following exemptions) (requiring disclosure of any "reasonably segregable" nonexempt information); see also FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation"); cf. FOIA Update, Vol. XVII, No. 1, at 1-2 (describing agency use of document imaging in automated FOIA processing).

⁵²See, e.g., Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 860 (D.C. Cir. 1981) (dealing with records of Watergate Special Prosecution Force); Congressional News Syndicate v. United States Dep't of Justice, 438 F. Supp. 538, 544 (D.D.C. 1977) (speaking of "aura of Watergate" in applying provisions of 1974 FOIA amendments).

⁵³See Pub. L. No. 93-502, 88 Stat. 1561.

⁵⁴ See Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 1-26 (Feb. 1975) (addressing provisions of 1974 FOIA amendments); see also James T. O'Reilly, Federal Information Disclosure § 3.8 (3d ed. 2000 & Supp. 2003) (summarizing 1974 FOIA amendments' provisions).

⁵⁵ 5 U.S.C. § 552a (2000).

⁵⁶See id. § 552a(d); see, e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987) (discussing relation between two acts); see also 5 U.S.C. § 552a(t) (addressing interrelationship of exemptions in two acts); FOIA Update, Vol. VII, No. 1, at 6 (advising agencies to treat all first-party access requests as FOIA requests as well as Privacy Act requests).

⁵⁷See 5 U.S.C. § 552a; see also Memorandum on Privacy and Personal Information in Federal Records, 34 Weekly Comp. Pres. Doc. 870 (May 14, 1998), available in Westlaw, 1998 WL 241263 (May 14, 1998) (executive memorandum to heads of all federal departments and agencies on Privacy Act-related matters); FOIA Update, Vol. XIX, No. 2, at 1 (describing executive memorandum).

⁵⁸See Pub. L. No. 94-409, 90 Stat. 1241, 1247 (1976) (single FOIA amendment enacted together with the Government in the Sunshine Act in 1976, 5 U.S.C. § 552b (2000)). See generally FOIA Post, "Agencies Rely on Wide Range of Exemption 3 Statutes" (posted 12/16/03).

⁵⁹See 5 U.S.C. § 552(a)(4)(F).

⁶⁰See Federal Courts Improvement Act of 1984, Pub. L. No. 98-620, § 402, 98 Stat. 3335, 3357 (codified at 28 U.S.C. § 1657 (2000)) (repealing provision formerly codified at 5 U.S.C. § 552(a)(4)(D) (1982)); see also FOIA Update, Vol. VI, No. 2, at 6.

⁶¹See generally Freedom of Information Act: Hearings on S. 587, S. 1235, S. 1247, S. 1730, and S. 1751 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. (1981) (two volumes); see also FOIA Update, Vol. VII, No. 2, at 1; FOIA Update, Vol. V, No. 4, at 1; FOIA Update, Vol. V, No. 3, at 1, 4; FOIA Update, Vol. V, No. 1, at 1, 6; FOIA Update, Vol. IV, No. 3, at 1-2; FOIA Update, Vol. IV, No. 2, at 1; FOIA Update, Vol. III, No. 3, at 1-2; FOIA Update, Vol. III, No. 2, at 1-2; FOIA Update, Vol. III, No. 1, at 1-2, 3-8; FOIA Update, Vol. II, No. 4, at 1-2; FOIA Update, Vol. II, No. 3, at 1-2.

⁶² Pub. L. No. 99-570, 100 Stat. 3207.

⁶³See FOIA Update, Vol. VII, No. 4, at 1-2; see also id. at 3-6 (setting out statute in its amended form, interlineated to show exact changes made).

⁶⁴See FOIA Update, Vol. VIII, No. 1, at 1-2; FOIA Update, Vol. IX, No. 3, at 1-14; FOIA Update, Vol. IX, No. 1, at 2; see also Attorney General's 1986 Amendments Memorandum 1-30.

⁶⁵See, e.g., FOIA Update, Vol. XIII, No. 2, at 1, 3-10 (congressional testimony discussing need to modify FOIA to accommodate "electronic record" environment); see FOIA Update, Vol. XVII, No. 3, at 1-2 (describing electronic record legislative proposal); FOIA Update, Vol. XVII, No. 2, at 1 (same); see also FOIA Update, Vol. XV, No. 4, at 1-6; FOIA Update, Vol. XV, No. 3, at 1-2; FOIA Update, Vol. XV, No. 1, at 1; FOIA Update, Vol. XII, No. 4, at 1-2.

⁶⁶ Pub. L. No. 104-231, 110 Stat. 3048.

⁶⁷See FOIA Update, Vol. XVII, No. 4, at 1-2, 10-11 (discussing statutory changes); see also id. at 3-9 (setting out statute in its amended form, interlineated to show exact changes made); President's Statement on Signing the Electronic Freedom of Information Act Amendments of 1996, 32 Weekly Comp. Pres. Doc. 1949 (Oct. 7, 1996), reprinted in FOIA Update, Vol. XVII, No. 4, at 9.

⁶⁸See FOIA Post, "Electronic Compilation of E-FOIA Implementation Guidance" (posted 2/28/03); FOIA Post, "FOIA Officers Conference Scheduled" (posted 9/17/02); FOIA Post, "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02); FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (discussing governmentwide Electronic FOIA amendment implementation activities); FOIA Update, Vol. XIX, No. 3, at 5-6 (Department of Justice congressional testimony describing agency's amendment-implementation activities); id. at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update, Vol. XIX, No. 1, at 3-5 ("OIP Guidance: Electronic FOIA Amendments Implementation Guidance Outline"); FOIA Update, Vol. XVIII, No. 3, at 1-2 (describing agency amendment-implementation activities involving development of World Wide Web sites); id. at 3-7 (Department of Justice guidelines on implementation of new annual reporting requirements); FOIA Update, Vol. XVIII, No. 2, at 1 (describing Justice Department's amendment-implementation activities, including development of FOIA Reference Guide); FOIA Update, Vol. XVIII, No. 1, at 3-7 (addressing amendment-implementation questions); FOIA Update, Vol. XVII, No. 4, at 1-11 (describing amendments); see also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03); FOIA Post, "Annual Report Guidance for DHS-Related Agencies" (posted 8/8/03); FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01); FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01); FOIA Update, Vol. XIX, No. 4, at 4-5 (emphasizing importance of "new partnership" between agency FOIA officers and agency Information Technology (IT) personnel in Electronic FOIA amendment implementation); FOIA Update, Vol. XIX, No. 3, at 2 (addressing additional amendment-implementation questions); FOIA Update, Vol. XIX, No. 2, at 2 ("Web Site Watch" discussion of agency FOIA Web sites); FOIA Update, Vol. XIX, No. 1, at 2 (same); FOIA Update, Vol. XIX, No. 1, at 6 (addressing additional amendment-implementation questions); FOIA Update, Vol. XVIII, No. 2, at 2 (same); cf. FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 9/3/03); FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 2001" (posted 10/17/02); FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 2000" (posted 1/31/02); FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 1999" (posted 10/15/01). See generally Department of Justice FOIA Regulations, 28 C.F.R. pt. 16 (2004); FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (describing GAO supplemental review of agency amendment-implementation activities); FOIA Update, Vol. XIX, No. 3, at 1 (describing 1998 congressional hearing on agency amendment-implementation activities).

⁶⁹ Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) (superseding predecessor Attorney General FOIA policy memorandum that had been in effect since 1993).

⁷⁰See FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (describing Attorney General Ashcroft's FOIA Memorandum); see also Presidential Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in FOIA Update, Vol. XIV, No. 3, at 3 (emphasizing importance of FOIA).

⁷¹See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) (recognizing protection of such interests as among "fundamental values that are held by our society").

⁷²Id.

⁷³See FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (discussing new FOIA policy).

⁷⁴ Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01); see also FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (reminding agencies that much FOIA-exempt information is subject to statutory disclosure prohibitions as well as standard prudential considerations).

⁷⁵See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01); see also FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01).

⁷⁶ Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01); see White House Memorandum for Heads of Executive Departments and Agencies Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002), reprinted in FOIA Post (posted 3/21/02) (focusing on need to protect sensitive homeland security-related information); FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (highlighting government's "need to protect critical systems, facilities, stockpiles, and other assets from security breaches and harm -- and in some instances from their potential use as weapons of mass destruction in and of themselves"); see also FOIA Post, "FOIA Officers Conference Held on Homeland Security" (posted 7/3/03) (discussing the Ashcroft FOIA Memorandum in the context of homeland security-related considerations and the protection of "information viewed as sensitive through a post-9/11 lens").

⁷⁷ Pub. L. No. 107-306, 116 Stat. 2383 (2002).

⁷⁸See 50 U.S.C. § 401a(4) (2000) (provision of the National Security Act of 1947, as amended, that specifies the federal agencies and agency subparts that are deemed "elements of the intelligence community").

⁷⁹ Pub. L. No. 107-306, 116 Stat. 2383, § 312 (codified at 5 U.S.C.A. § 552(a)(3)(A), (E) (West Supp. 2004)); see also FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted 12/23/02) (advising that "for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision").

⁸⁰ 5 U.S.C. § 552(a)(3)(A); see Favish, 124 S. Ct. at 1579 (observing that the FOIA has "a general rule" that "the identity of the requester" is not taken into consideration) (emphasis added).

⁸¹See, e.g., FOIA Post, "FOIA Officers Conference Held on Homeland Security" (posted 7/3/03) (discussing "[t]he safeguarding and protection of homeland security-related information [as] a subject of growing importance within all levels of government").

⁸²See FOIA Post, "FOIA Post Interview: Chairman Stephen Horn" (posted 12/23/03) (publicizing observations by the outgoing chairman of the FOIA subcommittee of the House of Representatives regarding, inter alia, "the critical role that public access to Government information plays in our democracy"); see also Favish, 124 S. Ct. at 1580 (emphasizing that the FOIA is vital to "a real democracy"); cf. FOIA Post, "OIP Gives Implementation Advice to Other Nations" (posted 12/12/02) (describing progress in establishing "transparency in government" worldwide).

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