October 16, 1997
Memorandum
To: Solicitor
Assistant Secretaries
Inspector General
Heads of Bureaus and Offices
From: Brooks B. Yeager (Robert Lamb /s/ for AS-PMB)
Acting Assistant Secretary - Policy, Management and Budget (PMB)
Subject: Administering the Electronic Freedom of Information Act (FOIA)
Amendments of 1996 and Reducing FOIA Appeals and Litigation
Last October, President Clinton signed into law the Electronic FOIA Amendments
of 1996 (E-FOIA). On December 12, 1996, the Assistant Secretary, PMB,
issued IRM Bulletin No. 96-13, which implements E-FOIA within the
Department. The Amendments broaden public access to Government information
by requiring agencies to make more material available on-line in accordance
with the new “electronic reading room” requirements. I want to
remind you of your obligation to comply fully with the requirements of the
E-FOIA, specifically with regard to making reading room materials available
to the public electronically.
Under E-FOIA, bureaus/offices are required to make certain reading room
records created on or after November 1, 1996, available electronically
(preferably via Internet) by November 1, 1997 (hard copies must be available
for public inspection and copying as well). This requirement applies to
records covered under section 552(a)(2) of the FOIA, including: final
opinions rendered in the adjudication of cases; policy statements and
interpretations adopted by the Department that are not published in the
Federal Register; administrative manuals and instructions affecting the
public; and frequently requested FOIA documents. This section of the FOIA
is designed to prevent an agency from developing “secret law”
(i.e., known to agency personnel but not to members of the public who deal
with agencies). If there is any doubt as to whether a record is covered by
this section of the FOIA, the bureau/office should consult with its
Designated FOIA Attorney.
The FOIA Officer for each bureau/office should be working with the program
offices, directives staff, and records manager to identify those documents
that must be made available electronically by November 1, 1997. Please have
your FOIA Officer submit a report to Alex Mallus, the Departmental FOIA
Officer, concerning the bureau/office’s progress in implementing this
provision of E-FOIA. This report should be provided to Alex, preferably by
E-mail (alexandra_mallus@ios.doi.gov or Mallus, Alexandra at ~Interior-CCM),
or by fax at (202) 501-2360 by October 20, 1997.
Further, I am asking each of you to renew your commitment to the FOIA--to
its underlying principle of openness and to its sound administration. This
commitment includes reducing backlogs and improving service to the FOIA
community. In this connection, the Office of theSolicitor (SOL) informs me
that thus far this calendar year seven nonresponse FOIA lawsuits have been
filed against the Department. These lawsuits were permissible because the
bureau/office involved did not make a timely response to the FOIA request.
Timely responses to FOIA requests are essential if our FOIA program is to
function effectively.
The E-FOIA increases the time limit for processing initial FOIA requests
from 10 to 20 workdays. The initial time limit may be extended up to an
additional 10 workdays in three specific situations due to: (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. Although
bureaus/offices are required to complete their responses to requests within
these statutory timeframes, they are not necessarily required to release the
requested records within those timeframes. In the event the records are
not included in the response letter, they should be sent to the requester as
soon as possible thereafter.
If a response to a request has not been made within the given time limits or
an extension thereof, a requester may treat the delay or lack of response as
a denial and file an administrative appeal, or seek judicial review if he or
she wishes to do so (see 5 U.S.C. 552(a)(6)(C)). To avoid unnecessary
appeals and litigation, bureaus/offices should make every effort to decide
in a timely manner whether or not to release the requested information, and
keep FOIA requesters apprised of the status of their requests. When a
bureau/office is unable to respond in a timely manner, an interim response
should be prepared. The letter should acknowledge receipt of the FOIA
request, and advise the requester when he or she may expect a final
response. The requester also should be advised of his or her right to treat
the delay as a denial and appeal the matter to the FOIA Appeals Officer, PMB
(see the FOIA Handbook, 383 DM 15, Chapter 3.7). Under existing case law,
if the bureau/office advises the requester of his or her administrative
appeal rights within the statutory response time, the requester must file an
administrative appeal prior to seeking judicial review.
Nonresponse FOIA appeals and lawsuits are an unnecessary drain on the
already limited resources of PMB and SOL, as well as the bureaus/offices
involved. Further, such lawsuits may result in decisions requiring the
Department to pay attorney fees. For these reasons, you should ensure that
your bureau/office makes every effort to respond to FOIA requests within the
statutory timeframes.
Finally, I want to reiterate strongly the expectation of full compliance
with all the provisions of the FOIA. It is important that FOIA activities
receive appropriate consideration and a sufficiently high priority by each
bureau/office. Adequate resources must be devoted to ensure that the
Department is in statutory and regulatory compliance.
We appreciate your continued assistance and support in implementing the FOIA
program in the Department. Please contact Alex Mallus, the Departmental
FOIA Officer, MS-5312 MIB, (202) 208-5342, if you have any questions.
cc: Bureau/Office FOIA Officers
Designated FOIA Attorneys
FOIA Appeals Officer
Associate Solicitor - Division of Administration