FOIA Update
Vol. I, No. 2
1980

FOIA Counselor

This question has caused much confusion for years.

The answer to the question determines whether a given request is one which obligates an agency at least to consider the requester's rights or claim of rights under FOIA. The present discussion deals with the question in this sense. And the answer may often be yes, it is a FOIA request, even if it is defective under FOIA. If, as discussed below, a request is defective, the agency's obligation can often be satisfied by informing the requester of the defect. If it is not, however, the agency must comply with all FOIA processing requirements; i.e., search, examination and analysis, and granting of access to all non-exempt material within the scope of the request.

The statute obligates federal agencies to respond to "any request for records" from "any person." 5 U.S.C. § 552(a)(3). The only limitations in the statute itself are that the request must be one "which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed . . ."

The spirit of FOIA requires that agencies give consideration under FOIA to any request which can reasonably be interpreted as one for records.

On this basis, FOIA requests generally fall within one of three basic types:

1. The requester is clearly asking for records and expressly states that the request is being made under FOIA;

2. The requester is clearly asking for records but makes no reference to FOIA; and

3. The requester expressly invokes FOIA but frames the request as one for information, and the information or some of it is contained in existing records.

Requests in any of the three categories should at least be considered under FOIA.

As already noted, (a)(3) does contain two limitations. The first, that the request "reasonably" describe the records being sought, was added by the 1974 Amendments and was intended to codify the prevailing case law. This provision means the request must "be sufficient . . . to enable a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." H.R. Rept. No. 93-876, 93d Cong. 2d Sess. (1974) at 6.

The Attorney General's Memorandum on the 1974 Amendments (the "Blue Book"), states (p. 23) that this language means that "it is not enough that the request provide enough data to locate the record; it must enable it to be located in such a manner which does not involve an unreasonable amount of effort." Of course, the amount of effort may be very extensive and burdensome without being "unreasonable."

Even if an agency determines that a request does not "reasonably" describe the records sought, it still must consider the request as a FOIA request, although perhaps a defective one. As the Attorney General's Blue Book goes on to say, the agency "should notify the requester of the defect. In addition it is recommended that, when practicable, the agency should offer assistance in reformulation of the request to comply with the Act."

A request framed as one for information rather than records, in addition to being technically defective, may also fall short of reasonably describing the records which it could be interpreted as seeking; but if the requester invokes FOIA, it should at least be considered under FOIA.

The second limitation in (a)(3) that the request be "made in accordance with published rules . . ." is potentially more troubling. Most agencies have published rules requiring that FOIA requests be (1) made in writing, (2) addressed to a specific official or office, (3) expressly identified as a FOIA request. Although all three of these requirements are generally reasonable and proper, the last two are chiefly for the purpose of reducing delays in internal handling. We consider only (1) to be a sufficient ground for an agency's flatly refusing to process a request under FOIA.

It is neither unreasonable nor in conflict with the spirit of FOIA for an agency to require that a request be made in writing. This does not place an undue burden on the requester, and it reduces confusion as to exactly what records are being sought.

Of course, agencies are free to process oral requests for access to records, and this is sometimes done informally for newsmen and others. In a similar vein, requests for clearly available material, e.g., publications, which can readily be granted should be handled without excessive emphasis on technical requirements, particularly where this saves time and money for the requester and the agency.

We should remember that only a small percentage of the population is familiar with the use of the Federal Register and the Code of Federal Regulations, where the technical requirements for making FOIA requests are published. Therefore, agencies usually should at least consider requests that raise questions of rights under FOIA even if the requester has not fully complied with all these rules. Except where the requester has failed to put the request in writing, the chief effect of noncompliance with these technical requirements is that the agency has a reasonable period of time to recognize the request as a FOIA request and to route it to the correct person for processing. In these circumstances, the ten working-day time limit begins when the request is received by the proper official.

In conclusion, no written request from a person which can reasonably be interpreted and handled as a request for access to existing agency records should be denied or rejected unless the agency has first considered it under FOIA.

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