December 12, 1996
IRM BULLETIN N0. 96-13
To: Solicitor Assistant Secretaries Inspector General Heads of Bureaus and Offices Bureau Assistant Directors for Administration Department FOIA Appeals Officer Bureau and Office FOIA Officers Bureau and Office Records Officers Designated FOIA Attorneys Bureau IRM Coordinators
From: Bonnie R. Cohen /signed/ Assistant Secretary - Policy, Management and Budget
Subject: New Freedom of Information Act (FOIA) Legislation - "Electronic FOIA Amendments of 1996"
Background. On October 2, 1996, President Clinton signed the "Electronic FOIA Amendments of 1996", P.L. No. 104-231 (attached). The new legislation brings FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format. It broadens public access to Government information by requiring agencies to make more material available on-line and by expanding the role of agency reading rooms. The law also reaffirms the importance of "openness" in Government. As the Government actively disseminates more information, it is Congress' expectation that there will be less need to use FOIA to obtain Government information--which is especially important given the fact that the number and complexity of FOIA requests continue to increase, while resources available for processing them are decreasing. Except as otherwise specified, the amendments will become effective March 31, 1997 (180 days following enactment of the law).
Purpose. This issuance updates the policy and procedures for administering and implementing the FOIA in the Department of the Interior (DOI) to incorporate the provisions of the new law. The Department's FOIA regulations (43 CFR Part 2, Subparts A and B) and the FOIA Handbook (383 DM 15) will be revised accordingly.
Responsibility. The Office of Information Resources Management (PIR) is responsible for administering the FOIA Departmentwide, which includes establishing Departmental policy and procedures; providing program oversight; and processing and deciding FOIA appeals. PIR will be monitoring DOI's compliance with the new legislation and issuing additional policy guidance as necessary.
Policy. Bureaus and offices are expected to comply fully with the "Electronic FOIA Amendments of 1996" as follows:
1. Electronic availability of reading room materials. Bureaus and offices will make records covered under section 552(a)(2) of the FOIA that are created on or after November 1, 1996, available by Internet or other computer telecommunication methods, or by other electronic means (as well as in hard copy) by November 1, 1997. This requirement applies to the following categories of records:
a) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
b) those statements of policy and interpretations which have been adopted by DOI and are not published in the Federal Register;
c) administrative staff manuals and instructions to staff that affect a member of the public;
d) copies of all records, regardless of form or format, which have been released to any person under section 552(a)(3) and which because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent FOIA requests for substantially the same records (this category of records has been added by the new law--section 552(a)(2)(D)); and
e) a general index of the records referred to under subparagraph d, above (this requirement has been added by the new law--section 552(a)(2)(E)).
The Department strongly encourages bureaus/offices to make appropriate information technology with Internet access available in their reading rooms or at another location for the public to use in accessing this information.
2. Reading room treatment for selected FOIA-disclosed records.
a) Under new section 552(a)(2)(D), bureaus and offices will make available for public inspection and copying all records which have been released to any person under section (a)(3) of the FOIA (i.e., they will be treated as (a)(2) materials), if they determine that the records have become or are likely to become the subject of subsequent requests for substantially the same records (e.g., travel records of high level officials, reports generating considerable public interest (such as certain records relating to an Endangered Species Act controversy), the FOIA annual reports to Congress, lists of VISA IMPAC credit card holders, etc.).
b) PIR will prepare and maintain a Departmentwide index of records which are frequently disclosed under the FOIA (only those specified in subparagraph a, above), based on input provided by the bureaus/offices, and make the index available to the public in reading rooms (hard copy must be available by March 31, 1997) and/or via Internet or other electronic means by December 31, 1999 (section 552(a)(2)(E)).
c) Each bureau/office will: 1) ensure that the data submitted to PIR is accurate, complete, and up-to-date; 2) advise PIR of necessary changes.
d) Bureaus and offices must review all (a)(2) and (a)(3) records to determine what information should be withheld under the FOIA and the Privacy Act, and make appropriate redactions before making them available for public inspection in reading rooms and/or via Internet or other electronic means. (See Administrative Services Letter No. 62, FOIA Policy - Update (dated November 29, 1993) and Administrative Services Letter No. 64, FOIA Procedures for Responding to FOIA Requests and for Administering FOIA Appeals (dated February 3, 1994)).
e) If an FOIA requester seeks (a)(2) information, the bureau/office will notify the requester promptly that the records are available in the reading room or via Internet and offer him/her the option of withdrawing the request. However, if the requester is not willing to withdraw the FOIA request, it is the Department's policy that the bureau/office will have to process the request under 5 U.S.C. 552(a)(3) of the FOIA. There is no provision in the law that extends the time limit for processing a request under these circumstances.
3. Format of disclosure. Contrary to existing case law (Dismukes v. Department of the Interior), FOIA requesters generally will be able to choose the form/format of disclosure with regard to records requested under section 552(a)(3) of the Act. Bureaus and offices will provide a record in the requested form/format if they can readily reproduce it in that form/format (section 552(a)(3)(B)). However, if the process of providing the information in the requested format would damage or destroy an original document, as in the case of a very old and brittle paper document, it may not be possible to honor the format request. In the event of litigation, a bureau/office may have to prepare an affidavit concerning the reproducibility of the record(s) in the requested form/format. The court will give substantial weight to the bureau/office's affidavit under these circumstances (section 552(a)(4)(B)).
4. Electronic record searches. Bureaus/offices will make a reasonable effort to search for records in an electronic form or format (this includes E-mail messages), except where such efforts would interfere significantly with the bureau/office's automated information systems (section 552(a)(3)(C)).
5. Denial notification.
a) Computer redaction/deletion of a particular record. If a record contains both exempt and nonexempt material, the bureau/office will disclose any reasonably segregable part of an otherwise exempt document. When disclosing a record to a requester in part, the bureau/office will indicate on the released portion of the record how much information was deleted unless including the indication would harm an interest protected by the exemption used to withhold it (e.g., redactions on a map) (section 552(b)). The exemption used to withhold the information also should be provided. Further, if technically feasible, the amount of information deleted will be indicated where the deletion is made. This requirement applies to both electronic and paper records covered by the FOIA (see the FOIA Handbook, 383 DM
Chapter 3.17).
b) Volume of records denied. When denying a request for records, in whole or in part, bureaus/offices will make a reasonable effort to estimate the volume of the records being denied (e.g., 100 pages, four Federal Records Center boxes, etc.) and will advise the requester, accordingly, unless providing such an estimate would harm an interest protected by the exemption used to withhold it (effective October 2, 1997) (section 552(a)(6)(F)).
6. Reference guides.
a) Under section 552(g) the Department (PIR) will prepare and make publicly available upon request an index of its major information systems, a description of its major information and record locator systems, and a handbook advising the public on how to obtain various types and categories of agency records (under FOIA and apart from FOIA). Until further notice, the DOI Government Information Locator Service (GILS) will be utilized as the Department's index.
b) PIR will update the DOI-GILS database periodically, based on input provided by the bureaus/offices. A new GILS record will be created for each bureau/office's records retention schedule, which will serve as a locator (the "pointer") to obtain specific information about Departmental records (i.e., name of a contact, address, telephone and fax numbers).
c) Each bureau/office will: 1) ensure that the data submitted to PIR is accurate, complete, and up-to-date; and 2) advise PIR of necessary changes.
7. Other provisions.
a) Time limits and backlogs. The legislation changes the 10-day time limit for an agency's FOIA response to 20 days. It provides that in "unusual circumstances" an agency may extend for a maximum of 10 workdays the time limit for responding to a request. It clarifies that the "exceptional circumstances" provision of section 552(a)(6)(C) "does not include a delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests" (sections 552(a)(6)(A) through (6)(C)). These provisions are effective October 2, 1997.
b) Expedited and multitrack processing. The new law requires promulgation of regulations to provide for expedited FOIA access when a requester demonstrates a "compelling need," or in other cases determined by the agency. It also provides that agencies may promulgate regulations to create a multitrack system of processing FOIA requests based on the complexity of the request (section 552(a)(6)(D) and (6)(E)). These provisions are effective October 2, 1997.
c) Annual FOIA report to Congress. The new law expands the reporting requirements to include new backlog-related data (e.g., the median number of days to process requests and the number of requests pending as of September 30 of the preceding year) and changes the reporting period to the fiscal year timetable (section 552(e)). Agencies also will be required to make their reports available to the public electronically. The first report incorporating the new data will be due to the Department of Justice (DOJ) February 1, 1999, and will cover the period October 1, 1997, through September 30, 1998. The report for 1997 will be a 9- month report for the period January 1 - September 30, 1997.
d) Definitions.
1) The definition of "record" is revised to include information in electronic format (section (f)(2)).
2) The term "search" is defined for the purposes of section 552(a)(3). It means "to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request" (section 552(a)(3)(D)).
We anticipate that the DOJ and the Office of Management and Budget will issue guidance on these amendments in the near future. As soon as it is available, PIR will advise the bureaus and offices accordingly.
Questions concerning these amendments may be directed to Alexandra Mallus, the Departmental FOIA Officer, at (202) 208-5342, by fax at (202) 208-5048, by E-mail--Mallus, Alexandra (use ~Interior-CCM), or by Internet--Alexandra_Mallus@IOS.DOI.GOV; or Bob Moll, Assistant Solicitor, Branch of General Legal Services at (202) 208-5216, by fax at (202) 219- 1790, or by E-mail--Bob Moll (use ~ISOL).
Please ensure that this bulletin and the attachment are distributed promptly to appropriate personnel within your respective bureau/office to ensure Departmentwide compliance. We appreciate your assistance and cooperation in this regard.