Q: What if an agency acts to place a record in its reading room based
upon the "likely to" standard, but then soon thereafter is proven mistaken when
no further FOIA request (or no more than one additional request) is received
for that record, can it then remove it from its reading room (or "take it down"
from its electronic reading room on its FOIA Web site) for that reason?
A: No. In such a situation, the key fact is that the statutory standard was met, regardless of
what did or did not occur thereafter. In other words, once the agency reached the judgment that the
FOIA-processed record was "likely to become the subject of subsequent requests," 5 U.S.C. §
552(a)(2)(D), its statutory obligation was in fact triggered at that point. It makes no difference under
the statute whether an agency's predictive judgment subsequently is borne out. In time, however, an
agency certainly can consider the absence of predicted FOIA requests as a factor in determining
whether the continued maintenance of a record as a "frequently requested" record is warranted. See
FOIA Update, Vol. XVIII, No. 1, at 4 (noting that as a matter of practicality, an agency "may
determine that some such records no longer" warrant (a)(2)(D) treatment); see also FOIA Update,
Vol. XIX, No. 1, at 3 (advising that agencies "should use their judgment as to the length of time that
records determined to fall within the new reading room category should continue to be maintained in a
reading room"). (posted 7/25/03)
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