FOIA Update
Vol. XII, No. 4
1991

After much anticipation, a package of proposed amendments to the Freedom of Information Act has been introduced in the United States Senate. On November 7, Senator Patrick J. Leahy (D. Vt.), Chairman of the Senate Judiciary Committee's Subcommittee on Technology and the Law, introduced a pair of bills, S. 1939 and S. 1940, that would amend the FOIA on a range of both substantive and procedural points, including "electronic record" issues arising under the Act.

The first of the two bills would alter several of the Freedom of Information Act's exemptions and would make some procedural revisions also. The companion bill, co-sponsored by Senator Hank Brown (R. Colo.) of the Subcommittee, would be entitled the "Electronic Freedom of Information Improvement Act," but addresses procedural matters such as time limits and expedited access as well. In summary, the two bills contain the following provisions:

EXEMPTION ONE -- The bill would make two distinct changes to the FOIA's first exemption, which protects information classified on national defense or foreign policy grounds under an applicable national security executive order. First, it would add a new "identifiable damage" requirement to the exemption. Second, it would add a "public interest" provision, such that classified information could be withheld under Exemption 1 only where "the need to protect the information outweighs the public nterest in disclosure."

EXEMPTION THREE -- The bill would add a specific "harm" requirement to the FOIA's third exemption, amending it to allow incorporation of a statutory disclosure prohibition only where "the release of the specific information involved would cause the particular harm intended by Congress to be avoided." Related provisions regarding the process by which Exemption 3 statutes are enacted and their qualifications under the exemption are also contained in the bill.

EXEMPTION FIVE -- The bill would make two revisions to the FOIA's fifth exemption, which protects inter- or intra-agency information that ordinarily would be shielded under a recognized discovery privilege, such as the deliberative process privilege. The first Exemption 5 change would limit its applicability by stipulating that it could apply "only to the substance of an agency's preliminary reasoning or tentative conclusion and not to the decisionmaking process itself." The second proposed alteration of Exemption 5 would add a "public interest" provision to it as well, permitting it to apply "only if the interest of the agency in withholding the records outweighs the public interest in disclosure."

EXEMPTION SEVEN -- The bill would alter the threshold requirement of the FOIA's seventh exemption and also change the provisions of Exemption 7(D), which protects confidential law enforcement sources. It would insert the word "originally" into Exemption 7's threshold language, such that it would encompass only information "compiled originally for law enforcement purposes." Within Exemption 7(D), it would add a new requirement restricting protection of source identities to only sources "who, based on demonstrable facts and circumstances, clearly expected and continue[] to expect" confidentiality. A further change would limit the protection of source-supplied information to a 20-year period after it is supplied, "unless confidentiality is necessary to protect the life or physical safety of any individual."

EXEMPTION EIGHT -- The bill would alter the FOIA's eighth exemption, which protects information regarding the regulation of financial institutions, by adding a new "harm" requirement to it. It would amend Exemption 8 to allow nondisclosure only "if disclosure would directly injure the financial stability of an institution."

FEE LIMITATIONS AND FEE WAIVERS -- The bill would make two modifications of the fee-limitation provisions established by the 1986 FOIA Amendments and also would modify the FOIA's standard for the waiver of fees in general. First, it would make explicit that any FOIA request made "in connection with" news media activities is not a "commercial use" request, and it would broaden the term "educational institution" for search fee-limitation purposes. It also would revise the Act's general fee waiver standard to define a "public interest" disclosure as one "likely to contribute directly or indirectly to public understanding of the Government and other matters of public interest."

DEFINITIONS -- The bill would amend the definition of the term "agency" under the FOIA, broadening it in several respects. As redefined under the bill, the term "agency" would include the Congress and the Offices of the President and the Vice President, making them subject to all of the requirements of the Act.

"ELECTRONIC RECORDS" -- This bill would address "electronic record" issues arising under the FOIA through a number of different provisions. In a proposed new definition section, it would define the term "record" for the first time under the Act -- so as to explicitly include "computer programs" and related "electronic information . . . regardless of physical form or characteristics." It also would define the term "search" under the Act as including "a manual or automated examination to locate records." A separate provision under the heading of "computer redaction" would amend the Act's segregation requirement by specifying that any deletion "shall be indicated on the released portion of the record at the place where such deletion was made." The bill also would require an agency to "provide records in any form in which such records are maintained by that agency" and, further, to "make reasonable efforts to provide records in an electronic form requested by any person, even where such records are not usually maintained in such form."

PUBLICATION REQUIREMENTS -- The bill would make four distinct additions to agency obligations to publish certain information under subsection (a)(1) of the Act, three relating to "electronic" information. First, as to information required under the Act to be published in the Federal Register, it would provide for such publication "electronically by computer telecommunications" as well. It would require each agency to publish "an index of all information retrievable or stored in an electronic form by the agency," as well as "a description of any new database or database system with a statement of how such database or system shall enhance agency operations" under the FOIA. It also would require each agency to publish a "complete list" of Exemption 3 statutes used by it "together with a specific description of the scope of the information covered" by those statutes.

TIME LIMITS -- The bill would address the FOIA's time limits by authorizing courts to award FOIA requesters "all out-of-pocket expenses . . . and reasonable attorney fees incurred in the administrative process" in any case in which an agency fails to comply with a time deadline set by the Act. Additionally, it would allow courts to impose a "civil penalty for delay," of up to $75 a day, for such noncompliance. On the other hand, the bill would permit any agency certified as "in substantial compliance" with the Act's time limits to retain half of all FOIA fees that it collects. It also would explicitly exclude "routine agency backlogs" from the "unusual circumstances" that may warrant ten-day time extensions under the Act.

EXPEDITED ACCESS -- The bill would require all agencies to promulgate regulations providing for expedited access to be afforded FOIA requesters based upon a demonstration of "compelling need." Agencies would be required to decide requests for expedition within five working days, under penalty of the bill's $75-per-day sanction.

DENIAL NOTIFICATIONS -- The bill also would require that FOIA denials specify both the identity of each individual denial official and "the total number of denied records and pages" involved. These FOIA bills already have caused some reaction within federal agencies and it is expected that agencies will comment on their proposed provisions through the Office of Management and Budget's governmentwide legislative comment process in the coming weeks. (See pp. 3-7 of FOIA Update the complete text of each of the two bills.)

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