11 July 2010

US FOIA Issues: Agency Records

The US FOI Act covers US federal agencies (note this does not include Congress) and facilitates the release of 'agency records'. This is not defined in the legislation and has subsequently been clarified in extensive case law.

The Dept. of Justice offers some guidance and the issues are discussed extensively in the Procedural Requirements document.

There are no blanket and general rules for determining whether a specific record is an 'agency record' for the purposes of FOIA. It is not the case that any record in an Agency system or on an agency computer is automatically an agency record. Instead there is a balance argument that must be applied for any record (even down to each individual email). The points to be considered are the following:

  • Creation -- Was the document created by an agency employee on agency time, with agency materials, at agency expense? (if not, then it very likely is not an "agency record," on that basis alone.)

  • Content -- Does the document contain "substantive" information? (If not, then it very likely is not an "agency record," on that basis alone.) Does it contain personal as well as official business information?

  • Purpose -- Was the document created solely for an individual employee's personal convenience? Alternatively, to what extent was it created to facilitate agency business?

  • Distribution -- Was the document distributed to anyone else for any reason, such as for a business purpose? How wide was the circulation?

  • Use -- To what extent did the document's author actually use it to conduct agency business? Did others use it?

  • Maintenance -- Was the document kept in the author's possession, or was it placed in an official agency file?

  • Disposition -- Was the document's author free to dispose of it at his personal discretion? What was the actual disposal practice?

  • Control -- Has the agency attempted to exercise "institutional control" over the document through applicable maintenance or disposition regulations? Did it do so by requiring the document to be created in the first place?

  • Segregation -- Is there any practical way to segregate out any personal information in the document from official business information?

  • Revision -- Was the document revised or updated after the fact for record-keeping purposes?

One net effect of these points is that personal communications, even if saved on an agency system, that are with non-agency personnel, or that do not discuss agency business, are not likely to be 'agency records'. This is an entirely separate issue from whether such communications can be examined by the agency or employer.

Note too that:

  • Agencies are not required to answer questions posed as FOIA requests.

  • Nor does the FOIA require agencies to respond to requests by creating records

  • Agencies also cannot be required by FOIA requesters to seek the return of records over which they retain no "control"

  • Requesters cannot compel agencies to make automatic releases of records as they are created, which means that requests cannot properly be made for "future" records not yet created.

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