May 27, 2008

On the FOIA:

Corporate America And Uncle Sam Need To Wake Up To E-Discovery and E-FOIA Obligations, Part Two


By Eric Sinrod,

In this article, FindLaw columnist Eric Sinrod examines the responsibilities of the government and private enterprise pertaining to electronic information under the Federal Rules of Civil Procedure for electronic discovery and the Freedom of Information Act. This installment addresses the Freedom of Information Act; Part One covered electronic discovery issues.

The Freedom Of Information Act

Statutory Background

The Freedom of Information Act (FOIA) was enacted in 1966 so that the American public could gain access to government information to monitor the service of elected and appointed federal officials.

The FOIA was amended in the 1970s with sharper teeth in the wake of the Watergate scandal. And much later in the mid-1990s, the statute was further revised to allow for the discovery of government information in electronic form.

The Freedom of Information Act enables the public to obtain information from the federal government to ascertain, as stated by the Supreme Court, "what the government is up to." After all, a government shrouded in secrecy is not a government by the people and for the people.


With the coming of the electronic age, Congress enacted electronic-related amendments (E-FOIA) in 1996.

These amendments required federal agencies to make available important records online, provide specific guidance to citizens on submitting information requests, and implement the technology necessary to post information proactively.

The intent of E-FOIA was to increase public access to government information while at the same time reducing the burden created by FOIA requests.

An agency record is specifically defined under E-FOIA as including materials in an "electronic format."

Moreover, an agency is required to provide such a record in the "format requested . . . if the record is readily reproducible by the agency in that form or format."

In addition, agencies are required to make "reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of the [FOIA]."

All well and good, right? Wrong.

A late-2007 audit by the National Security Archive--an independent, nongovernmental research effort at George Washington University--paints a bleak picture of governmental noncompliance with E-FOIA a decade after its enactment.

Significant findings include the following:

-- Only 21 percent of federal agencies post on their Web sites all four categories of records specifically required by the law (agency opinions/orders, statements of agency policy, frequently requested records and guidance to agency staff);

-- A mere 6 percent of agencies post all 10 elements of essential FOIA guidance (where to send FOIA requests, fee status, fee waivers, expediting process, reply time, exemptions, administrative appeal rights, where to send appeals, judicial review rights, and an index of records/major information systems);

-- Just 26 percent of agencies provide online forms for submitting FOIA requests; and

-- Many agency Internet links are incorrect or missing.

This situation is unacceptable. Not only is it against the law as written 10 years ago, it also completely goes against the goal of freedom of access to government information.

Yes, it is true that certain government information deserves protection, such as when true national security is at stake, but that is why FOIA includes certain exemptions.

Without a proper basis to invoke an exemption, government information should not be shielded from coming to light simply because the government has not seen fit to obey the law and enter the information age.

Even potential arguments of cost and burden fall by the wayside when this situation is analyzed properly.

It is far less burdensome and costly for federal agencies to post basic and most frequently requested information online than to respond separately to many individual requests for the same information when that information cannot be accessed on agency Web sites.

While the National Security Archive audit highlights some chief offenders of E-FOIA, including Immigration and Customs Enforcement (a Department of Homeland Security component) and the Air Force, the audit also compliments certain federal branches, such as NASA for proactively posting records of great interest to the public (like the Columbia Space Shuttle disaster) and the Department of Education for providing guidance and tools like online forms for FOIA requesters.

If NASA and the Department of Education can get it right, so should other federal agencies. It's not as if E-FOIA was just enacted yesterday. Ten years is plenty of time to come into compliance.

Open Government Act

There has been a perception that the current administration in practice has diluted the timing and quality of provision of information under the statute.

Those days appear to be coming to an end, as the House of Representatives passed a bill referred to as the Open Government Act of 2007 that passed the Senate just days earlier. Perhaps seeing the ultimate writing on the wall, President Bush signed the act into law on December 31.

As noted in the findings supporting the act, the FOIA originally was signed into law because "our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends on the consent of the governed," and that such consent "is not meaningful unless it is informed consent."

According to the concurring opinion of Supreme Court Justice Black from the case Barr v. Matteo, "the effective functioning of a free government like ours depends largely on the force of an informed public opinion."

As Justice Black found, this calls for "the widest possible understanding of the quality of government service rendered by all elective or appointed officials or employees."

And not to be forgotten, in United States Department of State v. Ray, a case that I briefed as counsel for the FOIA requesters in the early 1990s, the Supreme Court found that the FOIA establishes "a strong presumption in favor of disclosure."

Yet in recent times, many FOIA requests go unanswered by government agencies well past statutorily mandated response times. Whereas the usual request deserves a response within 20 days, some requests go answered for months and even years, while a few requests never lead to a response.

In addition, the FOIA sets forth certain exemptions that agencies can invoke to refuse to provide information to requesters. Such exemptions have to do with national security, law enforcement, privacy, and other important matters.

Of course, how an agency interprets exemptions has an impact on the flow of information provided.

The current administration has been viewed in some quarters as having broadly interpreted FOIA exemptions precisely to limit the amount of information disclosed under the statute.

Congress evidently became fed up--hence the passage of the Open Government Act. The act, by its own terms, would be effective one year after enactment.

The Open Government Act does contain helpful and important features.

There are provisions to speed up the timing of responses to FOIA requests, making clear that the 20-day response time generally applies and is not to be tolled, assigning tracking numbers to FOIA requests that take longer than 10 days to process, and invalidating the ability of agencies to charge requesters for research and copying costs, if the response deadlines in the statute are not met.

The act also broadens the scope of information potentially available, pursuant to FOIA requests, by including government information maintained for agencies by government contractors.

In addition, the act extends the circumstances under which FOIA requesters may obtain attorneys's fees under the statute.

On top of all of this, the Open Government Act requires more accurate reporting by agencies to Congress, with respect to FOIA compliance, and creates the Office of Government Information Services at the National Archives to mediate conflicts between FOIA requesters and agencies.

The act represents the first changes to FOIA since 1996, when amendments were made to address information maintained electronically.

Concluding Remarks

The electronic age is a brand new world. Whether you are part of a company or a federal agency, care must be taken to comply properly with electronic discovery and FOIA obligations.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP ( where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is and he can be reached at To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.

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