Stephen Yagman v. Michael Pompeo

Filing

FILED OPINION (A. WALLACE TASHIMA, RICHARD A. PAEZ and PAUL L. FRIEDMAN) REVERSED AND REMANDED. Judge: RAP Authoring, FILED AND ENTERED JUDGMENT. [10559962]

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 1 of 95

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

No

Press Conference by the President

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 2 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 3 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 4 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 5 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 6 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 7 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 8 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 9 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 10 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 11 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 12 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 13 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 14 of 95

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 15 of 95

Search this site

Home » Office of Information Policy

Office of
Information
Policy Home
About the Office
Meet the Director
OIP Guidance
DOJ Guide to
the FOIA

Key FOIA Dates
FOIA UPDATE: OIP GUIDANCE: DETERMINING THE
SCOPE OF A FOIA REQUEST
January 1, 1995
FOIA Update
Vol. XVI, No. 3
1995

FOIA Resources

SAT

End of Fiscal
Year 2017
Washington,

DC
MORE EVENTS »

OIP Guidance

Training

30

September
30, 2017

eo
7
omp agencies 1
PAct, federal22, 20
.
In their administration of the Freedom of Information
an v August
devote much time and attention to the gm
possible applicability of FOIA
Ya
on
exemptions in order to determine the information to be disclosed. It is
ed in rchived
cit and to,consider even exempt information for
a
necessary that they do so,
442
possible discretionary 55
disclosure, in order to serve the Act's goal of
. 15"maximumNo
responsible disclosure." Attorney General's Memorandum for

Best Practices
Workshop
Series
Chief FOIA
Officers Council
Reports
Make a FOIA
Request to DOJ
OIP FOIA
Contact the Office
Employment
Opportunities
Sobre la Oficina
de Politicas
Informacion

Heads of Departments and Agencies Regarding the Freedom of Information
Act (Oct. 4, 1993), reprinted in FOIA Update, Summer/Fall 1993, at 4.
It also is necessary, however, for agencies to pay careful attention to the
records and information that they include as responsive to a FOIA request
in the first place. After all, if something is not included by an agency for
purposes of a FOIA request to begin with, then that alone will mean that it
cannot be disclosed in response to that request. Consequently, an agency's
interpretation of the particular scope of a FOIA request, and its
determinations regarding exactly which information falls within it, are
vitally important aspects of FOIA administration.
Liberal Interpretation of Requests
As a threshold matter, an agency should make sure that it carefully reads
and fairly interprets the terms of the FOIA requests that it receives, in order
to ensure that it is not unduly limiting the records found responsive to those
requests. To be sure, the particular terms of a FOIA request are significant
and, in making a FOIA request, a requester is obligated to "reasonably
describe" what is being sought. 5 U.S.C. § 552(a)(3). But an agency "must be
careful not to read [a] request so strictly that the requester is denied
information the agency well knows exists in its files." Hemenway v. Hughes,
601 F. Supp. 1002, 1005 (D.D.C. 1985).

Melanie Ann Pustay
Director
Office of Information
Policy
(202) 514 - FOIA (3642)

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 16 of 95

In this regard, it is significant that President Clinton has called upon all
agencies to heed "both the letter and spirit of the Act." President's
Memorandum for Heads of Departments and Agencies Regarding the
Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4,
1993), reprinted in FOIA Update, Summer/Fall 1993, at 3. This holds strong
applicability to matters of request interpretation -- meaning that FOIA
requesters should not be held to the strict letter of their requests when an
agency has good reason to conclude that a broader interpretation is more
appropriate. See, e.g., Canning v. United States Dep't of Justice, No. 920463, slip op. at 22 (D.D.C. Nov. 3, 1994) (holding that agency should have
construed request as pertaining to more than single subject named, because
it had good reason to do so). In short, as the Court of Appeals for the D.C.
Circuit recently emphasized, agencies should interpret FOIA requests
"liberally" when determining which records are responsive to them. Nation
Magazine v. United States Customs Serv., No. 94-5275, 1995 WL 722700,
at *3 (D.C. Cir. Dec. 8, 1995).
The "Scoping" of Responsive Records
A more difficult question about the scope of a FOIA request sometimes can
be presented by records that deal with multiple subjects, only one of which
pertains to the subject of a particular FOIA request. It is not uncommon for
both agency files and individual records within those files to deal with more
than a single subject, possibly even a range of different subjects. In many
instances, the multiple subjects of such records will be related in some
substantive way, which can bring them all within a requester's evident scope
of interest for a given FOIA request.

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
In other instances, however, there might be no connection between the
5-55
1
subjects other than that the agency chose as a matter of administrative
No.
convenience to combine them together in a single document, possibly a
lengthy one. For example, the State Department frequently aggregates
multiple subjects within a document that is transmitted as a single
diplomatic communication. Similarly, the records of complex law
enforcement investigations sometimes contain several distinct subjects that
are addressed as part of an overall area of investigative activity.
The question in such a case is whether the agency should draw a line
between the different parts of a multiple-subject record for purposes of
processing a FOIA request that pertains to only one of the subjects
contained in that document. When it does so, an agency determines that
part of the record is "outside the scope" of a request and it does not include
it. This sometimes is referred to as the "scoping" of records in response to a
FOIA request and it is something not to be done by any agency lightly.
Underlying Considerations
In determining what should be included within the scope of a FOIA request,
agencies must bear in mind the following underlying considerations:
First, there is the basic fact that in most situations the FOIA requester will
be unfamiliar with the exact nature of the agency's recordkeeping system, its
filing practices, and the manner in which its files and records are compiled.
FOIA requesters often are entirely "in the dark" about the structure and

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 17 of 95
arrangement of the files and records that an agency will be searching
through in order to locate the particular records that are responsive to their
FOIA requests. When they formulate their requests, therefore, FOIA
requesters are generally using their best efforts to "reasonably describe" the
particular records that they are seeking from an agency's files in light of this
limited knowledge of what might actually be there.

Second, FOIA requesters seeking records on a certain subject often phrase
their requests in very broad and all-encompassing terms, with the primary
purpose of including any and all records pertaining to the subject or subjects
in which they are interested. It is only natural for FOIA requesters to be
concerned that records of interest to them might not be included by an
agency as responsive to their FOIA requests. Especially when they are
operating "in the dark," FOIA requesters tend to sweep broadly in their
requests for fear that doing otherwise might unintentionally limit their
requests and exclude something that they actually do seek to obtain.
Third, agencies tend to maintain their files and compile their records in the
manner that is most efficient for them and best facilitates the performance
of their primary agency missions. This means that they will combine
different subjects within files and records whenever it is efficient for them to
do so, even though this can cause some uncertainty and potential
inefficiency in processing FOIA requests for records on individual subjects.
Agencies should be mindful of this inherent conflict between standard
recordkeeping and FOIA-processing practices.

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Fourth, especially when a broad FOIA request is processed for wide-ranging
agency files, there is at least some potential for question about the scope of
the records that are responsive to that request. Because only the agency
ordinarily is aware of exactly what records exist within its files, it is up to it
to recognize a potential scope question and to handle it fairly from both its
and the requester's perspective.

No

Fifth, from the FOIA requester's perspective, the primary interest is in
obtaining the requested information as fully and as quickly as possible.
However, FOIA requesters also are interested in understanding how
agencies process their requests and in knowing of any assumption or
conclusion that may be reached by an agency about them. Though a
requester might not be interested in information pertaining to a subject
beyond the stated scope of his or her request, that requester has a strong
interest in learning about any determination that may be made regarding its
scope -- including the full grounds for it in relation to the particular formats
of existing documents. FOIA requesters are interested in being fully
informed of all such scope matters and in having the opportunity to address
them as a participant in the agency's administrative process.
Sixth, an additional consideration for many FOIA requesters is the potential
cost involved. In determining the volume of records that are within the
scope of a FOIA request, an agency in effect establishes the scope of FOIA
fees that potentially will be charged to the requester for that request. In
most cases, a FOIA requester will incur a document duplication charge for
records processed and disclosed in response to a request, a charge that can
range from ten cents per page to several times that amount at some
agencies. In some cases, when a request is made for a commercial purpose,
even more expensive "document review" charges can be incurred for the

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 18 of 95
documents that are included. See 5 U.S.C. § 552(a)(4)(A)(ii)(I). A requester
who receives and must pay for pages of documents that were not intended
to be within the request's scope can be aggrieved by that agency action as
well, so agencies have an obligation not to heedlessly include document
pages on superficial grounds.

Seventh, from the agency's perspective, there is a practical need to conduct
its FOIA operations without any unnecessary administrative burden. While
agencies create multiple-subject documents for sound programmatic
purposes, they retain an interest in not having their FOIA programs unduly
encumbered by that. The "processing" of a record's contents under the FOIA
can be a very labor-intensive and time-consuming process, a burden that
can be compounded if a FOIA request proceeds to the level of administrative
appeal and possibly to litigation. Agencies have a strong interest in not
undertaking such heavy burdens unnecessarily.
Eighth, for any agency that currently has a heavy backlog of pending FOIA
requests, an additional consideration is the importance of its efforts to deal
with that backlog and to devote its limited resources to serving its large
volume of FOIA requesters as efficiently and economically as reasonably
possible. The efficiency of administrative communications with FOIA
requesters regarding any scope-of-request matters is especially important to
such agencies.
Ninth, a final consideration is the importance of the public's trust in the
functioning of its government, which comes into play every time that an
agency deals with a member of the public on a matter of concern to that
person or institution. For many FOIA requesters, their dealings with a
federal agency on a FOIA request are a major part of their dealings with the
federal government overall, so it is all the more important that agencies
communicate forthrightly with FOIA requesters about the details of their
requests and about documents that may or may not be included on one
stated basis or another.

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

No

Approach to Document "Scoping"
Based upon these considerations, agencies should use the following general
approach to any potential "scoping" of a document in response to a FOIA
request:
Within a document page. First and foremost, information should not be
determined to be beyond the scope of a request on less than a page-by-page
basis. In other words, there should be no "scoping" within any document
page. If any of the information on a page of a document falls within the
subject matter of a FOIA request, then that entire page should be included
as within the scope of that request. Doing so provides useful context for the
FOIA requester, involves no additional duplication cost to the requester,
and ordinarily involves only a relatively minimal administrative burden on
the agency.
Within a document. An agency may determine that only part of a
multiple-subject document is responsive to a FOIA request (including any
document page that is required for meaningful context), but any "scoping"
of a document should be undertaken only when the circumstances fully
justify such a step. The agency must have a firm basis for reaching the
conclusion that the document pages in question deal with a subject that is

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 19 of 95
clearly beyond the scope of the requester's evident interest in the request.
An agency can make use of its administrative experience in drawing such
conclusions about the FOIA requests that it receives, but its communication
with the individual requester is essential in addressing any scope question.
While the patterns of such communications may vary from case to case, the
requester should be fully informed of any "scoping" determination in all
instances and should be given an opportunity to question or disagree with it.
In any instance in which a requester disagrees, the document pages involved
should be included without question by the agency.
Additionally, before an agency considers "scoping" a document, it should at
least preliminarily review the contents of the document pages in question
with an eye toward FOIA exemption applicability. In some cases, the
potentially "scoped" document pages might contain little or no exempt
information, such that they can be as easily included within the FOIA
request as not. In such a case, there is no good reason for those pages to be
"scoped" unless they are so voluminous that the agency is compelled to do
so purely as a cost savings to the requester.
This approach to the potential "scoping" of responsive records should be a
workable one for all federal agencies and is consistent with the few judicial
precedents to have adjudicated such issues under the FOIA. See Dettmann
v. United States Dep't of Justice, 802 F.2d 1472, 1474-77 (D.C. Cir. 1986);
Posner v. Department of Justice, 2 Gov't Disclosure Serv. (P-H) ¶ 82,229, at
82,650 (D.D.C. Mar. 9, 1982); Dunaway v. Webster, 519 F. Supp. 1059,
1083-84 (N.D. Cal. 1981).

peo
17
Pom t 22, 20
v.
Conclusion
m asn reasonablys
gfar a theyn Augu can to ensure
In sum, all federal agencies shouldYa
go as
do
ed in want hihave included within the scopes of
that they include whatcit
requesters
to ve
arc
their FOIA requests. Agencies 2, best do so through liberal interpretations
44can
5
of FOIA requests 15-5 limiting their use of document "scoping" to only
and by
o.that are justified by its underlying considerations. In all
N
those instances
instances, the key consideration is the need for full and open
communication with the FOIA requester, so that the requester can make a
fully informed decision about any document "scoping" as part of the
agency's administrative process.
Go to: FOIA Update Home Page
Topic(s):
FOIA

Component(s):
Office of Information Policy

January 11, 2017
New guidance addresses the impact of American Immigration Lawyers
Association v. EOIR , 830 F.3d 667 (D.C. Cir. 2016) on the practice of
“scoping” non-responsive records and provides principles for agencies to
follow when determining what constitutes a record.

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 20 of 95
March 23, 2011
Summaries of New Decisions - February 2011 As announced previously by
OIP, we are now posting up-to-date summaries of new court decisions. To
facilitate their review, the cases are broken down by FOIA Exemption or
procedural element and internal citations and quotations have been
omitted. OIP provides these cases summaries as a public service; due to
their nature as summaries, they are not intended to be authoritative or
complete statements of the facts or holdings of any of the cases...

November 3, 2009
Summaries of New Decisions -- September 2009 As announced previously
by OIP, we are now posting up-to-date summaries of new court decisions.
To facilitate their review, the cases are broken down by FOIA Exemption or
procedural element and internal citations and quotations have been
omitted. OIP provides these case summaries as a public service; due to their
nature as summaries, they are not intended to be authoritative or complete
statements of the facts or holdings of any of the cases...

peo
17
Pom t 22, 20
n v. ugus
Summaries of New Decisions -- March gma announced previously by
2009 As
Ya
on A
OIP, we are now posting up-to-date summaries of new court decisions. To
ed in rchived
it
facilitate their review, c cases are broken down by FOIA Exemption or
the
42, a
procedural element and 54
5internal citations and quotations have been
15omitted. OIP o.
N provides these case summaries as a public service; due to their
April 20, 2009

nature as summaries, they are not intended to be authoritative or complete
statements of the facts or holdings of any of the cases summarized,...

More blog posts
Updated August 13, 2014

| 950 Pennsylvania Avenue, NW Washington,
DC 20530-0001
ABOUT

RESOURCES

JUSTICE.GOV

CAREERS

Archive

Social Media
For Employees

The Attorney General

Business

Legal Careers

Accessibility

Budget & Performance

Forms

Interns, Recent Graduates,

Adobe Reader

Office of the

and Fellows

FOIA

Inspector General

No FEAR Act

Government

History

Publications

Privacy Program

Information for Victims in

AGENCIES

Large Cases

CONTACT

Information QualityResources
Privacy Policy

Open Government

Organizational Chart

NEWS

Legal Policies &

Plain Writing

Alphabetical Listing

Press Releases

Disclaimers

USA.gov

Blogs

BusinessUSA

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 21 of 95
Public Schedule
Videos
Photos

No

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 22 of 95
Department of Justice Guide to the Freedom of Information Act

Procedural Requirements
The Freedom of Information Act establishes a statutory scheme for the public to use
in making requests for agency records and imposes requirements on agencies to make such
records promptly available.1 To provide a general overview of the Act's procedural
requirements for responding to FOIA requests, this section follows a roughly chronological
discussion of how a typical FOIA request is processed -- from the point of determining
whether an entity in receipt of a request is subject to the FOIA in the first place to the review
of an agency's initial decision regarding a FOIA request on administrative appeal. In
administering the Act's procedural requirements, agencies should remember President
Obama's pronouncement that "[a] democracy requires accountability, and accountability
o
requires transparency."2 Accordingly, agencies should mpe
2017
Poadminister, the FOIA "with a clear
2 and equally important,
presumption: [i]n the face of doubt, opennessan v.
prevails."3 Moreover,
st 2
gm toon Augu a spirit of cooperation"4 and
the President has directed agenciesn Ya
to respond
requests "in
ed i rthat ed
the Attorney General has emphasized chiv"[u]nnecessary bureaucratic hurdles have no
cit
place in the 'new era of open4Government' that the President has proclaimed." 5 In
2, a
554 of sound administrative discretion, agencies should be
administering the FOIA, 5- a matter
1 as

No.

5 U.S.C. § 552(a)(3)(A) (2006 & Supp. IV 2010); see also id. at § 552(a)(3)(E) (prohibiting
certain agency FOIA disclosures to foreign governments or representatives of such
governments); FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted
12/23/02) (advising on 2002 amendment of subsection (a)(3)).
1

Presidential Memorandum for Heads of Executive Departments and Agencies Concerning
the Freedom of Information Act [hereinafter President Obama's FOIA Memorandum], 74
Fed. Reg. 4683 (Jan. 21, 2009); see also Attorney General Holder's Memorandum for Heads
of Executive Departments and Agencies Concerning the Freedom of Information Act, 74
Fed. Reg. 51879 (Oct. 8, 2009) [hereinafter Attorney General Holder's FOIA Guidelines];
FOIA Post, "OIP Guidance: President Obama's FOIA Memorandum and Attorney General
Holder's FOIA Guidelines - Creating a New Era of Open Government" (posted 4/17/09).
2

3

President Obama's FOIA Memorandum, 74 Fed. Reg. at 4683.

4

Id.

5

Attorney General Holder's FOIA Guidelines, 74 Fed. Reg. at 51879-02.

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 23 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
mindful of the importance and benefits of communicating with requesters to effectuate
these principles.6
OPEN Government Act
The OPEN Government Act of 2007 amended several procedural aspects of the
FOIA, setting forth new agency requirements and statutorily mandating existing practices
that assist requesters and facilitate the processing of FOIA requests.7 Among these
practices, the Open Government Act requires that agencies assign request tracking
numbers, provide request status information, and maintain a FOIA Public Liaison to assist
requesters.8
Specifically, agencies must assign, and provide to requesters, an individualized
tracking number for any request that will take longer than ten days to process. 9 Agencies
must also establish a telephone line or an internet site where requesters, using the assigned
tracking number, can obtain information regarding the status of their request, including the
date the agency received the request and an estimated date when the agency will complete
its action on it.10
The OPEN Government Act codified the role of FOIA Public Liaisons, who are
"responsible for assisting in reducing delays, increasing transparency and understanding of
the status of requests, and assisting in the resolution of disputes." 11 Likewise, the role of the
Chief FOIA Officer is codified.12 This official has "agency-wide responsibility for efficient
peo
17
Pom top22, 20 officials and to the
and appropriate compliance" with the FOIA and v.
n reports to st agency FOIA.13
Attorney General regarding the agency'sagma
performance in ugu
A implementing the

nY
d on
ted i rchiv of
ciThe Importancee Good Communication with FOIA
FOIA Post, “OIP Guidance:
2, a
Requesters” (posted 3/1/10) (explaining that simple practices which increase
5544
15communication can o. a long way to ensuring that agencies are working with FOIA
N go cooperation" that President and Attorney General directed).
requesters in "spirit of
6

See OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524; see also FOIA
Post, "Congress Passes Amendments to the FOIA" (posted 1/9/08) (summarizing
substantive sections of OPEN Government Act).
7

8

OPEN Government Act §§ 6, 7, 10 (codified at 5 U.S.C. § 552(a)(6)(B)(ii), (a)(7), (l)).

Id. § 7 (codified at 5 U.S.C. § 552(a)(7)(A)); see FOIA Post, "OIP Guidance: Assigning
Tracking Numbers and Providing Status Information for Requests" (posted 11/18/08).
9

OPEN Government Act § 7 (codified at 5 U.S.C. § 552(a)(7)(B)); see FOIA Post, "OIP
Guidance: Assigning Tracking Numbers and Providing Status Information for Requests"
(posted 11/18/08).
10

11

OPEN Government Act § 10 (codified at 5 U.S.C. § 552(l)).

12

OPEN Government Act § 10 (codified at 5 U.S.C. § 552(j)).

13

OPEN Government Act § 10 (codified at 5 U.S.C. § 552(k)).
2

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 24 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
In addition, the OPEN Government Act established an office within NARA to "offer
mediation services to resolve disputes"14 and it directed GAO to audit agencies on their
implementation of the FOIA. 15 The OPEN Government Act set forth extensive new
reporting requirements for agencies' annual FOIA reports16 and established new reporting
requirements for the Attorney General and the Special Counsel concerning referrals to the
Special Counsel.17 (For a discussion of these Attorney General and Special Counsel
reporting requirements, see Litigation Considerations, Referral to Special Counsel and
Limitations on Filing Frivolous Suits, below).
The OPEN Government Act also amended the definition of agency records,18 and
established new rules concerning FOIA's time limits, 19 routing of misdirected requests,20
assessment of fees,21 and document marking.22 (For a discussion of these provisions, see
Procedural Requirements, "Agency Records;" Procedural Requirements, Time Limits; and
Procedural Requirements, "Reasonably Segregable" Obligation, below).
Finally, the Act codified the definition of a "representative of the news media"23 for
fee purposes, and the definition of a "substantially prevail[ing]" party for attorney fees
OPEN Government Act § 10 (codified at 5 U.S.C. § 552(h)); see FOIA Post, "OIP Guidance:
Notifying Requesters of the Mediation Services Offered by OGIS" (posted July 9, 2010)
(discussing creation of Office of Government Information Services at NARA).
14

peo
17
Pom t 22, 20
OPEN Government Act § 10 (codified at 5 U.S.C.v. 552(i)).
s
n §
gma on Augu
a
16 OPEN Government Act § 10 (codified at 5 U.S.C. § 552(e)); see FOIA Post, "2008
in Y i ed
cited of AnnualvFOIA Reports" (posted 5/22/08).
Guidelines for Agency Preparation2, arch
44
5-55
17 OPEN Government . 1 § 5 (codified at 5 U.S.C. § 552(a)(4)(F)).
No Act
15

OPEN Government Act § 6 (codified at 5 U.S.C. § 552(f)(2)); see FOIA Post, "OIP
Guidance: Treatment of Agency Records Maintained For an Agency By a Government
Contractor for Purposes of Records Management" (posted 09/09/08).
18

OPEN Government Act § 6 (codified at 5 U.S.C. § 552(a)(6)(A)); see FOIA Post, "OIP
Guidance: New Limitations on Tolling the FOIA's Response Time" (posted 11/18/08).
19

OPEN Government Act § 6 (codified at 5 U.S.C. § 552(a)(6)(A)(ii)); see FOIA Post, “OIP
Guidance: New Requirement to Route Misdirected FOIA Requests” (posted 11/18/08).
20

OPEN Government Act § 6 (codified at 5 U.S.C. § 552(a)(4)(A)(viii)); see FOIA Post, "OIP
Guidance: New Limitations on Assessing Fees" (posted 11/18/08).
21

OPEN Government Act § 12 (codified at 5 U.S.C. § 552(b)); see FOIA Post, "OIP Guidance:
Segregating and Marking Documents for Release in Accordance with the OPEN Government
Act" (posted 10/23/08).
22

23

OPEN Government Act § 3 (codified at 5 U.S.C. § 552(a)(4)(A)(ii)).
3

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 25 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
purposes.24 (For a discussion of these provisions, see Fees and Fee Waivers, Fees, Requester
Categories; and Attorney Fees, Eligibility, below).
Entities Subject to the FOIA
Agencies within the Executive Branch of the federal government, independent
regulatory agencies, and some components within the Executive Office of the President, are
subject to the FOIA.25 Amtrak was made subject to the FOIA by statute.26
The Court of Appeals for the District of Columbia Circuit utilizes a functional
definition of "agency" to determine if an office within the Executive Office of the President is
subject to the FOIA. Offices within the Executive Office of the President that "'wield[]
substantial authority independent of the President'" are subject to the FOIA. 27 The Council
on Environmental Quality (a unit within the Executive Office of the President) has been
found to be an agency subject to the FOIA because its investigatory, evaluative, and
recommendatory functions exceed merely advising the President. 28 Similarly, because the
Office of Management and Budget "exercises substantial independent authority" to prepare
the annual budget and the Office of Science and Technology has independent authority to
evaluate and fund research, both are subject to the FOIA.29
In contrast, the Office of the President, including the "'President's immediate
personal staff or units in the Executive Office whose sole function is to advise and assist the
President'" are not agencies under the FOIA. 30 Under mpeo
the advise and 17
0 assist analysis, the

,2
Po
n v. ugust 22
a
Yagm d on A
24 Id. § 4 (codified at 5 U.S.C. § 552(a)(4)(E)(ii)).
in
cited , archive
442
25 5 U.S.C. § 552(f)(1) (2006 & Supp. IV 2010); see, e.g., Energy Research Found. v. Def.
5-55
1
Nuclear Facilities No. Bd., 917 F.2d 581, 584-85 (D.C. Cir. 1990) (determining that
Safety

Defense Nuclear Facilities Safety Board is an agency because its functions include, inter alia,
"investigat[ing], evaluat[ing] and recommend[ing]").
See Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., 376 F.3d
1270, 1277 n.5 (11th Cir. 2004) (citing 49 U.S.C. § 24301(e) (2006) and noting that
"[a]lthough Amtrak is not a federal agency, it must comply with FOIA's requirements").
26

Citizens for Responsibility & Ethics in Washington, 566 F.3d 219, 222-23 (D.C. Cir. 2009)
(quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)).
27

28

Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980).

Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978); Soucie v. David, 448, F.2d
1067, 1073-75 (D.C. Cir. 1971).
29

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting
H.R. Rep. No. 93-1380, at 15, reprinted in House Comm. on Gov't Operations and Senate
Comm. on the Judiciary, 94th Cong. 1st Sess., Freedom of Information Act and
Amendments of 1974 (P.L. 93-502) Sourcebook); see also Moore v. FBI, No. 11-1067, 2012
WL 3264566 (D.D.C. Aug.13, 2012); Taitz v. Ruemmler, No. 11-5306, 2012 U.S. App. LEXIS
30

4

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 26 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Office of Counsel to the President, 31 the Executive Residence staff, 32 the National Security
Council,33 the National Energy Policy Development Group,34 the Council of Economic
Advisers,35 the Vice President and his staff, 36 and the former Presidential Task Force on
Regulatory Relief have all been found not to be agencies subject to the FOIA.37
Courts also have addressed whether the FOIA applies to the Smithsonian
Institution,38 and have held that it does not apply to state and local governments,39 foreign
10714 (D.C. Cir. May 25, 2012) (per curiam); Nat'l Sec. Archive v. Archivist of the United
States, 909 F.2d 541, 544 (D.C. Cir. 1990).
Nat'l Sec. Archive v. Executive Office of the President, 688 F. Supp. 29, 31 (D.D.C. 1988),
aff'd sub nom. Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir.
1990).
31

32

Sweetland v. Walters, 60 F.3d 852, 855-856 (D.C. Cir. 1995).

33

Armstrong v. Executive Office of the President, 90 F.3d 553, 559-65 (D.C. Cir. 1996).

34

Judicial Watch, Inc. v. DOE, 412 F.3d 125, 127 (D.C. Cir. 2005).

35

Rushforth v. Council of Econ. Advisers, 762 F.2d 1038,mpeo (D.C.0171985).
o 1042-43 2 Cir.

v. P u 22,
an Group,u219 st Supp. 2d 20, 55 (D.D.C.
g F.
36 Judicial Watch, Inc. v. Nat'l Energy Policy Dev.
Yagm d on A
in
2002).
cited , archive
442
37 Meyer v. Bush, 981 F.2d -55 1294 (D.C. Cir. 1993) (reasoning that Task Force chaired by
51288,
1
No.
Vice President and composed of cabinet members was not subject to FOIA because cabinet
members acted not as heads of their departments "but rather as the functional equivalents
of assistants to the President").

See Cotton v. Heyman, 63 F.3d 1115, 1119 & n.2, 1123 (D.C. Cir. 1995) (refusing to examine
district court's ruling that Smithsonian Institution was agency under FOIA due to doctrine
of direct estoppel, but noting that Smithsonian Institution "could reasonably interpret our
precedent to support its position that it is not an agency under FOIA" and stressing that
agency status holding "is binding only between these two parties"); cf. Dong v. Smithsonian
Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (holding that Smithsonian Institution is not an
agency for purposes of Privacy Act of 1974 (5 U.S.C. § 552a (2006)), as it is neither
"establishment of the [E]xecutive [B]ranch" nor "government-controlled corporation").
38

See Sykes v. U.S., No. 11-4005, 2012 WL 5974285, at *7 (6th Cir. Nov. 29, 2012)
(affirming district court dismissal of amended complaint because FOIA does not apply to
state entities); Moreno v. Curry, No. 06-11277, 2007 WL 4467580, at *1-2 (5th Cir. Dec. 20,
2007) (unpublished disposition) (affirming district court finding that FOIA does not apply
to state or municipal agencies); Dunleavy v. New Jersey, 251 F. App'x 80, 83 (3d Cir. 2007)
(unpublished disposition) (stating that FOIA does not impose obligations on state agencies),
cert. denied, 128 S. Ct. 1483 (2008); Blankenship v. Claus, 149 F. App'x 897, 898 (11th Cir.
Sept. 7, 2005); Lau v. Sullivan County Dist. Att'y, 201 F.3d 431 (2d Cir. Nov. 12, 1999)
39

5

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 27 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
governments,40 municipal entities,41 the courts,42 other entities of the Judicial Branch,43
Congress,44 and presidential transition teams.45
(unpublished disposition); Martinson v. DEA, No. 96-5262, 1997 WL 634559, at *1 (D.C.
Cir. July 3, 1997); see also Willis v. DOJ, 581 F. Supp. 2d 57, 67-68 (D.D.C. 2008) (Missouri
Police Department); Miller v. S.C. Dep't of Prob., Parole, and Pardon Servs., No. 08-3836,
2008 WL 5427754, at *3 (D.S.C. Dec. 31, 2008) (state agencies or departments); Rayyan v.
Sharpe, No. 08-324, 2008 WL 4601427, at *3 (W.D. Mich. Oct. 15, 2008) (state agencies);
Foley v. Village of Weston, No. 06-350, 2006 WL 3449414, at *5 (W.D. Wis. Nov. 28, 2006)
(local county government, sheriff's department, and sheriff); Brown v. City of Detroit, No.
05-60162, 2006 WL 3196297, at *1 (E.D. Mich. Sept. 11, 2006) (magistrate's
recommendation) (state or local governments), adopted, No. 05-60162, 2007 WL 1796228
(E.D. Mich. Oct. 30, 2006); Gabbard v. Hall County, Ga., No. 06-37, 2006 U.S. Dist. LEXIS
56662, at *4 (M.D. Ga. Aug. 14, 2006) (state or local agencies); Davis v. Johnson, No. 052060, 2005 U.S. Dist. LEXIS 12475, at *1 (N.D. Cal. June 20, 2005) (state or county
agency); Dipietro v. EOUSA, 357 F. Supp. 2d 177, 182 (D.D.C. 2004) (citing Beard v. DOJ,
917 F. Supp. 61, 63 (D.D.C. 1996)) (county sheriff's department); Mount of Olives Paralegals
v. Bush, No. 04-C-620, 2004 U.S. Dist. LEXIS 8085, at *6 (N.D. Ill. May 6, 2004) (state
agencies); McClain v. DOJ, No. 97-C-0385, 1999 WL 759505, at *2 (N.D. Ill. Sept. 1, 1999)
(state attorney general), aff'd, 17 F. App'x 471 (7th Cir. 2001); Beard v. DOJ, 917 F. Supp. 61,
63 (D.D.C. 1996) (District of Columbia Police Department).

o
P
2,
.
an v August 2
41 See Renfro v. City of Bartlesville, No. 12-CV-208-GKF-PJC, 2012 WL 5996376 (N.D. Okla.
agm o
in Ynot apply to n
Nov. 30, 2012) (finding thatcited does chived municipalities); Hammerlord v. City of
FOIA
San Diego, No. 11-1564, 2012 U.S. Dist. LEXIS 157740, at *16 (S.D. Cal. Nov. 2, 2012)
2, ar
44not subject to FOIA despite fact commission receives
-55
(finding that housing commission
o.v.15 of Plano, No. 06-102, 2007 WL 1438694, at *2 (E.D. Tex. May
N
federal funds) Nelson City
40

e
Moore v. United Kingdom, 384 F.3d 1079, 1089-90 (9th Cir. 2004). 017
2
omp

14, 2007) (dismissing FOIA claims against municipal corporation); Cruz v. Superior Court
Judges, No. 04-1103, 2006 WL 547930, at *1 (D. Conn. Mar. 1, 2006) (municipal police
department); Jones v. City of Indianapolis, 216 F.R.D. 440, 443 (S.D. Ind. 2003) (municipal
agencies).
See Megibow v. Clerk of the U.S. Tax Court, 432 F.3d 387, 388 (2d Cir. 2005) (per
curiam) (affirming district court's conclusion that U.S. Tax Court is not subject to FOIA);
United States v. Casas, 376 F.3d 20, 22 (1st Cir. 2004) (stating that "[t]he judicial branch is
exempt from the [FOIA]"); United States v. Choate, 102 F. App'x 634, 635 (10th Cir. 2004)
(federal courts); United States v. Mitchell, No. 03-6938, 2003 WL 22999456, at *1 (4th Cir.
Dec. 23, 2003) (same) (non-FOIA case); United States v. Alcorn, 6 F. App'x 315, 317 (6th
Cir. 2001) (same) (non-FOIA case); Gaydos v. Mansmann, No. 98-5002, 1998 WL 389104,
at *1 (D.C. Cir. June 24, 1998) (per curiam); Warth v. DOJ, 595 F.2d 521, 523 (9th Cir.
1979); Guidetti v. NFN Donahue, No. 6-11-1249-HMH-KFM, 2012 U.S. Dist. LEXIS 130368,
(D.S.C. Sept. 13, 2012) (federal courts); United States v. Neal, No. 90-0003, 2007 U.S. Dist.
LEXIS 10176, at *2 (D. Ariz. Feb. 13, 2007) (federal district courts); Benjamin v. U.S. Dist.
Court, No. 05-941, 2005 WL 1136864, at *1 (M.D. Pa. May 13, 2005) (same).
42

See Andrade v. U.S. Sentencing Comm'n, 989 F.2d 308, 309-10 (9th Cir. 1993)
(Sentencing Commission, as independent body within judicial branch, is not subject to
43

6

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 28 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
In Forsham v. Harris, the Supreme Court held that private grantees receiving federal
financial assistance are not agencies subject to the FOIA.46 The Court reasoned that private
FOIA.); Banks v. DOJ, 538 F. Supp. 2d 228, 231-32 (D.D.C. Mar. 16, 2008) (U.S. Probation
Office and Administrative Office of the U.S. Courts); Coleman v. Lappin, No. 06-2255, 2007
WL 1983835, at *1 n.1 (D.D.C. July 3, 2007) (unpublished disposition) (stating that "Office
of Bar Counsel is a creature of the District of Columbia Court of Appeals, and is not a federal
agency to which the FOIA applies"); United States v. Richardson, No. 2001-10, 2007 U.S.
Dist. LEXIS 77, at *3 (W.D. Pa. Jan. 3, 2007) (federal grand jury); Woodruff v. Office of the
Pub. Defender, No. 03-791, slip op. at 3 (N.D. Cal. June 3, 2004) (Federal Public Defender's
Office, which is controlled by courts, is not agency under FOIA.); Wayne Seminoff Co. v.
Mecham, No. 02-2445, 2003 U.S. Dist. LEXIS 5829, at *20 (E.D.N.Y. Apr. 10, 2003)
("[T]he Administrative Office of the United States Courts is not an agency for purposes of
FOIA."), aff'd, 82 F. App'x 740 (2d Cir. 2003); United States v. Ford, No. 96-00271-01, 1998
WL 742174, at *1 (E.D. Pa. Oct. 21, 1998) ("The Clerk of Court, as part of the judicial branch,
is not an agency as defined by FOIA."); Callwood v. Dep't of Prob., 982 F. Supp. 341, 342
(D.V.I. 1997) ("[T]he Office of Probation is an administrative unit of [the] Court . . . [and] is
not subject to the terms of the Privacy Act.").
Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990); see also Dunnington v. DOD,
No. 06-0925, 2007 WL 60902, at *1 (D.D.C. Jan. 8, 2007) (ruling that U.S. Senate and
House of Representatives are not agencies under FOIA); see also Mayo v. U.S. Gov't
peo , 2017
Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1994) (deciding that Government Printing Office
Pomto FOIA); Owens v. Warner, No.
is part of congressional branch and therefore is n vsubject ust 22
not .
gma othat ug
93-2195, slip op. at 1 (D.D.C. Nov. 24, Ya (ruling n Asenator's office is not subject to
1993)
FOIA), summary affirmance granted, No. 93-5415, 1994 WL 541335 (D.C. Cir. May 25,
ed in rchived
cit
1994).
42, a
44

54

-5
o. 15

See Ill. Inst. for N
Continuing Legal Educ. v. U.S. Dep't of Labor, 545 F. Supp. 1229, 1231-33
(N.D. Ill. 1982); cf. Wolfe v. HHS, 711 F.2d 1077, 1079, 1082 (D.C. Cir. 1983) (dictum)
(treating presidential transition team as not agency subject to FOIA and citing with approval
Ill. Inst., 545 F. Supp. at 1231-33).
45

445 U.S. 169, 179-80 (1980); see also Missouri v. U.S. Dep't of Interior, 297 F.3d 745, 750
(8th Cir. 2002) (holding that "[t]he provision of federal resources, such as federal funding,
is insufficient to transform a private organization into a federal agency"); Pub. Citizen
Health Research Group v. HEW, 668 F.2d 537, 543-44 (D.C. Cir. 1981) (stating that medical
peer review committees are not agencies under FOIA); Irwin Mem'l Blood Bank v. Am. Nat'l
Red Cross, 640 F.2d 1051, 1057 (9th Cir. 1981) (determining that American National Red
Cross is not an agency under FOIA); Holland v. FBI, No. 04-2593, slip op. at 8 (N.D. Ala.
June 30, 2005) (citing Irwin Mem'l Blood Bank, 640 F. Supp. 2d 1051) (same); Gilmore v.
DOE 4 F. Supp. 2d 912, 919-20 (N.D. Cal. 1998) (finding that privately owned laboratory
that developed electronic conferencing software, for which government owned nonexclusive
license regarding its use, is not "a government-controlled corporation" as it is not subject to
day-to-day supervision by federal government, nor are its employees or management
considered government employees); Leytman v. N.Y. Stock Exch., No. 95 CV 902, 1995 WL
761843, at *2 (E.D.N.Y. Dec. 6, 1995) (relying on Indep. Investor Protective League v. N.Y.
Stock Exch., 367 F. Supp. 1376, 1377 (S.D.N.Y. 1973), to find that although "[t]he Exchange
is subject to significant federal regulation . . . it is not an agency of the federal government");
46

7

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 29 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
grantees are not subject to the FOIA because Congress "exclud[ed] them from the definition
of 'agency,' an action consistent with its prevalent practice of preserving grantee
autonomy."47 The Court observed that private grantees are not converted to government
actors "absent extensive, detailed, and virtually day-to-day supervision."48 In addition,
courts have held that private citizens and corporations,49 and non-profit organizations50 are
not subject to the FOIA.
Rogers v. U.S. Nat'l Reconnaissance Office, No. 94-B-2934, slip op. at 7 (N.D. Ala. Sept. 13,
1995) (observing that "[t]he degree of government involvement and control over [private
organizations which contracted with government to construct office facility is] insufficient
to establish companies as federal agencies for purposes of the FOIA").
47

445 U.S. at 179.

Id. at 180 (citing United States v. Orleans, 425 U.S. 807, 818 (1976)). But see OMB
Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed.
Reg. 54,926 (Oct. 8, 1999) (requiring agencies to make research data available to public
through FOIA in response to "request for research data relating to published research
findings produced under an award that were used by the [government] in developing an
agency action that has the force and effect of law").
48

peo
17
Pom F.22, 20 744 (9th Cir.
49 See Henderson v. Office & Prof'l Employees Int'l Union, 143 t App'x 741,
n v. ug s
gma on [FOIAuclaim] because union and
2005) (finding that "district court properly dismissed A
Ya
ed in rchived
union representative are not 'agencies' and therefore cannot be held liable under the
cit
FOIA"); Henderson v. Sony Pictures,Entm't, Inc., 135 F. App'x 934, 935 (9th Cir. 2005)
2 a
5544 at *1 (private attorney and law firms); In re Olsen,
(same); Mitchell, 2003 15-22999456,
WL
No.
No. UT-98-088, 1999 Bankr. LEXIS 791, at *11 (B.A.P. 10th Cir. June 24, 1999) (bankruptcy

trustee); Buemi v. Lewis, 51 F.3d 271 (6th Cir. 1995) (unpublished table decision)
(concluding that FOIA applies to federal agencies and not to private individuals); Rutland v.
Santander Consumer USA, Inc., No. 11-15250, 2012 WL 3060949 (E.D. Mich. July 26, 2012)
(finding private corporation not subject to FOIA); Jackson v. Ferrell, No. 09-00025, 2009
U.S. Dist. LEXIS 24893, at *3 (E.D. Mo. Mar. 25, 2009) (finding that federal attorney is not
an agency); Montgomery v. Sanders, No. 07-470, 2008 WL 5244758, at *6 (S.D. Ohio Dec.
15, 2008) (analyzing defense contractor's relationship with agency and finding that
contractor is not "government-controlled corporation" subject to FOIA); Few v. Liberty Mut.
Ins. Co., 498 F. Supp. 2d 441, 452 (D.N.H. 2007) (private corporations and individuals);
Furlong v. Cochran, No. 06-05443, 2006 WL 3254505, at *1 (W.D. Wash. Nov. 9, 2006)
(lawyer and law firm); Torres v. Howell, No. 03-2227, 2004 U.S. Dist. LEXIS, at *8 (D.
Conn. Dec. 6, 2004) (private business and nonfederal attorney); Allnutt v. DOJ, 99 F. Supp.
2d 673, 678 (D. Md. 2000) (private bankruptcy trustee), aff'd per curiam sub nom. Allnut v.
Handler, 8 F. App'x 225 (4th Cir. 2001); Simon v. Miami County Incarceration Facility, No.
05-191, 2006 WL 1663689, at *1 (S.D. Ohio May 5, 2006) (communications company);
Germosen v. Cox, No. 98 Civ. 1294, 1999 WL 1021559, at *20 (S.D.N.Y. Nov. 9, 1999)
(private individuals); Allnutt v. U.S. Trustee, Region Four, No. 97-02414, slip op. at 6
(D.D.C. July 31, 1999) (private bankruptcy trustee), appeal dismissed for lack of jurisdiction,
No. 99-5410 (D.C. Cir. Feb. 2, 2000).
8

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 30 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Finally, certain operational files of some intelligence agencies are not within the
scope of the FOIA. The Central Intelligence Agency Information Act of 1984 affords special
FOIA treatment to CIA "operational files."51 The National Defense Authorization Act for
Fiscal Year 2006 placed the "operational files" of the Defense Intelligence Agency beyond
the scope of the FOIA.52 Section 933(a) of that Act added a section to the National Security
Act of 1947 that provides that "[t]he Director of the Defense Intelligence Agency, in
coordination with the Director of National Intelligence, may exempt operational files of the
Defense Intelligence Agency from the provisions of [the FOIA]." 53 (For further discussion of
this subject, see Exemption 3, "Operational Files" Provisions, below.)
"Agency Records"
As the Supreme Court noted in Forsham v. Harris, the FOIA originally did not define
the term "agency records."54 For context in defining the term, the Court in 1980 looked to
the Records Disposal Act to determine Congress's intent regarding the definition of a
"record."55 The Records Disposal Act defines a record as "books, papers, maps,
photographs, machine readable materials, or other documentary materials, regardless of
physical form or characteristics, made or received by an agency."56 Regarding the types of
documentary material considered records under the FOIA, one court has determined that

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
50 Lazaridis v. DOJ, 713 F. Supp. 2d 64, 67-69 (D.D.C. 2010) (holding that National Center
in Y ved
cited andrthe iInternational Centre for Missing and Exploited
for Missing and Exploited Children , a ch
442
Children, both nonprofit organizations, were not subject to FOIA because their "seeming
5-55 ancillary to its information and educational mission.'"
1
'public authority' [are] 'entirely
No.
(quoting Dong v. Smithsonian Inst., 125 F. 3d 877, 882 (D.C. Cir. 1997))).

50 U.S.C. § 431 (2006); see also Morley v. CIA, 508 F.3d 1108, 1116-19 (D.C. Cir. 2007)
(concluding that request met criteria of exception to rule that CIA "[o]perational files are
exempt from FOIA disclosure" and requiring agency to search such files upon remand since
it had not initially done so); FOIA Update, Vol. V, No. 4, at 1-2 (discussing statutory removal
of CIA "operational files" from scope of FOIA as threshold matter).
51

Pub. L. No. 109-163, § 933(a), 119 Stat. 34 (codified at 50 U.S.C. § 432c (2006)); see also
50 U.S.C. § 432b (2006) (providing same protective treatment to "operational files" of
NSA).
52

53
54

50 U.S.C. § 432c.
445 U.S. 169, 182-183 (1980).

55

Id.

56

Id. at 183 (quoting Records Disposal Act, 44 U.S.C. § 3301 (1980)).
9

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 31 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
"records" do not include tangible, evidentiary objects,57 while other courts have found that
audiotape and motion picture film are records. 58
As a result of the 1996 amendments to the FOIA,59 Congress included a definition of
the term "records" in the FOIA, defining it as including "any information that would be an
agency record . . . when maintained by an agency in any format, including an electronic
format."60 The question of whether computer software is included within the definition has
been decided according to the particular nature and functionality of the software at issue. 61
In DOJ v. Tax Analysts, the Supreme Court articulated a two-part test for
determining when a "record" constitutes an "agency record" under the FOIA: "Agency
records" are records that are (1) either created or obtained by an agency, and (2) under
agency control at the time of the FOIA request. 62 Inasmuch as the "agency record" analysis
Nichols v. United States, 325 F. Supp. 130, 135-36 (D. Kan. 1971) (holding that archival
exhibits consisting of guns, bullets, and clothing pertaining to assassination of President
Kennedy are not "records"), aff'd on other grounds, 460 F.2d 671 (10th Cir. 1972).
57

See N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (holding that
audiotape of Space Shuttle Challenger astronauts is "record," as "FOIA makes no distinction
between information in lexical and . . . non-lexical form"); Save the Dolphins v. U.S. Dep't of
Commerce, 404 F. Supp. 407, 410-11 (N.D. Cal. 1975) (finding that motion picture film is
o
"record" for purposes of FOIA).
mpe
2017
58

,
Po
n v. ugust 22
a
59 Electronic Freedom of Information Act gm
YaAmendments of 1996, Pub. L. No. 104-231, 110
on A
Stat. 3048.
ed in rchived
cit
2, a
60 5 U.S.C. § 552(f)(2)(A) (2006 & Supp. IV 2010).
5544
15No.

Compare Gilmore v. DOE, 4 F. Supp. 2d 912, 920-21 (N.D. Cal. 1998) (holding that video
conferencing software developed by privately owned laboratory was not a record under
FOIA because it was "not designed to be . . . responsive to any particular database" and
"does not illuminate anything about [agency's] structure or decision-making process"), with
Cleary, Gottlieb, Steen & Hamilton v. HHS, 844 F. Supp. 770, 781-82 (D.D.C. 1993)
(concluding that software program was a record because it was "uniquely suited to its
underlying database" such that "the software's design and ability to manipulate the data
reflect the [agency's study]," thereby "preserving information and 'perpetuating
knowledge.'" (quoting DiViaio v. Kelley, 571 F.2d 538, 542 (10th Cir. 1978))). Cf. Essential
Info., Inc. v. USIA, 134 F.3d 1165, 1166 n.3 (D.C. Cir. 1998) (dictum) (suggesting that
internet addresses are not records but merely means to access records).
61

492 U.S. 136, 144-45 (1989) (holding that court opinions in agency files are agency
records); see also Callaway v. Dep't of Treasury, No. 04-1506, 2012 U.S. Dist. LEXIS 141034,
at *14 (D.D.C. Sept. 30, 2012) (holding that FOIA "'only obligates [Customs] to provide
access to those [records] which it in fact has created and retained,'" and, "need not produce
records maintained by another federal government agency or obtain records from any other
sources" (quoting Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 153
(1980))).
62

10

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 32 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
typically hinges upon whether an agency has "control" over a record,63 courts have identified
four factors to consider when evaluating agency "control" of a record: "'(1) the intent of the
document's creator to retain or relinquish control over the record[ ]; (2) the ability of the
agency to use and dispose of the record as it sees fit; (3) the extent to which agency
personnel have read or relied upon the document; and (4) the degree to which the document
was integrated into the agency's record systems or files.'"64 Agency "control" is the
See, e.g., Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., 601 F. 3d
158, 160-162 (2d Cir. 2010) (examining Board's regulations and authorizing statute to
conclude that certain Federal Reserve Bank loan records were not agency records because
they were not under Board control, but conversely that Bank administrative records are
agency records); Int'l Bhd. of Teamsters v. Nat'l Mediation Bd., 712 F.2d 1495, 1496 (D.C.
Cir. 1983) (determining that transitory possession of gummed-label mailing list, as required
by court order, was not sufficient to give agency "control" over record); Am. Small Bus.
League v. SBA, No. 08-00829, 2008 WL 3977780 (N.D. Cal. Aug. 26, 2008) (concluding
that records in procurement database maintained by GSA were under SBA "control"
because, inter alia, SBA directed GSA to analyze database and extract information for SBA
use, and because fact that "a list was never printed out . . . or never exported and saved as a
separate electronic file apart from the raw database" does not mean records were not
"created" at time of FOIA request); McErlean v. DOJ, No. 97-7831, 1999 WL 791680, at *11
(S.D.N.Y. Sept. 30, 1999) (finding that agency had no "control" over requested records
because it agreed to restrictions on their dissemination and useo
that were requested by
pe No. , 2017 1992 U.S. Dist.
confidential source who provided them); KDKA v. Thornburgh,
Pom that Canadian Safety Board
2 90-1536,
LEXIS 22438, at *16-17 (D.D.C. Sept. 30, 1992) n v.
(concludingust 2
g
ma not under
report of aircrash, although possessedYaNTSB, ison Au agency "control," because of
by g
in
d
restrictions on its disseminationd
cite imposed byive
rch Convention on International Civil Aviation); to
Teich v. FDA, 751 F. Supp. 243,442, a (D.D.C. 1990) (holding that documents submitted
248-49
FDA in "'legitimate conduct 55its official duties'" are agency records notwithstanding FDA's
5- of
1
No.
presubmission review regulation allowing submitters to withdraw their documents from
agency's files (quoting Tax Analysts, 492 U.S. at 145)); Rush v. Dep't of State, 716 F. Supp.
598, 600 (S.D. Fla. 1989) (finding that correspondence between former ambassador and
Henry Kissinger (then Assistant to the President) were agency records of Department of
State as it exercised control over them); McCullough v. FDIC, No. 79-1132, 1980 U.S. Dist.
LEXIS 17685, at *6 (D.D.C. July 28, 1980) (concluding that state report transmitted to FDIC
remains under state's control and is not agency record in light of state confidentiality
statute, but that other reports transmitted to agency by state regulatory authorities might be
agency records because "it is questionable whether [state authorities] retained control" over
them); see also Baizer v. U.S. Dep't of the Air Force, 887 F. Supp. 225, 228-29 (N.D. Cal.
1995) (holding that database of Supreme Court decisions, used for reference purposes or as
research tool, is not agency record); FOIA Post, "FOIA Counselor Q&A" (posted 1/24/06)
(advising that "electronic databases to which an agency has no more than 'read only' access"
-- e.g., "LexisNexis, Westlaw, and other such data services" -- are not "agency records"
under FOIA); FOIA Update, Vol. XIII, No. 3, at 5 (advising that records subject to
"protective order" issued by administrative law judge remain within agency control and are
subject to FOIA).
63

Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (quoting Tax Analysts v. DOJ, 845 F.2d
1060, 1069 (D.C. Cir. 1988)); see also Judicial Watch v. Fed. Hous. Fin. Agency, 646 F. 3d
924, 928 (D.C. Cir. 2011) ("[W]here an agency has neither created nor referenced a
64

11

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 33 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
predominant consideration in determining whether records generated or maintained by a
government contractor are "agency records" under the FOIA. 65 The FOIA's definition of
document in the 'conduct of its official duties,' the agency has not exercised the degree of
control required to subject the document to disclosure under FOIA" (quoting Tax Analysts,
492 U.S. at 145)); Consumer Fed'n of Am. v. USDA, 455 F.3d 283, 288 (D.C. Cir. 2006)
(determining that agency employees' electronic calendars maintained on work computers
were not agency records because they were not distributed to other employees so that they
could perform their duties); Judicial Watch, Inc. v. DOE, 412 F.3d 125, 127 (D.C. Cir. 2005)
(holding that "records created or obtained by employees detailed from an agency to the
NEPDG [an advisory group within Office of the Vice President] are not 'agency records'
subject to disclosure under the FOIA"); Missouri v. U.S. Dep't of Interior, 297 F.3d 745, 75051 (8th Cir. 2002) (holding that records maintained in agency office by agency employee
who was acting as full-time coordinator of nonprofit organization that had "cooperative"
relationship with agency were not "agency records," because they were not integrated into
agency files and were not used by agency in performance of its official functions); Katz v.
NARA, 68 F.3d 1438, 1442 (D.C. Cir. 1995) (holding that autopsy x-rays and photographs of
President Kennedy, created and handled as personal property of Kennedy estate, are
presidential papers, not records of any agency); Gen. Elec. Co. v. NRC, 750 F.2d 1394, 140001 (7th Cir. 1984) (determining that agency "use" of internal report submitted in connection
with licensing proceedings renders report an agency record); Wolfe v. HHS, 711 F.2d 1077,
1079-82 (D.C. Cir. 1983) (holding that transition team records,o
although physically
pe under 17 Judicial
maintained within "four walls" of agency, were not agency records , 20 FOIA);
Pom t 22
Watch, Inc. v. U.S. Secret Service, 803 F. Supp. n v. 56-60 (D.D.C. 2011) (analyzing four
2d 51,
ma n Augus
"control" factors to find that agencyn Yag White House visitor access records despite
controls
i
do
agency's stated intent otherwise,d "intent" ifactor is "substantially outweighed" by other
cite as , arch ve
three factors); Reich v. DOE, 78442Supp. 2d 15, 21-23 (D. Mass. 2011) (applying control
4 F.
factors to conclude that15-55
contractor's constraints placed on documents and lack of reliance
No.
and integration render report not agency record), aff'd on reh'g, 811 F. Supp. 2d 52 (D.
Mass. 2011); Marzen v. HHS, 632 F. Supp. 785, 801 (N.D. Ill. 1985) (declaring that records
created outside federal government which "agency in question obtained without legal
authority" are not agency records), aff'd on other grounds, 825 F.2d 1148 (7th Cir. 1987).
Compare Burka, 87 F.3d at 515 (finding data tapes created and possessed by contractor to
be agency records because of extensive supervision exercised by agency, which evidenced
"constructive control"), Hercules, Inc. v. Marsh, 839 F.2d 1027, 1029 (4th Cir. 1988)
(holding that army ammunition plant telephone directory prepared by contractor at
government expense, bearing "property of the U.S." legend, is agency record), In Def. of
Animals v. NIH, 543 F. Supp. 2d 83, 100-01 (D.D.C. 2008) (finding agency had control over
chimpanzee clinical records located at contractor-operated facility where agency owned
facility, chimpanzees, and chimpanzee clinical files, and contract provided for agency access
to clinical records created and maintained on-site), Los Alamos Study Group v. DOE, No.
97-1412, slip op. at 4 (D.N.M. July 22, 1998) (determining that records created by contractor
are agency records because government contract "establishes [agency] intent to retain
control over the records and to use or dispose of them as they see fit" and agency regulation
"reinforces the conclusion that [agency] intends to exercise control over the material"), and
Chi. Tribune Co. v. HHS, No. 95-C-3917, 1997 WL 1137641, at *15-16 (N.D. Ill. Mar. 28,
1997) (finding that notes and audit analysis file created by independent contractor are
agency records because they were created on behalf of (and at request of) agency and agency
65

12

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 34 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
"record" expressly provides that the term includes information that qualifies as a record
under the FOIA and "is maintained for an agency by an entity under government contract,
for the purposes of records management."66
On a related note, in Forsham v. Harris, the Supreme Court held that certain
research data generated through federal grants are not considered agency records subject to
the FOIA.67 Nevertheless, agencies processing a FOIA request for grantee research data
should review OMB Circular A-110 which sets forth uniform requirements for certain
grants, including a requirement to make certain research data available to the public
"through the procedures established under the FOIA."68
"effectively controls" them), with Amer. Small Bus. League v. SBA, 623 F. 3d 1052, 1053
(9th Cir. 2010) (reasoning that wireless provider's records were not agency records because
no evidence supported that agency "extensively supervised or was otherwise entangled with
[provider's] production and management of the records"), Ctr. for Medicare Advocacy v.
HHS, No. 3:10cv645, 2011 WL 2119226, at *3 (D. Conn. May 26, 2011) (concluding that
records maintained by sponsors of Medicare Advantage Plans under Medicare Part C are
not agency records because they are not considered as such under agency regulations, nor
are they created, obtained, or controlled by agency), Tax Analysts v. DOJ, 913 F. Supp. 599,
607 (D.D.C. 1996) (finding that electronic legal research database contracted by agency is
not an agency record because licensing provisions specifically precluded agency control),
aff'd, 107 F.3d 923 (D.C. Cir. 1997) (unpublished table decision), and Rush Franklin Publ'g,
o
17
Inc. v. NASA, No. 90-CV-2855, slip op. at 10 (E.D.N.Y. Apr. pe 1993) (finding that computer
Pom 13, t 22, 20 control). See
tape maintained by contractor is not an agency record in absence of agency
n v. ugus
gmaDOE, No. 96-1059, slip op. at 3-6 (D.N.M.
generally Sangre de Cristo Animal Prot.,a
Y Inc. v. on A
Mar. 10, 1998) (holding that records that agency neither possessed nor controlled and that
ed in rchived
cit
were created by entity under contract a agency, although not agency records, were
2, with
5544 10 C.F.R. § 1004.3 (currently 2011), that specifically
accessible under agency regulation,
15provided for public availability of contractor records).
No.
5 U.S.C. § 552(f)(2)(B); see, e.g. Am. Small Bus. League, 623 F.3d at 1053-54 (holding that
wireless provider's records were not agency "records" because records were not
"'maintained for an agency by an entity under Government contract, for the purposes of
records management'" (quoting 5 U.S.C. § 552(f)(2)(B)); see also FOIA Post, "Treatment of
Agency Records Maintained for an Agency by a Government Contractor for Purposes of
Records Management" (posted 9/09/08) (advising that term "records" includes agency
records maintained for agency by government contractor for purposes of records
management, even if such records are not physically in possession of agency).
66

445 U.S. at 186; see also ExxonMobil v. Dept. of Commerce, 828 F. Supp. 2d 97, 105-106
(D.D.C. 2011) (concluding that where agency served in "a limited, ministerial role" on behalf
of Trustee Council, did not appropriate funds to private researchers, and studies were not
conducted on agency's behalf, research data are not agency records).
67

See OMB Circular A-110, "Uniform Administrative Requirements for Grants and
Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations," 64 Fed. Reg. 54,926 (Oct. 8, 1999) (codified at 2 C.F.R. §
215.36(d)(1)(2012)); see also Am. Chemistry Council, Inc. v. HHS, No. 12-1156, 2013 WL
524447, at *5 (D.D.C. Feb. 13, 2013) (noting that Circular A-110's requirements impose "a
68

13

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 35 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Unlike "agency records," which are subject to the FOIA, "congressional records" are
not.69 "Congressional records" may include records received by an agency from Congress, 70
or records generated by an agency in response to a confidential congressional inquiry. 71
Ascertaining whether records in an agency's possession are "agency records" or
"congressional records" depends upon whether Congress manifested an intent to exert
control over those records72 and on the particular contours of that reservation of control.73
Congress's intent to exert control over particular records must be evident from the
circumstances surrounding their creation or transmittal, 74 rather than accomplished on a
dual responsibility upon agencies . . . [n]ot only must they produce their own responsive
'records,' but they must also request 'research data' from the grantees of the pertinent
federally funded research study"); FOIA Update, Vol. XIX, No. 4, at 2 (discussing grantee
records subject to FOIA under Circular A-110's definition of "research data").
See, e.g., United We Stand Am. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) (observing that
"[t]he Freedom of Information Act does not cover congressional documents").
69

See, e.g., Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978) (holding that agency acted
merely "as a 'trustee' for Congress" in retaining copy of hearing transcript over which
Congress "plainly" manifested intent to control by denominating it as "'secret'"); Hall v. CIA,
No. 98-1319, slip op. at 15 (D.D.C. Aug. 10, 2000) (finding that Senate committee
17
"unequivocally" stated its intent in writing to retain control peo committee documents that
over
Pom t 22, 20
it entrusted to National Archives).
s
n v.
70

a
gu
Yagm d on Au
71 See Holy Spirit Ass'n v. CIA, 636 in
hi e
cited F.2dr838,v842-43 (D.C. Cir. 1980) (recognizing that
,ac
agency-created records can become "congressional records"), vacated in part on other
442
grounds, 455 U.S. 997 (1982); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C.
5-55
1
1995) ("Even documents created by the agencies themselves may elude FOIA's reach if
No.

prepared on request of Congress with confidentiality restrictions."), aff'd, 76 F.3d 1232 (D.C.
Cir. 1996).
See, e.g., Paisley v. CIA, 712 F.2d 686, 693 (D.C. Cir. 1983) (noting that if "Congress has
manifested its own intent to retain control [of records in agency's possession], then the
agency -- by definition -- cannot lawfully 'control' the documents . . . and hence they are not
'agency records'"), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per
curiam).
72

See United We Stand Am., 359 F.3d at 604 (concluding that only certain portions of
agency-created response to confidential congressional inquiry were "congressional records"
not subject to FOIA, "because Congress manifested its intent [to exert control] with respect
to at most only a part" of those records).
73

See United We Stand Am., 359 F.3d at 600 (holding that "under all of the circumstances
surrounding the [agency's] creation and possession of the documents," there were
"sufficient indicia of congressional intent to control" certain portions of those documents);
see also Paisley, 712 F.2d at 694 ("[W]e find that neither the circumstances surrounding the
creation of the documents nor the conditions under which they were transferred to the
agencies manifests a clear congressional intent to maintain control."); Holy Spirit Ass'n, 636
74

14

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 36 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
"post hoc" basis "long after the original creation [or] transfer of the requested documents." 75
Absent evidence of such intent, the records may not be found to be "congressional records"
and, accordingly, will be within the reach of the FOIA.76
In a similar vein, "agency records" are distinguishable from "personal records" -records that might be physically maintained by agency employees at the agency, but that are
not subject to the FOIA. In determining whether a record is a "personal record," an agency
should examine "the totality of the circumstances surrounding the creation, maintenance,
and use" of the record.77 Factors relevant to this inquiry include, among others, (1) the
purpose for which the document was created; (2) the degree of integration of the record into
the agency's filing system; and (3) the extent to which the record's author or other
employees used the record to conduct agency business. 78
F.2d at 842 ("Nothing here either in the circumstances of the documents' creation or in the
conditions under which they were sent to the [agency] indicates Congress' intent to retain
control over the records."); Goland, 607 F.2d at 348 (holding that congressional hearing
transcript maintained by agency was "not an 'agency record' but a Congressional document
to which FOIA does not apply . . . because we believe that on all the facts of the case
Congress' intent to retain control of the document is clear"); Judicial Watch, 880 F. Supp. at
11-12 (following Wash. Post v. DOD, 766 F. Supp. 1, 17 (D.D.C. 1991), to find that transcript
of congressional testimony provided "solely for editing purposes," with cover sheet
restricting dissemination, is not agency record), aff'd on other grounds, 76 F.3d 1232 (D.C.
Cir. 1996); Ctr. for Nat'l Sec. Studies v. CIA, 577 F. Supp. mpeo
584, 586-90 2017 1983)
(D.D.C.
Po of Congress" with intent that it
(holding that agency report, prepared "at the direct .
v request ust 22,
an
remain secret and transferred to agency agm
with congressionally imposed "conditions" of
Aug
Y
onreport maintained in agency's files).
d
secrecy, is not agency record,inor is n
ted i duplicate copy of
hive

c
c
2 ar
44at,602; see Holy Spirit Ass'n, 636 F.2d at 843 (concluding
75 United We Stand Am., 359 F.3d
55
. 15ohoc" assertion of control, which came about "as a result of . . . the
that Congress's "post
N
FOIA request and this litigation long after the actual transfer" of requested records, was
"insufficient evidence of Congress' intent to retain control over th[o]se records").

See, e.g., Paisley, 712 F.2d at 692-93 ("In the absence of any manifest indications that
Congress intended to exert control over documents in an agency's possession, the court will
conclude that such documents are not congressional records.").
76

Bureau of Nat'l Affairs, Inc. v. DOJ, 742 F.2d 1484, 1492; see also Consumer Fed'n of Am.,
455 F.3d at 287-88 (considering "[record] creation, location/possession, control, and use" -the "principal factors" identified in Bureau of Nat'l Affairs -- and deciding that "use [of the
records] is the decisive factor here" (emphasis added)); Spannaus v. DOJ, 942 F. Supp. 656,
658 (D.D.C. 1996) (finding that "'personal' files" of attorney no longer employed with agency
were "beyond the reach of FOIA" if they were not turned over to agency at end of
employment); Forman v. Chapotan, No. 88-1151, 1988 WL 524934, at *6 (W.D. Okla. Dec.
12, 1988) (rejecting contention that materials distributed to agency officials at privately
sponsored seminar are agency records), aff'd, No. 89-6035 (10th Cir. Oct. 31, 1989); FOIA
Update, Vol. V, No. 4, at 3-4 ("OIP Guidance: 'Agency Records' vs. 'Personal Records'").
77

See, e.g., Consumer Fed'n of Am., 455 F.3d at 288-93 (reasoning that five officials'
calendars were agency records where calendars were electronically distributed to staff and
78

15

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 37 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
FOIA Requesters
The FOIA generally requires federal agencies to make records "available to any
person."79 Although the FOIA does not itself define the term "person," it incorporates the
relied upon for business use, but that sixth officials' calendar was personal record because it
was created and used for his convenience and distributed only to his secretarial staff);
Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C. Cir. 1994) (ruling that letters written on agency
time and equipment by board member seeking renomination, which were reviewed by other
agency employees but not integrated into agency record system and over which author had
not relinquished control, are not agency records); Bureau of Nat'l Affairs, 742 F.2d at 148996 (holding that officials' uncirculated appointment calendars and telephone message slips
were personal records, used for personal convenience, whereas official's daily agendas were
agency records as they were created for distribution to top agency staff to facilitate
scheduling of agency business); Media Research Ctr. v. DOJ, 818 F. Supp. 2d 131, 140,
(D.D.C. 2011) (holding that correspondence "created or received by the [Solicitor General]
in her capacity as a judicial nominee" was not relied upon by the agency "in carrying out its
business, but rather was used for a purely personal objective" and therefore were not agency
records); Families for Freedom v. U.S. Customs & Border Prot., No. 10 Civ. 2705, 2011 WL
4599592, at *6 (S.D.N.Y. Sept. 30, 2011) (finding that notes taken by Assistant Chief Border
Patrol Agent during meeting were agency records because document "memorialize[d] the
discussion and outcomes of the meeting" and, therefore, "[took] the form17meeting
of
peo
Pom t 22, 20
minutes"); Fortson v. Harvey, 407 F. Supp. 2d 13, 16 (D.D.C. 2005) (finding that officer's
v.
investigation notes were personal records gman notes ugus
because
A were used only to refresh officer's
memory and were neither integrated into agency files nor relied on by other agency
in Ya ived on
cited , arch
employees), appeal dismissed, No. 05-5193, 2005 WL 3789054, at *1 (D.C. Cir. Oct. 31,
2
2005); Bloomberg, L.P. v. SEC,44 F. Supp. 2d 156, 163-67 (D.D.C. 2004) (concluding that
5-55 357 and message slips of SEC Chairman, and meeting notes
computer calendar, telephone logs,
o 1
Nof.staff, were personal records where they were created for personal use
of Chairman's chief
of Chairman or chief of staff, were not incorporated into SEC files, and were not under SEC
control, even though some records were maintained by SEC personnel and were
automatically "backed-up" onto SEC computer server at regular intervals); Inner City
Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., No. 98-4608, 1998
WL 690371, at *6 (S.D.N.Y. Sept. 30, 1998) (ruling that handwritten notes neither shared
with other agency employees nor placed in agency files were not "agency records" even
though they may have furthered their author's performance of his agency duties), aff'd, 182
F.3d 900 (2d Cir. 1999) (unpublished table decision); Dow Jones & Co. v. GSA, 714 F. Supp.
35, 39 (D.D.C. 1989) (determining that agency head's recusal list, shared only with personal
secretary and chief of staff, is not agency record); AFGE v. U.S. Dep't of Commerce, 632 F.
Supp. 1272, 1277 (D.D.C. 1986) (finding that employee logs created voluntarily to facilitate
work are not agency records even though they contained substantive information), aff'd,
907 F.2d 203 (D.C. Cir. 1990); see also FOIA Update, Vol. V, No. 4, at 3-4 ("OIP Guidance:
'Agency Records' vs. 'Personal Records'") (recognizing ten criteria "that should be evaluated
by agencies in making all 'agency record/personal record' determinations").
5 U.S.C. § 552(a)(3)(A) (2006 & Supp IV 2010); see also 5 U.S.C. § 552(a)(3)(E)
(prohibiting elements of intelligence community from disclosing records to foreign
governments or their representatives).
79

16

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 38 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
definition of "agency" from the Administrative Procedure Act,80 which in turn defines the
term "person" as "an individual, partnership, corporation, association, or public or privacy
organization other than an agency."81 Courts rely on this definition of "person" in the FOIA
context.82
An attorney or other representative may make a request on behalf of "any person."83
The Court of Appeals for the District of Columbia Circuit has held that if a FOIA requester
See 5 U.S.C. § 552(f)(1) (incorporating definition of "agency" from Administrative
Procedure Act, 5 U.S.C. § 551(1)(2006 & Supp. IV 2010), and providing further definition of
term under FOIA).
80

81

Administrative Procedure Act, 5 U.S.C. § 551(2).

See SAE Prods., Inc. v. FBI, 589 F. Supp. 2d 76, 80 (D.D.C. 2008) (stating that "[a]
'person,' as defined under FOIA, includes a corporation" and citing Administrative
Procedure Act); see also Arevalo-Franco v. INS, 889 F.2d 589, 591 (5th Cir. 1989) (holding
that meaning of "person" under FOIA is not restricted to American citizens); Stone v. Exp.Imp. Bank, 552 F.2d 132, 136-37 (5th Cir. 1977) (holding that Bank for Foreign Trade,
agency of Soviet Union, was a "person" under FOIA's Exemption 4 and declaring that
Administrative Procedure Act definition of "person" does not suggest "intention to limit
[itself] . . . to American individuals and 'public or private' organization[s]"); O'Rourke v.
peo
17
DOJ, 684 F. Supp. 716, 718 (D.D.C. 1988) (concluding that requester's status as an alien did
Pomas he 22, 20 statute's "any
v.
not exclude him from access to documents under the FOIA ust falls within
man 6, 10 g
gSupp. 2dn Au(D.D.C. 2000) (holding that
person"); cf. Judicial Watch v. DOJ,n Ya
102 F.
o
ed i rchive corporations, . . . each is entitled to request
because two related organizations "are separated
cit
a
documents under FOIA in its own right").
442,
82

5
15-5
o. Brooks & Smith v. NLRB, 851 F.2d 839, 840 n.2 (6th Cir. 1988)
83 See, e.g., Constangy,
N

(recognizing standing of attorney to request documents on behalf of client). See generally
Burka v. HHS, 142 F.3d 1286, 1290 (D.C. Cir. 1998) (holding that when attorney makes
request in his own name without disclosing that he is acting on behalf of a client, he may not
later seek attorney fees for his legal work); McDonnell v. United States, 4 F.3d 1227, 1237-38
(3d Cir. 1993) (holding that person whose name does not appear on request does not have
standing); Brown v. EPA, 384 F. Supp. 2d 271, 276-78 (D.D.C. 2005) (finding that plaintiff
has standing where request stated that attorney was making request on behalf of client, and
where "other correspondence . . . confirm[ed]" that all parties understood attorney to be
acting on behalf of client); Mahtesian v. OPM, 388 F. Supp. 2d 1047, 1050 (N.D. Cal. 2005)
(finding that lawyer's "reference to an anonymous client in a FOIA request, can not [sic],
alone, confer standing on that client"); Hall v. CIA, No. 04-00814, 2005 WL 850379, at *4
(D.D.C. Apr. 13, 2005) (finding that requester organization was party to request where
request letter stated that organization was "joining" request, even though organization's
attorney did not sign letter); Three Forks Ranch Corp. v. Bureau of Land Mgmt., 358 F.
Supp. 2d 1, 3 (D.D.C. 2005) (finding that corporation lacked standing to pursue FOIA action
where its attorney did not indicate specifically that he was making FOIA request "on behalf
of" corporation); Scaife v. IRS, No. 02-1805, 2003 WL 23112791, at *2-3 (D.D.C. Nov. 20,
2003) (finding that powers-of-attorney submitted with FOIA request were insufficient to
vest requester with right to receive requested records); Dale v. IRS, 238 F. Supp. 2d 99, 107
(D.D.C. 2002) ("A party's counsel is not the 'requester' for purposes of a fee waiver.");
17

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 39 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
dies while his or her FOIA claim is in litigation, under some circumstances the FOIA claim
may survive.84 Further, individual members of Congress possess the same rights of access
as those guaranteed to "any person."85
As mentioned, the FOIA incorporates the definition of "agency" as defined in the
Administrative Procedure Act,86 and that statute excludes federal agencies from the
definition of "person,"87 which thus precludes federal agencies from being FOIA
requesters.88 States and state agencies may, however, make FOIA requests.89
There are, however, three narrow exceptions to this broad "any person" standard.
First, courts have denied relief under the FOIA to fugitives from justice if the requested
MAXXAM, Inc. v. FDIC, No. 98-0989, 1999 WL 33912624, at *2 (D.D.C. Jan. 29, 1999)
(finding that corporate plaintiff whose name did not appear on FOIA request made by its
attorney "'has not administratively asserted a right to receive [requested records] in the first
place'" (quoting McDonnell, 4 F.3d at 1237)).
See Sinito v. DOJ, 176 F.3d 512, 513 (D.C. Cir. 1999) (holding that FOIA claim can survive
death of original requester and remanding case for determination regarding who could
properly be substituted for decedent); see also D'Aleo v. Dep't of the Navy, No. 89-2347,
1991 U.S. Dist. LEXIS 3884, at *4 (D.D.C. Mar. 21, 1991) (allowing decedent's executrix to
be substituted as plaintiff). But see Hayles v. DOJ, No. H-79-1599, slip 017 3 (S.D. Tex.
op. at
peo
Pom no22, 2 motion for
Nov. 2, 1982) (dismissing case upon death of plaintiff because t timely
v.
s
an
substitution was filed).
Augu
agm
84

Y
d on
d in
cite1, at,3-4rchive
85 See FOIA Update, Vol. V, No.
42 a (distinguishing between individual members of
Congress and Congress as an 54
5institutional entity, which exercises its authority through its
15committee chairs); Frederick M. Kaiser, Walter J. Oleszek, Todd B. Tatelman, Cong.
No.

Research Serv., RL 30240, Congressional Oversight Manual (2011), at 55-57 (advising that
congressional committees of jurisdiction can request agency information through
"constitutionally-based right of access," but that members acting in individual capacity have
access rights of "any person" under the FOIA); Application of Privacy Act CongressionalDisclosure Exception to Disclosures to Ranking Minority Members, Op. Off. Legal Counsel
(Dec. 5, 2001), available at http://www.justice.gov/olc/2001/privacy_act_opinion.pdf
(discussing congressional access under Privacy Act).
5 U.S.C. § 552(f) (incorporating definition of "agency" from Administrative Procedure Act,
5 U.S.C. § 551(1), and providing further definition of term under FOIA).
86

87

See Administrative Procedure Act, 5 U.S.C. § 551(2).

See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979)
(stating, in context of FOIA's Exemption 4, that "person" is someone outside federal
government and citing 5 U.S.C. § 551(2)).
88

See, e.g., Texas v. ICC, 935 F.2d 728, 729 (5th Cir. 1991); Massachusetts v. HHS, 727 F.
Supp. 35, 35 (D. Mass. 1989).
89

18

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 40 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
records relate to the requester's fugitive status. 90 Second, as amended by the Intelligence
Authorization Act for Fiscal Year 2003,91 the FOIA precludes agencies of the intelligence
community92 from disclosing records in response to FOIA requests made by any foreign
government or international governmental organization, either directly or through a
representative.93 Finally, courts have held that a requester who has waived by plea

See Maydak v. U.S. Dep't of Educ., 150 F. App'x 136, 138 (3d Cir. 2005) (affirming district
court's dismissal with prejudice as "there was enough of a connection between Maydak's
fugitive status and his FOIA case"); Maydak, No. 02-5168, slip op. at 1 (D.C. Cir. Dec. 11,
2003) (refusing to dismiss because "[t]here is no substantial connection between
[requester's] alleged fugitive status and his current [FOIA] action," which was filed four
years before requester became a fugitive) (citing Daccarett-Ghia v. IRS, 70 F.3d 621, 626 &
n.4 (D.C. Cir. 1995)); Doyle v. DOJ, 668 F.2d 1365, 1365-66 (D.C. Cir. 1981) (holding that
fugitive is not entitled to enforcement of FOIA's access provisions because he cannot expect
judicial aid in obtaining government records related to sentence that he was evading);
Lazaridis v. DOJ, 713 F. Supp. 2d 64, 69-70 (D.D.C. 2010) (finding that agency failed to
establish connection between requester's fugitive status and FOIA proceedings); Meddah v.
Reno, No. 98-1444, slip op. at 2 (E.D. Pa. Dec. 3, 1998) (dismissing escapee's FOIA claim
because escapee "request[ed] documents which were used to determine that he should be
detained"); Javelin Int'l, Ltd. v. DOJ, 2 Gov't Disclosure Serv. (P-H) ¶ 82,141, at 82,479
(D.D.C. Dec. 9, 1981) (dismissing plaintiff corporation's FOIAeo
p claim because it was acting as
17
Pom t v. IRS,0
agent on behalf of fugitive from justice); see also Daccarett-Ghia 22, 2 70 F.3d 621, 626 &
v.
s
n.4 (D.C. Cir. 1995) (limiting applicabilitygman
of "fugitive disentitlement doctrine" generally,
A u
a not disturbug aspect of Doyle" in which
but explaining that "holding in thisin Y does ed on
case
that
cited , archiv
court "recognize[d] one universally applied constraint on fugitive disentitlement doctrine" -2
namely, that "[d]ismissal was544
appropriate in part because
[FOIA]
5-5 of a relationship' to criminalfugitive'spending suit sought
1
records that were No.devoid
'not
charges
against him")
(non-FOIA case). But cf. O'Rourke v. DOJ, 684 F. Supp. 716, 718 (D.D.C. 1988) (holding
that convicted criminal, fugitive from his home country and undergoing U.S. deportation
proceedings, qualified as "any person" for purpose of making FOIA request); Doherty, 596
F. Supp. at 424-29 (same).
90

91

Pub. L. No. 107-306, 116 Stat. 2383 (2002).

See 50 U.S.C. § 401a(4) (2006 & Supp. IV 2010) (provision of National Security Act of
1947, as amended, that specifies federal agencies and agency subparts deemed to be
"elements of the intelligence community").
92

5 U.S.C. § 552(a)(3)(E); see All Party Parliamentary Grp. on Extraordinary Rendition v.
DOD, 851 F. Supp. 2d 169, 174-77 (D.D.C. 2012) (dismissing plaintiff's claim upon finding
that Parliamentary group was "government entity," member of Parliament was
"representative" of "government entity" for purposes of FOIA, and therefore member's
"request [was] barred by FOIA"); see also FOIA Post, "FOIA Amended by Intelligence
Authorization Act" (posted 12/23/02) (advising that "for any FOIA request that by its nature
appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a
covered agency may inquire into the particular circumstances of the requester in order to
properly implement this new FOIA provision").
93

19

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 41 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
agreement his or her FOIA rights is precluded from making a FOIA request concerning any
waived subject.94
In keeping with the broad "any person" standard, FOIA requesters generally do not
have to justify or explain their reasons for making requests. 95 The Supreme Court has
observed that a FOIA requester's identity generally "has no bearing on the merits of his or
her FOIA request."96 Moreover, the Supreme Court has held that a requester's basic access
rights are neither increased nor decreased based upon the requester's particular interest in
the records sought.97 Although requesters have occasionally invoked the FOIA successfully
See Boyce v. U.S., No. 08-535, 2010 WL 2691609, at *1 (W.D.N.C. July 6, 2010) (finding
that waiver in plaintiff's plea agreement, whereby he waived his rights to receive any
investigation and prosecution records related to his criminal case, precludes his access
under FOIA); Caston v. EOUSA, 572 F. Supp. 2d 125, 129 (D.D.C. 2008) (granting agency's
motion to dismiss because "'use of a FOIA waiver in a valid and binding plea agreement is
an enforceable provision'" that bars plaintiff's FOIA claim for records regarding his criminal
case (quoting Patterson v. FBI, No. 08-186, 2008 WL 2597656, at*2 (E.D. Va. June 27,
2008))).
94

See, e.g., NARA v. Favish, 541 U.S. 157, 172 (2004) ("[A]s a general rule, when documents
are within FOIA's disclosure provisions, citizens should not be required to explain why they
seek the information.").
95

peo
17
Pom t749, , 20
2771 (1989); see Favish,
96 DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 2
n v. ug s
gmainformationu
541 U.S. at 170 ("As a general rule, withholding on A
under FOIA cannot be
in Ya ived
e requester."); see also Lynch v. Dep't of the Treasury, 210
predicated on the identity of the d
cit
rch
F.3d 384, at *4 (9th Cir. 2000) 442, a
(unpublished table opinion) (upholding district court's
decision to not consider15-55 of requester in determining whether records were properly
identity
No.
withheld under Exemption 7(A)); Parsons v. Freedom of Info. Act Officer, No. 96-4128,

1997 WL 461320, at *1 (6th Cir. Aug. 12, 1997) ("[T]he identity of the requestor is irrelevant
to the determination of whether an exemption applies."); United Techs. v. FAA, 102 F.3d
688, 692 (2d Cir. 1996) (rejecting plaintiff's argument that Exemption 4 should be applied
"on a requester-specific basis," because "[u]nder that rule, the Government would be
required in every FOIA case to conduct an inquiry regarding the identity of the requester
and the circumstances surrounding its request," and "[t]he FOIA was not intended to be
applied on such an individualized basis"); Swan v. SEC, 96 F.3d 498, 499 (D.C. Cir. 1996)
("Whether [a particular exemption] protects against disclosure to 'any person' is a judgment
to be made without regard to the particular requester's identity."); Durns v. BOP, 804 F.2d
701, 706 (D.C. Cir. 1986) ("Congress granted the scholar and the scoundrel equal rights of
access to agency records."), cert. granted, judgment vacated on other grounds & remanded,
486 U.S. 1029 (1988); FOIA Update, Vol. VI, No. 3, at 5 ("It is also well established that a
FOIA requester cannot rely upon his status as a private party litigant -- in either civil or
criminal litigation -- to claim an entitlement to greater FOIA access than would be available
to the average requester").
See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (recognizing that a
requester's "rights under the Act are neither increased nor decreased by reason of the fact
that [he or she] claims an interest in the [requested records] greater than that shared by the
average member of the public"); see also Reporters Comm., 489 U.S. at 771 ("As we have
97

20

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 42 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
as a substitute for, or a supplement to, document discovery in civil98 and criminal99
litigation, there are several Supreme Court admonitions for restraint 100 and multiple other
decisions where courts have declared that "while documents obtained through FOIA
requests may ultimately prove helpful in litigation by permitting a citizen to more precisely
target his discovery requests, FOIA is not intended to be a substitute for discovery."101
repeatedly stated, Congress 'clearly intended' the FOIA 'to give any member of the public as
much right to disclosure as one with a special interest [in a particular document].'" (quoting
Sears, 421 U.S. at 149)); EPA v. Mink, 410 U.S. 73, 86 (1973) (declaring that FOIA "is largely
indifferent to the intensity of a particular requester's need"); North v. Walsh, 881 F.2d 1088,
1096 (D.C. Cir. 1989) ("In sum, [FOIA requester's] need or intended use for the documents
is irrelevant."); cf. Parsons, 121 F.3d 709, at *1 (rejecting plaintiff's argument that his
"legitimate need for the documents superior to that of the general public or the press"
warranted disclosure of exempt information).
See, e.g., Jackson v. First Fed. Sav., 709 F. Supp. 887, 889 (E.D. Ark. 1989) (declaring
that "there is no rule that the parties to a lawsuit may only gather evidence through the
formal discovery devices" and "it is ordinarily unnecessary for the party seeking the material
to take steps to compel what will be given freely"); see also In re F&H Barge Corp., 46 F.
Supp. 2d 453, 454-55 (E.D. Va. 1998) (noting that "courts have allowed private litigants to
obtain documents in discovery via the FOIA"); FOIA Update, Vol. III, No. 1, at 10
(acknowledging that "[u]nder present law there is no statutory prohibition to the use of
eo
FOIA as a discovery tool").
2017
omp
98

2,
.P
an v August 2
99 See, e.g., North, 881 F.2d at 1096 (rejecting defendant's argument that, because plaintiff
gm o
in Yadevice" forn criminal case, Criminal Rule 16
d
was using FOIA as an "adjuncted
cit discoverychive
rshould applyhis his FOIA request, and holding that
materiality and relevance requirements
to
2, a
5544"when FOIA requests are presented in a discrete civil
discovery limitations do not apply
51
No.
action" because plaintiff's "need or intended use for the documents is irrelevant to his FOIA
action"); Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 502, 503 & n.1 (E.D. La.
2003) (concluding that Brady v. Maryland "demands" that information withheld under
Exemption 7(D) of FOIA be released to plaintiff).

See United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984) (rejecting
construction of FOIA that would allow FOIA to be used to supplement discovery); Baldrige
v. Shapiro, 455 U.S. 345, 360 n.14 (1982) (noting that "primary purpose of the FOIA was not
. . . to serve as a substitute for civil discovery"); NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978) (noting that "FOIA was not intended to function as a private discovery
tool"); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974) (noting that
"discovery for litigation purposes is not an expressly indicated purpose of the Act").
100

Comer v. IRS, No. 97-76329, 2000 WL 1566279, at *2 (E.D. Mich. Aug. 17, 2000); see,
e.g., U.S. v. U.S. Dist. Court, Cent. Dist. of Cal., 717 F.2d 478, 480 (9th Cir. 1983) (holding
that FOIA does not expand scope of criminal discovery permitted under Rule 16 of Federal
Rules of Criminal Procedure); Martinez v. EEOC, No. 04-0391, 2004 WL 2359895, at *6
(W.D. Tex. Oct. 19, 2004) (concluding that requester "may not use the FOIA to circumvent
the discovery process and thereby frustrate the investigative procedures of the EEOC");
Cantres v. FBI, No. 01-1115, slip op. at 5 (D. Minn. June 21, 2002) (magistrate's
recommendation) (avouching that "[a] FOIA request is not a substitute for discovery in a
101

21

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 43 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
The requester's reason for making a FOIA request may, however, be considered in
the context of certain procedural decisions made during the course of processing a request,
such as when the agency determines whether to grant expedited processing, or to waive fees,
or when a court decides whether to award attorney fees and costs to a successful FOIA
plaintiff.102
Proper FOIA Requests
The FOIA specifies two requirements for an access request: It must "reasonably
describe[]" the records sought and it must be "made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed."103 The key to
determining whether a request satisfies the first requirement is the ability of agency staff to
reasonably ascertain exactly which records are being requested and to locate them.104
habeas case," nor was FOIA "designed to supplement the rules of civil discovery"), adopted,
No. 01-1115, slip op. (D. Minn. July 16, 2002); Envtl. Crimes Project v. EPA, 928 F. Supp. 1,
2 (D.D.C. 1995) (ordering stay of FOIA case "pending the resolution of the discovery
disputes" in parties' related lawsuit in order to foreclose requester's attempt to "end run" or
interfere with discovery); U.S. v. Agunbiade, No. 90-CR-610, 1995 WL 351058, at *7
(E.D.N.Y. May 10, 1995) (stating that FOIA requester "cannot employ the statute as a means
to enlarge his right to discovery" in his criminal case); Johnson v. DOJ, 758 F. Supp. 2, 5
o
17
(D.D.C. 1991) ("Resort to Brady v. Maryland as groundsompe
for waiving confidentiality is .
PF. Supp.t 212,,213 (D.D.C. 1985). .
2 20
outside the proper role of FOIA."); Stimac v. DOJ,v.
n 620 ugus 2
gma releasing material under FOIA."); cf.
("Brady v. Maryland . . . provides no authority for n A
o
n Ya iv ("FOIA's scheme of exemptions does not
Jones v. FBI, 41 F.3d 238, 250 ed i Cir. 1994) ed
(6th
h
cit
arc
curtail a plaintiff's right to discovery,in related non-FOIA litigation; but neither does that
442
right entitle a FOIA plaintiff55circumvent the rules limiting release of documents under
15- to
FOIA."); Injex Indus. . NLRB, 699 F. Supp. 1417, 1419 (N.D. Cal. 1986) (holding that FOIA
Nov.
cannot be used to circumvent nonreviewable decision to impound requested documents);
Morrison-Knudsen Co. v. U.S. Dep't of the Army, 595 F. Supp. 352, 356 (D.D.C. 1984)
("[T]he use of FOIA to unsettle well established procedures governed by a comprehensive
regulatory scheme must be . . . viewed not only 'with caution' but with concern."), aff'd, 762
F.2d 138 (D.C. Cir. 1985) (unpublished table decision).
See 5 U.S.C. § 552 (a)(4)(A), (a)(6)(E) (taking into account "purpose" and "need" in fee
waiver and expedited processing determinations); see, e.g., Davy v. CIA, 550 F.3d 1155 (D.C.
Cir. 2008) (evaluating requester's interests in requested records as criteria in determining
entitlement to attorney fees and costs).
102

103

5 U.S.C. § 552(a)(3)(A) (2006 & Supp. IV 2010).

See, e.g., Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding request
encompassing over 1,000,000 computerized records to be valid because "[t]he linchpin
inquiry is whether the agency is able to determine 'precisely what records [are] being
requested'" (quoting legislative history)); Marks v. DOJ, 578 F.2d 261, 263 (9th Cir. 1978)
(declaring that "reasonable description relates not only to subject matter, but . . . also relates
to place of search" and ruling that FBI was not required to search all field offices pursuant to
request for all records "under [my] name" because such "broad, sweeping requests" do not
104

22

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 44 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Courts have recognized that the legislative history of the 1974 FOIA amendments indicates
that a description of a requested record is sufficient if it enables a professional agency
employee familiar with the subject area to locate the record with a "reasonable amount of
effort."105 Courts have also found that requests that are so broad and sweeping that they
lack specificity are not reasonably described.106
Courts have explained that "[t]he rationale for this rule is that FOIA was not
intended to reduce government agencies to full-time investigators on behalf of
requesters,"107 or to allow requesters to conduct "fishing expeditions" through agency
"reasonably describe" records sought); see also Wells v. U.S. Dep't of Educ. Office for Civil
Rights, 450 Fed. Appx 431, 432 (5th Cir. 2011) ("As we cannot decipher which records the
Appellants are seeking, we cannot say that the district court abused its discretion in
dismissing the suit on this basis."); Stuler v. IRS, 216 F. App'x 240, 242 (3d Cir. 2007) (per
curiam) (affirming district court's finding that requester failed to comply with agency
regulations requiring "reasonably described" requests, where requester was not "clear in
articulating the documents [she] sought"); Weewee v. IRS, No. 99-475, 2001 WL 283801, at
*12 (D. Ariz. Feb. 13, 2001) (finding that request for records related to each occurrence of
specific actions related to requester's tax return "does not appear to be too broad" given that
agency was previously able to process a request that was "identically worded").
H.R. Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271; see, e.g.,
o
Truitt v. Dep't of State, 897 F.2d 540, 544-45 (D.C. Cir. ompe
2017
P 1990) (discussing legislative history
2,requested records);
of 1974 FOIA amendments as related to requirements for describing
st 2
n v.
gma on Augu summary judgment where
Ferri v. DOJ, 573 F. Supp. 852, 859 (W.D. Pa. 1983) (granting
Ya
plaintiff failed to provide sufficient information d allow agency to retrieve requested
ed in rchive to
cit
information "with a reasonable amount of effort" (citing Marks, 578 F.2d at 263)).
42, a
105

54

-5
o. 15

N
See, e.g., Gaunce v. Burnette, 849 F.2d 1475, 1475 (9th Cir. 1988) (affirming lower
court's grant of summary judgment, and stating that request did not reasonably describe
records sought, where it sought "'every scrap of paper wherever located within the agency''"
related to requester's aviation activities (citing Marks, 578 F.2d at 263)); Marks, 578 F.2d at
263 (finding that even if plaintiff is considered to have requested search of every field office
of FBI, "broad, sweeping requests lacking specificity are not permissible"); Freedom Watch,
Inc. v. CIA, No. 12-0721, 2012 WL 4753281, at *6 (D.D.C. Oct. 5, 2012) (holding that request
for "anything 'relating to' [several nations]" is "'so broad as to impose an unreasonable
burden upon the agency'" (quoting Am. Fed'n of Gov't Employees, Local 2782 v. U.S. Dep't
of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990)); Exxon Mobil Corp. v. U.S. Dep't of
Interior, No. 09-6732, 2010 WL 2653353, at *8 (E.D. La June 29, 2010) (finding requests
for "any and all documents, " "any documents," or "all documents" impermissibly broad).
106

Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff'd
in pertinent part, No. 89-5414, 1990 WL 123924 (D.C. Cir. Aug. 13, 1990) (per curiam);
accord Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 329 (D.D.C. 2002) (quoting
Assassination Archives & Research Ctr., 720 F. Supp. at 219); see, e.g., Bloeser v. DOJ, 811
F. Supp. 2d 316, 321 (D.D.C. 2011) (reasoning that "[b]ecause 'FOIA' was not intended to
reduce government agencies to full-time investigators on behalf of requesters, . . . [t]o the
extent that plaintiff can identify documents which he believes exist in a particular office
within [DOJ], such identifying information should have been included as part of his original
107

23

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 45 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
files.108 Courts have recognized that an agency's FOIA staff is neither required to have
"clairvoyant capabilities" to discern the requester's needs, 109 nor must they spend "countless
numbers of personnel hours seeking needles in bureaucratic haystacks."110
FOIA request"); Satterlee v. IRS, No. 05-3181, 2006 WL 3160963, at *3 (W.D. Mo. Oct. 30,
2006) (finding that request was improper where it would require agency to "conduct legal
research" and answer questions "disguised as . . . FOIA request"); Frank v. DOJ, 941 F.
Supp. 4, 5 (D.D.C. 1996) (stating that agency is not required to "dig out all the information
that might exist, in whatever form or place it might be found, and to create a document that
answers plaintiff's questions"); Lamb v. IRS, 871 F. Supp. 301, 304 (E.D. Mich. 1994)
(finding requests outside scope of FOIA when they require legal research, are unspecific, or
seek answers to interrogatories); Trenerry v. Dep't of the Treasury, No. 92-5053, 1993 WL
26813, at *3 (10th Cir. Feb. 5, 1993) (holding that agency not required to provide personal
services such as legal research).
Immanuel v. Sec'y of the Treasury, No. 94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4,
1995), aff'd, 81 F.3d 150 (4th Cir. 1996) (unpublished table decision); see also Dale v. IRS,
238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (concluding that request seeking "'any and all
documents . . . that refer or relate in any way'" to requester failed to reasonably describe
records sought and "amounted to an all-encompassing fishing expedition of files at
[agency's] offices across the country, at taxpayer expense").
108

o

e
17
Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, omp(D.D.C.,2002); see also
P 330 2010) (holding that plaintiffs
2 20
Amnesty Int'l USA v. CIA, 728 F. Supp. 2d 479, n v.(S.D.N.Y.st 2
gu
ma 499 n known what information Plaintiffs
cannot "rely on the argument that the Yag
CIA should haveAu
o
in
were seeking, for an agency cited
receiving a FOIAved
hi request 'is not required to divine a requester's
, arc v. EPA, 272 F. Supp. 2d 59, at 64 (D.D.C. 2003);
intent'") (quoting Landmark Legal 2
44 Found.
Benneville v. DOJ, No. 98-6137, slip op. at 10 (D. Or. June 11, 2003) (rejecting plaintiff's
5-55
1
No.
contention that agency should have provided him with information on all environmental
groups, rather than just single group specifically named in request letter, because "the
government should not be expected to determine [unnamed groups'] identit[ies] and
determine if they should be involved in the search"); Malak v. Tenet, No. 01-3996, 2001 WL
664451, at *1 (N.D. Ill. June 12, 2001) (concluding that request's "discursive narrative
doesn't even begin to approach the necessary job to permit performance of [agency's] FOIA
responsibilities"); Kubany v. Bd. of Governors of the Fed. Reserve Sys., No. 93-1428, slip op.
at 6-8 (D.D.C. July 19, 1994) (holding that request relying on exhibits containing "multiple,
unexplained references to hundreds of accounts, and various flowcharts, and schematics" is
"entirely unreasonable").
109

Devine v. Marsh, 2 Gov't Disclosure Serv. (P-H) ¶ 82,022, at 82,186 (E.D. Va. Aug. 27,
1981); see also Goldgar v. Office of Admin., 26 F.3d 32, 35 (5th Cir. 1994) (holding that
agency not required to produce information sought by requester -- "the identity of the
government agency that is reading his mind" -- that does not exist in record form); Keys v.
DHS, No. 08-0726, 2009 WL 614755, at *5 (D.D.C. Mar. 10, 2009) (stating that requester
failed to reasonably describe records sought by not responding to agency's notice that he
must specify which field offices he wanted agency to search); Satterlee, 2006 WL 3160963,
at 3 (finding that requester did not reasonably describe records sought where his request
asked IRS to "prove that it has jurisdiction over him"); Segal v. Whitmyre, No. 04-809795,
2005 WL 1406171, at *2 (S.D. Fla. Apr. 6, 2005) (finding that court lacks jurisdiction under
110

24

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 46 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
As a corollary to the "reasonably described" inquiry, courts have held that agencies
are not required to conduct wide-ranging, "unreasonably burdensome" searches for
records.111 (For a discussion of "unreasonably burdensome" searches, see Procedural
Requirements, Searching for Responsive Records, below).
Even if the request "is not a model of clarity," an agency should carefully consider the
nature of each request and give a reasonable interpretation to its terms and overall
content.112 Courts have at times required agencies to clarify the scope of the request with
FOIA because request "failed to assert exactly what records/documents" requester sought,
but instead asked for "proof/documentation" that requester was not entitled to IRS tax
hearing), aff'd on other grounds sub nom. Segal v. Comm'r, 177 F. App'x 29 (11th Cir. 2006);
Judicial Watch v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (ruling that
request did not reasonably describe records sought because plaintiff "fail[ed] to state its
request with sufficient particularity, [and] it also declined [agency's] repeated attempts to
clarify the request"); Graphics of Key W. v. United States, No. 93-718, 1996 WL 167861, at *7
(D. Nev. Feb. 5, 1996) (finding plaintiff's request letters to be "more arguments than clear
requests for information"). But cf. Doolittle v. DOJ, 142 F. Supp. 2d 281, 285 (N.D.N.Y.
2001) (concluding that if description of records sought is otherwise reasonable, agency
cannot refuse to search for records simply because requester did not identify them by date
on which they were created).

peo
2017
Pom 885, 22, (D.C. Cir. 1995)
111 See, e.g., Nation Magazine v. U.S. Customs Serv., . F.3d st 892
n v 71
gma on Augu unindexed files would be
(agreeing that search requiring reviewYa
in of twenty-three years of chronologically indexed
unreasonably burdensome, cited
but disagreeing ived
that search through
arch
,would be burdensome); AFGE v. U.S. Dep't of
agency files for dated memorandum
442
Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (holding that "while [plaintiff's requests]
5-55
.1
might identify theNo
documents requested with sufficient precision to enable the agency to

identify them . . . it is clear that these requests are so broad as to impose an unreasonable
burden upon the agency," because agency would have "to locate, review, redact, and arrange
for [the] inspection [of] a vast quantity of material"); Weirich v. Bd. of Governors of the Fed.
Reserve Sys., No. CV-10-5031, 2010 WL 4717211, at *4 (E.D. Wash. Nov. 15, 2010)
(determining that not only do requests for "'any documents'" by "'any members'" concerning
"'emergency funds'" for "'commercial banks which were nearly insolvent'" lack specificity,
but plaintiff's request would "unduly burden the FOI Office and significantly interfere with
the Board's operations"); Bailey v. Callahan, No. 3:09MC10, 2010 WL 924251, at *4-5 (E.D.
Va. March 11, 2010) (holding that request is so overbroad that only if requester specified
particular component of interest could agency conduct a search without an "unreasonable
amount of effort"). But see Ruotolo v. DOJ, 53 F.3d 4, 9-10 (2d Cir. 1995) (finding that
although request would require 803 files to be searched by "begin[ing] with the most
current . . . and work[ing] backward in time," it was "reasonably described" and not
"unreasonably burdensome"); FOIA Update, Vol. IV, No. 3, at 5 ("The sheer size or
burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that
request on the ground that it does not 'reasonably describe' records within the meaning of
[the FOIA].").
LaCedra v. EOUSA, 317 F.3d 345, 347-48 (D.C. Cir. 2003) (concluding that agency failed
to "liberally construe" request for "all documents pertaining to [plaintiff's] case" when it
112

25

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 47 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
the requester, particularly when doing so is required by the agency's regulations. 113 Such
communication is also encouraged as a matter of sound administrative policy.114
limited that request's scope to only those records specifically and individually listed in
request letter, because "drafter of a FOIA request might reasonably seek all of a certain set
of documents while nonetheless evincing a heightened interest in a specific subset thereof"
(citing Nation Magazine, 71 F.3d at 890)); see, e.g., Miller v. Casey, 730 F.2d 773, 777 (D.C.
Cir. 1984) (emphasizing that agency is required to read FOIA request as drafted, "not as
either [an] agency official or [requester] might wish it was drafted"); Keys v. DHS, 570 F.
Supp. 2d 59, 68-69 (D.D.C. 2008) (finding withholding improper where agency to which
records were referred nonetheless still required requester to file additional request for
public records even though such records were responsive to original request and were part
of referred documents); Lawyers' Comm. for Civil Rights v. Dep't of the Treasury, 534 F.
Supp. 2d 1126, 1135-36 (N.D. Cal. 2008) (ordering disclosure of records responsive to
requests for "[t]he number and nature of complaints" because requests must be "interpreted
liberally and . . . an agency cannot withhold a record that is reasonably within the scope of
the request on the grounds that the record has not been specifically named by the
requester"); Lawyer's Comm. for Civil Rights v. Dep't of the Treasury, No. 07-2590, 2008
WL 4482855, at *6 (N.D. Cal. Sept. 30, 2008) (finding that requester's "inartfully written"
requests when "liberally construed" seek subject records); Martinez v. SSA, No. 07-01156,
2008 WL 486027, at *3 (D. Colo. Feb. 18, 2008) (finding that "request for aggregate data
was encompassed within the Plaintiffs' FOIA request, even if the word 'aggregate' does not
appear in it"); Landes v. Yost, No. 89-6338, 1990 WL 45054, eo (E.D. Pa. Apr. 12, 1990)
mp at *3 , 2017
Poit relied 22agency's own outdated
(finding that request was "reasonably descriptive" v.
st on
n when
gma 1990) Augu
identification code), aff'd, 922 F.2d 832 a Cir.
Y (3d
on (unpublished table decision); FOIA
Update, Vol. XVI, No. 3, at 3 (advising agencies d interpretation of terms of FOIA
ed in rchive on
cit
requests). See generally Presidential Memorandum for Heads of Executive Departments
42, a
and Agencies Concerning5-554
the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21,
1
2009) (directing agencies to respond to FOIA requests "in a spirit of cooperation").
No.
See, e.g., Ruotolo, 53 F.3d at 10 (stating that agency failed to perform its "duty" to assist
requester in reformulating request); Stockton E. Water Dist. v. United States, No. 08-0563,
2008 WL 5397499, at *2 (E.D. Cal. Dec. 19, 2008) (noting that if defendants believed
request did not sufficiently describe records sought, they were required to contact plaintiff
to clarify what records were sought); Pub. Citizen Health Research Group v. FDA, No. 940018, slip op. at 2-3 (D.D.C. Feb. 9, 1996) (criticizing agency for failing to seek narrowing of
request as required by agency regulations, and ordering parties to "seek to agree" on search
breadth).
113

FOIA Post, “OIP Guidance: The Importance of Good Communication with FOIA
Requesters” (posted 3/1/10) (explaining that "good communication with requesters can also
be exceedingly helpful in those instances where an agency is uncertain about the scope of
what is being requested" because "[m]any times FOIA requesters do not know how agency
records are organized or what might be involved in searching for the records they seek" and
"[b]y engaging in a dialogue with the requester, both parties can ensure that they have a
common understanding of what records are being sought").
114

26

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 48 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
The District Court for the District of Columbia has held that, "a person need not title
a request for government records a 'FOIA request,'" 115 and, as a matter of policy, agencies
should use sound judgment when determining the nature of an access request. 116 For
example, as a matter of sound administrative policy, a first-party access request that cites
only the Privacy Act of 1974117 should be processed under both that statute and under the
FOIA.118 Likewise, an agency "must be careful not to read [a] request so strictly that the
requester is denied information the agency well knows exists in its files, albeit in a different
form from that anticipated by the requester."119 Courts have, nevertheless, upheld agency
decisions to limit the scope of a request when the agency acted reasonably in interpreting
what the request sought.120 Courts have also allowed agencies to "consider the configuration
Newman v. Legal Servs. Corp., 628 F. Supp. 535, 543 (D.D.C. 1986). But see Blackwell v.
EEOC, No. 2:98-38, 1999 WL 1940005, at *2 (E.D.N.C. Feb. 12, 1999) (finding that request
was not properly made because plaintiff failed to follow agency regulation requiring that
request be denominated explicitly as request for information under FOIA).
115

See FOIA Update, Vol. VII, No. 1, at 6 (advising that "agencies are expected to honor a
requester's obvious intent").
116

117

5 U.S.C. § 552a (2006 & Supp. IV 2010).

See FOIA Update, Vol. VII, No. 1, at 6 (advising that it m"good policy for agencies to treat
is peo
17
Po of whether20 is cited by
2, FOIA
all first-party access requests as FOIA requests"n v.
regardless st 2
requester).
gma n Augu
Ya
118

in
do
cited , archive (D.D.C. 1985); see also Allen v. BOP, No.
119 Hemenway v. Hughes, 601 F. Supp. 1002, 1005
442
00-342, slip op. at 7-9 (D.D.C. Mar. 1, 2001) (concluding that agency took "an extremely
5-55
1
constricted view" of o.
N plaintiff's FOIA request for all "records or transcripts" of intercepted
phone calls by failing to construe audiotape recordings of those calls as being within
request's scope), aff'd, 89 F. App'x 276 (D.C. Cir. 2004); Horsehead Indus. v. EPA, No. 941299, slip op. at 4 n.2 (D.D.C. Jan. 3, 1997) (ruling that "[b]y construing the FOIA request
narrowly, [agency] seeks to avoid disclosing information").

See, e.g., McLaughlin v. DOJ, 598 F. Supp. 2d 62, 66 (D.D.C. 2009) (concluding "[n]o
reasonable fact finder could imply agency bad faith" from practice of generally treating
requests as requests for non-public records and requiring submission of additional request
for responsive public records); Adamowicz v. IRS, 552 F. Supp. 2d 355, 362 (S.D.N.Y. 2008)
(finding agency's interpretation of request reasonable when agency determined that request
seeking records pertaining to tax audit did not include records pertaining to appeal of tax
audit); Mogenhan v. DHS, No. 06-2045, 2007 WL 2007502, at *3 (D.D.C. July 10, 2007)
(stating that agency reasonably determined that scope of request for investigative file did
not include employment file); Judicial Watch, Inc. v. DOD, No. 05-00390, 2006 WL
1793297, at *3 (D.D.C. June 28, 2006) (concluding that agency need not construe request
for names of corporations related to particular subject to be request for all records related to
that subject); Nat'l Ass'n of Criminal Def. Lawyers v. DOJ, No. 04-0697, 2006 WL 666938,
at *2 (D.D.C. Mar. 15, 2006) (concluding that agency "reasonably" read request as seeking
"'any reports or studies'" and that requester's attempt to narrow request resulted in request
that is "substantially different" from original request).
120

27

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 49 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
of their records systems in deciding whether a FOIA request 'reasonably describes' the
records sought."121
When determining the scope of a FOIA request, courts have generally held that
agencies are not required to answer questions posed as FOIA requests, 122 nor are they

National Security Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2012 WL 4903377,
at *26 (D.D.C. Oct. 17, 2012) (noting that agency is permitted to consider configuration of
records system because "[a]n agency is not required to reorganize its files in the response to
a plaintiff's request" (citing Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978))).
121

See, e.g., Zemansky v. EPA, 767 F.2d 569, 574 (9th Cir. 1985); DiViaio v. Kelley, 571 F.2d
538, 542-43 (10th Cir. 1978); Jean-Pierre v. BOP, No. 12-78, 2012 WL 3065377, at *6
(D.D.C. July 30, 2012) (concluding that request for objective pieces of information, such as
"who gave the order" and "on what day," are not "cognizable under FOIA, because they ask
questions calling for specific pieces of information rather than records"); RodriguezCervantes v. HHS, 853 F. Supp. 2d 114, 116-17 (D.D.C. 2012) ("As [plaintiff's] letters merely
pose questions . . . or ask for assistance in applying for Social Security benefits, they do not
constitute valid FOIA requests."); Thomas v. Comptroller of the Currency, 684 F. Supp. 2d
29, 33 (D.D.C. 2010) ("To the extent that plaintiff's FOIA requests were questions or
requests for explanations of policies or procedures, these are not proper FOIA requests
peo
17
requiring the OCC's response."); Amnesty Int'l v. CIA, No. 07-5435,,2008 WL 2519908, at
Pom t 22 20
n v. u s
*12-13 (S.D.N.Y. June 19, 2008) (rejecting claim that agency has duty to compile list of
gmaand searchgu records related to them in
persons it deems subjects of "secretn Ya
detention"
on A for
ved
ed i detention" records because, in essence, request seeks
order to respond to request cit "secret rchi
for
answer to question); Francis v. 442, a 06-0968, 2008 WL 1767032, at *5-6 (E.D. Cal. Apr.
5 FBI, No.
16, 2008) (magistrate's 15-5
recommendation) (finding absence of proper FOIA request where
No.
requester asked agency to identify person in photograph); Stuler v. DOJ No. 03-1525, 2004
WL 1304040, at *3 (W.D. Pa. June 30, 2004) (concluding that FOIA does not give requester
"opportunity to relitigate his criminal case," and that agency was not obligated to answer
requester's questions), aff'd, 216 F. App'x at 242 (per curiam); Gillin v. Dep't of the Army,
No. 92-325, slip op. at 10 (D.N.H. May 28, 1993) ("FOIA creates only a right of access to
records, not a right to require an agency to disclose its collective reasoning behind agency
actions, nor does FOIA provide a mechanism to challenge the wisdom of substantive agency
decisions."), aff'd, 21 F.3d 419 (1st Cir. 1994) (unpublished table decision); Patton v. U.S.
R.R. Ret. Bd., No. ST-C-91-04, slip op. at 3 (W.D.N.C. Apr. 26, 1991) (stating that FOIA
"provides a means for access to existing documents and is not a way to interrogate an
agency"), aff'd, 940 F.2d 652 (4th Cir. 1991) (unpublished table decision). But see Ferri v.
Bell, 645 F.2d 1213, 1220 (3d Cir. 1981) (declaring that request "inartfully presented in the
form of questions" could not be dismissed, partly because agency conceded that it could
provide requester with records containing information he sought); Lawyers' Comm. for Civil
Rights, 534 F. Supp. 2d at 1135-36 (ordering disclosure of records responsive to requests for
"[t]he number and nature of complaints" because requests must be "interpreted liberally
and . . . an agency cannot withhold a record that is reasonably within the scope of the
request on the grounds that the record has not been specifically named by the requester");
FOIA Update, Vol. V, No. 1, at 5 (advising that "while agencies do not have to create or
compile new records in response to FOIA requests (whether formulated in question form or
not), they should make good faith efforts to assist requesters in honing any requests for
122

28

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 50 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
required to respond to requests by creating records, 123 such as by modifying exempt
information in order to make it disclosable.124 Courts have long held that agencies are not
readily accessible records which are 'inartfully presented in the form of questions'" (quoting
Ferri, 645 F.2d at 1220)).
See, e.g., LaRoche v. SEC, 289 F. App'x 231, 231 (9th Cir. 2008) (explaining that agency
was not required to create new documents to satisfy FOIA request when it could not readily
reproduce records sought in searchable electronic format requested); Poll v. U.S. Office of
Special Counsel, No. 99-4021, 2000 WL 14422, at *5 n.2 (10th Cir. Jan. 10, 2000)
(recognizing that FOIA does not require agency "'to create documents or opinions in
response to an individual's request for information'" (quoting Hudgins v. IRS, 620 F. Supp.
19, 21 (D.D.C. 1985))); Sorrells v. United States, No. 97-5586, 1998 WL 58080, at *1 (6th
Cir. Feb. 6, 1998) (advising that agency is not required to compile document that "contain[s]
a full, legible signature"); Krohn v. DOJ, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (finding that
agency "cannot be compelled to create the [intermediary records] necessary to produce"
information sought); Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *17-18 (D.D.C.
Mar. 19, 2009) (rejecting plaintiff's request for search slips, created by agency after date-ofsearch cut-off date, holding that "FOIA 'does not obligate agencies to create or retain
documents; it only obligates them to provide access to those which it in fact has created or
retained'" (quoting Schoenman v. FBI, 573 F. Supp. 2d 119, 140 (D.D.C. 2008))); Moore v.
Bush, 601 F. Supp. 2d 6, 15 (D.D.C. 2009) (finding that agency o
properly refused to issue
pe does0not require creation
various statements regarding brain wave technology because FOIA , 2 17
Pom t 22
of records); West v. Spellings, 539 F. Supp. 2dan v. (D.D.C. 2008) (recognizing that
55, 61
s
m
Augu
Department of Education had no dutyYag
to create list of uninvestigated complaints to satisfy
on
in
request); Ctr. for Pub. Integrity v. FCC, 505 ived
cited , arch F. Supp. 2d 106, 114 (D.D.C. 2007) (concluding
that plaintiff's suggestion that agency delete some data and replace it with data suggested by
442
plaintiff amounts to creation of new records, something not required under FOIA); Stuler v.
5-55
1
No.
IRS, No. 05-1717, 2006 WL 891073, at *3 (W.D. Pa. Mar. 31, 2006) (stating that agency "is
not required to create documents that don't exist"); Jones v. Runyon, 32 F. Supp. 2d 873,
876 (N.D. W. Va. 1998) (concluding that "because the FOIA does not obligate the [agency]
to create records," it "acted properly by providing access to those documents already
created"), aff'd, 173 F.3d 850 (4th Cir. 1999) (unpublished table decision); Bartlett v. DOJ,
867 F. Supp. 314, 316 (E.D. Pa. 1994) (ruling that agency is not required to create
handwriting analysis). But cf. Martinez, 2008 WL 486027, at *2-3 (requiring agency to
produce aggregate data); Schladetsch v. HUD, No. 99-0175, 2000 WL 33372125, at *3
(D.D.C. Apr. 4, 2000) ("Because [agency] has conceded that it possesses in its databases the
discrete pieces of information which [plaintiff] seeks, extracting and compiling that data
does not amount to the creation of a new record."), appeal dismissed voluntarily, No. 005220 (D.C. Cir. Oct. 12, 2000); Int'l Diatomite Producers Ass'n v. SSA, No. 92-1634, 1993
WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (giving agency choice of compiling responsive
list or redacting existing lists containing responsive information), appeal dismissed, No. 9316723 (9th Cir. Nov. 1, 1993).
123

See American Civil Liberties Union v. DOJ, 681 F.3d 61, 71 (2nd Cir. 2012) (reversing
district court's decision requiring agency to substitute purportedly neutral phrase composed
by court for exempt material because substitution would effectively force agency to create
records); FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 613 (5th Cir. 2003) (per
curiam) (recognizing that plaintiff's demand that agency "simply insert new information in
124

29

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 51 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
required to make automatic releases of records as they are created, rather proper FOIA
requests are for records already created. 125
In addition to reasonably describing the records sought, a proper FOIA request must
be made in accordance with an agency's "published rules stating the time, place, fees (if
any), and procedures to be followed."126 The FOIA requires agencies to promulgate
the place of the redacted information requires the creation of new agency records, a task
that the FOIA does not require the government to perform"); Students Against Genocide v.
Dep't of State, 257 F.3d 828, 837 (D.C. Cir. 2001) (rejecting plaintiff's argument that "even
if the agencies do not want to disclose the photographs in their present state, they should
produce new photographs at a different resolution in order to mask the [classified]
capabilities of the reconnaissance systems that took them"). But see Nat'l Sec. Counselors,
2012 WL 4903377, at *26 (holding that "sorting a pre-existing database of information to
make information intelligible does not involve the creation of a new record," but is instead,
"just another form of searching that is within the scope of an agency's duties in responding
to FOIA requests"); Jones v. OSHA, No. 94-3225, 1995 WL 435320, at *4 (W.D. Mo. June 6,
1995) (stating that agency must "retype," not withhold in full, documents required to be
released by its own regulation, in order to delete FOIA-exempt information).
See Tuchinsky v. Selective Serv. Sys., 418 F.2d 155, 158 (7th Cir. 1969) (holding that no
automatic release is required of material related to occupational deferments until request is
peo
17
in hand; "otherwise, [agency] would be required to 'runomloose-leaf service' for every draft
P [a] v.22, 20
counselor in the country"); accord Mandel Grunfeld.& Herrick t U.S. Customs Serv., 709
s
nv
gma on Augu
a
F.2d 41, 43 (11th Cir. 1983) (determining that plaintiff not entitled to automatic mailing of
in Y Sec'yd
materials as they are updated);ed
cit Howardrv.hive of the Air Force, No. SA-89-CA-1008, slip
c
op. at 6 (W.D. Tex. Oct. 2, 1991) (concluding that plaintiff's request for records on
2, a
44enormous burden, both in time and taxpayers' money");
continuing basis would 15-55 an
"create
No.
Lybarger v. Cardwell, 438 F. Supp. 1075, 1077 (D. Mass. 1977) (holding that "open-ended
procedure" advanced by requester whereby records are automatically disclosed is not
required by FOIA and "will not be forced" upon agency); see also Tax Analysts, 1998 WL
419755, at *4 (recognizing that court could not order relief concerning documents not yet
created and "for which a request for release has not even been made and for which
administrative remedies have not been exhausted").
125

5 U.S.C. § 552(a)(3)(A); see, e.g., Jones v. U.S., 412 Fed. Appx. 690, 691 (5th Cir. 2011)
(affirming that request was not proper where plaintiff mailed request to address other than
that specified in agency's FOIA regulations); Clemente v. FBI, 854 F. Supp. 2d 49, 56-57
(D.D.C. 2012) (granting summary judgment to agency because plaintiff failed to write
directly to field office when seeking records from that office as required by agency's
regulations); Davis v. FBI, 767 F. Supp. 2d 201, 204 (D.D.C. 2011) (granting agency's
summary judgment motion where plaintiff "d[id] not refute [agencies'] evidence
establishing that his request to those agencies failed to comply [with FOIA regulations]");
Ivey v. Snow, No. 05-1095, 2006 WL 2051339, at *4 (D.D.C. 2006) (granting summary
judgment to agency because plaintiff failed to exhaust administrative remedies when
requests failed to comply with agency regulations); Wicks v. Coffrey, No. 01-3664, 2002 WL
1000975, at *2 (E.D. La. May 14, 2002) ("The first step in exhausting administrative
remedies under the FOIA is filing a proper FOIA request."). But see Gonzales & Gonzales
Bonds & Ins. Agency, Inc. v. DHS, No. C 11-02267 DMR, 2012 WL 6680228, at *7-*8 (N.D.
126

30

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 52 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
regulations specifying the schedule of fees to be charged and establishing procedures for the
waiver of such fees.127 The FOIA also requires regulations providing for expedited
processing.128 Agencies may promulgate regulations providing for aggregation of requests
and multi-track processing.129
Significantly, courts have held that the requirements of the FOIA do not begin to
apply until an agency receives a proper FOIA request -- one that reasonably describes the
records sought and complies with published rules regarding procedures to be followed.130
Cal. Dec. 21, 2012) (holding that provision of agency regulations which required provision of
consent or proof of death when seeking records on third parties was not permissible).
127

5 U.S.C. § 552(a)(4)(A).

128

See id. § 552, (a)(6)(E).

See id. § 552(a)(6)(B)(iv), (a)(6)(D); see also DOJ, OIP Guidance: Guidance for Further
Improvement from 2012 Chief FOIA Officer Report Review and Assessment (2012)
(encouraging agencies to utilize multi-track processing).
129

See 5 U.S.C. § 552(a)(3)(A), (a)(6)(A); Borden v. FBI, No. 94-1029, 1994 WL 283729, at
*1 (1st Cir. June 28, 1994) (per curiam) (affirming dismissal of case because request not
proper where it failed to comply with agency regulations and eo not reasonably describe
17
mpdid
Po(D.D.C.22, 20
records sought); Jean-Pierre v. BOP, 880 F. Supp.v. 95
st 2012) (finding that
n 2d
gma on Augu
plaintiff did not comply with all agency FOIA regulations and therefore he never properly
Ya
initiated a FOIA request and his d in complaint is subject to dismissal); Moore v. FBI, No.
e FOIA rchived
cit
11-1067, 2012 WL 3264566, at *6 (D.D.C. Aug.13, 2012) (holding that request to CIA for
2, a
"'consciousness-altering technology'" was not "reasonably descriptive to trigger [agency's]
5544
15disclosure obligations"); Weirich v. Bd. of Governors of the Fed. Reserve System, No. CV-10No.
5031-EFS, 2010 WL 4717221, at *5 (E.D. Wash. Nov. 15, 2010) (concluding that because
plaintiff had not submitted proper FOIA request, agency was under no obligation to adhere
to statutory time requirements); Wills v. DOJ, 581 F. Supp. 2d 57, 68 (D.D.C. 2008) (finding
agency has no obligation to respond to request which it did not receive when plaintiff
provided no evidence to support contention that he submitted request); Banks v. Lappin,
539 F. Supp. 2d 228, 235 (D.D.C. 2008) (finding that "[i]t cannot be said that an agency
improperly withheld agency records if the agency did not receive a request for those
records"); Willis v. DOJ, 581 F. Supp. 2d 57, 68 (D.D.C. 2008) (declaring "[i]t is axiomatic
that an agency has no obligation to respond to a request that it did not receive"); Antonelli v.
ATF, No. 04-1180, 2006 WL 141732, at *2 (D.D.C. Mar. 17, 2006) (granting agency's motion
for summary judgment because requester failed to comply with agency regulation requiring
sufficient description of records sought in order that agency "with a reasonable amount of
effort . . . [could] initiate a search" from among more than 100 systems of records);
Hutchins v. DOJ, No. 00-2349, 2005 WL 1334941, at *1-2 (D.D.C. June 6, 2005) (finding
that where agency does not receive request, it has no duty to search for or produce records,
nor to respond); Carbe v. ATF, No. 03-1658, 2004 WL 2051359, at *8 (D.D.C. Aug. 12,
2004) (stating that agency "has no reason to search or produce records . . . and . . . has no
basis to respond" if it does not receive FOIA request, even where requester claims to have
submitted one); Wicks, 2002 WL 1000975, at *2 (dismissing case where requester "failed to
comply with the published regulations governing proper FOIA requests").
130

31

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 53 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Time Limits
The FOIA provides that when an agency receives a proper FOIA request, it "must
determine within twenty [working] days . . . whether to comply with such request." 131 The
Court of Appeals for the District of Columbia Circuit has held that "in order to make a
'determination' within the statutory time periods and thereby trigger the administrative
exhaustion requirement, the agency need not actually produce the documents within the
relevant time period . . . [b]ut the agency must at least indicate within the relevant time
period the scope of the documents it will produce and the exemptions it will claim with
respect to any withheld documents."132 The FOIA also provides that "[u]pon any
determination by an agency to comply with a request for records, the records shall be made
promptly available to such person making such request."133
In "unusual circumstances," an agency can extend the twenty-day time limit for
processing a FOIA request by written notice to the requester "setting forth the unusual
circumstances for such extension and the date on which a determination is expected to be
131

5 U.S.C. § 552(a)(6)(A)(i) (2006 & Supp. IV 2010).

CREW v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013) (finding that if agency does not adhere
to FOIA's explicit timelines, "'penalty'" is that agency cannot rely on administrative
eo
7
exhaustion requirement because statute: requires that agency immediately notify requester
omp 22 201
Pwith request;, requires that agency
of determination of and reasons for whether to comply
n v. u st
gmato the headguthe agency any adverse
immediately notify requester of right to appeal
Ya
on A of
determination; creates unusual circumstancesed
ed in rchiv safety valve that permits agency to extend
cit
20–working–day period for response a up to 10 additional working days; and provides
2, by
5544
that, once in court, agency 15may further extend its response time by means of exceptional
No.
circumstances safety valve). But see Dennis v. CIA, Nos. 12 CV 4207(JG), 12 CV 4208(JG),
12 CV 5334(JC), 2012 WL 5493377, at *2 (E.D.N.Y. Nov. 13, 2012) (holding that "interim
response informing [plaintiff] that [agency] is in the process of addressing [plaintiff's]
inquiry is sufficient to satisfy the requirement that [agency] reply within the statutory time
period); Carson v. U.S. Merit Sys. Protect. Bd., No. 11-399, 2012 WL 2562370, *2 (E.D.
Tenn. June 29, 2012) (dismissing complaint contending that agency failed to respond to
request in timely manner because plaintiff submitted no evidence to suggest that agency
was not acting in good faith and agency answered request prior to commencement of
litigation).
132

5 U.S.C. § 552(a)(6)(C)(i); see CREW, 711 F.3d at 189 (holding that, after processing
FOIA request and making determination, agency may still need some additional time to
physically redact, duplicate or assemble for production documents located, however,
"agency must do so and then produce records 'promptly'"); S. Yuba River Citizens League v.
Nat'l Marine Fisheries Serv., No. 06-2845, 2008 WL 2523819, at *15 (E.D. Cal. June 20,
2008) (supporting practice of releasing documents "on a rolling basis" if necessary, as this
respects statute's "prompt release" requirement). But see Manos v. U.S. Dep't of the Air
Force, No. C-92-3986, 1993 U.S. Dist. LEXIS 1501, at *14-15 (N.D. Cal. Feb. 10, 1993)
(ruling that even mailing response within statutory time limit was insufficient and that
requester must actually receive response within time limit).
133

32

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 54 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
dispatched."134 The FOIA defines "unusual circumstances" as (1) the need to search for and
collect records "from field facilities or other establishments that are separate from the
office" processing the request; (2) the need to search for, collect, and examine "a
voluminous amount" of records "demanded in a single request"; and (3) the need to consult
with another agency or two or more agency components.135 If the required extension
exceeds ten days, the agency must allow the requester an opportunity to modify his or her
request, or to arrange for an alternative time frame for completion of the agency's
processing.136 Each agency is required to make available its FOIA Public Liaison to aid the
requester in this regard and to "assist in the resolution of any disputes."137
The FOIA provides that the standard twenty-day time period begins on the date the
request is first received by the appropriate agency component (or office), but no later than
ten days after the request is first received by any component within the agency that is
designated by the agency's regulations to receive FOIA requests.138 Accordingly, if a
requester mistakenly sends a FOIA request to an agency component that is designated to
receive FOIA requests, but is not itself the proper component within the agency to process
that request, that receiving component is obligated to "route" the "misdirected" request to
the appropriate component within that agency within ten days of receiving the request. 139 If
5 U.S.C. § 552(a)(6)(B)(i); see CREW, 711 F.3d at 189 (D.C. Cir. April 2, 2013) (noting
that agencies can extend twenty-working-day timeline to thirty-working-days if unusual
circumstances delay ability to search for, collect, examine, and consult regarding responsive
documents); Pub. Citizen, Inc. v. Dep't of Educ., No. 01-2351,eo op. at 17-23 (D.D.C. June
p slip , 2017
Pom
17, 2002) (ruling that because agency has discretion. whether tot invoke extension, agency is
2
v
anextension).us 2
g
not obliged to send such notice unless it agm
invokes
Au
134

in Y ived on
cited alsoaSierra Club v. U.S. Dep't of Interior, 384 F. Supp. 2d
135 5 U.S.C. § 552(a)(6)(B)(iii); see
rch
42,
1, 31 (D.D.C. 2004) (finding554 "onerous request" and requester's "refusal to reasonably
- that
modify it or to arrange an alternative timeframe for release of documents certainly
o. 15
N

constituted 'unusual circumstances' that relieved the [agency] of the normal timeliness for
release of documents under FOIA"); Al-Fayed v. CIA, No. 00-2092, slip op. at 5 (D.D.C. Jan.
16, 2001) (recognizing that circumstances "such as an agency's effort to reduce the number
of pending requests, the amount of classified material, the size and complexity of other
requests processed by the agency, the resources being devoted to the declassification of
classified material of public interest, and the number of requests for records by courts or
administrative tribunals are relevant to the Courts' determination as to whether [unusual]
circumstances exist"), aff'd, 254 F.3d 300 (D.C. Cir. 2001).
5 U.S.C. § 552(a)(6)(B)(ii); cf. Al-Fayed, No. 00-2092, slip op. at 6 (D.D.C. Jan. 16, 2001)
(observing that Act "places the onus of modification [of a request's scope] squarely upon the
requester, and does not indicate that an equal burden rests with the agency to 'negotiate' an
agreeable 'deadline'").
136

137

5 U.S.C. § 552(a)(6)(B)(ii).

138

Id. § 552(a)(6)(A)(ii).

See id.; see also FOIA Post, "OIP Guidance: New Requirement to Route Misdirected
FOIA Requests" (posted 11/18/08).
139

33

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 55 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
the initial receiving component fails to route such a request to the proper component within
ten days, the proper component's twenty-day time period to make a request determination
begins to run nevertheless (provided that the request is otherwise a proper FOIA request).140
The FOIA's routing requirement applies exclusively to components within an agency; it does
not obligate components of an agency to route requests to components of a different
agency.141
The FOIA permits agencies to toll the twenty-day time period (i.e., stop the clock)
under two circumstances: (1) one time to obtain information from the requester; and (2) as
"necessary" to clarify fee-related issues with the requester.142 The one-time tolling
permitted to seek information is limited to situations where the agency is awaiting
information that it has "reasonably requested" from the requester.143 While an agency may
only toll once while seeking information from the requester, as a matter of sound
administrative practice, an agency is not prohibited from contacting a requester as many
times as needed to facilitate processing the request.144
An agency may also toll the time period "if necessary" to clarify with the requester
issues pertaining to fee assessment. 145 Unlike the first circumstance, provided that tolling is
necessary to clarify fee assessment issues, there is no statutory limit on the number of times
an agency may toll for that purpose. 146 In either circumstance, the agency's receipt of the
requester's response ends the tolling period and the response time clock resumes. 147
See 5 U.S.C. § 552(a)(6)(A)(ii); see also FOIA Post, "OIP peo
Guidance: New Requirement to
17
P m t 22, 20
Route Misdirected FOIA Requests" (posted 11/18/08). o
v.
140

us
an
agm on Aug
141 See 5 U.S.C. § 552(a)(6)(A)(ii); see also FOIAd
in Y
Post, "OIP Guidance:
cited (posted ive
Route Misdirected FOIA Requests" , arch11/18/08).
442
5-55
1
142 See 5 U.S.C. § 552(a)(6)(A)(ii).
No.
143

New Requirement to

Id. § 552(a)(6)(A)(ii)(I).

Id.; see FOIA Post, "OIP Guidance: New Limitations on Tolling the FOIA's Response
Time" (posted 11/18/08) (advising that if contacting requester for non-fee related
information more than one time will facilitate processing of request, agency is free to do so,
but clock will continue to run in that event); see also FOIA Post, “OIP Guidance: The
Importance of Good Communication with FOIA Requesters” (posted 03/01/10) (noting that
agencies should work "'in a spirit of cooperation'" with requesters and "'[u]necessary
bureaucratic hurdles have no place in 'new era of open Government'").
144

5 U.S.C. § 552(a)(6)(A)(ii)(II); see also FOIA Post, "OIP Guidance: New Limitations on
Tolling the FOIA's Response Time" (posted 11/18/08).
145

See 5 U.S.C. § 552(a)(6)(A)(ii)(II); see also FOIA Post, "OIP Guidance: New Limitations
on Tolling the FOIA's Response Time" (posted 11/18/08) (noting that fee issues may arise
sequentially during processing of request and cannot always be resolved at one given point
in time).
146

147

See 5 U.S.C. § 552(a)(6)(A)(ii)(II).
34

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 56 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
The FOIA expressly authorizes agencies to promulgate regulations providing for
"multitrack processing" of their FOIA requests -- which allows agencies to process requests
on a first-in, first-out basis within each track, and also permits them to respond to relatively
simple requests more quickly than requests involving complex and/or voluminous
records.148
The FOIA provides that a requester is "deemed to have exhausted his administrative
remedies with respect to such request if the agency fails to comply with the applicable time
limit provisions."149 In this situation, a requester may seek judicial review.150 (For a
discussion of the requirements of constructive exhaustion, see Litigation Considerations,
Exhaustion of Administrative Remedies, below.) Once in court, the agency may receive
additional time to process the request if it shows that its failure to meet the statutory time
limits is the result of "exceptional circumstances" and that it has exercised "due diligence" in
processing the request.151
Finally, the FOIA provides that "[a]n agency shall not assess search fees (or in the
case of a requester [who is an educational or noncommercial scientific institution or a
representative of the news media, shall not charge], duplication fees) . . . if the agency fails
to comply with any time limit under paragraph (6) [of the FOIA], if no unusual or
exceptional circumstances (as those terms are defined [under the FOIA]) apply to the

peo , 17
Pom 28t C.F.R.2§016.5(b) (2012); see
148 5 U.S.C. § 552(a)(6)(D); see, e.g., DOJ FOIA Regulations,
.
22
an v Augusfrom 2012 Chief FOIA Officer
gm
also DOJ, OIP Guidance: Guidance for Further Improvement
in Ya ived onagencies to consider adopting multiReport Review and Assessment (2012) (encouraging
h
cited improved
track system which could allow for2, arc timeliness for "simple" track requests and
4 their request to fit within "simple" track system); FOIA
allow requesters option of tailoring
- 54
15at5 (discussing multitrack processing for agencies with
Update, Vol. XVIII, No. 1, 6
No.
decentralized FOIA operations); cf. FOIA Post, "2008 Guidelines for Agency Preparation of
Annual FOIA Reports" (posted 5/22/2008) (reflecting reporting of multitrack-processing
and data related to requests for expedited processing).
149

5 U.S.C. § 552(a)(6)(C)(i).

See, e.g., CREW, 711 F.3d at 189 (holding that "if an agency does not adhere to certain
statutory timelines in responding to a FOIA request, the requester is deemed by statute to
have fulfilled the exhaustion requirement"); cf. Flaherty v. IRS, 468 Fed. Appx. 8, at 9 (D.C.
Cir. 2012) (holding that administrative exhaustion requirement re-triggered by agency
response after twenty-day limit, but before plaintiff filed complaint); Judicial Watch, Inc. v.
U.S. Dep't of Energy, No. 11-2140, 2012 WL 3781865, at *3 (D.D.C. Aug. 31, 2012) (same);
Perez-Rodriguez v. DOJ, No. 11-0556, 2012 WL 3764763, at *4 (D.D.C. Aug. 31, 2012)
(same).
150

See 5 U.S.C. § 552(a)(6)(C); CREW, 711 F.3d at 185 (holding that "[i]f exceptional
circumstances exist, then so long as 'the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency additional time to
complete its review of the records.'" (quoting 5 U.S.C. § 552(a)(6)(C)(i))).
151

35

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 57 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
processing of the request."152 In other words, in those situations where the request does not
present unusual or exceptional circumstances, as described above, an agency is prohibited
from assessing search fees (or duplication fees if the requester is an educational or
noncommercial scientific institution or a representative of the news media) if the agency
fails to comply with the FOIA's time limits. 153 Conversely, for those requests for which
unusual or exceptional circumstances do exist, for example, when the request involves a
voluminous amount of records or there is a need to search in separate facilities, agencies
may assess appropriate fees.154
Expedited Processing
The FOIA requires agencies to issue regulations that provide for the expedited
processing of FOIA requests for requesters who demonstrate "compelling need," 155 or for
any other case deemed appropriate by the agency. 156 Under the FOIA, a requester can show
"compelling need" in one of two ways: (1) by establishing that his or her failure to obtain the
records quickly "could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;"157 or, (2) if the requester is a "person primarily engaged in
U.S.C. § 552(a)(4)(A)(viii); see also FOIA Post, "OIP Guidance: New Limitations on
Assessing Fees" (posted 11/18/08).
152

5 U.S.C. § 552(a)(4)(A)(viii); see also FOIA Post, "OIP Guidance: New Limitations on
eo
Assessing Fees" (posted 11/18/08).
2017
omp
153

2,
v. P
anICE, No. gust 2 2013 WL 3803899, at *6154 5 U.S.C. § 552(a)(4)(A)(viii); see Rosenberg v.
gm on Au 12-452,
in Ya ivwas not "time-barred from requesting search
8 (D.D.C. July 31, 2013) (holding that agency ed
citedsearch ch
fees" because agency's "need[] to42, arfor and collect records" offsite constituted "unusual
54
circumstances" allowing agency to charge search fees "despite failing to comply with
15-5 and further finding that such fees were chargeable even
[FOIA's] timing requirements,"
No.
though agency "did not comply with the procedural requirements for seeking additional
time," and concluding that "fact that a fee request was made after the Plaintiff commenced
litigation does not excuse the Plaintiff from paying the requested fees"); see also FOIA Post,
"OIP Guidance: New Limitations on Assessing Fees" (posted 11/18/08).
155

5 U.S.C. § 552(a)(6)(E) (2006 & Supp. IV 2010).

See 5 U.S.C. § 552(a)(6)(E)(i)(II); see also, e.g., DOJ FOIA Regulations, 28 C.F.R.
§ 16.5(d)(1)(iii), (iv) (2012) (providing that requests will be granted expedited processing if
they involve "[t]he loss of substantial due process rights" or "a matter of widespread and
exceptional media interest in which there exist possible questions about the government's
integrity which affect public confidence"); Dep't of State Regulation, 22 C.F.R. § 171.12(b)(1)
(2011) (providing for expedited processing if "[f]ailure to obtain requested information on
an expedited basis could reasonably be expected to . . . harm substantial humanitarian
interests").
156

5 U.S.C. § 552(a)(6)(E)(v)(I); see Lawyers Comm. for Civil Rights of the San Francisco
Bay Area v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 2905963, at *2 (N.D. Cal.
Sept. 8, 2009) (denying request for expedited processing because plaintiff "failed to
adequately develop the arguments and authority in support of such a request"); Judicial
157

36

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 58 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
disseminating information,"158 by demonstrating that there exists an "urgency to inform the
public concerning actual or alleged Federal Government activity."159
Watch, Inc. v. Rossotti, No. 01-2672, 2002 WL 31962775, at *2 n.8 (D. Md. Dec. 16, 2002)
(denying plaintiff's request for expedited processing because its allegations "that it was the
victim of ongoing criminal activity" and that "it would be unable to vindicate its rights
without the requested documents . . . . do[] not meet the statutory definition of 'compelling
need'"), aff'd sub nom. Judicial Watch, Inc. v. United States, 84 F. App'x 335 (4th Cir.
2004).
5 U.S.C. § 552(a)(6)(E)(v)(II); see also, e.g., Landmark Legal Found. v. EPA, No. 12-1726,
2012 WL 6644362, at *4 (D.D.C. Dec. 21, 2012) (holding that information dissemination as
"'part of [plaintiff's] mission,'" is not sufficient to demonstrate that plaintiff is "primarily,
and not just incidentally, engaged in information dissemination"); Leadership Conference
on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (concluding that
"plaintiff is primarily engaged in disseminating information . . . regarding civil rights"),
appeal dismissed, No. 06-5055 (D.C. Cir. Apr. 28, 2006); Tripp v. DOD, 193 F. Supp. 2d
229, 241 (D.D.C. 2002) ("To be sure, plaintiff has been the object of media attention and has
at times provided information to the media, but there is no evidence . . . that she is
'primarily' engaged in such efforts.").
158

5 U.S.C. § 552(a)(6)(E)(v)(II); see, e.g., DOJ FOIA Regulations, 28 C.F.R. § 16.5(d)(ii)
o
(2012); see also Bloomberg, L.P v. FDA, 500 F. Supp.Po371, e
2d mp 377-78, (S.D.N.Y. 2008)
2017
2 agency records did not
(stating that information may "concern" government activity even if
st 2
n v.
gma on Augu lessened by public's alleged
originate within agency, and that urgency of public's need is not
in Ya ived
inability to understand certain ed data contained in records); Long v. DHS, 436 F. Supp.
raw
cit
rch
2d 38, 43 (D.D.C. 2006) (finding42, a
that requester failed to link need for records to "imminent
54
action" that would affect usefulness of records); ACLU v. DOD, No. 06-1698, 2006 WL
15-5
No.
1469418, at *7-8 (N.D. Cal. May 25, 2006) (finding that requesters established "public's
need to know" as well as "urgency of the news" related to Pentagon intelligence program,
and stating that "extensive media interest usually is a fact supporting not negating
urgency"); IEEE Spectrum v. DOJ, No. 05-0865, slip op. at 2 (D.D.C. Feb. 16, 2006)
(finding that requester failed to establish "'current exigency'" when it merely demonstrated
its own desire to publish the requested information, "a self-serving assertion that carries
very little weight"); Leadership Conference on Civil Rights, 404 F. Supp. 2d at 260 (finding
that "[p]laintiff's FOIA requests could have a vital impact on development of the substantive
record" related to issue of re-authorization of provisions of Voting Rights Act); Elec. Privacy
Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 101 (D.D.C. 2004) (finding that, by demonstrating
public interest in only general topic rather than specific subject of its requests, requester
failed to demonstrate "urgency to inform"); Tripp, 193 F. Supp. 2d at 241 (holding that
plaintiff's "job application to the Marshall Center and the resulting alleged Privacy Act
violations by DOD are not the subject of any breaking news story"); FOIA Update, Vol. XIX,
No. 4, at 2 (discussing Nazi War Crimes Disclosure Act, 5 U.S.C. § 552 note (2006), which
does not directly amend the FOIA, but which does "impact[] directly on the FOIA [in that it
provides] that any person who was persecuted by the Nazi government of Germany or its
allies 'shall be deemed to have a compelling need' under 'section 552(a)(6)(E) of title 5,
United States Code'" in making requests for access to classified Nazi war-criminal records
(quoting 5 U.S.C. § 552 note, § 4)).
159

37

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 59 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
The Court of Appeals for the District of Columbia Circuit has explained that the FOIA
requires the consideration of several factors to determine if the "urgency to inform"
standard is satisfied.160 The factors for consideration include whether a request concerns a
"matter of current exigency to the American public," whether the consequences of delaying a
response would "compromise a significant recognized interest," whether the request
concerns "federal government activity," and the credibility of the requester's "allegations
regarding governmental activity."161 In this regard, courts have found a distinction between
the general public interest in the overall subject matter of a FOIA request and the public
interest that might be served by disclosure of the actual records sought or those responsive
to a particular FOIA request.162
Agencies must make a determination whether to grant a request for expedited access
within ten calendar days of its receipt.163 Agency denials of requests for expedited
processing and the failure to respond timely to such a request are subject to judicial
review.164

160

Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001).

peo
17
Pom t 22, 20
v.
an355 F. Supp.s2d 98, 102 (D.D.C. 2004)
gu
162 See, e.g., Electronic Privacy Info. Ctr.agm
Y v. DOD, on Au
n
(upholding denial of expediteded i
it processing whend
c'substantialrchive requester had "failed to present the agency
with evidence that there is a
2, a interest' in the 'particular aspect' of [its] FOIA
54 that
5fact4 [the requester] has provided evidence that there is
request," finding that, "[t]he
15some media interesto. data mining as an umbrella issue does not satisfy the requirement
N in
161

Id.

that [it] demonstrate interest in the specific subject of [its] FOIA request"); Landmark Legal
Found., 2012 WL 6644362, at *4 (rejecting notion that matter is urgent merely because it is
of public interest or concerns public health and economic well-being because, "such a
justification would likely sweep almost any FOIA request into the ambit of 'urgency' since
FOIA requests are regularly designed to elicit information about how the government is
performing its work"); ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 WL 588354, at *13 (N.D.
Cal. Mar. 11, 2005) (ruling in "expedited processing" context that "it was not sufficient for
the plaintiffs to show [public] interest in only the general subject area of the request"); see
also FOIA Post, "FOIA Counselor Q&A" (posted 1/24/06) (advising on "the meaning of an
'umbrella issue' under the FOIA," and noting that "[t]he term 'umbrella issue' is . . . one that
has been used by agencies and courts alike to make important distinctions when considering
public interest issues" in FOIA decisionmaking).
5 U.S.C. § 552(a)(6)(E)(ii)(I); see, e.g., DOJ FOIA Regulations, 28 C.F.R. § 16.5(d)(4);
Dep’t of Interior FOIA Regulations, 43 C.F.R. § 2.14(d).
163

Id. § 552(a)(6)(E)(iii); see ACLU v. DOJ, 321 F. Supp. 2d 24, 29 (D.D.C. 2004) (stating
that requester's failure to appeal agency's decision denying expedited processing "does not
preclude judicial review of the decision").
164

38

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 60 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
An agency that grants expedited processing of a request must process it "as soon as
practicable."165 Some courts have held that an agency's failure to process such a request
within the twenty-day non-expedited time limit raises a rebuttable presumption that the
agency has failed to process the request "as soon as practicable."166
Searching for Responsive Records
The FOIA defines the term "search" as "to review, manually or by automated means,
agency records for the purpose of locating those records which are responsive to a
request."167 As a general rule, courts require agencies to undertake a search that is
"reasonably calculated to uncover all relevant documents."168 The Court of Appeals for the
5 U.S.C. § 552(a)(6)(E)(iii); see Elec. Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30, 39
(D.D.C. 2006) ("The legislative history of the amendments makes clear that, although
Congress opted not to impose a specific deadline on agencies processing expedited requests,
its intent was to 'give the request priority for processing more quickly than otherwise would
occur.'" (quoting S. Rep. No. 104-272, at 17 (1996))); Gerstein v. CIA, No. 06-4643, 2006
WL 3462658, at *8 (N.D. Cal. Nov. 29, 2006) (noting that "FOIA does not set forth a
specific deadline by which expedited processing . . . must be concluded," but rather provides
that requests granted expedited processing shall be processed "as soon as practicable");
ACLU v. DOD, 339 F. Supp. 2d 501, 503-04 (S.D.N.Y. 2004) ("While it would appear that
expedited processing would necessarily require compliance in fewer than 20 days, Congress
peo
provided that the executive was to 'process as soon as practicable' any2017
Pom t 22, expedited request."
.
(citing § 552(a)(6)(E)(iii)).
us
an v
165

g
Yagm d on Au
in
166 See, e.g., Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 542 F. Supp. 2d
cited , archive
1181, 1186 (N.D. Cal. 2008) (finding that agency processing expedited request
442
"presumptively" failed to 5-55its expedited processing obligations when it failed to meet
meet
1
No.
the standard twenty-day deadline (citing Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 37-39));
Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 37-39 (discussing presumption and stating that
agencies can rebut it by presenting "credible evidence" that twenty-day time limit is "truly
not practicable").
167

5 U.S.C. § 552(a)(3)(D)(2006 & Supp. IV 2010).

See Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983); Campbell v. SSA, 446 F.
App'x 477, 480 (3d Cir. June 3, 2011) (same) (citing Weisberg, 705 F.2d at 1351); see also
Anderson v. DOJ, 326 F. App'x 591, 592 (2d Cir. 2009) (finding search reasonable and
adequate where agency conducted two searches, and described in detail how it did so,
including operation of database used); Miccosukee Tribe of Indians of Fla. v. United States,
516 F.3d 1235, 1257-58 (11th Cir. 2008) (reiterating that agency is obligated to show search
was reasonably calculated to uncover all relevant documents, but rejecting assertion that
this requires agency to provide testimony from each person involved in search, and
declining to establish "what inference [as to search adequacy], if any, can be . . . drawn from
the late production . . . of FOIA documents"); Lee v. U.S. Attorney, 289 F. App'x 377, 380-81
(11th Cir. 2008) (concluding that agency's search was reasonably calculated to uncover
requested records and explaining that "FOIA does not require an agency to exhaust all files
which conceivably could contain relevant information" (emphasis added) (quoting Ray v.
DOJ, 908 F.2d 1549, 1558-59 (11th Cir. 1990), rev'd on other grounds, 502 U.S. 164 (1991)));
168

39

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 61 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
District of Columbia has held that "'the adequacy of a FOIA search is generally determined
not by the fruits of the search, but by the appropriateness of the methods used to carry out
the search.'"169 The adequacy of an agency's search is judged by a test of "reasonableness,"
which will vary from case to case.170 Courts have found searches to be reasonable when,
among other things, they are based on a reasonable interpretation of the scope of the subject
matter of the request.171 Relatedly, courts have held that an agency's search is reasonable
Williams v. DOJ, 177 F. App'x 231, 233 (3d Cir. 2006) (recognizing that an agency "has a
duty to conduct a reasonable search for responsive records" (citing Oglesby v. U.S. Dep't of
the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))); Johnston v. DOJ, 163 F.3d 602, at *1 (8th Cir.
1998) (unpublished table opinion) (concluding that agency demonstrated that it conducted
search reasonably calculated to uncover all responsive documents); Miller v. U.S. Dep't of
State, 779 F.2d 1378, 1383 (8th Cir. 1985) (recognizing that search must be "'reasonably
calculated to uncover all relevant documents'" (quoting Weisberg, 705 F.2d at 1351)); Media
Research Ctr. v. DOJ, 818 F. Supp. 2d 131, 138 (D.D.C. 2011) (concluding that search was
reasonably calculated because search terms would uncover responsive e-mail documents,
even if all possible e-mail accounts were not searched); Kortlander v. Bureau of Land
Mgmt., 816 F. Supp. 2d 1001, 1008 (D. Mont. 2011) (determining that twenty-one agency
employees who searched eight offices, including multiple paper and electronic file systems,
conducted reasonably calculated search for responsive records); Bonilla v. DOJ, 798 F.
Supp. 2d 1325, 1330 (S.D. Fla. 2011) (finding search reasonably calculated when paralegal
sent email to all personnel seeking responsive records, asked for records from attorney
o
assigned to case, and conducted electronic search for documents using multiple search
mpe 2, 2017
Po77-79 (D.D.C. 2011) (finding that
terms); Judicial Watch, Inc. v. DOJ, 806 F. Supp. 2d 74,
n v.
ust 2
gma and Augfiles was reasonably calculated
agency's three-pronged search of emails, network n local
Ya
o
to return all responsive records); Allen v. U.S. ed
ed in rchiv Secret Serv., 335 F. Supp. 2d 95, 99 (D.D.C.
cit search of its "comprehensive [Master Central Index]
2004) (concluding that agency's 42, a
554
system is a search method that could be 'reasonably expected to produce the information
15-v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))); cf.
requested'" (citing Oglesby
No.
Comer v. IRS, No. 97-76329, 2000 WL 1566279, at *2 (E.D. Mich. Aug. 17, 2000) ("[T]he
government is not required to expend the same efforts under FOIA that it would in response
to a litigation-specific document request.").
Jennings v. DOJ, 230 F. App'x 1, 1 (D.C. Cir. 2007) (quoting Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)); Delorme v. EOUSA, No. 12-0535, 2012 WL
5839513, at *1 (D.D.C. Nov. 16, 2012) (same).
169

See Zemansky v. EPA, 767 F.2d 569, 571-73 (9th Cir. 1985) (observing that the
reasonableness of an agency search depends upon the facts of each case (citing Weisberg,
705 F.2d at 1351)).
170

See, e.g., Larson v. Dep't of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (affirming adequacy
of search based on agency's reasonable determination regarding records being requested
and searched accordingly); Rein v. U. S. Patent & Trademark Office, 553 F.3d 353, 363 (4th
Cir. 2009) (ruling that agency's "decision to use the searches conducted in response to
[prior, similar] requests as the starting point for responding to [current] requests was not
inherently unreasonable and appears to be a practical and common-sense approach"
because "[t]he requests sought similar information related to the same subject matter");
Hayden v. DOJ, No. 03-5078, 2003 WL 22305071, at *1 (D.C. Cir. Oct. 6, 2003) (per
171

40

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 62 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
when it focused on the records specifically mentioned in the request.172 At times the
particular records custodians chosen by the agency to search are examined by the court,
curiam) (rejecting plaintiff's argument that agency should have searched for records about
him in case file of another individual who was mentioned during his criminal trial, because
"[b]ased on [plaintiff's] FOIA requests, the [agency] reasonably limited the scope of its
search to [his own] criminal case file"); Coal. on Political Assassinations v. DOD, 12 F. App'x
13, 13-14 (D.C. Cir. 2001) (finding that agency conducted reasonable search pursuant to
"limited request" and "specific code words" later provided by requester); Williams v.
Comm'r of Internal Revenue, No. 08-522-JJB-CN, 2010 U.S. Dist. LEXIS 128385, at *2
(M.D. La. Dec. 3, 2010) (concluding that agency conducted reasonable search when it
located correct case file despite incorrect information provided by requester); Amnesty Int'l
v. CIA, No. 07-5435, 2008 WL 2519908, at *13 (S.D.N.Y. June 19, 2008) (rejecting claim
that search was too narrow, stating that where agency had no doubt about what request
sought, agency not obligated to "'search anew based upon a subsequent clarification,'" as to
do so would allow requester additional requests with same priority as original (quoting
Kowalczyk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996)); Kidder v. FBI, 517 F. Supp. 2d 17, 2324 (D.D.C. 2007) (holding that "based on plaintiff's clear request [that did not reference
aliases], agency is under no obligation to search . . . any names other than [name stated in
request]"); Rothschild v. DOE, 6 F. Supp. 2d 38, 40 (D.D.C. 1998) (declaring that agency is
not required to search for records that "do not mention or specifically discuss" subject of
request).
o

pe
17
Pom t 22, 20
.
172 See Ledesma v. U.S. Marshals Serv., No. 05-5150, 2006 U.S. App. LEXIS 11218, at *2
an v Augus
gmwas adequate where requester did not
(D.C. Cir. Apr. 19, 2006) (finding that Ya
search
n
d in c agency o
evideo and hived did not conduct search for video);
"specifically mention" cellblock
cit
ar
Gilliland v. BOP, No. 03-5251, 2004 ,WL 885222, at *1 (D.C. Cir. Apr. 23, 2004) (rejecting
442
5
requester's claim that . 15-5 "should have contacted the federal officials connected with
o agency
N

[the] allegedly missing documents," because his FOIA requests "did not specify these
officials or otherwise indicate that they might have responsive records"); Halpern v. FBI, 181
F.3d 279, 289 (2d Cir. 1999) (holding cross-referenced files to be beyond scope of request
because once agency "had requested such clarification [about requester's interest in
receiving such records], it could then in good faith ignore the cross-referenced files until it
received an affirmative response" from requester); Kowalczyk, 73 F.3d at 389 (finding
search limited to headquarters' files reasonable because plaintiff sent request there and
description of records sought did not alert agency that he sought records from field office);
Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993) (finding that agency's search was properly
limited to records about named individual, with no requirement that secondary references
or variant spellings be checked); White v. DOJ, 840 F. Supp. 2d 83, 89-91 (D.D.C. 2012)
(reasoning that EOUSA was not required to contact FBI to research criminal case number,
instead EOUSA conducted adequate search based on FBI file number provided in request);
Petit-Frere v. U.S. Attorney's Office for the S. Dist. of Fla., 800 F. Supp. 2d 276, 279-280
(D.D.C. 2011) (affirming agency's search using only variations of plaintiff's name, stating
that request did not ask agency to search using names of plaintiff's co-defendants from his
criminal trial); Truesdale v. DOJ, 803 F. Supp. 2d 44, 51 (D.D.C. 2011) (affirming agency's
decision to search system of records specifically mentioned in plaintiff's clarification of his
request); Antonelli v. ATF, No. 04-1180, 2006 WL 367893, at *7 (D.D.C. Feb. 16, 2006)
(concluding that FBI’s search of Central Records System was reasonable and that FBI was
not obliged under FOIA to search its computer hard drives for preliminary work product
41

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 63 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
with searches found to be reasonable when the selection was adequately explained, 173 but
found to be unreasonable when it was not.174

when requester did not specifically request search of FBI's "I" drives); Hamilton Sec. Group
v. HUD, 106 F. Supp. 2d 23, 27 (D.D.C. 2000) (finding that "[g]iven the exchange of
correspondence between counsel and the agency relating to the scope of the request, there is
no basis for plaintiff's claim that defendant should have understood that the request for a
[single, specific record] was meant to include additional [records]"), aff'd per curiam, No.
00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001); Murphy v. IRS, 79 F. Supp. 2d 1180,
1185-86 (D. Haw. 1999) (holding that agency "conducted a reasonable search in light of the
fact that Plaintiff gave no indication as to what types of files could possibly contain
documents responsive to this request or where they might be located"); cf. Ahanmisi v. U.S.
Dep't of Labor, 859 F. Supp. 2d 7, 10-11 (D.D.C. 2012) (noting that although agency did not
search using one variation of plaintiff's name, agency's search using multiple other name
variations constituted reasonable search).
See Adamowicz v. IRS, 402 F. App'x 648, 651 (2d Cir. 2010) (finding agency's search for
records with "'sole employee'" who conducted investigation was "'reasonably calculated to
discover the requested documents'") (citing Grand Cent. P'ship Inc. v. Cuomo, 166 F.3d 473,
489 (2d Cir. 1999); Rugiero v. DOJ, 257 F.3d 534, 547-48 (6th Cir. 2001) (rejecting
plaintiff's contention that "agent [who] testified against him at o
trial" must have records
pe
about him given that agency established that employee om testified,had 17such records);
20 no
Pwho
Judicial Watch v. DOD, 857 F. Supp. 2d 44, 53-55 v.
2012) (affirming DOD's search
n (D.D.C. gust 22
ma n most
for records, noting that because request ag
Y concerns "the Au highly classified operation that
o
in
this government has undertakend many, hived
cite in , arc many years . . . [i]f DOD has possession of these
records, the relevant individuals 42 well aware of that fact"); Pub. Emps. for Envtl.
4are
Responsibility v. U.S. Section 5
5-5 Int'l Boundary and Water Comm'n., 839 F. Supp. 2d 304, 3171
No.
18 (D.D.C. 2012) (concluding that agency's search was reasonable where its legal affairs staff
assessed request and forwarded it to correct division, and employee with "significant
experience" in the subject matter conducted search for responsive documents); Amnesty
Int'l USA v. CIA, 728 F. Supp. 2d 479, 499-500 (S.D.N.Y. 2010) (concluding that "a search
that included having the person most knowledgeable regarding [subject of request] inquire
into the existence of [the records]" was thorough), aff'd in part, rev'd in part & remanded on
other grounds, 539 F.3d 1143 (9th Cir. 2008); Blanton v. DOJ, 182 F. Supp. 2d 81, 85
(D.D.C. 2002) ("[T]he FOIA does not impose an obligation on defendant to contact former
employees to determine whether they know of the whereabouts of records that might be
responsive to a FOIA request."), aff'd on other grounds, 64 F. App'x 787 (D.C. Cir. 2003);
Vigneau v. O'Brien, No. 99-37ML, slip op. at 5 (D.R.I. Aug. 3, 1999) (magistrate's
recommendation) (finding search adequate when agency employee who plaintiff alleged
wrote requested records provided affidavit stating that no such records ever existed); cf.
Chilingirian v. U.S. Attorney Executive Office, 71 F. App'x 571, 572 (6th Cir. 2003) ("The
record shows that defendants went beyond the requirements of a reasonable search by
contacting the attorneys who might know of the existence of the [requested] records, even
though they were no longer employed by defendants."); Atkin v. IRS, No. 04-0080, 2005
WL 1155127, at *3 (N.D. Ohio Mar. 30, 2005) (stating that "additional efforts to contact a
former employee are irrelevant under the appropriate standard of reasonable effort" (citing
Chilingirian, 71 F. App'x at 571, 572).
173

42

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 64 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Courts have disfavored searches that are based on unreasonable interpretations of the scope
of the request,175 or which exclude files where records might have been located. 176 In

See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999) (finding that
because requester provided agency with name of agency employee who possessed requested
records during requester's criminal trial, "[w]hen all other sources fail to provide leads to
the missing records, agency personnel should be contacted if there is a close nexus, as here,
between the person and the particular record"); Houghton v. U.S. Dep't of State, No. 11-869,
2012 WL 2855868, at *6 (D.D.C. July 12, 2012) (holding that search was inadequate
because it did not include email account of individual who "may have been treated as an
employee of State in some ways," and therefore, court could not rule out possibility that
individual might have held State Department email account); Hardy v. DOD, No. 99-523,
2001 WL 34354945, at *5 (D. Ariz. Aug. 27, 2001) (requiring agency "to locate the
presumably few witnesses who were responsible for operating the closed circuit television
system, the robots, and any other video sources" who might have created requested tapes);
Comer v. IRS, No. 97-76329, 1999 WL 1022210, at *1 (E.D. Mich. Sept. 30, 1999) (rejecting
agency's assertion that it conducted a reasonable search when plaintiff "listed a small
number of specific persons who might have knowledge of [requested documents] and
specific places where they might be found" and agency did not indicate that it searched
there).
o
174

pe
17
Pom t 22, 20
175 See, e.g., Ctr. for Biological Diversity v. Office of .
n vthe U.S.us Representative, 450 Fed.
g Trade
gma agency'sulimitation of search to documents
a
Appx. 605, 607 (9th. Cir. 2011) (concluding that on A
in Y iv when request asked for documents likely
d
from particular time period cited
was unreasonablee
rchsearch); Truitt v. Dep't of State, 897 F.2d 540,
generated before date restriction 42agency
of , a
554that when request was "reasonably clear as to the materials
544-46 (D.C. Cir. 1990)15(stating
No.

desired," agency failed to conduct adequate search as it did not include file likely to contain
responsive records); Nat'l Sec. Counselors v. CIA, 549 F. Supp. 2d 6, 12-13 (D.D.C. 2012)
(agreeing that agency might have unreasonably limited scope of request because search
results indicated that agency was aware that plaintiff sought records related to particular
subject); Pub. Emps. For Envtl. Responsibility v. U.S. Int'l Boundary & Water Comm'n, 842
F. Supp. 2d 219, 224-26 (D.D.C. 2012) (noting that agency improperly limited scope of
request when it responded to question not asked by plaintiff, and did not search for "all
documents" related to request's subject); Amnesty Int'l USA, 728 F. Supp. 2d at 499 (finding
that despite plaintiff's use of incorrect terminology in its request, "the accompanying
definition [in attached memoranda] was sufficient to put the CIA on notice of the
documents Plaintiffs requested"); Amnesty Int'l, 2008 WL 2519908, at *14-15 (noting that
electronic searches "designed to return documents containing [for example] the phrase 'CIA
detainees' but not 'CIA detainee' or 'detainee of the CIA'" are unreasonable); Jackson v. U.S.
Attorney's Office, Dist. of N.J., 362 F. Supp. 2d 39, 42 (D.D.C. 2005) (concluding that
agency's search was inadequate where, inter alia, it sought records pertaining to requester
instead of records pertaining to investigation that requester wanted initiated); Wilderness
Soc'y v. U.S. Bureau of Land Mgmt., No. 01-2210, 2003 WL 255971, at *5 (D.D.C. Jan. 15,
2003) (concluding that agency's search was inadequate because "responsive documents
[possibly maintained] in the locations searched may not have been produced as a result of
the [agency's] narrow interpretation of plaintiffs' request"); Doolittle v. DOJ, 142 F. Supp.
2d 281, 285 (N.D.N.Y. 2001) (concluding that as long as description of records sought is
43

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 65 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
addition, the reasonableness of an agency's search can depend on whether the agency
properly determined where responsive records were likely to be found, and searched those
locations,177 or whether the agency improperly limited its search to certain record
systems.178
otherwise reasonable, agency cannot refuse to search for records simply because requester
did not also identify them by date on which they were created).
See, e.g., Miccosukee, 516 F.3d at 1252-55 (stating that agency's "self-imposed limitations
on its search were unreasonable and inaccurately depicted what the Tribe really sought"
where agency excluded from its search all publicly available documents when Tribe merely
desired no voluminous publicly available records it already had); Info. Network for
Responsible Mining v. Bureau of Land Mgmt., 611 F. Supp. 2d 1178, 1184-85 (D. Colo. 2009)
(concluding that agency's search was not reasonable where agency searched project file of
one employee despite fact that request identified twenty-four employees in four offices likely
to have responsive records, and agency located only six responsive documents in project
file); Wheeler v. EOUSA, No. 05-1133, 2008 WL 178451, at *8-9 (D.D.C. Jan. 17, 2008)
(finding search unreasonable because agency did not search requester's co-defendant's files
where request was for records related to criminal case, not just requester, and where
requester also notified agency of this search deficiency); Jefferson v. BOP, No. 05-00848,
2006 WL 3208666, at *6 (D.D.C. Nov. 7, 2006) (finding search not reasonable when agency
searched only its Central Records System database, where breadth of request warranted
peo
search of "I" drive database); Kennedy v. DOJ, No. 03-CV-6077, 20042017
WL 2284691, at *4
Pomagency 2, not search field office
(W.D.N.Y. Oct. 8, 2004) (finding search inadequate.wheregust 2 did
nv
a
when request specifically mentioned that field office); Summers v. DOJ, 934 F. Supp. 458,
Yagm d on Au
in
461 (D.D.C. 1996) (notwithstanding fact chive
cited , arthat plaintiff's request specifically sought access to
former FBI Director J. Edgar Hoover's "commitment calendars," finding agency's search
442
inadequate because agency-did not use additional search terms such as "appointment" or
5 55
.1
"diary"); Canning No
v. DOJ, 919 F. Supp. 451, 460-61 (D.D.C. 1994) (indicating that when
agency was aware that subject of request used two names, it should have conducted search
under both names).
176

See, e.g., Karantsalis v. DOJ, 635 F. 3d 497, 500-501 (11th Cir. 2011) (affirming district
court's determination that agency searched for records in system most likely to store
responsive records and described how it retrieved records from system); Lechliter v.
Rumsfeld, 182 F. App'x 113, 115 (3d Cir. 2006) (concluding that agency fulfilled duty to
conduct a reasonable search when it searched two offices that it "determined to be the only
ones likely to possess responsive documents" (citing Oglesby v. U.S. Dep't of the Army, 920
F.2d 57, 68 (D.C. Cir. 1990))); McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F.
Supp. 2d 47, 55-56 (D.D.C. 2012) (concluding that agency's search was reasonable because
agency determined that all responsive records were located in particular location created for
express purpose of collecting records related to subject of request and searched that
location); Performance Coal Co. v. U.S. Dep't of Labor, 847 F. Supp. 2d 6, 12-13 (D.D.C.
2012) (finding agency's search "reasonably tailored" when it identified two of eighteen
regional offices most likely to maintain responsive records and it searched those offices'
paper, electronic, and archived files); James Madison Project v. CIA, 605 F. Supp. 2d 99,
108 (D.D.C. 2009) (concluding that "search method could reasonably be expected to
produce the information requested" because all agency regulations requested were
maintained in one records system and agency searched that system for responsive records);
177

44

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 66 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements

Brehm v. DOD, 593 F. Supp. 2d 49, 50 (D.D.C. 2009) (finding search was adequate where
agency searched two systems likely to have responsive records and where agency also
declared other systems were unlikely to have responsive records); Callaway v. Dep't of
Treasury, 577 F. Supp. 2d 1, 1-3 (D.D.C. 2008) (concluding that search for proffer statement
was not inadequate since not limited to documents titled "proffer statement," as previously
believed, but rather included examination of document content); Knight v. NASA, No. 042054, 2006 WL 3780901, at *5 (E.D. Cal. Dec. 21, 2006) (stating that "there is no
requirement that an agency search all possible sources in response to a FOIA request when
it believes all responsive documents are likely to be located in one place"); Sakamoto v. EPA,
443 F. Supp. 2d 1182, 1198 (N.D. Cal. 2006) (finding agency's search within one region to be
adequate when agency "reasonably concluded" that responsive documents would "most
likely" be there); Blanton v. DOJ, 63 F. Supp. 2d 35, 41 (D.D.C. 1999) (noting that even
though agency did not search individual informant files for references to requester, any
responsive information in such files would have been identified by agency's "crossreference" search using requester's name); Hall v. DOJ, 63 F. Supp. 2d 14, 17-18 (D.D.C.
1999) (finding that agency need not search for records concerning subject's husband even
though such records may have also included references to subject); Iacoe v. IRS, No. 98-C0466, 1999 WL 675322, at *4 (E.D. Wis. July 23, 1999) (recognizing that agency "diligently
searched for the records requested in those places where [agency] expected they could be
located"); Nation Magazine v. U.S. Customs Serv., No. 94-00808, slip op. at 8, 13-14 (D.D.C.
Feb. 14, 1997) (stating that reasonable search did not require agency to search individual's
peo , 2
personnel file in effort to locate substantive document drafted by him). 017
Pom

2
.
an v August 2
gm
178 See, e.g., Calloway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941,
in Ya agencyon
d
at *3 (D.C. Cir. June 2, 2009)ited
that
c (findingarchive "should not have limited its search to the
2,
[plaintiff's] criminal investigative files, when the request appears to encompass additional
5544 in a criminal investigative file"); Morley, 508 F.3d at
material, which may not be-located
15
No.

1119-20 (holding that because agency "retained copies of the records transferred to NARA
and concedes that some transferred records are likely to be responsive, it was obligated to
search those records in response to [request]"); Jefferson v. DOJ, 168 F. App'x 448, 450
(D.C. Cir. 2005) (reversing district court's finding of reasonable search when agency
"offered no plausible justification" for searching only its investigative database and agency
"essentially acknowledged" that responsive files might exist in separate database); Oglesby
v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (holding that agency may not
limit search to one record system if others are likely to contain responsive records); Families
for Freedom v. U.S. Customs & Border Prot., No. 10 Civ. 2705, 2011 WL 4599592, at *5
(S.D.N.Y. Sept. 30, 2011) (finding that agency inappropriately limited scope of search when
it determined that "child" attachments, but not "parent" e-mails, were responsive to
request); Concepcion v. U.S. Customs & Border Prot., 767 F. Supp. 2d 141,146 (D.D.C. 2011)
(denying summary judgment for agency because it did "not demonstrate that responsive
documents would not reasonably be found in other record systems or that it searched any
other potential sources but found no responsive records"); Negley v. FBI, 658 F. Supp. 2d
50, 57-8 (D.D.C. 2009) (denying summary judgment for agency because it "refus[ed] to
search" database most likely to contain responsive records); Islamic Shura Council of S. Cal.
v. FBI, No. 07-01088, slip op. at 6-7 (C.D. Cal. Apr. 20, 2009) (ordering search of electronic
surveillance indices and cross-reference search where agency had initially searched only
Central Records System); Friends of Blackwater v. U.S. Dep't of the Interior, 391 F. Supp. 2d
115, 121 (D.D.C. 2005) (finding that search was inadequate because agency had evidence
45

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 67 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
An agency generally "is not obligated to look beyond the four corners of the request
for leads to the location of responsive documents," 179 but courts have found that an agency
does "need to pursue a lead it cannot in good faith ignore, i.e., a lead that is both clear and
certain."180 Additionally, an agency is not generally required to conduct a search for records
that documents existed that originated in leadership office, but did not forward request to
leadership office in accordance with agency's regulations); Wilderness Soc'y v. U.S. Dep't of
the Interior, 344 F. Supp. 2d 1, 21 (D.D.C. 2004) (concluding that search was inadequate
because agency failed to search Office of Solicitor in response to request for lawsuit and
settlement records); Bennett v. DEA, 55 F. Supp. 2d 36, 39-40 (D.D.C. 1999) (holding
search inadequate when agency failed to search investigatory files for cases in which subject
of request acted as informant, even though agency did not track informant activity by case
name, number, or judicial district), appeal dismissed voluntarily, No. 99-5300 (D.C. Cir.
Dec. 23, 1999); cf. Davis v. DOJ, 460 F.3d 92, 105 (D.C. Cir. 2006) (remanding case "to
provide the agency an opportunity to evaluate [search] alternatives" including nonagency
internet search tools); Pena v. BOP, No. 06-2480, 2007 WL 1434869, at *3 (E.D.N.Y. May
14, 2007) (finding, in case involving search that was initially done pursuant to subpoena
during which NARA sent transferred records back to BOP and which BOP could not
subsequently locate, that search will be deemed adequate "only if the BOP is unable to
procure additional copies . . . [and that] if BOP can obtain [them] by making a request to the
National Archives . . . it is obligated to do so"); People for the Am. Way Found. v. DOJ, 451
F. Supp. 2d 6, 15 (D.D.C. 2006) (ordering an agency to search a nonagency database
peo
because that database is "simply a tool to aid in identifying responsive2017 from
records
Pom t 22,WL 1009595, at *2 (D.
v. 02-4328, 2005
[agency's] database of case files"); Peltier v. FBI, No.
us
an
agm on Aug
Minn. Apr. 26, 2005) (finding it "inexcusable" that agency withheld trial transcripts without
n Y ived
first placing "a quick phone citeto the Clerk's office" to determine whether documents were
call d i
rch
publicly available).
42, a

54

-5
o. 15

N
Kowalczyk, 73 F.3d at 389; see, e.g., White v. DOJ, No. 12-5067, 2012 U.S. App. LEXIS
14864 (D.C. Cir. July 19, 2012) (concluding that agency's "failure to locate documents
responsive to [the] request appears to be a function of the limited information provided in
[the] request, and [requester] has not demonstrated that [agency] had a duty to investigate
and provide additional search terms"); Rein, 553 F.3d at 363-65 (rejecting argument that
searches were inadequate merely because "responsive documents refer to other documents
that were not produced" and agency did not pursue "leads" appearing in uncovered
documents, explaining that search need only be "reasonably calculated to uncover all
relevant documents" based upon request); Williams v. Ashcroft, 30 F. App'x 5, 6 (D.C. Cir.
2002) (deciding that agency need not look for records not sought in initial FOIA request);
Sheridan v. Dep't of the Navy, 9 F. App'x 55, 56 (2d Cir. 2001) (finding that agency was "'not
obliged to look beyond the four corners of the request for leads to the location of responsive
documents"' (quoting Kowalczyk); Cooper v. DOJ, No. 99-2513, 2012 WL 3939231, at *6-7
(D.D.C. Sept. 11, 2012) (finding search adequate because " as a matter of practice," agency
does not "search for seized asset information unless [requested] or there is some indication
in its records that assets were seized," and when, as here, agency followed "'clear and
certain' leads after receiving additional information from [plaintiff],'" and "engaged in an
ongoing effort to locate responsive documents" its search was reasonable).
179

See, e.g., Kowalczyk, 73 F.3d at 389; Int'l Counsel Bureau v. DOD, 864 F. Supp. 2d 101,
108 (D.D.C. 2012) (finding search inadequate because agency did not provide "a satisfactory
180

46

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 68 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
outside its control.181 Further, courts generally find that an agency's inability to locate every
single responsive record does not undermine an otherwise reasonable search. 182 Finally,
response to [plaintiff's] contention that it should have searched for records using an
alternate spelling of [a detainee's] name that [plaintiff] discovered from the Department's
own records"); see also, e.g., Juda v. U.S. Customs Serv., No. 99-5333, 2000 WL 1093326,
at *1 (D.C. Cir. June 19, 2000) (per curiam) (concluding that agency improperly limited its
search where it not only "fail[ed] to pursue clear leads to other existing records, but . . .
[also] identified at least one other record system . . . likely to produce the information
[plaintiff] requests"); Campbell v. DOJ, 164 F.3d 20, 28 (D.C. Cir. 1998) (holding that while
"in any FOIA request, the existence of responsive documents is somewhat 'speculative,' . . .
the proper inquiry is whether the requesting party has established a sufficient predicate to
justify searching for a particular type of record"); El Badrawi v. DHS, 583 F. Supp. 2d 285,
302-03 (D. Conn. 2008) (finding search inadequate where agency did not search U.S.
embassy in Beirut, but was aware that embassy likely had records, and where agency's other
searches located records originating in embassy that suggested existence of additional
embassy records); Natural Res. Def. Council, Inc. v. DOD, 388 F. Supp. 2d 1086, 1100-03
(C.D. Cal. 2005) (ordering new search where agency searched only one office and did not
forward request to another office that agency knew to be lead office in subject area);
Trentadue v. FBI, No. 04-772, slip op. at 5-6 (D. Utah May 5, 2005) (ordering additional
search in part because agency conducted computer search only, even though agency
previously limited ability of field offices to upload documents into computer database); Wolf
peo
1
v. CIA, 357 F. Supp. 2d 112, 119 (D.D.C. 2004) (ordering agency to conduct 7
Pom first22, 20 additional search
v. thoughust search indicated that
of broader scope because agency failed to do so n
aeven
g
agm o part, rev'd in part & remanded on other
responsive records could be in another file), aff'd in n Au
Y
in
d
grounds, 473 F.3d 370 (D.C. Cir.d
cite 2007);rCtr.ive Nat'l Sec. Studies v. DOJ, 215 F. Supp. 2d
ch for
94, 110 (D.D.C. 2002) (holding 442discovery of a document that "clearly indicates the
that , a
55
existence of [other] relevant documents" creates an "obligation" for agency to conduct a
. 15further search for No additional documents), aff'd in part, rev'd in part & remanded on
those
other grounds, 331 F.3d 918 (D.C. Cir. 2003); Tarullo v. DOD, 170 F. Supp. 2d 271, 275 (D.
Conn. 2001) (declaring agency's search inadequate because "[w]hile hypothetical assertions
as to the existence of unproduced responsive documents are insufficient to create a dispute
of material fact as to the reasonableness of the search, plaintiff here has [himself provided
copy of agency record] which appears to be responsive to the request"); Loomis v. DOE, No.
96-149, 1999 WL 33541935, at *5 (N.D.N.Y. Mar. 9, 1999) (determining search inadequate
in light of agency's admission that additional responsive records may exist in location not
searched), aff'd, 199 F.3d 1322 (2d Cir. 1999) (unpublished table decision); Kronberg v.
DOJ, 875 F. Supp. 861, 870-71 (D.D.C. 1995) (holding that search was inadequate when
agency did not find records required to be maintained and plaintiff produced documents
obtained by other FOIA requesters demonstrating that agency possessed files which may
contain records sought); cf. Grace v. Dep't of the Navy, No. 99-4306, 2001 WL 940908, at
*5 (N.D. Cal. Aug. 13, 2001) (concluding that although agency apparently had misplaced
records requested under FOIA, "[d]efendants have discharged their burden [by] making a
good faith attempt to locate the missing files"), aff'd, 43 F. App'x 76 (9th Cir. 2002).
See Jones-Edwards v. NSA, 196 F. App'x 36, 38 (2d Cir. 2006) (concluding that an
"agency is not obliged to conduct a search of records outside its possession or control");
Skurow v. DHS, No. 11-1296, 2012 WL 4380895, at*6 (D.D.C. Sept. 26, 2012) (holding that
FBI is not a component of DHS, and thus, TSA was under no obligation to search for FBI
181

47

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 69 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements

records); James v. U.S. Secret Serv., 811 F. Supp. 2d 351, 357-58 (D.D.C. 2011) (holding that
search "was reasonable under the circumstances" because responsive records were
destroyed at time of request and therefore not under agency control); Hussain v. DHS, 674
F. Supp. 2d 260, 265-66 (D.D.C. 2009) (finding agency's search adequate because portion of
records sought were maintained by another agency component and agency regulations did
not require forwarding the request to appropriate component); Lewis v. DOJ, 867 F. Supp.
2d 1, 12-13 (D.D.C. 2011) (holding that U.S. Attorney's Office was not obligated to search
court files, but rather only those records in its custody and control at time of request);
Antonelli v. U.S. Parole Comm'n, 619 F. Supp. 2d 1, 4 (D.D.C. 2009) (rejecting plaintiff's
challenge to agency's search based on claim that additional records exist in files of other
DOJ components, because "an agency component is obligated to produce only those records
in its custody and control at the time of the FOIA request"); Bonaparte v. DOJ, No. 07-0749,
2008 WL 2569379, at *1 (D.D.C. June 27, 2008) (finding search adequate when it revealed
that records had been transferred to NARA, and stating that requester could request records
from NARA); Jackson v. U.S. Dep't of Labor, No. 06-02157, 2008 WL 539925, at *5 n.2
(E.D. Cal. Feb. 25, 2008) (magistrate's recommendation) (finding that agency "is not
required to pursue any records that may exist and be in possession of a retired employee"),
adopted, No. 06-2157, 2008 WL 4463897 (E.D. Cal. Oct. 2, 2008); Pena v. Customs &
Border Patrol, No. 06-2482, 2007 WL 1434871, at *2 (E.D.N.Y. May 14, 2007) (stating that
"[i]ndeed, the [agency] is not required to procure documents not already in its possession"
where it had no records and had referred request to other agency); Anderson v. DOJ, 518 F.
peo , "retain
Supp. 2d 1, 10 (D.D.C. 2007) (stating that an agency is not required to2017 or retrieve
Pom t 22United States, No. 05documents which previously had been in its possession"); gus v.
n v. u Askew
gma 13,n2006) (rejecting plaintiff's contention
00200, 2006 WL 3307469, at *10 (E.D. a Nov. o A
in Y Ky.ive agency's files); Williams v. U.S. Attorney's
that FOIA requires an agencyited
to search another d
c
rch
Office, No. 03-674, 2006 WL 717474, at *5 (N.D. Okla. Mar. 16, 2006) (stating that search
42, a
4
obligations under FOIA15-55 agency to search "its own records," not "records of third
require
.
parties"). But see No
Parker v. EOUSA, 852 F. Supp. 2d 1, 9 (D.D.C. 2012) (finding that agency
failed to conduct adequate search for records that may have been transferred to NARA
because "no one has been able to inform plaintiff or the Court where the records are actually
located . . . [a]nd, there does not appear to have been any serious effort made to track them
down"); Chaplin v. Stewart, 763 F. Supp. 2d 1, 4 (D.D.C. 2011) (denying summary judgment
for agency, noting that "[t]he fact that some records may have originated with [other
entities] does not relieve EOUSA of its statutory obligation to search its files for any
responsive records and to either release them to plaintiff or refer them to the [other agency]
for further processing."); Citizens for Responsibility & Ethics in Washington v. DHS, 592 F.
Supp. 2d 111, 117-19 (D.D.C. 2009) (granting summary judgment to requester and ordering
agency to search for class of records not "'currently retained'" by agency but still under
agency control).
See Campbell v. SSA, 446 F. App'x 477, 480-81 (3rd. Cir. 2011) (noting that absence of
particular documents, which plaintiff claims should be among responsive records, does not
establish that agency's search was not reasonable); Batton v. Evers, 598 F.3d 169, 176 (5th
Cir. 2010) (affirming district court's determination that search of locations most likely to
hold responsive records was reasonable because "'the issue is not whether other documents
may exist, but rather whether the search for undisclosed documents was adequate'"
(quoting In re Wade, 969 F.2d 241, 249 n. 11 (7th Cir. 1992))); Moore v. FBI, 366 F. App'x
659, 661 (7th Cir. 2010) (noting that although agency had years earlier destroyed some
182

48

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 70 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements

potentially responsive records, that fact does not invalidate its search); Lahr v. NTSB, 569 F.
3d 964, 988 (9th Cir. 2009) ("[T]he failure to produce or identify a few isolated documents
cannot by itself prove the searches inadequate."); Hoff v. DOJ, No. 07-4499, slip op. at 4
(6th Cir. July 23, 2008) (unpublished disposition) (finding search adequate even though
agency did not locate certain records at initial request stage because, inter alia, records
"were kept in a general administrative file, rather than a file bearing [requester's] name, and
they were not indexed by her name"); Piper v. DOJ, 222 F. App'x 1, 1 (D.C. Cir. Feb. 23,
2007) (unpublished disposition) (affirming district court's conclusion that alleged record
destruction prior to FOIA request has no bearing on whether agency search was adequate),
cert. denied, 128 S. Ct. 66 (2007); Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315
(D.C. Cir. 2003) ("[I]t is long settled that the failure of an agency to turn up one specific
document in its search does not alone render a search inadequate . . . . After all, particular
documents may have been accidentally lost or destroyed, or a reasonable and thorough
search may have missed them."); Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d
Cir. 1999) (declaring that fact that "some documents were not discovered until a second,
more exhaustive, search was conducted does not warrant overturning the district court's
ruling" that agency conducted a reasonable search); Campbell, 164 F.3d at 28 n.6 (holding
that "the inadvertent omission of three documents does not render a search inadequate
when the search produced hundreds of pages that had been buried in archives for decades");
Schwarz v. FBI, 161 F.3d 18, at *2 (10th Cir. 1998) (unpublished table opinion) (concluding
that "the fact that the [agency's] search failed to turn up three documents is not sufficient to
eo of bad17
contradict the reasonableness of the FBI's search withoutmp
Po evidence2, 20 faith"); Citizens
s 2
n v.
Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir.t 1995) (determining that
gma on Augurelevant files, notwithstanding
search was adequate when agency spenta hours reviewing
Y 140 d
ed in137 ch1000 volumes of records); Ethyl Corp. v. EPA,
fact that agency was unable citlocate r of ive
to
2, a
25 F.3d 1241, 1246 (4th Cir. 1994) (reasoning that adequacy of search is not determined by
5544
"whether every single . 15potentially responsive document has been unearthed"); Toensing v.
No WL 4026099, at *19 (D.D.C. Sept. 13, 2012) ("[T]he mere fact that
DOJ, No. 11-1215, 2012
an otherwise adequate search did not uncover [requested] recordings does not
automatically render that search inadequate"); Int'l Counsel Bureau v. DOD, 864 F. Supp.
2d 101, 109 (D.D.C. 2012) ("failure to uncover [ ] four additional videos [does not] render
the original search inadequate"); Negley v. FBI, 825 F. Supp. 2d 63, 69-70 (D.D.C. 2011)
(concluding that "[p]laintiff is challenging the failure to locate one document, and that is not
sufficient to defeat summary judgment" given previous finding that agency complied with
court's order specifying kind of search agency was required to perform); Campaign for
Responsible Transplantation v. FDA, 219 F. Supp. 2d 106, 111 (D.D.C. 2002) (upholding
adequacy of agency's search by declaring that agency's belated production of fifty-five
additional documents that it located using information contained in plaintiff's summary
judgment motion "is a proverbial 'drop in the bucket'" relative to 27,000 documents that
agency already had provided to plaintiff); cf. Corbeil v. DOJ, No. 04-2265, 2005 WL
3275910, at *3 (D.D.C. Sept. 26, 2005) (declaring that "an agency's prompt report of the
discovery of additional responsive materials may be viewed as evidence of its good faith
efforts to comply with its obligations under the FOIA"); W. Ctr. for Journalism v. IRS, 116 F.
Supp. 2d 1, 10 (D.D.C. 2000) (concluding that agency conducted reasonable search and
acted in good faith by locating and releasing additional responsive records mistakenly
omitted from its initial response, because "it is unreasonable to expect even the most
exhaustive search to uncover every responsive file; what is expected of a law-abiding agency
is that the agency admit and correct error when error is revealed"), aff'd, 22 F. App'x 14
49

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 71 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
courts have held that the FOIA does not require agencies to conduct "unreasonably
burdensome" searches for records.183
(D.C. Cir. 2001). But see Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1185 (D.C. Cir.
1996) (acknowledging plaintiff's assertion that search was inadequate because of previous
FOIA requester's claim that agency provided her with "well over a thousand documents,"
and holding that claim raises enough doubt to preclude summary judgment in absence of
agency affidavit further describing its search); Hiken v. DOD, 521 F. Supp. 2d 1047, 1054
(N.D. Cal. 2007) (explaining that while search results are not focus of reasonableness
inquiry, they are not entirely irrelevant, particularly where scope of request is broad and
agency fails to produce any responsive documents).
See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998) (refusing to
order agency to identify and segregate nonexempt documents from millions of pages of files
in light of government's estimate that doing so would take eight work-years); Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995) (agreeing that search that
would require review of twenty-three years of unindexed files would be unreasonably
burdensome, but disagreeing that search through chronologically indexed agency files for
dated memorandum would be burdensome); Van Strum v. EPA, Nos. 91-35404, 91-35577,
1992 WL 197660, at *1 (9th Cir. 1992) (accepting agency justification denying or seeking
clarification of overly broad requests because agency not required to conduct search which
would place inordinate burden on agency resources); Ancient Coin Collectors Guild v. U.S.
eo
7
Dep't of State, 866 F. Supp. 2d 28, 33 (D.D.C. Jun 11, Pomp
2012) (finding,that 1
2 20 "although other
n v. ug searches would not only be
archival and backup systems do exist, attempting additionalust 2
gma obut would also be costly and
unlikely to result in additional responsive material, n A
n Ya v d
ed iF. Supp. i2de43, 48-51 (D.D.C. 2011) (concluding that
inconvenient"); Cuban v. SEC, 795
cit
rch
requiring manual search of "206 42, afeet of cabinet space" containing uncategorized
linear
54
forms constituted burdensome search, where agency already searched 145,000 forms
15-5
No.
electronically with no responsive results); Wilson v. DOT, 730 F. Supp. 2d 140, 150 (D.D.C.
2010) (finding "'unduly burdensome,' if not impossible, for [agency] to identify the records
responsive to [plaintiff's] request" because records "simply do not exist in format he
requests" (citing Nation Magazine, 71 F.3d at 891-92)); James Madison Project v. CIA, No.
1:08CV1323, 2009 WL 2777961, at *4-5 (E.D. Va. Aug. 31, 2009) (holding that plaintiff's
request created undue burden for agency because it would require each agency component
to "tailor a search specific to that component's records system configuration"); Wolf v. CIA,
569 F. Supp. 2d 1, 9 (D.D.C. 2008) (holding that search of microfilm files requiring frameby-frame reel review that would take estimated 3675 hours and $147,000 constitutes
unreasonably burdensome search); Schrecker v. DOJ, 217 F. Supp. 2d 29, 35 (D.D.C. 2002)
(finding "that to require an agency to hand search through millions of documents is not
reasonable and therefore not necessary," as agency already had searched "the most likely
place responsive documents would be located"), aff'd, 349 F.3d 657 (D.C. Cir. 2003); Burns
v. DOJ, No. 99-3173, slip op. at 2 (D.D.C. Feb. 5, 2001) (concluding that "given the capacity
of the reels and the absence of any index," a request for specific telephone conversations
recorded on reel-to-reel tapes was "unreasonably burdensome" because "it would take an
inordinate [amount of] time to listen to the reels in order to locate any requested
conversations that might exist"); Blackman v. DOJ, No. 00-3004, slip op. at 5 (D.D.C. July
5, 2001) (declaring request that would require a manual search through 37 million pages to
be "unreasonable in light of the resources needed" to process it), appeal dismissed for lack
of prosecution, No. 01-5431 (D.C. Cir. Jan. 2, 2003); O'Harvey v. Office of Workers' Comp.
183

50

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 72 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
With regard to electronic database searches, the FOIA requires agencies to make
"reasonable efforts" to search for requested records in electronic form or format "except
when such efforts would significantly interfere with the operation of the agency's automated
information system."184 Courts differ in whether an agency's involvement of information
Programs, No. 95-0187, slip op. at 3 (E.D. Wash. Dec. 29, 1997) (finding request to be
unreasonably burdensome because search would require agency "to review all of the case
files maintained by the agency" and "would entail review of millions of pages of hard
copies"), aff'd sub nom. O'Harvey v. Comp. Programs Workers, 188 F.3d 514 (9th Cir. 1999)
(unpublished table decision); Spannaus v. DOJ, No. 92-372, slip op. at 6 (D.D.C. June 20,
1995) (finding that agency is not required to determine all persons having ties to
associations targeted in bankruptcy proceedings "and then search any and all civil or
criminal files relating to those persons"), summary affirmance granted in pertinent part, No.
95-5267, 1996 WL 523814 (D.C. Cir. Aug. 16, 1996); cf. Stewart v. U.S. Dep't of the Interior ,
554 F.3d 1236, 1243-44 (10th Cir. Feb. 2, 2009) (affirming fee waiver denial because search
of 610 computer backup tapes "would be unduly burdensome given the speculative nature"
of request, but also stating that requester could proceed if it paid for search); Peyton v.
Reno, No. 98-1457, 1999 WL 674491, at *1-2 (D.D.C. July 19, 1999) (finding that request for
all records indexed under subject's name reasonably described records sought because
agency failed to demonstrate that name search would be unduly burdensome). But see
Dayton Newspapers, Inc. v. Dep't of the Air Force, 35 F. Supp. 2d 1033, 1035 (S.D. Ohio
1998) (preliminary ruling without entry of judgment) (concluding that an estimated fiftypeo , 2 17
one hours required to "assemble" requested information from an agency database "is a
Pomdisclosure). 0
2
small price to pay" in light of FOIA's presumption v.
an favoring ust 2
g

gm
Au
in Ya ived on Guild v. U.S. Dep't of State, 866 F.
184 5 U.S.C. § 552(a)(3)(C); see ed
cit Ancient Coin Collectors
rch
Supp. 2d 28, 34 (D.D.C. 2012) (finding that agency's electronic backup system "was not
42, a
54
designed to retain documents in an easily searchable form," and "therefore, any search
15-5
No.
efforts would 'significantly interfere' with the functioning of [agency's] entire information

system"); Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1276 (S.D. Fla. 2006) (stating that
subsection (a)(3)(C) "addresses problems with searching for records as opposed to
producing records," and deciding that evidentiary hearing is needed to determine whether
agency's claim of significant interference relates to agency's "inability . . . to search for these
records or to produce these records"); Baker & Hostetler LLP v. U.S. Dep't of Commerce,
No. 02-2522, slip op. at 10-11 (D.D.C. Mar. 31, 2004) (finding database restoration would
"significantly interfere with the operation of the agency's automated information system"
where it would render servers unusable for other functions, and where database restoration
attempts could fail due to absence of certain backup tapes), aff'd in pertinent part, 473 F.3d
312 (D.C. Cir. 2006); Schladetsch v. HUD, No. 99-0175, 2000 WL 33372125, at *5 (D.D.C.
Apr. 4, 2000) (rejecting as insufficient agency affidavit that failed to show how creation and
use of computer program to perform electronic database search for responsive information
would require "unreasonable efforts" or would "substantially interfere" with agency's
computer system), appeal dismissed voluntarily, No. 00-5220 (D.C. Cir. Oct. 12, 2000); see
also FOIA Update, Vol. XVII, No. 4, at 2 (discussing electronic search requirements); cf.
Hoffman v. DOJ, No. 98-1733-A, slip op. at 10-11 (W.D. Okla. Dec. 15, 1999) (finding that
agency is not required to conduct physical search of records "if other computer-assisted
search procedures available to [the] agency are more efficient and serve the same practical
purpose of reviewing hard copies of documents"). But see Pub. Citizen, Inc. v. Dep't of
Educ., 292 F. Supp. 2d 1, 8 (D.D.C. 2003) ("While a computerized search may well be far
51

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 73 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
technology professionals is required to perform a reasonable search for records,185 but have
recognized the challenge agencies face when conducting searches for records maintained in
obsolete electronic media.186 The Court of Appeals for the District of Columbia Circuit has
touched on the issue of searching backup tapes in Ancient Coin Collectors Guild v. U.S.
Department of State, where it remanded the case back to the district court because the
possibility existed that backup tapes could fill gaps in responsive records. 187 However, on
remand, the district court found that although backup tapes did exist, searching this

more efficient and less costly than a manual search . . . it is apparent [under the facts of this
particular case] that only the more cumbersome procedure is likely to turn up the requested
information.").
Compare Albino v. USPS, No. 01-C-563-C, 2002 WL 32345674, at *7 (W.D. Wis. May 20,
2002) (declaring a search for responsive e-mail messages spanning five years to be
inadequate because agency "did not enlist the help of information technology personnel . . .
[who] . . . would have access to e-mail message archives" possibly containing requested
records), with Fox News Network v. Bd. of Governors of the Fed. Reserve Sys., 639 F. Supp.
2d 384, 397 (S.D.N.Y. 2009) (holding that agency's "failure to use computer experts to
search for [deleted] files does not render the search inadequate" (citing Baker & Hostetler
o
17
LLP v. U.S. Dep't of Commerce, 473 F.3d 312 (D.C. Cir. ompe
and CareToLive v. FDA, 631
P 2006)of deleted0
2, 2 emails "would
F.3d 336, 343-44 (6th Cir. 2011) (finding that an v. search st 2
because
u
merely be cumulative" of records already provided to plaintiff, agency "need not attempt to
agm on Aug
Y
n
recover electronic data that citebeen deletedved
has d i
hi in order to . . . perform a reasonable search"
, arc
because to adopt such a requirement "could potentially cripple agencies by requiring that
442
after following their normal55
5- search procedures, they must have an information technology
1
expert scan relevanto.
N computers and servers for additional information that might have been
deleted").
185

See Jennings v. FBI, No. 03-1651, slip op. at 8-9 (D.D.C. May 6, 2004) (finding that
agency's search was adequate even when "faulty computer mechanism" rendered
identifiable tape recordings of telephone conversations irretrievable); Burns, No. 99-3173,
slip op. at 2 (D.D.C. Feb. 5, 2001) (concluding that an agency need not search through reelto-reel audiotapes containing requested recorded conversations, because "the equipment on
which these reels could be played has broken and [has been] replaced with other,
incompatible equipment," and agency is "not required to obtain new equipment to process
[p]laintiff's FOIA request"); Lepelletier v. FDIC, No. 96-1363, transcript at 8 (D.D.C. Mar. 3,
2000) (refusing to require agency to undertake "an enormous effort that may not even work
to try to convert [obsolete] computer files that nobody knows how to read now to provide
information that [plaintiff] would like to have"), appeal dismissed as moot, 23 F. App'x 4
(D.C. Cir. 2001).
186

641 F.3d 504, 514-15 (D.C. Cir. 2011) (remanding for agency's explanation of "whether
backup tapes of any potential relevance exist; if so whether their responsive material is
reasonably likely to add to that already delivered; and, if these questions are answered
affirmatively, whether there is any practical obstacle to searching them").

187

52

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 74 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
material would be unlikely to result in responsive records and would be costly and
inconvenient and so did not require it to be done.188
A search for records has been found unnecessary when it was supported by an agency
attestation that a person familiar with the records maintained by the agency had determined
that no responsive records were, in fact, maintained.189 In the absence of such a showing,
however, courts have required agencies to perform a search.190
Courts have held that agencies responding to FOIA requests need not process and
disclose non-responsive records or non-responsive portions of otherwise responsive
records.191
Finally, courts have recognized that an agency's search obligations for each request
necessarily have a temporal limitation, or a "cut-off" date.192 Records created after the "cut866 F. Supp. 2d 28, 33 (D.D.C. 2012) (finding that "although other archival and backup
systems do exist, attempting additional searches would not only be unlikely to result in
additional responsive material, but would also be costly and inconvenient").

188

See Espino v. DOJ, 869 F. Supp. 2d 25, 28 (D.D.C. 2012) (upholding agency's action in
not searching for records when agency declarations stated that agency did not maintain
requested records); Thomas v. Comptroller of the Currency, 684 F. Supp. 2d 29, 33 (D.D.C.
o
2010) (affirming agency's decision not to search when it determined that 17 its system of
mpe 2
Poresponsive , 20 given
records, "there was no reasonable expectationanfinding
of v.
ust 2 documents");
gm DHS, 516ugSupp. 2d 83, 87-88 (D.D.C.
American-Arab Anti-Discrimination Comm. v.
Ya
on A F.
2007) (finding sufficient agency's statementivedit "does not maintain [requested]
ed in rch that
cit
a
information" and ruling search "unnecessary" since affiant spoke to several ICE agents and
442,
55for Operations, . . . [was] presumed able to familiarize
as "Deputy Assistant Secretary
15himself with whatNo.
statistics ICE does and does not maintain").
189

See Robert v. DOJ, No. 05-2543, 2008 WL 2039433, at *6-7 (E.D.N.Y. May 9, 2008)
(ruling that agency's "conclusory statement that it does not maintain such documents" did
not satisfy duty to search where unclear whether affiants had sufficient knowledge of agency
practices and procedures to make such assertion); Defenders of Wildlife v. USDA, 311 F.
Supp. 2d 44, 55 (D.D.C. 2004) (stating that an agency's "bare assertion that the Deputy
Under Secretary saw the FOIA request and that he stated that he had no responsive
documents is inadequate because it does not indicate that he performed any search at all").
190

See Pub. Investors Arb. Bar Ass'n v. S.E.C., 2013 WL 987769, at *14 (D.D.C. 2013)
(concluding that, " it is elementary that an agency's decision to withhold non-responsive
material is not a violation of the FOIA"); Ctr. for Biological Diversity v. OMB, No. 07-04997,
2009 WL 1246690, at *5 (N.D. Cal. May 5, 2009) (finding that agency "is not required to
produce information that is not responsive to a FOIA request"); Cal. ex rel. Brown v.
NHTSA, No. 06-2654, 2007 WL 1342514, at *2 (N.D. Cal. May 8, 2007) (declining to order
agency to disclose non-responsive information redacted from documents, and stating that
"[a]n agency has no obligation to produce information that is not responsive to a FOIA
request"); see also FOIA Post, "FOIA Counselor Q&A" (posted 1/24/06) (addressing
document "scoping" in context of e-mail).
191

53

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 75 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
off" date are treated as not responsive to the request.193 The D.C. Circuit declared that a cutoff date that is based on the date the agency conducts its search, "results in a much fuller
search and disclosure" than a less inclusive "cut-off" date, such as one based on the date of
the request or its receipt by the agency.194 While courts have found that an agency may
choose not to use a "date-of-search cut-off" if "specific circumstances" warrant,195 the agency
See Bonner v. U.S. Dept. of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (finding that, "[t]o
require an agency to adjust or modify its FOIA responses based on post-response
occurrences could create an endless cycle of judicially mandated reprocessing"); Church of
Scientology v. IRS, 816 F. Supp. 1138, 1148 (W.D. Tex. 1993) (observing that "there has to be
a temporal deadline for documents that satisfy [a FOIA] request"), appeal dismissed by
stipulation, No. 93-8431 (5th Cir. Oct. 21, 1993); see also FOIA Post, "Use of 'Cut-Off' Dates
for FOIA Searches" (posted 5/6/04) (explaining that "[t]he scope of a FOIA request has
both substantive and temporal aspects").
192

See Defenders of Wildlife v. U.S. Dep't of the Interior, 314 F. Supp. 2d 1, 12 n.10 (D.D.C.
2004) (recognizing that records created after date-of-search "cut-off" date specifically
established by agency regulation "are not covered by [plaintiff's] request"); FOIA Update,
Vol. IV, No. 4, at 14 (advising that records that "post-date" agency's "cut-off" date are not
included within temporal scope of request); cf. James, 811 F. Supp. 2d at 358 (noting that
agencies are not "require[d] to update or supplement a prior response to a request for
records); Coven v. OPM, No. 07-1831, 2009 WL 3174423, at *5-10 (D. Ariz. Sept. 29, 2009)
eo
(agreeing that agency is not obligated to continually provide daily, updated7
omp 22, 01
Precords created2afterversions of
records on ongoing basis, nor is it required to an v.
produce
agency
ust
agm on Aug
responded).
Y
193

in
d
cited , archive
194 McGehee v. CIA, 697 F.2d 1095, 1104 (D.C. Cir. 1983), vacated on other grounds on panel
442
reh'g & reh'g en banc denied, 5 F.2d 1076 (D.C. Cir. 1983); see Pub. Citizen v. Dep't of
5-5711
.1
N 644
State, 276 F.3d 634, o (D.C. Cir. 2002) (favoring "date-of-search cut-off" because its use

"might . . . result[] in the retrieval of more [responsive] documents" than would a cut-off
based on date of request); Van Strum, 972 F.2d 1348, at *2 (agreeing that date-of-search
"cut-off" date is "the most reasonable date for setting the temporal cut-off in this case");
Ferguson v. U.S. Dep't of Educ., No. 09 Civ. 10057, 2011 WL 4089880, at *10 (S.D.N.Y.
Sept. 13, 2011) (ordering agency to conduct search for records between date-of-request and
date-of-search cut-off dates because agency improperly limited temporal scope of first
search to records dated prior to date of request); Vento v. IRS, No. 08-159, 2010 WL
1375279, at *3 (D.V.I. March 31, 2010) (finding agency's regulations requiring date-ofrequest cut-off date unreasonable and favoring date-of-search cut-off date); Nielsen v.
Bureau of Land Mgmt., 252 F.R.D. 499, 516 (D. Minn. 2008) (finding search not reasonable
to extent agency employed date-of-request "cut-off" date); Edmonds Inst. v. U.S. Dep't of
Interior, 383 F. Supp. 2d 105, 110-11 (D.D.C. 2005) (rejecting requester's call for use of dateof-release "cut-off" date in favor of date-of-search "cut-off" date, in accordance with
agency's regulations).
Pub. Citizen, 276 F.3d at 643; see, e.g., ACLU v. DHS, 738 F. Supp. 2d 93, 103-04 (D.D.C.
2010) (affirming agency's use of specific cut-off date agreed upon by plaintiff because it "did
not appear under these circumstances to have been unreasonably utilized to improperly
limit the scope of the plaintiff's request"); Jefferson v. BOP, 578 F. Supp. 2d 55, 60 (D.D.C.
2008) (recognizing that proper inquiry is "whether the cut-off date used was reasonable in
195

54

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 76 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
may be required to articulate a "compelling justification" for doing so,196 and searches have
been found to be unreasonable when the requester was not made aware of the cut-off date
being used.197
"Reasonably Segregable" Obligation
The FOIA requires that "any reasonably segregable portion of a record" must be
released "after deletion of the portions which are exempt" under the Act's nine
exemptions.198 The Court of Appeals for the District of Columbia Circuit opined about the
light of the specific request" and concluding that date-of-request "cut-off" was reasonable
because request sought records that had been created before request was made and that
pertained to past events); Dayton Newspaper, Inc. v. VA, 510 F. Supp. 2d 441, 450-51 (S.D.
Ohio 2007) (determining that date of 1995 final response was appropriate cut-off date "[i]n
the absence of a record demonstrating the VA's cut-off date," because "at that point,
Plaintiffs were put on notice that the VA was no longer searching for records"); Blazy v.
Tenet, 979 F. Supp. 10, 17 (D.D.C. 1997) concluding that it was "reasonable under the
circumstances" for agency to apply date-of-request "cut-off" to request that sought records
concerning events that already had occurred (and records that already had been created) by
time request was made), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C.
Cir. May 12, 1998); FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04)
(describing circumstances under which use of different "cut-off" dates may be reasonable).
p o 128817
But see Or. Natural Desert Ass'n v. Gutierrez, 419 F. Supp. 2de
Pom 1284, , 20 (D. Or. 2006) its
22
(concluding that agency's date-of-request "cut-off"v.
an date regulation "is not reasonable on
gust
face and violates FOIA").
n Au
Yagm

in
do
cited , archive
196 Pub. Citizen, 276 F.3d at 644; see, e.g., Ferguson, 2011 WL 4089880, at *11 (ordering
442
agency to conduct additional search because it failed to offer "more compelling justification"
5-55
1
No.
for using date-of-request cut-off date when performing search); In Def. of Animals v. NIH,
543 F. Supp. 2d 83, 98-99 (D.D.C. 2008) (finding search inadequate because agency failed
to demonstrate reasonableness of date-of-search cut-off date that preceded final disclosure
by eleven months, and ordering it to employ cut-off date no earlier than date of court's
decision).

See, e.g., In Def. of Animals, 543 F. Supp. 2d at 99 (finding search inadequate because,
inter alia, agency failed to inform plaintiff of date-of-search cut-off date); Judicial Watch,
Inc. v. DOE, 310 F. Supp. 2d 271, 305 (D.D.C. 2004) ("Because the [agency] imposed the . . .
cut-off date without informing [requester] of its intention to do so, the court must conclude
that [agency's] search was inadequate."), aff'd in part, rev'd in part & remanded on other
grounds, 412 F.3d 125 (D.C. Cir. 2005); cf. Techserve Alliance v. Napolitano, 803 F. Supp.
2d 16, 25-26 (D.D.C. 2011) (suggesting that agency should have informed requester of cutoff date, but finding that subsequent searches cured any defects related to limited time
frame of initial search).
197

5 U.S.C. § 552(b) (2006 & Supp. IV 2010) (sentence immediately following exemptions);
see Attorney General Holder's Memorandum for Heads of Executive Departments and
Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 51879 (Oct. 8, 2009)
[hereinafter Attorney General Holder's FOIA Guidelines] (reminding agencies to "be
mindful that the FOIA requires them to take reasonable steps to segregate and release
198

55

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 77 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
meaning of the segregation obligation decades ago in Mead Data Center, Inc. v. U.S.
Department of the Air Force.199 There, the Court held that "a court may decline to order an
agency to commit significant time and resources to the separation of disjointed words,
phrases, or even sentences which taken separately or together have minimal or no
information content."200 The D.C. Circuit also held in Mead Data that when nonexempt
information is "inextricably intertwined" with exempt information, reasonable segregation
is not possible.201 The segregation analysis is frequently impacted by the volume of material
nonexempt information" and encouraging disclosure of portions of records that "may be
covered [by a statutory exemption] only in a technical sense unrelated to the actual impact
of disclosure"); see also FOIA Post, "OIP Guidance: President Obama's FOIA Memorandum
and Attorney General Holder's FOIA Guidelines - Creating a New Era of Open Government"
(posted 4/17/09) ("Whether a release involves boxes of material, or only a few pages, it is
important for agencies to remember that the increased transparency resulting from even a
partial disclosure of records is worthwhile).
199

566 F.2d 242, 261 n.55 (D.C. Cir. 1977).

Id.; accord Thomas v. DOJ, 260 F. App'x 677, 679 (5th Cir. 2007) (affirming denial of
request for release of portions of audiotape transcripts reflecting requester's side of
conversation while redacting third party's words because, given requester's interest in the
third party's portion, release of solely requester's words would be "of little informational
o
value" to requester (quoting FlightSafety Servs. v. Dep'tompe 326 2017
Labor, , F.3d 607, 613 (5th
P of(2d Cir. 1979) (noting "banalit[y]"
2
Cir. 2003))); Lead Indus. Ass'n v. OSHA, 610 F.2dv. 86 gust 2
an 70, Au
gm
and "uselessness" of information district court ordered to be segregated and disclosed, and
in Ya ived on v. Kempthorne, 652 F. Supp. 2d 345,
reversing such order); The Shinnecock Indian Nation
cited , arch
370 (E.D.N.Y. 2009) ("In light of42 substantial disclosure already undertaken by the
4 the
government, the [c]ourt decline[d] to compel the disclosure, line-by-line, . . . which . . . in
5-55
1
No.
the end, provide no useful additional information to the plaintiff.").
200

Mead Data Cent., Inc., 566 F.2d at 260; see, e.g., Pub. Emps. for Envtl. Responsibility v.
U.S. Section Int'l Boundary & Water Comm'n., 839 F. Supp. 2d 304, 328-29 (D.D.C. 2012)
(accepting agency's assertion that "'any records withheld in full were [protected by
Exemption 5] with any non-exempt portions being inextricably intertwined with exempt
portions"); Fischer v. DOJ, 723 F. Supp. 2d 104, 115 (D.D.C. 2010) ("Having shown both the
highly sensitive nature of the exempt information and that non-exempt information is so
intertwined with exempt information that the [agency] could not release any meaningful
portion without disclosing exempt information, [the agency] has satisfied its segregability
burden."); Durrani v. DOJ, 607 F. Supp. 2d 77, 88 (D.D.C. 2009) (declaring that to justify
withholdings, agencies must show that "exempt and nonexempt information are
'inextricably intertwined,' such that excision of exempt information would impose
significant costs on the agency and produce an edited document with little informational
value" (citing Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (quoting Neufeld v. IRS,
646 F.2d 661, 666 (D.C. Cir. 1981)))); The Shinnecock Indian Nation, 652 F. Supp. 2d at
372-73 (finding that "the facts as presented by the author . . . are done in a fashion that
'reveal[s] the evaluative process by which [he, as a member of the decision-making chain]
arrived at [his] conclusions and what those predecisional conclusions are'" and holding that
factual information could not be reasonably segregated) (citing Lead Indus., 610 F.2d at
83); James Madison Project v. CIA, 607 F. Supp. 2d 109, 131 (D.D.C. 2009) (approving
201

56

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 78 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
at issue.202 However, the D.C. Circuit has also ruled that segregability should not be
determined based on an evaluation of whether nonexempt portions of documents would be
"helpful" to the requester if segregated and released.203
agency's determination that it could not reasonably segregate certain nonexempt material
because it was "so inextricably intertwined" with exempt material consisting of classified
information and information concerning intelligence sources and methods); Schoenman,
2009 WL 763065, at *26 (approving agency's determination "that the 'fragmented' and
'isolated' occurrences of non-exempt material . . . are so 'inextricably intertwined with the
exempt information' that the non-exempt material could not be reasonably segregated"); cf.
L.A. Times Commc'ns LLC v. U.S. Dep't of Labor, 483 F. Supp. 2d 975, 986-7 (C.D. Cal.
2007) (finding that agency met its segregability obligation where Exemption 6 protected
information pertaining to civilian contractors "currently residing in Iraq or Afghanistan,"
and agency databases contained no information to distinguish which contractors (or
families) still resided in those countries and which ones resided elsewhere). But see
Antonelli v. BOP, 623 F. Supp. 2d 55, 60 (D.D.C. 2009) (rejecting agency's assertion that it
withheld documents in full because segregating information would "destroy[] the integrity
of [requested] document as whole" because such a standard failed to demonstrate that
exempt and non-exempt information were inextricably intertwined and could not be
reasonably segregated).
Mead Data Cent., Inc., 566 F.2d at 261 & n.55; see also FlightSafety Servs. Corp. v. Dep't
eo
17
of Labor, 326 F.3d 607, 613 (5th Cir. 2003) (per curiam) mp
Po(concluding that documents
2, 20 disclosable
n v.
contained no reasonably segregable information because, inter talia, "any
us 2
gmatheon Augconfidential information that
information is so inextricably intertwined with
exempt,
Ya
v resources and produce a document of little
ed in agencyed
producing it would require substantial rchi
cit
2, a
informational value"); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir.
5544 would require eight work-years to identify all nonexempt
1998) (finding that because agency
15No. of pages of files, very small percentage of documents that could be
documents in millions
released were not "reasonably segregable"); Doherty v. DOJ, 775 F.2d 49, 53 (2d Cir. 1985)
("The fact that there may be some nonexempt matter in documents which are
predominantly exempt does not require the district court to undertake the burdensome task
of analyzing approximately 300 pages of documents, line-by-line."); Yeager v. DEA, 678
F.2d 315, 322 n.16 (D.C. Cir. 1982) (noting that it was appropriate to consider factors of
"intelligibility" and "burden" imposed by segregation of nonexempt material); Lead Indus.
Ass'n, 610 F.2d at 86 (holding that information is not reasonably segregable "if the
proportion of nonexempt factual material is relatively small and is so interspersed with
exempt material that separation by the agency and policing . . . by the courts would impose
an inordinate burden"); Brown v. DOJ, 734 F. Supp. 2d, 99, 110-11 (D.D.C. 2010) (finding
agency's withholdings of plaintiff's name, cities, and file numbers proper where "there is no
indication that the [agency] acted in bad faith in segregating and releasing nonexempt
information in the nearly 1,000 pages released to plaintiff" and "[agency] need not expend
substantial time and resources to 'yield a product with little, if any, informational value'");
Schoenman, 2009 WL 763065, at *26 (finding agency withholdings proper because, inter
alia, "it makes little sense to require [agency] to spend time and resources redacting entire
documents in order to provide Plaintiff with his name, dates he has already been provided,
and the basic letterhead . . . of the document") (citing Mead Data Cent., Inc., 566 F.2d at 261
n.55); Arizechi v. IRS, No. 06-5292, 2008 WL 539058, at *5 (D.N.J. Feb. 25, 2008)
(unpublished disposition) (stating that, regarding summonses, segregability requirement is
202

57

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 79 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Courts have required agencies to demonstrate that they have disclosed all reasonably
segregable, nonexempt information,204 with some courts finding that the agency failed to
"futile" because "[r]edaction of names and addresses of the witnesses and releasing a blank
summons would serve no purpose and is not required"); Rugiero v. DOJ, 234 F. Supp. 2d
697, 707-09 (E.D. Mich. 2002) (concluding that "[i]n this case, the burden of segregation
does not outweigh the significant value of the information to Plaintiff because it does not
appear that the Government would have to expend a large amount of additional time and
resources to provide Plaintiff with the segregable information" from 364 pages); Warren v.
SSA, No. 98-0116, 2000 WL 1209383, at *5 (W.D.N.Y. Aug. 22, 2000) (refusing to order
segregation of standard forms containing personal information because "if the [agency]
were to redact the requested documents in a manner that would remove all exempted . . .
information, the resulting materials would be little more than templates"), aff'd in pertinent
part, 10 F. App'x 20 (2d Cir. 2001); Eagle Horse v. FBI, No. 92-2357, slip op. at 5-6 (D.D.C.
July 28, 1995) (finding disclosure of polygraph examination -- after protecting sensitive
structure, pattern, and sequence of questions -- was not feasible without reducing product
to "unintelligible gibberish").
See Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008)
(rejecting agency's assertion that "the redacted documents without names and dates would
provide no meaningful information," and declaring that information need not be "helpful to
p o , 2017
the requestee [to require that] the government must disclose e see also Mead Data Cent.,
Pom it");221977) (stating that while
Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242,n v. n.55 (D.C. tCir.
us
a 261
agm o it Aug
"information content" is a legitimate consideration, n "does not mean that a court should
in Y
approve an agency withholding because ofhived
cited , arc the court's low estimate of the value to the
requester of the information withheld"); Schoenman v. FBI, No. 04-2202, 2009 WL
442
763065, at *26 (D.D.C. 15-55 2009) (upholding agency's segregation efforts and noting
Mar. 19,
.
that they were notNo upon an "impermissible determination that the substantive
based
content of the [nonexempt] information, although reasonably segregable, 'provides no
meaningful information'" (quoting Stolt-Nielsen Transp. Group, Ltd., 534 F.3d at 734)).
See, e.g., Schoenman v. FBI, 841 F. Supp. 2d 69, 80 (D.D.C. 2012) (finding that agency's
"line-by-line review of each document in an attempt to identify and release non-exempt
portions of each document" satisfies requirement to reasonably segregate nonexempt
information); Gray v. U.S. Army Criminal Investigation Command, 742 F. Supp. 2d 68, 75-6
(D.D.C. 2010) (noting that "every single one of the roughly 40 documents . . . is
accompanied by a statement that the document is withheld "in its entirety under
Exemptions [(6), (7)(A) and (7)(C)]'"); Showing Respect to Animals v. U.S. Dept. of Interior,
730 F. Supp. 2d 180, 199 (D.D.C. 2010) (finding that FOIA officer's declaration that she
"personally reviewed each of the documents . . . and conducted a thorough segregability
analysis" and "detailed descriptions of each document and portions that [were] withheld
either in part or in whole" show that agency met segregability obligations); cf. Elec. Frontier
Found. v. DOJ, No. 07-00403, slip op. at 17 (D.D.C. Aug. 14, 2007) (concluding that
although agency declarations never explicitly used term "segregability," statements
"[c]onsidered as a whole," demonstrate agency's segregability analysis), reconsideration
denied, 532 F. Supp. 2d 22 (D.D.C. 2008); Anderson v. CIA, 63 F. Supp. 2d 28, 30 (D.D.C.
1999) (declining, "especially in the highly classified context of this case," to "infer from the
absence of the word 'segregable' [in the agency's affidavit] that segregability was possible");
204

58

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 80 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
make the required showing.205 Appellate courts have addressed the issue either by making
their own determination or remanding the case for findings on this point.206
see also FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable
Segregation' Obligation").
See Stolt-Nielsen Transp. Group, Ltd., 534 F.3d at 734 (finding agency official's
declaration that paralegal reviewed pages line-by-line to assure himself that he was
withholding only exempt information to be insufficient for court to accept agency's
segregability determinations); Davin v. DOJ, 60 F.3d 1043, 1052 (3d Cir. 1995) ("The
statements regarding segregability are wholly conclusory, providing no information that
would enable [plaintiff] to evaluate the FBI's decisions to withhold."); Patterson v. IRS, 56
F.3d 832, 840 (7th Cir. 1995) (finding that an agency is not entitled to withhold an entire
document if only "portions" contain exempt information); Wightman v. ATF, 755 F.2d 979,
983 (1st Cir. 1985) (holding that detailed "process of segregation" is not unreasonable for
request involving thirty-six document pages); Bristol-Myers Co. v. FTC, 424 F.2d 935, 938
(D.C. Cir. 1970) (stating that "statutory scheme does not permit a bare claim of
confidentiality to immunize agency [records] from scrutiny" in their entireties); Chesapeake
Bay Found. v. U.S. Army Corps. of Eng'rs., 677 F. Supp. 2d 101, 109 (D.D.C. 2009)
(requiring agency to supplement its declarations and exhibits because there was "no
evidence to support" that agency complied with its segregability obligation and refusing "to
take on faith" agency's assertions that it had complied); In Def.o Animals v. NIH, 543 F.
of
pe and2017 subject matter
Supp. 2d 83, 107-08 (D.D.C. 2008) (ordering agency Pom
to segregate , release
22
of invoices and equipment purchase-related e-mails.even where sub-contractor and vendor
nv
a
gust
names and estimated costs might be properly withheldAu
Yagm d on under Exemptions and 5);
in2d 29, 44-45 (D.D.C. 2008) (rejecting4agency's United
Am. Fin., Inc. v. Potter, 531 citSupp.
F. ed
hive
, arc
conclusory statement that all reasonably segregable material was released because it failed
442
to explain why factual information in an e-mail reporting or summarizing a telephone call,
5-55
1
No.
which was otherwise properly exempt under deliberative process privilege, was not
reasonably segregable); ACLU v. FBI, 429 F. Supp. 2d 179, 193 (D.D.C. 2006) (finding that
agency did not establish that factual portions of e-mail messages were inextricably
intertwined with material exempt as deliberative); Mokhiber v. U.S. Dep't of the Treasury,
335 F. Supp. 2d 65, 70 (D.D.C. 2004) (granting plaintiff's motion for summary judgment
when agency declarations failed to show that agency "even attempted" to meet segregability
obligations); Neely v. FBI, No. 7:97-0786, Order at 1 (W.D. Va. Jan. 25, 1999) (finding that
agency applied exemptions "in a wholesale fashion" and without adequate explanation),
vacated & remanded on other grounds, 208 F.3d 461 (4th Cir. 2000); Church of Scientology
v. IRS, 816 F. Supp. 1138, 1162 (W.D. Tex. 1993) ("The burden is on the agency to prove the
document cannot be segregated for partial release.")
205

See, e.g., Missouri Mo. Coal. for the Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d
1204, 1211-13 (8th Cir. 2008) (declining to affirm application of exemption to all documents
in their entireties and remanding case for segregability analysis because district court made
no segregability findings); Stolt-Nielsen Transp. Group, Ltd., 534 F.3d at 734 (remanding
for failure to make specific findings of segregability regarding withheld documents and
stating that "[w]hile . . . we could conduct a further review in this court under our de novo
standard, in the interest of efficiency" we "'leave it to the district court to determine on
remand whether more detailed affidavits are appropriate or whether an alternative such as
in camera review'" is best (quoting Krikorian v. Dep't of State, 984 F.2d 461, 467 (D.C. Cir.
206

59

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 81 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
When agencies demonstrate that the withheld records are exempt in their entireties,
courts have upheld the determination that no segregation is possible.207
1993))); Juarez v. DOJ, 518 F.3d 54, 60-61 (D.C. Cir. 2008) (relying on affidavits to conduct
segregability analysis itself, stating "we need not prolong the case further by remanding it . .
. [a]s we have the same record before us as did the district court," and concluding that
nothing was improperly withheld); Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)
(recognizing district court's affirmative duty to consider segregability issue sua sponte and
remanding for segregability determination); Trentadue v. Integrity Comm., 501 F.3d 1215,
1230-31 (10th Cir. 2007) (finding that district court "erred in refusing to conduct a
severability analysis"); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1027-28 (D.C. Cir. 1999) (remanding case to district court for determination of releasability
of "four or six digits" of ten-digit numbers withheld in full); Isley v. EOUSA, No. 98-5098,
1999 WL 1021934, at *7 (D.C. Cir. Oct. 21, 1999) (remanding case to district court for
segregability finding even though neither party raised segregability issue in district court).
See, e.g., Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371-72 (D.C. Cir. 2005) (holding that
because Exemption 5 protects from disclosure attorney work-product documents in full,
including factual portions, such portions are not subject to segregability); Students Against
Genocide v. Dep't of State, 257 F.3d 828, 837 (D.C. Cir. 2001) (declaring that an agency is
not obligated to segregate and release images from classified photographs by "produc[ing]
new photographs at a different resolution in order to mask the o
e[classified] capabilities of the
17
reconnaissance systems that took them"); ACLU v. CIA,omp
No. 11-0933, 2012 WL 4356338, at
P
2, 20 "limited purely
n v. ugust 2
*14 (D.D.C. Sept. 25, 2012) (holding that court need not determine whether
gmait has already found that information was
factual portions" should be segregatedYa
because on A
ed in 1 and 3);ed Frontier Found. v. DOJ, No. 11-939,
properly withheld under Exemptions rchiv Elec.
cit
2, 21,
2012 WL 4319901, at *8 (D.D.C. Sept.a 2012) (finding that "although only portions of the
5544 Exemption 1, the entirety of the OLC Opinion was
OLC Opinion were withheld under
15No.
withheld under Exemption 5, leaving nothing significant that could be disclosed in a
redacted format"); Jarvik v. CIA, 741 F. Supp. 2d 106, 121 (D.D.C. 2010) (holding that
agency satisfied its burden of establishing that no portion of withheld documents could be
segregated because "giving any information regarding the results of its search . . . 'would
reveal sensitive intelligence capabilities and interests (or lack thereof)'"); The Shinnecock
Indian Nation, 652 F. Supp. 2d at 370 ("With respect to the work product doctrine [under
Exemption 5], because the protection applies to both factual and opinion-related material,
no segregability issues arise."); Covington v. McLeod, 646 F. Supp. 2d 66, 72 (D.D.C. 2009)
(noting that "the nature" of "an individual's statement or minutes of a grand jury
proceeding" are "simply incompatible with segregation" under applicable exemptions),
affirmed, No. 09-5336, 2010 WL 2930022, at *1 (D.C. Cir. 2010) (per curiam); Makky v.
Chertoff, 489 F. Supp. 2d 421, 441 n.23 (D.N.J. 2007) (noting that "[t]he Court is not in a
position to second-guess agency decisions relating to the segregability of non-exempt
information when the information implicates national security concerns"); Nat'l Sec.
Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 221-22 (D.D.C. 2005) (concluding that
agency's declaration "[t]aken in its entirety" shows that 2004 National Intelligence Estimate
(NIE) on Iraq is summarization of classified material, and that NIE contains no "segregable
portions that might sensibly be released"); Aftergood v. CIA, No. 02-1146, slip op. at 4 n.1
(D.D.C. Feb. 6, 2004) ("Because the plaintiff seeks the disclosure of a single [budget]
number, the court concludes that it would be impossible to segregate information from this
request."), motion to alter or amend judgment denied, 2004 U.S. Dist. LEXIS 27035, at *8
207

60

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 82 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
On occasion, courts have addressed the issue of an agency's technological ability to
segregate records maintained in non-traditional formats and have held that records "[are]
not reasonably segregable where the agency attested that it lacked the technical capabilities
to edit the records in order to disclose non-exempt portions."208
Finally, when an agency completes its segregability analysis and determines that
portions of the responsive documents can be disclosed as nonexempt and other portions are
appropriately withheld as exempt, the resulting partial record disclosure must satisfy
statutory document marking obligations.209 Agencies are required by the FOIA to mark
partially-disclosed records so that the amount of deleted materials, and the exemption
asserted are apparent, unless such markings would an interest protected by the exemption
being asserted.210 If technologically feasible, these markings should be placed in the record
at the place where the deletion is made.211
Consultations and Referrals
When an agency locates records responsive to a FOIA request, it should determine
whether another agency or agency component has a "substantial interest" in any of the
records or information contained in the records. 212 As a matter of sound administrative
(D.D.C. Sept. 29, 2004); Schrecker v. DOJ, 74 F. Supp. 2d 26, 32 (D.D.C. 1999) (finding that
confidential informant "source codes and symbols are assignedo such 017
pe in , 2a specific manner
Pom & remanded in part on other
that no portion of the code is reasonably segregable"), rev'd st 22
n v. ugu
grounds, 254 F.3d 162 (D.C. Cir. 2001). agma
A

in Y ived on
cited 257,r259-61 (D.D.C. 2012) (explaining that segregability
ch
208 Milton v. DOJ, 842 F. Supp. 2d
42, a technological capacity" and holding that
54
analysis focuses on "the agency's current
15-5
responsive telephone conversations were not reasonably segregable because agency did not
No.

possess technological capacity to segregate non-exempt portions of requested records); see
also Mingo v. DOJ, 793 F. Supp. 2d. 447, 454-55 (D.D.C. 2011) (concluding that nonexempt
portions of recorded telephone calls are inextricably intertwined with exempt portions
because agency "lacks the technical capability" to segregate information that is digitally
recorded); Antonelli v. BOP, 591 F. Supp. 2d 15, 27 (D.D.C. 2008) (same); Swope v. DOJ,
439 F. Supp. 2d 1, 7 (D.D.C. 2006) (same).
209

See 5 U.S.C. § 552(b) (paragraph immediately following exemptions).

Id; see FOIA Post, "OIP Guidance: Segregating and Marking Documents for Release In
Accordance With the OPEN Government Act" (posted 10/23/08).
210

5 U.S.C. § 552(b); see FOIA Post, "OIP Guidance: Segregating and Marking Documents
for Release In Accordance With the OPEN Government Act" (posted 10/23/08).
211

See 5 U.S.C. § 552(a)(6)(B)(iii)(III) (2006 & Supp. IV 2010) (describing that one of three
statutory circumstances where agencies can extend time to respond concerns "the need for
consultation . . . with another agency [or among two or more agency components] having a
substantial interest in the determination of the request").
212

61

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 83 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
practice, an agency should consult with any other agency or agency component whose
information appears in the responsive records, especially if that other agency or component
is better able to determine whether the information is exempt from disclosure. 213 The
Department of Justice has issued detailed guidance for agencies to follow when consulting
with other entities.214
When an agency locates records that originated with another agency or component,
as a matter of sound administrative practice it should ordinarily refer those records to their
originator so that that agency can make a direct response to the requester on those
records.215 The referring agency ordinarily should advise the requester of the referral and of
the name of the agency FOIA office to which it was made. 216
In Sussman v. U.S. Marshals Service, the Court of Appeals for the District of
Columbia Circuit ruled that although consultations are the only procedure expressly
mentioned in the FOIA to address situations where another agency has an interest in the
handling of requested records, it was permissible for agencies to refer records to their
originator for direct response to the requester. 217 The D.C. Circuit found that referring
documents for direct response is a reasonable procedure so long as it does not "lead to
improper withholding."218 Additionally, the Department of Justice's guidance on referrals
advises agencies not to refer records to an entity that is not itself subject to the FOIA. 219
See DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for
Processing Records when Another Agency or Entity Has an peo
Interest in Them (2011); cf. DOJ
17
Pom t 22, 20
FOIA Regulations, 28 C.F.R. § 16.4(c)(1) (2012). v.
s
n
213

a
gu
Yagm d on Au
in
214 DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for
e
cited AgencyhivEntity Has an Interest in Them (2011)
Processing Records when Another 2, arc or
44
(advising that agencies should utilize time-efficient mechanisms in conducting
5-55
1
consultations, should .
No provide copies of material that would assist other agency in its

analysis, should conduct consultations simultaneously rather than sequentially whenever
possible, and should provide requesters updates on status of ongoing consultations).
See id. (explaining that referrals foster efficiency and ensure consistency of responses, as
well as ensure that agencies making release determinations are fully informed about the
content of the records).
215

See id. (explaining that providing this information ensures that requesters understand
what has happened to the documents that are responsive to their requests, are not
disadvantaged by the referral process, and have a point of contact should they have any
questions about their request).
216

494 F.3d 1106, 1118 (D.C. Cir. 2007) (quoting McGehee v. CIA, 697 F.2d 1095, 1110 (D.C.
Cir. 1983) and holding that "McGehee's admonition that the agency receiving the initial
request 'cannot simply refuse to act on the ground that the documents originated elsewhere
. . . imposes a duty on that agency, but the agency may acquit itself through a referral,
provided the referral does not lead to improper withholding'").
217

Id; see also Inst. for Pol'y Stud. v. CIA, 885 F. Supp 2d 120, 241 (D.D.C. 2012) (citing
Sussman, 494 F.3d at 1108, and upholding referral, noting that "[o]nce defendant
218

62

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 84 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
As addressed in the Department of Justice guidance, it may sometimes be necessary
for agencies to "coordinate" with another agency rather than refer records to avoid
compromising sensitive law enforcement information that could invade an individual's
personal privacy or damage national security interests.220
Courts have held that even after agencies make referrals of records in response to
FOIA requests, they retain the responsibility of defending any agency action taken on those

discovered that some of the requested records originated with other agencies, it followed
standard procedure by referring these documents to [those agencies] for [] direct
response);Wilson v. DOT, 730 F. Supp. 2d 140, 154 (D.D.C. 2010) (observing that agency's
referral of records was consistent with its regulations which permit referral to another
agency "that originated or is substantially concerned with the records"); Cozen O'Connor v.
U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 770 (E.D. Pa. 2008) (finding referral process
"not exceptionally lengthy" in light of nature of documents involved and "necessity of
coordination among . . . various agencies"); El Badrawi v. DHS, 583 F. Supp. 2d 285, 310 (D.
Conn. 2008) (granting summary judgment on "propriety and reasonableness of . . . referrals
of certain records . . . to [those] . . . records' originating agencies"); Or. Natural Desert Ass'n
v. Gutierrez, 409 F. Supp. 2d 1237, 1250 (D. Or. 2006) (concluding that agency's referral
regulation "does not significantly impair the ability to get records" and that that regulation
o
is "reasonable"); Rzeslawski v. DOJ, No. 97-1156, slip op.mpe
6 (D.D.C. 2017
,
Po atfaster2thanJuly 23, 1998) make
.
(observing that an agency's "referral procedure is generally ust 2 attempting to
an v anduthat "by placing the request in the
g
gm
an independent determination regarding disclosure" A
in Ya ived on is more likely"), aff'd, No. 00hands of the originating agency, d
cite discretionary disclosure
rch
5029, 2000 WL 621299 (D.C. Cir. Apr. 4, 2000). But cf. Keys v. DHS, 570 F. Supp. 2d 59,
42, a
54
70 (D.D.C. 2008) (stating that referral was improper where agency referred records to
15-5take steps to ensure that referred records were acted upon, and
incorrect agency and did not
No.
where second agency did not return incorrectly-referred records for nearly one year).
See DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for
Processing Records when Another Agency or Entity Has an Interest in Them (2011) (stating
that, prior to referring records to entity, agencies should ensure entity is subject to FOIA);
see also EPIC v. NSA, 795 F. Supp. 2d 85, 94 (D.D.C. 2011) (holding that while "[i]t is true
that agencies that receive FOIA requests and discover responsive documents that were
created by another agency [they] may forward, or 'refer'" those documents to the originating
agency, if the originating entity is not an agency subject to the FOIA, it "cannot unilaterally
be made subject to the statute by any action of an agency, including referral"); Maydak v.
DOJ, 254 F. Supp. 2d 23, 40 (D.D.C. 2003) (noting that agency's referral of records
requested under FOIA to entity not subject to FOIA -- a United States Probation Office -"raises a genuine legal issue about the propriety" of agency's action).
219

See DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for
Processing Records when Another Agency or Entity Has an Interest in Them (2011)
(detailing administrative procedures for coordinating a response and stressing that agency
in receipt of request is responsible for providing status updates to requester during
pendency of coordination process).
220

63

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 85 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
records if the matter proceeds to litigation, 221 which is typically done by submitting a
declaration from the agency which processed the referral.222 Additionally, as a matter of
sound administrative practice agencies receiving referrals should handle them on a "first-in,
first-out" basis among their other FOIA requests, according to the date of the request's
initial receipt at the referring agency in order to avoid placing requesters at an unfair timing
disadvantage through agency referral practices. 223
Although a court has found that an agency generally is under no obligation to
"forward" a request (which is distinct from "referring " records) to any other agency which
might maintain records,224 an agency has been found required to do so , when it obligated
itself to through its own FOIA regulations.225 As a matter of administrative discretion, an
See, e.g., Hall v. CIA, 668 F. Supp. 2d 172, 182 (D.D.C. 2010) (instructing agency to "take
affirmative steps to ensure that its referrals are being processed"); Skinner v. DOJ, 744 F.
Supp. 2d 185, 216 (D.D.C. 2010) (denying summary judgment in part "[b]ecause the results
of the [agency's] referral of records to [two agencies] have not been explained"); Schoenman
v. FBI, 604 F. Supp. 2d 174, 203-04 (D.D.C. 2009) (requiring agency to submit a
"comprehensive" Vaughn Index that will include "a complete accounting of all referrals
made and indicate whether all documents so referred have been processed and released to
Plaintiff"); Keys, 570 F. Supp. 2d at 68-69 (stating that withholding was improper where
neither referring agency nor referee agency explained nature of pages withheld on referral,
and where referring agency did not explain why referee agency required requester to submit
additional request for responsive public records); Hronek v.peo 16 F. 017 2d 1260, 1272
m DEA, 2 Supp.
(D. Or. 1998) (noting that with respect to records referred to nonparty agencies "the
v. Po ust 22,
an
ultimate responsibility for a full response gmwith the Aug
[referring] agencies"), aff'd, 7 F.
alies
in Y ived on
App'x 591 (9th Cir. 2001). ited
221

c
arch
42,2012 WL 3143839, at *6 (D.D.C. Aug. 3, 2012)
222 See, e.g., Hall v. CIA, No554
- 04-814,
o. 15
(concluding that agency “fulfilled its burden as to the coordination” of certain documents
N

where it processed its own responsive records and provided “supporting declarations from
the coordinating agencies”).
See DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for
Processing Records when Another Agency or Entity Has an Interest in Them (2011) (agency
should order referral according to date FOIA request was first received by agency making
referral, not according to date referral itself was received by agency); cf. Williams v. United
States, 932 F. Supp. 354, 357 & n.7 (D.D.C. 1996) (urging agency to set up an "express lane"
for referred records so as to not "tie up other agencies by taking an inordinate period of time
to review referred records [and] unnecessarily inhibit[ing] the smooth functioning of the
[other] agencies' well oiled FOIA processing systems").
223

See Hardy v. DOD, No. 99-523, 2001 WL 34354945, at *10 (D. Ariz. Aug. 27, 2001)
(holding that an agency was not obligated to forward to OPM a FOIA request for personnel
records that agency did not maintain itself).
224

See Truesdale v. DOJ, 731 F. Supp. 2d 3, 6-8 (D.D.C. 2010) (denying in part defendant's
motion for summary judgment because agency did not demonstrate compliance with own
FOIA regulations concerning referrals).
225

64

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 86 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
agency may of course advise the requester of the name and address of other agencies that
are likely to maintain records responsive to the request.226
Finally, the FOIA does impose a duty to route misdirected requests to the proper
FOIA component within an agency.227 Agency components must route misdirected requests
within the agency within ten days of receipt, provided such requests are originally received
by a component of the agency designated by the agency's regulations to receive FOIA
requests.228 (See Procedural Requirements, Time Limits, above, for a discussion of the
requirement to route misdirected requests.)
Responding to FOIA Requests
The FOIA requires that each agency "shall make [disclosable] records promptly
available" upon request.229 The FOIA does not provide for limited disclosure; rather, it
"speaks in terms of disclosure and nondisclosure [and] ordinarily does not recognize
degrees of disclosure, such as permitting viewing, but not copying, of documents."230
Because the statute does not provide for limited disclosure, the Supreme Court has opined
that there is also "no mechanism under [the statute] for a protective order allowing only the
requester to see [the information] or for proscribing its general dissemination." 231 In short,
"once there is disclosure, the information belongs to the general public."232
See Presidential Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 2017
21, 2009) (directing
peo
Pom t 22,
agencies to respond to FOIA requests "in a spirit of cooperation").
v.
s
n
226

a
gu
Yagm d on Au
227 5 U.S.C. § 552(a)(6)(A); see alsoin
hiv
cited FOIAcPost,e"OIP Guidance:
Misdirected FOIA Requests" (posted 11/18/08).
, ar
442
5-55
1
228 5 U.S.C. § 552(a)(6)(A); see also FOIA Post, "OIP Guidance:
No.

New Requirement to Route
New Requirement to Route

Misdirected FOIA Requests" (posted 11/18/08).
229

5 U.S.C. § 552(a)(3)(A) (2006 & Supp. IV 2010).

Julian v. DOJ, 806 F.2d 1411, 1419 n.7 (9th Cir. 1986), aff'd, 486 U.S. 1 (1988); see NARA
v. Favish, 541 U.S. 157, 172 (recognizing that information disclosed under FOIA "belongs to
citizens to do with as they choose"), reh'g denied, 541 U.S. 1057 (2004); Berry v. DOJ, 733
F.2d 1343, 1355 n.19 (9th Cir. 1984); see also Seawell, Dalton, Hughes & Timms v. Exp.Imp. Bank, No. 84-241-N, slip op. at 2 (E.D. Va. July 27, 1984) (stating that there is no
"middle ground between disclosure and nondisclosure"). But see Antonelli v. ATF, No. 041180, 2006 WL 3147675, at *2 (D.D.C. Nov. 1, 2006) (finding that agency satisfied FOIA's
requirements by making available for viewing inmate requester's presentence report);
Chamberlain v. DOJ, 957 F. Supp. 292, 296 (D.D.C. 1997) (holding that FBI's offer to make
"visicorder charts" available to requester for review at FBI Headquarters met FOIA
requirements due to exceptional fact that charts could be damaged if photocopied),
summary affirmance granted, 124 F.3d 1309 (D.C. Cir. 1997) (unpublished table decision).
230

Favish, 541 U.S. at 174; see Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082,
1088-89 (9th Cir. 1997) (rejecting plaintiff's offer to receive requested documents under a
confidentiality agreement due to rule that "FOIA does not permit selective disclosure of
231

65

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 87 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Upon receipt of a request that will take longer than ten days to process, the FOIA
requires agencies to provide the requesters with an individualized tracking numbers and to
maintain a telephone line or Internet service to provide requesters with information about
the status of the request, including the date the agency originally received the request and
the estimated date of its completion.233
When responding to a request, the FOIA requires agencies to "provide the
[requested] record in any form or format requested by the person if the record is readily
reproducible by the agency in that form or format" and to also "make reasonable efforts to
maintain its records in forms or formats that are reproducible" for such purposes. 234 These
statutory provisions require agencies to not only honor a requester's choice of format among
existing formats of a record, but to also make "reasonable efforts" to disclose a record in a
format not in existence, when so requested, if the record is "readily reproducible" in that
new format235 If records are not readily reproducible by the agency in the format requested,
courts have not required agencies to release the records in that format. 236
information to only certain parties, and that once the information is disclosed to [plaintiff],
it must be made available to all members of the public who request it"); Swan v. SEC, 96
F.3d 498, 500 (D.C. Cir. 1996) ("Once records are released, nothing in the FOIA prevents
the requester from disclosing the information to anyone else. The statute contains no
provisions requiring confidentiality agreements or similar conditions."); Schiffer v. FBI, 78
F.3d 1405, 1410 (9th Cir. 1996) (reversing district court's mpeo
conditional disclosure order,
017
Po of the 22, 2712 F.2d 1462, 1469
which is "not authorized by FOIA"); cf. Arieff v. n v. Dep't st Navy,
U.S.
gma on Augu allow plaintiff's counsel and
(D.C. Cir. 1983) (refusing to grant protective order that would
Ya
medical expert to review exemptd in
e information). d
it
hive

c
arc
442, Post, "Supreme Court Rules for 'Survivor Privacy'
232 Favish, 541 U.S. at 174; see also FOIA
-55
o. 15 ("The well-known maxim under the FOIA that 'release to one is
in Favish" (postedN
4/9/04)
release to all' was firmly reinforced in the Favish decision.").

5 U.S.C. § 552(a)(7)(B)(ii); see Muttit v. U.S. Cent. Command, 813 F. Supp. 2d 221, 224,
226-30 (D.D.C. 2011) (noting requirement that agency provide status updates upon
request); see also FOIA Post, "OIP Guidance: Assigning Tracking Numbers and Providing
Status Information for Requests" (posted 11/18/08) (advising agencies of importance of
providing FOIA requesters information on status of their requests so that they can readily
learn when to expect response).
233

5 U.S.C. § 552(a)(3)(B); see also FOIA Update, Vol. XVII, No. 4, at 2 (discussing statutory
provisions); cf. DOJ "Electronic Record" Report, reprinted in abridged form in FOIA
Update, Vol. XI, No. 3, at 3-6 (discussing "choice of format" issues regarding "electronic
records").
234

See Sample v. BOP, 466 F.3d 1086, 1087, 1089 (D.C. Cir. 2006) (finding that statutory
language "unambiguously requires" agency to disclose records in requested electronic
format even though agency's regulations prohibit an inmate from possessing such
electronically formatted material, without making any finding with respect to inmate
"access or possession" of such records, as those questions were "not before the court"); TPS,
Inc. v. DOD, 330 F.3d 1191, 1195 (9th Cir. 2003) (stating, in light of particular agency
235

66

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 88 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
When an agency denies a request in full or in part, the FOIA requires that it provide
the requester with certain information about the action taken on the request. Agencies are
required to "make a reasonable effort to estimate the volume" of any information withheld
and should inform the requester of that estimate, unless doing so would harm an interest
protected by an applied exemption.237 For any records released in part, the FOIA requires
that the released portions indicate the amount of information withheld and the exemption
being asserted, unless doing so would harm an interest protected by the exemption being

regulation, that the FOIA "requires that the agency satisfy a FOIA request [for the
production of records in a certain format] when it has the capability to readily reproduce
documents in the requested format"); see also FOIA Update, Vol. XIX, No. 1, at 6
(encouraging agencies to consider providing records in multiple forms as matter of
administrative discretion if requested to do so); FOIA Update, Vol. XVIII, No. 1, at 5
(discussing agency obligations to produce records in requested forms or formats (citing H.R.
Rep. No. 104-795, at 18, 21 (1996) (noting that amendments overrule Dismukes v. Dep't of
the Interior, 603 F. Supp. 760, 761-63 (D.D.C. 1984), which previously allowed agency to
choose format of disclosure if it chose "reasonably"))); cf. Snyder v. DOD, No. 03-4992,
2007 WL 951293, at *4-5 (N.D. Cal. Mar. 27, 2007) (ordering agency to produce file that
was available on agency website, but corrupted or incomplete when viewed, and to produce
peo
re-formatted version of another file that it previously disclosed, but was017 corrupted,
Pom of t 22, 2 alsois required
explaining that "[a]bsent exceptional circumstances, releaseus information
n v.
gma on Aug "the prospect of compliance
unless it falls under one of nine statutory exemptions" and that
n Ya Landmark Legal Found. v. EPA, 272 F. Supp. 2d
expenses is not one of thosecited i
exceptions"); hived
c
59, 63 (D.D.C. 2003) (concluding thatar
2 agency had not violated
44to,retain electronic copies of the FOIA's "readily
reproducible" provision15-55
by failing
e-mails that were retained in
paper form only, because "the agency may keep its files in a manner that best suits its
No.
needs").
See LaRoche v. SEC, 289 F. App'x 231, 231 (9th Cir. 2008) (affirming summary judgment
in favor of agency because records sought were not readily reproducible in searchable
electronic format plaintiff requested); Jackson v. U.S. Dep't of Labor, No. 06-02157, 2008
WL 539925, at *4, (E.D. Cal. Feb. 25, 2008) (magistrate's recommendation) (finding that
"because [agency] has not developed a system to provide public online access, the records
requested are not readily reproducible in that format"), adopted, No. 06-2157, 2008 WL
4463897, *1 (E.D. Cal. Oct. 2, 2008); Chamberlain, 957 F. Supp. at 296 ("The substantial
expense of reproducing the visicorder charts, as well as the possibility that the visicorder
charts might be damaged if photocopied, make the Government's proposed form of
disclosure [i.e., inspection] even more compelling.").
236

See 5 U.S.C. § 552(a)(6)(F); see also Mobley v. DOJ, 845 F. Supp. 2d 120, 123-24 (D.D.C.
2012) ("The plain text of the statute does not require agencies to provide a list of withheld
documents, but only to make a reasonable effort to estimate the volume of the documents
withheld."); FOIA Update, Vol. XVIII, No. 2, at 2 (discussing alternative methods of
satisfying obligation to estimate volume of deleted or withheld information, including
"forms of measurement" to be used).
237

67

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 89 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
asserted.238 If "technically feasible," the FOIA requires this information to "be indicated at
the place in the record where such deletion is made." 239(For a further discussion of the
FOIA's portion-marking requirements, see Procedural Requirements, "Reasonably
Segregable" Obligation, above.)
The agency response is required by the FOIA to include specific administrative
information about the agency's action.240
While "[t]here is no requirement that
administrative responses to FOIA requests contain the same documentation necessary in
litigation,"241 a decision to deny an initial request must inform the requester of the reasons
for denial, the right to appeal, and the name and title of each person responsible for the
denial.242 Agencies must also include administrative appeal rights notifications in any
See 5 U.S.C. § 552(b) (paragraph immediately following exemptions); see also FOIA Post,
"OIP Guidance: Segregating and Marking Documents for Release In Accordance With the
OPEN Government Act" (posted 10/23/08).
238

See 5 U.S.C. § 552(b) (paragraph immediately following exemptions); see also Long v.
DOJ, 703 F. Supp. 2d 84, 107-08 (N.D.N.Y. 2010) (accepting agency's explanation that it
would not be technically feasible to show disputed redactions "because the method required
to do so would cause 'system run-time problems'" and not produce results).
239

See 5 U.S.C. § 552(a)(6)(A)(i) (requiring agencies to notify requesters of disclosure
determinations, reasons for such determinations, and administrative appeal rights); id.
peo , 17
Pom name and20 of person making
§ 552(a)(6)(C)(i) (requiring agencies to notify requesters of st 22 title
n v. u
determination regarding denials of requests for records). gu
gma
A
a
240

in Y
d on
cited , archive LEXIS 23177, at *3-4 (D.D.C. Sept. 28,
241 Crooker v. CIA, No. 83-1426, 1984 U.S. Dist.
442
1984); see Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1189 (N.D. Cal. 2006) (granting
5-55
summary judgment o. 1
N because, inter alia, "[i]nitial agency responses to FOIA requests are not
required to contain a Vaughn index"); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11
(D.D.C. 1995) (finding that agencies need not provide Vaughn Index until ordered by court
after plaintiff has exhausted administrative process); Schaake v. IRS, No. 91-958, 1991 U.S.
Dist. LEXIS 9418, at *9-10 (S.D. Ill. June 3, 1991) (ruling that court "lacks jurisdiction" to
require agency to provide Vaughn Index at either initial request or administrative appeal
stages); SafeCard Servs. v. SEC, No. 84-3073, 1986 U.S. Dist. LEXIS 26467, at *5 (D.D.C.
Apr. 21, 1986) (noting that requester has no right to Vaughn Index during administrative
process), aff'd on other grounds, 926 F.2d 1197 (D.C. Cir. 1991); see also FOIA Update, Vol.
VII, No. 3, at 6.

See 5 U.S.C. § 552(a)(6)(A)(i), (a)(6)(C)(I); Stanley v. DOD, No. 93-4247, slip op. at 14-15
(S.D. Ill. July 28, 1998) (finding constructive exhaustion when agency failed to provide
requester with notice of administrative appeal rights regarding disputed fee estimate);
Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989) (denying plaintiff's request for
Vaughn Index at administrative level, but suggesting that agency regulations then in effect
required "more information than just the number of pages withheld and an unexplained
citation to the exemptions"), rev'd & remanded on other grounds sub nom. Mayock v.
Nelson, 938 F.2d 1006 (9th Cir. 1991); Hudgins v. IRS, 620 F. Supp. 19, 20-21 (D.D.C. 1985)
(suggesting that statement of appeal rights should be provided even when agency interprets
request as not reasonably describing records), aff'd, 808 F.2d 137 (D.C. Cir. 1987).
242

68

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 90 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
responses to requesters where they are advising that no records responsive to the request
could be located.243
Prior to transmitting responsive records to the requester courts have recognized that
an agency may collect any fees owed on the request. 244
One court has directly addressed the proper handling of records not written in English,
ruling that the agency should translate the responsive records in order to make disclosure
determinations.245

See Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 67 (D.C. Cir. 1990) (holding that an
agency's "no record" response constitutes an "adverse determination" and therefore
requires notification of appeal rights under 5 U.S.C. § 552(a)(6)(A)(i)); Dinsio v. FBI, 445 F.
Supp. 2d 305, 311 (W.D.N.Y. 2006) (finding constructive exhaustion when agency response
did not include notice of administrative appeal rights); see also FOIA Update, Vol. XII, No.
2, at 5 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision")
(superseding FOIA Update, Vol. V, No. 3, at 2). But see Dorn v. IRS, No. 03-539, 2005 WL
1126653, at *3 (M.D. Fla. May 12, 2005) (stating that agency's response was not "adverse,"
even though response stated that requested records "did not exist, must be requested from
another office, or could not be created").
243

eo
7
omp 22, 1
P2005) ("Where20 agency already has
244 See Farrugia v. EOUSA, 366 F. Supp. 2d 56 (D.D.C.
an
n v. ugust
gma orequire payment before sending the
a
processed a request, it is clear 'that the agency may n A
in Y
requested records.'") (quotingtTruebloodchived
ci ed , ar v. U.S. Dep't of the Treasury, 943 F. Supp. 64, 68
(D.D.C. 1996)); Taylor v. U.S. Dep't of the Treasury, No. A-96-CA-933, 1996 WL 858481, at
442
*2 (W.D. Tex. Dec. 17, 1996)55
5- (recognizing that agency may require payment before sending
1
No.
processed records); Putnam v. DOJ, 880 F. Supp. 40, 42 (D.D.C. 1995) (allowing agency to
require payment of current and outstanding fees before releasing records); Crooker v. ATF,
882 F. Supp. 1158, 1162 (D. Mass. 1995) (finding no obligation to provide records until
current and past-due fees are paid); Strout v. U.S. Parole Comm'n, 842 F. Supp. 948, 951
(E.D. Mich. 1994), aff'd, 40 F.3d 136 (6th Cir. 1994) (granting defendant's motion for
summary judgment after finding agency regulation requiring payment prior to releasing
records to requester valid).

See Lawyers' Comm. for Civil Rights v. Dep't of the Treasury, No. 07-2590, 2009 WL
1299821, at *9 (N.D. Cal. May 11, 2009) (concluding that agency failed to demonstrate
applicability of FOIA exemption to documents because it "did not bother to translate [them]
into English for the court . . . so the court is unable to make a determination as to those
[documents]"); see also FOIA Post, "The Limits of Agency Translation Obligations Under
the FOIA" (posted 12/1/04) (discussing agency translation obligations in determining
responsiveness of records, determining applicability of exemptions, and providing records
in response to FOIA requests); cf. Essential Info., Inc. v. USIA, 134 F.3d 1165, 1172 (D.C. Cir.
1998) (Tatel, J., dissenting) (observing that "FOIA contains no . . . translation requirement"
regarding disclosure of records in a specific language). But cf. McDonnell v. United States, 4
F.3d 1227, 1261 n.21 (3d Cir. 1993) (suggesting, in dictum, that agency might be compelled
to create translation of any disclosable encoded information).
245

69

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 91 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
When responding to a request courts have found that agencies are not required to
add explanatory materials to any records disclosed,246 to certify records,247 or to bates stamp
or number the records.248
As a matter of sound administrative policy, when an agency receives a request that
involves voluminous records or which requires searches in multiple locations, whenever
feasible, the agency should provide interim releases to the requester instead of waiting until
all records are located and processed.249 As a further matter of administrative discretion in
responding to requests, agencies should include any other helpful information such as,
when appropriate, the agency's interpretation of the request.250 Further, agencies are
expected to provide requesters with the "best copy available" of a record, 251 and so as a
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (holding that "insofar as the
order of the court below requires the agency to create explanatory material, it is baseless");
see also Citizens Progressive Alliance v. U.S. Bureau of Indian Affairs, 241 F. Supp. 2d 1342,
1365 (D.N.M. 2002) ("Defendants may be required to disclose material pursuant to FOIA,
but Defendants are not required to . . . explain any records produced."); Tax Analysts v. IRS,
No. 94-923, 1998 WL 419755, at *2 (D.D.C. May 1, 1998) (declaring that "an agency need
not add explanatory material to a document to make it more understandable in light of the
redactions"); Gabel v. Comm'r, 879 F. Supp. 1037, 1039 (N.D. Cal. 1994) (noting that FOIA
does not require agency "to revamp documents or generate exegeses so as to make them
comprehensible to a particular requestor").
246

peo
17
Pom Tenn.2, 20 2009)
247 See Knittel v. IRS, No. 07-1213, 2009 WL 2163619 (W.D.
v.
t 2 July 20,
man n Augus
gto provide certified copies of agency records in
(concluding that agencies are not required
Ya
o
response to FOIA request); Jackman v. DOJ,ved 05-1889, 2006 WL 2598054, at *2 (D.D.C.
ed in rchi No.
cit
Sept. 11, 2006) (stating that "questions about the authenticity and correctness of the
42, a
released records are beyond554
the scope of the court's FOIA jurisdiction").
15No.
See Brown v. DOJ, 734 F. Supp. 2d 99, 104 (D.D.C. 2010) (declining to extend agency's
obligation to make records available in readily reproducible format to include batesstamping records that were not already numbered).
248

See FOIA Post, "The Importance of Good Communication with FOIA Requesters"
(posted 3/4/10) (advising agencies to make interim releases when possible to facilitate
access to requested material).
249

See FOIA Post, “OIP Guidance: The Importance of Good Communication with FOIA
Requesters” (posted 3/1/10) (advising agencies of benefits to both requesters and agencies
to discuss scope of request with requester "to ensure that they have a common
understanding of what records are being sought"); FOIA Update, Vol. XVI, No. 3, at 3-5
("OIP Guidance: Determining the Scope of a FOIA Request") (emphasizing importance of
communication with requester); see, e.g., Astley v. Lawson, No. 89-2806, 1991 WL 7162, at
*2 (D.D.C. Jan. 11, 1991) (suggesting that agency "might have been more helpful" to
requester by "explaining why the information he sought would not be provided").
250

See McDonnell v. United States, 4 F.3d 1227, 1261 n. 21 (3d Cir. 1993) ("Of course, we
anticipate that [plaintiff] will receive the best possible reproduction of the documents to
which he is entitled."); Crummey v. SSA, 794 F. Supp. 2d 46, 62 (D.D.C. 2011) (accepting
251

70

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 92 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
matter of good policy should address any problems with the quality of disclosed records in
the response.252
Finally, the President has instructed agencies to "use modern technology" to make
information available to the public, both in response to requests and through proactive
disclosures.253 In addition to meeting their proactive disclosure obligations under the
FOIA,254 which includes the requirement that agencies post FOIA-processed versions of
"frequently requested records," agencies should as a matter of sound policy identify and
post any records in which they anticipate interest.255 (For a discussion of proactive
disclosures, see Proactive Disclosures, Disclosing Records Proactively to Achieve
Transparency, above.)
Administrative Appeals
Under the FOIA's administrative appeal provision, a requester has the right to
administratively appeal any adverse determination an agency makes on his or her FOIA
that agency provided plaintiff with "best available records" even though plaintiff asserted
that copies were illegible); see also FOIA Update, Vol. XVI, No. 3, at 5 (advising agencies
that "before providing a FOIA requester with a photocopy of a record that is a poor copy or
is not entirely legible," they should "make reasonable efforts to check for any better copy of a
record that could be used to make a better photocopy for mprequester"). 17
the eo
20

,
Po
n v. ugust 22
a of A
252 See FOIA Update, Vol. XVI, No. 3, at 5 gm
Ya (advising n procedures to be used in cases
o
involving poor photocopies of trecords). hived
ed in rc
ci
2, a
253 See Presidential Memorandum for Heads of Executive Departments and Agencies
5544
15Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009) [hereinafter
No.
President Obama's FOIA Memorandum]; accord Attorney General Holder's Memorandum
for Heads of Executive Departments and Agencies Concerning the Freedom of Information
Act, 74 Fed. Reg. 51879 (Oct. 8, 2009) [hereinafter Attorney General Holder's FOIA
Guidelines]; FOIA Post, "OIP Guidance: President Obama's FOIA Memorandum and
Attorney General Holder's FOIA Guidelines - Creating a New Era of Open Government"
(posted 4/17/09).
254

See 5 U.S.C. § 552(a)(2)(D).

See President Obama's FOIA Memorandum, 74 Fed. Reg. at 4683 (directing all agencies
to "take affirmative steps to make information public" and to "use modern technology to
inform citizens about what is known and done by their Government"); accord Attorney
General Holder's FOIA Guidelines, at 3, (stating that "agencies should readily and
systematically post information online in advance of any public request" because doing so
"reduces the need for individualized requests and may help reduce existing backlogs");
FOIA Post, "OIP Guidance: President Obama's FOIA Memorandum and Attorney General
Holder's FOIA Guidelines - Creating a New Era of Open Government" (posted 4/17/09)
(recognizing proactive disclosure as a "key area where agencies can make real
improvements in increasing transparency").
255

71

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 93 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
request.256 Under DOJ regulations, for example, adverse determinations include denials of
records in full or in part; "no records" responses; denials of requests for fee waivers; and
denials of requests for expedited processing.257
The administrative appeal process is important to agencies and requesters for two
reasons. First, the administrative appeal process provides an agency with an opportunity to
review its initial action taken in response to a request to determine whether corrective steps
are necessary.258 Second, although failure to file an administrative appeal is not an absolute
bar to judicial review, the Court of Appeals for the District of Columbia Circuit has held that
exhaustion of the administrative appeal process is "'generally required before filing suit in
federal court.'"259
256

See 5 U.S.C. § 552(a)(6)(A) (2006 & Supp. IV 2010).

257

See DOJ FOIA Regulations, 28 C.F.R. § 16.6(c) (2012).

See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (noting that policies of exhaustion
requirement are "to prevent premature interference with agency processes, to give the
parties and the courts benefit of the agency's experience and expertise and to compile an
adequate record for review"); Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir.
1990) (recognizing that exhaustion of the administrative appeal process "allows the top
managers of an agency to correct mistakes made at lower levelso
e and thereby obviates
p395 U.S.2017 (1969) (nonunnecessary judicial review" (citing McKart v. UnitedPom
States,
, 185, 194
FOIA case))); Sieverding v. DOJ, No. 11-1032, an v.
2012 WL 6608573, at *4 (D.D.C. Dec. 19,
st 22
gu
2012) (finding that, in absence of appeal, allowing on Au to "to pursue her claim . . . in
Yagm d plaintiff
in
federal litigation would undermine [agency's] e
cited
chiv process for resolving such FOIA claims").
258

2,
5544
-

ar

Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 61);
15
No. 191 F.3d 460, at *5 (9th Cir. 1999) (unpublished table opinion)
see, e.g., Lumarse v. HHS,
(affirming dismissal of plaintiff's FOIA claim for failure to exhaust administrative remedies
because plaintiff did not administratively appeal and therefore did not attempt to comply
with agency procedures); ACLU of Mich. v. FBI, No. 11-13154, slip op. at *4 (E.D. Mich.
Sept. 30, 2012) (finding that court does not have subject matter jurisdiction over adequacy
of agency's search because "nowhere in the Appeal [did] Plaintiff question or challenge the
adequacy of Defendant's search"); Freedom Watch, Inc. v. CIA, No. 12-0721, 2012 WL
4753281, at *5, n. 2 (D.D.C. Oct. 5, 2012) (denying plaintiff's request for futility exception to
the exhaustion requirement and noting that "binding Circuit precedent could not be clearer:
exhaustion of administrative remedies 'is a mandatory prerequisite to a lawsuit under the
FOIA'" (quoting Wilbur, 355 F.3d at 676 (emphasis added, internal quotation marks and
citation omitted))); Williams v. VA, 510 F. Supp. 2d 912, 921 (M.D. Fla. 2007) (finding that
"plaintiff's failure to administratively appeal precludes plaintiff from obtaining relief
because "the requirement of exhaustion of administrative remedies prior to seeking redress
in federal court, allows an agency to correct possible mistakes and alleviate the need for
judicial review of the same"); Thomas v. IRS, No. 03-2080, 2004 WL 3185316, at *3 (M.D.
Pa. Nov. 2, 2004) (finding that plaintiff failed to exhaust administrative remedies because,
by not filing an administrative appeal, plaintiff "contravene[ed] Congress' purpose in
creating a comprehensive administrative system for FOIA requests and disclosures"), aff'd,
153 F. App'x 89 (3d Cir. 2005); Comer v. IRS, No. 97-76329, 1999 WL 1022210, at *3-4
(E.D. Mich. Sept. 30, 1999) (finding that "administrative exhaustion is required so that
259

72

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 94 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
Courts have found that a requester must submit an administrative appeal pursuant
to an agency's regulations, including regulations governing deadlines and procedures for
submission.260 Although the FOIA has a "constructive exhaustion" provision,261 once an
agency responds to a request, courts have found that the requester is obligated at that time
to submit an administrative appeal even if the agency's response was untimely.262
The FOIA requires an agency to make a determination on an administrative appeal
within twenty working days after its receipt,263 but that period may be extended by written
parties may take the opportunity to informally resolve disputed issues before going to the
much more onerous time and expense of litigating in the courts").
See, e.g., Thompson v. Dep't of the Navy, No. 11-11782, 2012 WL 4464648, at *1-*2 (11th
Cir. Sept. 27, 2012) (finding that plaintiff did not exhaust administrative remedies where
plaintiff's appeal was untimely); Bonilla v. DOJ, No. 11-20450, 2012 WL 3759024, at *5
(S.D. Fla. Aug. 29, 2012) (finding that plaintiff's attempt to appeal was untimely and
therefore that plaintiff had not exhausted administrative remedies because regulatory
language is not ambiguous and "agency's construction of its own regulations is entitled to
substantial deference"); Ctr. for Biological Diversity v. Gutierrez, 451 F. Supp. 2d 57, 65-67
(D.D.C. Aug. 10, 2006) (concluding that requester failed to exhaust administrative remedies
when electronically submitted appeal was received twelve minutes after expiration of
eo
agency's regulatory appeal deadline); Imamoto v. SSA, No. 08-00137,2017WL 5179104, at
omp 22, 2008
Pagency forwarding requester's letter
*5 (D. Haw. Dec. 9, 2008) (concluding that third party
n v. u st
gma action); gu
to SSA is not valid administrative appeal of SSA's n A Sindram v. Fox, No. 07-0222,
n Ya 2008) o
2008 WL 2996047, at *5 (E.D.ed i
Pa. Aug. 5, hived(giving plaintiff thirty days to produce
cit
arc
evidence that he exhausted administrative remedies in light of agency having no record of
442, v. DOJ, No. 07-2273, 2008 U.S. Dist. LEXIS 38925
5
receiving administrative appeal); Fisher
15-5
o.(declining to exercise jurisdiction because plaintiff's appeal was
(D.N.J. May 9, 2008)
N
received after sixty-day deadline established by agency regulation and rejecting prison
mailbox rule where "'statutory or regulatory schemes . . . require[ ] actual receipt by a
specific date'" (quoting Longenette v. Krusing, 322 F.3d 758, 764 (3d Cir. 2003))).
260

261

See 5 U.S.C. § 552(a)(6)(C).

See Oglesby, 920 F.2d at 61; see also Rease v. Harvey, 238 F. App'x 492, 495 (11th Cir.
2007) (unpublished disposition) (declaring that "requester still must exhaust his
administrative remedies" even when agency response is untimely); Ivey v. Paulson, 227 F.
App'x 1, 1 (D.C. Cir. 2007) (unpublished disposition) (affirming district court's dismissal for
failure to exhaust because agency made response prior to requester filing suit, thereby
reimposing requirement that requester submit administrative appeal); Arizechi v. IRS, No.
06-5292, 2008 WL 539058, at *5 (D.N.J. Feb. 25, 2008) (unpublished disposition) (finding
that "[a]n administrative appeal is mandatory if the agency cures its failure to respond with
the statutory period by responding to the FOIA request before suit is filed").
262

See 5 U.S.C. § 552(a)(6)(A)(ii); see also Dennis v. CIA, No. 12-4207, 12-4208, 2012 WL
5493377, at *2 (E.D.N.Y. Nov. 13, 2012) (noting that "[u]nder FOIA, after an agency receives
a FOIA request, it must 'determine within 20 days (excepting Saturdays, Sundays, and legal
public holidays) . . . whether or not to comply with such request,' and shall 'make a
263

73

Case: 15-55442, 08/28/2017, ID: 10559962, DktEntry: 53-2, Page 95 of 95
Department of Justice Guide to the Freedom of Information Act
Procedural Requirements
notice if "unusual circumstances," as defined by the FOIA, apply. 264 An administrative
appeal decision upholding an adverse determination must inform the requester of the
provisions for judicial review of that determination in the federal courts.265 As a matter of
sound administrative practice, the department of Justice has advised agencies that they
should include in their appeal determination letters notification to the requester of the
mediation services offered by the Office of Government Information Services at the National
Archives and Records Administration.266 (For discussions of the various aspects of judicial
review of agency action under the FOIA, see Litigation Considerations, below.)

peo
17
Pom t 22, 20
s
n v.
gma on Augu
a
in Y
d
cited , archive
442
5-55
.1

No

determination with respect to any appeal within twenty days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of such appeal.'"); Wildlands CPR v. U.S. Forest
Serv., 558 F. Supp. 2d 1096, 1102-03 (D. Mont. 2008) (finding constructive exhaustion
where agency did not timely adjudicate administrative appeal); Soghomonian v. United
States, 82 F. Supp. 2d 1134, 1138 (E.D. Cal. 1999) (holding that twenty-day time period for
responding to administrative appeal begins when agency receives appeal, not when
requester mails it).
264

See 5 U.S.C. § 552(a)(6)(B)(i); 5 U.S.C. § 552(a)(6)(B)(iii).

265

See 5 U.S.C. § 552(a)(6)(A)(ii).

See FOIA Post, “OIP Guidance: Notifying Requesters of the Mediation Services Offered
by OGIS” (posted 07/09/10).
266

74