The Electronic Freedom of Information Act Amendments: A Minor Upgrade to Public Access Law

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I. INTRODUCTION

On October 2, 1996, President Clinton signed into law the Electronic Freedom of Information Act Amendments ("EFOIAA").(1) EFOIAA clarifies the status of electronic records under public access law and encourages federal agencies to adopt electronic formats and electronic methods of dissemination. EFOIAA implements several administrative reforms, including permissive multitracking, "notify-and-negotiate" requester requirements, affirmative publication of frequently requested FOIA information, and expedited processing of "compelling need" requests. EFOIAA doubles the allowable agency response time, but also limits agency recourse to the courts under the "exceptional circumstances" exception to statutory time periods.

This Note explains the important provisions of EFOIAA and argues that the amendments are an incremental reform which provide mere technological gap-fillers for handling electronic records. EFOIAA includes permissive and mandatory administrative procedures which are likely to increase agency costs and the potential for litigation between agencies and requesters. EFOIAA fails to address the need for Congressional funding of agency compliance costs, either by direct allocation or FOIA fee revenue-sharing, and compounds this oversight by significantly increasing agency obligations. Finally, EFOIAA avoids reformulating public access policy in light of advancing information technologies, and instead chooses to extend the current access regime despite the danger of technological obsolescence.

II. BACKGROUND

The Freedom of Information Act ("FOIA")(2) requires mandatory disclosure of public information, subject to certain exemptions and housekeeping concerns. FOIA,'s primary goal is to ensure open government by providing citizens with access to the inner workings of the executive branch. "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed."(3) President Lyndon B. Johnson underscored the essentially democratic nature of the statute by signing FOIA into law in a July 4th ceremony, declaring that "[t]his legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation permits."(4)

FOIA requires executive branch agencies to publish their final opinions, statements of policy, and administrative staff materials.(5) Other records require a written request(6) from the public, which must conform to rules published by the agency in the Federal Register.(7) FOIA includes nine categories of information that are exempt from mandatory disclosure,(8) although with respect to eight of the exemptions, agencies still retain the discretionary power to disclose the information.(9) The exemptions are substantial.(10)

Under FOIA, any requester seeking information not included in the category of final opinions, statements of policy, or administrative staff manuals, must submit a written request to the agency holding the information.(11) The request must reasonably describe the desired records, and must be in conformity with the agency's published rules regarding such requests.(12) There may also be applicable fees, usually "reasonable standard charges," for agency expenses such as searching, reviewing, and copying the requested material.(13)

Agencies have ten business days to decide whether to disclose the information, but the time limit may be extended another ten days if the agency can demonstrate "unusual circumstances" in its attempt to fulfill the request.(14) "Unusual circumstances" can include the need to search for and retrieve records outside the agency's immediate control, e.g., in a field office;(15) the need to search, collect, and examine a large volume of records in order to complete the request;(16) or the need to consult with other agencies which may have an interest in the requested material. …