Chapter 9 The Freedom of Information Act in an Electronic Age

Chapter 9

The Freedom of Information Actin an Electronic Age

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JimPhoto credit: Mark MangoId, Bureau of the Census

Mainframe area, 1986, Bureau of the Census

CONTENTS

PageSummary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .207Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...................209Applicability of FOIA to Electronic Media. . .........................210

Computerized Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........210Other Media... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...............211

Defining the Limits of Searching Under FOIA . ......................213Traditional Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........213In the Computer Context: The Distinction Between Searching and

Progr amming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215Determining the Format of Information Delivered . . . . ...............221 -

Expanding the Legal Frontiers: Public Access to Software andOnline Databases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............222

Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .......222Online Databases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...............223

Fee Assessment and Fee Waivers: Charged Issues in an Age ofElectronic Information . . . . . . . . . . . . . . . . . . . . . ...................225

New Technologies and the Need for Amending FOIL . . . . . . . . . . . . ......226Electronic Information Technologies Are Obscuring the Boundary

Between Record and Nonrecord Material . ........................228Computers Are Facilitating Faster and More Complex Searches,

Thereby Encouraging a Broader Definition of a“Reasonable" Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........,229

Electronic FOIA Requests Can Be Incompatible With the WaysAgencies Collect and Organize Information . ......................230

Computer Searching Raises New Staffing and Budgetary Problems,as Well as Opportunities for Federal Agencies . . . . . . . . . . . . . . . . . . . .232

Federal Agencies Are Using Information Products Whose Statusis Unclear Under FOIA. . . . . . . . . . . . . . . . . . . . . . ..................233

Paper Printouts of Electronic Information May Not SatisfyPublic Access Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .........234

Computers Are Prompting New Discussion About the BasicPurposes of FOIA . . . . . . . . . . . . . . . . . . . . . . . . . ...................236

Chapter 9

The Freedom of Information Actin an Electronic Age

SUMMARY

When the Freedom of Information Act (FOIA)was passed in 1966, Federal Government rec-ords were stored primarily in paper form; theact makes no mention of computer records.Since 1966, the installation and use of com-puter systems by Federal agencies has pro-ceeded at a dramatic pace. Agency regulationsand judicial interpretations have generally sup-ported the treatment of computer tapes andother non-paper media (such as motion pic-tures, video, and audiotapes) as agency recordsunder FOIA. However, significant unresolvedissues warrant congressional attention.

For example, the case law as applied to pa-per information establishes that FOIA doesnot require agencies to create new records infulfilling requests. When additional program-ming is required to extract information fromcomputer systems, agencies and courts havesometimes held that such programming wouldbe analogous to record creation, and thereforewould not be a required part of the FOIA“search’ process. In the electronic age, how-ever, some degree of reprogramming or pro-gram modification may be essential to obtainaccess to electronic information.

Another gray area involves defining a “rea-sonable effort on the part of the governmentin searching for records responsive to a FOIArequest. In the computer context, the program-ming/no programming distinction has begunto detach decisions about “reasonableness”from considerations of effort. This is incongru-ous with tradition, as significant expendituresof effort continue to be involved in manualFOIA searches. Retrieval of paper documentsmay involve extensive tracking, communica-tion with various bureaus, consolidation of dis-parate files, and substantial hand deletions ofexempted materials. As computer capabilitiesfor searching, segregating, and consolidating

of data become increasingly efficient and cost-effective, computer searches could be broad-ened and public access enhanced. Agenciesmay need to focus on designing new ways torespond more readily to FOIA requests forcomputer records.

Another issue is whether and under whatconditions the advantages of electronic for-mats are such that providing electronic accessshould be guaranteed. Although the case lawand the FOIA fee guidelines have establishedthat computer-stored information is subjectto FOIA, requesters are not guaranteed accessto the information in formats other thanpaper. If large quantities of data could be moreeffectively utilized with the flexibility offeredby magnetic tapes, disks, or online retrieval,access to these electronic media may be im-portant.

In several FOIA cases, the courts have ex-pressed a need for Congress to clarify the grayareas left open by the statute in its applica-tion to electronic information. In developingand considering possible amendments toFOIA, it is important to understand the typesand nature of emerging computer-related prob-lems. It is also important to consider new de-velopments in computer and database technol-ogy that could alleviate some of these problemsin the future. A synopsis of the issues is pre-sented below:

Electronic information technologies are ob-scuring the boundary between record andnonrecord material. As electronic data-bases become more sophisticated, they re-semble information “pools” rather thandiscrete records. For example, relationaldatabase technology allows data elementsfrom different pathways or “fields” to beconnected to one another in nonlinear com-

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binations. The parallels to paper recordsare becoming more remote.

● Computers are facilitating faster and morecomplex searches, thereby encouraging abroader definition of a “reasonable” search.Given computer capabilities for expeditedsearching, segregating, and consolidatingof data, the definition of a “reasonable”search may need to be broadened.

● Electronic FOIA requests can be incompat-ible with the ways agencies collect andorganize information. Although this prob-lem also applies to FOIA requests for pa-per documents, computerized informationmanagement systems are aggravating theissue as they are relatively inflexible, withlimited capacity to respond to inquiriesin an ad hoc fashion. Evolving technol-ogies such as relational databases andhypertext could provide some solutionsin the future.

● Computer searching raises new staffing andbudgetary problems, as well as opportuni-ties for Federal agencies. Most agencieshave no computer programmers assignedto FOIA implementation. Requests forcomputerized records are generally givento personnel hired to operate internal in-formation management systems. Agencyuse of electronic technologies that wouldhelp administrative staff retrieve com-puterized information could ultimately en-hance public access to computer records.These technologies include preprogram-med utility software, front-end systemswith natural query languages, expert sys-tems, and optical disks.

● Federal agencies are using informationproducts whose status is unclear underFOIA. The status of computer programs(including computerized indexes, codes,and directories) is unclear, as is that of in-tegrated software and database packages.Electronic mail, quickly becoming a ma-jor mode of interdepartmental communi-cation, presents additional questions forFOIA.

● Paper printouts of electronic information

may not satisfy public access needs. Al-though the case law has established thatcomputerized information is subject toFOIA, agencies are not required to deliverthe information in machine-readable form.The option of encouraging or requiringagencies to provide alternative electronicformats– such as magnetic tape, floppydisk, optical disk, and online access—warrants consideration.

In resolving these issues, Congress may needto reconsider the purposes and goals of FOIA.If new procedures need to be instituted for anelectronic FOIA, the policies behind the pro-cedures should be evaluated and clarified. Com-puter records today bear few similarities to thepaper records of 1966. New database technol-ogies have begun to raise questions aboutwhether computer-stored information can evenbe conceptualized as discrete records.

For the 1990s and beyond, Congress mayneed to decide whether the FOIA should con-tinue to be viewed as an “access to records”statute, or whether it should be perceived morebroadly, as an “access to information” stat-ute. This is not to suggest that public accessto computer-stored government informationshould be unlimited; access must be balancedagainst economic and personnel constraints ofFederal agencies. However, due to the explo-sive growth in electronic information storage,processing, and transmission by the FederalGovernment, traditional views about recordsand searches may need to be modified to en-sure even basic access to computerized publicinformation.

The case law in many areas is too limited,conflicting, or vague to give consistent direc-tion to agencies and courts. Even in those areaswhere the case law is clear, variation in agencypractice suggests the need for greater statu-tory specificity. If Congress wishes to main-tain the integrity of FOIA in an electronic envi-ronment, the goals of the statute need to bereassessed and statutory amendment pursued.

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INTRODUCTION

The passage of the Freedom of InformationAct (FOIA)l in 1966 eliminated the ambigu-ous public information provisions of theAdministrative Procedures Act,2 and shiftedthe burden of proof from the public to Feder-al agencies with respect to the withholding ofFederal information from public view. The actnot only created a “clear right” of access togovernment information for the press and pub-lic, but also made that right enforceable.3 Thepurpose of the act was to establish a “generalphilosophy of full agency disclosure unless in-formation is exempt under delineated language,and to provide a court procedure by whichcitizens and the press may obtain informationwrongly withheld.”4 In signing the bill intolaw, President Johnson articulated the spiritbehind the legislation: “I signed this measurewith a deep sense of pride that the UnitedStates is an open society in which the people’sright to know is cherished and guarded."5

In the years following the passage of FOIA,there has been substantial growth in FederalGovernment use of electronic information sys-tems. Estimates indicate that, when FOIA waspassed in 1966, about 3,000 mainframe com-puters had been installed by Federal agencies;microcomputers were not yet in use.6 Recentreports indicate that, by 1986, approximately25,000 mainframes and over 125,000 micro-computers were in place, representing a dra-

1 5 U.S.C. sec. 552.2 60 Stat. 238 (1946); 5 U.S.C. sec. 1002 (1964).3 Harold L. Cross, quoted in the FOIA Source Book, U.S.

Congress, Senate Committee on the Judiciary, Subcommitteeon Administrative Practice and Procedure, 93rd Cong., 2d. sess.,1974.

4 U.S. Congress, Senate Committee on the Judiciary, Sub-committee on Administrative Practice and Procedure, Freedomof Information, Hearings on S. 1663, 88th Cong., 1st sess., 1964.

“U.S. Senate, FOIA Source Book, op. cit., 1974.6 Martha Mulford Gray, U.S. Department of Commerce, Na-

tional Bureau of Standards, Institute for Computer Sciencesand Technology, Computers in the Federal Government: A Com-pilation of Statistics-J978, N.B.S. Special Publication 500-46(April 1979).

matic increase over a 20-year period.7 The useof electronic mail and other electronic infor-mation systems has also proliferated. For ex-ample, according to a 1986 Office of Technol-ogy Assessment survey, 97 of 134 Federalagencies and agency components respondingreported the use of electronic mail.8 The re-sults of the 1987 GAO survey summarized inchapter 2 indicate significant and growing Fed-eral agency use of electronic technologies andformats.

When a “paper statute” is applied in an eraof electronic information, its original idealsmay become more difficult to carry out. Draw-ing analogies in the courts between paper doc-uments and electronic information is often dif-ficult. Evolving problems in interpreting FOIAcould mean that new electronic technologiesmay serve as barriers to, rather than facilita-tors of, information disclosure under the act.

This chapter draws upon the existing bodyof FOIA case law addressing electronic infor-mation, and presents those FOIA cases involv-ing traditional paper records that have servedas precedents for decisions involving computerrecords. Inmost instances, cases are presentedchronologically, to provide an evolutionary per-spective on the lines of reasoning relevant toissues involving computerized records. Othersources of information that may help clarifyongoing debates, such as legislative historyand agency practice, are included.

Finally, the chapter provides an analysis oftrends in computer and database technologythat raise additional questions about the ap-plicability of traditional interpretations ofFOIA to current Federal information practices.

7 U. S. General Services Administration, Information Re-sources Management Service, Managing End User Computing

in the Federal Government, No. 2, September 1986.8 U.S. Congress, Office of Technology Assessment, Federal

Government Information Technology: Management, Security.Congressional Oversight, OTA-CIT-297 (Washington, DC: U.S.Government Printing Office, February 1986).

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APPLICABILITY OF FOIA TO ELECTRONIC MEDIA

Although the term “records” is usedthroughout the text of FOIA,9 it is not de-fined. Absent statutory reference, applicationof FOIA to computer tapes and other nonpapermedia is determined by agency practice or ona case-by-case basis in the courts. To date, bothagency practice and the case law generally sup-port the treatment of computerized informa-tion as “records” under FOIA, although agen-cies are not necessarily required to provide theinformation in machine-readable form. In cer-tain commonly-occurring cases, the status ofcomputerized information still remains prob-lematic. For example, in instances where com-puter records require insertion of codes or someform of additional programming to be retrievedfrom computer systems, agencies and courtshave sometimes designated these efforts to besupplemental to the required FOIA “search”process.

According to the following decisions, theterm “records,” at least in principle, shouldbe applied to computerized information andother nonpaper media, including motion pic-tures, audio recordings, and videotapes.

Computerized Information

The history of discussion of computerizedFOIA records by Federal courts began in 1979,in the U.S. Court of Appeals for the Ninth Cir-cuit. In Long v. Internal Revenue Service, 10

the court vacated and remanded a districtcourt decision that had denied a request forelectronic information compiled by the IRS inits “taxpayer compliance measurement pro-gram. ” Speaking for the majority, JudgeKennedy stated:

. . . we dispose at the outset of any contentionthat computer tapes are not generally withinthe FOIA. The district court apparently de-termines that the term “records,” as used inthe Act, does not include computer tapes. Thisconclusion, however, is quite at odds with thepurpose and history of the statute.

‘5 U.S.C. sec. 552.‘0596 F.2d 362 (9th Cir. 1979).

Kennedy relied upon the Senate Report accom-panying the 1974 amendments to FOIA forits consideration of special problems of com-puter records in the context of search and copy-ing fees.11 In addition, he cited the TreasuryDepartment’s FOIA regulations which “makeexplicit provision for disclosure of ‘recordsmaintained in computerized form’,”12 and a1975 opinion by the U.S. District Court for theNorthern District of California that had af-firmed the accessibility of motion pictures un-der FOIA.13

Judge Kennedy concluded: “In view of thecommon, widespread use of computers by gov-ernment agencies for information storage andprocessing, any interpretation of the FOIAwhich limits its application to conventionalwritten documents contradicts the ‘generalphilosophy of full agency disclosure’ whichCongress intended to establish.14 We con-clude that FOIA applies to computer tapes tothe same extent it applies to any other doc-uments." 15

The United States Supreme Court addressedthe issue of computerized records in 1980. InForsham v. Harris,16 the Court referred tothe Records Disposal Act” to arrive at a def-inition of agency records under FOIA. Indelivering the opinion of the Court, JusticeRehnquist cited the Attorney General’s 1976Memorandum on the FOIA for its conclusionthat Congress intended the Records Act defi-nition to apply to FOIA:

. . . although Congress has supplied no defini-tion of agency records in the FOIA, it has for-mulated a definition in other Acts. The RecordsDisposal Act, in effect at the time Congressenacted the FOIA, provided a threshhold re-quirement for agency records: “records in-

llS. Rep. No. 854, 93rd Cong. 2d sess. 12 (1974), cert. denied,446 U.S. 917 (1980).

1’31 C.F.R. ssl.5(f) & 1.6(g) (3)(ii)(1977).13Save the Dolphins v. U.S. Department of Commerce, 404

F. !%qq). 407, 410-411 (N.D. Cal. 1975).“S. Rep. No. 813, 89th Cong. 1st sess. 3 (1965).‘3596 F.2d 362, 365 (9th Cir. 1979).16445 us. 16g, 186 (1980).‘T44 U.S.C. sec. 3301.

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eluded all books, papers, maps, photographs,machine readable materials, or other documen-tary material, regardless of physical form orcharacteristics, made or received by an agencyof the United States Government under Fed-eral law or in connection with the transactionof public business . . . ." (emphasis added)18

A 1982 decision by the U.S. Court of Appealsfor the District of Columbia reaffirmed the ap-plicability of FOIA to computerized records.Yeager v. Drug Enforcement Administra-tion,19 concerned an appeal to the Drug En-forcement Administration (DEA) for the re-lease of computerized information and the useof computer-facilitated “disclosure avoidancetechniques” to conceal exempted private in-formation. Though the appellant request for“compacting” or concealing personal informa-tion was denied, the court acknowledged par-allels between manual and computer storage:“Although it is clear that Congress was awareof problems that could arise in the applicationof the FOIA to computer-stored records, theAct itself makes no distinction between recordsmaintained in manual and computer storagesystems."20 The court concluded that:

It is thus clear that computer-stored records,whether stored in the central processing unit,on magnetic tape or in some other form, arestill “records” for the purposes of the FOIA.Although accessing information from com-puters may involve a somewhat different proc-ess than locating and retrieving manually-stored records, these differences may not beused to circumvent the full disclosure policiesof the FOIA.21

Other Media

A small, yet important, body of case law hasestablished that various other media consti-tute records under FOIA. These cases havebeen cited in several decisions concerning com-puter generated materials.

‘“445 U.S. 169, 186 (1980).19678 F. 2d. 315 (D. C. Cir. 1982~.“’Ibid.21 Ibid.

Motion Pictures

In Save the Dolphins v. U.S. Departmentof Commerce,22 the U.S. District Court forthe Northern District of California affirmedthat motion pictures constitute records sub-ject to the disclosure requirements of FOIA.The case concerned a nonprofit corporationthat sought access to a National Marine Fish-eries Service film documenting the incidentalkilling of dolphins in the nets of commercialtuna fishing boats. In attempting to determinethe status of motion pictures under FOIA, thecourt admitted to a lack of precedent in thearea: “The first question is whether the filmsought is a ‘record’ within the meaning of theAct (FOIA). The term is not defined in the Act.Neither do existing judicial interpretations ap-pear helpful in regard to the precise questionshere presented.”23 The court was forced todraw on examples from agency practice, cit-ing both the “Disposal of Records” chapterof the Public Printing and Documents Act24

and the General Services Administration def-inition of agency records, which includes “allbooks, papers, maps, photographs, or otherdocumentary materials, regardless of physi-cal form or characteristics . . . ."25 At the timeof the case, the Department of Commerce hadnot yet defined records in its regulations per-taining to FOIA.

The court’s decision in Save the Dolphinsreflected an interest in broad policy goals overnarrow “records” definitions:

The object of the Freedom of InformationAct is to make available to the public “infor-mation” in the possession of government agen-cies. The term “records” in common parlanceincludes various means of storing informationfor future reference. There does not appear tobe any good reason for limiting “records” asused in the Act to written documents. The mo-tion picture film in question was made in or-der to store the information it now contains;it therefore falls within the definition of“records” in 5 U.S. C. § 552.26

22404 F. &lpp. 407 (N.D. Cal. 1975).‘iIbid.“44 U.S.C. sec. 3301.2’141 C.F. R. sec. 105-60.104(a).26 404 F. Supp. 407 (N.D. Cal. 1975).

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The important conceptual distinction be-tween whether FOIA applies to “records” nar-rowly defined or to ‘information’ broadly con-strued recurs throughout the FOIA debate incases involving computer-generated materials.

Audio Recordings

A 1976 decision by the U.S. District Courtfor the Southern District of New York, MobilOil Corp. v. Federal Trade Commission27 hasbeen cited for its implied treatment of audiorecordings as FOIA records. The defendanthad requested copies of communications be-tween several Federal and State agencies per-taining to aspects of petroleum use. Althoughthe case dealt primarily with the applicabilityof pertinent FOIA exemptions, the court speci-fied that “all identifiable records must be madeavailable to the public on demand unless re-quested documents fall within one of the Act’snine exemptions. ” Mobil’s request encompassed“all communications including letters, reportsor memoranda, and notes, transcripts, or othermemorialization of oral communications. Dur-ing the proceedings, the FTC was ordered bythe court to search for any relevant tape record-ings and documents. Only after this search wascompleted did the court attempt to establishwhether Mobil’s request fell under FOIA ex-emptions.

Videotape

Murphy v. F. B. I.28, a 1982 decision by theU.S. District Court for the District of Colum-bia, concerned a New York Congressman’s re-quest for ABSCAM videotapes documentingalleged meetings between the Congressman

‘T406 F. !+lpp. 305 (S. D.N.Y. 1976).‘“490 F. Supp. 1138 (D.C. Cir. 1980).

and undercover agents. Although the decisionconcerned whether or not the tapes constitutedinvestigatory records, subject to the law en-forcement exemption of FOIA, the court heldthat videotapes could be obtained at the con-clusion of the law enforcement proceedings:“[V]ideotapes which were exempt from disclo-sure prior to indictment can be obtained byaccused after indictment.”29

Although Albright v. United States30 is es-sentially a Privacy Act case, the judgment bythe U.S. Court of Appeals for the District ofColumbia was based on FOIA’s inclusion ofvideotapes as public records. The case con-cerned the legality of the filming and reten-tion of a potentially damaging videotape bythe Department of Health, Education, andWelfare (HE W). The videotape documented aconfrontation between HEW employees andtheir supervisors. The plaintiffs maintainedthat storing videotapes of displeased employ-ees exercising their First Amendment rightsconstituted an unfair labor practice and a vio-lation of the Privacy Act. A copy of the video-tape had been provided by the agency to theemployees pursuant to a FOIA request filed3 years earlier. The court determined that:” Wedo not think the fact that the means of stor-ing information in this case was a videotapemakes it any less a record for the purposes ofthe Act. After citing the decision in Save theDolphins 31 concerning motion picture film,the court maintained that: “As long as the tapecontains a means of identifying an individualby picture or voice, it falls within the defini-tion of a ‘record’ under the Privacy Act.”32

29 Ibid.30631 F.2d 915 (D.C. Cir. 1980).31

404 F. Supp. 407, 410-411 (N. D. Cal. 1975).“631 F.2d 915, 920 (D.C. Cir. 1980).

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DEFINING THE LIMITS OF SEARCHING UNDER FOIA

Traditional Interpretations

Although it has been established that FOIAapplies to records on computer tapes that arein government possession at the time of a re-quest, the status of information stored in com-puters is undercurrent dispute. The argumentsturn on the definition of what activities shouldconstitute searching under FOIA, and whatactivities extend beyond the realm of search-ing to records creation. The case law, as ap-plied to paper information, establishes that theFOIA does not require agencies to create newrecords in fulfilling requests. A history of rele-vant Supreme Court decisions is presented be-low. The difficulties involved in making anal-ogies between paper and computer-generatedmaterials will be discussed in a subsequentsection.

National Labor Relations Board v. SearsRoebuck, 33 a 1975 decision by the U.S. Su-preme Court, addressed the Labor Board’s at-tempted rejection of a request by Sears forcer-tain Advice and Appeals Memoranda used inlitigation proceedings. The Board argued, first,that the memoranda should be exempt fromdisclosure under FOIA Exemption 7 dealingwith law enforcement proceedings. Second, theBoard argued that the requirement to gener-ate explanatory material describing “circum-stances of the case” was beyond the reach ofFOIA. Although the Supreme Court remandedthe first objection, it held that describing the“circumstances of the case” constituted thegeneration of new materials, and was thus un-necessary for FOIA disclosure purposes:

The Act does not compel agencies to writeopinions in cases in which they would nototherwise be required to do so. It only requiresdisclosure of certain documents which the lawrequires the agency to prepare or which theagency has decided for its own reasons to cre-ate. Thus, insofar as the order of the court re-quires the agency to create explanatory ma-terial. it is baseless.34

In Forsham v. Harris,35 the Supreme Courtaddressed the issue of whether materials gen-erated by government contractors and remain-ing in the possession of contractors could beconsidered government records and subject toFOIA request. As in National Labor RelationsBoard, this case turned on whether or not theFOIA request would involve the creation ofnew records. Speaking for the majority, Jus-tice Rehnquist equated records creation withthe obtaining of records not previously heldby the agency:

. . . Congress contemplated that an agencymust first either create or obtain a record asa prerequisite to its becoming an ‘agency rec-ord” within the meaning of the FOIA. . . .[I]nthis context the FOIA applies to records whichhave been in fact obtained, and not to recordswhich merely could have been obtained.36

Justice Brennan, dissenting, denied thatgovernment possession was a requirement fordetermining what constituted a record: “Noth-ing whatever in the legislative history suggeststhat Congress meant to allow agencies to in-sulate important steps in decisionmaking onthe basis of the technical niceties of who ‘owns’crucial documents. ” In explaining his dissent,Brennan argued that a “close connection’ be-tween the government and the record wassufficient:

Where the nexus between the agency andthe requested information is close, and wherethe importance of the information to public un-derstanding of the decisions or the operationof the agency is great, I believe the congres-sional purposes require us to hold that the in-formation sought is an “agency record” withinthe meaning of FOIA.S7

Brennan added that if contractor informationwas not subject to FOIA, the institution ofgovernment contracting could ultimatelyshield public access to information:

‘)421 U.S. 132 (1975).“421 U.S. 132 at 161-162 (1975).

“’445 U.S. 169 (1980).‘0445 U.S. 169 at 186 (1980).]7445 U.S. 169 (1980).

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Just as the explosion of Federal agencies,which are not directly responsible to the elec-torate, worked to hide the workings of the Fed-eral Government from voters before enact-ment of FOIA, the understandable tendencyof agencies to rely on nongovernmental gran-tees to perform myriad projects distances theelectorate from important information by onemore step. If the records of such organizations,when drawn directly into the regulatory proc-ess, are immune from public inspection, thengovernment by secrecy must surely return.38

In Kissinger v. Reporters Committee forFreedom of the Press39, the Supreme Courtonce again addressed the issue of whetherrecords outside of government hands at thetime of a request were subject to FOIA dis-closure. The plaintiff had questioned a jour-nalist’s access to transcripts of politically-significant telephone conversations. Originallyin government hands, the transcripts had sub-sequently been donated to a private libraryprior to the request. In delivering the opinionof the Court, Justice Rehnquist emphasizedthe distinction between existing records andrecord production: “When an agency has dem-onstrated that it has not ‘withheld’ requestedrecords in violation of the standards estab-lished by Congress, the Federal courts haveno authority to order the production of suchrecords under the FOIA.” Rehnquist cited thelegislative history to strengthen his argument:

Several sources suggest directly that agencypossession or control is prerequisite to trig-gering any duties under the FOIA. In thedebates, the Act was described as ensuring‘‘access to the information possessed by (gov-ernment) servants. ” (emphasis added)’”

He also referred to FOIA guidelines issued bythe Attorney General in 1966 for the use ofall Federal departments and agencies in com-plying with the new statute:

The guidelines state that FOIA “refers, ofcourse, only to records in being in the posses-

38 Ibid.39445 U.S. 136 (1980).

40 112 Cong. Rec. 13652 (1966), reprinted in FOIA SourceBook, S. DOC. No. 93-82, p. 69 (1974).

sion or control of an agency. , .” [It] imposesno obligation to compile or procure a recordin response to a request. (emphasis added)41

Justice Brennan, concurring and dissentingin part, determined that FOIA contained animplicit mandate for the government to retainthose records it had created, but did not con-tradict Rehnquist stance on record creation:

FOIA does not compel agencies to writeopinions where not otherwise required. FOIAneither compels the Government to conductresearch on behalf of private citizens, norduplicates administrative law requirements ofadequate explanation for Government action.. . . What the Act does mandate is exposure

of the research and explanations which thegovernment has chosen to memorialize; anagency’s obligation to retain records, there-fore, may be inferred from FOIA without con-tradicting the principle that agencies need notcreate records. (emphasis added)42

Although it is clear that agencies are not re-quired to create new records in response toFOIA requests, determining the point at whichsearching becomes records creation can be dif-ficult. Put another way, the definition of whatconstitutes a “record” may depend upon theviewpoints of agencies or courts on the pur-poses and goals of FOIA. These views will in-fluence whether or not records are perceivedto be tangible entities, or whether records aredefined more broadly, in terms of the informa-tion they may provide. The debate about thephysical nature of records pervades the FOIAcase law addressing paper records, and ishighly significant for cases involving computerrecords. Whether FOIA applies to some no-tion of a tangible ‘agency record’ or, instead,to “information in the abstract becomes a cru-cial distinction in the case of computer records,which may not exist in tangible form unlessmodified in some way.

In the Supreme Court’s decision in For-sham43, Justice Rehnquist embraced a nar-row definition of records, stating outright that

“Ibid.“445 U.S. 136 at 152 (1980).“445 U.S. 169 (1980).

“The FOIA deals with ‘agency records’, notinformation in the abstract. ’44 In his dissent,Justice Brennan drew upon the legislative his-tory to argue for a broader interpretation of‘‘records’ to account for the original purposesof the Act:

The Court concedes, of course, that the stat-ute itself does not define “agency records. ”Therefore, out task is to construe the statu-tory language consistently with the purposesof FOIA , . . FOIA is a broad enactmentmeant to open the processes of governmentto public inspection. It reflects a finding thatif left to themselves agencies would operatein near secrecy. FOIA was, therefore, enactedto provide access to information to enable “aninformed electorate,” so ‘‘vital to the properoperation of a democracy, to govern itself .45

In 1982, the Supreme Court in F.B.I. v.Abramson, 46 used a broad definition of rec-ords to limit access to exempted information.The Court addressed the issue of whether in-formation contained in records compiled forlaw enforcement purposes (and thus subjectto Exemption 7 of the FOIA) would lose itsexempt status when incorporated into recordscompiled for purposes other than law enforce-ment. The U.S. Court of Appeals for the Dis-trict of Columbia Circuit had used a physicaldefinition of records to conclude that the ex-empt status would be lost when records wererecompiled into a new physical form. Accord-ing to the Supreme Court, because recompila-tion of the physical form of the documentswould not alter the basic nature of the infor-mation, the exempt status should remain. TheCourt’s decision was based on the “equiva-lence” of the information contained in the twosets of records:

We are of the view, however, that the statu-tory language is reasonably construable toprotect that part of an otherwise non-exemptcompilation which essentially reproduces andis substantially the equivalent of all or partof an earlier record made for law enforcementuses. (emphasis added)47

44 Ibid.‘“S. Rep. No. 813, 89th Cong. 1st sess. 3 ( 1965).“’456 U.S. 615 ( 1982).47 Ibid.

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In dissenting, Justice Blackmun advocateda narrower definition of records: ‘‘I cannot es-cape the conclusion that the Court has simplysubstituted the word ‘information’ for the word‘records’ in Exemption 7 (C).” He citedForsham 48 to conclude that FOIA applied to“agency records, not information in the ab-stract.” Justice O’Connor, also dissenting, con-cluded that the Court was reaching beyondCongressional intent:

To reach its result, the Court assumes that,through inadvertence or inattention, Congress’pen slipped while amending Exemption 7 in1974, Proceeding on this basis, the Court help-fully undertakes to rewrite the Exemption,substituting for the statutory phrase ‘ ‘inves-tigatory records compiled for law enforcementpurposes” something like “records containinginvestigatory information originally gatheredfor law enforcement purposes. "49

In the Computer Context: TheDistinction Between Searching

and Programming

Can the distinctions between searching andrecord creation under FOIA be extended bysimple analogy to the computer context? It isclear that, in cases involving paper documents,the FOIA does not require agencies to createnew records on behalf of requesters. A fun-damental difference between computerizedrecords and hard copy records, however, is thatthe former may reside within computer sys-tems until they are specifically demanded.

Computerized government records may re-quire the application of codes or even addi-tional programming to be retrieved from hostsystems in systematic or comprehensible form.By extending analogies from cases involvingpaper records, the courts are creating distinc-tions between computer searching and com-puter programming, maintaining that pro-gramming is not required under FOIA, as itis analogous to record creation. As more in-formation becomes machine-readable, the line

48

445 U.S. 169 at 186 (1980).4 9456 U.S. 615 (1982).

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between record searching and record creationbecomes increasingly fine. Also, as Federalagency communication via electronic mail andother electronic vehicles intensifies, govern-ment records may have the potential to become“buried” within computer systems.

The intellectual debate that needs resolutionis as follows: in an electronic age, is creatinga program to retrieve a document part of thesearching process, analogous to a manualsearch, or should it be considered creation ofa new record (not required for governmentalpurposes), which, the case law has determined,is not required under FOIA? Press groups andvarious public interest and public data usergroups tend to hold the view that creating aprogram is analogous to the searching proc-ess, while agencies may respond that creatinga program is no different from creating a newdocument.

The arguments turn on how records are de-fined. If an agency maintains that FOIA per-tains only to “records in being, ” then any kindof manipulation used to extract data from asystem could technically serve as a rationaleto withhold information. If some degree ofmanipulation is required to make a computerrecord comprehensible or available to the pub-lic, then perhaps the “record in being” defini-tion should be avoided. On the other hand, insome cases, distinctions must be drawn be-tween making records available and analyzingor further manipulating data, as FOIA doesnot compel agencies to assume analytical re-search functions. Furthermore, FOIA appliesonly to records created for government pur-poses, and the manipulation of informationmay be perceived to be equivalent to the crea-tion of records that are not for government use.

Another gray area, which has become in-creasingly apparent in the context of onlineinformation, is the determination of what con-stitutes a “reasonable effort” on the part ofthe government in searching for records re-sponsive to a FOIA request. The legislativehistory of the FOIA indicates that a descrip-tion of a requested record is sufficient if it ena-bles “a professional agency employee familiar

with the subject area to locate the record witha reasonable amount of effort. “5° How can a‘‘reasonable effort be defined in an electronicage, when the capabilities for manipulating in-formation become increasingly efficient andcost effective? In the light of electronic devel-opments, the threshold of “reasonableness”warrants re-examination. The issue becomesapparent in the cases presented below, someof which involve requests for computersegregating and compacting of data. Accord-ing to the case law, when exemptions are in-volved, FOIA only requires agencies to dis-close that information which is “reasonablysegregable." The ability to delete personal andtrade data electronically could call for abroadening of the domain of requests that areconsidered reasonable. Congress and the courtsmay need to abandon some traditional views,and build an entirely new frame of referencefor electronic information.

Federal appellate and district courts havebegun to address the problems associated withdefining the appropriate nature and extent ofcomputer seaching under FOIA. In Long v.lRS,51 the U.S. Court of Appeals for the NinthCircuit vacated and remanded a district courtdecision that had determined that the processof deleting personal information from a recordin order to “sanitize” tax compliance informa-tion would involve the creation of a newrecord. The appeals court determined that thematerial requested was, in fact, “reasonablysegregable” from exempted information, and,therefore did not involve the creation of a newrecord: “We do not believe, however, that themere deletion of names, addresses, and socialsecurity numbers results in the agency’s cre-ating a whole new record."52

The Long court differentiated the facts ofthe case from N.L.R.B. v. Sears:53

Requiring an agency to write an opinion onrequest is far different, however, from requir-

~~H R. Rep. No, 876, 93rd Cong., 2d sess. 6 (1974), reprintedin 1974 U.S. Code Cong. & Ad. News 6271.

s15g6 F. 2d. 362 (9th Cir. 1979), cert. denied, 446 U.S. 917(1980).

‘zIbid.‘:’421 U.S. 132, 161-62 (1975).

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ing it to excise a name or social security num-ber from an existing record. . . . [T]he editingrequired here is not considered an unreasona-ble burden to place on an agency.54

The appeals court in Long disagreed with thedistrict court’s holding that deletion of iden-tifying information would be prohibitively ex-pensive; the IRS had estimated an editing costof $160,000. The court explored “. . . whetherthe cost and inconvenience to the agency at-tributable to the editing process can be thesole basis for determining that material is notreasonably segregable.” The court cited thelegislative history of the 1974 amendments toFOIA dealing with fees to argue that agenciesshould bear the costs of deletions. The legisla-tive history contains a statement indicatingthat “fees should not be used for the purposeof discouraging requests for information or asobstacles to disclosure of requested informa-tion. ‘-’-’ The amendments provided that agen-cies could only charge for costs of search andduplication. The court further cited a Depart-ment of the Treasury regulation that statedthat “under no circumstances will a fee becharged for . . . deleting exempt matter . . .”56

In Yeager v. Drug Enforcement Agency,”the D.C. Circuit Court came to a different con-clusion regarding the limits of reasonablenessin segregating disclosable data under FOIA.In this case, the requester had asked the DrugEnforcement Agency to “collapse” or “com-pact” data electronically. Data compaction or“disclosure avoidance techniques” are used toremove sensitive information from statisticalmaterials and involve the expression of specif-ic information in more general terms. Com-puters have facilitated these types of datamanipulations.

The Yeager court determined that agencieswere not required under FOIA to use disclo-sure avoidance techniques in fulfilling theirduties to release “reasonably segregable, ” non-

exempt portions of records. The test used todetermine the breadth of requestable functionswas whether the search was “functionally anal-ogous’ to a manual search. The Senate reporton the 1974 amendments, in the sole referenceto computer-stored records, maintained that,“in computerized form, the term ‘search’ wouldinclude services ‘functionally analogous’ tosearches for records maintained in conven-tional form.”58 The court held that: “al-though it is clear that Congress was aware ofproblems that could arise in the applicationof the FOIA to computerized records, the Actitself makes no distinction between recordsmaintained in manual and computer storagesystems. ” The judge cited holdings in NationalLabor Relations Board,59 Forsham, 60 andKissinger 61 on record creation, and concludedthat:

It is well settled that an agency is not re-quired by FOIA to create a document thatdoes not exist in order to satisfy a request. Arequester is entitled only to records that anagency has, in fact, chosen to create and re-tain. Thus, although an agency is entitled topossess a record, it need not obtain or regainpossession of a record in order to satisfy aFOIA request . . . Agencies are not, however,required to commit to paper information thatdoes not exist in some form as an agency “rec-ord. Thus, they need not write an opinion oradd explanatory material to a document.62

The Yeager court determined that new ca-pabilities of computers should not result in theexpansion of duties imposed on agencies: “TheFOIA does not contemplate imposing a greatersegregation duty upon agencies that chooseto store records in computer than upon agen-cies that employ manual retrieval systems. ”The court concluded that Congress did not re-quire any restructuring of the substantive con-tent of records, feasibility and full disclosurenot withstanding:

“’596 F. 2d 362 (9th Cir. 1979).““S. Rep. No. 1200, 93rd Cong. 2d. sess. ( 1974).-’”31 C.F. R. sec. 1.6{a)l 1 ) ( 1977).57678 F. 2d 315 (D.C. Cir. 1982).

‘“S. Rep. No. 854, 93rd Cong. 2d. sess. (1974).‘)’421 U.S. 132, at 161-162 (1975).‘0445 U.S. 169, at 186 (1980).“445 U.S. 136, at 152 (1980).‘)’678 F 2d at 315 (1982).

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The interpretation suggested by (petitioner)Yeager may be desirable in terms of full dis-closure policy and it may be feasible in termsof computer technology; these factors notwith-standing, however, we are not persuaded thatCongress intended any manipulation or re-structuring of the substantive content of a rec-ord when it commanded agencies to “delete”exempt information.63

Although Yeager rejects segregation dutiesin this case, it pays lip service to the potentialof increased disclosure offered by computers:

Our treatment of the use of disclosure-avoid-ance techniques should not be viewed as dis-approval of the use of such techniques by agen-cies. We hold only that the FOIA does notmandate their use in determining whether in-formation is “reasonably segregable.” TheFOIA does not prohibit an agency from releas-ing information that falls within any of thedelineated exemptions. It only provides theagency the option of withholding the docu-ments. . . . Agencies that store information incomputerized retrieval systems have moreflexibility in voluntarily releasing informationand should be encourage(d) . . . to process re-quests for computerized information even ifdoing so involves performing services whichthe agencies are not required to provide . . .(emphasis added) 64

That searches for computer records shouldinvolve activities which are “functionally anal-ogous” to manual searches is an important con-cept, one which continues to serve as a corner-stone of debates about the extent of computersearching appropriate to FOIA. The term hasbeen used to support as well as to deny re-quests for computer searches. However, defin-ing when a computer search is “functionallyanalogous” to a manual search may be a sub-jective enterprise; Congress may need to ex-amine the appropriateness of using tests whichare based on analogies to paper records to de-fine the limits of computer searches.

In a case recently settled in the U.S. Dis-trict Court for the District of Columbia, Pub-lic Citizen v. Occupational Safety and Health

Administration, 65a public interest group

challenged the comparison of computer pro-gramming to new record creation. The caseinvolved an attempt by Public Citizen to con-duct a survey of OSHA’s enforcement of pol-icies of employee notification about workplacehazards. Public Citizen first approached a re-gional office which claimed that a search of pa-per records would be unduly burdensome, andsuggested that the enforcement informationwas currently available on a company-by-company basis in OSHA’s computerized “In-tegrated Data Management System” in its Of-fice of Management Data Systems. When Pub-lic Citizen offered its list of companies to thatoffice, OSHA maintained that, although thecompanies were in its database, computerreprogramming would be required to satisfythe request. As new programming would con-stitute the creation of a new record, the requestdid not fall under FOIA, and Public Citizentherefore would not be entitled to a fee waiver.

Public Citizen’s lawsuit challenged this con-tention, claiming that the retrieval procedureswere analogous to searching, not record crea-tion. According to Public Citizen, OSHA’sassessment of the full costs of computer timewould terminate Public Citizen’s inquiry. Thepublic interest group also pointed out thatOSHA had supplied similar computer print-outs in the past to requesters free of charge.

Once the suit was initiated, OSHA claimedthat it had increased its computer capabilitiesto the extent that the appropriate technologywas available to conduct the search withoutadditional programming. The case was settledwhen the agency agreed to produce the infor-mation and grant a FOIA fee waiver to thepublic interest group.

Public Citizen illustrates a problem thatrecurs in legal questions involving new tech-nologies-a lack of technological literacyamong lawyers, judges and litigants. In thecase of FOIA, it may be difficult or impossi-ble for non-agency personnel to know whethertechnological explanations are being used

6]Ibid.“’lS. Rep. No. 854, 93rd Cong., 2d sess. 12 (1974). “Civil Action No. 86-07-05 (705 D.C. District Court).

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honestly or arbitrarily to circumvent informa-tion disclosure. This issue is connected to thatof determining costs for searches. If requesterscannot know what types of operations are gen-uinely required to fulfill requests, they havelittle way of knowing whether assessed costsare accurate.

In a recent decision by the U.S. DistrictCourt for the Eastern District of Pennsylvania,Clarke v. Treasury,66 the plaintiff soughtcompiled information from the bond recordsof certain “Flower Bond” holders. The courtdetermined here that anew computer programwould need to be created to extract the in-formation requested. The court drew uponForsham67 and Kissinger68 to hold that: “whilean agency maybe required to produce recordsthat do exist, it is not required to make them, ”and cited the Department of the Treasury’sregulation that provided that: “[t]here is norequirement that records be created or dataprocessed in a format other than that requiredfor governmental purposes in order to complywith a request for records."69

In a case decided by the U.S. District Courtfor the District of Columbia, Kele v. U.S. Pa-role Commission,70 the petitioner requestedstatistical information on convicted murderersreceiving early parole. The Commission main-tained that the information could not be re-trieved without new programming and deniedthe petitioner’s request. Though the petitioner,Kele, insisted that retrieval would involvenothing more than the punching of a few keyson a keyboard, the Department of Justice ar-gued on behalf of the Commission, holdingthat:

. . . to go beyond an agency’s own existing ca-pabilities to extract data in defining computer-ized ‘records’ would constitute a wholesaledeparture from both existing law and the pur-

“)Civil Action No. 84-1873 (P;.il. Pa. 1986).‘T445 U.S. 186 (1980).“’445 U.S. 136, 152 (1980).‘)s31 C.F. R. sec. 1.5(a) (1984).“)Civil Action No. 85-4058 {D.C. District Court, 1986).

poses of the FOIA, to say nothing of the prac-tical ramifications for the government.71

In denying Kele’s request, the court upheldthe Justice Department’s view that:

. . . to hold otherwise by requiring agencies towrite computer programs not needed for car-rying out agency functions in response toFOIA requests would transform the govern-ment into a giant computer research firm cap-tive to the whims of individual requesters ata great public expense.72

A recent decision by the Department ofEnergy’s Office of Hearings and Appeals(OHA) may help change the tenor of future de-bate.” The Energy Department determinedthat reprogramming of computers, in somecases, should be considered appropriate andnecessary to the FOIA search process.

The case concerned a request by the NationalSecurity Archive (NSA) for a listing of unclas-sified “limited access documents’ available toauthorized requesters from the DOE Officeof Scientific and Technical Information (OSTI).Library personnel at OSTI responded that thedata existed in a database, but that FOIA didnot require OSTI to compile the list, as pro-duction of a list from the database would con-stitute new programming.

The NSA appealed OSTI determination tothe DOE’s Office of Hearings and Appeals(OHA). In conferring with OSTI, OHA foundthat if a “profile’ of the requesting party wereentered into the computer, the list of reportsavailable to that party could be retrieved. OHAgranted NSA’s appeal” and directed OSTI tocontact the NSA to clarify the scope of its re-quest and to inform the NSA of the structureand contents of its database. According toDOE regulations, if the agency holds that arequest does not reasonably describe therecords sought, agency personnel are required

‘] Memorandum of Points and Authorities in support ofdefendant’s motion to dismiss, p. 18.

“Ibid., p. 19.; ‘Opinion of Record, Decision and Order, Office of Hearings

and Appeals, U.S. Dept. of Commerce, Case No. KFA-0158 (June1988).

“Decision and Order, Office of Hearings and Appeals, U.S.Dept. of Energy, Case No. KFA-0146 (Dec. 18, 1987).

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to confer with the requester in an effort to re-state the request in a manner that would fa-cilitate compliance.75 In addition, OSTI wasthen directed to search its database to providethe list of documents sought by the NSA. TheOHA stated in its decision that programmingcould be considered an appropriate part of asearch for FOIA records: “[T]he mere retrievalof information already existing in a database,even if a computer must be programmed to se-lect specified types of data, does not consti-tute creation of a new record.”76

Shortly thereafter, OSTI filed a Motion forClarification of OHA’s decision, maintainingthat OHA’s statement was overboard and in-consistent with FOIA requirements. In its re-sponse, OHA held that, contrary to OSTI’scontention, providing a list of documents de-rived from OSTI database would not consti-tute the creation of a new record. Accordingto OHA, agencies may need to manipulatetheir software to perform FOIA searches, evenif those searches are dissimilar from searchesnormally conducted by agencies for their ownpurposes:

We believe, however, that to the extent thatOSTI maintains records in a database and al-ready has software that is capable of search-ing the database, the FOIA requires OSTI touse that software to search the database forthe requested records. This is true even if thetype of search that must be performed is differ-ent from the type normally performed byOSTI. A search of this nature is not, in sub-stance, significantly different from a searchof a file cabinet for paper records that are re-sponsive to a request. If the FOIA requiredanything less it would allow agencies to con-ceal information from public scrutiny by plac-ing it in computerized form. This would be in-consistent with the FOIA policy of the fullestpossible disclosure.77

The OHA specified that there should be limi-tations upon the work that agencies must un-dertake under FOIA, as:

7’10 C.F.R. 1004.4 (C)(2).“Op. cit.7’Decision and Order, Office of Hearings and Appeals, U.S.

Dept. of Energy, Case No. KFA-0158 (May 26, 1988).

. . . the FOIA does not require agencies to an-swer questions, generate explanatory materi-al, compile statistical data, or provide anyother information that is not already con-tained in agency records . . . There is also nodoubt that agencies are not required to per-form calculations, manipulate data, or restruc-ture records in any way pursuant to a FOIArequest, since this would constitute the crea-tion of a new record.78

However, short of the above exceptions, theOHA held that many types of computerizedsearches should be considered analogous tothose performed by hand:

While the process may be different, manycomputer searches are in substance essentiallythe same as manual searches and involve com-parable methods and skills. For example, tosearch paper records a methodology must bedeveloped and the relevant files or file drawersmanually searched for the requested informa-tion. Similar methodologies must be developedand used when a computer is instructed to per-form the search. A computer search may beelectronic in nature, but it is not necessarilyany different in essence. It merely uses differ-ent tools—the computer and its software—toconduct the search.79

The OHA refuted the court’s holding inClarke v. Treasury,80 where the agency wasnot required to undertake programming to pro-vide a simple listing to the requester:

Under these circumstances, we do not be-lieve that this single district court opinion canbe interpreted to mean that agencies can neverbe required to perform any reprogramming inorder to comply with a FOIA request.81

The OHA did not attempt to define the ex-tent to which agencies must reprogram theircomputers in order to respond to FOIA re-quests, and maintained that it will addressthis issue in the future on a case-by-casebasis:82

The more difficult issue is the extent towhich agencies must search a database in ord-

7MIbid.‘qIbid.‘°Civil Action No. 84-1873 (E. D. Pa. 1986).‘]U.S. Dept. of Energy, Case No. KFA-0158, op. cit.82Ibid.

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er to select those records within the databasethat are requested pursuant to the FOIA. Onthis issue, no precise answer can be formulat-ed in the abstract. As noted above, this is anunsettled area of the law and there are few ju-dicial determinations to guide us. Furthermore,an agency’s obligation to search its databasemay depend upon the circumstances presented,including how the database is structured, thecapabilities of the agency’s computer systemand personnel, and the specific information re-quested.”{ emphasis added)”

Determining the Format ofInformation Delivered

Although both the case law and the FOIAfee guidelines have established that computerstored information is subject to FOIA, re-questers are not guaranteed access to this in-formation in formats other than paper. Accord-ing to a limited body of case law, once thedetermination has been made that a FOIA re-quest for computer-stored information is rea-sonable, an agency is not legally bound to of-fer the information in any specified format. Ifa requester does not specify format, the agencywill generally provide the information in theleast expensive form possible, or in the formmost compatible with the agency’s current in-formation delivery modes. If the requester doesspecify format, agencies may accommodate therequest, if costs are not unreasonable. Other-wise, the requester will be denied the format,or offered the option of obtaining the specifiedformat at a higher price.

A 1984 decision by the U.S. District Courtfor the District of Columbia, Dismukes v. De-partment of the Interior,84 addressed the is-sue of the equivalency of alternative formats.The plaintiff requested a computer tape list-ing of participants in the Bureau of LandManagement’s California oil and gas leasinglotteries, in “nine track, 1,600 b.p.i., DOS orunlabeled, IBM compatible formats, with filedumps and file layouts. ” The Department ofthe Interior responded that the informationwas only available on microfiche. The court

held that the agency had no obligation underlaw to satisfy the request on computer tape,and could determine the form in which it wouldmake its records available, providing it had areasonable argument for not presenting the in-formation in the format requested:

An agency has no obligation under the FOIAto accommodate a particular requester’s pref-erence regarding the format of requested in-formation and, according to FOIA, the agencyneed only provide responsive, nonexempt in-formation in a “reasonably accessible form."85

Although, in this case, computer tape offeredthe least expensive means of access, the agencysystem was configured to deliver this type ofinformation on microfiche.

The issue in Dismukes was whether the tapeand microfiche were equivalent media foragency records, such that release of the latterwould satisfy a request for the former. To sup-port the decision, the court used the rationalethat FOIA applied to information in the ab-stract rather than to tangible agency records.While this is an argument that recurs through-out FOIA case law, it was used here to limitthe specificity of formats, rather than to ar-gue for fuller disclosure.

The Dismukes court acknowledged the Su-preme Court holding in FBI v. Abramson, 86

also citing a 1982 case, Center for NationalSecurity Studies v. CIA,87 where the court re-jected the plaintiff “literal, physical approachto the definition of agency record. ” The courtdetermined that, if the plaintiff were tostrengthen his case, he would need to provethat the decision to release the information onmicrofiche would diminish his access to the in-formation he sought. The court did allow that,in some cases, formats would not be equiva-lent, as in the case of audiotapes, where writ-ten transcripts would not be able to providethe “nuances of inflection which give wordsadded meaning beyond that reproducible onpaper.” In the case presented, however, thecourt determined that: “neither plaintiff norany document in the record suggests that the

‘ ‘Ibid‘%0,3 F. Supp. 760 (D.D.C. 1984).

‘ ‘Ibid.“’456 U.S. at 615 (1982).‘;577 F. Supp. 584, 589-590 (D.C. District Court, 1984).

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quantum of information contained in the mi-crofiche varies in any way from that recordedon the computer tape."88

NASA has recently appealed a decision bythe U.S. District Court for the District of Co-lumbia, in which information contained in au-diotapes was determined to convey nuancesthat made them more valuable than the writ-ten transcripts. New York Times v. NASA 89

concerns a New York Times reporter’s FOIArequest to obtain cockpit voice recordings fromthe space shuttle, Challenger, along with tran-

“’603 F. Supp. 760 (D.C. District Court, 1984).“yCivil Action No. 86-02860 (D.C. District Court, 1986),

scripts and digital information. The trial judgeordered disclosure of the tapes. NASA ap-pealed on the grounds that the tapes con-stituted personal proprietary information (sim-ilar to personnel and medical files), and thatrelease of the tapes could create undue suffer-ing for the families of the astronauts. Thereporter claimed that, unlike transcripts, thetape recordings conveyed voice inflections andreproduced shuttle background noises thatcould serve as indicators of technical problems,possibly enhancing future efforts to improvesafety. A three-person Circuit Court panel re-cently affirmed the lower court’s decision, andthe case awaits a potential appeal by NASAto the full court.

EXPANDING THE LEGAL FRONTIERS: PUBLIC ACCESS TOSOFTWARE AND ONLINE DATABASES

Software

The status of computer software (includingindexes, directories, and operating programsand codes) under FOIA is uncertain, and fewagencies mention software in their regulations.Agency practice is inconsistent, varying withthe function of the software, its commercialpotential, and general agency attitudes towardopenness. No legal cases clearly address theissue of what classes of software should con-stitute agency records. Some agencies havesuggested that software is a tool used tomanipulate information rather than a record,while others relinquish software products whenrequests are perceived to be reasonable. Thisissue is problematic as some sort of code maybe necessary for even the most basic functions,such as producing a printed document fromthe magnetic media on which the informationis stored. It may be difficult or impossible forrequesters to know what types of computeroperations are involved in the agency’s re-trieval process, and whether their rights un-der FOIA are being arbitrarily denied for tech-nical or other reasons.

The issue of whether or not codes and otherinformation needed to extract computerized

data are agency records under FOIA wasraised by the district court in Yeager,90 andwas not resolved on appeal. Conceivably, anagency might deny access to computer codesunder FOIA Exemption 2, which covers inter-nal personnel matters and has been construedto absolve the agency from any obligation toproduce “trivial” internal information. The ap-peals court in Yeager concurred with the hold-ing of the lower court on the subject of codes:“The district court found that if Yeager hadmagnetic tapes of computer records, then thecodes necessary to read and use the tapes wouldbecome more than intra-agency records.”91

A more liberal view emerged in a 1982 deci-sion by a Florida appellate court, where com-puter codes were compared to instructions ac-companying a written document. In Seigle v.Barry,92 the court stated:

The information in a computer is analogousto information recorded in a code. Where apublic record is maintained in such a mannerthat it can only be interpreted by the use of

90 678 F.2d at 315 (D.C. Cir. 1982).9’ Ibid.W422 So.2d 63 (Fla. 4 D.C.A. 1982).

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a code, then the code book must be furnishedto the applicant.93

While pre-existing data can be demanded un-der FOIA, further analysis of data cannot.However, the distinction between record pro-duction and data analysis may become blurredin cases involving computer records. If a rec-ord is incomprehensible to anyone but the oper-ator of an in-house system, some form of anal-ysis may be required. Also, if a databaseincludes software combined with public infor-mation, and the two are not segregable, thestatus of the software under FOIA can be ar-gued. Conceivably, one fraction of the data-base could constitute nonreleasable agency in-formation, while the rest of the unit qualifiedas a “record” by FOIA standards.

While most agencies have failed to mentionsoftware explicitly in their FOIA regulations,the Department of Defense (DoD) is an excep-tion. DoD made several explicit references tosoftware in its recent regulations pertainingto fees and fee waivers, in compliance with theFOIA Reform Act of 1986.94 In specifyingthose materials which should not constituterecords under FOIA, the Department includedin its definition of commercially exploitable re-sources: “Computer software, if not createdor used as primary sources of informationabout organizations, policies, functions, deci-sions, or procedures of a DoD component. ”DoD did, however, add that this definitionshould not include the “underlying data whichis processed and produced by such softwareand which may in some instances be storedwith the software. ” (emphasis added)95

Perhaps even more significant is DoD’s refer-ence to information stored inside machines.According to the regulations, informationstored within a computer “for which there isno existing computer program or printout”(emphasis added)” would not be subject to aFOIA request. When in-house paperwork re-

“Ibid.“’P.I,. 99-570, 100 Stat. 3207-49.““32 C.F. R. Part 286, 1987 (Fed. Reg. vol. 52, No. 132, July

10, 1987).96 Ibid.

duction efforts and the efficacy of computercommunications have led to increased use ofelectronic mail and other electronic systemsto relay agency information, this limited defi-nition of “records” could be problematic. Evenwhen information is targeted for public con-sumption, the growing adoption of “printingon demand” practices should stimulate closeexamination of relevant regulations.

Online Databases

Given the trend toward cost recovery forFederal agency information products, it seemslikely that user fees will continue to help sup-port Federal online database delivery systems.If FOIA requests for copies of certain data-bases are denied, and online access is pricedbeyond the means of particular requesters, theFederal Government can be accused of restrict-ing public access to its electronic information.On the other hand, if private vendors or othermembers of the public are able to obtain co-pies of Federal databases at nominal prices un-der FOIA, the ability of these database serv-ices to operate in a self-sustaining fashion couldbe eroded.

The leading case addressing a FOIA requestfor machine-readable copies of a Federal data-base is SDC Development Corp. v. Mathews,a 1976 ruling by the U.S. Court of Appeals forthe Ninth Circuit.97 The case concerned an at-tempt by a private firm to use FOIA to obtaincopies of the extensive MEDLARS biblio-graphic health database from the National Li-brary of Medicine (NLM). The MEDLARStapes were available for sale on a subscriptionbasis through the National Technical Informa-tion Service (NTIS) for $50,000, with an esti-mated additional cost of $50,000 for annualdata updating. The firm maintained that thedatabase should be relinquished for the costof search and duplication, presumably muchless than the NTIS sales price.

The court held that the library reference ma-terials were not public records, and need notbe relinquished under FOIA. Although this

‘7542 F. 2d at 1116 (9th Cir. 1976).

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case is sometimes cited by agencies to denythe analogy between paper records and com-puterized records, the fact that NLM’s refer-ence materials were stored in a computer data-bank was inconsequential to the decision. Thecourt used the rationale that applying FOIAhere would constitute a conflict between twostatutes, in this case FOIA and the NationalLibrary of Medicine Act.98 “When two stat-utes are capable of coexistence, it is the dutyof courts, absent a clearly expressed Congres-sional intention to the contrary, to regard eachas effective. “99 The National Library of Medi-cine Act, in which Congress established theLibrary in 1956, authorized the Secretary ofHealth, Education, and Welfare to charge thepublic for using services and materials.100 Thecourt also footnoted the Technical InformationAct101 which directed the Secretary of Com-merce to maintain a clearinghouse for scien-tific and technical information in which “to thefullest extent feasible, each of the services andfunctions provided shall be self-sustaining orself-liquidating." 102

The court distinguished here between infor-mation per se and information deliverysystems:

Congress specifically mandated the agencyto prepare this system and hold it as stock intrade for sale to the public. As such the sys-tem constitutes a highly valuable commodity.Requiring the agency to make its delivery sys-tem available to the appellants at nominalcharge would not enhance the informationgathering and dissemination function of theagency, but rather would hamper it substan-tially. Contractual relationships with variousorganizations, designed to increase the agency’sability to acquire and catalog medical infor-mation, would be destroyed if the tapes couldbe obtained essentially for free , . . The agencyis seeking to protect not its information, butrather its system for delivering that infor-mation. 103

The Mathews court determined that theMEDLARS material did not constitute anagency record, as it:

. . . does not directly reflect the structure, oper-ation, or decision-making functions of theagency, and where, as here, the materials arereadily disseminated to the public by theagency, the danger of agency secrecy whichCongress sought to alleviate is not a consid-eration. 104

SDC v. Mathews is particularly interestingwhen observed in the context of the debate overthe roles of the public or private sectors in thedelivery of public information services. In acommittee report on government informationdissemination prepared by the House Commit-tee on Government Operations, the Mathewscourt was accused of having “misunderstoodthe statutory role of NLM, misread the FOIA,and failed to consider the Copyright Act andthe significance of the policy against restric-tions on dissemination of government infor-mation. 105 The decision works both in favorof and against private vendors. On the onehand, the decision supports NLM’s chargingof fees and its exclusive agreements with pri-vate contractors in order to further the agency’spublic information objectives. On the otherhand, to protect the agency’s information dis-semination mission, the decision preventsother private database vendors from usingFOIA as an inexpensive means to obtain mar-ketable electronic data.

A case currently pending in the U.S. DistrictCourt for the District of Columbia, Interna-tional Computaprint Corp. v. U.S. Departmentof Commerce106 raises issues addressed inDismukes107 as well as SDC v. Mathews.108

Computaprint, a private database vendor, re-quested machine-readable copies of the Pat-ent Office’s (PTO) computerized trademarkdatabase. PTO denied the request on twogrounds. First, because the data was available

‘s42 U.S. C. 276.“542 F. 2d at 1116 (9th Cir. 1976).1o042 us-c. 276 (c)(21.

“)’15 U.S.C. sec. 1151-1157.‘“’542 F. 2d at 1116 (9th Cir. 1976).‘(’’{603 F.2d at 1116 (9th Cir. 1976).

‘[’’Ibid.103Electrom”c Collection and Dissemination of Information buy

Federal Agencies: A Policy Overview. House Rep. 99-560, 99thCong. 2d sess. 1986, p. 35.

“)’Civil Action No. 87-1848 D.C. (District Court, 1987).“’7603 F. SUpp. 760 (D.D.C. 1984).*uh542 F. 2d. at 1116 (9th Cir. 1976).

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through alternate means, PTO claimed thatit had no obligation to provide machine-readabletapes. Trademark data could be obtained on-line in PTO’s public reading room, as well ason microfiche. Using the line of reasoning inDismukes, the agency maintained that the in-formation content of a record is not affectedby its format. Second, PTO responded that theeconomic value of the tapes excluded themfrom FOIA.

Computaprint maintains that the PatentOffice’s alternative means of securing trade-mark information are inadequate. Accordingto Computaprint, the paper records in PTO’sreference library are not as accurate as thecomputerized records—in fact, the agency’soriginal rationale for computerization was theupgrading of its information. During an exper-imental effort to use the heavily-traffickedcomputer terminals in the public referencerooms, Computaprint personnel were asked toleave the terminals at one-hour intervals. Com-putaprint has estimated in its briefs that se-curing the information through the publicreference rooms would take about 8 years.According to Computaprint, the case is notanalogous to SDC v. Mathews, as there areno provisions in PTO authorizing legislationto make the trademark database self-sustaining.

Complicating the case, a reverse-FOIA ac-tion was filed by Thomson and Thomson, thecontractor that computerized PTO’s files.109

In a special agreement with PTO, Thomsonand Thomson currently receives a copy of thedatabase for commercial use. Thomson andThomson claims that the records in questionrepresent a “a computer-readable trademarkdatabase and search system developed at sub-stantial cost, ’’n” and that releasing some ofthe information to Computaprint, even on mi-crofiche, could reveal proprietary informationof submitters. According to Thomson andThomson, release of machine-readable tapesto Computaprint at nominal costs under FOIAwould relieve Computaprint from the capitalcosts of developing its own database, givingComputaprint an unfair competitive advan-tage over Thomson and Thomson in the trade-mark search business. Computaprint has re-sponded that allowing Thomson and Thomsonto use the database while restricting other bulktransfers of data from PTO’s system is con-trary to the mandates of FOIA.

1’~9Thomson and Thomson v. International ComputaprintCorp., Civil Action No. 88-0839 (D.C. District Court, 1988).

‘‘“Ibid.

FEE ASSESSMENT AND FEE WAIVERS: CHARGED ISSUES INAN AGE OF ELECTRONIC INFORMATION

The growth in computerized agency recordsand the associated escalation in costs ofrecords have heightened public sensitivity tothe new Federal standards for fee assessmentand fee waivers that were specified in the FOIAReform Act of 1986.111 The act gave the Of-fice of Management and Budget the author-ity to establish fee guidelines, which wereissued in 1987 as the Uniform Freedom of In-formation Act Fee Schedule and Guidelines.112

Fees that are assessable under FOIA fall intothree categories: 1) review costs—costs asso-

—.‘‘‘P.L. 99-570 ( 100 Stat. 3207-44).“’P.L. 99-570 (Fed. Reg. \’ol. 52, No. 59, 1987).

ciated with the determination of whether therequested documents can be disclosed), 2)search costs—costs associated with retrievingdisclosable documents, and 3) reproductioncosts.

Under the FOIA amendments of 1974, feeswere reduced or waived when the informationrequested was determined to ‘benefit the gen-eral public." 113 “Benefitting the public” wassubsequently construed by agencies to meanthat public dissemination was expected. Thenew standard for applying general fee waivershas been more specifically defined, from “benefit-

‘ ‘‘P.L. 93-502,

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ting the public” to “significantly increasingthe understanding of government activities”(emphasis added).’”

Where there were no distinctions betweenrequesters in the 1974 amendments, the pro-visions of the FOIA Reform Act specify threecategories of requesters that are uncondition-ally entitled to preferential fee treatment. Thenews media, educational institutions, and non-commercial scientific institutions are automat-ically excluded from all but duplication costs.Commercial requesters may be assessed re-view, search, and duplication costs, while otherrequesters who do not fall into one of the abovefour categories may be assessed both searchand duplication costs. Outside this schedule,all requesters are entitled to apply for generalfee waivers.

Since the 1986 amendments have guaranteedreduced fees for specified groups, they are po-tentially more generous than the amendmentsof 1974. However, the new amendments havebeen highly criticized for their omission of cer-tain groups from the favored categories, par-ticularly libraries and public interest groups.Also, the definition of the specified categorieseligible for favorable fee treatment has gen-erated controversy, as the OMB guidelinestake a more restrictive view than those put for-ward by several congressional sponsors of theamendments.

“’P.1.. 99-570 (Fed. Reg. VO1. 52, No. 59, 1987).

Under the new FOIA fee guidelines, insearches for paper records, noncommercial re-questers may not be charged for the first 2hours of search time or the first 100 pages ofinformation delivered. OMB has determined,however, that 2 hours of computer search timeis not analogous to 2 hours of manual searchtime. Since most computer searches are accom-plished in seconds and fractions of seconds,according to OMB, an interpretation of thestatutory free search time as an entitlementto require an agency to operate a computer for2 hours would constitute an unreasonable dis-ruption of an agency’s normal automated dataprocessing (ADP) activities. Thus, OMB hasdeveloped a formula based on a literal anal-ogy to a manual search, whereby the computersearcher is equated to as a clerical worker un-dertaking a manual search. The requestor is,therefore, entitled to receive an amount of com-puter processing unit (CPU) operating timeequivalent to the cost of 2 hours of computeroperator salary. In order to reduce adminis-trative steps required to calculate costs on anindividual basis, agencies may establish agen-cywide average operator/programmer salariesand average CPU operating costs. Accordingto OMB, 100 pages of free information shouldnot be applied directly to microfiche, but tothe “microfiche equivalent” of 100 pages. Sim-ilarly, audiotape distribution should be analo-gous to 100 pages of paper copies.

NEW TECHNOLOGIES AND THE NEED FOR AMENDING FOIAAs is evident in the courts, new communi- [W]e decline Yeager’s invitation to “view the

cation and information technologies are rais- availability of disclosure avoidance techniquesing essential questions about the fundamen- as simply defining with more clarity the man-tal nature of records and the parameters of ner in which microdata information might besearches for records. In several FOIA cases, released. ” This invitation should be extendedthe courts have expressed a need for Congress to Congress rather than to this court.115

to clarify the numerous gray areas left openby the statute in its application to the new gen-eration of computerized information. TheYeager court is one such example: “’678 F.2d at 315 (D.C. Cir.1982).

—. --

. .

The appeals court in Yeager mirrored the viewsof the district court regarding congressionalspecificity y:

[A]s agencies begin keeping more of theirrecords in computerized form, the need to con-tour the provisions of FOIA to the computerwill become increasingly necessary and moredramatic. 116

At present, decisions about fundamentalprinciples are left to agency discretion, withfurther interpretation, when litigated, by thecourts. Consequently, these decisions may besubject to the biases of agency personnel, orbe made by lawyers and judges whose under-standing of new technologies may be limited.Some of the problems raised by new technol-ogies may be clarified by the facts of individ-ual cases and can be approached on a case-by-case basis. But many of the growing ambigui-ties need to be addressed through statutoryamendment. As technology is continuallyevolving, setting objective criteria for defin-ing records and search efforts will be a diffi-cult task. Nevertheless, working towardgreater specificity could bean important firststep in ensuring an adequate level of publicaccess to electronic information.

In developing and considering possibleamendments to FOIA, it is important to un-derstand the nature of emerging computer-related problems. It is also important to con-sider new developments in computer and data-base technology that could alleviate some ofthese problems in the future. A typology ofthe issues is presented below:

● Electronic information technologies are ob-scuring the boundary between record andnonrecord material. As electronic data-bases become more sophisticated, they re-semble information “pools” rather thandiscrete records. For example, relationaldatabase technology allows data elementsfrom different pathways or "fields" to beconnected to one another in nonlinear com-

] lbMemorandum order at 6; APP at 44

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binations. The parallels to paper recordsare becoming more remote.Computers are facilitating faster and morecomplex searches, encouraging a broaderdefinition of a “reasonable” search. Givencomputer capabilities for expeditedsearching, segregating, and consolidatingof data, the definition of a “reasonable”search may need to be broadened.Electronic FOIA requests can be incompat-ible with the ways agencies collect andorganize information. Although this prob-lem also applies to FOIA requests for pa-per documents, computerized informationmanagement systems are aggravating theissue as they are relatively inflexible, withlimited capacity to respond to inquiriesin an ad hoc fashion. Evolving technol-ogies such as relational databases andhypertext could provide some solutionsin the future.Computer searching raises new staffing andbudgetary problems, as well as opportuni-ties for Federal agencies. Most agencieshave no computer programmers assignedto FOIA implementation. Requests forcomputerized records are generally givento personnel hired to operate internal in-formation management systems. Agencyuse of electronic technologies that couldallow clerical and administrative staff toretrieve computerized information couldultimately enhance public access to com-puter records. These technologies includepreprogr ammed utility software, frontendsystems with natural query languages, ex-pert systems, and optical disks.Federal agencies are using informationproducts whose status is unclear underFOIA. The status of computer programs(including computerized indexes, codes,and directories) is unclear, as is that of in-tegrated software and database packages.Electronic mail, quickly becoming a ma-jor mode of interdepartmental communi-cation, presents additional questions forFOIA.Paper printouts of electronic information

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may not satisfy public access needs. Al-though the case law has established thatcomputerized information is subject toFOIA, agencies are not required to deliverthe information in machine-readable form.The option of encouraging or requiringagencies to provide alternative electronicformats–such as magnetic tape, floppydisk, optical disk, and online access–warrants consideration.

Electronic Information TechnologiesAre Obscuring the Boundary Between

Record and Nonrecord Material

At the most fundamental level, new technol-ogies are obscuring the boundary between rec-ord and nonrecord material. As informationtechnology evolves, records become more dif-ficult to conceptualize in terms of discrete, tan-gible documents. Information technology is,in a sense, detaching information from its em-bodiment. A record stored electronically maybecome a useful body of information only uponretrieval. The concept of database is replac-ing the concept of “record” per se. It thusbecomes more difficult to establish genuineparallels between paper records and recordsstored in computers.

Electronic Information Often RequiresIntervening Technologies To Become

Understandable

In court cases involving computer records,analogies from paper documents are still be-ing applied, implying a distinct boundary be-tween record and nonrecord material. Thecourts are currently basing the delineation ofthis boundary on the function of retrieval: ifinformation requires new programming for itsretrieval, it is not an agency record (or it is anentirely new record, the creation of which isnot required under FOIA). This type of func-tional definition is clearly easier to apply thanother distinctions, but it may be inappropri-ate. At present, if an electronic file cannot beprinted out with one push of a button, agen-

cies and courts may determine that it legallyneed not serve as a record under FOIA.

The current records test, based on program-ming, is inappropriate because electronic in-formation always needs some type of trans-formation to be understood. While writteninformation can be read instantaneously, noone can look at the electronic bits of data ina database and understand their meaning.These bits of data often require specialized soft-ware for reorganization into readable form. Asintervening technologies are necessary ratherthan superfluous, there is technically no suchthing as a “record in being. ”

As Electronic Databases Become MoreSophisticated, They Resemble

Information “Pools” Rather ThanDiscrete Records

As electronic database systems become moresophisticated, electronic records become moredifficult to conceptualize in terms of separa-ble, identifiable entities. As records can be gen-erated from data elements from different files,the information stored in databases may re-semble “pools” of information rather than dis-crete documents. As the database technologycontinues to evolve, the parallels to paperrecords become more oblique.

For example, relational database systems,developed in the 1970s, allow discrete dataitems to be linked to one another based onspecified underlying criteria. One record maytherefore constitute a synthesis of informationretrieved from several different files. In somecases, then, several pieces of data can or mustbe connected to make a record. The jargon inthe field of relational technology reflects thepool-like aspect of the new databases. A col-lection of data is called a “relation” insteadof a file. A record is, in effect, a series of rela-tions or collections of data rather than a sin-gle file.

This represents a significant jump from theflat file technology of the 1970s where data-bases were designed in hierarchical or network

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fashion. In both hierarchical and network data-bases, information retrieval is linear. In theformer, one piece of information is connectedto others through a series of hierarchically-arranged channels. Access begins at the topof the hierarchy and spreads through subse-quent levels of detail. While network databasesare set up so that a single data element can“point” to other data elements, there is stilla fixed pathway for navigating through thedatabase. By contrast, in a relational database,data elements from different pathways or“fields” can be connected to one another in non-linear combinations.

As a result, some forms of new programmingor other intervening operations may be neces-sary to interpret or compile electronic records.Making analogies between paper and electronicrecords and using the function of programmingto distinguish between record and nonrecordmaterial could be detrimental to the intent ofFOIA. If genuine access to records is to bepreserved, a new focus may need to be placedon the substance, or information content, ofdatabases, rather than the operations requiredto extract or interpret them.

Computers Are Facilitating Faster andMore Complex Searches, Thereby

Encouraging a Broader Definition of a“Reasonable” Search

As mentioned earlier, the legislative historyof the FOIA indicates that a description of arequested record is sufficient if it enables aprofessional agency employee familiar with thesubject area to locate the record with a “rea-sonable amount of effort."117 At present, thedefinition of what constitutes a reasonablesearch is left to the discretion of agencies and,when litigated, the courts. As in definingrecords, the current test of reasonableness usu-ally includes whether new programming is re-quired.

‘‘;H.It. Rep. No. 876, 93rd Cong., 2d sess, 6 (1974), reprintedin 1974 U.S. Code Cong. & Ad. News 6271.

This test may no longer be appropriate dueto technological evolution. Given computer ca-pabilities for expedited searching, segregating,and compacting of data, the realm of what con-stitutes a ‘‘reasonable search could bebroadening. In cases involving paper records,decisions in the courts as to what is reason-able have been related to the effort agenciesare required to exert on behalf of requesters.In the computer context, some courts have con-cluded that any new programming or modifi-cation of an existing program should bedeemed new record creation and, therefore, un-reasonable. According to DoD’s recent regu-lations pertaining to FOIA fees, electronic in-formation for which there is no existing printoutneed not be attainable under FOIA.118 Takento its extreme, this regulation could be inter-preted to mean that pushing a button to printa document would constitute new programming.

Thus, a subtle shift has occurred that hasdetached decisions about reasonableness fromany considerations of effort. This is incongru-ous with tradition, as a significant amount ofeffort has historically gone into FOIA search-ing for and production of paper documents, Re-trieval of paper documents may involve exten-sive tracking, communication with numerousbureaus, searching disparate files, and sub-stantial hand deletion of exempted materials.

The programming/no programming distinc-tion continues to decrease in validity as devel-oping technologies reduce the effort needed tomodify or execute new programs. In manycases, new programming to retrieve computerrecords may be less costly and/or time consum-ing than searches for paper records.

Clearly, drawing lines between reasonabledegrees of effort is a difficult task. The func-tional approach is much more clear-cut. If Con-gress is to help set new criteria, it must takeinto account the rapid rate of technological evo-lution in data processing. What is not reason-able today may be reasonable tomorrow or in

‘ ‘“32 C.F.R. Part 286, 1987 (Fed. Reg. \Fol. 52, No. 132, July10, 1987).

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the near future. In spite of this, new criteriabased on effort or cost could ultimately bene-fit agencies as well as requesters. Clearer stand-ards could enhance public access as well as pro-tect agencies from excessive demands byattorneys seeking to prolong FOIA lawsuits.

Degrees of effort needed to execute computersearches can vary dramatically. A request maybe relatively easy to specify but difficult to run,requiring days of computer time. Another re-quest may require hours of programming time,but can be searched easily once the programis created. An illustration of computer searchesrequiring varying levels of effort is presentedbelow:

●

●

●

●

Level 1. File ABCD exists in the computer.It can be retrieved with a “print” com-mand. In other words, the data has al-ready been collected and organized in themanner desired by the requester.Level 2. File ABCD exists in the computer.Though it cannot be printed directly, itcan be retrieved from the database byusing existing retrieval programming andentering keywords. The data does not needto be modified with a new algorithm.Level 3. Someone asks for E, which canbe derived from ABCD using a new al-gorithm. Put simply, the agency main-tains the data, but it must be modified tofit the request.Level 4. The request cannot be satisfiedby information-derived from ABCD. Itmay require additional information fromFGHI or other databases. A new programmust be created. This may involve alimited amount of effort through the ap-plication of simple query language or com-mercially available software. On the otherhand, anew program could involve a com-plex query that takes days of a program-mer’s time and hours or days of computertime.

According to recent interviews with infor-mation management personnel at selectedagencies, many choose to reprogram their com-puters, or modify existing programs, on theirown accord. In some cases, this may benefit

the agencies as well as the requesters. Con-toured searches may be easier to execute thansupplying large amounts of unedited or dis-aggregate data. In other cases, programmingis motivated by the awareness that the effortundertaken would be less burdensome thanthat associated with a potential lawsuit.

An important consideration to remember isthat the effort required for a FOIA search isnot solely a function of the nature of the re-quest. Effort is also determined by the struc-ture of the database, the sophistication of in-formation storage and retrieval tools, and thecompetence of agency staff. A poorly run re-trieval system could require days to search fora straightforward record. A sophisticated sys-tem with higher-level language might be ableto retrieve the same data in minutes. Clearly,Congress cannot mandate the acquisition ofstate-of-the-art computer systems. But ifsearches are to be based on effort, and if re-questers continue to be charged for computerprogramming and operation time, measuresmust be undertaken to encourage agency effi-ciency.

Electronic FOIA Requests Can BeIncompatible With the Ways Agencies

Collect and Organize Information

One of the greatest problems encounteredin satisfying FOIA requests is that requestsare often incompatible with the ways in whichagency records are originally collected andorganized. For example, at the OccupationalSafety and Health Administration (OSHA), aregulatory agency, most inspections are un-dertaken and documented by geographical re-gion, industry, accident, or type of complaint.The databases created by OSHA follow thecontours of the different inspection programswithin the agency. FOIA requests, on the otherhand, are usually directed to specific productsor companies at particular locations. Since theagency does not maintain such a database,these requests may require new programming.

While the lack of compatibility between re-quests and compiled information is a problem

that also affects requests for paper records,computer retrieval in some ways exacerbatesthe problem. Although computers can be fastand consistent, they may be less flexible thanthe manual systems they have replaced. Whilethey are proficient at processing anticipatedforms of information, they are less adept atperforming operations (such as responding toFOIA requests) that have not been preprogram-med into their software or machine language.

Certain new developments in hardware andsoftware technology —such as relational data-bases and hypertext-promise to enhance com-puter flexibility and responsiveness to unan-ticipated forms of requests. New technologieswill also increase the speed of all forms of dataprocessing. These developments will ulti-mately reduce the effort associated with re-trieval of electronic information, and thereforecould have positive consequences for FOIA,allowing for: faster searches; searches throughunorganized data; integration of data from di-verse files; and better response to ad hoc re-quests.

Technologies Could Facilitate Ad HocResponses to FOIA Requests for

Computerized Information

Relational Databases

As relational database technology increasesin sophistication, users can more easily pulltogether data from different files in an ad hocmanner. The links between different data fieldsdo not necessarily need to be preprogrammed;instead, they can be created to suit the require-ments of specific requests. Programming newlinks varies in difficulty, depending on the soft-ware. The increasing flexibility y offered by rela-tional database technology could have majorsignificance for FOIA, allowing the computerto provide information better tailored to theneeds of requesters.

Hypertext

Hypertext software, still in early phases ofcommercial development, will also allow for en-hanced ad hoc data retrieval. In theory, hyper-

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text allows a user to design a database fromscratch. Links can be established between un-structured bits of information; hypertext doesnot impose a linear display of data. Hypertextincorporates images and sound as well as text.

Institutional Changes Could IncreaseComparability Between FOIA Requests

and Available Information

In addition to new technologies, certain in-stitutional changes could help alleviate theproblem of responding to requests that are in-compatible with the ways information is col-lected. Some options are:

Tallying frequent requests. Tallying themost common types of requests for com-puterized information could be a first stepin enhancing compatibility between dataand requests. This could lead to the de-velopment of utility programs tailored toretrieve organized data, and could influ-ence a greater awareness of public accessneeds in the data collection phase. OSHAis currently documenting its most fre-quent FOIA requests every 6 months.Public input in data collection. Pilot pro-grams could be initiated to allow citizensand public interest groups to inform agen-cies about the types of data that wouldbe most beneficial to them. Public inputwould also help determine the delivery for-mats that would be best suited to re-questers’ needs.Public input in the records-searching proc-ess. Some agency regulations require theirFOIA offices to consult with requestersto help tailor searches to requester needs.In some cases, requesters are allowed to“walk through” agency computer sys-tems. If an agency is incapable of conduct-ing a search, a requester could be shownhow to narrow the inquiry, or converselyto broaden the request to allow files to becopied without editing or selection.Standardized information delivery systems.Current, custom-built agency informationsystems rarely take public access into ac-count. Setting standards for agency hard-

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●

ware and software could enhance compati-bility with users’ equipment.Utility programs. The creation of pre-progr ammed utility software for commonly-occurring requests could facilitate moreefficient and appropriate responses. Util-ity programs are discussed in the follow-ing section.

Computer Searching Raises NewStaffing and Budgetary Problems,

as Well as Opportunities forFederal Agencies

Many agency FOIA offices are understaffed,and to the best of OTA’s knowledge, none havecomputer programmers specifically assignedto FOIA. As a result, FOIA requests for com-puterized records are typically shunted toAutomated Data Processing (ADP) depart-ments, where they are handled by personnelhired and trained to run internal computeroperations. As FOIA fees are forwarded to theDepartment of the Treasury rather than be-ing credited to specific agencies, there are fewfinancial incentives for agencies to respond torequests for electronic records. Policy could bechanged to establish an annual congressionalappropriation for the implementation of FOIA,or to allow agencies to retain FOIA fees at leastas a partial offset against expenses. As thereare usually no computer operaters on FOIAstaffs, agencies could be required to hire atleast one full-time computer programmer toaccommodate FOIA requests involving com-puter work. In addition to policy initiatives,new technologies could help alleviate staffingproblems and reduce costs of processing cer-tain FOIA requests. Technologies that couldrelieve ADP specialists from FOIA demandscould facilitate access by clerical and admin-istrative staff, and ultimately enhance publicaccess to computerized information. Severalof these technologies are discussed below.

Technologies Could HelpNonspecialists Respond to FOIA

Requests for Computerized Information

Utility Programs

The development of commercial and custom-made utility programs could facilitate re-sponses to some types of requests, especiallymore common types of requests that could bepredicted in advance. Utility programs aregeneric software programs that can performanticipated functions. They contain a set ofretrieval operations that can be invoked with-out programming. Thus, even if an agency hadlittle interest in compiling a record for its in-ternal purposes, the record could be generatedmuch more easily than in the past.

The trend from mainframes to microcom-puters, a hallmark of the 1980s, is allowing forgreater user autonomy. In theory, clericalworkers could be trained to handle some pro-gramming functions currently executed byADP professionals. Administrative staff tradi-tionally handle FOIA requests for paperrecords; therefore, from a staffing perspective,the use of utility programs could make sometypes of computer searches more similar tosearches through paper files.

According to agency information managersinterviewed, some are already beginning totally their most common FOIA requests anddesign their own utility programs to accom-modate them, eliminating the need for new pro-gramming. Searching with utility programscan be significantly less expensive than search-ing on mainframe, tape-driven systems. As theeffort involved in satisfying certain requestsis decreasing, new classes of requests could fallinto the “reasonable” domain.

Networked PCs and Network Servers

As stand-alone PCs become linked throughlocal area networks, individuals at work sta-

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tions can gain increased access to large data-bases through “network servers. ” These arespecialized computers with larger storage andprocessing capacity than work stations. Thenetwork server is a shared machine that allowsindividuals at their own work stations to up-date, process, delete, and insert new recordsfrom remote locations. Networked PCs andnetwork servers could give nonspecialistsgreater access to more powerful computer oper-ations, including larger and more sophisticateddatabases. Therefore, like utility programs,they could contribute to the goal of helpingadministrative staff process FOIA requests forcomputerized information. Network serversequipped with optical disks could optimize ac-cess to large volumes of records.

Front End Software

Advances in front-end software are contrib-uting to the possibilities for nonspecialists towrite new programs, by translating compli-cated query languages into natural language.(A query is a command that tells a computerwhich fields to search and combine. At present,different databases and brands of computersrequire different query languages.) The grow-ing simplification and standardization of quer-ies could significantly reduce the amount ofeffort involved in some forms of new program-ming. In the future, better front-end technol-ogy could facilitate direct queries from homecomputers or from PC in agency public refer-ence rooms.

Expert Systems

Expert systems contain inference or decisionmaking programs that are combined with dataentered by users. Expert systems software con-tains programmed search rules that help usersdecide how to maneuver through datafiles toanswer particular questions. While expert sys-tems are limited by the logic of the experts whocreate the programs, they could help agency

personnel respond more easily and quickly topredictable FOIA requests.

Artificial Intelligence

Future artificial intelligence systems willhave more self-initiating capabilities than doexpert systems. Artificial intelligence softwarehelps users ask the questions appropriate tosolving problems. A master control programsdirects users to appropriate expert systemsthrough question-and- answer sessions under-taken in natural language. While artificial in-telligence systems are still in early develop-mental phases, it is expected that, in the future,they could eliminate the need for users toremember complex codes or commands. Userswill be able to articulate their questions fullyin natural language.

Optical Disks

Optical disks and related search and retrievalsoftware could greatly enhance records-storagecapacity and facilitate searching through un-structured information. While manual searchesfor archived paper documents can take days,weeks, or even months, searches through anequal number of full-text records on opticaldisks could technically be accomplished in se-conds or minutes.

Federal Agencies Are UsingInformation Products Whose Status is

Unclear Under FOIA

In addition to software programs and onlinedatabases, whose status under FOIA has be-gun to be debated in the courts, Federal agen-cies are embracing additional technologies thatneed to be studied in the context of FOIA. Twoexamples are presented below.

Integrated Software and Database Systems

When databases and their integrative soft-ware are combined into one system, the func-

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tional distinction between “programs” and“records” loses its validity. As the softwareis necessary to make the database or recordcomprehensible, the program may need to besupplied along with the record.

Electronic Mail

Electronic mail is significant for FOIA inthat it allows data to be created, transmitted,processed, analyzed, archived, and disposed ofelectronically, without paper printouts. Asgovernment communications are increasinglycarried out via electronic mail and other com-puter applications, “records” may never ex-ist in tangible form or in a “narrow, physicalsense. ” Under current judicial interpretations,these forms of communication could be with-held from public view. The “record in being”concept, which continues to be used in thecourts and in agency regulations, may need tobe revisited.

The Iran-Contra case recently demonstratedthat electronic mail can provide valuable in-formation about government activities, infor-mation which the public may have a justifia-ble right to know. The National SecurityCouncil’s PROFS electronic mail system pro-vided the public with crucial information aboutthe diversion of funds to the Nicaraguan Con-tras. This information was retrieved from atemporary PROFS backup file that had beencreated to protect users against electricalpower surges or other interruptions.

The question electronic mail poses for FOIAis whether messages should be treated likeagency records or like confidential personalcommunications such as telephone calls. Ifsome types of electronic mail communicationsare to become accessible under FOIA, theymust be stored, backed up, archived, and/orprinted. In cases where electronic mail mes-sages are considered analogous to telephoneconversations or personal meetings, the FOIAneed not apply. Monitoring or required archiv-ing of telephone calls could be considered sim-ilar to wiretapping.

The questions of which electronic mail com-munications require archiving for FOIA pur-

poses (as well as for records retention pur-poses), and how some messages differ fromothers under FOIA, need to be answered in or-der to develop consistent policies for electronicmail. These new policies may need to focusupon the content of the communications ratherthan the form. While most electronic mail sys-tems have “document” as well as “message”features, archiving should not be limited todocuments. Increasing numbers of importantagency actions and decisions are resulting fromelectronic mail messages. Though assessingthe import of messages and distinguishing be-tween deliberations and final orders may bedifficult, taking these steps may be necessaryto ensure appropriate public access.

Paper Printouts of ElectronicInformation May Not Satisfy Public

Access Needs

Although both the case law and the FOIAfee guidelines have established that computer-stored information is subject to FOIA, re-questers are not guaranteed access to this in-formation in formats other than paper. Thoughthe case law is extremely limited in this area,the D.C. District Court decided in Dismukesv. Department of the Interior, that “an agencyhas no obligation under FOIA to accommodatea particular requester’s preference regardingthe format of requested information, ” and thatagencies need only provide information in “rea-sonably accessible form."119 If requesters askfor tapes, disks, or direct online access, theyare not assured their choices. The decisionsgenerally rest with agency information cus-todians.

Technological change brings into questionwhether paper printouts alone are a satisfac-tory means of satisfying requests for electronicinformation. It could be argued that tapes,disks, or even online retrieval might be neces-sary to effectively use or analyze large quan-tities of raw data.

In practice, agency decisions about formatvary widely. Some agencies provide data tapes,

I lg603 F, Supp. 760 (1).C. District Court. 1984).

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disks, and software, either to save time, lowercosts, or enhance public access. Some State andFederal agencies are beginning to offer remoteaccess to electronic records. Most Federalagencies, however, continue to satisfy theirminimum legal requirements by producing pa-per printouts of electronic information. A briefdiscussion of alternative delivery formats ispresented below.

Magnetic Tapes and Disks

Providing tapes or disks to requesters couldrelieve agencies from computer searching andprinting efforts. For requesters, tapes anddisks eliminate the need to re-input informa-tion, and facilitate analysis and synthesis ofstatistical information. As a drawback, distrib-uting tapes or disks could result in additionaltime commitments for agency personnel. Re-questers generally ask for explanations of datastructures and need help designing programsto retrieve machine-readable data. Whether ac-curate or not, some agency personnel feel thatreleasing tapes and disks would increase pos-sibilities of information manipulation and mis-representation of agency statistics and opin-ions. Other information custodians readilyrelease tapes and disks, although some includecaveats to reduce the risks of false attribution.

Optical Disks

Optical disks may provide an economicalmeans of distributing records to satellite read-ing rooms and depository libraries. Opticaldisks are simpler and less expensive to dupli-cate than large quantities of paper documents.Automated retrieval software could facilitatesearches for FOIA records on disks.

Computer Programs

Computer programs contain the instructionsthat direct machines to store, retrieve, andmanipulate data. For the purposes of FOIA,the status of programs is in a state of flux.Agency views about programs are disparate–they are sometimes considered records andsometimes tools. When deemed tools, programsare not considered subject to FOIA.

Whether programs are considered tools orrecords, some types of records may be inac-cessible without them. Agencies must learn todistinguish fairly between programs requiredto interpret records and programs that furtheranalyze or manipulate data; the former mayneed to be released and the latter subject toagency discretion. When programs incorporateinstructions that reveal agency decisionmak-ing techniques or information gathering meth-ods, they may constitute records in their ownright.

In 1980, a Florida appellate court embraceda broad definition of agency records that couldhave implications for the status of software.In Shevin v. Byron, Harless,120 the court heldthat, “a public record is anything made or re-ceived in connection with the agency’s busi-ness that is intended to communicate knowl-edge. 121 In many instances, program softwareserves that function and could be considereda public record, unless deemed sensitive or pro-prietary.

As mentioned earlier in this chapter, anotherappellate court in Florida has compared soft-ware programs to code books accompanyingwritten documents. In Seigle v. Barry,122 thecourt determined that the information storedin a computer was analogous to informationrecorded in a written code. If a written publicrecord were maintained in such a manner thatit could only be interpreted with a code, thena code book should be provided to requesters.According to the court, it followed that com-puter programs should be furnished to re-questers when electronic information wouldotherwise be inaccessible.

Remote Access

The growing use of personal computers withmodems opens up entirely new possibilities forremote access to computerized FOIA records.Some agencies are making public records avail-able online in public reference rooms and atremote locations.

“’’379 So. 2d 633 (Fla. 1980)‘“ Ibid.“’422 So. 2d 63 (Fla. 4 D.C. A. 1982)

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Remote access to Federal information couldfacilitate searches for requesters as well asagencies. Remote access would allow users toissue queries directly, reducing search time foragencies. Currently, FOIA requests are issuedon paper, and computer programs are writtenat the discretion of agency personnel. If dataare distributed in hard copy or tapes, users arerequired to re-input or download to their owncomputers.

If remote access is to be considered as a de-livery option for FOIA records, the followingareas would need to be addressed: security; lia-bility for errors; cost; requirements for userassistance; upkeep of data files; privacy pro-tection; control of levels of use; standard set-ting for hardware and data presentation; andcompetition with private online databasevendors. 123

Computers Are Prompting NewDiscussion About the Basic Purposes

of FOIA

The original movement for enacting Federalfreedom of information laws in the UnitedStates gained momentum in the 1940’s and1950’s. In 1966, when FOIA was passed, theassurance of basic access to governmentrecords represented a significant strengthen-ing of the open government principle. Al-though the United States Government is nowheralded internationally for its policies of open-ness, FOIA is still narrowly interpreted as abasic “access to records” statute.

In addressing the impacts of new technol-ogies, Congress may need to reconsider the pur-poses and goals of FOIA. If new procedures

‘~:) Florida State Legislature, Joint Committee on Informa-tion Technology Resources, Remote Computer Access to Pub-lic Records in Florida, January 1985.

need to be instituted for an electronic FOIA,the policies behind the procedures should beevaluated and clarified. Computer records bearfew similarities to the paper records of 1966.New database technologies have begun to raisequestions about whether computer-stored in-formation can even be conceptualized in termsof discrete records.

For the 1990’s and beyond, Congress needsto decide whether the FOIA should continueto be viewed as an “access to records” statuteor whether it should be perceived more broadly,as an “access to information” statute. This isnot to suggest that public access to computer-stored government information should be un-limited; access must be balanced against eco-nomic and personnel constraints of Federalagencies. However, due to the explosivegrowth in electronic information storage, proc-essing, and transmission by the Federal gov-ernment, traditional views about records andsearches need to be modified to ensure evenbasic access to public information.

As technology is continually evolving, set-ting objective criteria for defining records andappropriate search efforts will be difficult.Nevertheless, working toward greater statu-tory specificity could bean important first stepin ensuring an adequate level of access. If thestatutory language is not modified to addresselectronic information, agencies may have newopportunities to legally withhold certainclasses of materials from the public. The caselaw in many areas is too limited, conflicting,or vague to give comprehensive or consistentdirection to agencies and courts. Even in thoseareas where the case law is clear, variation inagency practice calls for stronger legislativeguidance. If Congress wishes to maintain theintegrity of the FOIA in an electronic environ-ment, the goals of the statute should be reas-sessed, and statutory amendment pursued.