Freedom of Information Act Guide, September 1998


INTRODUCTION

The Freedom of Information Act (1) generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

Enacted in 1966, the FOIA established for the first time an effective statutory right of access to government information. The principles of government openness and accountability underlying the FOIA, however, are inherent in the democratic ideal: "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." (2) The Supreme Court has emphasized that "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." (3)

This was emphasized also in the statement of FOIA policy issued by President Clinton on October 4, 1993, in which he called upon all federal agencies to renew their commitment to the Act and to enhance its effectiveness as a vital mechanism of government openness and accountability:

For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process. (4)

To be sure, achieving an informed citizenry is a goal often counterpoised against other vital societal aims. Society's strong interest in an open government can conflict with other important interests of the general public--such as the public's interests in the effective and efficient operations of government; in the prudent governmental use of limited fiscal resources; and in the preservation of the confidentiality of sensitive personal, commercial, and governmental information. Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable formula that encompasses, balances, and appropriately protects all interests, while placing emphasis on the most responsible public disclosure possible. (5) It is this task of accommodating countervailing concerns, with disclosure as the predominant objective, that the FOIA seeks to accomplish.

The FOIA evolved after a decade of debate among agency officials, legislators, and public interest group representatives. It revised the public disclosure section of the Administrative Procedure Act, (6) which generally had been recognized as falling far short of its disclosure goals and had come to be looked upon as more a withholding statute than a disclosure statute. (7)

By contrast, under the thrust and structure of the FOIA, virtually every record possessed by a federal agency must be made available to the public in one form or another, unless it is specifically exempted from disclosure or specially excluded from the Act's coverage in the first place. (8) The nine exemptions of the FOIA ordinarily provide the only bases for nondisclosure, (9) and generally they are discretionary, not mandatory, in nature. (10) (For a discussion of the discretionary nature of FOIA exemptions, and the making of discretionary disclosures as a matter of FOIA policy, see Discretionary Disclosure and Waiver, below.) Dissatisfied record requesters are given a relatively speedy remedy in the United States district courts, where judges determine the propriety of agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions. (11)

The FOIA contains seven subsections, the first two of which establish certain categories of information that must automatically be disclosed by federal agencies. Subsection (a)(1) of the FOIA (12) requires disclosure through publication in the Federal Register of information such as descriptions of agency organizations, functions, procedures; substantive rules; and statements of general policy. (13) This requirement provides automatic public access to very basic information regarding the transaction of agency business. (14)

Subsection (a)(2) of the FOIA (15) requires that certain types of records--final opinions and orders rendered in the adjudication of cases, specific policy statements, certain administrative staff manuals, and some records previously processed for disclosure under the Act--be routinely made "available for public inspection and copying." (16) This is commonly referred to as the "reading room" provision of the FOIA, (17) and it requires that some such records be made available by agencies in "electronic reading rooms" as well. (18) (For a discussion of the operation of this FOIA subsection, see FOIA Reading Rooms, below).

The courts have held that providing official notice and guidance to the general public is the fundamental purpose of the publication requirement of subsection (a)(1) and the "reading room" availability requirement of subsection (a)(2). (19) Failure to comply with the requirements of either subsection can result in invalidation of related agency action, (20) unless the complaining party had actual and timely notice of the unpublished agency policy, (21) unless he is unable to show that he was adversely affected by the lack of publication, (22) or unless he fails to show that he would have been able to pursue "an alternative course of conduct" had the information been published. (23) However, unpublished interpretive guidelines that were available for copying and inspection in an agency program manual have been held not to violate subsection (a)(1), (24) and it also has been held that regulations pertaining solely to internal personnel matters that do not affect members of the public need not be published. (25) Of course, an agency is not required to publish substantive rules and policy statements of general applicability that it has not adopted. (26)

Under subsection (a)(3) of the FOIA--by far the most commonly utilized part of the Act--all records not made available to the public under subsections (a)(1) or (a)(2), or exempted from mandatory disclosure under subsection (b), or excluded under subsection (c), are subject to disclosure upon an agency's receipt of a proper FOIA request from any person. (27) (See discussions of the procedural aspects of subsection (a)(3) (including fees and fee waivers), the exemptions of subsection (b), and the exclusions of subsection (c), below.)

Subsection (c) of the FOIA, (28) added as part of the Freedom of Information Reform Act of 1986, (29) establishes three special categories of law enforcement-related records that have been entirely excluded from the coverage of the FOIA in order to safeguard against unique types of harm. (30) The extraordinary protection embodied in subsection (c) permits an agency to respond to a request for such records as if the records in fact did not exist. (See discussion of the operation of these special provisions under Exclusions, below.)

Subsection (d) of the FOIA (31) makes clear that the Act was not intended to authorize any new withholding of information, including from Congress. While individual Members of Congress possess merely the same rights of access as those guaranteed to "any person" under subsection (a)(3), Congress as a body (or through its committees and subcommittees) cannot be denied access to information on the grounds of FOIA exemptions. (32)

Subsection (e) of the FOIA (33) requires an annual report from each federal agency regarding its FOIA operations and an annual report from the Department of Justice regarding both FOIA litigation and the Department of Justice's efforts (primarily through the Office of Information and Privacy) to encourage agency compliance with the FOIA. (34) As of the annual FOIA report for fiscal year 1998 (due by February 1, 1999), agencies will prepare these reports for submission to the Department of Justice, (35) which in turn will make them available to the public through a single World Wide Web site. (36) Each agency also should make its annual FOIA report readily available on its own FOIA web site. (37)

Subsection (f) of the FOIA (38) defines the term "agency" so as to subject the records of nearly all executive branch entities to the Act and defines the term "record" to include information maintained in an electronic format. (See discussions of the terms "agency" and "record" under Procedural Requirements, below.) Additionally, newly added subsection (g) of the FOIA (39) now requires agencies to prepare FOIA reference guides describing their information systems and their processes of FOIA administration, which may assist potential FOIA requesters. (40)

As originally enacted in 1966, the FOIA contained, in the views of many, weaknesses which detracted from its ideal operation. In response, the courts fashioned certain procedural devices, such as the requirement of a "Vaughn Index"--a detailed index of withheld documents and the justification for their exemption, established in Vaughn v. Rosen (41)--and the requirement that agencies release segregable nonexempt portions of a partially exempt record, first established in EPA v. Mink. (42)

In an effort to further extend the FOIA's disclosure requirements, and also as a reaction to the abuses of the "Watergate era," the FOIA was substantially amended in 1974. The 1974 FOIA amendments considerably narrowed the overall scope of the Act's law enforcement and national security exemptions, and it also broadened many of its procedural provisions--such as those relating to fees, time limits, segregability, and in camera inspection by the courts. (43) At the same time, Congress enacted the Privacy Act of 1974, (44) which supplements the FOIA when requests are made by individuals for records about themselves (45) and also contains a variety of separate privacy protections. (46) (For a discussion of the Privacy Act's provisions, see the Department of Justice's "Overview of the Privacy Act of 1974.")

In 1976, Congress again limited what could be withheld as exempt from disclosure under the FOIA, this time by narrowing its incorporation of the disclosure prohibitions of other statutes. (See discussion of Exemption 3, below.) A technical change was made in 1978 to update the FOIA's provision for administrative disciplinary proceedings, (47) and in 1984 Congress repealed the expedited court-review provision previously contained in former subsection (a)(4)(D) of the Act. (48)

In 1986, after many years of administrative experience with the FOIA demonstrated that the Act was in need of both substantive and procedural reform, (49) Congress enacted the Freedom of Information Reform Act of 1986, (50) which amended the FOIA to provide broader exemption protection for law enforcement information, plus special law enforcement record exclusions, and also created a new fee and fee waiver structure. (51) While all of the law enforcement provisions of the 1986 FOIA amendments became effective immediately, the revised fee and fee waiver provisions became effective as of mid-1987, with implementing regulations required for full effectiveness. (52) The Department of Justice and other federal agencies took a number of different steps to implement the provisions of the 1986 FOIA amendments. (53)

In October 1996, after several years of legislative consideration of "electronic record" issues, (54) Congress enacted the Electronic Freedom of Information Act Amendments of 1996, (55) which addressed the subject of electronic records, as well as the subject areas of FOIA reading rooms and agency backlogs of FOIA requests, among other procedural provisions. (56) Some of the provisions of the Electronic FOIA amendments became effective as of March 31, 1997, some provisions became effective as of October 2, 1997, and some reading room provisions and annual reporting provisions do not take effect until later dates. (57) (See discussions of the provisions of the Electronic FOIA amendments under FOIA Reading Rooms, Procedural Requirements, Fees and Fee Waivers, and Litigation Considerations, below.) The Department of Justice and other federal agencies have taken a number of different steps to implement the provisions of the Electronic FOIA amendments. (58)

Another significant Freedom of Information Act development was the issuance in October 1993 of statements of new FOIA policy by both President Clinton (59) and Attorney General Janet Reno, (60) which together established a strong new spirit of openness in government under the FOIA. (61) In conjunction with President Clinton's call upon all agencies to follow "the spirit" as well as the letter of the Act, (62) Attorney General Reno's FOIA Memorandum articulated the FOIA's "primary objective"--that of achieving "maximum responsible disclosure of government information." (63)

Among other things toward that disclosure objective, Attorney General Reno's FOIA Memorandum (1) rescinded the Department of Justice's previous standard for the defense of FOIA litigation; (2) established a new "foreseeable harm" standard applicable to the use of FOIA exemptions both in litigation and at the administrative level; and (3) strongly encouraged the making of discretionary disclosures of exempt information "whenever possible under the Act." (64) (See further discussions of these FOIA policy principles under Exemption 5, Application of the "Foreseeable Harm" Standard, below; Discretionary Disclosure and Waiver, below; and Litigation Considerations, below.) These FOIA-disclosure policies are being implemented by agencies throughout the federal government as part of a range of related openness-in-government initiatives undertaken by the Department of Justice. (65)

In sum, the FOIA is a vital, continuously developing mechanism which, with necessary refinements to accommodate both technological advancements and society's interests in an open and fully responsible government, can truly enhance our democratic way of life.

1. 5 U.S.C. ' 552 (1994 & Supp. II 1996).

2. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

3. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989).

4. President's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993) [hereinafter President Clinton's FOIA Memorandum], reprinted in FOIA Update, Summer/Fall 1993, at 3.

5. See S. Rep. No. 89-813, at 3 (1965).

6. 5 U.S.C. ' 1002 (1964) (amended 1966).

7. See S. Rep. No. 89-813, at 5 (1965).

8. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).

9. See 5 U.S.C. ' 552(d).

10. See Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979); see also, e.g., FOIA Update, Summer 1985, at 3 ("OIP Guidance: Discretionary Disclosure and Exemption 4").

11. See 5 U.S.C. ' 552(a)(4)(B)-(C); see also FOIA Update, Spring 1985, at 6.

12. 5 U.S.C. ' 552(a)(1).

13. See, e.g., Aulenback, Inc. v. Federal Highway Admin., 103 F.3d 156, 168 (D.C. Cir. 1997); Hughes v. United States, 953 F.2d 531, 539 (9th Cir. 1992); NI Indus., Inc. v. United States, 841 F.2d 1104, 1107 (Fed. Cir. 1988); Bright v. INS, 837 F.2d 1330, 1331 (5th Cir. 1988); see also DiCarlo v. Commissioner, T.C. Memo 1992-280, slip op. at 9-10 (May 14, 1992) (publication in United States Government Manual, special edition of Federal Register, satisfies publication requirement of subsection (a)(1)(A) (citing 1 C.F.R. ' 9 (1992))).

14. See FOIA Update, Summer 1992, at 3-4 ("OIP Guidance: The `Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)") (advising agencies to meet their subsection (a)(1) responsibilities on no less than quarterly basis).

15. 5 U.S.C. ' 552(a)(2) (amended 1996).

16. Id. ' 552(a)(2)(A)-(D).

17. See FOIA Update, Summer 1992, at 4; see also FOIA Update, Winter 1998, at 3-4; FOIA Update, Winter 1997, at 3-5.

18. See FOIA Update, Fall 1996, at 1-2 (discussing provisions of Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048); see also FOIA Update, Summer 1998, at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update, Summer 1997, at 1-2 (describing early agency development of World Wide Web sites for "electronic reading room" purposes).

19. See, e.g., Welch v. United States, 750 F.2d 1101, 1111 (1st Cir. 1985).

20. See, e.g., Kennecott Utah Copper Corp. v. United States Dep't of the Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996) ("Congress has provided [a] means for encouraging agencies to fulfill their obligation to publish materials in the Federal Register" by "protect[ing] a person from being adversely affected" by an unpublished regulation.); Checkosky v. SEC, 23 F.3d 452, 459 (D.C. Cir. 1994); NI Indus., 841 F.2d at 1108; D&W Food Ctrs. v. Block, 786 F.2d 751, 757-58 (6th Cir. 1986); Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir. 1977); see also Texas Health Care Ass'n v. Bowen, 710 F. Supp. 1109, 1113-14, 1116 (W.D. Tex. 1989).

21. See, e.g., United States v. F/V Alice Amanda, 987 F.2d 1078, 1084-85 (4th Cir. 1993) (denying statutory defense of subsection (a)(1) when defendant had copy of unpublished regulations); United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (finding that IRS's failure to publish tax forms did not preclude defendants' convictions for income tax evasion, as defendants had notice of duty to pay those taxes, duty is "manifest on face" of statutes, listing of places when forms can be obtained is published in Code of Federal Regulations, and defendants had filed tax returns before); Lonsdale v. United States, 919 F.2d 1440, 1447 (10th Cir. 1990); Tearney v. National Transp. Safety Bd., 868 F.2d 1451, 1454 (5th Cir. 1989); Bright, 837 F.2d at 1331; Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1018 (9th Cir. 1987); Sierra Club North Star Chapter v. Pena, 1 F. Supp. 2d 971, 980 (D. Minn. 1998) (holding organization subject to unpublished agency interpretation when it was "repeatedly informed" of agency's position); see also United States v. $200,000 in United States Currency, 590 F. Supp. 866, 874-75 (S.D. Fla. 1984) (alternative holding) (determining that published regulations adequately apprised individuals of obligation to use unpublished reporting form).

22. See, e.g., Lake Mohave Boat Owners Ass'n v. National Park Serv., 78 F.3d 1360, 1368 (9th Cir. 1996); Alliance for Cannabis Therapeutics v. DEA, 13 F.3d 1131, 1136 (D.C. Cir. 1994); Bowers, 920 F.2d at 222; Sheppard v. Sullivan, 906 F.2d 756, 762 (D.C. Cir. 1990); Nguyen v. United States, 824 F.2d 697, 702 (9th Cir. 1987); Coos-Curry Elec. Coop., Inc. v. Jura, 821 F.2d 1341, 1347 (9th Cir. 1987).

23. Alliance for Cannabis Therapeutics, 15 F.3d at 1136 (citing Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984)).

24. See McKenzie v. Bowen, 787 F.2d 1216, 1222-23 (8th Cir. 1986); see also Lake Mohave Boat Owners, 78 F.3d at 1368 (finding rate-setting guidelines to be "an agency staff manual governed by ' 552(a)(2)," requiring only public availability, not Federal Register publication under subsection (a)(1)); Capuano v. National Transp. Safety Bd., 843 F.2d 56, 57-58 (1st Cir. 1988); Pagan-Astacio v. Department of Educ., No. 93-2173, slip op. at 9 (D.P.R. June 1, 1995) (determining that agency need not publish directory explaining existing regulation when it publishes Federal Register notice explaining where directory is available), aff'd, 81 F.3d 147 (1st Cir. 1996) (unpublished table decision); Medics, Inc. v. Sullivan, 766 F. Supp. 47, 52-53 (D.P.R. 1991); Sturm v. James, 684 F. Supp. 1218, 1223 n.6 (S.D.N.Y. 1988).

25. See Hamlet v. United States, 63 F.3d 1097, 1103 (Fed. Cir. 1995) (holding that publication not required for personnel manuals "related solely to the [agency's] internal personnel rules and practices"); Pruner v. Department of the Army, 755 F. Supp. 362, 365 (D. Kan. 1991) (holding that Army regulation governing procedures for applications for conscientious objector status concerned internal personnel matters and were not required to be published); see also Dilley v. National Transp. Safety Bd., 49 F.3d 667, 669-70 (10th Cir. 1995) (holding that publication of policy regarding FAA's authority to suspend pilot certificates not required when statute clearly grants agency broad disciplinary powers); Lonsdale, 919 F.2d at 1446-47 (holding that FOIA does not require publication of Treasury Department orders which internally delegate authority to enforce internal revenue laws). But see Smith v. National Transp. Safety Bd., 981 F.2d 1326, 1328-29 (D.C. Cir. 1993) (holding that unpublished policy bulletin regarding sanctions was not valid basis for suspension of license because sanctions policy affects public by altering public's behavior).

26. See 5 U.S.C. ' 552(a)(1); see, e.g., Xin-Chang Zhang v. Slattery, 55 F.3d 732, 749 (2d Cir. 1995) (reversing district court's order that agency give effect to unpublished rule after finding plaintiff adversely affected by lack of publication, when rule was to be effective only on date of publication and "[b]y its own terms, the [r]ule never became effective"); Clarry v. United States, 891 F. Supp. 105, 110-11 (E.D.N.Y. 1995) (stating that failure to publish notice of ban for reemployment of strikers did not violate FOIA's notice requirement when rule was not "formulated and adopted" by agency but was authorized by presidential directive and by statute); Peng-Fei Si v. Slattery, 864 F. Supp. 397, 405 (S.D.N.Y. 1994) ("The FOIA cannot be used to force an agency to adopt a new regulation that it withdrew from publication for the specific purpose of determining whether or not it should be adopted."); Xiu Qin Chen v. Slattery, 862 F. Supp. 814, 822 (E.D.N.Y. 1994) ("[A]n agency cannot be bound by [an un]published rule in a situation in which the agency never actually adopted the rule."); cf. Kennecott, 88 F.3d at 1202-03 (finding that FOIA does not authorize district court to order publication of regulation withdrawn by new administration before it could be published).

27. See 5 U.S.C. ' 552(a)(3)(A) (stating that "FOIA request" under subsection (a)(3) cannot be made for any records "made available" under subsections (a)(1) or (a)(2)); United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 152 (1989); Schwarz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S. App. LEXIS 4609, at *1 (D.C. Cir. Feb. 22, 1996); Hardy v. ATF, 631 F.2d 653, 657 (9th Cir. 1980); Reeves v. United States, No. 94-1291, 1994 WL 782235, at **1-2 (E.D. Cal. Nov. 16, 1994); see also FOIA Update, Winter 1995, at 2; FOIA Update, Summer 1992, at 4; FOIA Update, Spring 1991, at 5. But see FOIA Update, Winter 1997, at 3 (advising that while ordinary rule is that records placed in reading room under subsection (a)(2) cannot be subject of regular FOIA request, Congress made clear that rule does not apply to new subsection (a)(2)(D) category of FOIA-processed records) (citing H.R. Rep. No. 104-795, at 21 (1996)).

28. 5 U.S.C. ' 552(c).

29. Pub. L. No. 99-570, ' 1801-1804, 100 Stat. 3207, 3207-48.

30. See generally Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 18 (Dec. 1987).

31. 5 U.S.C. ' 552(d).

32. See FOIA Update, Winter 1984, at 3-4 ("OIP Guidance: Congressional Access Under FOIA") (citing, e.g., H.R. Rep. No. 89-1497, at 11-12 (1966)); see also 5 U.S.C. ' 552a(b)(9) (1994 & Supp. II 1996) (counterpart provision of Privacy Act of 1974); cf. Leach v. RTC, 860 F. Supp. 868, 878-79 & n.13 (D.D.C. 1994) (treating contrary statements in Murphy v. Department of the Army, 613 F.2d 1151, 1156-58 (D.C. Cir. 1979), as "mere dicta"), appeal dismissed per stipulation, No. 94-5279 (D.C. Cir. Dec. 22, 1994).

33. 5 U.S.C. ' 552(e).

34. See id. ' 552(e)(5); see, e.g., FOIA Update, Summer 1998, at 6 (describing range of OIP policy activities in connection with governmentwide implementation of Electronic FOIA amendments); FOIA Update, Summer/Fall 1993, at 8-9 (describing range of OIP policy activities, including its "ombudsman" function); see also FOIA Update, Fall 1987, at 2 (further description of same).

35. See 5 U.S.C. ' 552(e)(1); FOIA Update, Summer 1997, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports"); see also FOIA Update, Summer 1998, at 2 (advising agencies further on preparation of annual FOIA reports).

36. See FOIA Update, Summer 1998, at 2 (advising agencies on proper FOIA web site treatment of annual FOIA reports, in compliance with new electronic availability requirements of 5 U.S.C. ' 552(e)(2)-(3), including through agency identification of Uniform Resource Locator (URL) for each report); FOIA Update, Winter 1998, at 5; see also FOIA Update, Fall 1996, at 11 (setting forth effective dates for annual report provisions of Electronic FOIA amendments).

37. See 5 U.S.C. ' 552(e)(2); see also FOIA Update, Summer 1998, at 4 (advising agencies to "clearly indicate the year of each of [their annual FOIA] reports" on their FOIA web sites).

38. 5 U.S.C. ' 552(f).

39. Id. ' 552(g).

40. See FOIA Update, Summer 1998, at 3 (referencing revised OMB guidance to agencies on contents of FOIA reference guides); see also FOIA Update, Spring 1997, at 1 (discussing electronic publication of Justice Department's FOIA Reference Guide).

41. 484 F.2d 820, 827 (D.C. Cir. 1973).

42. 410 U.S. 73, 91 (1973); see 5 U.S.C. ' 552(b) (sentence immediately following exemptions) (requiring disclosure of any "reasonably segregable" nonexempt information); see also FOIA Update, Summer/Fall 1993, at 11-12 ("OIP Guidance: The `Reasonable Segregation' Obligation"); cf. FOIA Update, Winter 1996, at 1-2 (describing agency use of document imaging in automated FOIA processing).

43. See, e.g., James T. O'Reilly, Federal Information Disclosure ' 3.08 (2d ed. 1998) (summarizing provisions of 1974 FOIA amendments).

44. 5 U.S.C. ' 552a (1994 & Supp. II 1996).

45. See 5 U.S.C. ' 552a(d); see, e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987) (discussing relation between two acts); see also 5 U.S.C. ' 552a(t) (addressing interrelationship of exemptions in two acts).

46. See 5 U.S.C. ' 552a; see also Memorandum on Privacy and Personal Information in Federal Records, 34 Weekly Comp. Pres. Doc. 870 (May 14, 1998), available in Westlaw, 1998 WL 241263 (May 14, 1998) (executive memorandum to heads of all federal departments and agencies on Privacy Act-related matters); FOIA Update, Spring 1998, at 1 (describing executive memorandum).

47. 5 U.S.C. ' 552(a)(4)(F).

48. See Federal Courts Improvement Act of 1984, Pub. L. No. 98-620, ' 402, 98 Stat. 3335, 3357 (1984) (codified at 28 U.S.C. ' 1657 (1994)) (repealing provision formerly codified at 5 U.S.C. ' 552(a)(4)(D)); see also FOIA Update, Spring 1985, at 6.

49. See generally Freedom of Information Act: Hearings on S. 587, S. 1235, S. 1247, S. 1730, and S. 1751 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. (1981) (two volumes); see also FOIA Update, Spring 1986, at 1; FOIA Update, Fall 1984, at 1; FOIA Update, Summer 1984, at 1, 4; FOIA Update, Winter 1984, at 1, 6; FOIA Update, Summer 1983, at 1-2; FOIA Update, Spring 1983, at 1; FOIA Update, June 1982, at 1-2; FOIA Update, March 1982, at 1-2; FOIA Update, Dec. 1981, at 1-2, 3-8; FOIA Update, Sept. 1981, at 1-2; FOIA Update, June 1981, at 1-2.

50. Pub. L. No. 99-570, 100 Stat. 3207.

51. See FOIA Update, Fall 1986, at 1-2; see also id. at 3-6 (setting out statute in its amended form, interlineated to show exact changes made).

52. See FOIA Update, Winter/Spring 1987, at 1-2.

53. See id.; FOIA Update, Summer 1988, at 1-14; FOIA Update, Winter 1988, at 2.

54. See, e.g., FOIA Update, Spring 1992, at 1, 3-10 (congressional testimony discussing need to modify FOIA to accommodate "electronic record" environment); see FOIA Update, Summer 1996, at 1-2 (describing electronic record legislative proposal); FOIA Update, Spring 1996, at 1 (same); see also FOIA Update, Fall 1994, at 1-6; FOIA Update, Summer 1994, at 1-2; FOIA Update, Winter 1994, at 1; FOIA Update, Fall 1991, at 1-2.

55. Pub. L. No. 104-231, 110 Stat. 3048.

56. See FOIA Update, Fall 1996, at 1-2, 10-11 (discussing statutory changes); see also id. at 3-9 (setting out statute in its amended form, interlineated to show exact changes made); President's Statement on Signing the Electronic Freedom of Information Act Amendments of 1996, 32 Weekly Comp. Pres. Doc. 1949 (Oct. 7, 1996), reprinted in FOIA Update, Fall 1996, at 9.

57. See FOIA Update, Fall 1996, at 11 (including chart showing different effective dates for Electronic FOIA amendments' different provisions, ranging from March 31, 1997, to December 31, 1999).

58. See FOIA Update, Summer 1998, at 5-6 (Department of Justice congressional testimony describing agency's amendment implementation activities); id. at 3-4 ("OIP Guidance: Recommendations for FOIA Web Sites"); FOIA Update, Winter 1998, at 3-5 ("OIP Guidance: Electronic FOIA Amendments Implementation Guidance Outline"); FOIA Update, Summer 1997, at 1-2 (describing agency amendment implementation activities involving development of World Wide Web sites); id. at 3-7 (Department of Justice guidelines on implementation of new annual reporting requirements); FOIA Update, Spring 1997, at 1 (describing Justice Department's amendment implementation activities, including development of FOIA Reference Guide); FOIA Update, Winter 1997, at 3-7 (addressing amendment implementation questions); FOIA Update, Fall 1996, at 1-11; see also FOIA Update, Summer 1998, at 2 (addressing additional amendment implementation questions); FOIA Update, Spring 1998, at 2 ("Web Site Watch" discussion of agency FOIA web sites); FOIA Update, Winter 1998, at 2 (same); FOIA Update, Winter 1998, at 6 (addressing additional amendment implementation questions); FOIA Update, Spring 1997, at 2 (same); Revised Department of Justice FOIA Regulations, 28 C.F.R. pt. 16 (1998); cf. FOIA Update, Winter 1998, at 5 (advising agencies to implement amendments "without any disadvantage to FOIA requesters," regardless of status of implementing regulations). See generally FOIA Update, Summer 1998, at 1 (describing congressional hearing on agency amendment implementation activities).

59. President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3.

60. Attorney General's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act (Oct. 4, 1993) [hereinafter Attorney General Reno's FOIA Memorandum], reprinted in FOIA Update, Summer/Fall 1993, at 4-5.

61. See FOIA Update, Summer/Fall 1993, at 1-2.

62. President Clinton's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 3; see also FOIA Update, Summer/Fall 1993, at 1 (describing other aspects of President Clinton's FOIA Memorandum).

63. Attorney General Reno's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 4-5; see also FOIA Update, Summer/Fall 1993, at 5 (follow-up Attorney General memorandum urging "new institutional attitude toward FOIA administration").

64. Attorney General Reno's FOIA Memorandum, reprinted in FOIA Update, Summer/Fall 1993, at 4-5; see also FOIA Update, Spring 1997, at 1 (describing Attorney General's reiteration of importance of "foreseeable harm" standard to federal agencies in order to promote further discretionary disclosure in agency decisionmaking).

65. See FOIA Update, Spring 1994, at 1-2; see also FOIA Update, Summer 1998, at 5; FOIA Update, Summer 1996, at 7; FOIA Update, Fall 1995, at 1; FOIA Update, Winter 1995, at 1-2; FOIA Update, Fall 1994, at 7; FOIA Update, Summer/Fall 1993, at 2, 10, 12; cf. FOIA Update, Summer 1994, at 6 (describing National Performance Review FOIA activities at Justice Department).