Cybertelecom Federal Internet Law & Policy An Educational Project

EGovt: eFOIA & Federal Records

A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy - or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives. - James Madison

The Freedom of Information Act (FOIA) is one of those fundamental democratic principles that is so solidly rooted in common sense that Joe Citizen would automatically presume that it was written by the wise Ben Franklin himself. Yet FOIA has only been around since 1966 - enacted as a part of the Administrative Procedures Act. FOIA is the rather sound principle that in a democracy, it is good for the government to live in a glass house. If the Feds scrawl something down on paper, then Joe Citizen has a right to see that piece of paper. Secrets are an anathema to a democratic government; Government records, documents, notes, and chicken scratch are all subject to disclosure to the people.

The other side of this of course is that in a tech world where Non Disclosure Agreements were exchanged as easily as business cards, individuals who seek to petition the government must come to realize that anything that they say to the government can and will be used against them -- produced in an editorial by some hot shot reporter who just FOIAed all their records. This has become of particular concern in the context of network security where the government has sought to promote information sharing among parties without having sensitive information disclosed to the public.

To give you a bit of a taste of FOIA, recall if you will a time where the computer revolution was in full swing but the Internet revolution had yet to reach the masses. Oliver North sought to implement the will of the President, or perhaps subvert the Constitution, depending on your perspective. Some questions were raised about the legality of Mr. North providing aid to the Contras in Honduras with what was apparently drug money in contravention of Congressional mandate. Mr. North was heard to testify before Congress "Mistakes were made." One of those mistakes was leaving an email trail that did not disappear into the ether when the delete key was hit. Ollie's email became a surprise witness against Oliver North.

An odd skirmish broke out in Washington with the departing Bush Sr. and the incoming Clinton Administrations finding themselves on the same side of the issue, while archivists, libraries, and reporters fought to keep the Bush Administration from jamming reams of electronic records through the shredder. The turmoil climaxed in 1996 with the enactment of the eFOIA Act. It was a simple clarification of FOIA: "Agency" means everybody, even the president, and "record" means everything, including stuff in electronic format. eFOIA Act also requires agencies to provide substantial quantities of information on agency websites (similar to the material found in a reading room), post repeatedly requested documents, and develop aids for locating records. This means that by law one should find on an agency's website such things as final opinions, concurring and dissenting opinions, orders, statements of policy, manuals, instructions to staff, and, of course, the agency's annual FOIA report.

In addition, the Federal Records Act, requires certain emails to be provided to the National Archives where they will be made available for public viewing.

In sum, FOIA clearly covers the electronic world. If it's a record, the public can get at it (subject to some specific exceptions, fortified with the passage of the Patriot Act). A great deal of what the public may want to find should already be posted up on an agencies website.

There are exceptions to FOIA. The first is that the government does not need to waste its resources responding to individual FOIA requests when it already makes the material available to the public, including through federal websites. Second, agencies need not respond positively to a FOIA request when it deals with a matter of national security, when the material concerns a business secret and the business is requesting confidentiality, when the matter is a subject of an ongoing investigation, and so on.

Note that FOIA responses may be only as good as a FOIA request. Make the request poorly and one risks missing the documents actually desired. Make the request too broad and the feds will simply bounce it back for narrowing.

Depending on who the requester is, the requester may have to pay for the FOIA response.

Finally, requesters who believe that an agency has failed to appropriately respond to a FOIA request can consider seeking judicial relief. If, for example, the requester feels that the agency has improperly refused to turn documents over, the requester can ask that a court order the documents turned over. Likewise, a failure to respond can be treated as a refusal to turn over documents and can be appealed to court.

Law

• FOIA
  • eFOIA 5 U.S.C. § 552, et seq.
  • 36 C.F.R. Parts 1220 et seq.
  • DOJ FOIA Information
  • DOJ FOIA Reference Guide(Dec. 2002)
  • Agencies frequently will also have their own webpages documenting how to file a FOIA request with that agency.
  • John Ashcroft Reverses Janet Reno's policy of open government and responding as positively as possible to all FOIA requests.  Memo Oct 12, 2001.
  • Update, Winter 1997 OIP Guidance: Amendment Implementation Questions The following is a compilation of questions raised concerning provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, and answers provided to guide agency implementation of those provisions (requires federal agencies to place their reading room material online)
  • Information Management: Update on Implementation of the 1996 electronic Freedom of Information Act Amendments , Report Number GAO-02-493 August 30, 2002
  • Electronic Freedom of Information Act Amendments of 1996 (Section 555 of Title 5)
• Federal Records Act, 44 U.S.C. Chapter 33 (requiring government to retain certain records for set periods of time);
  • 44 U.S.C. ss 2101-2118, 2901-2910, 3101-3107, 3301-3324.
  • Armstrong v. Executive Office of the President, 810 F. Supp 335 (D.C. Cir. 1993) (requiring certain email and stored data to be retained and made available for the National Archives )
• S.337 - FOIA Improvement Act of 2016

  (Sec. 2) This bill amends the Freedom of Information Act (FOIA) to:

  • require federal agencies to make their disclosable records and documents available for public inspection in an electronic format;
  • require agencies to make available for inspection in an electronic format records that have been requested three or more times (frequently requested records);
  • prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request;
  • prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness);
  • limit the FOIA exemption for agency communications to allow the disclosure of agency records created 25 years or more before the date of a FOIA request;
  • require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;
  • expand the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy;
  • establish a Chief FOIA Officers Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests, disseminating information about agency experiences, identifying, developing, and coordinating initiatives to increase transparency and compliance, and promoting performance measures to ensure agency compliance with FOIA requirements; and
  • require the Director of the Office of Management and Budget to ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single website.
• Oliver North's Email Controversy, PROFS case
  • EFF "Legal - Case - PROFS (Armstrong v. Exec. Offc. of the President)" Archive
  • Appellate Decision 1993
  • Brief of the Appellant 1996 DC Cir
  • Collection of email traffic
  • E-mail Metadata In A Post-Armstrong World Jason R. Baron  U.S. Department of Justice  Civil Division, Federal Programs Branch (excellent summary of the litigation and its outcome) - A significant part of Armstrong is the judicial decision that paper records of email are insufficient, that the records must be retained in machine readable (electronic) format.  The rational is that a paper printed version lacks significant information such as the complete header.
  • Public Citizen v. Carlin, 2 FSupp2d 1 (DDC 1997)
• The Government Printing Office Electronic Information Access Enhancement Act, S. 564 (P.L. 103-40) "which moves the Government Printing Office forward into the delivery of on-line federal data resources, including the Federal Register and the Congressional Record. It calls for the development of an electronic directory of federal public information. These and other on-line data files will be free to depository libraries and available at the incremental cost of dissemination to other users."

Archives and Libraries

• See Intellectual Property
• Record Archives
  • Transfer of Permanent E-records to NARA, National Archives
  • Expanding Acceptable Transfer Requirements: Transfer Instructions for Existing Email Messages with Attachments "As part of the National Archives and Records Administration's (NARA) e-Gov initiative, and in cooperation with other Federal agencies, NARA is issuing guidance intended to supplement existing requirements in 36 CFR 1228.270 for transferring electronic records to NARA. This guidance expands currently acceptable formats to allow the transfer of email messages and their attachments to NARA."  Sept 2002
  • 36 CFR § 1228.270 Transfer of Records to the National Archives of the United States: Electronic Records
  • US National Archives and Records Administration
  • NARA issues e-records guide, FCW 9/21/2004
  • NARA Regs on preservation of email. 63 Fed. Reg. 44,634; see generally 36 C.F.R. Parts 1220, 1222, 1228 and 1234 (1998).
  • See also Federal Records Act (requiring govt to preserve records for set period of time)
  • NARA Electronic Records Archive
  • E-Government Electronic Records Management Initiative

 National Digital Information Infrastructure and Preservation Program

• Website "The preservation of digital content has become a major challenge for society. Thus, in 1998 the Library of Congress began to develop a digital strategy with a group of senior managers who were charged with assessing the roles and responsibilities of the Library in the digital environment. This oversight group was headed by the Associate Librarian for Strategic Initiatives, the Associate Librarian for Library Services and the Register of Copyrights. This group has held several planning meetings to assess the current state of digital archiving and preservation. The Library has also assembled a National Digital Strategy Advisory Board to guide the Library and its partners as they work to develop a strategy and plan, subject to approval by Congress." About

News

• White House E-Mail Lost in Private Accounts, Wash Post 4/12/2007
• Most Fed Agencies Out of Step With Freedom of Information Act, Ecommerce Times 3/14/2007