Releasing Records

  The FOIA Process  Making a FOIA Request ↓↑ Pre-determination communications ↓ Pre-determination agency actions ↓ Determinations ↓ Releasing Records ↓↑ Administrative Appeals and/or OGIS ↓ Litigation

Introduction
After an agency makes a determination, it will release records responsive to a FOIA request that it does not assert fall within one of FOIA's Exemptions. When releasing records, an agency must generally segregate an exempt information from non-exempt information, and release the latter to the requester. Those records should, in most cases, be in the format specified by the requester.

Timing
FOIA requires that records be made "promptly available" after a determination has been made.

The Court of Appeals for the D.C. Circuit has stated that "depending on the circumstances ['promptly available'] typically would mean within days or a few weeks of a 'determination,' not months or years."

Duty to segregate and release non-exempt information
Under the federal FOIA, agencies cannot withhold non-exempt information found in a record merely because the record also contains exempt information. Agencies have a “duty to segregate” and provide releasable information. The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”

For example, in one case a requester sought letters sent from taxpayers to Congress about taxpayer related issues. The U.S. Court of Appeals for the District of Columbia Circuit ordered the IRS to disclose information that could reasonably be segregated from tax return information that should be withheld from release under a federal law. The court found that the IRS should have redacted information that identified taxpayers — such as names and addresses — and released the non-identifiable information.

The duty to segregate also ensures that agencies are not allowed to issue “sweeping, generalized claims of exemption for documents.” Instead, agencies must describe which passages in a document have been withheld, and under which exemption. In addition, where an agency claims that it is unable to segregate documents, the agency must “describe what proportion of the information in a [withheld] document is non-exempt and how that material is dispersed throughout the document.”

Additionally, the D.C. Circuit has noted that “FOIA does not require that information must be helpful to the requestee before the government must disclose it. FOIA mandates disclosure of information, not solely disclosure of helpful information.”

If materials are described as exempt in very broad terms, portions of it are likely to be segregable. The U.S. Court of Appeals for the District of Columbia Circuit has held that the use of the qualifying term “primarily” in describing what information was contained in a document an agency sought to withhold suggested that other portions of the withheld documents were likely to be releasable.

The U.S. Court of Appeals for the District of Columbia Circuit has also held that the redaction of non-responsive material within records that are otherwise responsive is improper. "[O]nce an agency itself identifies a particular document or collection of material—such as a chain of emails—as a responsive 'record,' the only information the agency may redact from that record is that falling within one of the statutory exemptions."

Inextricably intertwined information
Despite the general duty to release all non-exempt information, special situations exist where an agency is not required to segregate. For instance, an agency generally may withhold entire documents “if exempt and nonexempt information are ‘inextricably intertwined,’ such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.”

For example, in a case where requesters sought factual portions of reports submitted to OSHA that were used in deciding a lead safety standard, the U.S. Court of Appeals for the Second Circuit found that the factual information in a report was “inextricably intertwined” with the agency’s deliberative process. The court held that “[d]isclosing factual segments from the. . . summaries would reveal the deliberative process of summarization itself by demonstrating which facts in the massive rule-making record were considered significant by the decisionmaker and those assisting her.” As a result, the court ruled that the factual information had properly been withheld under Exemption 5.

In another case, a law firm sought information about an amino acid collected under a federal surveillance program. The requester sought the computer software used to analyze the data. The court held that this computer software, which was tailored to the specific data sets it was used to analyze, was “inextricably intertwined” with the deliberative process of agency scientists and properly withheld under Exemption 5.

Where a small number of documents are concerned, it is possible than an agency can inappropriately raise the “inextricably intertwined” argument when providing redacted information will not impose significant costs. For instance, in a case where only 36 pages of responsive documents were withheld by the Bureau of Alcohol, Tobacco, and Firearms, the U.S. Court of Appeals for the First Circuit rejected the “inextricably intertwined” argument, because it found that in that situation, even “line-by-line analysis” did not appear unreasonable.

Electronic databases and other record formats
As technology continues to advance beyond paper records, courts have addressed the governments' duty to use technology to segregate exempt from non-exempt information.

In the database context, the Second Circuit ordered an agency to find a reasonable way to substitute non-exempt data points in place of exempt data points. The plaintiff had requested spreadsheets from Immigration and Customs Enforcement regarding deportations, with the instruction that the agency delete individual deportees' identifiers (called "A-Numbers") and replace them with anonymized, unique values. The government confirmed there were ways to redact the data in this way, but that doing so would create a new record, which is not required under FOIA. The Second Circuit disagreed, ruling, "Substitution would simply preserve the function that such numbers performed in identifying responsive, non-exempt records within ICE databases." Under the circumstances of that case, at least, "the substitution of Unique IDs for A-Numbers does not create any new agency records and is a reasonable step to shield the exempt content of A-Numbers while preserving the function necessary to afford public access to non-exempt records in the same person-centric form or format available to the agency."

In the video context, the D.C. Circuit rejected the government's vague argument that it was unable to blur faces, noting that there are various potential techniques.

Other limits on the duty to segregate
Additional exceptions to the duty to segregate exist. The U.S. Court of Appeals for the District of Columbia has held that when an agency claims a document is non-disclosable under the attorney work product privilege, it is not required to segregate material within the document. As you may have difficulty asserting that an agency has not met its duty to segregate where this privilege is invoked, you should instead argue that some or all of the documents simply do not meet requirements of that particular exemption.

Another exception to the duty to segregate exists under Exemption 1 regarding records related to national security. Courts may accept that unclassified information can be withheld entirely if releasable information, when assembled with other sensitive records, would warrant classification. The “compilation theory,” as it is known, essentially asks whether “information harmless in itself might be harmful when disclosed in context.” It may be difficult for a requester to challenge an agency’s failure to segregate where this theory is invoked as courts routinely give great deference to an agency in FOIA national security situations.

Marking of withheld portions of records
When making a release of records, FOIA requires that "The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made." Those deletions and exemptions "shall be indicated at the place in the record where such deletion is made" as long as it is "technically feasible".

Non-responsiveness not a proper basis to withhold part of otherwise responsive record
The Court of Appeals for the D.C. Circuit has held that the redaction of non-responsive material within records that are otherwise responsive is improper. "[O]nce an agency itself identifies a particular document or collection of material—such as a chain of emails—as a responsive 'record,' the only information the agency may redact from that record is that falling within one of the statutory exemptions."

Format of Records
When responding to a request, the FOIA requires agencies to "provide the [requested] record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format" and to also "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes. Agencies must not only honor a requester's choice of format among existing formats, but must also make reasonable efforts to disclose the record in a format not in existence at the the time of the request (for example, in an electronic format) if the record is "readily reproducible in that new format.

It should be noted that to obtain a record in a particular format, the requester must ask for it in their initial request; courts have rejected efforts by requesters to force agencies to produce records in a particular format in litigation when they did not so specify in the original request.

If records are not readily reproducible by the agency in the format requested, courts have not required agencies to release the records in that format.