Determinations

Introduction
The first substantive response to a FOIA request is called a "determination." For a determination to be made, an agency must generally complete its a search for responsive records, review the records, and communicate to the requester which records will be released, which will be withheld, and the legal basis for any withholdings. The deadline for an agency to make a determination is usually 20 working dates from the date it is received.

When an agency releases records, it 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.

Agency deadlines
For ordinary (i.e., non-expedited) FOIA requests, the agency make a "determination" within 20 working days. The 20 working day clock begins to run "on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency" designated in the agency’s regulations to receive FOIA requests.

If an request has been granted Expedited Processing, the agency must make a determination "as soon as practicable[.]" In one case, the District Court for the District of Columbia interpreted this phrase to mean that
 * "an agency that violates the twenty-day deadline applicable to standard FOIA requests presumptively also fails to process an expedited request 'as soon as practicable.' That is, a prima facie showing of agency delay exists when an agency fails to process an expedited FOIA request within the time limit applicable to standard FOIA requests."

Extensions to an agency's deadline
An agency may extend the 20-working day deadline for making a determination if "unusual circumstances" exist and it sends a written notification to the requester setting forth the unusual circumstances and the date on which a determination will be made. The extension generally may not be for more than 10 working days.

FOIA defines "unusual circumstances" as including three different situations:
 * "As used in this subparagraph, "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular requests—
 * (I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
 * (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
 * (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein."

If an agency invokes the 10 working day extension, but the request cannot be processed within that time frame, it must provide the requester with an opportunity to arrange an alternative time frame or modify the request. A requester is under no obligation to modify their request or the agency's deadline, but a refusal to do so may factor into whether "exceptional circumstances" exist, which may have implications in litigation.

Tolling an agency's deadline
In addition to the extensions referenced above, an agency may "toll" (i.e. pause) the 20-working day deadline for two reasons:
 * First, the agency "may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester[.]"
 * Second, the agency may toll the deadline "if necessary to clarify with the requester issues regarding fee assessment."

Once the requester provides the requested information, the tolling period is ended and the 20-working day clock begins to run again.

The tolling provisions in FOIA do not apply to a request that has been granted expedited processing.

Enforcing an agency's deadline
If an agency fails to make a determination on a FOIA request by the relevant deadline, a requester may either file an administrative appeal or commence judicial proceedings against the agency. See the entries on Administrative Appeals and Exhaustion of Administrative Remedies for more information.

Required contents of a determination
There are several substantive requirements for an agency's response must meet to be considered a "determination." As noted elsewhere, acknowledgements, status updates, and other communications do not qualify as a determination.

Specifically, in order for an agency's response to qualify as a "determination," the agency must:
 * 1) gather and review the documents;
 * 2) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and
 * 3) inform the requester that it can appeal whatever portion of the 'determination' is adverse.

Although "a 'determination' does not require actual production of the records to the requester at the exact same time that the 'determination' is communicated to the requester," it "must be more than just an initial statement that the agency will generally comply with a FOIA request and will produce non-exempt documents and claim exemptions in the future."

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.”

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.

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.

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.

Format of Records

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