Affirmative Disclosures

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Introduction

Affirmative disclosures are sometimes alternatively referred to as "proactive" disclosures.

Some agency information is either required to be affirmatively published by the agency, or is otherwise required to be made available without waiting for a specific request to be made under 5 U.S.C. 552(a)(3). All proactively disclosed records should, to the extent practicable, be posted online on agency websites.[1] Only existing records, not future ones, are subject to affirmative disclosure requirements. [2]

However, note that in some circumstances, it may still be appropriate for agencies to "withhold" (i.e., not make available) a record, or portion of a record, which is otherwise designated for proactive disclosure if it falls within a FOIA exemption, just as is done in response to FOIA requests.[3]

Information required to be published under subsection (a)(1)

All federal agencies must publish certain types of records. Under 5 U.S.C. 552(a)(1), agencies are required to publish the following categories of information in the federal register:

(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.

The provision additionally states that:

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

Descriptions of Central and field organization and places to obtain information

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Describing the the central office of an agency will generally entail stating the whereabouts and address of its national headquarters. It is also common to include a summary of the departments housed within the central office, and the types of activities for which those departments are responsible.

Describing the field organization of an agency means outlining its basic organizational hierarchy. Typically, key regional centers will be identified and their addresses listed. The chain of command among key personnel may also be outlined.

If there is any other specific place at which the public can or should seek particular information, this should also be identified.

Statements of the general course and method of functions

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Rules of procedure

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Substantive rules and policy

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Information required to be made available under under subsection (a)(2)

Section 552(a)(2) of the FOIA applies to five categories of agency records that, while not automatically published in the federal register under subsection (a)(1) of the FOIA, must routinely be made "available for public inspection in an electronic format."

This "public inspection" requirement is satisfied by providing the public with access to the designated documents automatically and without waiting for a FOIA request.[4]

Note that the proactive disclosure provision of the FOIA imposes an affirmative disclosure obligation that requires agencies to not only maintain, but also to continuously update, the records in each of the four categories designated by subsection (a)(2) of the FOIA.[5]

The five categories are as follows:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the public;
(D) copies of all records, regardless of form or format, that have been released to any person [via a specific FOIA request] and which either: (I) because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or (II) have been requested 3 or more times;
(E) a general index of the records referred to under subparagraph (D)[.][6]

Final opinions made in the adjudication of cases

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Final opinions have included:

  • National Labor Relations Board "advice and appeals" memorandum deciding not to file unfair labor complain, when decision not to file effectively put an end to formal complaint procedure[7]
  • Parole decisions denying inmate applications for parole[8]

But have excluded:

  • Agency report of voluntarily conducted internal investigation into propriety of protection, because this determination was neither "case" nor "adjudication"[9]

Statements of policy and interpretations

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Such statements have included:

  • Social Security Ruling providing examples of medical conditions to be treated as "per se nonsevere"[10]
  • HHS documents that advised regional offices of agency's view on policy matters pertaining to certain welfare programs[11]
  • IRS Field Service Advice Memoranda[12]
  • Agency submissions to a trade panel containing an agency's interpretation of U.S.'s international legal obligations[13]

But have excluded:

  • Opinions in which Judge Advocates General of Army and Navy had authority only to dispense legal advice -- rendered in subject areas for which those officials did not have authority to act on behalf of agency[14]

Administrative staff manuals affecting a member of the public

Such manuals have included:

  • DEA agents' manual concerning treatment of confidential informants and search warrant procedures[15]
  • In the private section, a "Training Course for Compliance Safety and Health Officers" including all instructor and student manuals, training slides, films, and visual aids[16]
  • Memoranda approved by Office of Standards Enforcement, which set forth agency's policy regarding sampling plans that office had to follow when tire failed lab test under Federal Motor Vehicle Safety Standards[17]

But have excluded:

  • Administrative staff manuals pertaining to military hospital procedures did not "affect the public"[18]

Frequently requested records

Under this provision, when records are disclosed in response to a FOIA request, an agency is required to determine whether they have been the subject of multiple FOIA requests (i.e., three or more) or, in the agency's best judgment , are likely to be the subject of multiple requests in the future.[19]

Because public interest in the "frequently requested" records category may wane with time, agencies may exercise judgment as to the length of time that these records should be maintained on their websites.[20]

Index of records

An agency should provide an index of all those records made available because they are (or are likely to be) requested frequently. The index should ensure that members of the public are readily able to locate and access the relevant records.

Ordinarily this "indexing" obligation will be met simply by providing a direct link to each document falling into the "frequently requested" category.[21]

Exception to subsection (a)(2)

In an exception to the FOIA's proactive disclosure requirement, records that are published and offered for sale by an agency, either directly or indirectly [22] are not required to be proactively disclosed under subsection (a)(2).[23]

Enforcement of affirmative disclosure requirements

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Recent district court cases on affirmative disclosure

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See Also

External Links

https://www.justice.gov/oip/proactive-disclosures https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proactive-disclosures.pdf

References

  1. ↑ See President Obama's FOIA Memorandum, 74 Fed. Reg. at 4683 (directing agencies to "use modern technology" in disclosing information); Attorney General Merrick Garland's FOIA Memorandum (Mar. 2022), available at https://www.justice.gov/media/1212566/dl?inline=("In making proactive disclosures, agencies should post records online as soon as feasible."); Department of Justice, Office of Information Policy Guidance, "Proactive Disclosures – Timing and Format of Disclosures" (updated Aug. 30, 2022), available at https://www.justice.gov/oip/oip-guidance-further-improvement-based-2022-chief-foia-officer-report-review-and-assessment; Department of Justice, Office of Information Policy Guidance, "Proactive Disclosure of Non-Exempt Agency Information: Making Information Available Without the Need to File a FOIA Request" (updated Oct. 26, 2022), available at https://www.justice.gov/oip/oip-guidance/proactive_disclosure_of_non-exempt_information.
  2. ↑ See New York Times v. EPA, 316 F. Supp. 3d 245, No. 17-2588 (Jul. 10, 2018, D.D.C.).
  3. ↑ Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979); Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 n.21 (1975)
  4. ↑ See: FOIA Post, "Guidance on Submitting Certification of Agency Compliance with FOIA's Reading Room Requirements" (posted 6/27/2008); FOIA Update, Vol. XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic' Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)").
  5. ↑ See FOIA Post, "Guidance on Submitting Certification of Agency Compliance with FOIA's Reading Room Requirements" (posted 6/27/2008); see also FOIA Update, Vol. XVII, No. 4, at 1-2 (describing proactive disclosure requirements under Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048).
  6. ↑ 5 U.S.C. § 552(a)(2)
  7. ↑ NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155-59 (1975)
  8. ↑ Nat'l Prison Project v. Sigler, 390 F. Supp. 789, 792-93 (D.D.C. 1975)
  9. ↑ Rockwell Int'l Corp. v. DOJ, 235 F.3d 598, 603 (D.C. Cir. 2001) (finding that agency report of voluntarily conducted internal investigation into propriety of Rocky Flats prosecution was not "final opinion" because determination of propriety of prosecution was neither "case" nor "adjudication")
  10. ↑ Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1977)
  11. ↑ Pa. Dep't of Pub. Welfare v. United States, No. 99­ 175, 2001 U.S. Dist. LEXIS 3492, at *90 (W.D. Pa. Feb. 7, 2001)
  12. ↑ Tax Analysts v. IRS, No. 94-923, 1996 WL 134587, at *3 (D.D.C. Mar. 15, 1996)
  13. ↑ Pub. Citizen v. Office of U.S. Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992)
  14. ↑ Vietnam Veterans of Am. v. Dep't of the Navy, 876 F.2d 164, 165 (D.C. Cir. 1989)
  15. ↑ Sladek v. Bensinger, 605 F.2d 899, 901 (5th Cir. 1979)
  16. ↑ Stokes v. Brennan, 476 F.2d 699, 701 (5th Cir. 1973)
  17. ↑ Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1364-65 (N.D. Ohio 1976)
  18. ↑ Stanley v. DOD, No. 98-CV-4116, slip op. at 9-10 (S.D. Ill. June 22, 1999)
  19. ↑ See FOIA Update, Vol. XVIII, No. 1, at 3-4 (providing advice on exercise of agency judgment under fourth subsection (a)(2) category).
  20. ↑ See FOIA Update, Vol. XIX, No. 1, at 3 (advising that agencies "should use their judgment as to the length of time that records determined to fall within the new ["frequently requested" records] category should continue to be [made available]); FOIA Update, Vol. XVIII, No. 1, at 4 (advising that agencies may determine that records no longer fall within fourth subsection (a)(2) category after passage of time); see also FOIA Post, "FOIA Counselor Q&A: 'Frequently Requested' Records" (posted 7/25/03) (advising that agencies "certainly can consider the absence of predicted FOIA requests as a factor in determining whether the continued maintenance of a record as a 'frequently requested' record is warranted").
  21. ↑ 58 FOIA Post, "Guidance on Submitting Certification of Agency Compliance with FOIA's Reading Room Requirements" (posted 6/27/2008); see FOIA Update, Vol. XIX, No. 3, at 4 (recommending use of "visible links" for electronic indexing purposes).
  22. ↑ See, e.g., FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted 8/30/02) (describing operation of National Technical Information Service (commonly known as "NTIS") in governmentwide process of record dissemination); Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10,018 (1987) (recognizing NTIS as "statutor[il]y-based" government record distribution program).
  23. ↑ Jackson v. Heckler, 580 F. Supp. 1077, 1081 (E.D. Pa. 1984)
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