The Freedom of Information Act is an ever evolving law. Part of the evolution is
attributable to the Federal Government keeping a greater number of documents in electronic
format. The following bullets highlight some of the noteworthy changes.
The Clinton Administration has reiterated its "policy of striving for the maximum
responsible disclosure of information under the FOIA." DOJ’s FOIA Update,
Spring 1997. The net result of this policy is that, where government officials have
discretion whether to release documents, they are more inclined to release documents.
In 1993, the United States Court of Appeals for the District of Columbia Circuit held
that electronic versions of documents are records that must be created, managed and
disposed of under the Federal Records Act. Armstrong v. Executive Office of the
President, 1 F.3d 1274 (D.C. Dir. 1993).
In 1996, Congress enacted the Electronic Freedom of Information Act Amendments. Pub. L.
No. 104-231. The changes were more extensive than merely applying to electronic records.
The following is a summary of Pub. L. No. 104-231:
•• The definition of record has been expanded to mean information "in
any format, including an electronic format." Id. at &#sect; 3.
•• The following changes were made regarding redactions:
••• "[i]f technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made." Id. at &#sect; 4.
••• "The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption.... If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made." Id. at &#sect; 9.
•• "An agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." Id. at &#sect; 5.
•• "Each agency may promulgate regulations . . . providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests." Id. at &#sect; 7.
•• "[T]he term ‘exceptional circumstances’ does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." Id. at &#sect; 7.
•• "Each agency shall promulgate regulations . . . for expedited processing of requests for records. .... An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing." Id. at &#sect; 8.
•• Expedited processing is required if there is a "compelling need" for the information. Id. The statute defines "compelling need" to mean as follows:
••• A failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
••• The request is made by a person who is primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged Federal Government activity.
•• 5 U.S.C. &#sect; 552(a)(6)(A) now states that "[e]ach agency, upon any request for records . . . shall . . . determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor...." (emphasis on change made by Pub. L. No. 104-231 at &#sect; 8.)
The National Defense Authorization Act for FY 1997, Pub. L. No. 104-201, &#sect; 821, creates
a new FOIA Exemption # 3 statute that excludes from release "a proposal in the
possession or control of an executive agency." Id. at &#sect; 821. •• The term proposal is defined as "any proposal, including a technical,
management, or cost proposal, submitted by a contractor in response to the requirements of
a solicitation for a competitive proposal." Id.
•• The exemption "does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal." Id.
Tip: Negotiate with the agency not to have a technical or management proposal incorporated by reference. One way to appease the agency might be to draft a Section H clause that states substantially as follows:
If, during contract administration, there is any uncertainty as to the obligations of the parties under this contract, the uncertainty shall be resolved by ascertaining the intent of the parties at the time of contract formation. The contractor’s technical and management proposals are presumed to reflect the intent of the contractor.
In Martin Marietta Corp. v. Dalton, 974 F.Supp. 37 (D.D.C. 1997), a determination
was made that cost and pricing data was not voluntarily submitted for purposes of landmark
decision in Critical Mass Energy Project v. NRC, 975 F.2d 871, (D.C. Cir. 1992).
In McDonnell Douglas Corporation v. NASA, No. 96-2611(RCL), 1997 WL 664778
(D.D.C.) (Oct. 14, 1997), McDonnell Douglas filed a reverse FOIA action to prevent NASA
from releasing CLIN prices, incentive amounts, and billing arrangements to the Medium
Light Expendable Launch Vehicle Services contract. •• Since a "reverse FOIA" action is brought under the
Administrative Procedure Act, a party must establish that the agency’s action was
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. &#sect; 706(2)(A). McDonnell Douglas was not able to meet this heavy burden
of proof.
•• The lesson learned is that a contractor must not wait until an agency decides to release documents before zealously working the problem. In light of the Clinton Policy, it is especially important that any FOIA request for information that might provide a rival corporation with a competitive advantage receive a detailed response. Such a response requires the following: (1) declarations setting forth, in detail, the likelihood of substantial competitive harm; (2) a thorough Vaughn index; (3) copies of the documents with the proposed redactions; and (4) a persuasive legal analysis justifying the company’s position.
In Public Citizens v. John Carlin, No. 96-2840(PLF), 1997 WL 669637 (D.D.C.)
(Oct. 22, 1997), a group of historians, researchers and journalists who routinely obtain
government records under FOIA brought an action against the Archivist of the United
States. The plaintiffs alleged that the Archivist exceeded the scope of his statutory
authority in promulgating General Records Schedule # 20 (GRS 20). GRS 20 authorized the
disposal of electronic records in fifteen enumerated categories including electronic
records created by computer operators, programmers, analysts, systems administrators and
government staff using office automation applications. The court determined that the
Archivist exceeded his authority under the Records Disposal Act, 44 U.S.C. &#sect;&#sect; 3301 et
seq.
•• The following changes were made regarding redactions:
••• "[i]f technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made." Id. at &#sect; 4.
••• "The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption.... If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made." Id. at &#sect; 9.
•• "An agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." Id. at &#sect; 5.
•• "Each agency may promulgate regulations . . . providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests." Id. at &#sect; 7.
•• "[T]he term ‘exceptional circumstances’ does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." Id. at &#sect; 7.
•• "Each agency shall promulgate regulations . . . for expedited processing of requests for records. .... An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing." Id. at &#sect; 8.
•• Expedited processing is required if there is a "compelling need" for the information. Id. The statute defines "compelling need" to mean as follows:
••• A failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
••• The request is made by a person who is primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged Federal Government activity.
•• 5 U.S.C. &#sect; 552(a)(6)(A) now states that "[e]ach agency, upon any request for records . . . shall . . . determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor...." (emphasis on change made by Pub. L. No. 104-231 at &#sect; 8.)
•• The exemption "does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal." Id.
Tip: Negotiate with the agency not to have a technical or management proposal incorporated by reference. One way to appease the agency might be to draft a Section H clause that states substantially as follows:
If, during contract administration, there is any uncertainty as to the obligations of the parties under this contract, the uncertainty shall be resolved by ascertaining the intent of the parties at the time of contract formation. The contractor’s technical and management proposals are presumed to reflect the intent of the contractor.
•• The lesson learned is that a contractor must not wait until an agency decides to release documents before zealously working the problem. In light of the Clinton Policy, it is especially important that any FOIA request for information that might provide a rival corporation with a competitive advantage receive a detailed response. Such a response requires the following: (1) declarations setting forth, in detail, the likelihood of substantial competitive harm; (2) a thorough Vaughn index; (3) copies of the documents with the proposed redactions; and (4) a persuasive legal analysis justifying the company’s position.