Freedom of Information Act Guide, May 2004

The Freedom of Information Act requires federal agencies to make their records promptly available to any person who makes a proper request for them. ⁽¹⁾ To provide a general overview of the Act's procedural requirements, this discussion will follow a rough chronology of how a typical FOIA request is processed -- from the point of determining whether an entity in receipt of a request is subject to the FOIA in the first place to the review of an agency's initial decision regarding a FOIA request on administrative appeal. (The subject of fees under the Act is discussed more fully and separately under Fees and Fee Waivers, below.) In administering the Act's procedural requirements, agencies should strive to "carefully consider [all] FOIA requests" ⁽²⁾ and "handle [them] in a customer-friendly manner." ⁽³⁾

Entities Subject to the FOIA

Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies, are subject to the provisions of the FOIA. ⁽⁴⁾ However, the FOIA does not apply to entities that "are neither chartered by the federal government [n]or controlled by it." ⁽⁵⁾ Thus, it is settled that state governments, ⁽⁶⁾ municipal corporations, ⁽⁷⁾ the courts, ⁽⁸⁾ Congress, ⁽⁹⁾ and private citizens ⁽¹⁰⁾ are not subject to the FOIA. Nor does the FOIA apply to a presidential transition team. ⁽¹¹⁾

Offices within the Executive Office of the President whose functions are limited to advising and assisting the President also do not fall within the definition of "agency"; ⁽¹²⁾ such offices include the Offices of the President and of the Vice President, and their respective staffs. ⁽¹³⁾ The Court of Appeals for the District of Columbia Circuit illustrated this functional definition of "agency" when it held that the former Presidential Task Force on Regulatory Relief -- chaired by the Vice President and composed of several cabinet members -- was not an agency subject to the FOIA because the cabinet members acted not as heads of their departments "but rather as the functional equivalents of assistants to the President." ⁽¹⁴⁾

Under this functional definition of "agency," however, executive branch entities whose responsibilities exceed merely advising and assisting the President generally are considered "agencies" under the FOIA. ⁽¹⁵⁾ For example, the D.C. Circuit concluded that the Council on Environmental Quality (a unit within the Executive Office of the President) was an agency subject to the FOIA because its investigatory, evaluative, and recommendatory functions exceeded merely advising the President. ⁽¹⁶⁾ On the other hand, when the D.C. Circuit evaluated the structure of the National Security Council, its proximity to the President, and the nature of the authority delegated to it, the D.C. Circuit determined that the National Security Council is not an agency subject to the FOIA. ⁽¹⁷⁾

"Agency Records"

The Supreme Court has articulated a basic, two-part test for determining what constitutes "agency records" under the FOIA: "Agency records" are records that are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. ⁽¹⁸⁾ Inasmuch as the "agency record" analysis usually hinges upon whether an agency has sufficient "control" over a record, ⁽¹⁹⁾ courts have identified four relevant factors for an agency to consider when making such a determination: the intent of the record's creator to retain or relinquish control over the record; the ability of the agency to use and dispose of the record as it sees fit; the extent to which agency personnel have read or relied upon the record; and the degree to which the record was integrated into the agency's recordkeeping system or files. ⁽²⁰⁾ Agency "control" is also the predominant consideration in determining the "agency record" status of records that are either generated ⁽²¹⁾ or maintained ⁽²²⁾ by a government contractor.

Another important consideration in the "agency record" analysis sometimes is whether Congress, whose records are not subject to the FOIA, ⁽²³⁾ has manifested an intent to exert control over certain records in an agency's possession. ⁽²⁴⁾ "Congressional records" may include records received by an agency from Congress, ⁽²⁵⁾ or records generated by an agency in response to a confidential congressional inquiry, ⁽²⁶⁾ and their status will depend on the particular contours of the congressional reservation of control over those records. ⁽²⁷⁾ In all such cases, Congress's manifestation of its intent to control such records cannot be accomplished on a "post hoc" basis "long after the original creation [or] transfer of the requested documents." ⁽²⁸⁾ Instead, Congress's intent to exert control over the records must be evident from the circumstances surrounding their creation or transmittal. ⁽²⁹⁾ Otherwise, the records may not be considered to be "congressional records" beyond the reach of the FOIA. ⁽³⁰⁾

In a similar vein, agencies should take care to distinguish "agency records" from "personal records," which are maintained by agency employees but are not subject to the FOIA. ⁽³¹⁾ In determining the "personal record" status of a record, an agency should examine "the totality of the circumstances surrounding the creation, maintenance, and use" of the record. ⁽³²⁾ Factors relevant to this inquiry include the purpose for which the document was created, the degree of integration of the record into the agency's filing system, and the extent to which the record's author or other employees used the record to conduct agency business. ⁽³³⁾

Agencies also should be mindful of the "agency record" status of research data generated through federal grants. The Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999, ⁽³⁴⁾ which partly overruled the longstanding Supreme Court precedent of Forsham v. Harris, ⁽³⁵⁾ made certain research data generated through federal grants subject to the FOIA. ⁽³⁶⁾ In Forsham, the Supreme Court held that data generated and maintained by private research institutions receiving federal grants are not "agency records" subject to the FOIA, and that a grantor agency is not obligated to demand such data in order to respond to any FOIA request for them. ⁽³⁷⁾ This statutory provision, however, required the Office of Management and Budget to revise its Circular A-110 (the regulatory publication by which OMB sets the rules governing grants from all federal agencies to institutions of higher education, hospitals, and nonprofit institutions) so that "all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act." ⁽³⁸⁾ The final revised version of Circular A-110 requires agencies to respond to FOIA requests for certain grantee research findings by obtaining the requested data from the grantee and processing it for release to the requester. ⁽³⁹⁾ (In accordance with OMB's statutory authority over such matters, questions concerning the processing of FOIA requests for grantee research data should be directed to OMB's Office of Information and Regulatory Affairs, Information Policy and Technology Branch, at (202) 395-7856.)

At a more fundamental level, the FOIA applies only to "records," not to tangible, evidentiary objects. ⁽⁴⁰⁾ The courts initially defined "record" by relying on the traditional dictionary meaning of the term. ⁽⁴¹⁾ However, the Supreme Court subsequently broadened the meaning of "record" by incorporating the more modern record media referenced in the Records Disposal Act ⁽⁴²⁾ into its definition of the term. ⁽⁴³⁾ As information technology evolved, computer software increasingly could be considered as generally within the definition of "record." ⁽⁴⁴⁾ With the passage of the Electronic Freedom of Information Act Amendments of 1996, ⁽⁴⁵⁾ the FOIA now defines the term "record" as simply "includ[ing] any information that would be an agency record . . . when maintained by an agency in any format, including an electronic format." ⁽⁴⁶⁾

FOIA Requesters

A FOIA request can be made by "any person," a broad term that encompasses individuals (including foreign citizens), partnerships, corporations, associations, and foreign or domestic governments; ⁽⁴⁷⁾ requests may also be made through an attorney or other representative on behalf of "any person." ⁽⁴⁸⁾ Although the statute specifically excludes federal agencies from the definition of a "person," ⁽⁴⁹⁾ states and state agencies can make FOIA requests. ⁽⁵⁰⁾

There are two narrow, noteworthy exceptions to this broad "any person" standard, however. First, courts have denied relief under the FOIA to fugitives from justice if the requested records relate to the requester's fugitive status. ⁽⁵¹⁾ This holds true also when the FOIA plaintiff is an agent acting on behalf of a fugitive. ⁽⁵²⁾

Second, the Intelligence Authorization Act of 2003 ⁽⁵³⁾ amended the FOIA to now preclude agencies of the intelligence community ⁽⁵⁴⁾ from disclosing records in response to any FOIA request that is made by any foreign government or international governmental organization, either directly or through a representative. ⁽⁵⁵⁾ This means that agencies such as the Central Intelligence Agency, National Security Agency, and even some parts of the Federal Bureau of Investigation and the new Department of Homeland Security may refuse to process such requests. ⁽⁵⁶⁾

Inasmuch as FOIA requests can be made for any reason whatsoever, FOIA requesters generally do not have to justify or explain their reasons for making requests. ⁽⁵⁷⁾ Consistent with this, the Supreme Court has stated that a FOIA requester's basic access rights are neither increased nor decreased because the requester claims to have a particular interest in the records sought. ⁽⁵⁸⁾ Yet despite repeated Supreme Court admonitions for restraint, ⁽⁵⁹⁾ requesters have invoked the FOIA successfully as a substitute for, or a supplement to, document discovery in the contexts of both civil ⁽⁶⁰⁾ and criminal ⁽⁶¹⁾ litigation.

Nevertheless, there are two types of circumstances in which a requester's reason for making a FOIA request can properly affect the manner in which it is processed, either procedurally or substantively. First, the resolution of certain procedural issues -- i.e., expedited access, the assessment or waiver of fees, and the award of attorney fees and costs to a successful FOIA plaintiff -- can depend upon the reason for which the request was made. ⁽⁶²⁾ Second, a requester's reason for making a FOIA request -- as it is reflected in an evidentiary showing of "public interest" -- can substantively affect the agency's decision to disclose or withhold information that is potentially subject to the FOIA's privacy exemptions. ⁽⁶³⁾ (For discussions of the proper application of those exemptions, see Exemption 6, below, and Exemption 7(C), below.)

On a related note, the Supreme Court has observed that a FOIA requester's identity generally "has no bearing on the merits of his or her FOIA request." ⁽⁶⁴⁾ However, the Court has recognized an exception to this general rule by noting that the requester's identity can be significant in one substantive respect: "The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating [an exemption] differently as to one class of those who make requests than as to another class." ⁽⁶⁵⁾ In short, this means that an agency should not invoke a FOIA exemption to protect a requester from himself. ⁽⁶⁶⁾

Finally, the Court of Appeals for the District of Columbia Circuit has held that under some circumstances a FOIA claim in litigation may survive even if the FOIA requester dies before the case is put to rest. ⁽⁶⁷⁾

Proper FOIA Requests

The FOIA specifies only two requirements for an access request: It must "reasonably describe" the records sought ⁽⁶⁸⁾ and it must be made in accordance with the agency's published FOIA regulations. ⁽⁶⁹⁾ Because "a person need not title a request for government records a 'FOIA request,'" ⁽⁷⁰⁾ agencies should use sound administrative discretion when determining the nature of an access request. ⁽⁷¹⁾ For example, a first-party access request that cites only the Privacy Act of 1974 ⁽⁷²⁾ should be processed under both that statute and the FOIA. ⁽⁷³⁾

The legislative history of the 1974 FOIA amendments indicates that a description of a requested record that enables a professional agency employee familiar with the subject area to locate the record with a "reasonable amount of effort" is sufficient. ⁽⁷⁴⁾ Courts have explained that "[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters," ⁽⁷⁵⁾ or to allow requesters to conduct "fishing expeditions" through agency files. ⁽⁷⁶⁾ Accordingly, one FOIA request was held invalid because it required an agency's FOIA staff either to have "clairvoyant capabilities" to discern the requester's needs or to spend "countless numbers of personnel hours seeking needles in bureaucratic haystacks." ⁽⁷⁷⁾

However, the fact that a FOIA request is very broad or "burdensome" in its magnitude does not, in and of itself, entitle an agency to deny that request on the basis that it does not "reasonably describe" the records sought. ⁽⁷⁸⁾ The key factor is the ability of an agency's staff to reasonably ascertain exactly which records are being requested and then locate them. ⁽⁷⁹⁾ The courts have held only that agencies are not required to conduct wide-ranging, "unreasonably burdensome" searches for records. ⁽⁸⁰⁾

By the same token, an agency should "carefully consider" the nature of each FOIA request ⁽⁸¹⁾ and give reasonable import to its terms and full content overall, even if the request "is not a model of clarity." ⁽⁸²⁾ Likewise, an agency "must be careful not to read [a] request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester." ⁽⁸³⁾ Specifically, agencies should be careful to undertake any "scoping" of documents found in response to a request only with full communication with the FOIA requester. ⁽⁸⁴⁾

Although the scope of a FOIA request is most commonly thought of as being defined by the subject matter of the records that it seeks, a request's scope also depends on the time frame in which the requested records were created. ⁽⁸⁵⁾ The temporal scope of a FOIA request typically is defined through the agency's use of a "cut-off" date, meaning that records created after that date are treated as not responsive to the request. ⁽⁸⁶⁾ Generally speaking, an agency should use as its "cut-off" date the date that the search for records begins (i.e., a "date-of-search cut-off") ⁽⁸⁷⁾-- which courts have favored because it "results in a much fuller search and disclosure" than the use of a less inclusive cut-off, such as one based on the date of the request or of its receipt by the agency. ⁽⁸⁸⁾ While an agency may choose not to use a "date-of-search cut-off" if "specific circumstances" warrant, ⁽⁸⁹⁾ it may be required to articulate a "compelling justification" for doing so if challenged in court. ⁽⁹⁰⁾

No matter which type of "cut-off" date an agency adopts and ordinarily uses, it is obliged to inform FOIA requesters of that date. ⁽⁹¹⁾ The most efficient way in which an agency can give such notice is through "constructive notice" in its published FOIA regulations ⁽⁹²⁾ and/or through its FOIA Reference Guide on its FOIA Web site. ⁽⁹³⁾ Alternatively, an agency can give actual notice of its "cut-off" date policy in its correspondence with each FOIA requester individually. ⁽⁹⁴⁾ An agency also can use such a letter whenever it departs from its ordinary practice for some reason, lest the requester mistakenly be on "constructive notice" to the contrary. ⁽⁹⁵⁾ Simply put, a FOIA requester should know what "cut-off" date is being applied to his request, if for no other reason than to minimize the chance of any inefficient misunderstanding about its scope. ⁽⁹⁶⁾ (For further discussions of search requirements, see Procedural Requirements, Searching for Responsive Records, below, and Litigation Considerations, Adequacy of Search, below.)

When determining the scope of a FOIA request, however, agencies should remember that they are not required to answer questions posed as FOIA requests. ⁽⁹⁷⁾ Nor does the FOIA require agencies to respond to requests by creating records, ⁽⁹⁸⁾ such as by modifying exempt information in order to make it disclosable. ⁽⁹⁹⁾ Likewise, agencies need not add explanatory materials to any records disclosed in response to a FOIA request. ⁽¹⁰⁰⁾ Agen-cies also cannot be required by FOIA requesters to seek the return of records over which they retain no "control" ⁽¹⁰¹⁾ (even records that were wrongfully removed from their possession); ⁽¹⁰²⁾ to recreate records properly disposed of; ⁽¹⁰³⁾ or to seek the delivery of records held by private entities. ⁽¹⁰⁴⁾ Requesters also cannot use the FOIA as an "enforcement mechanism" to compel agencies to perform their missions. ⁽¹⁰⁵⁾ Nor may requesters compel agencies to make automatic releases of records as they are created, ⁽¹⁰⁶⁾ which means that requests cannot properly be made for "future" records not yet created. ⁽¹⁰⁷⁾

Likewise, both agencies and requesters alike should remember to distinguish between records that may be sought through FOIA requests ⁽¹⁰⁸⁾ and records that are required to be made available in agency reading rooms (both conventional and "electronic") under subsection (a)(2) of the Act. ⁽¹⁰⁹⁾ Agencies are not required to provide FOIA requesters with records that fall within subsection (a)(2) and are already available for "reading room" inspection and copying. ⁽¹¹⁰⁾ (For a discussion of "reading room" records, see FOIA Reading Rooms, above.)

In addition to reasonably describing the records sought, a FOIA requester must follow an agency's regulations in making a request. ⁽¹¹¹⁾ Each federal agency must publish in the Federal Register its procedural regulations governing access to its records under the FOIA. ⁽¹¹²⁾ These regulations must inform the public of where and how to address requests; its schedule of fees for search, review, and duplication; its fee waiver criteria; and its administrative appeal procedures. ⁽¹¹³⁾ The Electronic Freedom of Information Act Amendments of 1996 ⁽¹¹⁴⁾ affected several procedural aspects of FOIA administration ⁽¹¹⁵⁾ (including matters concerning the timing of processing FOIA requests, which are discussed below). ⁽¹¹⁶⁾ Each federal agency is required to have implementing regulations published in the Federal Register that address these matters as well. ⁽¹¹⁷⁾

Although an agency occasionally may waive some of its published procedures for reasons of public interest, speed, or simplicity, all agencies should remember that any "unnecessary bureaucratic hurdle has no place in [the Act's] implementation." ⁽¹¹⁸⁾ Accordingly, an agency may not impose any additional requirements on a requester beyond those prescribed in its regulations. ⁽¹¹⁹⁾ Of course, agencies should adhere strictly to their own regulations, especially when doing so would benefit the FOIA requester. ⁽¹²⁰⁾ Conversely, a requester's failure to comply with an agency's procedural regulations governing access to records -- such as those concerning properly addressed requests, ⁽¹²¹⁾ fees and fee waivers, ⁽¹²²⁾ proof of identity, ⁽¹²³⁾ and administrative and administrative appeals ⁽¹²⁴⁾ -- may be held to constitute a failure to properly exhaust administrative remedies. (For a further discussion of exhaustion of administrative remedies, see Litigation Considerations, Exhaustion of Administrative Remedies, below.)

Time Limits

Until an agency (or the proper component of that agency) receives a FOIA request, it is not obligated to search for responsive records, meet time deadlines, or release any records. ⁽¹²⁵⁾ Requests not filed in accordance with published regulations are not deemed to have been received until they are identified as proper FOIA requests by agency personnel. ⁽¹²⁶⁾ For example, under Department of Justice regulations, ⁽¹²⁷⁾ a request is not considered received until the requester has promised to pay fees (above a minimum amount) or the receiving component has decided to waive all fees. ⁽¹²⁸⁾ Moreover, if a requester agrees to pay properly assessed search, review, and/or duplication fees but later fails to pay those fees, an agency may refuse to process that requester's subsequent requests until the amount owed is paid. ⁽¹²⁹⁾ (For a discussion of the assessment of fees, see Fees and Fee Waivers, below.)

Once an agency properly receives a FOIA request, ⁽¹³⁰⁾ it has twenty working days in which make a determination on the request. ⁽¹³¹⁾ Previously, once an agency was in receipt of a proper FOIA request, it was required to inform the requester of its decision to grant or deny access to the requested records within ten working days, but the Electronic Freedom of Information Act Amendments of 1996 increased the Act's basic time limit for agency responses, lengthening it from ten to twenty working days. ⁽¹³²⁾ Agencies are not necessarily required to release the records within the statutory time limit, but access to releasable records should, at a minimum, be granted promptly thereafter. ⁽¹³³⁾

In "unusual circumstances," an agency can extend the twenty-day time limit for processing a FOIA request if it tells the requester in writing why it needs the extension and when it will make a determination on the request. ⁽¹³⁴⁾ The FOIA defines "unusual circumstances" as: (1) the need to search for and collect records from separate offices; (2) the need to examine a voluminous amount of records required by the request; and (3) the need to consult with another agency or agency component. ⁽¹³⁵⁾ If the required extension exceeds ten days, the agency must allow the requester an opportunity to modify his or her request, or to arrange for an alternative time frame for completion of the agency's processing. ⁽¹³⁶⁾

In many instances, though, agencies cannot meet these time limits for a variety of reasons, including the limitations on their resources. ⁽¹³⁷⁾ Agencies therefore have adopted the court-sanctioned practice of generally handling backlogged FOIA requests on a "first-in, first-out" basis. ⁽¹³⁸⁾ The Electronic FOIA amendments expressly authorized agencies to promulgate regulations providing for "multitrack processing" of their FOIA requests -- which allows agencies to process requests on a first-in, first-out basis within each track, but also permits them to respond to relatively simple requests more quickly than requests involving complex and/or voluminous records. ⁽¹³⁹⁾ (For a further discussion of these points, see Litigation Considerations, "Open America" Stays of Proceedings, below.)

An agency's failure to comply with the time limits for either an initial request or an administrative appeal may be treated as a "constructive exhaustion" of administrative remedies. ⁽¹⁴⁰⁾ A requester may immediately thereafter seek judicial review if he or she wishes to do so. ⁽¹⁴¹⁾ However, the D.C. Circuit has interpreted this rule of constructive exhaustion by requiring that once the agency responds to the FOIA request -- after the statutory time limit but before the requester has filed suit -- the requester must administratively appeal the denial before proceeding to court. ⁽¹⁴²⁾ (For a discussion of this aspect of FOIA litigation, see Litigation Considerations, Exhaustion of Administrative Remedies, below.)

Under the law existing prior to the enactment of the Electronic FOIA amendments, an agency sued for not responding to a FOIA request could receive additional time to process that request if it could show that its failure to meet the statutory time limits resulted from "exceptional circumstances" and that it was applying "due diligence" in processing the request. ⁽¹⁴³⁾ Previously, the need to process an extremely large volume of requests constituted "exceptional circumstances," and the commitment of large amounts of resources to process requests on a first-come, first-served basis was considered "due diligence." ⁽¹⁴⁴⁾ The Electronic FOIA amendments, however, explicitly excluded "a predictable agency workload" of FOIA requests as "exceptional circumstances . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." ⁽¹⁴⁵⁾ Nevertheless, a requester's refusal "to reasonably modify the scope of a request or arrange for an alternative time frame for processing the request," may be used as evidence of "exceptional circumstances." ⁽¹⁴⁶⁾ (For a discussion of the litigation aspects of the Act's "exceptional circumstances" provision, see Litigation Considerations, "Open America" Stays of Proceedings, below.)

Expedited Processing

Prior to the enactment of Electronic Freedom of Information Act Amendments of 1996, ⁽¹⁴⁷⁾ a FOIA request could have received "expedited" treatment and be processed out of sequence if the requester could show an "exceptional need or urgency." ⁽¹⁴⁸⁾ Courts granted expedited access when exceptional circumstances surrounding a request, such as jeopardy to life or personal safety, ⁽¹⁴⁹⁾ or a threatened loss of substantial due process rights, ⁽¹⁵⁰⁾ warranted such treatment.

Now the Electronic FOIA amendments require agencies to promulgate regulations providing for the expedited processing of requests if the requester demonstrates a "compelling need" (as defined by the amended statute), or in any other case the agency deems appropriate under its regulations. ⁽¹⁵¹⁾ Under the amended statute, a requester can show "compelling need" in one of two ways: by establishing that his or her failure to obtain the records quickly "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual"; or, if the requester is a "person primarily engaged in disseminating information," ⁽¹⁵²⁾ by demonstrating that an "urgency to inform the public concerning actual or alleged Federal Government activity" exists. ⁽¹⁵³⁾ At their discretion, agencies may grant expedited treatment under additional circumstances as well. ⁽¹⁵⁴⁾ Agencies must determine whether to grant a request for expedited access within ten calendar days of its receipt by the proper FOIA office. ⁽¹⁵⁵⁾ (For a further discussion of expedited access, see Litigation Considerations, "Open America" Stays of Proceedings, below.)

Searching for Records

The adequacy of an agency's search under the FOIA is determined by a test of "reasonableness," which may vary from case to case. ⁽¹⁵⁶⁾ As a general rule, an agency must undertake a search that is "reasonably calculated to uncover all relevant documents." ⁽¹⁵⁷⁾ The reasonableness of an agency's search depends, in part, on how the agency conducted its search in light of the scope of the request ⁽¹⁵⁸⁾ and the requester's description of the records sought ⁽¹⁵⁹⁾ -- particularly if the description includes specific details about the circumstances surrounding the agency's creation or maintenance of the records. ⁽¹⁶⁰⁾ The reasonableness of a search also depends on the standards the agency used in determining where responsive records were likely to be found, ⁽¹⁶¹⁾ especially if the agency fails to locate records it has reason to know might exist, ⁽¹⁶²⁾ or if the search requires agency employees to distinguish "personal" records from "agency" records. ⁽¹⁶³⁾ Nevertheless, an agency's inability to locate every single responsive record does not undermine an otherwise reasonable search. ⁽¹⁶⁴⁾

Prior to the enactment of the Electronic FOIA amendments, several courts held that agencies do not have to organize or reorganize file systems in order to respond to particular FOIA requests, ⁽¹⁶⁵⁾ to write new computer programs to search for "electronic" data not already compiled for agency purposes, ⁽¹⁶⁶⁾ or to aggregate computerized data files so as to effectively create new, releasable records. ⁽¹⁶⁷⁾ More than one court ruled, though, that agencies may be required to perform relatively simple computer searches to locate requested records, or to demonstrate why such searches are unreasonable in a given case. ⁽¹⁶⁸⁾

Consistent with these latter cases, and to promote electronic database searches, the Electronic FOIA amendments now require agencies to make "reasonable efforts" to search for requested records in electronic form or format "except when such efforts would significantly interfere with the operation of the agency's automated information system." ⁽¹⁶⁹⁾ The Electronic FOIA amendments expressly define the term "search" as meaning "to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request." ⁽¹⁷⁰⁾ (For a discussion of the litigation aspects of adequacy of search, see Litigation Considerations, Adequacy of Search, below.)

"Reasonably Segregable" Obligation

The FOIA requires that "any reasonably segregable portion of a record" must be released after appropriate application of the Act's nine exemptions. ⁽¹⁷¹⁾ Agencies should pay particularly close attention to this "reasonably segregable" requirement because courts may closely examine the propriety of agency segregability determinations, ⁽¹⁷²⁾ even if the requester does not raise the issue of segregability at the administrative level or before the court. ⁽¹⁷³⁾ Accordingly, an agency must adequately demonstrate to the court that all reasonably segregable, nonexempt information -- perhaps even including individual numbers contained within multiple-digit codes ⁽¹⁷⁴⁾ -- was disclosed. ⁽¹⁷⁵⁾

If, however, an agency determines that nonexempt material is so "inextricably intertwined" that disclosure of it would "leave only essentially meaningless words and phrases," then the entire record may be withheld. ⁽¹⁷⁶⁾ In cases involving a large amount of records or an unreasonably high-cost, "line-by-line" review, agencies may withhold small segments of nonexempt data "if the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing by the courts would impose an inordinate burden." ⁽¹⁷⁷⁾ Agencies nonetheless may make discretionary disclosures of exempt information, but should do so only upon "full and deliberate consideration of the . . . interests that could be implicated by disclosure of the information. ⁽¹⁷⁸⁾ (For a discussion of discretionary disclosure, see Discretionary Disclosure and Waiver, below; for a further discussion of segregability, see Litigation Considerations, "Reasonably Segregable" Requirements, below.)

Referrals and Consultations

When an agency locates records responsive to a FOIA request, it should determine whether any of those records, or information contained in those records, originated with another agency or agency component. ⁽¹⁷⁹⁾ As a matter of sound administrative practice, an agency should consult with any other agency or other agency component whose information appears in the responsive records, especially if that other agency or component is better able to determine whether the information is exempt from disclosure. ⁽¹⁸⁰⁾ An agency may also consult with any other agency that holds an equity in, or special expertise or knowledge concerning, a particular type of information. ⁽¹⁸¹⁾ If the response to the consultation is delayed, the agency or component in receipt of the FOIA request should notify the requester that a supplemental response will follow when the consultation is completed. ⁽¹⁸²⁾

If an agency or component locates entire records originating with another agency or component, it should refer those records to their originator for its direct response to the requester. ⁽¹⁸³⁾ The referring agency or component ordinarily should advise the requester of the referral and of the name of the agency FOIA office to which it was made. ⁽¹⁸⁴⁾ Some agencies have streamlined their practices of continually referring certain routine records or classes of records to other agencies or components by establishing standard processing protocols and agreements between them. ⁽¹⁸⁵⁾

All agencies should remember, however, that even after they make such record referrals in response to FOIA requests, they retain the responsibility of defending any agency action taken on those records if the matter proceeds to litigation. ⁽¹⁸⁶⁾ Additionally, agencies receiving referrals should handle them on a "first-in, first-out" basis among their other FOIA requests -- but they should be sure to do so according to the date of the request's initial receipt at the referring agency, lest FOIA requesters be placed at an unfair timing disadvantage through agency referral practices. ⁽¹⁸⁷⁾

Finally, it should be noted that if an agency determines that it does not maintain any record responsive to a particular FOIA request, that agency is under no obligation to refer that request to any other agency where such records might be located. ⁽¹⁸⁸⁾ As a matter of administrative discretion, though, the agency may advise the requester of the name and address of such other agency. ⁽¹⁸⁹⁾

Responding to FOIA Requests

The FOIA provides that each agency "shall make [its disclosable] records promptly available" upon request. ⁽¹⁹⁰⁾ Although the D.C. Circuit has suggested that an agency is not required to make requested records available by mailing copies of them to a FOIA requester if the agency prefers to make the "responsive records available in one central location for [the requester's] perusal," such as in a "reading room," ⁽¹⁹¹⁾ the Department of Justice strongly advises agencies to decline to follow such a practice unless the requester prefers it as well. ⁽¹⁹²⁾ However, agencies certainly may require requesters to pay any fees owed before releasing the processed records; otherwise, agencies "would effectively be bankrolling search and review, and duplicating expenses because there would never be any assurance whatsoever that payment would ever be made once the requesters had the documents in their hands." ⁽¹⁹³⁾

The FOIA does not provide for limited disclosure; rather, it "speaks in terms of disclosure and nondisclosure [and] ordinarily does not recognize degrees of disclosure, such as permitting viewing, but not copying, of documents." ⁽¹⁹⁴⁾ Moreover, "[t]here is no mechanism under FOIA for a protective order allowing only the requester to see [the requested information] or for proscribing its general dissemination." ⁽¹⁹⁵⁾ In short, "once there is disclosure, the information belongs to the general public." ⁽¹⁹⁶⁾

An agency must "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 "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes. ⁽¹⁹⁷⁾ Together, these two provisions require agencies to honor a requester's specific choice among existing forms of a requested record (assuming no exceptional difficulty in reproducing an existing record form) ⁽¹⁹⁸⁾ and to make "reasonable efforts" to disclose a record in a different form or format when that is requested, if the record is "readily reproducible" in that new form or format. ⁽¹⁹⁹⁾

Given "that computer-stored records, whether stored in the central processing unit, on magnetic tape, or in some other form, are records for the purposes of the FOIA," ⁽²⁰⁰⁾ agencies should endeavor to use advanced technology to satisfy existing or potential FOIA demands most efficiently -- including through "affirmative" electronic disclosures. ⁽²⁰¹⁾ To do so, and also to meet their "electronic reading room" obligations under the Electronic FOIA amendments as well, ⁽²⁰²⁾ all federal agencies must pay increasing attention to the design and development of their sites on the World Wide Web for purposes of FOIA administration. ⁽²⁰³⁾ (For a discussion of "electronic reading rooms," see FOIA Reading Rooms, above.)

When an agency denies an initial request in full or in part, it must provide the requester with certain specific administrative information about the action taken on the request -- including an estimate of the amount of denied information, unless doing so would undermine the protection provided by an exemption. ⁽²⁰⁴⁾ Additionally, the Electronic FOIA amendments require agencies to indicate the amount of information excised at the point in the record where the excision was made, wherever it is "technically feasible" to do so. ⁽²⁰⁵⁾

While "[t]here is no requirement that administrative responses to FOIA requests contain the same documentation necessary in litigation," ⁽²⁰⁶⁾ a decision to deny an initial request must inform the requester of the reasons for denial; of the right to appeal; and of the name and title of each person responsible for the denial. ⁽²⁰⁷⁾ Agencies also must include administrative appeal notifications in all of their "no record" responses to FOIA requesters. ⁽²⁰⁸⁾

Notifications to requesters should also contain other pertinent information: when and where records will be made available; what fees, if any, must be paid prior to the granting of access; what records are or are not responsive to the request; the date of receipt of the request or appeal; and the nature of the request or appeal and, when appropriate, the agency's interpretation of it. ⁽²⁰⁹⁾ Furthermore, because an agency is obligated to provide a FOIA requester with the "best copy available" of a record, ⁽²¹⁰⁾ an agency should address in its correspondence any problem with the quality of its photocopy of a disclosed record. ⁽²¹¹⁾

Finally, a requester has the right to administratively appeal any adverse determination an agency makes on his or her FOIA request. ⁽²¹²⁾ Under Department of Justice regulations, for example, adverse determinations include: denials of records in full or in part; "no records" responses; denials of requests for fee waivers; and denials of requests for expedited treatment. ⁽²¹³⁾ An agency must make a determination on an administrative appeal within twenty working days after its receipt. ⁽²¹⁴⁾ An administrative appeal decision upholding an adverse determination must also inform the requester of the provisions for judicial review of that determination in the federal courts. ⁽²¹⁵⁾ (For discussions of the various aspects of judicial review of agency action under the FOIA, see Litigation Considerations, below.)

1. 5 U.S.C. § 552(a)(3)(A) (2000).

2. Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (Attorney General FOIA policy memorandum encouraging all federal agencies to make "careful[] . . . disclosure determinations under the FOIA" and also to "consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise").

3. Presidential Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in FOIA Update, Vol. XIV, No. 3, at 3.

4. 5 U.S.C. § 552(f)(1).

5. H.R. Rep. No. 93-1380, at 14 (1974), reprinted in House Comm. on Gov't Operations and Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents at 231-32 (1975); see Forsham v. Harris, 445 U.S. 169, 179-80 (1980) (holding that private grantee of federal agency is not itself subject to FOIA); Missouri v. United States Dep't of Interior, 297 F.3d 745, 750 (8th Cir. 2002) ("The provision of federal resources, such as federal funding, is insufficient to transform a private organization into a federal agency."); Pub. Citizen Health Research Group v. HEW, 668 F.2d 537, 543-44 (D.C. Cir. 1981) (stating that medical peer review committees are not agencies under FOIA); Irwin Mem'l Blood Bank v. Am. Nat'l Red Cross, 640 F.2d 1051, 1057 (9th Cir. 1981) (determining that American National Red Cross is not an agency under FOIA); Gilmore v. United States Dep't of Energy, 4 F. Supp. 2d 912, 919-20 (N.D. Cal. 1998) (finding that privately owned laboratory that developed electronic conferencing software, for which government owned nonexclusive license for its use, is not "a government-controlled corporation" as it is not subject to day-to-day supervision by federal government, nor are its employees or management considered government employees); Leytman v. N.Y. Stock Exch., No. 95 CV 902, 1995 WL 761843, at *2 (E.D.N.Y. Dec. 6, 1995) (relying on Indep. Investor Protective League v. N.Y. Stock Exch., 367 F. Supp. 1376, 1377 (S.D.N.Y. 1973), to find that although "[t]he Exchange is subject to significant federal regulation . . . it is not an agency of the federal government"); Rogers v. United States Nat'l Reconnaissance Office, No. 94-B-2934, slip op. at 7 (N.D. Ala. Sept. 13, 1995) (observing that "[t]he degree of government involvement and control over [private organizations which contracted with government to construct office facility is] insufficient to establish companies as federal agencies for purposes of the FOIA"); see also FOIA Update, Vol. XIX, No. 4, at 2 (noting the FOIA's applicability to certain research data generated by private grantees of federal agencies, pursuant to the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998), as implemented by OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg. 54,926 (Oct. 8, 1999)). But see Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 02-126, 2003 WL 21146674, at *6 (M.D. Fla. May 13, 2003) ("Although [defendant] Amtrak is not a federal agency, it must comply with FOIA" pursuant to a specific provision in its own organic statute (citing 49 U.S.C. § 24301(e) (2000))) (appeal pending); Cotton v. Adams, 798 F. Supp. 22, 24 (D.D.C. 1992) (holding that the Smithsonian Institution is an agency under the FOIA on basis that it "performs governmental functions as a center of scholarship and national museum responsible for the safe-keeping and maintenance of national treasures"), holding questioned on appeal of award of attorney fees sub nom. Cotton v. Heyman, 63 F.3d 1115, 1123 (D.C. Cir. 1995) (noting that the Smithsonian Institution could "reasonably interpret our precedent to support its position that it is not an agency under FOIA"); Ass'n of Cmty. Orgs. for Reform Now v. Barclay, No. 3-89-409T, slip op. at 8 (N.D. Tex. June 9, 1989) (holding that federal home loan banks are agencies under FOIA); cf. Dong v. Smithsonian Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (holding that the Smithsonian Institution is not an agency for purposes of the Privacy Act of 1974 (5 U.S.C. § 552a (2000)), as it is neither an "establishment of the executive branch" nor a "government-controlled corporation").

6. See, e.g., Lau v. Sullivan County Dist. Att'y, No. 99-7341, 1999 WL 1069966, at *2 (2d Cir. Nov. 12, 1999); Martinson v. DEA, No. 96-5262, 1997 WL 634559, at *1 (D.C. Cir. July 3, 1997); Ortez v. Wash. County, 88 F.3d 804, 811 (9th Cir. 1996); Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980); see also Mount of Olives Paralegals v. Bush, No. 04-C-620, 2004 U.S. Dist. LEXIS 8085, at *6 (N.D. Ill. May 6, 2004) ("[T]he federal FOIA statute may not be used against state agencies."); Rodgers v. Texas, No. 03-2015, 2004 WL 764946, at *2 n.1 (N.D. Tex. Apr. 7, 2004) ("FOIA does not apply to state agencies.") (non-FOIA case); Daniel v. Safir, 175 F. Supp. 2d 474, 481 (E.D.N.Y. 2001) ("[T]here is no right of action under FOIA against state actors or officials."), aff'd, 42 Fed. Appx. 528 (2d Cir. 2002); McClain v. United States Dep't of Justice, No. 97-C-0385, 1999 WL 759505, at *2 (N.D. Ill. Sept. 1, 1999) (dismissing FOIA claims against state attorney general because "[p]laintiff may assert Privacy Act and Freedom of Information Act claims against . . . federal defendants only"), aff'd, 17 Fed. Appx. 471 (7th Cir. 2001); Beard v. Dep't of Justice, 917 F. Supp. 61, 63 (D.D.C. 1996) (holding District of Columbia Police Department to be "local" law enforcement agency not subject to FOIA); Gillard v. United States Marshals Serv., No. 87-0689, 1987 WL 11218, at *1 (D.D.C. May 11, 1987) (holding that District of Columbia Government records are not covered by FOIA).

7. See Lau, 1999 WL 1069966, at *2 (affirming dismissal of FOIA claims against county officials); Jones v. City of Indianapolis, 216 F.R.D. 440, 443 (S.D. Ind. 2003) ("The term 'agency' in the FOIA does not apply to municipal agencies."); Essily v. Giuliani, No. 00-5271, 2000 WL 1154313, at *1 (S.D.N.Y. Aug. 14, 2000) ("FOIA does not apply to city agencies."), aff'd, 22 Fed. Appx. 77 (2d Cir. 2001); McClain, 1999 WL 759505, at *2 (dismissing plaintiff's FOIA claims against county attorney).

8. See, e.g., United States v. Mitchell, No. 03-6938, 2003 WL 22999456, at *1 (4th Cir. Dec. 23, 2003) ("[F]ederal courts do not fall within the definition of 'agency' under FOIA.") (non-FOIA case); United States v. Alcorn, 6 Fed. Appx. 315, 317 (6th Cir. 2001) (holding that "the federal courts are specifically excluded from FOIA's definition of 'agency'") (non-FOIA case); Gaydos v. Mansmann, No. 98-5002, 1998 WL 389104, at *1 (D.C. Cir. June 24, 1998) (per curiam); Warth v. Dep't of Justice, 595 F.2d 521, 523 (9th Cir. 1979); see also Andrade v. United States Sentencing Comm'n, 989 F.2d 308, 309-10 (9th Cir. 1993) (Sentencing Commission, as independent body within judicial branch, is not subject to FOIA); Wayne Seminoff Co. v. Mecham, No. 02-2445, 2003 U.S. Dist. LEXIS 5829, at *20 (E.D.N.Y. Apr. 10, 2003) ("[T]he Administrative Office of the United States Courts is not an agency for purposes of FOIA."), aff'd, 82 Fed. Appx. 740 (2d Cir. 2003); Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003) ("[A] United States probation office is not subject to the FOIA's disclosure requirements because it is an arm of the federal courts."); United States v. Ford, No. 96-00271-01, 1998 U.S. Dist. LEXIS 16438, at *1 (E.D. Pa. Oct. 21, 1998) ("The Clerk of Court, as part of the judicial branch, is not an agency as defined by FOIA."); cf. Callwood v. Dep't of Prob., 982 F. Supp. 341, 342 (D.V.I. 1997) ("[T]he Office of Probation is an administrative unit of [the] Court . . . [and] is not subject to the terms of the Privacy Act.").

9. See, e.g., United We Stand Am. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) ("The Freedom of Information Act does not cover congressional documents."); Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 574 (D.C. Cir. 1990) (holding that Congress is not an agency for any purpose under FOIA); see also Mayo v. United States Gov't Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1994) (deciding that Government Printing Office is part of congressional branch and therefore is not subject to FOIA); Owens v. Warner, No. 93-2195, slip op. at 1 (D.D.C. Nov. 24, 1993) (ruling that office of Senator John Warner is not subject to FOIA), summary affirmance granted, No. 93-5415, 1994 WL 541335 (D.C. Cir. May 25, 1994).

10. See, e.g., Mitchell, 2003 WL 22999456, at *1 ("[P]rivate counsel and law firms are not subject to FOIA."); In re Olsen, No. UT-98-088, 1999 Bankr. LEXIS 791, at *11 (B.A.P. 10th Cir. June 24, 1999) (holding that chapter seven bankruptcy trustee is not an agency under FOIA); Buemi v. Lewis, No. 94-4156, 1995 WL 149107, at *2 (6th Cir. Apr. 4, 1995) (concluding that the FOIA applies only to federal agencies and not to private individuals); Allnutt v. United States Dep't of Justice, 99 F. Supp. 2d 673, 678 (D. Md. 2000) (holding that records possessed by private trustee acting as agent of United States Trustee are not "agency records" subject to FOIA), aff'd sub nom. Allnut v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Germosen v. Cox, No. 98 Civ. 1294, 1999 WL 1021559, at *20 (S.D.N.Y. Nov. 9, 1999) (noting that "there is no authority in the FOIA or Privacy Act obligating . . . private individuals to maintain or make available documents to the public"); Allnutt v. United States Trustee, Region Four, No. 97-02414, slip op. at 6 (D.D.C. July 31, 1999) (holding private trustee of bankruptcy estates is not subject to FOIA even though trustee "cooperates [with] and submits regular reports to the United States Trustee," who is subject to FOIA), appeal dismissed for lack of juris., No. 99-5410 (D.C. Cir. Feb. 2, 2000).

11. See Ill. Inst. for Continuing Legal Educ. v. United States Dep't of Labor, 545 F. Supp. 1229, 1231-33 (N.D. Ill. 1982); see also FOIA Update, Vol. IX, No. 4, at 3-4 ("FOIA Counselor: Transition Team FOIA Issues"); cf. Wolfe v. HHS, 711 F.2d 1077, 1079 (D.C. Cir. 1983) (treating presidential transition team as not agency subject to FOIA and citing with approval Ill. Inst., 545 F. Supp. at 1231-33) (dicta).

12. S. Conf. Rep. No. 93-1200, at 14 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6293; see, e.g., Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042-43 (D.C. Cir. 1985) (ruling that Council of Economic Advisers is not an agency under FOIA); Nation Co. v. Archivist of the United States, No. 88-1939, slip op. at 5-6 (D.D.C. July 24, 1990) (finding that Tower Commission is not an agency under FOIA); Nat'l Sec. Archive v. Executive Office of the President, 688 F. Supp. 29, 31 (D.D.C. 1988) (concluding that Office of Counsel to President is not an agency under FOIA), aff'd sub nom. Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990); see also FOIA Update, Vol. XIV, No. 3, at 6-8 (Department of Justice memorandum specifying consultation process for agencies possessing White House-originated records or White House-originated information located in response to FOIA requests).

13. See Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 544 (D.C. Cir. 1990) ("The Supreme Court has made clear that the Office of the President is not an 'agency' for purposes of the FOIA." (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980))); Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 55 (D.D.C. 2002) ("[T]he Vice President and his staff are not 'agencies' for purposes of the FOIA."), aff'd on other grounds, 334 F.3d 1096 (D.C. Cir.), cert. granted, 124 S. Ct. 958 (2003) (non-FOIA case); McDonnell v. Clinton, No. 97-1535, 1997 WL 33321085, at *1 (D.D.C. July 3, 1997) (holding that "Office of the President, including its personal staff . . . whose sole function is to advise and assist the President, does not fall within the definition of agency" (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-55 (1980))), aff'd, 132 F.3d 1481 (D.C. Cir. 1997) (unpublished table decision); cf. Sweetland v. Walters, 60 F.3d 852, 855-56 (D.C. Cir. 1995) (finding that the Executive Residence staff, which is "exclusively dedicated to assisting the President in maintaining his home and carrying out his various ceremonial duties," is not an agency under the FOIA).

14. Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993); cf. Judicial Watch, Inc. v. Clinton, 76 F.3d 1232, 1234 (D.C. Cir. 1996) (holding that trust established to assist President Clinton with personal legal expenses is not subject to Federal Advisory Committee Act, 5 U.S.C. app. 2 (2000), because "[a]dvice on the legal or ethical implications of presidential fund-raising for personal purposes . . . does not involve 'policy'"); Ass'n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 911 (D.C. Cir. 1993) (declaring that President's Task Force on National Health Care Reform, composed of cabinet officials and chaired by First Lady, was not subject to Federal Advisory Committee Act).

15. See Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971); see also Ryan v. Dep't of Justice, 617 F.2d 781, 784-89 (D.C. Cir. 1980).

16. Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980) (holding that Council on Environmental Quality is an agency under FOIA); cf. Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85 (D.C. Cir. 1990) (determining that Defense Nuclear Facilities Safety Board is an agency because of its multiple functions).

17. Armstrong v. Executive Office of the President, 90 F.3d 553, 559-65 (D.C. Cir. 1996).

18. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (holding that court opinions in agency files are agency records).

19. See, e.g., Int'l Bhd. of Teamsters v. Nat'l Mediation Bd., 712 F.2d 1495, 1496 (D.C. Cir. 1983) (determining that submission of gummed-label mailing list as required by court order not sufficient to give "control" over record to agency); McErlean v. United States Dep't of Justice, No. 97-7831, 1999 WL 791680, at *11 (S.D.N.Y. Sept. 30, 1999) (finding that agency had no "control" over requested records because it assented to restrictions on their dissemination and use that were requested by confidential source who provided them); KDKA v. Thornburgh, No. 90-1536, 1992 U.S. Dist. LEXIS 22438, at **16-17 (D.D.C. Sept. 30, 1992) (concluding that Canadian Safety Board report of aircrash, although possessed by National Transportation Safety Board, is not under agency "control," because of restrictions on its dissemination imposed by Convention on International Civil Aviation); Teich v. FDA, 751 F. Supp. 243, 248-49 (D.D.C. 1990) (holding that documents submitted to FDA in "'legitimate conduct of its official duties'" are agency records notwithstanding FDA's presubmission review regulation allowing submitters to withdraw their documents from agency's files (quoting Tax Analysts, 492 U.S. at 145)); Rush v. Dep't of State, 716 F. Supp. 598, 600 (S.D. Fla. 1989) (finding that correspondence between former ambassador and Henry Kissinger (then Assistant to the President) were agency records of Department of State as it exercised control over them); McCullough v. FDIC, No. 79-1132, 1980 U.S. Dist. LEXIS 17685, at *6 (D.D.C. July 28, 1980) (concluding that reports transmitted to agency by state regulatory authorities were agency records because "it is questionable whether [state authorities] retained control" over them); see also FOIA Update, Vol. XIII, No. 3, at 5 (advising that records subject to "protective order" issued by administrative law judge remain within agency control and are subject to FOIA).

20. See Burka v. HHS, 87 F.3d 508, 151 (D.C. Cir. 1996) (citing Tax Analysts v. United States Dep't of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988)); see also, e.g., Missouri v. United States Dep't of Interior, 297 F.3d 745, 750-51 (8th Cir. 2002) (holding that records maintained in an agency office by an agency employee who was acting as the full-time coordinator of a nonprofit organization that had a "cooperative" relationship with the agency were not "agency records," because they were not integrated into agency files and were not used by the agency in the performance of its official functions); Katz v. NARA, 68 F.3d 1438, 1442 (D.C. Cir. 1995) (holding that autopsy x-rays and photographs of President Kennedy, created and handled as personal property of Kennedy estate, are presidential papers, not records of any agency); Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1400-01 (7th Cir. 1984) (determining that agency "use" of internal report submitted in connection with licensing proceedings renders report an agency record); Wolfe v. HHS, 711 F.2d 1077, 1079-82 (D.C. Cir. 1983) (holding that transition team records, although physically maintained within "four walls" of agency, were not agency records under FOIA); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12 (D.D.C. 1995) (following Wash. Post v. DOD, 766 F. Supp. 1, 17 (D.D.C. 1991), to find that transcript of congressional testimony provided "solely for editing purposes," with cover sheet restricting dissemination, is not an agency record), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996); Marzen v. HHS, 632 F. Supp. 785, 801 (N.D. Ill. 1985) (declaring that records created outside federal government which "agency in question obtained without legal authority" are not agency records), aff'd on other grounds, 825 F.2d 1148 (7th Cir. 1987); Ctr. for Nat'l Sec. Studies v. CIA, 577 F. Supp. 584, 586-90 (D.D.C. 1983) (holding that agency report, prepared "at the direct request of Congress" with intent that it remain secret and transferred to agency with congressionally imposed "conditions" of secrecy, is not an agency record); cf. SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) (reaching "displacement-type" result for records governed by National Library of Medicine Act (last codified at 42 U.S.C. §§ 275-280a-1 (1982)); Baizer v. United States Dep't of the Air Force, 887 F. Supp. 225, 228-29 (N.D. Cal. 1995) (holding that database of Supreme Court decisions, used for reference purposes or as research tool, is not an agency record); Waters v. Pan. Canal Comm'n, No. 85-2029, slip op. at 5-6 (D.D.C. Nov. 26, 1985) (finding that Internal Revenue Code is not an agency record); FOIA Update, Vol. XI, No. 3, at 7-8 n.32 (discussing "'displacement-type'" decision in SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976)). But see Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180, at **15-17 (D.D.C. Mar. 31, 2004) (concluding erroneously that records "obtained or created" by agency employees while on detail assignments to the Office of the Vice President -- which is not subject to the FOIA -- were in the "constructive control" of the detailees' employing agencies, despite the fact that the agencies never physically possessed the records, nor were the records integrated into the agencies' recordkeeping systems), motion for reconsideration denied & stay pending appeal granted (D.D.C. May 26, 2004).

21. See Hercules, Inc. v. Marsh, 839 F.2d 1027, 1029 (4th Cir. 1988) (holding that an army ammunition plant telephone directory prepared by a contractor at government expense, bearing a "property of the U.S." legend, is an agency record); Gilmore v. United States Dep't of Energy, 4 F. Supp. 2d 912, 922 (N.D. Cal. 1998) (finding that video conferencing software created by privately owned laboratory is not an agency record); Tax Analysts v. United States Dep't of Justice, 913 F. Supp. 599, 607 (D.D.C. 1996) (finding that electronic legal research database contracted by agency is not an agency record because licensing provisions specifically precluded agency control), aff'd, 107 F.3d 923 (D.C. Cir. 1997) (unpublished table decision); Lewisburg Prison Project, Inc. v. Fed. Bureau of Prisons, No. 86-1339, slip op. at 4-5 (M.D. Pa. Dec. 16, 1986) (holding that training videotape provided by contractor is not an agency record).

22. See, e.g., Burka, 87 F.3d at 515 (finding data tapes created and possessed by contractor to be agency records because of extensive supervision exercised by agency, which evidenced "constructive control"); Los Alamos Study Group v. Dep't of Energy, No. 97-1412, slip op. at 4 (D.N.M. July 22, 1998) (determining that records created by contractor are agency records within meaning of FOIA because government contract "establishes [agency] intent to retain control over the records and to use or dispose of them as they see fit" and agency regulation "reinforces the conclusion that [the agency] intends to exercise control over the material"); Chi. Tribune Co. v. HHS, No. 95-C-3917, 1997 U.S. Dist. LEXIS 2308, at *33 (N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (finding that notes and audit analysis file created by independent contractor are agency records because they were created on behalf of (and at request of) agency and agency maintained "effective control" over them), adopted (N.D. Ill. Mar. 28, 1997); Rush Franklin Publ'g, Inc. v. NASA, No. 90-CV-2855, slip op. at 10 (E.D.N.Y. Apr. 13, 1993) (finding that computer tape maintained by contractor is not an agency record in absence of agency control); see also Sangre de Cristo Animal Prot., Inc. v. United States Dep't of Energy, No. 96-1059, slip op. at 3-6 (D.N.M. Mar. 10, 1998) (holding that records that agency neither possessed nor controlled and that were created by entity under contract with agency, although not agency records, were accessible under agency regulation, 10 C.F.R. § 1004.3 (2004), that specifically provided for public availability of contractor records).

23. See, e.g., United We Stand Am. v. IRS, 359 F.3d 595, 604 (D.C. Cir. 2004) (observing that "[t]he Freedom of Information Act does not cover congressional documents").

24. See, e.g., Paisley v. CIA, 712 F.2d 686, 693 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam) (noting that if "Congress has manifested its own intent to retain control [of records in the agency's possession], then the agency -- by definition -- cannot lawfully 'control' the documents . . . and hence they are not 'agency records'").

25. See, e.g., Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978) (holding that the agency was acting merely "as a 'trustee' for Congress" in retaining a copy of a hearing transcript over which Congress "plainly" manifested an intent to control by denominating it as "'secret'").

26. See Holy Spirit Ass'n v. CIA, 636 F.2d 838, 842-43 (D.C. Cir. 1980) (recognizing that agency-created records can become "congressional records"), vacated in part on other grounds, 455 U.S. 997 (1982); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995) ("Even documents created by the agencies themselves may elude FOIA's reach if prepared on request of Congress with confidentiality restrictions."), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).

27. See United We Stand Am., 359 F.3d at 604 (concluding that only certain portions of an agency-created response to a confidential congressional inquiry were "congressional records" not subject to the FOIA, "because Congress manifested its intent [to exert control] with respect to at most only a part" of those records).

28. United We Stand Am., 359 F.3d at 602; see Holy Spirit Ass'n, 636 F.2d at 843 (concluding that Congress's "post hoc" assertion of control, which came about "as a result of . . . the FOIA request and this litigation long after the actual transfer" of the requested records, was "insufficient evidence of Congress'[s] intent to retain control over th[o]se records").

29. See United We Stand Am., 359 F.3d at 600 (holding that "under all of the circumstances surrounding the [agency's] creation and possession of the documents," there were "sufficient indicia of congressional intent to control" certain portions of those documents); see also Paisley, 712 F.2d at 694 ("[W]e find that neither the circumstances surrounding the creation of the documents nor the conditions under which they were transferred to the agencies manifests a clear congressional intent to maintain control."); Holy Spirit Ass'n, 636 F.2d at 842 ("Nothing here either in the circumstances of the documents' creation or in the conditions under which they were sent to the [agency] indicates Congress'[s] intent to retain control over the records."); Goland, 607 F.2d at 348 (holding that a congressional hearing transcript maintained by an agency was "not an 'agency record' but a Congressional document to which FOIA does not apply . . . because we believe that on all the facts of the case Congress'[s] intent to retain control of the document is clear").

30. See, e.g., Paisley, 712 F.2d at 692-93 ("In the absence of any manifest indications that Congress intended to exert control over documents in an agency's possession, the court will conclude that such documents are not congressional records.").

31. See, e.g., Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1488-96 (D.C. Cir. 1984) (holding that uncirculated appointment calendars and telephone message slips of agency official were not agency records); Spannaus v. United States Dep't of Justice, 942 F. Supp. 656, 658 (D.D.C. 1996) (finding that "'personal' files" of attorney no longer employed with agency were "beyond the reach of FOIA" if they were not turned over to agency at end of employment); Forman v. Chapotan, No. 88-1151, slip op. at 14 (W.D. Okla. Dec. 12, 1988) (rejecting contention that materials distributed to agency officials at privately sponsored seminar are agency records), aff'd, No. 89-6035 (10th Cir. Oct. 31, 1989); see also FOIA Update, Vol. IX, No. 4, at 3-4 (discussing circumstances under which presidential transition team documents can be regarded as "personal records" when brought into federal agency); FOIA Update, Vol. V, No. 4, at 3-4 ("OIP Guidance: 'Agency Records' vs. 'Personal Records'").

32. Bureau of Nat'l Affairs, 742 F.2d at 1492.

33. See id. at 1492-93; FOIA Update, Vol. V, No. 4, at 3-4; see, e.g., Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C. Cir. 1994) (stating that letters written on agency time on agency equipment by board member seeking renomination, which had been reviewed by other agency employees but not integrated into agency record system and over which author had not relinquished control, are not agency records); Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., No. 98-4608, 1998 U.S. Dist. LEXIS 15333, at *17 (S.D.N.Y. Sept. 30, 1998) (ruling that handwritten notes neither shared with other agency employees nor placed in agency files were not "agency records" even though they may have furthered their author's performance of his agency duties), aff'd, 182 F.3d 900 (2d Cir. 1999) (unpublished table decision); Clarkson v. Greenspan, No. 97-2035, slip op. at 14 (D.D.C. June 30, 1998) (holding that notes taken by Federal Reserve Banks' employees are "personal" because they were maintained by authors for their own use, were not intended to be shared with other employees, and were not made part of Banks' filing systems), summary affirmance granted, No. 98-5349, 1999 WL 229017 (D.C. Cir. Mar. 2, 1999); Judicial Watch, 880 F. Supp. at 11 (concluding that "telephone logs, calendar markings, [and] personal staff notes" not incorporated into agency recordkeeping system are not agency records); Dow Jones & Co. v. GSA, 714 F. Supp. 35, 39 (D.D.C. 1989) (determining that agency head's recusal list, shared only with personal secretary and chief of staff, is not an agency record); AFGE v. United States Dep't of Commerce, 632 F. Supp. 1272, 1277 (D.D.C. 1986) (finding that employee logs created voluntarily to facilitate work are not agency records even though they contained substantive information), aff'd, 907 F.2d 203 (D.C. Cir. 1990). But cf. Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (rejecting agency affidavit concerning "personal" records as insufficient and remanding case for further development through affidavits by records' authors explaining their intended use of records in question); Ethyl Corp. v. EPA, 25 F.3d 1241, 1247-48 (4th Cir. 1994) (finding record search inadequate because employees were "not properly instructed on how to distinguish personal records from agency records").

34. Pub. L. No. 105-277, 112 Stat. 2681 (1998).

35. 445 U.S. 169 (1980).

36. See FOIA Update, Vol. XIX, No. 4, at 2 (describing legislative change).

37. 445 U.S. at 178-81.

38. Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998).

39. See OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg. 54,926 (Oct. 8, 1999); see also FOIA Update, Vol. XIX, No. 4, at 2 (discussing grantee records subject to FOIA under Circular A-110's definition of "research data").

40. See Matthews v. United States Postal Serv., No. 92-1208, slip op. at 4 n.3 (W.D. Mo. Apr. 14, 1994) (holding that computer hardware is not "record"); Nichols v. United States, 325 F. Supp. 130, 135-36 (D. Kan. 1971) (holding that archival exhibits consisting of guns, bullets, and clothing pertaining to assassination of President Kennedy are not "records"), aff'd on other grounds, 460 F.2d 671 (10th Cir. 1972); see also FOIA Update, Vol. XIV, No. 1, at 1 (discussing implementation of President John F. Kennedy Assassination Records Collection Act of 1992, 44 U.S.C. § 2107 note (2000)); cf. FOIA Update, Vol. XIX, No. 4, at 2 (discussing provisions of "somewhat akin" FOIA-related statute, Nazi War Crimes Disclosure Act, 5 U.S.C. § 552 note (2000)).

41. See DiViaio v. Kelley, 571 F.2d 538, 542 (10th Cir. 1978) ("[R]eliance may be placed on the dictionary meaning . . . as that which is written or transcribed to perpetuate knowledge."); Nichols, 325 F. Supp. at 135 (stating that reliance "placed on a dictionary of respected ancestry [(i.e., Webster's)]").

42. 44 U.S.C. § 3301 (2000).

43. See Forsham, 445 U.S. at 183 (treating "record" as including "'machine readable materials . . . regardless of physical form or characteristics'" (quoting Records Disposal Act, 44 U.S.C. § 3301 (2000)); see also N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (holding that audiotape of Space Shuttle Challenger astronauts is "record," as "FOIA makes no distinction between information in lexical and . . . non-lexical form"); Save the Dolphins v. United States Dep't of Commerce, 404 F. Supp. 407, 410-11 (N.D. Cal. 1975) (finding that motion picture film is "record" for purposes of FOIA).

44. Cleary, Gottlieb, Steen & Hamilton v. HHS, 844 F. Supp. 770, 782 (D.D.C. 1993) ("These [computer] programs preserve information and 'perpetuate knowledge.'" (quoting DiViaio, 571 F.2d at 542)); see also FOIA Update, Vol. XV, No. 4, at 4-5 (proposed electronic record FOIA principles); Department of Justice "Electronic Record" Report, reprinted in abridged form in FOIA Update, Vol. XI, No. 3, at 6-12 (discussing issue of "record" status of computer software). But see Gilmore, 4 F. Supp. 2d at 919-20 (holding alternatively that video conferencing software developed by privately owned laboratory may not be regarded as "record" on basis that such software "does not illuminate the structure, operation, or decisionmaking structure" of agency); Essential Info., Inc. v. USIA, 134 F.3d 1165, 1166 n.3 (D.C. Cir. 1998) (dictum) (suggesting, without authority, that Internet addresses "seem to be" not records, but "simply 'a means to access' records").

45. Pub. L. No. 104-231, § 3, 110 Stat. 3048, 3049 (codified as amended at 5 U.S.C. § 552(f)(2) (2000)).

46. 5 U.S.C. § 552(f)(2); see also FOIA Update, Vol. XVII, No. 4, at 2 (discussing statutory amendment).

47. 5 U.S.C. § 551(2) (2000); see also FOIA Update, Vol. V, No. 1, at 3-4 (advising that individual Members of Congress possess merely the same rights of access as those generally guaranteed to "any person" under the FOIA); cf. Judicial Watch v. United States Dep't of Justice, 102 F. Supp. 2d 6, 10 (D.D.C. 2000) (holding that because two related organizations "are separate corporations, . . . each is entitled to request documents under FOIA in its own right").

48. See, e.g., Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 840 n.2 (6th Cir. 1988) (recognizing standing of attorney to request documents on behalf of client). But see also Burka v. HHS, 142 F.3d 1286, 1290 (D.C. Cir. 1998) (holding that when an attorney makes a request in his own name without disclosing that he is acting on behalf of a client, he may not later seek attorney fees for his legal work); McDonnell v. United States, 4 F.3d 1227, 1237-38 (3d Cir. 1993) (holding that person whose name does not appear on request does not have standing); Archibald v. Roche, No. 01-1492, slip op. at 1-2 (D.D.C. Mar. 29, 2002) (concluding that the request "appears to [have been] filed on behalf of the attorney" who signed the request, rather than on behalf of the client, because "nowhere in [the request] does [the attorney] ever state that he [was] filing this request on behalf of" the client); MAXXAM, Inc. v. FDIC, No. 98-0989, slip op. at 5-6 (D.D.C. Jan. 21, 1999) (finding that a corporate plaintiff whose name did not appear on a FOIA request made by its attorney "'has not administratively asserted a right to receive [the requested records] in the first place'" (quoting McDonnell, 4 F.3d at 1237)); cf. Dale v. IRS, 238 F. Supp. 2d 99, 107 (D.D.C. 2002) ("A party's counsel is not the 'requester' for purposes of a fee waiver."). See generally Doherty v. United States Dep't of Justice, 596 F. Supp. 423, 427 n.4 (S.D.N.Y. 1984) (reviewing legislative history), aff'd on other grounds, 775 F.2d 49 (2d Cir. 1985).

49. 5 U.S.C. § 551(2); see also FOIA Update, Vol. VI, No. 1, at 6 (advising that information requests from agencies within executive branch of federal government cannot be considered FOIA requests).

50. See, e.g., Texas v. ICC, 935 F.2d 728, 728 (5th Cir. 1991); Massachusetts v. HHS, 727 F. Supp. 35, 35 (D. Mass. 1989).

51. See Maydak v. United States, No. 02-5168, slip op. at 1 (D.C. Cir. Dec. 11, 2003) (refusing to the dismiss case because "[t]here is no substantial connection between [the requester's] alleged fugitive status and his current [FOIA] action," which was filed four years before the requester became a fugitive) (citing Daccarett-Ghia v. IRS, 70 F.3d 621, 626 (D.C. Cir. 1995); Doyle v. United States Dep't of Justice, 668 F.2d 1365, 1365-66 (D.C. Cir. 1981) (holding that fugitive is not entitled to enforcement of FOIA's access provisions because he cannot expect judicial aid in obtaining government records related to sentence that he was evading); Meddah v. Reno, No. 98-1444, slip op. at 2 (E.D. Pa. Dec. 3, 1998) (dismissing escapee's FOIA claim because escapee "request[ed] documents which were used to determine that he should be detained"); see also Daccarett-Ghia, 70 F.3d at 626 n.4 (limiting the applicability of the "fugitive disentitlement doctrine" generally, but explaining that the "holding in this case does not disturb that aspect of Doyle" in which the court "recognize[d] one universally applied constraint on the fugitive disentitlement doctrine" -- namely, that "[d]ismissal was appropriate in part because the fugitive's [FOIA] suit sought records that were 'not devoid of a relationship' to the criminal charges pending against him") (non-FOIA case). But cf. O'Rourke v. United States Dep't of Justice, 684 F. Supp. 716, 718 (D.D.C. 1988) (holding that convicted criminal, fugitive from his home country and undergoing U.S. deportation proceedings, qualified as "any person" for purpose of making FOIA request); Doherty, 596 F. Supp. at 424-29 (same).

52. See Javelin Int'l, Ltd. v. United States Dep't of Justice, 2 Gov't Disclosure Serv. (P-H) ¶ 82,141, at 82,479 (D.D.C. Dec. 9, 1981).

53. Pub. L. No. 107-306, 116 Stat. 2383 (2002).

54. See 50 U.S.C. § 401a(4) (2000) (provision of the National Security Act of 1947, as amended, that specifies the federal agencies and agency subparts that are deemed "elements of the intelligence community").

55. Pub. L. No. 107-306, 116 Stat. 2383, § 312 (codified at 5 U.S.C.A. § 552(a)(3)(A), (E) (West Supp. 2004)).

56. See FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted 12/23/02) (advising that "for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision").

57. See, e.g., NARA v. Favish, 124 S. Ct. 1570, 1580 (2004) ("[A]s a general rule, when documents are within FOIA's disclosure provisions, citizens should not be required to explain why they seek the information.").

58. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (recognizing that a requester's "rights under the Act are neither increased nor decreased by reason of the fact that [he or she] claims an interest in the [requested records] greater than that shared by the average member of the public"); see also United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989) ("As we have repeatedly stated, Congress 'clearly intended' the FOIA 'to give any member of the public as much right to disclosure as one with a special interest [in a particular document].'" (quoting Sears, 421 U.S. at 149)); EPA v. Mink, 410 U.S. 73, 86 (1973) (declaring that the FOIA "is largely indifferent to the intensity of a particular requester's need"); cf. Parsons v. Freedom of Info. Act Officer, No. 96-4128, 1997 WL 461320, at *1 (6th Cir. Aug. 12, 1997) (rejecting plaintiff's argument that his "legitimate need for the documents superior to that of the general public or the press" warranted disclosure of exempt information); North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989) ("In sum, [the FOIA requester's] need or intended use for the documents is irrelevant.").

59. See United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984); Baldrige v. Shapiro, 455 U.S. 345, 360 n.14 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); Sears, 421 U.S. at 143 n.10; Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974).

60. See, e.g., Jackson v. First Fed. Sav., 709 F. Supp. 887, 889 (E.D. Ark. 1989); see also In re F&H Barge Corp., 46 F. Supp. 2d 453, 454-55 (E.D. Va. 1998) (noting that "courts have allowed private litigants to obtain documents in discovery via the FOIA"); FOIA Update, Vol. III, No. 1, at 10 (acknowledging that "[u]nder present law there is no statutory prohibition to the use of FOIA as a discovery tool"). But see also Cantres v. FBI, No. 01-1115, slip op. at 5 (D. Minn. June 21, 2002) (magistrate's recommendation) (avouching that "[a] FOIA request is not a substitute for discovery in a habeas case," nor was the FOIA "designed to supplement the rules of civil discovery"), adopted (D. Minn. July 16, 2002); Comer v. IRS, No. 97-76329, 2000 WL 1566279, at *2 (E.D. Mich. Aug. 17, 2000) (opining that "while documents obtained through FOIA requests may ultimately prove helpful in litigation by permitting a citizen to more precisely target his discovery requests, FOIA is not intended to be a substitute for discovery"); Envtl. Crimes Project v. EPA, 928 F. Supp. 1, 2 (D.D.C. 1995) (ordering a stay of a FOIA case "pending the resolution of the discovery disputes" in the parties' related lawsuit in order to foreclose the requester's attempt to "end run" or interfere with discovery); cf. Injex Indus. v. NLRB, 699 F. Supp. 1417, 1419 (N.D. Cal. 1986) (holding that FOIA cannot be used to circumvent nonreviewable decision to impound requested documents); Morrison-Knudsen Co. v. Dep't of the Army of the United States, 595 F. Supp. 352, 356 (D.D.C. 1984) ("[T]he use of FOIA to unsettle well established procedures governed by a comprehensive regulatory scheme must be . . . viewed not only 'with caution' but with concern."), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision).

61. See, e.g., North, 881 F.2d at 1096; Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 502, 503 & n.1 (E.D. La. 2003) (concluding erroneously that Brady v. Maryland "demands" that information withheld under Exemption 7(D) of FOIA be released to plaintiff). But see United States v. United States Dist. Court, Cent. Dist. of Cal., 717 F.2d 478, 480 (9th Cir. 1983) (holding that FOIA does not expand scope of criminal discovery permitted under Rule 16 of Federal Rules of Criminal Procedure); United States v. Agunbiade, No. 90-CR-610, 1995 WL 351058, at *7 (E.D.N.Y. May 10, 1995) (stating that a FOIA requester "cannot employ the statute as a means to enlarge his right to discovery" in his criminal case); Johnson v. United States Dep't of Justice, 758 F. Supp. 2, 5 (D.D.C. 1991) ("Resort to Brady v. Maryland as grounds for waiving confidentiality is . . . outside the proper role of FOIA."); Stimac v. United States Dep't of Justice, 620 F. Supp. 212, 213 (D.D.C. 1985) ("Brady v. Maryland . . . provides no authority for releasing material under FOIA."); cf. Jones v. FBI, 41 F.3d 238, 250 (6th Cir. 1994) ("FOIA's scheme of exemptions does not curtail a plaintiff's right to discovery in related non-FOIA litigation; but neither does that right entitle a FOIA plaintiff to circumvent the rules limiting release of documents under FOIA.").

62. Cf. Forsham v. Califano, 587 F.2d 1128, 1134 (D.C. Cir. 1978) (recognizing that "considerations such as need, interest, or public interest may bear on the agency's determination" to process pending FOIA requests in a certain order), aff'd on other grounds sub nom. Forsham v. Harris, 445 U.S. 169 (1980).

63. See Favish, 124 S. Ct. at 1580-81 (declaring that "[w]here the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure" by showing that "the public interest sought to be advanced [by the requested disclosure] is a significant one" and that disclosure of "the information is likely to advance that interest"); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) ("Favish thus stands as a reminder to all agencies that their consideration of potential privacy invasions must include . . . what the requester might do with the information at hand.").

64. Reporters Comm., 489 U.S. at 771; see Favish, 124 S. Ct. at 1579 ("As a general rule, withholding information under FOIA cannot be predicated on the identity of the requester."); see also Lynch v. Dep't of the Treasury, No. 98-56368, 2000 WL 123236, at *4 (9th Cir. Jan. 28, 2000) (upholding district court's decision to not consider identity of requester in determining whether records were properly withheld under Exemption 7(A)); Parsons, 1997 WL 461320, at *1 ("[T]he identity of the requestor is irrelevant to the determination of whether an exemption applies."); United Techs. v. FAA, 102 F.3d 688, 692 (2d Cir. 1996) (rejecting plaintiff's argument that Exemption 4 should be applied "on a requester-specific basis," because "[u]nder that rule, the Government would be required in every FOIA case to conduct an inquiry regarding the identity of the requester and the circumstances surrounding its request," and "[t]he FOIA was not intended to be applied on such an individualized basis"); Swan v. SEC, 96 F.3d 498, 499 (D.C. Cir. 1996) ("Whether [a particular exemption] protects against disclosure to 'any person' is a judgment to be made without regard to the particular requester's identity."); Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986) ("Congress granted the scholar and the scoundrel equal rights of access to agency records."), cert. granted, judgment vacated on other grounds & remanded, 486 U.S. 1029 (1988); FOIA Update, Vol. VI, No. 3, at 5 ("It is also well established that a FOIA requester cannot rely upon his status as a private party litigant -- in either civil or criminal litigation -- to claim an entitlement to greater FOIA access than would be available to the average requester."); cf. Calder v. IRS, 890 F.2d 781, 783 (5th Cir. 1989) (holding that historian denied access under FOIA also has no "constitutional right of access" to Al Capone's tax records); Leach v. RTC, 860 F. Supp. 868, 871, 878-79 & n.13 (D.D.C. 1994) (recognizing, in dicta, that individual Members of Congress are granted no greater access to agency records by virtue of their position than are other FOIA requesters), appeal dismissed per stipulation, No. 94-5279 (D.C. Cir. Dec. 22, 1994).

65. United States Dep't of Justice v. Julian, 486 U.S. 1, 14 (1988); accord Reporters Comm., 489 U.S. at 771 (recognizing single exception to general FOIA-disclosure rule in case of "first-party" requester).

66. See FOIA Update, Vol. X, No. 2, at 5 (advising agencies to treat first-party FOIA requesters in accordance with protectible interests that requesters can have in their own information, such as personal privacy information, and to treat third-party FOIA requesters differently).

67. See Sinito v. United States Dep't of Justice, 176 F.3d 512, 513 (D.C. Cir. 1999) (holding that FOIA claim can survive death of original requester and remanding case for determination regarding who could properly be substituted for decedent); see also D'Aleo v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS 3884, at *4 (D.D.C. Mar. 21, 1991) (allowing decedent's executrix to be substituted as plaintiff). But see Hayles v. United States Dep't of Justice, No. H-79-1599, slip op. at 3 (S.D. Tex. Nov. 2, 1982) (dismissing case upon death of plaintiff because no timely motion for substitution was filed).

68. 5 U.S.C. § 552(a)(3)(A) (2000).

69. Id. § 552(a)(3)(A)(ii); see, e.g., Borden v. FBI, No. 94-1029, slip op. at 2 (1st Cir. June 28, 1994) (per curiam) (affirming dismissal of case because requester failed to comply with agency's published regulations); McDonnell v. United States, 4 F.3d 1227, 1236-37 (3d Cir. 1993) ("[A] person whose name does not appear on [FOIA] request [as required by agency regulations] . . . has not made a formal request for documents within the meaning of the statute [and therefore] has no right to [the documents or to] sue in district court when the agency refuses to release requested documents."); Church of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (stating that requesters must follow "the statutory command that requests be made in accordance with published rules"). But see Summers v. United States Dep't of Justice, 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that 28 U.S.C. § 1746 (2000) -- which requires that unsworn declarations be treated with "like force and effect" as sworn declarations -- can be used in place of notarized-signature requirement of agency regulation for verification of FOIA privacy waivers).

70. Newman v. Legal Servs. Corp., 628 F. Supp. 535, 543 (D.D.C. 1986). But see Blackwell v. EEOC, No. 2:98-38, 1999 U.S. Dist. LEXIS 3708, at *5 (E.D.N.C. Feb. 12, 1999) (finding that request was not properly made because plaintiff failed to follow agency regulation requiring that request be denominated explicitly as request for information under FOIA).

71. See FOIA Update, Vol. VII, No. 1, at 6 (advising that "agencies are expected to honor a requester's obvious intent").

72. 5 U.S.C. § 552a (2000).

73. See FOIA Update, Vol. VII, No. 1, at 6 (advising that it is "good policy for agencies to treat all first-party access requests as FOIA requests" regardless of whether FOIA is cited by requester).

74. H.R. Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271; see, e.g., Brumley v. United States Dep't of Labor, 767 F.2d 444, 445 (8th Cir. 1985); Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978); Marks v. United States Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978).

75. Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff'd in pertinent part, No. 89-5414 (D.C. Cir. Aug. 13, 1990); see Frank v. United States Dep't of Justice, 941 F. Supp. 4, 5 (D.D.C. 1996); Blakey v. Dep't of Justice, 549 F. Supp. 362, 366-67 (D.D.C. 1982), aff'd, 720 F.2d 215 (D.C. Cir. 1983) (unpublished table decision); see also Trenerry v. Dep't of the Treasury, No. 92-5053, 1993 WL 26813, at *3 (10th Cir. Feb. 5, 1993) (holding that agency not required to provide personal services such as legal research); Lamb v. IRS, 871 F. Supp. 301, 304 (E.D. Mich. 1994) (finding requests outside scope of FOIA when they require legal research, are unspecific, or seek answers to interrogatories).

76. Immanuel v. Sec'y of the Treasury, No. 94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4, 1995), aff'd, 81 F.3d 150 (4th Cir. 1996) (unpublished table decision); see also Dale v. IRS, 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (concluding that a request that sought "'any and all documents . . . that refer or relate in any way'" to the requester failed to reasonably describe the records sought and "amounted to an all-encompassing fishing expedition of files at [the agency's] offices across the country, at taxpayer expense"); Freeman v. United States Dep't of Justice, No. 90-2754, slip op. at 3 (D.D.C. Oct. 16, 1991) ("The FOIA does not require that the government go fishing in the ocean for fresh water fish.").

77. Devine v. Marsh, 2 Gov't Disclosure Serv. (P-H) ¶ 82,022, at 82,186 (E.D. Va. Aug. 27, 1981); see also Goldgar v. Office of Admin., 26 F.3d 32, 35 (5th Cir. 1994) (holding that the agency was not required to produce information sought by the requester -- "the identity of the government agency that is reading his mind" -- that does not exist in record form); Benneville v. United States Dep't of Justice, No. 98-6137, slip op. at 10 (D. Or. June 11, 2003) (rejecting plaintiff's contention that the agency should have provided him with information on all environmental groups, rather than just the single group specifically named in his request letter, because "the government should not be expected to determine [the unnamed groups'] identit[ies] and determine if they should be involved in the search"); Malak v. Tenet, No. 01-3996, 2001 WL 664451, at *1 (N.D. Ill. June 12, 2001) (concluding that request's "discursive narrative doesn't even begin to approach the necessary job to permit performance of [agency's] FOIA responsibilities"); Judicial Watch v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (ruling that a request did not reasonably describe the records sought because the plaintiff "fail[ed] to state its request with sufficient particularity, [and] it also declined [the agency's] repeated attempts to clarify the request"); Keenan v. United States Dep't of Justice, No. 94-1909, slip op. at 1 (D.D.C. Nov. 12, 1996) ("Plaintiff can not [sic] place a request for one search and then, when nothing is found, convert that request into a different search."); Graphics of Key W. v. United States, 1996 WL 167861, at *7 (D. Nev. 1996) (finding plaintiff's request letters to be "more arguments than clear requests for information"); Kubany v. Bd. of Governors of the Fed. Reserve Sys., No. 93-1428, slip op. at 6-8 (D.D.C. July 19, 1994) (holding that request relying on exhibits containing "multiple, unexplained references to hundreds of accounts, and various flowcharts, and schematics" is "entirely unreasonable"). But cf. Doolittle v. United States Dep't of Justice, 142 F. Supp. 2d 281, 285 (N.D.N.Y. 2001) (concluding that so long as description of records sought is otherwise reasonable, agency cannot refuse to search for records simply because requester did not also identify them by the date on which they were created).

78. See Ruotolo v. Dep't of Justice, 53 F.3d 4, 10 (2d Cir. 1995) (finding that request that required 803 files to be searched was not "unreasonably burdensome"); Pub. Citizen v. FDA, No. 94-0018, slip op. at 2 (D.D.C. Feb. 9, 1996); see also FOIA Update, Vol. IV, No. 3, at 5 ("The sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not 'reasonably describe' records within the meaning of 5 U.S.C. § 552(a)(3)(A)."). But see Domingues v. FBI, No. 98-74612, slip op. at 11 (E.D. Mich. July 24, 1999) (magistrate's recommendation) (determining that "a request directed to an agency's headquarters which does not request a search of its field offices, or which requests a blanket search of all field offices without specifying which offices should be searched, does not 'reasonably describe' any records which may be in those field offices, and an agency's search of just the headquarters records complies with the FOIA"), adopted (E.D. Mich. July 29, 1999), aff'd, 229 F.3d 1151 (6th Cir. 2000) (unpublished table decision); Massachusetts v. HHS, 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (holding that a request for all records "relating to" a particular subject is overbroad, "thus unfairly plac[ing] the onus of non-production on the recipient of the request and not where it belongs -- upon the person who drafted such a sloppy request").

79. See Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding request encompassing over 1,000,000 computerized records to be valid because "[t]he linchpin inquiry is whether the agency is able to determine 'precisely what records [are] being requested'" (quoting legislative history)). But see AFGE v. United States Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (holding that "while [plaintiff's requests] might identify the documents requested with sufficient precision to enable the agency to identify them . . . it is clear that these requests are so broad as to impose an unreasonable burden upon the agency," because the agency would have "to locate, review, redact, and arrange for inspection a vast quantity of material").

80. See Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995) (agreeing that search which would require review of twenty-three years of unindexed files would be unreasonably burdensome, but disagreeing that search through chronologically indexed agency files for dated memorandum would be burdensome); Van Strum v. EPA, No. 91-35404, 1992 WL 197660, at *1 (9th Cir. Aug. 17, 1992) (accepting agency justification in denying or seeking clarification of overly broad requests which would place inordinate search burden on agency resources); Marks, 578 F.2d at 263 (ruling that FBI is not required to search every one of its field offices); Schrecker v. United States Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002) (finding "that to require an agency to hand search through millions of documents is not reasonable and therefore not necessary," as the agency already had searched "the most likely place responsive documents would be located"), aff'd, 349 F.3d 657 (D.C. Cir. 2003); Burns v. United States Dep't of Justice, No. 99-3173, slip op. at 2 (D.D.C. Feb. 5, 2001) (concluding that "given the capacity of the reels and the absence of any index," a request for specific telephone conversations recorded on reel-to-reel tapes was "unreasonably burdensome" because "it would take an inordinate [amount of] time to listen to the reels in order to locate any requested conversations that might exist"); Blackman v. United States Dep't of Justice, No. 00-3004, slip op. at 5 (D.D.C. July 5, 2001) (declaring request that would require a manual search through 37 million pages to be "unreasonable in light of the resources needed" to process it), appeal dismissed for lack of prosecution, No. 01-5431 (D.C. Cir. Jan. 2, 2003); Peyton v. Reno, No. 98-1457, 1999 U.S. Dist. LEXIS 12125, at **4-5 (D.D.C. July 19, 1999) (finding that request for all records indexed under subject's name reasonably described records sought because agency failed to demonstrate that name search would be unduly burdensome); O'Harvey v. Office of Workers' Comp. Programs, No. 95-0187, slip op. at 3 (E.D. Wash. Dec. 29, 1997) (finding a request to be unreasonably burdensome because a search would require the agency "to review all of the case files maintained by the agency" and "would entail review of millions of pages of hard copies"), aff'd sub nom. O'Harvey v. Comp. Programs Workers, 188 F.3d 514 (9th Cir. 1999) (unpublished table decision); Spannaus v. United States Dep't of Justice, No. 92-372, slip op. at 6 (D.D.C. June 20, 1995) (finding that agency is not required to determine all persons having ties to associations targeted in bankruptcy proceedings "and then search any and all civil or criminal files relating to those persons"), summary affirmance granted in pertinent part, No. 95-5267 (D.C. Cir. Aug. 16, 1996).

81. Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01); see also Presidential Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in FOIA Update, Vol. XIV, No. 3, at 3 (encouraging agencies to handle FOIA requests "in a customer-friendly manner").

82. LaCedra v. Executive Office for United States Attorneys, 317 F.3d 345, 347-48 (D.C. Cir. 2003) (concluding that the agency failed to "liberally construe" a request for "all documents pertaining to [plaintiff's] case" when it limited that request's scope to only those records specifically and individually listed in the request letter, because "[t]he drafter of a FOIA request might reasonably seek all of a certain set of documents while nonetheless evincing a heightened interest in a specific subset thereof" (citing Nation Magazine, 71 F.3d at 890)); see Horsehead Indus. v. EPA, No. 94-1299, slip op. at 4 n.2 (D.D.C. Jan. 3, 1997) (ruling that "[b]y construing the FOIA request narrowly, [the agency] seeks to avoid disclosing information"); FOIA Update, Vol. XVI, No. 3, at 3 (advising agencies on interpretation of terms of FOIA requests); see also Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) (emphasizing that an agency is required to read a FOIA request as drafted, "not as either [an] agency official or [the requester] might wish it was drafted"); Landes v. Yost, No. 89-6338, slip op. at 4-5 (E.D. Pa. Apr. 11, 1990) (finding that request was "reasonably descriptive" when it relied on agency's own outdated identification code), aff'd, 922 F.2d 832 (3d Cir. 1990) (unpublished table decision).

83. Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985); see Allen v. Fed. Bureau of Prisons, No. 00-342, slip op. at 7-9 (D.D.C. Mar. 1, 2001) (concluding that the agency took "an extremely constricted view" of plaintiff's FOIA request for all "records or transcripts" of intercepted phone calls by failing to construe audiotape recordings of those calls as being within the request's scope), aff'd, 89 Fed. Appx. 276 (D.C. Cir. 2004).

84. See FOIA Update, Vol. XVI, No. 3, at 3-5 ("OIP Guidance: Determining the Scope of a FOIA Request") (advising of procedures and underlying considerations for document "scoping"); see also Halpern v. FBI, 181 F.3d 279, 289 (2d Cir. 1999) (holding cross-referenced files to be beyond scope of a request because once the agency "had requested clarification [about the requester's interest in receiving such records], it could then in good faith ignore the cross-referenced files until it received an affirmative response" from the requester); Hamilton Sec. Group v. HUD, 106 F. Supp. 2d 23, 27 (D.D.C. 2000) ("Given the exchange of correspondence between counsel and the agency relating to the scope of the request, there is no basis for plaintiff's claim that defendant should have understood that the request for a [single, specific record] was meant to include additional [records]."), aff'd per curiam, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001).

85. See FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining that "[t]he scope of a FOIA request has both substantive and temporal aspects"); see also Church of Scientology v. IRS, 816 F. Supp. 1138, 1148 (W.D. Tex. 1993) (observing that "there has to be a temporal deadline for documents that satisfy [a FOIA] request"), appeal dismissed by stipulation, No. 93-8431 (5th Cir. Oct. 21, 1993).

86. See Defenders of Wildlife v. United States Dep't of the Interior, No. 03-1192, 2004 WL 842374, at *6 n.10 (D.D.C. Apr. 13, 2004) (recognizing that records created after "cut-off" date specifically established by agency regulation "are not covered by [plaintiff's] request"); FOIA Update, Vol. IV, No. 4, at 14 (advising that records that "post-date" an agency's "cut-off" date are not included within the temporal scope of a request).

87. See FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining the practical reasons for using the date that the agency's search begins as the "cut-off" date for a request).

88. McGehee v. CIA, 697 F.2d 1095, 1104 (D.C. Cir.), vacated on other grounds on panel reh'g & reh'g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983); see Pub. Citizen v. Dep't of State, 276 F.3d 634, 644 (D.C. Cir. 2002) (favoring a "date-of-search cut-off" because its use "might . . . result[] in the retrieval of more [responsive] documents" than would a cut-off based on the date of the request); Van Strum v. EPA, No. 91-35404, 1992 WL 197660, at *2 (9th Cir. Aug. 17, 1992) (agreeing that a date-of-search "cut-off" date is "the most reasonable date for setting the temporal cut-off in this case").

89. Pub. Citizen, 276 F.3d at 643; see FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (describing circumstances under which use of different "cut-off" dates may be reasonable); see also, e.g., Blazy v. Tenet, 979 F. Supp. 10, 17 (D.D.C. 1997) (concluding that it was "reasonable under the circumstances" for the agency to apply a date-of-request cut-off to a request that sought records concerning events that already had occurred (and records that already had been created) by the time the request was made), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998).

90. Pub. Citizen, 276 F.3d at 644; cf. McGehee, 647 F.2d at 1103-04 (rejecting agency's arguments that use of date-of-search cut-off would be "unduly burdensome, expensive, or productive of 'administrative chaos'" as lacking any "detailed substantiation").

91. See, e.g., Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180, at *21 (D.D.C. Mar. 31, 2004) ("Because the [agency] imposed the . . . cut-off date without informing [the requester] of its intention to do so, the court must conclude that [the agency's] search was inadequate."); see also FOIA Update, Vol. IV, No. 4, at 14 (advising more than two decades ago that "agencies should give requesters notice of the 'cut-off' dates they use"); cf. McGehee, 697 F.2d at 1105 (expressing doubt that the agency could establish that "it may 'reasonably' use any 'cut-off' date without so informing the requester").

92. See, e.g., 28 C.F.R. § 16.4(a) (2004) (Department of Justice FOIA regulation notifying requesters of its "cut-off" date).

93. See 5 U.S.C. § 552(g) (2000) (requiring each agency to prepare and make publicly available (including electronically) its own guide for ready use by FOIA requesters in making requests to it); see also FOIA Update, Vol. XIX, No. 3, at 4 (advising that "[a]n agency's FOIA Web site is an excellent means of affording widespread public availability to its FOIA and Privacy Act regulations").

94. See, e.g., Pub. Citizen, 276 F.3d at 634 (noting that State Department provided notice of its "cut-off" date policy in letters sent to all requesters acknowledging receipt of their requests); cf. McGehee, 697 F.2d at 1105 (suggesting that actual notice of an agency's "cut-off" policy might be given where such notice "would involve an insignificant expenditure of time and effort on the part of the agency").

95. See, e.g., 28 C.F.R. § 16.4(a) (providing notice of the "cut-off" date that the Justice Department "ordinarily" uses, and specifying that "if any other date is used, the [Department] shall inform the requester of that date").

96. See FOIA Update, Vol. XVI, No. 3, at 3 (reminding agencies of importance of FOIA requesters "being fully informed of all such scope matters").

97. See, e.g., Zemansky v. EPA, 767 F.2d 569, 574 (9th Cir. 1985); DiViaio v. Kelley, 571 F.2d 538, 542-43 (10th Cir. 1978); Barber v. Office of Info. & Privacy, No. 02-1748, slip op. at 4 (D.D.C. Sept. 4, 2003) (holding that the agency "had no duty to conduct research or to answer questions" that addressed the "'authentic[ity]' of federal jurisdiction over the location of his criminal prosecution"), aff'd per curiam, No. 03-5266 (D.C. Cir. Feb. 20, 2004); Gillin v. Dep't of the Army, No. 92-325, slip op. at 10 (D.N.H. May 28, 1993) ("FOIA creates only a right of access to records, not a right to require an agency to disclose its collective reasoning behind agency actions, nor does FOIA provide a mechanism to challenge the wisdom of substantive agency decisions."), aff'd, 21 F.3d 419 (1st Cir. 1994) (unpublished table decision); Patton v. United States R.R. Ret. Bd., No. ST-C-91-04, slip op. at 3 (W.D.N.C. Apr. 26, 1991) (stating that the FOIA "provides a means for access to existing documents and is not a way to interrogate an agency"), aff'd, 940 F.2d 652 (4th Cir. 1991) (unpublished table decision); Hudgins, 620 F. Supp. at 21 ("[The] FOIA creates only a right of access to records, not a right to personal services."); cf. Flowers v. IRS, 307 F. Supp. 2d 60, 71 (D.D.C. 2004) (declaring that the plaintiff "cannot use FOIA discovery to conduct an investigation into the [agency's] rationale" for auditing her). But see also Ferri v. Bell, 645 F.2d 1213, 1220 (3d Cir. 1981) (declaring that a request "inartfully presented in the form of questions" could not be dismissed, partly because the agency conceded that it could provide the requester with records containing the information he sought); FOIA Update, Vol. V, No. 1, at 5 (advising that "while agencies do not have to create or compile new records in response to FOIA requests (whether formulated in question form or not), they should make good faith efforts to assist requesters in honing any requests for readily accessible records which are 'inartfully presented in the form of questions.'" (quoting Ferri, 645 F.2d at 1220)).

98. See, e.g., Poll v. United States Office of Special Counsel, No. 99-4021, 2000 WL 14422, at *5 n.2 (10th Cir. Jan. 10, 2000) (recognizing that the FOIA does not require an agency "'to create documents or opinions in response to an individual's request for information'" (quoting Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985))); Sorrells v. United States, No. 97-5586, 1998 WL 58080, at *1 (6th Cir. Feb. 6, 1998) (advising that agency is not required to compile document that "contain[s] a full, legible signature"); Krohn v. Dep't of Justice, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (finding that agency "cannot be compelled to create the [intermediary records] necessary to produce" the information sought); Jones v. Runyon, 32 F. Supp. 2d 873, 876 (N.D. W. Va. 1998) (concluding that "because the FOIA does not obligate the [agency] to create records," it "acted properly by providing access to those documents already created"), aff'd, 173 F.3d 850 (4th Cir. 1999) (unpublished table decision); Bartlett v. United States Dep't of Justice, 867 F. Supp. 314, 316 (E.D. Pa. 1994) (ruling that agency is not required to create handwriting analysis); see also FOIA Update, Vol. V, No. 1, at 5; cf. De Luca v. INS, No. 95-6240, 1996 U.S. Dist. LEXIS 2696, at *2 (E.D. Pa. Mar. 7, 1996) (noting that agency offered -- purely as matter of administrative discretion -- to create certification that it had no record that requester was naturalized citizen). But cf. Schladetsch v. HUD, No. 99-0175, 2000 WL 33372125, at *3 (D.D.C. Apr. 4, 2000) ("Because [the agency] has conceded that it possesses in its databases the discrete pieces of information which [plaintiff] seeks, extracting and compiling that data does not amount to the creation of a new record."), appeal dismissed voluntarily, No. 00-5220 (D.C. Cir. Oct. 12, 2000); Int'l Diatomite Producers, 1993 WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (giving agency choice of compiling responsive list or redacting existing lists containing responsive information); FOIA Update, Vol. XVIII, No. 1, at 5-6 (advising of particular statutory obligations regarding electronic record searches and format of disclosure).

99. See FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 6