The 1996 amendments to FOIA mark the first congressional recognition that rights of access to government information must change to keep up with technological advances

by / December 31, 1996
In October, President Clinton signed the Electronic Freedom of Information Act Amendments of 1996, often referred to as EFOIA. He noted that the legislation "brings FOIA into the information and electronic age," but added that "as the government actively disseminates more information, I hope that there will be less need to use FOIA to obtain government information." He concluded that "our country was founded on democratic principles of openness and accountability, and for 30 years FOIA has supported these principles. Today, the Electronic Freedom of Information Act Amendments of 1996 reforge an important link between the United States government and the American people."

Amendments to bring FOIA into the electronic age had been percolating slowly in Congress for the past six years, but it wasn't until some Republicans in the House of Representatives finally got interested that the bill began to move on a fast track. The bill had actually passed the Senate in the previous session, but the House essentially ignored it. When the Republicans won control of both Houses in 1994, a pet project of a leading Democratic Senator, Patrick Leahy of Vermont, was not considered a likely candidate for expeditious congressional action. Nevertheless, Leahy's staff slowly but cautiously moved the bill through the Senate Judiciary Committee, where it was poised for Senate approval if the House could be persuaded to act.

Because information policy has often broken down along ideological lines, with Democrats favoring greater access rights for citizens while Republicans supported tighter bureaucratic control of the flow of information, it came as something of a surprise that the fledgling House Government Management, Information and Technology Subcommittee began moving quickly to produce a bill after holding several days of hearings on information issues last June.

The House was unwilling to accept certain portions of the Senate bill, so the subcommittee made substantial revisions in the Senate bill and, essentially, told the Senate that if it wanted a bill it would have to settle for the House version. In a series of negotiations between House and Senate staff, the House revisions took hold with only minor changes. The House passed the amendments Sept. 17, with the Senate passing its own bill that evening and then passing the House bill the next day.

The amendments address two problem areas in the existing law. The most complicated and difficult of the two is the matter of delays in responding to requests. Congress decided to extend something of a carrot to the agencies, rolling back the statutory 10-day response times to 20 days. In return, requesters -- especially the press -- received expedited review provisions which allow for quicker processing when a requester persuades an agency that the subject matter of the request is of compelling public interest. There are also some added cumbersome administrative features that attempt to break the logjam of delays.

But of most interest to this audience are the electronic amendments. What once appeared to be a bold move forward now seems a bit old hat, but that is partially due to the nature of the legislative process and the inability to garner sufficient interest in the technological policy issues in either Congress or the Clinton administration. In other words, these amendments were not particularly high priority. Nevertheless, the legislation makes clear that electronic records are subject to the act and that a search for electronic records using software is no different -- for purposes of the law -- than a manual search for paper records.

The new legislation allows requesters to get electronic records in any format, regardless of whether the agency maintains them in that format, as long as such a request would not be unreasonably burdensome. Finally, the amendments require agencies to assess their most requested categories of records and make those records routinely available in electronic form.

Perhaps the most important contribution the amendments make to the state of electronic access under FOIA is to clearly repudiate several court decisions that have been regularly used by the government to obstruct or deny access to electronic records. The legislative history of the amendments indicates that the new format requirements are intended to do away with Dismukes vs. Department of Interior, a case in which the court decided that the agency could choose the format in which information was released as long as the information was qualitatively the same as that requested. Although the government has recently disowned the Dismukes rationale, agencies have frequently applied it in the past to deny access to electronic records, providing paper records instead.

The other case is really somewhat more complicated. That case is SDC vs. Mathews, an appellate court decision written by now-Supreme Court Justice Anthony Kennedy when he served on the Ninth Circuit in California. SDC requested a copy of the computer tapes of the National Library of Medicine's MEDLARS database, which the agency was selling as a subscription product. Kennedy ruled that the database was not an agency record because it constituted library reference materials, but the real effect of the case boils down to cost recovery.

Should the government provide such information for only the cost of duplication to a requester who plans to sell it on the open market, or should it be sold as a subscription item by the government at market prices? The fee issue aside, the legislative history of the new amendments indicates that the library reference material argument no longer is valid in this context.

The implication of SDC vs. Mathews and the FOIA amendments is that agencies cannot characterize databases such as the abstracts of NLM's medical articles as "library reference material." More recently, a judge in San Francisco ruled that the Air Force's FLITE database -- which, for purposes of this case, consisted of U.S. Supreme Court cases that had been keypunched in by government staff -- was not an agency record because it was library reference material.

The point of the FOIA amendments is that a database is different in kind than hard-copy library materials. It has long been a given that an encyclopedia or some other book in an agency library is not subject to FOIA, but a database is not of the same nature and just because it is reference material does not mean it is exempt based on the library reference material rationale.

As to the fee issue, Congress has concluded that SDC vs. Mathews is about fee recovery and that it has to be dealt with based on the fee provisions of FOIA. In other words, if the NLM tape costs $100 to duplicate, then a requester should be able to get the tape for $100. If Congress feels this is inequitable, the solution is to set up a statutory fee-charging scheme covering those records; as a result of the 1986 amendments to FOIA, such a specific fee scheme would place the records outside the scope of the FOIA's fee provisions.

The bottom line, from an information policy standpoint, is that Congress should make the decisions on what to charge for specific records and that FOIA is the standard by which fees are normally measured. Specialized legislation can be passed to account for specialized situations, but it should not be a fee-driven decision on the part of the agency that dictates the cost of access to agency information.

What has worried some FOIA advocates is the political dynamics of the FOIA amendment process. FOIA has been amended about every 10 years. It was passed in 1966, first amended in 1974, amended in a simple and very specific fashion in 1976, amended in 1986, and now in 1996. The argument goes that, if FOIA is up for changes only every 10 years, shouldn't the changes have been more far-reaching, setting standards and principles for a rapidly evolving technological world?

There are issues of ownership or custody of electronic records that are not even addressed, but are already routine in today's world. For instance, what would be the status of records downloaded from a listserver or a Web site by a government employee during the course of his or her employment? The records were probably created by a nongovernment third party, but have now come into the possession of the federal government during the course of official business. Whose records are they, and to what rules of disclosure are they subject? What about records put up on the Internet by the government? Must they be provided to noncomputerized requesters in paper form, or is electronic disclosure adequate on its own terms?

These are but a few of the possible questions that remain to be answered through administrative practice or litigation. Nevertheless, the Electronic Freedom of Information Act Amendments of 1996 mark the first congressional recognition that the world of government information is changing and that the statutory rights of access must change to accommodate technological advances.

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: < >.


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Harry Hammitt Contributing Writer