The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s. As hard as it may be to believe, the definition of a “record” is still not established. There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA. But the antecedent question—what exactly is a “record”—has not been litigated.
The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”). In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record. I discussed that issue in a previous post titled There is No Tenth Exemption. The circuit court, however, did not define a “record” in that case.
Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.” We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive. In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision. Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record. The agency then withheld those supposedly separate records as “non-responsive.” Compare the full original here and the full re-produced record here. This approach makes a mockery of AILA; so we filed suit.
Today, CoA Institute filed its Cross-Motion for Summary Judgment arguing among other matters that the DOJ’s approach to defining a record is untenable. The DOJ has taken the position, in recently issued guidance from its Office of Information Policy, that the interplay between the subject matter of the request and the content of agency documents define the “nature of a FOIA record” in response to that request. The agency’s position, in other words, is that a FOIA record is defined—indeed, that the “record” comes into being—through the process of reading and interpreting a request and then searching for and analyzing agency documents to find those portions that contain responsive information.
As we note in our Cross-Motion (pages 25-28), this approach has several problems. First, it has no basis in the statute. Second, it conflicts with the rule that requesters may only seek access to records that are already in existence when the request is submitted. Third, it means that the same, single document could be one record in response to one request, but ten records in response to another. Finally, it conflicts with one of the venue provisions in FOIA’s judicial review section, rendering it a nullity.
CoA Institute instead proposed its own definition of a record (pages 22-25) that is based on the statute, harmonizes with existing FOIA statutory and case law, and promotes disclosure. Our approach takes into account that agencies already have material containing information (whether documents, video files, electronic files, etc.) in their control before a request is submitted, that this material exists in a particular form and format, and that agencies must disclose such material as a unit whenever the informational content is responsive to a request (subject to FOIA’s nine exemptions, of course). Thus, our “complete and proper definition of a ‘record’ under the FOIA is (1) any material containing information, (2) created or obtained by an agency, (3) within an agency’s control when a request is submitted, and (4) in its full native form and format as maintained by an agency at the time of a request, ‘i.e., as a unit’” (page 25).
We also urged the court to continue the practice of denying agencies any deference to their interpretations of FOIA’s statutory terms (pages 19-21).
Click here for There is No Tenth Exemption, a previous post in this series.
James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.
 See Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).
 830 F.3d 667 (D.C. Cir. 2016).