The Freedom of Information Act (“FOIA”) provides the public with access to “records” of the Executive Branch.  It does not provide for disclosure of “information” in the abstract.  Surprisingly, however, the definition of a “record” has never been established, despite the seeming inclusion of such a definition at Section 552(f)(2)(A).  And although there is no shortage of caselaw on the distinct question of the meaning of an “agency record,” the antecedent question of what a “record” is has only recently started working its way through the courts.  The D.C. Circuit’s recent opinion in Cause of Action Institute v. Department of Justice provides helpful, if incomplete, insight.  The major takeaway from that decision is that agencies should no longer be permitted to break records into small pieces after receiving a FOIA request in order to avoid disclosure.

As Christopher Walker previously discussed, the D.C. Circuit’s 2016 decision in American Immigration Lawyers Ass’n v. Executive Office for Immigration Review (“AILA”) set off the current definitional debate.  Faced with an agency’s decision to redact certain non-exempt information about immigration judges, the AILA court clarified that agencies could not use “non-responsive” as a sort of “Tenth Exemption” to withhold content within an otherwise responsive record.  Unfortunately, the AILA court left the door open to agencies achieving the same result by redefining “non-responsive” information as “non-responsive records.”  Moreover, because the Circuit failed to grapple with the objective meaning of a “record,” the Department of Justice’s (“DOJ”) Office of Information Policy (“OIP”) issued guidance purporting to fill that lacuna.  The legality of OIP’s guidance, and its consistency with the FOIA, is at the heart of the decision in Cause of Action Institute.

OIP’s guidance on the definition of a “record” directs agencies to apply part of the Privacy Act’s definition of a “record” when processing FOIA requests.  That definition, in relevant part, treats any “item, collection, or grouping of information” as a potential record.  The guidance also instructs agencies to define records on a case-by-case basis depending on the subject matter of an individual FOIA request.  This subjective approach permits divergent treatment of the same informational material across the government, or even between components of a single agency.  We have witnessed such divergence in the treatment of email records, especially email chains—some agencies treat a chain as a single record; others may divide it up and treat individual pieces of the same chain (such as the body of a message or even an email address) as a separate and distinct record for purposes of processing and disclosure.

The records at issue in Cause of Action Institute included three cover letters and attached sets of “Questions for the Record” (“QFRs”) exchanged between DOJ and Congress.  Even though each of these documents was self-contained, with overarching headings, numbering, and consecutive pagination, DOJ relied on OIP’s guidance to withhold individual questions and answers as distinct “records.”  The agency argued that the redacted portions of the QFRs were beyond the subject-matter scope of Cause of Action Institute’s requests and, in any case, had only been included within the complete set of QFRs as a matter of “efficiency” when corresponding with Congress.  The district court accepted that reasoning, and the segmentation of the QFRs.  It also dismissed Cause of Action Institute’s “policy-or-practice” claim, which challenged the lawfulness of OIP’s guidance, for lack of standing.

Yet DOJ’s admission that the QFRs were, in fact, maintained and treated as unitary records prior to the submission of Cause of Action Institute’s FOIA request proved fatal on appeal.  Although the Circuit ultimately declined to construe Section 552(f)(2)(A) as a statutory definition, and did not otherwise provide a workable definition, it nevertheless clarified the import of AILA and impliedly rejected the logic of OIP’s guidance.  Writing for the Court, Judge Edwards explained:

AILA made clear that “once the government concludes that a particular record is responsive to a disclosure request, the sole basis on which it may withhold particular information within that record is if the information falls within one of the statutory exemptions from FOIA’s disclosure mandate.” 830 F.3d at 670. Here, once DOJ identified the compiled QFR documents as responsive to Appellant’s request, it was not permitted to redact information from those documents, except as permitted by FOIA’s statutory exemptions. See Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) (explaining that courts must “be careful to ensure that the term ‘agency records’ not be manipulated to avoid the basic structure of the FOIA: records are presumptively disclosable unless the government can show that one of the enumerated exemptions applies” (internal quotation marks, alterations, and citation omitted)). The Agency’s own disclosures demonstrate that it regarded each QFR document, rather than the individual questions and answers therein, as a record. By redacting non-exempt material from within those records, the Agency violated FOIA and this court’s precedent.

In other words, the maintenance of a “record” and the agency’s treatment of it prior to submission of a FOIA request is the key consideration for whether records can be segmented into discrete units (or separate “records”) for the sole purpose of bypassing FOIA’s disclosure obligations.  DOJ only ever subdivided the QFRs responsive to Cause of Action Institute’s requests after the agency started to process those requests.  The records were otherwise maintained in a unitary form and format.  That is what mattered.  A case-by-case approaching for defining a record after receiving a FOIA request in the course of processing it is no longer to be tolerated in the D.C. Circuit. 

By logical extension, OIP’s guidance must also fail.  The guidance conditions both the meaning and existence of a record on the wording of a FOIA request, an agency’s interpretation of that request’s subject matter, and its evaluation of the feasibility of breaking an existing record into discrete units to narrow the volume of material to be processed.  Except in those unlikely cases where an agency has adopted its records management program to build-in these considerations on the front end, the prior maintenance of a record independent of any given FOIA request will severely limit the application of OIP’s guidance.

The Cause of Action Institute court failed to address this implication of its ruling and to explicitly invalidate OIP’s guidance.  Turning to Cause of Action Institute’s policy-or-practice claim, the Circuit reversed the district court on the question of standing and elucidated some important points that work in favor of the FOIA requesters on mootness, but it still rejected the justiciability of the second claim on ripeness grounds.

Although Appellant’s standing cannot be seriously challenged and the case is not moot, the challenge to the OIP Guidance is not ripe for review. “[I]f a plaintiff’s allegations go not only to a specific agency action, but to an ongoing policy as well, and the plaintiff has standing to challenge the future implementation of that policy, then declaratory relief may be granted if the claim is ripe for review.” City of Houston v. HUD, 24 F.3d 1421, 1430 (D.C. Cir. 1994) (emphasis added). If a claim is not ripe for review, we are constrained to dismiss.

Among other things, the Circuit found the challenge to the OIP guidance to be “unripe” because it relied on “contingent future events that may not occur as anticipated, or indeed may not occur at all.”  Judge Edwards surmised that, while DOJ violated FOIA and the “mandate of AILA” in this case, “[n]o bright line rules in the OIP Guidance compelled DOJ’s disputed action,” and DOJ did not anyway “claim that the OIP Guidance has the force of law.”  Curiously, though, it may be difficult to square this aspect of the Cause of Action Institute decision with the Court’s affirmation of Cause of Action Institute’s standing to even bring a “policy-or-practice” claim, which requires that it demonstrate that it is likely to have other pending or future FOIA requests subject to similar application of the ostensibly unlawful guidance.

In the end, it seems the D.C. Circuit’s discussion of ripeness—which was neither briefed nor argued by the parties—may be an attempt to avoid invalidation of OIP’s guidance and the admittedly difficult task of providing a workable definition of a “record.”  Judge Rao’s concurrence suggests as much.  Citing the “practical asymmetry” between an agency’s obligation to disclosure records, and the ability of requester to style its request for indeterminate records about or concerning particular subjects, Judge Rao highlighted her concern for administrability and agency burden.

The problem is illustrated by Cause of Action’s argument that if a requester seeks a word and its definition, the entire “dictionary would . . . be the relevant ‘record’ for disclosure.” Cause of Action Reply Br. 11. This boil-the-ocean approach to FOIA would inundate requesters with irrelevant material and burden agencies with excessive disclosures. To avoid this result, the parallel request-and-release structure of FOIA permits an agency to identify records in part based on the information requested. In other words, FOIA does not allow a requester to go fishing for a file and reel in the file cabinet.

Any objective definition of a “record,” which explicitly forecloses the ability of an agency to segment informational material into smaller units, which can then be treated as “non-responsive records,” would undoubtedly increase the volume of material processed by agencies.  Whether such administrability concerns are valid, however, is a distinct question that remains unaddressed.  An agency is obliged to process requests implicating voluminous records.  It can clarify the intended scope of disclosure with a requester.  It may seek consent to exclude materials, including many types of information it might otherwise want to treat as “non-responsive.”  Most importantly, it retains discretion to control its own records management program, and more carefully maintain records on the front end, prior to submission of a request. 

Only time can tell whether the Cause of Action Institutes court’s avoidance of the heart of the debate will serve to resolve conflict over the definition of a FOIA “record” or perpetuate the tug-of-war between requesters and the government on this important question.

Ryan P. Mulvey is Counsel at Cause of Action Institute.  He served as lead counsel in Cause of Action Institute v. Department of Justice, No. 20-5182. and argued the case before the D.C. Circuit.  R. James Valvo, III is Executive Director of Cause of Action Institute and was Ryan’s co-counsel in this case.  They can be found on Twitter at @RPMulvey and @JamesValvo.