Reprinted with permission from FindLaw.com
In this article, Eric Sinrod examines the responsibilities
of the government and private enterprise pertaining to
electronic information under the Federal Rules of Civil
Procedure for electronic discovery and the Freedom of
Information Act. This installment addresses the Freedom of
Information Act; Part One covered electronic discovery
The Freedom Of Information Act
The Freedom of Information Act (FOIA) was enacted in 1966 so
that the American public could gain access to government
information to monitor the service of elected and appointed
The FOIA was amended in the 1970s with sharper teeth in the
wake of the Watergate scandal. And much later in the mid-1990s,
the statute was further revised to allow for the discovery of
government information in electronic form.
The Freedom of Information Act enables the public to obtain
information from the federal government to ascertain, as stated
by the Supreme Court, "what the government is up to."
After all, a government shrouded in secrecy is not a government
by the people and for the people.
With the coming of the electronic age, Congress enacted
electronic-related amendments (E-FOIA) in 1996.
These amendments required federal agencies to make available
important records online, provide specific guidance to citizens
on submitting information requests, and implement the
technology necessary to post information proactively.
The intent of E-FOIA was to increase public access to
government information while at the same time reducing the
burden created by FOIA requests.
An agency record is specifically defined under E-FOIA as
including materials in an "electronic format."
Moreover, an agency is required to provide such a record in
the "format requested . . . if the record is readily
reproducible by the agency in that form or format."
In addition, agencies are required to make "reasonable
efforts to maintain its records in forms or formats that are
reproducible for purposes of the [FOIA]."
All well and good, right? Wrong.
A late-2007 audit by the National Security Archive--an
independent, nongovernmental research effort at George
Washington University--paints a bleak picture of governmental
noncompliance with E-FOIA a decade after its enactment.
Significant findings include the following:
-- Only 21 percent of federal agencies post on their Web
sites all four categories of records specifically required by
the law (agency opinions/orders, statements of agency policy,
frequently requested records and guidance to agency staff);
A mere 6 percent of agencies post all 10 elements of
essential FOIA guidance (where to send FOIA requests, fee
status, fee waivers, expediting process, reply time,
exemptions, administrative appeal rights, where to send
appeals, judicial review rights, and an index of