Corporate America And Uncle Sam Need To Wake Up To E-Discovery And E-FOIA Obligations, Part Two

Author:Mr Eric Sinrod
Profession:Duane Morris LLP

Reprinted with permission from

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

Statutory Background

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

federal officials.

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


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