The Electronic Freedom of Information Act Amendments of 1996
TABLE OF CONTENTS
1. Findings and Purposes
2. AIDS TO REQUESTERS FOR LOCATING RECORDS
1. Making Records Subject To Repeated Requests More Readily Available
2. Indexes and Guides
3. Annual Reports
3. ELECTRONIC FORMATS AND ACCESS
1. On-Line Access to Agency Records ("Electronic Reading Rooms")
2. Ratification That FOIA Applies To Information In Electronic Format
3. Honoring Form or Format Requests
4. Searches of Electronic Records
5. Computer Redaction
6. Deference To Agencies On Technical Issues
4. CHANGES IN TIME PERIOD AND PROCEDURES FOR RESPONDING TO REQUESTS
1. Expansion of Agency Response Time
2. Expedited Access
3. Processing Ordinary (non-Expedited) Requests.
1. Multitrack Processing
2. Requests Requiring More Than 20 Working Days ("Unusual Circumstances")
3. Permissible Justifications for Lengthy Delays ("Exceptional Circumstances")
4. Aggregating Requests
5. Estimation of Matter Denied
Findings and Purposes
The findings accompanying the Amendments emphasize the important role that FOIA has played in disclosing waste, fraud, abuse, and wrongdoing in the Federal Government, and stress the statute's role in the identification of unsafe consumer products, harmful drugs, and serious health hazards. The Amendments also acknowledge the increase in the government's use of computers to "store publicly valuable agency records and information," and exhorts agencies to use this new technology to enhance public access to government information. P.L. No. 104-231, 101 Stat. 2422, Sec. 2(a)(1996). The purposes of the statute include maximizing the usefulness of information held by the government, improving public access to agency records, and ensuring agency compliance with statutory time limits. Id. Sec. 2(b). (See Footnote 1)
The changes to the FOIA in the 1996 Amendments fall into three major categories. First, effective March 31, 1997, the Amendments impose a number of requirements designed to enhance public access to agency records by mandating that agencies provide certain indexes to help requesters formulate requests and make some previously requested records available without a request. Second, the Amendments enhance requesters' ability to obtain records in electronic format by confirming that records in electronic form are subject to FOIA, requiring agencies to honor requesters' preference for special formats, and requiring agencies to make more information available on-line. Finally, beginning in October, 1997, the Amendments will modify the deadlines and procedures for processing FOIA requests to provide faster processing for some requests, and to encourage agencies to reduce backlogs and delays.
I. AIDS TO REQUESTERS FOR LOCATING RECORDS
(Effective March 31, 1997)
The Amendments make three major changes designed to assist requesters in locating and requesting records: (A) Agencies must make previously requested records that have been, or are likely to be, subject to additional requests available without a request; (B) agencies must provide indexes and guides identifying their record systems; and (C) agencies must provide information on processing time in their annual reports, and make these reports available to the public.
A. Making Records Subject To Repeated Requests More Readily Available.
Section 552(a) of the FOIA divides information into (1) agency records that must be published; (2) agency records that must be made available to the public without a request in agency "Reading Rooms"; and (3) agency records that must be made available to the public in response to a request.
The Amendments expand the materials that must be made available without a request under 552(a)(2) to include those records that have been identified in response to a prior FOIA request and that the agency has determined "have become or are likely to become the subject of subsequent requests for substantially the same records." 5 U.S.C. Sec. 552(a)(2)(D). Consequently, records that have been, or are likely to be, requested more than once must now be made available for public inspection and copying at agency Reading Rooms. Moreover, as discussed below, agencies will eventually be required to make such repeatedly requested records available on-line in "Electronic Reading Rooms," as well as in conventional Reading Rooms. (See Footnote 2) This requirement is designed to ensure that copies of prior-released records on a popular topic, such as the assassinations of public figures or government scandals, will automatically be made available to the public. H. Rep. No. 795, 104th Cong., 2d Sess. 21 (1996). (See Footnote 3)
B. Indexes and Guides.
To assist requesters, agencies are required to make available a general index of the previously released records that have been or are likely to be the subject of additional requests. 5 U.S.C. Sec. 552(a)(2)(E). This requirement is intended to assist requesters in obtaining records that have been the subject of prior FOIA requests. Moreover, Congress hoped that this index will assist agencies in complying with the FOIA time limits because requests for prior-released records can be processed more readily, without the need for new searches. This index will initially be available through agency reading rooms, but agencies must also make this index available by computer telecommunications by December 31, 1999.
The Amendments also require that agencies make publicly available, upon request, "reference material" or a "guide" for requesting records or information from the agency. 5 U.S.C. Sec. 552(g). These guides must include: (i) an index of all major information systems of the agency; (ii) a description of major information and record locator systems maintained by the agency; and (iii) a handbook for obtaining various types and categories of public information from the agency. The information in this guide is intended to supplement the Government Information Locator Service ("GILS"), which is supposed to identify the major information systems of each agency. 44 U.S.C. Sec. 3511. Congress expected, but did not require, that the Office of Management and Budget ("OMB") would take steps to ensure that agency guides for requesting records follow a common format and use common terminology to describe record systems and locator systems. H. Rep. No. 795, supra, at 30. The agency guides should be available at agency Reading Rooms by March 31, 1997, and available on-line by November 1, 1997.
C. Annual Reports.
Section Sec. 552(f) requires that agencies prepare an annual report to Congress. The Amendments (i) expand the information that must be included in these reports, and (ii) require that these reports be made available to the public through a computer network or other electronic means.
Among other information, the agency must report the number of days it takes the agency to process particular types of requests so that requesters can use the annual report to determine how long it should take for the agency to process their requests. In addition, each agency is required to publish in its annual reports information regarding denials of requested records, appeals, a complete list of statutes upon which the agency relies to withhold information under Section 552(b)(3) (which exempts information that is specifically exempted from disclosure by other statutes), the number of backlogged FOIA requests, the amount of fees collected, and the staff and funds devoted to processing FOIA requests.
The annual reports must be made available to the public, including making the report available through a computer network or, if an agency does not have the means established to make the report available on-line, by other electronic means. The Attorney General is required to make each agency report that is on-line available at a single electronic access point. Congress expected the Justice Department to establish a home page for accessing the agency FOIA reports. H.Rep. No. 795, supra at 28.
Reports will now cover each fiscal year, rather than the calendar year. The Attorney General and the OMB Director are required to develop reporting guidelines for the annual reports by October 1, 1997. The Department of Justice has interpreted the Amendments to require that the first reports need not be filed until February 1, 1999. See Dep't of Justice, FOIA UPDATE, XVII, No. 4 (Fall 1996).
II. ELECTRONIC FORMATS AND ACCESS
(Effective March 31, 1997)
A. On-Line Access to Agency Records ("Electronic Reading Rooms").
Agencies have increasingly been using electronic communications technologies, including the Internet, to make government information more easily accessible to the public. Most of this activity has been voluntarily. Previously, the only general law requiring agencies to make records available on-line was the Government Printing Office Electronic Information Access Enhancement Act of 1993. 44 U.S.C. Sec. 4101(a)(1). This statute requires that agency records covered by Section 552(a)(1) of the FOIA -- namely agency notices concerning rules, proposed rules, policy statements and similar materials that must be published in the Federal Register -- be made available on-line by the Government Printing Office.
The Amendments require that two additional categories of agency records be made available on-line by November 1, 1997. First, the Amendments require that agencies make the traditional FOIA Reading Room materials covered by Sec. 552(a)(2) available by computer telecommunications if the record was created on or after November 1, 1996. Thus, records such as agency opinions, interpretations adopted by the agency, staff manuals and instructions to staff that affect the public, must be made available on-line if created after November 1, 1996. Second, records requested under FOIA that the agency determines have been, or are likely to become, the subject of subsequent requests must also be made available on-line if they were created after November 1, 1996.
Thus, beginning in November 1, 1997, agencies must establish "Electronic Reading Rooms" that make the records created after November 1, 1996 that must be placed in agency Reading Rooms available in electronic format. If an agency does not have the means established to make these materials available on-line, then the information must be made available in some other electronic form, e.g., CD-ROM or disc. Congress and the Administration, however, have indicated a strong preference that agencies fulfill this requirement by making the records available over the Internet.
Even after agencies make these records available electronically, the agencies will still be required to make the materials "available for public inspection and copying," without a request, at agency Reading Rooms. Moreover, the legislative history indicates that previously released records must still be made available in response to a FOIA request to the agency because "not all individuals have access to computer networks or are near agency public reading rooms." 142 Cong. Rec. S10716 (Sept. 17, 1996). (See Footnote 4)
B. Ratification That FOIA Applies To Information In Electronic Format.
There is now little disagreement that the FOIA covers all government records, regardless of the form in which they are stored by the agency. (See Footnote 5) The Amendments confirm that FOIA applies to information in electronic formats by defining "record" to "include any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format." 5 U.S.C. Sec. 552(f)(2). (See Footnote 6)
C. Honoring Form or Format Requests.
Prior to the 1996 FOIA Amendments, there were disputes over whether an agency must provide access to electronic records in electronic format or may satisfy its obligations under FOIA by providing a paper print- out, even if the requester wants access to the electronic format. In Dismukes v. Department of the Interior, 603 F. Supp. 760, 763 (D.D.C. 1984), the court held that an agency "has no obligation under the FOIA to accommodate plaintiff's preference [for a particular format, but] need only provide responsive, nonexempt information in a reasonably accessible form." Other Courts rejected this approach, concluding that "[n]othing in the FOIA excuses an agency from disclosing a particular record because it has disclosed the content elsewhere in a different format." Delorme Publishing Co. v. National Oceanic and Atmospheric Administration, 907 F.Supp. 10, 12 (D. Me. 1995).
The Amendments resolve this dispute by rejecting Dismukes. The Amendments require that agencies assist requesters by providing information in the format requested, including requests for records in electronic format, if the record "is readily reproducible by the agency in that form or format." 5 U.S.C. Sec. 552(a)(3)(B). Thus, if an agency already maintains records in a particular format, requesters are entitled to request a copy in that format. Moreover, even if the agency does not maintain the record in the format desired by the requester, the agency is required to provide it in the desired format if the desired format is "readily reproducible" from the agency's records.
For example, if the agency maintains a database in a particular software format, requesters should be able to request that the data be copied to an alternative format that is compatible with the requester's database software as long as the alternative format is readily reproducible from the agencies' software. Moreover, some have suggested that agencies may be required to make an electronic copy of paper records to satisfy a request if the paper records are readily reproducible in electronic format by using imaging or scanning technology. The Amendments state that "[e]ach agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section." 5 U.S.C. Sec. 552(a)(3)(B).
D. Searches of Electronic Records.
The Amendments also require that agencies make "reasonable efforts to search for the records in electronic form or format." 5 U.S.C. Sec. 552(a)(3)(B). However, no such search is required if "such efforts would significantly interfere with the operation of the agency's automated information system." Id. The statute does not define "reasonable efforts," and the legislative history provides little guidance:
An unreasonable effort would significantly interfere with the operations of the agency or the agency's use of its computers. Electronic searches should not result in any greater expenditure of agency resources than would have occurred with a conventional paper-based search for documents.
H. Rep. No. 795, supra, at 22.
The Amendments define "search" as a "review, manually or by automated means," of "agency records for the purpose of locating those records responsive to a request." 5 U.S.C. Sec. 552(a)(3)(D). Thus, the Amendments preclude agencies from arguing that they are not required to search for or retrieve information located in a database when responding to a FOIA request on the theory that such retrieval of electronic data entails the creation of new records that do not exist, and FOIA does not require the creation of new records. Under the definition of "search" in the Amendments, the use of computer codes or programming to locate and retrieve computerized records constitutes a "search," not the creation of records. See H. Rep. No. 795, supra at 22.
E. Computer Redaction.
Agencies have been encouraged to use computer technologies to redact information from records before release. However, when information is redacted in this manner it is often difficult or impossible for the requester to determine whether a few words or many pages of information have been withheld.
The Amendments aid requesters by requiring agencies to indicate deletions of the released portion of the record and, where technically feasible, to indicate the deletion at the place on the record where the deletion was made, unless including that indication would harm an interest protected by an exemption pursuant to which the deletion is made. 5 U.S.C. Sec. 552(b)(last sentence).
F. Deference To Agencies On Technical Issues.
If the agency (i) refuses to make records available in a particular format on the grounds that it is not "readily reproducible" by the agency in that format, or (ii) fails to indicate the extent of the material redacted on the grounds that this is not "technically feasible," the Amendments provide that the a court reviewing the agency's decision must accord substantial weight to the agency's assessment of the reproducibility of the requested form or format of records, and defer to the agency's determination of the technical feasibility of revealing the extent of the material redacted. 5 U.S.C. Sec. 552(a)(4)(B). This mandate to defer to the agency will make it difficult to challenge such agency determinations, but does not require courts to accept the agency's conclusion on these issues if they are shown to be inaccurate.
III. CHANGES IN TIME PERIOD AND PROCEDURES
FOR RESPONDING TO REQUESTS.
(Effective October 2, 1997)
The Amendments seek to address the most frequent complaint about the operation of the FOIA, the delays in responding to FOIA requests. The FOIA's statutory limit of ten days for responding to requests has often been meaningless because agencies are permitted to ignore this limit if they have a backlog that delays responding to requests. The Amendments double the ten-day limit, encourage agencies to employ better management systems to expedite requests, and prohibit agencies from relying on routine backlogs as a reason for delay.
A. Expansion of Agency Response Time.
The Amendments double the time limit for an agency to provide an initial response to a FOIA request from ten working days to twenty working days.
B. Expedited Access.
The Amendments require agencies to promulgate regulations authorizing expedited processing of requests for records if the requester demonstrates a "compelling need" for a speedy response because:
(1) failure to obtain the records within an expedited time frame could reasonably be expected to pose an imminent threat to an individual's life or physical safety; or,
(2) the request is made "by a person primarily engaged in disseminating information," and the requester demonstrates "urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. Sec. 552(a)(6)(E)(i), (v).
Agencies may also elect to adopt regulations that provide for expedited processing in other cases. Id. Sec. 552(a)(6)(i)(I). The Amendments do not address whether agencies are required to expedite requests for other reasons that have been recognized as grounds for expedition in the past, such as threats to due process rights.
The requester bears the burden of showing that expedition is appropriate and must provide a statement certifying that the demonstration of compelling need is true and correct to the best of the requester's knowledge and belief. 5 U.S.C. Sec. 552(a)(6)(E)(vi). Any challenge to an agency's decision to deny expedition will be limited to the record before the agency at the time it denied the request. Id. Sec. 552(a)(6)(E)(iii). Accordingly, it is important for the requester to present any information demonstrating that expedition is justified in his or her request to the agency.
The agency will be required to make a determination whether or not to grant the request for expedited access within ten days, then notify the requester of the decision, and provide for expeditious consideration of any appeals. Id. Sec. 552(a)(6)(E)(ii)(I). If the request for expedited processing is granted, the agency must process the request "as soon as practicable." Id. Sec. 552(a)(6)(E)(iii). If the request for expedited processing is denied, or the expedited processing is granted but the requester believes that the agency is not processing the request in a timely manner, the requester may seek judicial review. However, the Amendments provide that if, after the requester files suit, the agency provides a complete response to the request for records, the courts shall not have jurisdiction to review whether the agency improperly delayed processing the request. Id. Sec. 552(a)(6)(E)(iii). The requester should still be able to pursue a claim for attorneys' fees against the agency. See H. Rep. No. 795, supra, at 25.
C. Processing Ordinary (non-Expedited) Requests.
For requests that do not qualify for expedited processing, the Amendments contain a number of provisions that encourage requesters to limit the scope of their requests in exchange for faster processing and place pressure on agencies to reduce backlogs.
1. Multitrack Processing. Courts have held that if an agency processes FOIA requests on a first-come, first-served basis this satisfies the requirement that an agency exercise due diligence in dealing with backlogs of FOIA requests. Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C.Cir. 1976); The National Magazine v. Dept. of State, 805 F. Supp. 68, 673-74 (D.D.C. 1992). This first-in, first-out processing, however, frustrates requesters with a simple request because it may result in lengthy delays if the agency is processing a previous request that is complex and/or involves voluminous records.
The Amendments encourage, but do not require, agencies to promulgate regulations implementing multitrack processing systems, in which small and large requests are processed separately. 5 U.S.C. Sec. 552(a)(6)(D). The agency must still exercise due diligence within each track, but the statute does not spell-out what this means in practice. The Amendments also state that agencies may provide requesters with the opportunity to limit the scope of their requests in order to qualify for processing under a faster track.
2. Requests Requiring More Than 20 Working Days ("Unusual Circumstances"). The Amendments continue to permit an agency in "unusual circumstances" to extend for a maximum of 10 working days the statutory time limit for responding to a FOIA request by sending the requester a written notice setting forth the reason for such extension. Thus, if the agency is unable to process the request within twenty working days, it may extend the period for responding to up to thirty working days simply by sending a notice. To invoke this provision, the delay in processing the request must arise from the need to search for and collect requested records from multiple offices, the volume of records requested, or the need for consultation among components of an agency. 5 U.S.C. Sec. 552(a)(6)(B)(iii). In practice, however, when agencies take an extension for these reasons or other reasons, more than an extra ten days is necessary to respond.
The Amendments also provide that when the agency can not meet the twenty working day deadline, the agency shall give the requester an opportunity to limit the scope of the request so that the request may be processed within statutory time limits, or arrange with the agency an agreed upon time frame for processing the original request or a modified request. Id. Sec. 552(a)(6)(B)(ii). If the agency and the requester are unable to reach an agreement on a time limit or limitation of the request, the agency is still obligated to process the request with due diligence. If the requester brings suit before the agency completes its response, the court may be asked to determine whether the requester's refusal to limit the request was reasonable. The Amendments provide that if the requester refuses to "reasonably" modify the scope of the request or arrange an alternative time frame for processing a request in response to a request by the agency, this refusal may be considered a factor in determining whether "exceptional circumstances" justify the delay in processing and require a stay of the lawsuit, as discussed below. Id. Sec. 552(a)(6)(C)(iii). The statute does not provide any standards for evaluating the reasonableness of the requester's refusal to modify a request or agree to an alternative date for processing a request.
3. Permissible Justifications for Lengthy Delays ("Exceptional Circumstances"). The FOIA provides that if the agency fails to respond to a FOIA request within the initial deadline, or the ten working day extension, the requester may bring suit. However, if the agency can show that "exceptional circumstances" justify its delay in processing the request, and that the agency is exercising "due diligence" in responding to the request, the court may (and almost always will) stay the action to give the agency additional time to complete its review. 5 U.S.C. Sec. 552(a)(6)(C)(i). Previously, however, the statute did not specify what constituted "exceptional circumstances" or "due diligence." In Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), the court held that the "exceptional circumstances" requirement was satisfied where the agency had experienced an unforeseen 3,000 percent increase in FOIA requests in one year, which created a massive backlog in an agency with insufficient resources to process those requests in a timely manner. In practice, however, Open America was interpreted as holding that if an agency could show that it had a backlog of FOIA requests, the agency could invoke the "exceptional circumstances" language to obtain a lengthy, if not open-ended, extension of its obligation to respond -- even if the backlog was longstanding and expected because of the limited resources devoted to FOIA processing. (See Footnote 7)
The Amendments seek to limit an agency's ability to rely on backlogs to justify delays in responding to FOIA requests. The Amendments still do not define "exceptional circumstances," but provide that "exceptional circumstances" do not include a delay that results "from a predictable agency workload of requests unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." 5 U.S.C. Sec. 552(a)(6)(C)(ii). The legislative history indicates that under these criteria, "agencies with backlogs must make efforts to reduce that backlog before exceptional circumstances will be found to exist." 142 Cong. Rec. S10717 (Sept. 17, 1996).
The legislative history, however, also suggests that a host of other grounds can still be used by agencies to justify delays in processing:
Agencies may also make a showing of exceptional circumstances based on the amount of material classified, based on the size and complexity of other requests processed by the agency, based on the resources being devoted to the declassification of classified material of public interest, or based on the number of requests for records by courts or administrative tribunals.
H. Rep. No. 795, supra at 24-25. In addition, as noted above, the Amendments explicitly provide that the court shall consider whether a requester refused "to reasonably modify the scope of a request" as "a factor" in determining whether "exceptional circumstances exist." 5 U.S.C. Sec. 552(a)(6)(C)(iii). The Amendments give no guidance on how this factor or other factors should be weighed in making this determination. (See Footnote 8)
D. Aggregating Requests.
The Amendments also allow agencies to prevent requesters from breaking a request into multiple requests merely to circumvent the procedures for extending the processing deadlines. The Amendments permit agencies to promulgate regulations to aggregate requests made by the same requester, or group of requesters acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which will otherwise satisfy the unusual circumstances specified in subparagraph (a)(6)(B)(iii). The aggregated requests must involve clearly related matters. 5 U.S.C. Sec. 552(a)(6)(D)(iv). Many agencies already have regulations concerning aggregation of requests for purposes of calculating fees. (See Footnote 9) The Amendments arguably restrict the circumstances under which requests can be aggregated to the situations set forth in the statute.
E. Estimation of Matter Denied.
The Amendments require that, when denying a FOIA request, the agency shall "make a reasonable effort to estimate the volume of any requested matter" that is being denied, and provide that estimate to the requester, unless doing so will harm an interest protected by an exemption pursuant to which the denial is made. 5 U.S.C. Sec. 552(a)(6)(F).
1. The findings include a statement that purpose of the FOIA is to require federal agencies to make records available to the public, subject to statutory exemptions, "for any public or private purpose." Id. Sec. 2(a)(1) (emphasis added). This finding was intended by the chief architect of the Amendments, Sen. Leahy, as a response to recent Supreme Court cases holding that, in determining whether certain FOIA exemptions authorize agencies to withhold records, private purposes may not be considered and the only "relevant 'public interest in disclosure' to be weighed" is whether disclosure will contribute "'significantly to public understanding of the operations or activities of the government.'" Department of Defense v. Federal Labor Relations Auth., 114 S. Ct. 1006, 1012 (quoting United States Justice Dep't v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 775 (1989)) (italics in original). The Amendment's statement that FOIA is intended to make records available for any purpose was intended to signal that the Supreme Court's interpretation is not consistent with Congress' intent "and distorts the broader import of the Act in effectuating Government openness." S. Rep. No. 272, 104th Cong., 2d Sess. 26-27 (1996) (Additional views of Sen. Leahy). Whether this finding will be sufficient to convince courts to consider interests other than disclosure of government activities when evaluating whether certain exemptions apply is unclear. See Bibles v. Oregon Natural Desert Ass'n, 117 S. Ct. 795 (1997) (reaffirming statements in Reporters Committee and Department of Defense v. FLRA concerning the public interest to be weighed).
2. Agencies are permitted to delete identifying details from these prior-released records in order to prevent a clearly unwarranted invasion of personal privacy, as with opinions, statements of policy, and other materials previously covered by Sec. 552(a)(2). However, consistent with the "Computer Redaction" requirements described below, the agency must indicate the extent of any deletion from the prior-released records and, where technically feasible, indicate the deletion at the place on the record where the deletion was made, unless doing so will harm an interest protected by the exemption in subsection (b) under which the deletion was made.
3. Even before the 1996 Amendments, some agencies had already adopted a practice of making records that are subject to recurrent requests available in agency Reading Rooms. See S. Rep. No. 272, supra, at 13.
4. But see Oglesby v. Dept. of the Army, 920 F.2d 57, 70 (D.C. Cir. 1990)(records made available in agency Reading Rooms need not be provided in response to a request); Nolen v. Rumsfeld, 535 F.2d 890 (5th Cir. 1976) (FOIA only requires that the agency make records available, not that agency deliver records to the requester).
5. See Department of Justice Report on "Electronic Record" Issues Under the Freedom of Information Act, S. Hrg. 1098, 102d Cong., 2d Sess. 33 (1992) (The Department of Justice and most agencies agree that computer database records are agency records subject to the FOIA); Armstrong v. Executive Office of the President, 1 F. 3d 1274 (D.C. Cir. 1993) (electronic records are agency records under the Federal Records Act); Yeager v. Drug Enforcement Admin., 678 F. 2d 315, 321 (D.C.Cir. 1982) (FOIA does not distinguish manual and computer storage systems); Long v. IRS, 596 F. 2d 362, 365 (9th Cir. 1979) cert. denied, 446 U.S. 917 (1980) (FOIA applies to computer tapes to the same extent that it applies to any other documents).
6. The House Committee responsible for these Amendments explicitly rejected a Senate proposal to incorporate the definition of "record" under the Records Disposal Act, 44 U.S.C. Sec. 3301, into the FOIA. S. Rep. No. 272, supra at 19 (proposing to amend FOIA to adopt a modified version of 44 U.S.C. Sec. 3301 for the definition of "record"). The Records Disposal Act definition contains an exception for "library materials," and some cases have relied on this language to conclude that some records held by agencies are not subject to the FOIA. See, e.g., Baizer v. United States Dept. of the Air Force, 887 F. Supp. 225, 227 (D.D.C. 1995). The House Committee cited one such case, SDC Development Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976), as inconsistent with the FOIA, and emphasized that, contrary to this decision, the Committee intended that "information an agency has created and is directly or indirectly disseminating remains subject to the FOIA in any of its forms or formats." H. Rep. No. 795, supra at 20.
7. Summers v. U.S. Department of State, 729 F. Supp 1379 (D.D.C. 1989) and 733 F. Supp. 433 (D.D.C. 1990); but see Ray v. U.S. Department of Justice, 770 F. Supp. 1544, 1549-50 (S.D.Fla. 1990) (denying request for stay); Hunter v. Christopher, 923 F.Supp. 5, 8 (D.D.C. 1996) (same).
8. The legislative history, however, indicates that failure to agree to modify a request should not be dispositive. As reported by the House Committee, the bill contained language stating that the requestor's unreasonable refusal to agree to limit a request or refusal to agree to a time frame "shall be exceptional circumstances." H. Rep. No. 795, supra, 3-4. By the time the bill reached the floor, however, this language had been changed to provide that the requester's refusal should only be considered "a factor" in determining whether exceptional circumstances exist. 142 Cong. Rec. H10448 (Sept. 17, 1996).
9. 28 C.F.R. Sec. 16.10(f); 31 C.F.R. Sec. 1.7(a)(3).