Cause of Action Institute v. DOJ ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2021 Decided June 1, 2021
No. 20-5182
CAUSE OF ACTION INSTITUTE,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02373)
Ryan P. Mulvey argued the cause for appellant. With him
on the briefs was R. James Valvo, III.
Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jeffrey Bossert Clark, Acting Assistant Attorney General, and
Daniel Tenny, Attorney.
Before: RAO and WALKER, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge RAO.
EDWARDS, Senior Circuit Judge: In December 2013,
Appellant Cause of Action Institute submitted a Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, request to the
Office of Information Policy (“OIP”) in the Department of
Justice (“DOJ”) seeking access to specified DOJ records. OIP
issued a “final response” to Appellant on January 30, 2018.
Joint Appendix (“J.A.”) 23. In that response, OIP indicated that
it had “located 143 pages that contain[ed] records that [were]
responsive to [Appellant’s] request.” Id. Appellant filed an
administrative appeal claiming that DOJ had improperly
segmented responsive records into what it claimed were
multiple smaller “records” and, in doing so, improperly
withheld information that was not otherwise exempt under
FOIA. OIP denied the appeal.
At issue are three cover letters and four Questions for the
Record (“QFR”) documents that were identified by OIP as
responsive to Appellant’s FOIA request. The QFR documents
are described in detail in part I.B., infra. Each QFR document
contains questions posed by members of Congress and, for two
of the documents, the corresponding answers provided by DOJ.
Each document is self-contained, with a single, overarching
heading identifying the contents of the document. The
questions and answers in each document are consecutively
numbered, and all but one of the documents has consecutively
numbered pages.
Although it is undisputed that OIP determined that the four
QFR documents contained material responsive to Appellant’s
FOIA request, DOJ nonetheless removed pages and redacted
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material from the documents. DOJ does not claim that the
pages that were removed or the material that was redacted are
exempt from disclosure under FOIA. Rather, DOJ simply
claims that these pages and material need not be disclosed to
Appellant because they constitute “Non-Responsive
Record[s].” See, e.g., J.A. 36.
In October 2018, Appellant filed a suit in District Court,
challenging DOJ’s refusal to disclose the pages that had been
deleted from the QFR documents and the questions and
answers that had been redacted and labeled “Non-Responsive.”
Appellant also challenged DOJ’s alleged policy or practice of
segmenting one record into multiple records to avoid
disclosure. The District Court largely upheld DOJ’s actions and
dismissed Appellant’s policy or practice claim for lack of
standing. See Cause of Action Inst. v. DOJ, 453 F. Supp. 3d
368, 378, 380 (D.D.C. 2020). Appellant now appeals.
On the record before us, we hold that DOJ’s position is
untenable. We therefore reverse the judgment of the District
Court denying Appellant’s request for disclosure of the QFR
documents. This court has held that “once an agency identifies
a record it deems responsive to a FOIA request, the statute
compels disclosure of the responsive record – i.e., as a unit –
except insofar as the agency may redact information falling
within a statutory exemption.” Am. Immigr. Laws. Ass’n v.
Exec. Off. for Immigr. Rev. (“AILA”), 830 F.3d 667, 677 (D.C.
Cir. 2016) (citing 5 U.S.C. § 552(a)(3)(A), (b)). This is because
“FOIA calls for disclosure of a responsive record, not
disclosure of responsive information within a record.” Id. Each
of the QFR documents at issue here constitutes a unitary
record, as demonstrated by DOJ’s own treatment of those
documents. Therefore, DOJ violated the requirements of FOIA
and the commands of AILA by withholding non-exempt
information from within the responsive records. We reverse the
4
District Court’s judgment to the contrary. However, we dismiss
Appellant’s challenge to DOJ’s alleged policy or practice as
unripe.
I. BACKGROUND
A. Legal Background
1. FOIA
FOIA provides that “upon [receiving] any request for
records” that reasonably describes the records and meets
procedural requirements, agencies “shall make . . . records
promptly available.” 5 U.S.C. § 552(a)(3)(A) (emphases
added). “[O]nce 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 [FOIA’s] statutory
exemptions.” AILA, 830 F.3d at 670.
FOIA’s text provides little precise guidance on what
constitutes a record, and no definition of that term. See id. at
678. However, 5 U.S.C. § 552(f)(2) states that “‘record’ and
any other term used in [the Act] in reference to information
includes . . . any information that would be an agency record
. . . when maintained by an agency in any format, including an
electronic format.” FOIA thus distinguishes between “records”
and “information.” See also, e.g., 5 U.S.C. § 552(a)(8)(A) (“An
agency shall . . . consider whether partial disclosure of
information is possible whenever the agency determines that a
full disclosure of a requested record is not possible.”
(emphases added)); id. § 552(b) (“Any reasonably segregable
portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt
under this subsection. The amount of information deleted . . .
5
shall be indicated on the released portion of the record.”
(emphases added)).
2. The AILA Decision
As noted above, in AILA, this court held that “once an
agency identifies a record it deems responsive to a FOIA
request, the statute compels disclosure of the responsive
record – i.e., as a unit – except insofar as” a statutory exemption
applies. 830 F.3d at 677 (citation omitted). The court
emphasized that “nothing in the statute suggests that the agency
may parse a responsive record to redact specific information
within it even if none of the statutory exemptions shields that
information from disclosure.” Id. This is because “FOIA calls
for disclosure of a responsive record, not disclosure of
responsive information within a record.” Id.
The AILA court acknowledged that it had “no cause to
examine” the “antecedent question of what constitutes a
distinct ‘record’ for FOIA purposes,” because the agency in
that case had itself identified the relevant material as a
responsive “record” and then redacted information from within
the record. See id. at 678-79. The court thus declined “to
consider the range of possible ways in which an agency might
conceive of a ‘record.’” Id. at 678.
The AILA decision offered some words of caution,
however:
Insofar as the government in a different case might
undertake to conceive of an individual “record” more
narrowly, we note that, here, the agency’s redactions
on grounds of non-responsiveness went down to the
level of an individual sentence within a paragraph
within an email message. We find it difficult to
6
believe that any reasonable understanding of a
“record” would permit withholding an individual
sentence within a paragraph within an email on the
ground that the sentence alone could be conceived of
as a distinct, non-responsive “record.”
Id. at 679. Following the issuance of AILA, DOJ’s Office of
Information Policy updated its guidance on “Defining a
‘Record’ under the FOIA.” DEP’T OF JUSTICE, OIP GUIDANCE:
DEFINING A “RECORD” UNDER THE FOIA (updated Feb. 15,
2017), J.A. 64-66 (“OIP Guidance”). DOJ does not claim that
the OIP Guidance has the force of law. Rather, it merely offers
advice to agency officials regarding how they might handle
FOIA claims.
B. Facts and Procedural History
Appellant Cause of Action Institute is a non-profit
government oversight organization. In December 2013,
Appellant submitted a FOIA request to OIP, seeking release of
several categories of DOJ records. OIP and Appellant agreed
in April 2016 that one portion of the request would cover “all
communications between a Department political appointee and
Members of Congress, their staff, or employees of the White
House relating to grants of the Office of Justice Programs,
Office on Violence Against Women, and Community Oriented
Policing Services” and “records relating to Executive Order
13457.” See J.A. 23. Executive Order 13,457 provides that
“executive agencies should not commit, obligate, or expend
funds on the basis of earmarks included in any non-statutory
source, including requests in . . . communications from or on
behalf of Members of Congress,” except in limited
circumstances. Exec. Order No. 13,457, 73 Fed. Reg. 6,417,
6,417 (Jan. 29, 2008).
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OIP initially identified 1,021 pages responsive to
Appellant’s request. OIP referred most of those pages to other
units in DOJ for processing. OIP then issued a “final response”
on January 30, 2018. This final response advised Appellant that
OIP had:
located 143 pages that contain records that are
responsive to your request. [We] have determined that
thirty-two pages are appropriate for release without
excisions, and one page is appropriate for release with
excisions made pursuant to Exemption 6 of the FOIA,
5 U.S.C. § 552(b)(6). Copies are enclosed. Please be
advised that these pages also contained non-
responsive records, which we have marked
accordingly.
Furthermore, [we] have determined that seventy-
one pages should be withheld in full pursuant to
Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).
J.A. 23.
As noted above, three cover letters and four QFR
documents are at issue in this case. These materials include:
(1) A letter dated January 4, 2011 from Assistant
Attorney General Ronald Weich to John Conyers, Jr.,
Chairman of the U.S. House Committee on the
Judiciary. J.A. 30. This letter transmitted DOJ’s
responses to questions for the record arising from the
appearance of Attorney General Eric Holder before
the Committee on May 13, 2010, at an oversight
hearing.
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The QFR document is consecutively paginated,
contains consecutively numbered questions, and is
labeled with an overarching title. J.A. 31.
Subheadings indicate which member of Congress
submitted each set of questions. DOJ’s responses are
located directly beneath each question. In responding
to Appellant’s FOIA request, DOJ omitted some
pages of the QFR document and redacted other
portions with the label “Non-Responsive Record.” In
two instances, DOJ redacted a sub-question and its
answer while disclosing the larger umbrella question
and its answer.
(2) A letter dated September 14, 2010 from
Assistant Attorney General Ronald Weich to Patrick
Leahy, Chairman of the U.S. Senate Committee on the
Judiciary. J.A. 44. The letter transmitted DOJ’s
responses to questions for the record arising from the
appearance of Susan Carbon, Director of the Office on
Violence Against Women, before the Committee on
May 5, 2010, at a hearing entitled “The Increased
Importance of the Violence Against Women Act in a
Time of Economic Crisis.” The QFR document is
consecutively paginated, contains consecutively
numbered questions, and includes an overarching
title. J.A. 45. In responding to Appellant’s FOIA
request, DOJ redacted some questions and their
responses as “Non-Responsive Record[s].”
(3) A letter dated April 21, 2010 from Patrick
Leahy, Chairman of the U.S. Senate Committee on the
Judiciary to Attorney General Eric H. Holder, Jr. J.A.
51. This letter transmitted two QFR documents from
members of the U.S. Senate Committee on the
Judiciary. One QFR document is titled “Written
9
Questions of Senator Tom Coburn, M.D.” J.A. 52.
The questions in this document are consecutively
numbered, as are the page numbers. The other QFR
document is titled “Questions Submitted by U.S.
Senator Russell D. Feingold to Attorney General Eric
H. Holder Jr.” J.A. 56. The questions in this document
are consecutively numbered, although there are no
page numbers. In both QFR documents, DOJ redacted
some of the questions as “Non-Responsive
Record[s].”
DOJ never claimed that any of the material that was deleted
from or redacted in the QFR documents was exempt from
disclosure under FOIA.
Appellant filed an administrative appeal challenging
DOJ’s withholdings from the foregoing QFR documents. DOJ
denied the appeal in March 2018.
In October 2018, Appellant filed suit in District Court,
claiming that DOJ (1) improperly withheld responsive records,
and (2) maintained an unlawful policy and practice, described
in the OIP Guidance, of segmenting one record into multiple
records to avoid disclosure. On April 5, 2019, DOJ reprocessed
the contested records, removing the redactions of two sub-
question and answer pairings that were underneath responsive
parent questions. That same day, DOJ moved for summary
judgment. Appellant filed a cross-motion for summary
judgment later that month.
In April 2020, the District Court granted in part and denied
in part each party’s motion. The court held that “a record in this
case should be defined as a question, including all subparts or
sub-questions, and any corresponding answers.” Cause of
Action Inst., 453 F. Supp. 3d at 375. The court ordered DOJ to
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produce any withheld sub-question-and-answer pairings that
were underneath a responsive parent question.
The District Court also dismissed for lack of standing
Appellant’s claim that DOJ has a policy or practice of violating
FOIA due to the OIP Guidance’s definition of “record.” See id.
at 378-80. The court held that Appellant had not demonstrated
a likelihood of continuing injury in the future, given that the
court had largely upheld DOJ’s application of its policy.
Appellant filed a notice of appeal in June 2020.
II. ANALYSIS
A. Standard of Review
We review de novo both the District Court’s grant of
summary judgment and its dismissal of a claim for lack of
standing. Kingman Park Civic Ass’n v. Bowser, 815 F.3d 36,
38-39 (D.C. Cir. 2016). The agency bears the burden of
showing it complied with the requirements of FOIA. See
Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C.
Cir. 2009).
B. The Individual Questions and Answers at Issue in
this Case Are Not “Records” Under FOIA.
DOJ’s position in this case is that each individual question
and its corresponding answer within each of the self-contained
QFR documents constitutes a separate “record” under FOIA.
Resting on this claim, DOJ maintains that if it determined that
a particular question-and-answer pairing within a QFR
document was unresponsive to Appellant’s FOIA request, DOJ
could decline to disclose the material even though none of the
material in the QFR document was exempt from disclosure.
Though our case law provides for a “range of possible ways in
11
which an agency might conceive of a ‘record,’” we reject
DOJ’s approach as an untenable application of FOIA, outside
the range of reasonableness. AILA, 830 F.3d at 678. OIP itself
treated the self-contained QFR documents as unitary “records”
and released the documents, albeit with portions removed, as
responsive to Appellant’s FOIA request. Therefore, as we
explained in AILA, “once an agency identifies a record it
deems responsive to a FOIA request, the statute compels
disclosure of the responsive record – i.e., as a unit – except
insofar as the agency may redact information falling within a
statutory exemption.” Id. at 677 (citation omitted).
There can be little dispute that OIP, on behalf of DOJ,
treated each one of the self-contained QFR documents as a
unitary “record” in this case. DOJ admits that the questions and
answers “were compiled into one large file for ‘efficiency.’”
See Br. for Appellee 27 (citation omitted); see also Decl. of
Vanessa R. Brinkmann ¶ 22, J.A. 90 (referring to the QFRs as
“a single, compiled document”). The Agency released full
documents, containing overarching titles and consecutive
numbering, and merely redacted some questions and answers
from within those documents. See J.A. 31 (titled “Questions for
the Record”); J.A. 45 (titled “Questions for Director Carbon on
‘The Increased Importance of the Violence Against Women
Act in a Time of Economic Crisis’ from Senator Sessions”);
J.A. 52 (titled “Written Questions of Senator Tom Coburn,
M.D.”); J.A. 56 (titled “Senate Judiciary Committee
Hearing . . . Questions Submitted by U.S. Senator Russell D.
Feingold”). Indeed, in one instance the Agency released an
entire page containing only a redacted question. See J.A. 57.
This action is inconsistent with DOJ’s claimed position that
each question constitutes a separate record, and in fact indicates
that DOJ viewed the entire QFR document in which that
question appeared as a unitary “record.” Under these
circumstances, the question-and-answer pairings were not
12
individual “records,” but rather were items of information
within records.
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.
C. The Policy or Practice Claim Is Not Ripe for Review
Appellant also contends that the OIP Guidance “violates
FOIA and [DOJ’s] reliance on the [G]uidance constitutes an
unlawful policy or practice.” Br. of Appellant 11. The District
Court found that Appellant lacked standing to challenge the
OIP Guidance and thus dismissed Appellant’s policy or
practice claim. We do not agree that Appellant lacked standing
to pursue this claim. Nevertheless, we hold that the claim must
be dismissed because it is not ripe for review.
13
It is clear that, at the outset of this action, Appellant had
standing to challenge DOJ’s action redacting non-exempt
material from within the disputed records and any Agency
policy invoked by DOJ in support of its decision not to disclose
materials to Appellant. See, e.g., Better Gov’t Ass’n v. Dep’t of
State, 780 F.2d 86, 88, 91, 96 n.53 (D.C. Cir. 1986) (holding
that plaintiffs had standing to continue pressing their facial
challenge to government guidelines even after being awarded
a fee waiver in connection with their FOIA request because
they were frequent FOIA requesters who would be affected by
the guidelines in the future and the challenge was ripe for
judicial review); see also Payne Enters., Inc. v. United States,
837 F.2d 486, 491 (D.C. Cir. 1988). Appellant here essentially
asserts that it is in the same situation as the plaintiffs in Better
Government, and therefore, has standing to challenge both the
specific action giving rise to this case and the OIP Guidance.
In addition, Appellant’s challenge to the OIP Guidance is
not rendered moot merely because we agree that DOJ violated
FOIA in this case by redacting non-exempt material from the
records at issue. It is generally understood that “even though a
party may have obtained relief as to a specific request under the
FOIA, this will not moot a claim that an agency policy or
practice will impair the party’s lawful access to information in
the future.” Payne Enters., 837 F.2d at 491 (citation omitted).
However, to pursue its challenge to the OIP Guidance once its
request for specific relief is no longer at issue, Appellant must
still demonstrate standing to challenge the disputed policy or
practice. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488,
494 (2009); Cierco v. Mnuchin, 857 F.3d 407, 415-17 (D.C.
Cir. 2017). This jurisdictional requirement poses no problem
here. Appellant alleges that DOJ maintains an impermissible
policy, memorialized in the OIP Guidance, of segmenting one
record into multiple records in order to avoid disclosure. And
Appellant further contends that, “because it [has] ‘additional
14
FOIA requests’ pending with DOJ at various stages of the
administrative process, it [is] ‘at risk of receiving the same
improper treatment in the future’ by application of the
guidance.” Br. of Appellant 50-51 (citation omitted).
Therefore, Appellant has standing to challenge the OIP
Guidance and the claim is not moot. See Super Tire Eng’g Co.
v. McCorkle, 416 U.S. 115, 121–22 (1974) (declining to
dismiss a case as moot because, “even though the case for an
injunction [had] dissolved . . . the parties to the principal
controversy . . . still retain[ed] sufficient interests and injury as
to justify the award of declaratory relief”); Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,
185-87, 189-94 (2000) (holding that plaintiffs had standing to
pursue a claim for civil penalties under the Clean Water Act,
and the claim was not moot, even after the defendant had
achieved compliance with the Act during the course of the
litigation); Better Gov’t Ass’n, 780 F.2d 86, 91, 96 n.53
(plaintiffs had standing to pursue challenge to agency policy,
and challenge was not moot, even after their specific claim was
resolved).
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.
“To determine whether a dispute is ripe for judicial
consideration, we must evaluate (1) ‘the fitness of the issues
for judicial decision’ and (2) ‘the hardship to the parties of
withholding court consideration.’” VanderKam v. VanderKam,
15
776 F.3d 883, 888 (D.C. Cir. 2015) (quoting Abbott Lab’ys v.
Gardner, 387 U.S. 136, 149 (1967)). Appellant’s challenge to
the OIP Guidance is unfit for judicial review. “A claim is not
ripe for adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at
all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (citation
omitted). That is the situation we face with respect to possible
future applications of the OIP Guidance.
Appellant asks us to declare that DOJ’s alleged policy of
segmenting one record into multiple records cannot be lawful
under any circumstances. “We do not have sufficient
confidence in our powers of imagination to affirm such a
negative. The operation of [FOIA] is better grasped when
viewed in light of a particular application. Here, as is often true,
‘[d]etermination of the scope [of the purported policy] in
advance of its immediate adverse effect in the context of a
concrete case involves too remote and abstract an inquiry for
the proper exercise of the judicial function.’” See id. at 301(second alteration in original) (quoting Int’l Longshoremen’s
and Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222,
224 (1954)). “[J]udicial appraisal [of the issue] is likely to
stand on a much surer footing in the context of a specific
application of [agency policy] than could be the case in the
framework of [a] generalized challenge.” Am. Tort Reform
Ass’n v. OSHA, 738 F.3d 387, 396 (D.C. Cir. 2013) (quoting
Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967)).
In this case, DOJ treated each one of the compiled QFR
documents as a unitary “record,” and then redacted non-exempt
information from within those records, thereby violating the
requirements of FOIA and the mandate of AILA. No bright line
rules in the OIP Guidance compelled DOJ’s disputed action.
Moreover, DOJ does not claim that the OIP Guidance has the
force of law, and we do not regard it as legally binding. Our
16
resolution of Appellant’s claim in this case, therefore, rests
solely on the particular facts of this case, the requirements of
FOIA, and the law of the circuit as it applies to the situation
presented. Appellant nevertheless urges us to go further and
“conclusive[ly]” “provide a workable interpretation of
[FOIA’s] statutory term ‘record’ to ensure consistent
application across the Executive Branch.” Br. of Appellant 5,
54. We decline the invitation to unnecessarily opine on an issue
with such “far-reaching” implications. See id. at 5; Texas, 523
U.S. at 300-301.
Finally, no legally cognizable “hardship” will come from
this disposition. Appellant “is not required to engage in, or to
refrain from, any conduct.” Texas, 523 U.S. at 301. “The only
hardship [Appellant] will endure as a result of delaying
consideration of this issue is the burden of having to file
another suit. This is hardly the type of hardship which warrants
immediate consideration of an issue presented in abstract
form.” Webb v. HHS, 696 F.2d 101, 107 (D.C. Cir. 1982)
(footnote omitted); see also Atl. States Legal Found., Inc. v.
EPA, 325 F.3d 281, 285 (D.C. Cir. 2003) (“The need to bring
fresh litigation is not a reason for finding an issue ripe.”
(citation omitted)).
III. CONCLUSION
We reverse the judgment of the District Court and order
DOJ to release the QFR documents at issue in full, subject only
to any applicable statutory exemptions. We dismiss the
challenge to the OIP Guidance as unripe.
RAO, Circuit Judge, concurring: Agencies, as well as
courts, have struggled with how to define a “record” for the
purposes of a Freedom of Information Act (“FOIA”) request. I
write separately to explain that this difficulty arises in part from
the fact that courts permit requesters to ask for general
categories of information, but agencies must release records.
As perhaps a consequence of this practical asymmetry, we have
recognized that agencies have wide latitude to define records
with reference to the information requested. See American
Immigration Lawyers Ass’n v. Executive Office for
Immigration Review (“AILA”), 830 F.3d 667, 678 (D.C. Cir.
2016) (“[A]gencies … define a ‘record’ when they undertake
the process of identifying records that are responsive to a
request.”).
The text and structure of FOIA create a parallel procedure
for the request and release of records. To receive information,
a person must make a “request for records”—not a request for
information—and the request must “reasonably describe[] such
records.” 5 U.S.C. § 552(a)(3)(A) (emphases added). In
response to a request, the agency must “make the records
promptly available.” Id. FOIA’s mandates refer to requests for
records dozens of times, and only twice to requests for
information. Within the statute, the term “information” often
appears in the context of the withholding of information by an
agency. See, e.g., id. § 552(a)(8)(A)(i), 552(b), 552(d).
Moreover, although FOIA does not provide a definition of
“record,” the statute emphasizes the distinction between
records and information. For example, an agency may withhold
“records or information compiled for law enforcement
purposes,” which means an agency may exempt an entire
“record” or alternatively only some “information” within a
record. Id. § 552(b)(7) (emphasis added); see also AILA, 830
F.3d at 677 (“In the context of a record containing exempt
information, … the focus of the FOIA is information, not
documents.”) (cleaned up).
2
FOIA’s symmetrical process for the request and release of
records applies straightforwardly in some contexts. When a
requester seeks a specific document, such as the Smith Memo,
she gets that document (or at least its non-exempt portions).
With other requests, however, it may be unclear what
constitutes the relevant record for the purpose of release. See
DEP’T OF JUSTICE, OFF. OF INFO. POL’Y GUIDANCE: DEFINING A
“RECORD” UNDER THE FOIA (updated Feb. 15, 2017)
(explaining that what constitutes a record may be “based on
both the subject of the request and the content of the
document”). This identification problem arises most acutely
when the requester describes information on a particular
subject matter with no reference to specific documents that
might include the information. See, e.g., Students Against
Genocide v. Dep’t of State, 257 F.3d 828, 830 (D.C. Cir. 2001)
(seeking in part “any documentation of atrocities in Bosnia
from 1993 to the present”). When faced with such a request,
the agency must determine what “records” should be released.
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.
These commonsense principles are consistent with AILA,
which repeatedly emphasizes that the agency “identifies a
record it deems responsive to a FOIA request.” 830 F.3d at 677;
id. at 678 (noting that “an agency itself identifies a particular
document or collection of material … as a responsive
‘record’”); see also Panel Op. 10–11. Given the potential
3
difficulty of responding to a FOIA request for some category
of information, rather than a specific document, an agency may
identify a record within a reasonable range and consider the
information requested in determining how to segment material
into records.
With these observations, I concur in the court’s opinion.