FOIA Advisor

FOIA News: Cause of Action Institute Litigation on "Defining a 'Record' under FOIA"

FOIA News (2017)Kevin SchmidtComment

Defining a "Record" under FOIA

By James Valvo, Cause of Action Institute, Feb. 8, 2017

The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s.  As hard as it may be to believe, the definition of a “record” is still not established.  There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA.[1]  But the antecedent question—what exactly is a “record”—has not been litigated.

The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).[2]  In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record.  I discussed that issue in a previous post titled There is No Tenth Exemption.  The circuit court, however, did not define a “record” in that case.

Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.”  We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive.  In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision.  Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record.  The agency then withheld those supposedly separate records as “non-responsive.”  Compare the full original here and the full re-produced record here.  This approach makes a mockery of AILAso we filed suit

Read more here.