• Lengthy guidance issued by the Department of Justice explains what information does not have to be posted in agency electronic reading rooms.

Aug. 7, 2003 -- The U.S. Department of Justice has issued a 1,693-word guidance to federal agencies on how to determine if records are "frequently requested," by Freedom of Information Act requesters. The Electronic FOI Act of 1996 requires agencies to post information on their Web sites, or electronic "reading rooms" when they believe the information will be the subject of subsequent requests. The guidance is instructive as to how agencies may avoid posting more information than might strictly be required.

The guidance makes clear, as has previous guidance, that it is only "the receipt or the anticipation of the third" FOI Act request that triggers an agency's obligation to post the information. Receipt of only two requests does not.

If the agency receives two requests for the same information, and then receives no other request until many months later, an agency might be relieved of its obligation to post the information at all because, in its "best judgment," it might not anticipate more requests. Because the legislative purpose for posting was to eliminate the need for responding to future requests, the agency might reasonably determine that there would be no more, the guidance says.

The department also advises that if the second and third requests are only partially identical to the first request, only the "overlap" records would have to be posted.

The guidance, which appears on the Justice Department's FOIA Post dated Aug. 6, points out that even if an agency posts information that is likely to be subject to FOI Act requests, it must respond anyway to written requests for the same material.

-- RD

Return to: RCFP Home; News Page