Record Formats

The federal Freedom of Information Act states that an agency “shall” make a “record” available “in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”² It further states that “[e]ach agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of” FOIA.³

 

The U.S. Department of Justice’s Office of Information Policy has recognized that it is generally the requester’s sole prerogative to dictate the format in which he wants to receive a record when multiple formats of a record exist.⁴ Therefore, for example, absent specific, exceptional circumstances, you generally do not have to accept an unsortable .pdf printout format of a spreadsheet when it also exists in its native file format.  

Moreover, OIP instructs that agencies should make “reasonable efforts” to produce records in different formats when the records are “readily reproducible” in that form.⁵ Whether or not a record is “readily reproducible” essentially comes down to determining how much effort and resources would be required to produce the format requested. If agencies have the means to produce the format with relative ease, it should be deemed “readily reproducible.” However, under FOIA, an agency’s claim that a record is not “readily reproducible” is to be given “substantial weight” by a court in any lawsuit.⁶

 

A standard for judging the “reasonableness” of reproducing a record in a desired format was announced inTPS, Inc. v. United States Department of Defense. In that case, the United States Court of Appeals for the Ninth Circuit held that an electronic record is “readily reproducible” if the agency already has the ability to create and convert documents into a certain format even if it does not routinely do so for purposes of responding to FOIA requests.⁷ In TPS, the requester sought records in a “zipped” file format. The court stated, “[i]n evaluating reproducibility, the agency should employ a standard of reasonableness that is benchmarked against the agency’s ‘normal business as usual approach’ with respect to reproducing data in the ordinary course of the agency’s business.”⁸

 

Hence, if an agency typically can produce records in certain formats for non-FOIA purposes — such as providing information to government contractors or for its internal operating practices — you should make the argument that it is not unreasonable to require it to do the same in response to a FOIA request. As theTPS court noted, “[w]hen an agency already creates or converts documents in a certain format — be it for FOIA requesters, under a contract, or in the ordinary course of business — requiring that it provide documents in that format to others does not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant interference or burden.”⁹    

 

Note that the TPS court did not go so far as to say all technically-feasible format requests under FOIA must be honored, as it recognized that an agency could not be forced to fulfill an “unusual” request “that would impose unreasonable or additional burdens on an agency’s data system, personnel, or resources.”¹⁰ In an appeal, you should demonstrate the technical feasibility and relative ease to produce the record in the format desired.

 

In some cases, it may be beneficial to consult with an information technology specialist who can help you bolster your “reasonableness” arguments and refute those of the agency. It may also prove helpful to have a working knowledge of the technical and record format capabilities of the agency to help establish that an agency is capable of providing the requested format or excising exempt information.

 

² Id. at § 552(a)(3)(B).

³ Id.

⁴ See U.S. Department of Justice, Office of Information Policy, FOIA Update, Vol. XVII, No. 4 (1996).

⁵ See id.

⁶ See 5 U.S.C. § 552(a)(4)(B).

⁷ See TPS, Inc. v. U.S. Dep’t of Def., 330 F.3d 1191 (9th Cir. 2003).

⁸ Id. at 1197.

⁹ Id. at 1195.

¹⁰ Id.