I. Software Issues

If you have been denied access to an agency’s data processing system or software, you should first argue that it is an agency record subject to release under the FOIA. The agency has the burden of “demonstrat[ing] . . . that the materials sought are not ‘agency records.’”³

You should consult the specific agency’s FOIA regulations, as some agencies provide guidance on situations in which software may be released. For example, Defense Nuclear Agency regulations state that “[i]n some instances, computer software may have to be treated as an agency record and processed under the FOIA.”⁴ The agency also provides examples of such situations, including “[w]hen the data is embedded within the software and cannot be extracted without the software” and “[w]here the software itself reveals information about organizations, policies, functions, decisions, or procedures of a DNA office, such as computer models used to forecast budget outlays, calculate retirement system costs, or optimization models on travel costs.”⁵

If the agency has such regulations, you should cite them — where possible — in arguing for the release of the software you seek.