Agencies must consider records created by other agencies

D.C. CIRCUIT–The U.S. Court of Appeals in Washington, D.C., ruled in late February that federal government agencies must consider granting or denying records in their possession even if the documents were created by a different agency.

The appeals panel ruled that an agency must determine whether referring an FOI decision to the creating agency would significantly impair a requester’s ability to get the records or to get them in a timely manner.

The panel ordered the lower court to look again at the request of inmate Rolando Peralta, initially made to the U.S. Attorney’s Office, and determine whether a referral of pages to the FBI for processing effectively denied his request for those records. The FBI is notoriously behind in responding to FOI requests and routinely delays processing them by four to six years.

Peralta, who in 1994 was an inmate at the Federal Correctional Institution in Terminal Island, Calif., filed an FOI Act request with the U.S. Attorney’s Office for records relating to his criminal conviction, and when the office failed to respond, filed a lawsuit against the agency in federal District Court in Washington, D.C.

The U.S. Attorney’s office ultimately provided him with several hundred pages, denied several hundred more, and transferred his request for 290 more pages to the FBI, which it said had created the documents and therefore must make decisions about their release.

Then, in April 1994, the federal District Court dismissed the U.S. Attorney’s office from the case, saying it had complied with the FOI Act requirements. Because the FBI had not yet processed the records referred to it, the court would not rule on those records.

Peralta appealed and the appeals panel ruled that the U.S. Attorney’s office is still a party to the case. It reversed the lower court’s decision that the agency could simply transfer records to the FBI for a decision.

The appeals panel cited two 1983 decisions that government agencies which referred records to other agencies would be withholding the records under the FOI Act unless they could offer reasonable explanations for the transfer. Neither Peralta nor the government had referred to the older decisions and the lower court did not cite the rulings.

The FOI Act does not directly authorize referrals; instead, it allows agencies to extend the time for responding to requests in order to consult with other agencies. (Peralta v. U.S. Attorney’s Office, Central District of Calif.; Counsel: Steven Goldblatt, Washington, D.C.)