Software/Copyright Issues

The Electronic Freedom of Information Act Amendments of 1996 amended the FOIA to specifically apply to records in “an electronic format.”1 According to U.S. Department of Justice guidance, “[a]s information technology evolve[s], computer software increasingly could be considered as generally within the definition of ‘record.’”2

An agency that withholds software or electronic data from release may attempt to do so based on its belief that it is not an agency record or is exempt from disclosure under FOIA. In contesting such a withholding, you should argue that the information or software is an “agency record” that is not otherwise exempt from disclosure, and challenge the applicability of any exemptions cited by the agency.

1 5 U.S.C. § 552 (f)(2)(A).

2 Dep’t of Justice, Freedom of Information Act Guide: Procedural Requirements (2004).