FOI Act requires computer search of records

WASHINGTON, D.C. — A federal District Court in Washington, D.C., in mid-March ruled that the Freedom of Information Act requires the government to conduct an electronic search for requested records that do not necessarily lie in a single computer document or file unless the information is exempt or the search is too onerous.

Ultimately the court upheld the denial of a request by the Washington, D.C., office of Thompson Publishing Group to the Health Care Financing Administration saying that tax laws prohibited release of the information.

But in its ruling the court said that a decade-old ruling by the U.S. Court of Appeals in Yaeger v. Drug Enforcement Agency was technologically out of date.

The appeals court in Yaeger had held that an agency did not have to use its electronic capabilities to compile information for a requester where the agency had not compiled that information for its own use. In the Thompson case the court said that a “query search” for paragraphs relevant to the request could involve a single search or a simple series of searches retrieving information from multiple records.

In May 1991 Thompson filed a FOI request for names and addresses of employers who received certain mailings concerning Medicare’s role as a secondary payer to alternate sources of health insurance, for the names, addresses, staff size and contact persons for the 5,000 largest employers who received the mailings and for a list of approximately 800,000 employers who did not respond to the mailings. The Internal Revenue Code authorizes the Internal Revenue Service to provide information on Medicare beneficiaries and employers to the Social Security Administration which in turn discloses it to HCFA.

HCFA did not respond either to the FOI request or to two appeals filed seeking a response and in 1993 Thompson sued. HCFA told the court that retrieving the requested information would be “creating” a record because the agency had not retrieved the data similarly for its own use. Agencies do not have to “create” records in order to respond to FOI requesters, HCFA said. In the last stages of the litigation, attorneys in the Tax Division at the Department of Justice took over the government’s defense and argued that the Internal Revenue Code bars release of information from the tax forms containing the information.

Based on that argument, the district court said that the law prohibiting disclosure of IRS forms would prohibit disclosure of the Medicare information held by HCFA.

The Thompson group publishes more than 75 newsletters and looseleaf services on government regulation. Several of its publications concern health care and employee benefits.

(Thompson Publishing Co. v. Health Care Financing Administration; Media Counsel: Noel Klores, Washington)