Describing the scope of a FOIA request — and on the agency’s side, interpreting the scope of that request — often feels like more art than science. Requesters naturally describe requests in expansive terms to be sure that they don’t exclude potentially valuable information. On the other hand, agency FOIA staffers often feel like they should add “mind reader” to their list of job responsibilities when faced with the task of determining the scope of an unclear request. Agency FOIA professionals may face another perplexing task when scoping potentially responsive documents, especially if the scope of a request is unclear.
We recently received a request for assistance from a FOIA requester who disputed an agency’s response to his FOIA request. When he received his requested records, he found pages (and in some cases, individual paragraphs) redacted and marked “BTS.” When he appealed, the agency informed him that “BTS” stood for “beyond the scope” — the agency had determined that the redacted material did not fit within the scope of his request, and the agency “scoped out” that material.
Determining the scope of a request and scoping out potentially unresponsive documents are two tasks that FOIA professionals perform regularly. In performing both tasks, they are guided by the plain language of the request. FOIA professionals determine the scope of a request before they search for responsive records so that the search will be targeted to retrieve any responsive material. Then after a search has located responsive material, FOIA professionals will scope out unresponsive documents to ensure that a requester receives only the information requested. Both tasks should hasten the processing time and limit the amount of processing fees because they focus the analysis on identifying only the material that is truly responsive to a request.
The Department of Justice Office of Information Policy (OIP) issued guidance on scoping potentially responsive material in 1995. In its guidance, OIP acknowledges that many agencies combine subjects in a single file (or even document) as a matter of administrative convenience. This can lead an agency to assume that it can safely exclude (or scope out) topics from the responsive material that don’t clearly fall within the scope of a FOIA request. However, OIP gives an agency considering scoping materials out of a request lots to consider:
- Information should not be determined to be beyond the scope of a request on less than a page-by-page basis.
- While entire pages can be scoped out as unresponsive to a request, an agency must have a firm basis for reaching that conclusion.
- An agency should review any potentially scoped out material for FOIA exemption applicability. If no exemptions apply, there is no good reason for those pages to be scoped out.
Clearly, the road to scoping out documents is fraught with peril. So what is an agency FOIA who is scoping responsive material to do? Happily, OIP’s guidance addresses this as well. It says, “…the requester should be fully informed of any ‘scoping’ determination in all instances and should be given an opportunity to question or disagree with it…communication with the individual requester is essential in addressing any scope question.” In other words, agencies should consider scoping a request to be a great reason to pick up the phone and talk to requesters.