When agencies respond to a FOIA request with released records, they retain a copy of those records along with the response letter in a file documenting the request. This is important for a couple of reasons—so that the agency can respond to any questions from the requester, or that the information can be passed along to the appeals office for review in the case of an appeal, or to document the agency’s actions in case of OGIS mediation (or litigation). But does your agency’s FOIA shop retain a copy of responsive records that are exempt from release?
In a recent OGIS case, a requester made a request for records he had requested previously. At the time of the first request, the records were exempt pursuant to Exemption 7(A), which protects records related to law enforcement proceedings but no longer applies once those proceedings are complete. (Of course, other exemptions may come into play at that point.) In response to his most recent FOIA request, the requester learned that the agency could not review the records to see if 7(A) still applies, because the records were kept in an electronic format that had become corrupted. When we spoke to the agency, we learned that at the time of the initial request, the FOIA office did not itself make a copy of the records that were withheld in full, and the agency’s original electronic copy of the records can no longer be accessed.
Technically, the agency FOIA office did nothing wrong in its initial response to the request; there is no requirement that agency FOIA offices create and retain a copy of the records they withhold in full. However, doing so is an OGIS best practice for several reasons:
- If there is a question about the withholdings down the line, it is easier to review one’s own copy than to request the records again from the program office.
- We’ve written before about the challenge of searching for electronic records, particularly email records. If you retain a copy of the records, it doesn’t matter who leaves the agency, or cleans out his/her inbox. You’ve got the records.
- Who remembers Gopher? We don’t either. Make (at least) a paper copy of the records and you don’t have to worry about email clients or computer systems coming and going.
Have you been relieved to find a copy of exempt records in a FOIA request file, or have you had the opposite experience? We’d love to hear from you!
many agencies, mine included, PROHIBIT retention of paper copies.
Interesting to know! Thank you.
If you don’t want to keep a paper copy of the records, you can always print them to a pdf and store them that way. It loses the metadata, but I’d rather have metadata-less records than no records at all.
In a way, though, keeping a copy for the FOIA office isn’t just a “best practice”; it’s the only certain way of ensuring that an agency doesn’t ignorantly violate the retention schedule and run afoul of court sanctions. An agency has to retain records that were denied for 6 years, but if the only copy of the records is in the original custodian’s files, how is that custodian to know which of her files she can destroy and which she has to hold on to for 6 years? She presumably doesn’t have a record of which of her files were the subject of FOIA requests and were withheld in whole or in part, nor should she. It’s the FOIA office’s job to keep track of stuff like that. But if those records are destroyed before six years, and the requester sues, the agency is facing stiff penalties. Destroying records subject to a FOIA request is considered “contumacious conduct” by the D.C. Circuit.