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16 FOIA Update 1 (1995)

handle is hein.journals/foiaupd16 and id is 1 raw text is: U.S. Department of Justice
Office of Information and Privacy

Vol. XVI, No. 1
    Winter 1995


   Agencies Place ft

on Affirmative Infi
    As a growing trend within the federal government, fed-
-ral agencies are placing increasing emphasis on the proc-
esses by which they can affirmatively make agency records
available to the public, rather than providing them only in
response to particular record requests. Agency efforts in
this direction can significantly benefit their administration of
the Freedom of Information Act.
    Where an agency makes records available to the public
on its own initiative, there is less likelihood that those rec-
ords will become the subjects of FOIA requests filed by per-
sons who are interested in obtaining them. If an agency can
determine in advance that a certain type of records or infor-
mation is likely to be of such interest to members of the
public, and that it can be disclosed without concern for any
FOIA exemption sensitivity, then the agency is in a position
to meet much or all of the public demand for it without the
necessity of a FOIA request and the more cumbersome steps
of FOIA processing. Doing so can be of mutual benefit to
both the agency and the members of the public who are in-
terested in obtaining access to such information.
    In fact, making records readily available as a matter of
affirmative agency practice usually is the most efficient way
in which to achieve public disclosure. Most significantly,
it also leaves an agency's FOIA office that much freer to
devote its resources to meeting disclosure demands that can
be met only through formal FOIA processes, such as where
exempt records are involved. Especially in this era of ex-
tremely scarce administrative resources, it is important that
an agency make efforts to apply its limited FOIA resources
where they are most needed--by avoiding any unnecessary
encumbrance of its FOIA processes with requests for rec-
ords that can best be disclosed through some other means.
                 OMB Circular A-130
    Such a policy of affirmative agency information disclo-
sure in order to meet public demands is contained in Office
of Management and Budget Circular No. A-130--entitled
Management of Federal Information Resources --which has
recently been revised with greater emphasis on agency infor-
mation dissemination, including through electronic means.
See 59 Fed. Reg. 37905 (July 25, 1994).
    In accordance with OMB Circular A-130, federal agen-
cies are paying increased attention to their responsibility to

jreasjng E mphasis

          Stion Disclosure

   provid      mation to the public not just in response to the
   receipt o  FOIA request for it, but by actively distribut-
   ing it at the initiative of the agency. 59 Fed. Reg. at
   37920. As part of its overall system of information resourc-
   es management, each agency must determine which of its
   records, or potential information products, are appropriate
   for such treatment. OMB Circular A-130 encourages agen-
   cies to recognize that even agency information that is not
   necessarily meant for public dissemination... may be the
   subject of requests from the public, and that if an agency
   establishes that there is a public demand for that informa-
   tion, it may decide to disseminate it automatically. 59
   Fed. Reg. at 37922. Where an agency does so, of course,
   that minimizes the need for use of the FOIA in connection
   with that information.
               Anticipation of Public Demand
       The anticipation of public demand for agency records or
   information is not an entirely unfamiliar concept under the
   FOIA. The Act itself provides for the automatic public
   disclosure of basic items of information regarding agency
   structure and operations, through Federal Register publica-
   tion under FOIA subsection (a)(1), and for the routine pub-
   lic availability in agency reading rooms of such items as
   final adjudicative opinions, staff manuals and certain agency
   policy statements under FOIA subsection (a)(2). See FOIA
   Update, Summer 1992, at 3-4 (detailing FOIA's automatic
   disclosure requirements).
       Some agencies have built upon this reading room
   mechanism of subsection (a)(2) to meet anticipated public
   demands for records that are not required to be placed there
   under the Act. For example, the Federal Bureau of Investi-
   gation maintains a reading room into which it places copies
   of many of its most commonly requested files--such as its
   investigative files on the assassination of Dr. Martin Luther
   King, Jr.--in the form in which they previously have been
   processed for disclosure in response to FOIA requests made
   under subsection (a)(3) of the Act. These records are made
                                     Cont'd on next page

   The four center pages of this issue of FOIA Update con-
   tain an updated list of the principal FOIA administrative
   and legal contacts at federal agencies.

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