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CFP'91 -

Issues Concerning Acess to Government Electronic Information

Harry Hammit
Access Reoprts
Washington, DC

The continued movement of government towards computerization of its records has created a confrontation that in many ways parallels the passage of the Freedom of Information Act (FOIA) in 1966. Twenty-five years later we are faced with agency reluctance to treat flexible access to electronic records as a statutory right in much the same way agencies were unwilling to provide broad access to paper records until the FOIA forced them to do so.

A recent survey conducted by the Justice Department's Office of Information and Privacy indicated that, while all agencies accepted the proposition that electronic records were covered by the FOIA, they were unwilling to undertake searches or separate records in ways that have been common practice for years where paper records are involved. However, all is not lost. The survey results also indicated that agencies do commonly undertake complex computer searches and conduct non-routine data manipulation for requesters. The catch is that agencies pick and choose under what circumstances they will perform specialized electronic tasks and the survey made clear that agencies preferred to retain that discretion and were largely against any statutory or government-wide policy changes that would obligate them to perform such tasks.

Such recalcitrance is reminiscent of the state of affairs before passage of the FOIA, when Section 3 of the Administrative Procedure Act was the only statutory avenue for public access to government information. Agencies had the discretion to decide who should be eligible to receive information and could withhold it if they believed doing so served an undefined public interest. One of the primary goals of the FOIA was to remove this broad discretion from agency hands and obligate agencies to treat all requesters equally, with some minor exceptions.

Agency reluctance to implement the congressional intent of the original statute led Congress to revisit it in 1974, at which time changes were made effecting the time in which agencies were to respond to requests and providing greater incentives for the requester to pursue court action if an agency denied all or some of the requested information. Prevailing parties in litigation were made eligible for reasonable attorney's fees and agency employees could even be criminally sanctioned if a court found their behavior to be in willful disobedience of the statute.

Today a congressional fix -- clarifying the availability of electronic records, for instance -- is far more complicated. The 1974 amendments came in the wake of Watergate during a time when Congress was particularly mistrustful of executive secrecy. Such a political climate no longer exists and many observers have long believed that opening the FOIA for any changes runs the risk of making it vulnerable to regressive amendments as well. Furthermore, there is no broad consensus in the FOIA community over how the problem should be addressed. While some push for legislation, others believe the provisions of the existing act are adequate to allow the courts to interpret them as providing relief for the problems requesters have experienced regarding electronic records.

While there may be any number of fact-specific situations where agency practice provides for less access to electronic records, the Justice Department survey identified several key issues that most would agree summarize the major points of contention. To what extent should an agency be obligated to "program" its computers to produce information in response to a request? Should an agency have the right to choose the format in which information will be released? Is software an agency record that might be subject to release under the FOIA? Programming

The issue of the obligation to program is inextricably tied to a legal proposition regarding an agency's obligation in a paper environment. It is well-accepted that agencies are not required to create any records in response to a request. The act only requires that an agency produce existing records it deems responsive to the request; it does not require an agency to research and write specific answers to a request. Extending that proposition to electronic records, the Justice Department has long argued in litigation that an agency is not required to conduct any "programming" outside the ordinary course in which the information is maintained and retrieved. As an example, a yet unresolved issue has placed the public interest group Public Citizen in confrontation with the Occupational Safety and Health Administration over release of electronic records dealing with safety and health violation issued by the agency in various geographical regions. The agency has said it does not maintain the data in the way in which Public Citizen wants it retrieved. It undeniably has the ability to retrieve the data, but its argument is that "programming" or "reprogramming" to manipulate the data in such a way as to satisfy the group's request would be tantamount to creating a record.

The problem is that creating records electronically is different in kind to creating records on paper. Is the mere fact that an employee may perform a series of keystrokes that he does not typically perform in order to extract data from a database the creation of a record?

The policy rebuttal from those outside government who have studied this problem -- which includes the congressional Office of Technology Assessment, the executive branch's Administrative Conference, and the American Bar Association -- is to characterize that series of keystrokes as necessary steps to fulfill the statute's requirement that agencies conduct a search of their records to locate responsive information. In a paper environment such a search might be through filing cabinets or storage boxes. It makes sense that the analogous search in an electronic environment would be through the relevant database and would be designed to extract all information responsive to the request regardless in which fields the information might be contained.

The parameters of an agency's search obligations are that it must be "reasonably calculated" to uncover the responsive information. In other words, if an agency searched all its files it believed "would" contain responsive materials it would have no further obligation to search other files because they "might" have responsive information. Those same parameters would hold for electronic searches. Agencies would be required to conduct searches, regardless of the medium of the search, based on a standard of reasonableness, a standard agencies have been applying since 1974. Choice of Format

Although there is only one district court decision concerning this issue, Dismukes v. Dept. of Interior, decided in 1984, has remained the last word on the issue until recently. In Dismukes the requester asked for a computer tape of those persons registered for oil and gas lotteries. The agency had the information and had been releasing it on microfiche, but it also existed on a tape. The court ruled that, as long as the informational content was the same, the agency could release the information in the most convenient format of its choice. The case has been criticized in recent years and several agencies when faced with similar circumstances in litigation have backed away from the case's rationale. But it is still the current state of the law and, based on the results of the Justice survey, agencies want to retain such flexibility.

However, groups that have studied these issues have concluded the distinction makes no sense and that an agency should be obligated to provide information in the requester's choice of formats in all cases where such a choice exists. The ABA recommendation goes so far as to suggest agencies should provide the information in the requested format, even when it presently does not exist, if that can be done with a reasonable amount of effort.

Developments in information access case law also suggest that Dismukes is bad law. On the federal level, the Supreme Court decision in Department of Justice v. Tax Analysts makes clear that agencies must release official agency records if they are not protected by one of FOIA's exemptions. This strongly implies that, if a record exists in a format and the requester wants it in that format, an agency has no discretion to release it in another more convenient format. Courts in New York and Illinois have also ruled that agencies must provide computerized records if that is the format requested by the requester. Software

The argument concerning software hinges on whether it is indeed a record subject to the FOIA. The Justice Department has generally taken the position that software is a "tool" used in processing information and has no informational content or value on its own. Others believe software is analogous to a manual, which would be subject to FOIA.

The other issue involved here is a more straight-forward analysis of whether software would be protected by an exemption. Many agencies have indicated they believe release of vendor software would violate the Copyright Act, but the Justice Department has never considered that statute applicable to FOIA. More likely, software would be protected to the extent that it contains confidential business information or trade secrets. Such an analysis could apply to specially-designed or modified software for agency use, but would be hard to sustain in relation to off-the-shelf software packages that are widely used and available.

As Congress addresses information policy broadly, another part of the equation -- the affirmative dissemination of government information -- has come into focus. While FOIA deals with statutory release of information in response to a request, affirmative dissemination deals more with the role government should play in making its information available to a wide audience. Traditional means of dissemination include the Government Printing Office and National Technical Information Service, departmental public affairs offices, and such public records as the Congressional Record and the Federal Register. But with electronic records, agencies may be able to make documents available in paper form available in electronic format, or provide access to entire databases. Systems like the SEC's EDGAR system or the EPA's toxic inventory system are designed to amass large quantities of electronic information and make them available to the public.

As Congress found last session, constructing an information policy that satisfies all segments of the effected constituency is no easy matter. As part of the reauthorization of the Paperwork Reduction Act, which in part provides a role for OMB in information management, Congress tried to set guidance for OMB in fostering creation and implementation of agency electronic information projects. Much of the disagreement which surfaced during the debate came from the library community, which has a deep-seated distrust of OMB and feared the legislation would give the information industry too much say in policy.

The rift between the libraries and the information industry centers largely on economic issues that first arose during the Reagan administration. In its drive to reduce the role of government, the Reagan administration suggested privatizing some aspects of government information dissemination, recommending that agencies might want to contract out some of the traditional functions to private industry. Those outside of industry have always feared that this would create a schism of economic haves and have-nots where government information would be available to those who could afford to access it from private vendors, but not to those with inadequate funds. Although OMB has backed away from its previous policies, the library community remains distrustful. The problem Congress faced during the reauthorization was how to establish an OMB role that would be constrained by congressional guidelines. The final equation left room for agencies to consider the role of the private sector in development of information products, but did not require agencies abandon product development merely because the private sector already had a similar product. It also required that information be made available in such a way that those with money and those without would be able to access such information products. In the last moments of the session, the reauthorization failed for other reasons, so this is an area that Congress will be revisiting again soon.

The availability of electronic information and the ways in which it will be disseminated will remain important issues and are far from being resolved at this time. But as we move more quickly towards a predominately electronic environment, it is important that these issues receive the attention they deserve and merit.

Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility All rights to copy the materials contained herein are reserved, except as hereafter explicitly licensed and permitted for anyone: Anyone may receive, store and distribute copies of this ASCII-format computer textfile in purely magnetic or electronic form, including on computer networks, computer bulletin board systems, computer conferencing systems, free computer diskettes, and host and personal computers, provided and only provided that:

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