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FOI Columns
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September-October, 2001

Electronic records threaten FOIA

Recent efforts by government agencies to resist disclosure of electronically stored records pursuant to freedom of information laws represent a disturbing trend that ultimately could render those laws obsolete. So far, the agencies' success has been limited. But until the courts definitively reject the notion that electronic records are somehow different, the Information Age threatens to banish most government records beyond the reach of freedom of information laws.

Although they vary greatly in scope, freedom of information acts (FOIA)in virtually every state and the federal FOIA have certain basic elements in common. First, FOIA generally requires government agencies to provide copies of all documents to any member of the press or public who asks, as long as the requested documents do not fall within an enumerated exception. The presumption is openness, and the burden rests on the agency to prove that any specific request may be denied.

Second, if a requested record contains some material that is not subject to disclosure under FOIA, the agency cannot simply withhold the entire document. It must redact that specific information -using a black marker, correction fluid, or anything else -and produce a copy of the document.

Third, an agency is not required to create a new document in response to a FOIA request. The government only must produce what i t already has.

Each of these fundamental tenants seems straight forward, and usually is when old- fashioned paper records are involved. Either the document exists or it does not. Either material needs to be blacked out, or it does not.

If information needs to be redacted and the agency does not have a black marker it gets one. But what about when the records sought are electronic? And,what if the database contains some information that must be disclosed and some that does not have to be?

Analogizing the situation to one involving paper records, the agency should produce a copy of those portions of the database that contain disclosable material. If the agency does not have a computer program to segregate or redact the confidential material, it should write one (general l y at the expense of the request or). Unfortunately, numerous government agencies and at least one Connecticut state court judge have rejected this approach.

$20 million fee

In September 1999,Hartford Courant reporter Jack Dolan made a routine FOIA request to the Connecticut Department of Public Safety (DPS) for a copy of all of the fields of information in the DPS database typically produced on an adult "rap sheet." Paper copies of individual rap sheets routinely are provided to journalists. Dolan offered to pay the cost of developing a computer program to redact confidential information (such as juvenile convictions).DPS agreed to produce the requested portions of the database, which clearly do not fall within a FOIA exception. Instead of the cost of the computer program, however, DPS sought to impose a charge of over $20 million -calculated by multiplying the standard fee for producing a copy of a single rap sheet ($25)by the number of records in the database (815,000).

Following Connecticut procedure, Dolan appealed to the Freedom of Information Com- mission, which upheld DPS 's fee. Dolan then took the case to court, where a Superior Court judge decided that DPS did not have to produce t he record at al l .The court found that "the requested Department database was not in existence....[T ]he existing database would have to be altered to exclude non-conviction information." In other words, the redacted database, containing only the material subject to disclosure, is a "new "document. The judge also pointed out that the program to be used to eliminate the confidential data would be "a modified program that the Department 'would devise.' "Then, citing the cases involving paper records that explicitly state that FOIA does not require an agency to create documents, the judge dismissed Dolan 's case. The Nassau County District Attorney 's office took a similar position when Newsday sought a copy of the DA 's criminal information database.

Electronic record battle
Not all judges who have considered the issue of access to electronic records under FOIA neglect basic common sense.

The Illinois Supreme Court, for example, accurately observed that interpreting the FOIA as the Connecticut Superior Court did "would effectively gut the act."(Family Life League v. Department of Public Aid ,112 Ill.2d 449,1986).But until the courts or legislatures unequivocally declare that electronic records must receive equal treatment under FOIA, the prospect of fighting a long, expensive legal battle each time a reporter seeks electronic records will remain.

That possibility, combined with the government 's increasing reliance on electronic records, could produce a loophole large enough to swallow FOIA.

Stephanie S.Abrutyn currently serves as Counsel/East Coast Media for Tribune Company.Prior to joining Tribune,she worked in the Litigation and Employment Practices group of the ABC department and in private practice at Baker &Hostetler in Washington,D.C.