Q. I appealed an agency’s Exemption 5 redactions and the agency remanded my request because the redactions “contain information similar to that which has been made public in recent months.” The remanded and less-redacted document I later received showed that the previously redacted information shouldn’t have been redacted in the first place. It’s also unclear where, how, or when roughly 90 percent of the new information was “made public in recent months.”
Aren’t agencies required to review FOIA appeals based on the administrative record established at the time the appeal was received? And wouldn’t this preclude the agency from considering new information that “has been made public in recent months”? I ask because I’m planning to appeal again, since the remanded version still contains many Exemption 5 redactions. And if it’s clear that the previously withheld info shouldn’t have been withheld in the first place, and if the agency’s reason for now releasing that information is inapposite, how do I know the remaining redactions aren’t also improper?
A. Agencies may take into account just about any information before issuing their administrative FOIA appeal decisions. In fact, agencies may change their positions on the applicability of exemptions even after they’ve been sued. The concept of an "administrative record" in FOIA is limited to only a few issues at the litigation stage--for example, expedited processing and fee waivers. A requester probably cannot know with absolutely certainty whether an agency has properly processed requested records. Short of litigation, however, you might consider asking the Office of Government Information Services for assistance.