One of the late actions of the 104th Congress was the enactment of the Electric Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048. Despite its name, only some of the amendments relate to electronic information; perhaps the most significant amendments relate to attempts to deal with endemic delays in responding to requests.

The original FOIA did not conceive of electronic records, but in recent years there have been increasing questions raised about how electronic records should be handled under the Act. The Section was instrumental in crafting recommendations in this regard. The amendments make clear that records under the Act include agency information maintained in an electronic format. In addition, they provide that a request for information in a particular format (electronic or paper, for example) shall be honored if the record is "readily reproducible" in that format. A question prior to the amendments had been whether a request for a particular output from a relational database would be a search for a record or the creation of a record; if the former, it would be subject to the FOIA, but if the latter, it would not. The amendments clarify that the agency should make reasonable efforts to respond to such requests, so long as they do not "significantly interfere" with the operation of the agency's data system. Finally, and perhaps most importantly, § 552(a)(2) is amended to require that all documents covered by that paragraph, which currently agencies must "make available for public inspection and copying," must by November 1997 be made available for access by electronic means.

As one sponsor of the legislation remarked, the "mother of all complaints lodged against the Freedom of Information Act . . . is the often ludicrous amount of time it takes some agencies to respond" to FOI requests. The amendments respond to this problem in a variety of ways. First, they recognize that the current law's 10-day period for responding is unrealistically short, even for simple requests, so this period is extended to 20 days.

Second, the amendments enable agencies to establish multitrack processing of requests. Traditionally, agencies were required to use a First in/First out system, so that voluminous requests by some persons would delay responses to relatively simple requests filed later by other persons. Now agencies will be able to create different tracks for different types of requests, so that requests calling for voluminous amounts of information can be placed on a separate track from routine and simpler requests. Persons whose requests have placed on a slower track will be given an opportunity to resubmit their request differently to obtain a faster track. Thus, persons will be able to decide if they want more voluminous information but have to wait longer for it, or receive more limited information in a faster time frame.

Third, agencies are required to adopt regulations providing for "expedited processing" (processing "as soon as practicable") of certain types of requests. Expedited processing is required when a requester demonstrates "compelling need" and "in other cases determined by the agency." The amendments define compelling need as either when delay "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual" or when the request is made by the media and there is "urgency to inform the public" about some government activity. The failure to accord a request expedited processing when requested is subject to administrative appeal and judicial review. Unlike other FOIA judicial review, however, the review is to be "based on the record before the agency at the time of the determination."

Fourth, the amendments change the treatment of "unusual" and "exceptional" circumstances under the Act. Currently, the agency can invoke a claim of "unusual circumstances" in certain situations and extend the time limit for responding by 10 days. Under the amendments, if the agency wishes to invoke these "unusual circumstances" it must notify the requester and allow the person an opportunity to "limit the scope of the request" so as to come within the time limit. If the person does not so limit the request, it "shall be considered as a factor in determining whether exceptional circumstances exist." Under current law, "exceptional circumstances" (plus the agency's due diligence) are grounds for courts extending the time for an agency response, if the requester sues for lack of a timely response. As a practical matter "exceptional circumstances" has meant whenever the agency is suffering from a backlog, but the amendments specifically prohibit including within "exceptional circumstances" predictable backlogs, "unless the agency demonstrates reasonable progress in reducing its backlog." Now, under the amendments, a requester's refusal to narrow its request, if given the opportunity, will also be a factor in determining whether there are "exceptional circumstances." In short, a refusal to narrow a request may become in essence an agreement to an indefinitely extended deadline.

Fifth, in an attempt to reduce the number of FOI requests to agencies, the amendments require agencies to identify records which have been subject of FOI requests that are likely to be subject to more requests and to index and make them available to the public under § 552(a)(2) (which, as noted above, starting in November 1997 will be available electronically).

Finally, the amendments impose new reporting requirements on agencies and the Attorney General intended to highlight the extent and causes of backlogs.

Generally, the amendments dealing with electronic records are effective beginning in April 1997, while the amendments dealing with delay are effective in October 1997.