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DISMUKES v. DOI

December 19, 1984

PHILIP DISMUKES, Plaintiff,
v.
DEPARTMENT OF THE INTERIOR, Defendant



The opinion of the court was delivered by: GREEN

 This action arises under the Freedom of Information Act, 5 U.S.C. § 552 (1977). The single issue presented by the pending cross dispositive motions is whether a FOIA requester may specify the format of data he seeks from an agency.

 This Court's jurisdiction under FOIA turns on whether an agency has (1) "improperly" (2) "withheld" (3) "agency records". Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980); Forsham v. Harris, 445 U.S. 169, 177, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980). Commonly, an agency resisting a FOIA request will assert that one of the statute's nine enumerated exemptions covers the subject material, or will challenge the "agency record" status of the document. This case is not typical. Here, there is no dispute that both the requested computer tape and the corresponding microfiche are nonexempt agency records. The issue is whether the tape and microfiche are equivalent agency records such that release of the latter will satisfy a request for the former. In other words, the Court must decide whether a FOIA plaintiff may designate the format as well as the content of a requested agency record.

 Analysis of that issue beings with an understanding of an agency's basic obligation under FOIA. The fundamental objective of FOIA is to "loosen the agency's grip on the data underlying governmental decisionmaking" -- to foster "disclosure, not secrecy." Chrysler Corp. v. Brown, 441 U.S. 281, 290 n.10, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979), quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976); see also Allen v. Dep't of Defense, 580 F. Supp. 74 (D.D.C. 1983). The Act represents a Congressional effort to open the doors of government to the people, in the hope that public access to government affairs will ensure an "informed electorate . . . vital to the proper operations of a democracy." S. Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965); H.R. Rep. No. 1497, 89th Cong., 2d Sess. 5-6 (1966); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978). Given that purpose, it is not surprising that courts construing FOIA have focused on the informational content of records at issue in determining claims of exemption, see e.g., Department of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982); Breuhaus v. IRS, 609 F.2d 80 (2d Cir. 1979); Zale Corp. v. IRS, 481 F. Supp. 486 (D.D.C. 1979); or even questions of agency record status, see Center for National Security Studies v. CIA, 577 F. Supp. 584, 589-90 (D.D.C. 1984).

 The clearest exposition of the Court's concern for information in FOIA cases is found in FBI v. Abramson, 456 U.S. 615, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982). The issue in that case was whether information initially contained in a record made for law enforcement purposes (and therefore subject to FOIA's Exemption 7, 5 U.S.C. § 552(b)(7)) remained exempt from disclosure when reproduced or summarized in a document prepared for a non-law-enforcement purpose. In holding that it did, the Court focused on the information, not the form in which it was presented, even though Exemption 7 by its terms covers only certain "investigatory records compiled for law enforcement purposes." Instead of looking only to the record, the Court observed that FOIA "require[s] assessment of the harm produced by disclosure of certain types of information. Once it has established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms, the information is exempt." 456 U.S. at 631-32 (emphasis added).

 In Center for National Security Studies v. CIA, supra, this Court considered the agency record status of the duplicate of a report prepared by the CIA for a House of Representatives committee. Although the original was a Congressional document beyond the reach of FOIA, the duplicate remained in the CIA files and was, in the plaintiff's view, an agency record subject to FOIA. The Court rejected plaintiff's "literal, 'physical' approach to the definition of 'agency record'", echoing the Abramson court's reluctance to place the focus of FOIA on the "physical format of documents" rather than on their contents. 577 F. Supp. at 589-90. The message of both Abramson and CNSS is that resolution of disputes under FOIA turns on "the nature of the information and the effects of disclosure." 456 U.S. at 626; 577 F. Supp. at 590.

 Plaintiff attempts to turn the focus from content to format by citing language from a prior Supreme Court holding to the effect that "[FOIA] deals with 'agency records', not information in the abstract." Forsham v. Harris, 445 U.S. 169, 185, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980). Placed in context, that statement is not at odds with the above discussion. The Forsham court held, inter alia, that FOIA's disclosure requirements extend only to existing compilations of information: in response to a FOIA request, an agency need not create new documents containing data previously unrecorded. It does not follow from that holding that twice-recorded information, such as that at issue here, must be made available in the format selected by the requester.

 Viewed against this background of legislative history and case law, plaintiff's challenge to the format of the lottery information offered by defendant does not state an actionable claim under FOIA unless plaintiff contends that defendant's decision to release the microfiche rather than the tape somehow affects his access to the information he seeks -- the names and addresses of the 1982 SOG lottery participants. In theory, a variation in the format of data released by defendant could reduce the quantum of information made available to plaintiff. For example, had plaintiff requested an audio tape, he could well argue that production of a written transcript would not satisfy his request, as transcription removes nuances of inflection which give words added meaning beyond that reproducible on paper. However, neither plaintiff nor any document in the record suggests that the quantum of information contained in the microfiche varies in any way from that recorded on the computer tape. Indeed, the uncontroverted affidavit of a knowledgeable BLM official states that "a printout from the . . . tape would be identical to the corresponding page from the microfiche." Affidavit of Andrew Tarshis ("Tarshis Aff.") at para. 7.

 Content aside, the Court must also consider whether, as a practical matter, defendant's decision to release only the microfiche will unreasonably hamper plaintiff's access to the lottery information. Plaintiff contends that from his standpoint computer tape would provide a less expensive and more convenient alternative to microfiche, and he asserts that the agency's denial of that alternative is a deliberate tactic to hinder him from obtaining the subject information.

 Furthermore, defendant's decision to release SOG lottery information in the form most useful to the general public does not erect unreasonable barriers to plaintiff's access to the information. The cost differential between the tape and microfiche amounts to only $15 per drawing, or $90 for a set of six bimonthly drawing participant lists. Tarshis Aff. at para. 10. According to defendant, even that difference is exaggerated by the agency's current pricing practices. Because the creation of one tape is an intermediate step in the microfiche production process, defendant incorporates the cost of original tape production into the microfiche price. However, defendant does not include that cost into the price for copies of the tape. Under a distribution system utilizing only computer tapes, the tape would bear the full costs of production, and the cost of tape copies would rise appreciably. Tarshis Aff. at para. 10. Plaintiff's observation that if tapes were the primary format distributed by BLM "they would in fact cost no more than the microfiche and perhaps somewhat less", Dismukes Aff. at para. 4, does not refute defendant's point that under the present distribution system the tape price is artificially low.

 It may well be that for this particular requester, and under the current pricing system, computer tape offers the least expensive, most convenient means of access to the SOG lottery information compiled by defendant. Nonetheless, defendant has no obligation under FOIA to accommodate plaintiff's preference. The agency need only provide responsive, nonexempt ...


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