Considering the Usefulness of Standard FOIA Provisions 

in Interagency Agreements 

Jennifer Goode, Ph.D., Michael J. Toland, Ph.D., Hampton Wilson III, and Rana Wahdan 

U.S. Census Bureau 

4600 Silver Hill Rd., Washington, DC 20233 

Abstract 

The Freedom of Information Act (FOIA), 5 U.S.C. §552, is a disclosure statute, which requires federal agencies to 

disclose information unless such information is covered by one or more of the nine FOIA’s exemptions. Each U.S. 

government agency or component is responsible for responding to requests related to their own data. However, to 

the extent that the agencies have jointly or collaboratively created information, documents, or data, or shared 

information under an Interagency Agreement, each agency has an interest in the information disclosed to a requester 

under the FOIA. While Interagency Agreements commonly include citations of government-wide and departmentwide authorities that allow an agency to engage in collaborative activities with another Federal agency, few 

Interagency Agreement’s cite the FOIA. As, perhaps the most pervasive instrument of coordination in the federal 

government, the Interagency Agreement assigns responsibility for specific tasks, establishes procedures, and binds 

the agencies to fulfill mutual commitments.i A standard provision in Interagency Agreement’s concerning the 

protection of information “to the extent permitted by Federal laws and regulations” may help agencies remain 

cognizant of the consultation and referral procedures required under the FOIA when agencies receive requests for 

records that are of interest to another Federal agency. Consultation and referral procedures ensure that agencies are 

making fully informed and consistent disclosure determinations, in a manner that maximizes efficiency and does not 

put the requester at a disadvantage.ii Additionally, they ensure that FOIA requesters understand how their requests 

are being handled, and have a point of contact to obtain information about the status of any of the records subject to 

their requests. This paper discusses the usefulness of the inclusion of standard FOIA language in applicable 

Interagency Agreements. While our discussion is specific to the Census Bureau, the topic is relevant to other 

Federal agencies. Finally, this paper provides a recommendation for specific FOIA language in Census Bureau 

IAA’s.

Introduction 

The FOIA provides individuals with a statutory right to submit a written request for access to certain records 

maintained by the Executive Branch of the Federal government. The Act outlines agency records subject to

disclosure and defines mandatory disclosure procedures. Access to records is limited to the extent information is 

protected from disclosure by one or more of the nine FOIA exemptions or three special law enforcement record 

exclusions. While each Federal agency is responsible for administering the FOIA, there are times when established 

coordination mechanisms among agencies are necessary to ensure that the involved agencies disclose information in 

an accurate and timely manner. The Interagency Agreement (IAA) is a tool that can help facilitate this process. 

Interagency agreements are labeled and described in various formats, such as data sharing agreements, 

nondisclosure agreements, memorandums of understanding, and assisted acquisition agreements. IAA’s are required 

to document the sharing of information with other agencies and to assign responsibility for specific tasks, establish 

procedures, and bind the agencies to fulfill shared commitments.iii

 The Census Bureau, for example, commonly 

uses agreement formats that support terms and conditions for reimbursable work with federal and nonfederal 

agencies, data sharing, and joint statistical projects. Since nonfederal agencies are not bound by the FOIA, in this 

paper we consider the usefulness of FOIA provisions only in those Census Bureau IAA’s that document the sharing 

of information between other federal agencies. 

The usefulness of standard FOIA provisions in IAA’s is an important topic to consider for several reasons. First, the 

FOIA requires certain administrative procedures for processing requests, as well as options for enforcing the right of 

access. In the course of processing records responsive to FOIA requests, federal agencies often locate records which 

either originated with another agency or which contain information that is of interest to another agency. In these 

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types of scenarios, an agency will either refer the requested records to the originating agency for it to process or 

consult with the other agency that has equity in the document to get its views and recommendations regarding the 

disclosure of the records. These procedures are intended to maximize efficiency such that the requester is not 

disadvantaged by the referral or consultation process. Second, FOIA language in IAA’s will help ensure that 

agencies making release determinations regarding shared information are fully informed about the discloseability of 

the content of the documents. 

The Scope of the Freedom of Information Act 

An understanding of FOIA’s scope is essential to understanding the usefulness of standard FOIA provisions in 

IAA’s. Often described as the law that gives “the people the right to know,” the FOIA generally allows any person, 

regardless of citizenship, to make a FOIA request. The FOIA applies to executive branch federal agencies and 

serves as the foundation for public oversight and transparency of government operations. The scope of the FOIA 

has been shaped by both historical and constitutional factors. In 2009, President Obama issued the Open

Government Directive, that among other things, encourages agencies to err on the side of openness when

implementing the FOIA. Under the presumption of openness, FOIA professionals routinely make assessments of 

harm before the release of agency records. Each year, federal agencies release information in response to hundreds 

of thousands of FOIA requests that contribute to the understanding of government actions.iv

While all federal agency records are subject to the FOIA, the FOIA does not require agencies to release all 

documents that are subject to FOIA requests. Agencies may withhold information pursuant to nine exemptions and 

three exclusions contained in 5 U.S.C. §552. The nine exemptions are as follows: 

(b)(1) Classified documents; 

(b)(2) Information relating solely to agency internal personnel rules and 

 practices; 

(b)(3) Information exempt under other laws: 

a. Requires that the data be withheld from the public in such a manner as to leave no discretion 

on the issue; or 

b. Establishes particular criteria for withholding information of refers to particular types of 

matters to be withheld.

(b)(4) Trade secrets and confidential business information; 

(b)(5) Privileged interagency or intra-agency memoranda or letters that would 

not be available by law except to an agency in litigation; 

(b)(6) Personal information affecting an individual’s privacy; 

(b)(7) Records or information compiled for law enforcement purposes; 

(b)(8) Records of financial institutions; and 

(b)(9) Geological and geophysical information and data. 

The three exclusions include: 

(c)(1) Subject of a criminal investigation or proceeding is unaware of the existence of records concerning 

the pending investigation or proceeding and disclosure of such records would interfere with the 

investigation or proceeding. 

(c)(2) Informant records maintained by a criminal law enforcement agency and the individual's status as

an informant is not known. 

(c)(3) Existence of FBI foreign intelligence, counterintelligence or 

 international terrorism records are classified fact.v

Each Federal agency is responsible for processing their own FOIA requests, specifically making disclosure 

determinations based on the exemptions and exclusions. However, at times, records responsive to a FOIA request 

contain information of interest to another agency. In such instances, determining the disclosability of the material 

becomes a coordinated effort with agencies making referrals or consulting each other. 

Referrals and Consultations 

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OIP set forth guidance for assisting Federal agencies in making determinations for either referring or consulting with 

another agency in response to requests for information.vi

 On one hand, referrals normally involve records that 

originated with a Federal agency other than the one receiving the request for information. The FOIA must also 

apply to the referred agency or the records cannot be referred to that entity. 

On the other hand, consultations entail documents originating with the Federal agency that received a request for 

information, but another Federal agency may have interest in the requested material, as well. Unlike with referrals, 

consultations are appropriate in situations where the FOIA does not apply to the recipient entity. FOIA permits 

“consultation with another agency having a substantial interest in the determination of the request.” vii For example, 

Courts have concluded that agency records that are held by consultants as part of the deliberative process, the 

document is an interagency memorandum. viiiWhile the Federal agency must make the final disclosure 

determinations in the aforementioned cases, it may take into account feedback from the non-Federal entities, as 

appropriate, when making its release decisions. 

Another distinction between referrals and consultations is that the former offer the opportunity for the agency with 

equity or interest in requested material to review the information, as well as to generally provide a direct release 

determination, while with the latter, the Federal agency that received the request for information provides the 

response after it receives all input. In other words, choosing a referral would mean that “the advantages that would 

be secured by delegating all responsibility for reviewing the document rather than engaging in ‘consultation’ must 

then be balanced against any inconvenience to the requester caused by the referral.”ix The basis for referrals is also 

founded in case law, because the FOIA does not mention the need to refer records, rather it explicitly mentions the 

need to consult, with another Federal agency in cases where that agency may have equity or interest in information, 

which may be responsive to a request made under the FOIA.x 

Incorporating portions of the OIP guidance for referrals and consultations, along with other standard FOIA language 

into IAA’s, not only protects the interests of all parties that may have equity in potentially responsive material and 

ensures that proper disclosure determinations are made, it also establishes best business practices for the handling of 

the information. 

Response Time and Consultations 

Since referrals are most often sent to other Federal agencies for direct response to the information requester, 

response times for referrals are not discussed in this paper. However, due consideration should be given to the ways 

in which consultations may affect the response time of FOIA requests. In particular, when a Federal agency 

consults with another agency, the consulted agency should be mindful of the need for the recipient agency to 

respond to a request for information within the statutory time limits enumerated in the FOIA. As such, the consulted 

agency should provide a timely response, especially since the request for information should not be placed on hold 

by the recipient agency, which means the processing clock keeps running. However, agencies may extend the 20-

workday time limit for 10 more workdays when “unusual circumstances” exist. The need to consult with another 

agency or two or more agency components who have a substantial interest in the responsive information qualifies 

for this time extension. The Government Accountability Office (GAO) figure below provides a basic overview of 

the FOIA process from receipt of a request through the release of records to the requester. 

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Interagency Agreements in Relation to the Freedom of Information Act 

Interagency agreements between the Census Bureau and other Federal agencies are executed in accordance with 

applicable Federal regulations and legal and fiscal requirements, program statutes and regulations, and applicable 

Department of Commerce directives. Congressional authority for entering into interagency agreements is authorized 

by the Economy Act (31 U.S.C. §1535, 1536). The Economy Act permits Federal agencies to purchase goods or 

services from other Federal agencies, if the good or service is available, the purchase is in the best interest of the 

Governments, the goods or services cannot be provided more cheaply or conveniently by the private sector, and the 

supplying agency is able to provide the good or service itself or by contract. 

Although agreements commonly contain government-wide authorities such as the Economy Act, there are many 

other statutes that provide authority for interagency agreements. For example, the 2011 Department of Commerce 

Agreement Handbook identifies the Intergovernmental Cooperation Act, 31 U.S.C. §§6501-6508 and departmentwide authorities such as Special Studies Authority, 15 U.S.C. §1525 (first paragraph), and Joint Project Authority, 

15 U.S.C. §1525 (second paragraph). Moreover, statutory requirements, administrative regulations, policies, and 

procedures applicable to the work to be conducted under the interagency agreement, for example, the FOIA, are to 

be considered “optional agreement provisions.” 

We contend that FOIA language in applicable IAA’s should be a standard provision, especially in those IAA’s that 

involve the sharing of statistical records. Informed and consistent disclosure determinations are important because 

the FOIA specifies the conditions under which the disclosure of federal agency records, including statistical records, 

may be compelled.xi Statistical records maintained by federal agencies, even those developed by private parties, are 

subject to disclosure under the FOIA if not otherwise exempt.xii While it is the policy of the Census Bureau to make 

records available to the public to the greatest extent possible, in keeping with the spirit of the FOIA, open 

government, and transparency, the Census Bureau denies FOIA requests in whole or in part if the information may 

be withheld under one or more of the nine exemptions described above. 

Of interest to the statistical community, are exemptions (b)(3), (b)(4), and (b)(6) described above. For example, 

Census Bureau information that is protected by Title 13, United States Code, Section 9, requires that census records 

be used solely for statistical purposes and also makes such records confidential. Furthermore, the Supreme Court 

ruled, “raw Census data reported by or on behalf of individuals [including address lists],” are protected under the 

confidentiality provisions of the Census Act, 13 U.S.C. §§ 8 and 9, and therefore, are not disclosable under the 

Freedom of Information Act, as well as civil discovery. Baldridge v. Shapiro, 455 U.S. 345, 361-362 (1982). 

Accordingly, exemption (b)(3) of the FOIA exempts from disclosure records or portions of records that are made 

confidential by statute. It should be noted that although statistical records maintained by the Census Bureau may be 

protected pursuant to Title 13 and therefore exempted from disclosure under exemption (b)(3), FOIA staff are still 

obligated to conduct a search for records responsive to a request, as well as make the appropriate disclosure 

determinations. This important distinction further supports the suggestion that the inclusion of FOIA language in 

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applicable Census Bureau IAA’s should be standard practice, because it can serve to remind the other federal agency 

of the need for consultation so fully informed and consistent disclosure determinations can be made and, to ensure 

that records protected by statute are not disclosed.

Statistical information with commercial or financial value may be withheld under exemption (b)(4) of the FOIA, 

which extends protection to "trade secrets and to information which is commercial or financial, obtained from a 

person, and privileged or confidential" (Title 5 U.S.C. § 552(b)(4)). Such records need not be individually 

identifiable and may include records of organizations.xiii Exemption (b)(6) of the FOIA may be applicable for 

responsive records if such records will yield sensitive information about individual research participants (Title 5 

U.S.C. § 552(b)(6)). This exemption is intended to protect sensitive information identifiable to an individual, 

including research and statistical information, from unwarranted disclosure.xiv

 This can be done by identifying the 

level of sensitivity of information involved and emphasizing the harm of disclosing the information. Moreover, if 

the court determines that disclosure of identifiable agency records "can reasonably be expected to invade [a] citizen's 

privacy," disclosure will not be ordered.xv

 

Varying statutes, regulatory, or policy protections governing the specific agency maintaining the information 

supports our premise that standard FOIA language into IAA’s is beneficial to all parties that may have equity in 

potentially responsive material and ensures that proper disclosure determinations are made. Subsequently, the 

coordinated response of agencies in making disclosure determinations on shared information ensures that requests 

receive efficient and transparent handling, consistent with federal statutes. Conclusion 

In this paper, we have discussed how the use of standard FOIA language in applicable IAA’s will be beneficial in 

processing FOIA requests for shared information documented in the IAA. The strength of the IAA is that it can be 

used as a tool to reinforce timely and conscientious processing of requests. The conceptual purpose of this paper has 

been twofold: First, this paper has underscored the need to maximize efficiency such that the requester is not 

disadvantaged by the consultation processxvi. Second, the paper has aimed to focus attention on the shared 

responsibility of agencies to respond to FOIA requests that contain information of interest to both agencies, which 

we contend protects the interests of all parties that may have equity in potentially responsive material and ensures 

that proper disclosure determinations are made, it also establishes best business practices for the handling of the 

information. 

Recommendation 

We suggest that the inclusion of FOIA language in applicable Census Bureau IAA’s should be standard practice 

because it not only reminds the other federal agency of the need for consultation to make fully informed and 

consistent disclosure determinations, it can facilitate the timely processing of requests for information that involves 

two or more agencies. We recommend the following language: 

"The Parties will share information consistent with applicable statutes and regulations. The Parties recognize that 

information exchanged that contains any of the following types of information must be protected from unauthorized 

use and disclosure: (1) confidential commercial information, such as the information that would be protected from 

public disclosure pursuant to Exemption 4 of the Freedom of Information Act (FOIA); (2) personal privacy 

information, such as the information that would be protected from public disclosure pursuant to Exemption 6 or 7(C) 

of the FOIA; or (3) information that is otherwise protected from public disclosure by Federal statutes and their 

implementing regulations (e.g., Title 13 (USC § 8(b) and 9), 5 USC §552(b)(3), Title 13 (USC § 301(g)), the 

Privacy Act (5 USC S52a)), and other Freedom of Information Act exemptions not mentioned above. If an agency in 

receipt of information under this IAA receives a FOIA request for confidential and other non-public information, it 

will refer the request to the agency where the information originated for the latter agency to respond directly to the 

requester regarding the releaseability of the information at issue. In such cases, the agency making the referral will 

notify the requester that a referral has been made and that a response will be issued directly from the other agency." 

 

i

 Freeman, Jody and Rossi, Jim, Agency Coordination in Shared Regulatory Space (March 4, 2011). Harvard Law 

Review, Vol. 125, 2012; FSU College of Law, Public Law Research Paper, No. 486. Available at SSRN: 

http://ssrn.com/abstract=1778363 or http://dx.doi.org/10.2139/ssrn.1778363 

5 
 

ii (Department of Justice, Office of Information Policy Guidance (OIP))

iii Freeman, Jody and Rossi, Jim, Agency Coordination in Shared Regulatory Space (March 4, 2011). Harvard Law 

Review, Vol. 125, 2012; FSU College of Law, Public Law Research Paper, No. 486. Available at SSRN: 

http://ssrn.com/abstract=1778363 or http://dx.doi.org/10.2139/ssrn.1778363

iv GAO Report, November 2014. 

v

 5 U.S.C. §552 

vi See DOJ, OIP Guidance: Referrals, Consultations, and Coordination: Procedures for Processing Records when 

Another Agency or Entity Has an Interest in Them (2011).

vii 5 U.S.C. § 552(a)(6)(B)(iii)(III)

viii Sea Crest Constr Corp. v Stubing (1981, 2d Dept) 82 App Div 2d 546, 442 NYS2d 130.

ix McGehee, 697 F.2d at 1111 n. 71.

x

See Sussman v. U.S. Marshals Service. 

xi Private lives and public policies: Confidentiality and accessibility of government statistics: Edited by George T. 

Duncan, Thomas B. Jabine, and Virginia A. de Wolf. Washington, DC: National Academy Press, 1993. 274 p. ISBN 0-

309-04743-9.

xii Ibid, See St. Paul's Benevolent Educational and Missionary Institute v. U.S., 506 F. Supp. 822 (N. D. Ga. 1980).

xiii Private lives and public policies: Confidentiality and accessibility of government statistics : Edited by George T. 

Duncan, Thomas B. Jabine, and Virginia A. de Wolf. Washington, DC: National Academy Press, 1993. 274 p. ISBN 0-

309-04743-9.

xiv Ibid 

xv Ibid, See (see D.O.J. v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989); New York Times Co. 

v. N.A.S.A., 920 F.2d 1002 (D.C. Cir. 1990) (en banc)). 

xvi As earlier noted, referrals aren’t included here since they do not affect response times as do consultations.

6