Tps, Inc. v. United States Department of Defense Defense Logistics Agency

Under the Freedom of Information Act (“FOIA”), a federal government agency must provide documents in “any form or format requested” that is “readily reproducible by the agency.” 5 U.S.C. § 552 (a)(3)(B). Regulations governing production of electronic data under FOIA dictate “a standard of reasonableness” and “business as usual” as guiding principles. 32 C.F.R. § 286.4 (g)(2). The focus of this controversy is interpretation of “business as usual” in the context of records that are requested in a particular electronic format. We conclude that “business as usual” is not restricted solely to response practices under FOIA but instead encompasses the normal business of the agency. Because material issues of fact exist regarding whether the Department of Defense regularly generates documents in the format at issue here, we reverse the district court’s grant of summary judgment in favor of the government.

Background

FOIA establishes the conditions under which government agencies “shall make available to the public information” and the methods by which agencies supply the information. 5 U.S.C. § 552 . Under the 1996 amendments to FOIA, an agency responding to a FOIA request “shall…