REQUIREMENTS FOR AGENCY RESPONSES

REQUIREMENTS FOR AGENCY RESPONSES

REQUIREMENTS FOR AGENCY RESPONSES

Until the response requirements of the 1996 amendments to the FOIA become fully effective in early October 1997, each agency is currently required to determine within 10 days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request whether to comply with the request.\23\ The actual disclosure of documents is required to follow promptly thereafter. If a request is denied in whole or in part, the agency must tell the requester the reasons for the denial. The agency must also tell the requester that there is a right to appeal any adverse determination to the head of the agency or his or her designee.

The FOIA permits an agency to extend the time limits up to 10 days in unusual circumstances. These circumstances include the need to collect records from remote locations, review large numbers of records, and consult with other agencies. The agency is supposed to notify the requester whenever an extension is invoked.24

The statutory time limits for responses are not always met. An agency sometimes receives an unexpectedly large number of FOIA requests at one time and is unable to meet the deadlines. Some agencies assign inadequate resources to FOIA offices. Congress does not condone the failure of any agency to meet the law's time limits. However, as a practical matter, there is little that a requester can do about it. The courts have been reluctant to provide relief solely because the FOIA's time limits have not been met.

The best advice to requesters is to be patient. The law allows a requester to consider that his or her request has been denied if it has not been decided within the time limits. This permits the requester to file an administrative appeal or file a lawsuit in Federal District Court. However, this is not always the best course of action. The filing of an administrative or judicial appeal will not necessarily result in any faster processing of the request.

Each agency generally processes requests in the order of receipt. Some agencies will expedite the processing of urgent requests. Anyone with a pressing need for records should consult with the agency FOIA officer about how to ask for expedited treatment of requests.

When the new response requirements of the 1996 amendments to the FOIA become effective in early October 1997, several changes will occur. As noted, agencies have long processed FOIA requests on a "first in, first out" basis. Processing requests solely on this basis, however, has resulted in lengthy delays for simple requests. The prior receipt and processing of complex requests delays other requests, increasing agency backlogs. To change this situation, the 1996 amendments to the FOIA authorize agencies to promulgate regulations establishing multitrack processing systems, and make clear that agencies should exercise due diligence within each track. Under these new arrangements, agencies also may give requesters the opportunity to limit the scope of their requests to qualify for processing under a faster track.

The 1996 amendments also increase from 10 to 20 days (excluding Saturdays, Sundays, and legal holidays) the time allowed for an agency, after receiving a request, to determine whether to comply with the request. Moreover, the amendments provide a mechanism to deal with unusually burdensome requests which an agency would not be able to process within prescribed timeframes, including an extra 10 days for "unusual circumstances." For such requests, the 1996 amendments require an agency to inform the requester that the request cannot be processed within the statutory time limits and provide an opportunity for the requester to limit the scope of the request so that it may be processed within statutory time limits, and/ or arrange with the agency a negotiated deadline for processing the request. In the event the requester refuses to reasonably limit the scope of the request or agree upon a timeframe and then seeks judicial review, that refusal shall be considered as a factor in determining whether "exceptional circumstances" exist for a judicial extension of processing time.

The FOIA currently provides that, in "exceptional circumstances," a court may extend the statutory time limits for an agency to respond to a FOIA request, but does not specify what those circumstances are. The 1996 amendments clarify that routine, predictable agency backlogs for FOIA requests do not constitute exceptional circumstances for purposes of the act. Routine backlogs of requests for records under the FOIA do not give agencies an automatic excuse to ignore the time limits. A court shall consider an agency's efforts to reduce the number of pending requests in determining whether exceptional circumstances exist. Agencies may also make a showing of exceptional circumstances based on the amount of material classified, based upon the size and complexity of other requests processed by the agency, based upon the resources being devoted to the declassification of classified material of public interest, or based upon the number of requests for records by courts or administrative tribunals. A court also shall consider a requester's unwillingness to reasonably limit the scope of his or her request or to agree upon a processing timeframe prior to seeking judicial review.

As noted at the outset of this section, the new response requirements of the 1996 amendments to the FOIA do not become effective until early October 1997.

Footnotes

\23\ The new response requirements of the 1996 amendments to the FOIA become effective 1 year after being signed into law by the President on October 2, 1996.

\24\ Agencies that take more than 10 days to respond to a request do not always notify each requester that an extension has been invoked.

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