OGIStance: What’s up with referrals these days?
Among OGIS’s recent cases are several from customers advised that their FOIA requests have been referred to other agencies for processing. In accordance with agency FOIA regulations, that’s usually no problem. But in the OGIS cases, the agencies making the referrals did not identify the name of the agencies to which they referred the requests, and did not offer to assist the requesters in determining the status of the referred requests. As a result, the requests seem lost in that big black hole sometimes known as the federal government!
Generally, agency FOIA regulations allow for the referral of a request or a portion of a request to another agency when that other agency can better decide whether any responsive records are exempt from disclosure under FOIA, and, if so, whether the records should be released on a discretionary basis. An agency will refer records when the responsive records were created by or initially acquired by another agency or component, which is presumed to be best able to make the release determination. The referring agency should notify the requester of the referral and tell the requester of the name of the component or agency to which the records were referred. However, as with many rules, there is an exception – in certain cases, identifying the agency receiving the referral may in itself disclose a sensitive, exempt fact. In such fairly unusual instances, the referring agency need not identify the receiving agency or component.
Although there are advantages to record referrals, namely, administrative efficiency and consistency of responses, the cases brought to OGIS highlight an inefficiency in this practice. If one agency refers a request to another unidentified agency and provides no avenue for the requester to determine the status of the referred request, the FOIA process shuts down.
OGIS recommends that a referring agency identify the receiving agency and provide the requester with contact information for a FOIA professional in the receiving agency, allowing the requester to track the request. In those atypical cases in which identifying the receiving agency would reveal a sensitive, exempt fact, the agency making the referral should continue to assist the requester in determining the status of the referred request in the unidentified agency. OGIS notes that the Justice Department’s Office of Information Policy issued related guidance in a FOIA Update, Summer 1991, titled Referral and Consultation Procedures.
Agencies following this recommended practice would indeed promote a fair, efficient FOIA process – and earn a gold star for outstanding customer service! OGIS is all about a fair and efficient FOIA process, so let us know your thoughts on the topic.