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Twenty days … or not

Photo of Elvis Presley from the NARA collection

When Elvis sang “Twenty Days and Twenty Nights” he didn’t have FOIA in mind. But the title refrain is sure to spark many in the FOIA community to think about the statutory requirement that agencies respond to requests within 20 business days (5 U.S.C. § 552(a)(6)(A)). It’s a topic that has many OGIS requester customers … well, all shook up.

Here’s a sampling of what we’ve heard: “If I have to follow all these rules for filing a proper FOIA request, why doesn’t the agency have to follow the law and respond within 20 days?” “Please bring Agency X into statutory compliance with FOIA’s 20-day response time.” “As a taxpayer, it’s my right to get the information in 20 days.” “The agency has broken the law —what’s the penalty?”

These are all good questions — and fair points. Compliance with the 20-day response time is all over the map, according to an OGIS review of processing times for the year ending September 30, 2010, reported by agencies in their annual FOIA reports to the Department of Justice.

The 15 Cabinet-level departments responded to a far fewer percentage of requests in 20 days than the non-Cabinet-level agencies, but they also have the heaviest request loads. Cabinet agencies met the 20-day deadline in more than half — 56 percent — of requests during fiscal year 2010. The 82 smaller agencies met the 20–day deadline in two-thirds — 67 percent — of requests. It’s a lot easier to respond quickly to requests when your request load is in the double — or even single — digits. Not so much when it’s five or six figures as it is for two-thirds of the Cabinet agencies.

OGIS realizes that the 20-day limit is difficult if not impossible for many departments and agencies to meet because of a high volume of requests and/or inadequate staffing. It is well-recognized by Federal courts that agencies sometimes fail to comply with statutory time limits when responding to a deluge of requests with inadequate resources. The need for a multi-level review of documents within an agency or between agencies, and the need for a legal review of a proposed release package also can cause delays.

What’s a requester to do? OGIS suggests a little patience and understanding on the part of requesters. Take a few minutes to check out an agency’s response time and numbers of requests received. If you haven’t heard from an agency on Day 21, a gentle inquiry to the agency’s FOIA shop or the FOIA Public Liaison is a better option than threatening to sue. You may want to ask for the estimated date of completion or work out a strategy for regular updates if the delay is going to be lengthy. And if you’re getting nowhere, contact OGIS: we’re here to help.

What’s an agency to do? Let requesters know as quickly as possible not just that the 20-day deadline won’t be met, but why. OGIS has found that requesters would rather hear something from the agency than nothing at all.  Stay in contact with requesters with updates, even if it is to say that the request is still being processed. This isn’t a situation where no news is good news.

A little frankness and communication between agencies and requesters goes a long way … and could help everyone in the FOIA requester community feel like requests won’t be answered on “The Twelfth of Never.”

Comments

Comment from Chad
Time September 30, 2011 at 7:03 pm

Agencies should at least send a pro-forma letter or post card by the 20-day deadline saying, “the request has been received and here is our contact information and tracking number for it.”

Comment from Kirsten Mitchell
Time October 3, 2011 at 11:47 am

Good point, Chad. FOIA itself requires agencies to assign and inform requesters of individualized tracking numbers for requests that will take longer than 10 days to process (5 U.S.C. § 552(a)(7)(A)). Although we have seen some cases in which agencies did not provide tracking numbers to requesters, we have observed that, generally, agencies do provide request tracking numbers. Thanks for reading the FOIA Ombudsman blog.

Comment from Carl Malamud
Time October 6, 2011 at 7:05 pm

Hi Kirsten. You said “we have observed that, generally, agencies do provide request tracking numbers.” I recently submitted several dozen FOIA requests across a large number of agencies and I found that they DO NOT provide request tracking numbers in a timely fashion. A number of other folks that submit FOIA requests have confirmed my experience.

I was wondering on what basis you made this assertion? I’d love to be proven wrong if you have some hard data.

Comment from Kirsten Mitchell
Time October 7, 2011 at 1:27 pm

Thanks for your comment and question, Carl. No hard data on this: it’s merely a general observation based on OGIS’s caseload. Of the more than 700 cases OGIS handled in its first two years, about a dozen involved agencies failing to acknowledge requests and/or provide requesters with tracking numbers. If you’d like OGIS assistance regarding your multi-agency requests, please contact us. Thank you for reading our blog.