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How to Invite a FOIA Lawsuit

In the course of our work as the FOIA Ombudsman, we regularly hear from agencies and requesters about FOIA practices that work well. We also hear about practices that don’t work as well. Too often, such problems result in legal action by requesters.

We have observed that the following agency practices can be “litigation invitations”:

Failing to give a requester an estimated date of completion. The 2007 amendments to FOIA require agencies to provide requesters with an estimated date of completion, but many agencies still do not do so. When asked why, agencies report that they have not determined how best to accurately compute an estimated completion date or that they are reluctant to provide an estimated completion date: if the date is not met it would open up a whole set of other problems related to revising the estimated date of completion and to maintaining or re-building rapport with the requester and agency officials if the dates slip.

Aside from the fact that FOIA requires agencies to provide requesters with an estimated date of completion, providing estimated completion dates can be advantageous to agencies. First, an estimate is just that, an agency’s educated guess based on the information it has available at that point in time. Estimated completion dates can also keep an agency on track and in tune with its FOIA process. For example, if an agency figures out how much time it takes for each stage in the FOIA process, it makes it easier to manage its FOIA case load by recognizing bottlenecks in the process. When requesters are given an estimated date of completion, it helps to manage their expectations of when they will receive a response to a request.

If your agency needs to change the estimated completion date, we encourage you to let the requester know as soon as possible and provide an explanation as to why it has changed. A requester may not be happy about receiving multiple estimated completion dates; however, if FOIA professionals are thoughtful about the estimates and consistent in communicating with the requester, then this will provide good customer service that will go a long way in maintaining the relationship. We have observed that some agencies calculate and provide the estimates when they begin processing a request. These agencies also proactively provide the estimated completion date and will update it as needed. While this approach may not work for all agencies, it seems to work well for some agencies. The Department of Justice’s Office of Information Policy provides more guidance on this issue in its FOIAPost.

Failing to talk to a requester. We’ve heard from requesters (and even from some agencies!) that there are agencies that will not speak to requesters regarding their requests—at all. We have observed that communication with requesters is not only good customer service, but it the single most efficient and cost-effective way to avoid disputes. Requesters have told us that if an agency at least lets them know what is going on with their request, they will be less likely to file suit in those cases. We have also seen that once we get involved and just explain the FOIA process to requesters, they are also less likely to file suit. The FOIA process can confuse those on the outside looking in. If you aren’t willing to talk to requesters and let them know what is going on, you are, in their minds, giving them the green light to run to the court house to file suit. Customers also tell us that even bad news is better than no news at all. If FOIA professionals are not sure how to deliver bad news to requesters, please consider taking OGIS’s Dispute Resolution Skills for FOIA Professionals training.

Failing to explain withholdings in final response letters. We’ve seen many final response letters that only cite the exemptions claimed to withhold information. While this may be legally sufficient, misunderstandings and disputes may be avoided if the final response letter provides a brief description of the record systems searched and the nature of the information withheld. When a requester is able to understand where the agency searched for responsive records and the type of information withheld under a FOIA exemption, it can result in fewer administrative appeals. Moreover, when we provide more detailed information about the exemption used and how it applies in a specific case, requesters gain greater understanding and often decide not to file a lawsuit.

So how can agencies improve their response letters? The Plain Writing Act of 2010 is a useful tool in helping agencies re-think their FOIA letter templates to make them more easily understood. The more information an agency gives regarding the reasons for the denial or even going further and explaining the nature of information withheld, the less likely it is that a requester will sue.

Failing to work with OGIS in good faith. OGIS’s process complements the agency FOIA process. Whenever practical, OGIS encourages requesters to exhaust all administrative remedies within an agency before pursuing facilitation or mediation through our office. OGIS’s process is often short, simple and streamlined. There are times when agencies do not fully engage with OGIS, which can lead some requesters to feel like they must sue in order to be heard. Congress created OGIS as an alternative to litigation, so we are here to help, not hinder, the FOIA process. We are not the FOIA police. We advocate for neither requesters nor agencies, but for FOIA. When working with OGIS, the goal is for the parties to work together to find common ground, which in many cases is a win-win situation.

So, in a nutshell: it’s all about good customer service. By making good customer service the focus, you may save time, energy and money that may otherwise go into defending a FOIA lawsuit. Perhaps more importantly, it will improve the administration of FOIA.  Let us know if you have any additional tips for avoiding FOIA litigation.

Comments

Comment from Phil
Time February 4, 2012 at 12:34 am

Hear hear! Excellent advice.

Comment from Larry W. Bryant
Time February 4, 2012 at 1:03 am

== Put Some Teeth into the OGIS Mission!==

As I continue to await CIA compliance with my FOIA request of Aug. 12, 2011 (published as Item 2.118 of my blog — in which I seek a copy of “All UFO-related reports collected from foreign-press sources by your agency’s Foreign Broadcast Information Service (FBIS) during the period May 1, 2011, through August 12, 2011″), I’m wondering how much longer these Rosemary Award-winning FOIA folks intend to prolong this inordinate delay in their processing of my request.

Isn’t it time for Congress to empower the OGIS charter by permitting the OGIS chief to levy a monetary fine against any agency found to be stonewalling any FOIA request about such a compelling public issue as the worldwide cover-up of the UFO experience? — Larry W. Bryant (4 Feb 12)
http://ufoview.posterous.com

Comment from Carrie McGuire
Time February 6, 2012 at 12:35 pm

Mr. Bryant is correct: under the statute, 5 U.S.C. 552 (h)(1) – (3), we at OGIS do not have enforcement power nor can we compel an agency to release documents.

Comment from David McMillen
Time February 7, 2012 at 10:01 am

Great post Candace! Communication failures are often the source of hard feelings and hardened positions. As you wisely point out, that often leads to litigation.

Comment from Kel McClanahan
Time February 8, 2012 at 11:08 pm

I don’t think OGIS will ever get enforcement power, but for a while now I’ve proposed a middle ground that I think would be almost as good. Give OGIS the ability to make “findings” if a person complains about a FOIA determination, and tell courts to give deference to those findings. Agencies can still overcome it, but if OGIS says “We find that this withholding is improper under FOIA,” judges should give that expert opinion some weight.