FOIA Facts: New FOIA Provisions Take EffectBy Scott A. Hodes, Published on January 12, 2009
As the year from its passage has elapsed, all sections of the FOIA amendments of 2007 are official FOIA law. Two of the sections did not go into effect until this year. This article discusses these two sections (Section 6 and 7) of the OPEN Government Act of 2007 and the problems that will be encountered by requesters in trying to use these sections to their advantage.
Section 6 has two provisions that sets time limits for agencies to act on FOIA requests and for the first time adds consequences on agencies for failing to meet the time limits. Section 6(a) amends 5 U.S.C. § 552(a)(6)(A) and states initially that the statutory time period for when a request is properly made begins “on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests.” This provision basically means that if the wrong FOIA office of an agency, that office has ten working days to get the request to the correct office; in other words, they can’t file it in a circular file and forget about it.
Section 6(a) also allows agencies to “toll” the statutory time period. This may be done where the government “may make one request to the requester for information and toll” the time period “while it is awaiting such information that it has reasonably requested from the requester.” Agencies may also toll the time period “if necessary to clarify with the requester issues regarding fee assessment.” Fee assessment issues may toll the time period an unlimited amount of times, however the time period is only twenty working days to begin with, so there is a finite number of times this tolling provision can be invoked. The tolling periods ends when the requester responds to the agency’s request for information.
Section 6(b) is probably the most important provision to take effect in 2008. This section adds a clause to 5 U.S.C. § 552(a)(4)(A) that states that “[a]n agency shall not assess search fees (or in the case of a [favored] requester [one that qualifies as an educational or noncommercial scientific institution, or as a representative of the news media] duplication fees) . . . if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of (6)(B) and (C), respectively) apply to the processing of the request.”
Unusual circumstances have been previously defined in the FOIA as occurring in the following situations:
- When there is a need to search or collect records from field offices, or other establishments;
- When there is a need to search for and examine a voluminous amount of records; or
- When there is a need for consultation with another agency or with two or more components of the same agency.
Of course agencies will likely now argue that unusual circumstances occur in usual situations and, I believe, some litigation will come out of this provision. Especially where the fees that would be forfeited for agency delay is high.
Exceptional circumstances is not specifically defined in the FOIA. However, years of litigation has established a body of work concerning exceptional circumstances where agencies with large backlogs have sought delays to process material above and beyond the statutorily allowed time. Again, I believe that this provision invites additional litigation where the cost of the fees is less than the cost of litigation as bringing a lawsuit may end up being cheaper than paying the government fees.
Additionally, I do not believe that many government agencies will voluntarily waive large fees; instead they will deem the situation to be unusual or exceptional most of the time.
Finally, Section 7 requires agencies to assign tracking numbers to FOIA requests and then either establish a phone number or Internet site for requesters to check the status of their requests. Unfortunately, what will happen is that most agencies will just give a phone number that goes to a message that may or may not be returned depending on the whim of the agency. On this issue, I speak from experience as only some of the agencies that provide phone numbers actually provide live bodies to answer the phone or return calls. As Congress didn’t specifically say the calls had to be returned, agencies have taken this to mean it is within their discretion to timely return these calls.
While I applaud Congresses efforts to speed up responses to FOIA requests as well as attempting to make agencies more responsive to requesters, these provisions will ultimately fall flat as agencies will seek to use the loopholes in the wording of the law to their advantage. I see a number of these new issues being brought before district courts in the future.