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FOIA Facts: Why the Wait?

By Scott A. Hodes, Published on February 20, 2010

Requesters who have read the FOIA statute itself, but are new to using it, often come to me and complain that they have filed a request within the last month but haven't received their documents yet. What can be done they ask?

Unfortunately, not much is the answer.

So why did Congress create a law with time limits that are rarely ever met? That is FOIAs $64,000 question. One to which there is really no answer. In the beginning, agencies had ten days to respond to FOIA requests. In 1996, it was extended to 20 business days.

I believe part of the problem was that at the outset, no one thought that the FOIA would be as popular as it has been. Further, agencies with large amounts of requests have historically not fully funded FOIA programs to the levels needed to cope with the flow of incoming requests. For reasons that no one has ever acceptably explained to me, the congressional budgeting process does not specifically provide FOIA operations within an agency a set line item amount. Thus, FOIA Offices usually have to beg, borrow and steal resources from within their own agencies and they also get their resources taken away from them by other programs deemed "sexy" by those in power.

Another reason for some of the delays is that agency FOIA Offices often do not have access to the documents being requested. Many agencies have central FOIA Offices that act as a way station for FOIA requests. The individual program offices are the offices actually responsible for the search and retrieval of the responsive documents. Thus, it is quite easy for a program office to delay and thereby block access to responsive documents. This document retrieval scheme, I believe, is one of the biggest reasons for FOIA lawsuits I've brought them myself when this has happened. Only when filing suit against such an agency can you get a third party, such as the attorney responsible for defending the government and the court, to attempt to move things along. This, however, is a costly way to get the railroads running on time and most requestors do not have the resources to do this.

I have described only some of the reasons why it takes longer than allowed pursuant to the FOIA statute to process a FOIA request. I believe that some agencies are working to improve these issues, but sadly others are not1. Hopefully, at the very least, the low hanging fruit that can be pulled to fix some of these issues will be addressed by the government in the near future.