FOIA Facts: Four Really Bad Habits

I’m cranky so I’m going all out in this month’s rant. I’m amazed at some of the things agencies do in response to FOIA requests. I’ve been making a list and have four things that agencies do that make me crazy. Here they are:

1. The failure to send acknowledgement letters to FOIA requests.

As agencies rely on requests coming in electronically or via faxes, it’s pretty difficult for requesters to know that their requests have made it to the correct place. The only way a requester can know for sure is by receiving an acknowledgement letter. Many agencies fail to send this important piece of correspondence. I know of one agency that relies on the individual who is assigned the processing to send the acknowledgement. Of course, if the individual assigned the case is way behind in processing requests (or, even worse, pulled off his/her processing duties for some other task) the acknowledgement letter never gets sent. Thus, the requester has to track down where his/her request is and waste everyone’s valuable time. Agencies should have a low level clerk assigned to send out acknowledgment letters as FOIA files are opened.

2. The failure to check if email/fax/street addresses are correct.

The agency tells me that its response was sent months ago. I’ve never received it. When I do receive it, I notice that my street address was written incorrect or the email address is wrong. This frequent mistake would be corrected by agencies setting up protocols for releases and making sure that the intended recipient is going to get his/her release.

3. The failure of FOIA Offices to get requested documents from Program offices in a timely manner.

I’m often told that the reason my request hasn’t been processed is that the FOIA office is still waiting on the documents. As a requester, I can’t make the Program office act quickly (unless I go to the costly avenue of a lawsuit). Agencies must set up procedures that make sure that the Program offices get the FOIA offices documents on a timely manner. Penalties should be imposed when that doesn’t happen. Nearly five percent of Americans are unemployed; if those in Program offices fail to get the documents to the FOIA office as required they should be fired and someone who can follow the law should be hired. If I sound harsh, I am. It’s your taxpayer money that is paying these salaries and the FOIA is the law. There is no excuse for failing to get documents to the FOIA employees who have to process the documents and respond to requesters. An even better solution is to make sure all documents are electronic and the FOIA Office can get access to them without any assistance from Program offices.

4. Not giving agency decision makers real authority to adjudicate appeals.

Agencies delegate an agency official with signatory authority on FOIA administrative appeals. However, many times, rather than deciding if the FOIA Office’s decision was legal, the FOIA Office must kowtow to non-FOIA factors and make decisions based on these factors. For instance, an agency head may know that the FOIA Office’s decisions are completely wrong under FOIA law, but because he/she likes his job and has to work with the FOIA Office will make decisions that are routinely overturned in Court (or even dropped when litigation actually commences). People who have the job of deciding administrative appeals must be given authority to make decisions and have them followed. If they aren’t followed, my advice on number 3 above is the same here (it’s a good thing I’m against capital punishment!) Fire these employees. Further, administrative appeal decision makers who are routinely ruled against in Court should find new employment.

Posted in: FOIA Facts, Freedom of Information, Government Resources, Legal Research