Shutdown Didn’t Stop FOIA Clock

FOIA request processing came to a screeching halt during the 16-day government shutdown as the vast majority of FOIA professionals were furloughed as “non-excepted” employees. We don’t like the term “non-essential” since we consider FOIA essential, as Sen. Patrick Leahy noted October 5 on the Senate floor.

“We … take for granted that our open and transparent government is a cornerstone of our democracy and a shining example of civic involvement,’ he said. “Even the public’s right to know is compromised because of this shutdown.” 

(Sen. Leahy also noted that OGIS, “a critical office established by the Leahy-Cornyn OPEN Government Act to mediate FOIA disputes” was shuttered.)

Now that everyone is scrambling to catch up, what does the shutdown mean for FOIA processing?

It’s important to note that the FOIA statute itself does not address days when the federal government is closed for government shutdowns, furlough days, snowstorms (remember the 2010 Snowmaggedon?), or other unusual events. Specifically, the law states that agencies have “20 days (excepting Saturdays, Sundays, and legal public holidays)” to respond to FOIA requests and appeals, 5 U.S.C. § 552(a)(6)(A)(i) & (ii).

The Department of Justice, in its Handbook for Agency Annual Freedom of Information Act Reports, says that “even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances outside of these specified in the statute, the agency must count those days for reporting purposes.”

So what’s a FOIA professional to do?

We at OGIS have found the vast majority of requesters to be reasonable and understanding when informed about delays in processing, particularly when the delay is outside of the control of the FOIA office. Don’t be shy about picking up the phone or sending quick notes to let requesters know about the delay and to provide them new estimated dates of completion.

How are FOIA offices coping post-shutdown? Let us know.