A Reminder on the Use of Still Interested Letters

As the end of Fiscal Year (FY) 2017 approaches, we understand that agencies face increased pressure to close old requests and reduce their backlogs. This is also a good time to remind agencies about how to ensure their efforts comply with U.S. Department of Justice (DOJ) guidance and best practices.

As we have talked about several times on this blog, the use of “still interested” letters to administratively close FOIA requests is often a sore point for requesters – particularly when the agency’s response to the request has been significantly delayed and the agency provides the requester with very little time to respond. On July 2, 2015, the Office of Information Policy (OIP) at DOJ issued guidance aimed at limiting the use of “still interested” letters, and addressing some of requesters’ frustrations with the practices.

Significantly, in its guidance OIP encouraged agencies to:

• provide requesters with no fewer than 30 working days to respond (emphasis in original);
• limit the use of “still-interested” inquiries to situations where the agency has a reasonable basis to conclude that the requester’s interest in the records may have changed; and
• absent good cause, do not send a requester more than one “still interested” letter regarding a request.

After OIP issued the guidance, we undertook a fairly comprehensive review of the historical use of these letters and current agency practices. Based on our findings and observations, we made several recommendations, some of which are intended to help ensure that these letters are not abused. In particular, we have recommended that any FOIA program that uses “still interested” letters incorporate OIP’s guidance on the proper use of any “still interested” correspondence in any existing or future Standard Operating Procedures. We also recommend that the agency ensures that the FOIA program managers are aware of how FOIA processors are using “still interested” letters; one way to accomplish this is to require that any “still interested” correspondence is signed by the FOIA Officer.

OGIS continues to monitor the use of “still interested” letters, and reaches out to agency officials to bring potential problems to their attention. You can find some of our most recent letters to agencies about the use of these letters on our website. If you have received a “still interested” letter from an agency that does not seem to be compliance with OIP’s guidance, please email us a copy of that letter to ogis@nara.gov, along with a brief explanation of the circumstances surrounding the letter (i.e., the nature of your original request, how much time has passed from the filing of your original request to the time  you received a “still interested letter,” and whether you were ever contacted by telephone or email directly by the agency); or tweet to us about it at @FOIA_Ombuds.