Last week our mediation team facilitator, Christa Lemelin, gave a five minute lightning talk at the Department of Commerce Sunshine Week celebration about common mistakes agencies make that could increase the likelihood of a FOIA requester filing a lawsuit against the agency. Here is a brief summary of the three mistakes she shared with the audience, and tips for how to avoid them:
- Provide Estimated Dates of Completion. We regularly hear from requesters that the agency’s FOIA process feels like a black box: they see their request go in and they understand that there might be delays in the agency’s response, but the lack of any insight into when they can expect a response is frustrating. Requesters have also told us that they will sometimes file a FOIA lawsuit against the agency because they have no idea about when the agency might respond to the request.
To address requester frustration, the OPEN Government Act of 2007 required that agencies provide requesters with estimated dates of completion upon request. However, we still hear from requesters who have been unable to obtain this information, and we hear from agencies about how difficult it is to provide an estimated date of completion when, for example, there might be delays outside of the FOIA office’s control or the agency does not know how many pages might be responsive to the request.
If you are an agency that has been asked for an estimated date of completion, we have a few suggestions for how to proceed. First, remember that an estimated date of completion is just that — an estimate. Be sure to let the requester know that the date is only your best guess and not a deadline. The Department of Justice (DOJ) has issued some very helpful guidance on how to determine what to provide the requester. Second, we have heard from agencies that providing an estimated date of completion can be an ideal opportunity to negotiate the scope of a very broad request.
- Proactively Disclose Records. Posting regularly requested records on your website alleviates the need for requesters to file certain FOIA requests – and can help requesters file more targeted requests. Posting frequently requested records in your FOIA Reading Room is also required by law — the 2016 amendments to the FOIA codify DOJ’s guidance that a record requested three times be posted online and require that agencies identify records that are of general interest or use to the public and that are appropriate for public disclosure.
Proactive disclosure has been a top issue on the radar of the FOIA Advisory Committee. During its most recent term (2016-2018), the Committee unanimously approved several recommendations that help agencies determine types of records to proactively disclose, and make specific suggestions for general categories of records that should be posted in FOIA Reading Rooms. Learn more about the Committee’s recommendations on the Committee’s Meetings webage.
- Clearly Communicate with Requesters. Through our dispute resolution program and in our agency FOIA compliance assessments, we have continued to observe that good communication helps ensure a smooth FOIA process—and helps to prevent disputes that may otherwise lead to litigation.
The 2016 amendments to the FOIA add some requirements for how agencies must communicate with requesters at several points in the process, including in cases of unusual circumstances and in determination letters. While it has been great to see that agencies have responded to this requirement by including information about dispute resolution services offered by the FPL and OGIS, we have seen a lot of confusion arise from letters that do not provide clear directions about which step the requester should take when. We encourage agencies to use the model language suggested by OIP and OGIS. Further, initial determination letters should clearly explain why a request is denied and provide context where it is appropriate. For instance, if a search returned no records, explain where the agency searched and the terms it used. Such explanations may head off an appeal or the need to provide dispute resolution to the requester.
We hope you find these tips helpful, and we look forward to continuing to work with agencies and requesters to make the FOIA process more effective and transparent.