We receive a number of requests for assistance from FOIA requesters seeking an estimated completion date for their delayed FOIA requests. When we contact agencies for the estimated completion date, we sometimes get some pretty strong pushback. That’s understandable, since nobody wants to go on record making a promise when lots of variables beyond his/her control could slow the process. But not only is providing an estimated completion date good customer service, since 2007, it’s also the law.
So what’s a FOIA professional faced with devising an estimated completion date to do? There are a few approaches one might take to identifying a date:
- Learn from the past: take a look at your agency’s annual FOIA reports from the past few years to see response time periods for previous requests (FOIA.gov makes it easy to see a few years at a time).
- Consider the category: Does your agency group requests into different queues? Considering the normal processing time of each category—simple versus complex, for example—may get you closer to a reasonable range for the request in question.
- Average it out: Consider the average amount of time it’s taken your agency to respond to requests in the same category.
- Get (a little) lost in the details: Spend a little time getting to know the request. Is it similar to any recent requests your agency has processed?
The most important thing to remember when you are estimating a completion date is the fact that it is an estimate. While you want some basis in fact for your estimate, it should not be confused with a deadline.
Sometimes, despite your best effort to estimate a completion date based in fact, that date will come and go with your agency still working away on the FOIA request. What now? The most important thing to do is to reach out to your customer with a new estimated completion date. It is possible that this will be a difficult conversation, so have your good communication skills ready. Be sure to talk to the FOIA processer about how it is going, because any new information you can gather about the request may help you even better refine an estimated completion date. Let us know your ideas for estimating a completion date.
From the requesters. standpoint, the one thing an agency should NOT do is have a policy where “the estimated date of completion is (insert fixed period of time) from the date of the request. While requesters will understand that you necessarily have to look back to similar requests, as you describe, requests for a topic where there are a limited number of records are not the same as requests that are likely to yield thousands of pages in several different offices. Giving such an answer is often just going to annoy the requester, since he will feel that you answered his question without actually even looking at his request.
Plus, it’s just a bad idea. If your only policy is that estimated dates of completion are equal to 2 years from the date of submission, what do you tell the requester when he calls about a request more than 2 years old? You may laugh, but at least one agency has done this to me. I asked for an estimated date for a 6-month old request, and was told “It’s 3 years from the date of submission.” So I called back and asked for an estimated date of completion for a 4-year-old request. “We are sorry that we cannot provide you with an estimated date of completion.”. That agency just broke the law and could be sued (and in fact has been). The moral of the story is, if you want the requester to leave you alone to do your work, put a little thought into your answer.
I have to second Mr. McClanahan’s comments and would only supplement it by adding that communication is essential. Most requesters will cut the agencies some slack so long as they feel they are in the loop and being provided with at least some reasonable amount of information regarding why there are production delays. If an agency simply wants to ensure that it gets sued though the easiest way for that to happen is for it to ignore basic requests for updates or to respond with boilerplate letters saying something akin to “sorry, we are working on it, we’ll get to it, but we can’t tell you when it will be done, so go away.” An e-mail takes 5 seconds, a phone call 20 seconds. That’s all most requesters are asking for on these requests.