Agencies want to know: Are you still interested?

Before we begin the time-consuming review process, we want to ensure that you are still interested in continuing the processing of this request. Please indicate your continued interest in pursuing these records within 7 days from the date of this letter, or we will assume you are no longer interested in this FOIA request, and the case will be administratively closed.

— A 2013 letter from the Federal Emergency Management Agency (FEMA)

Federal agencies want to know: “Are you still interested” in open government?

The Freedom of Information Act (FOIA), passed in 1966, brought the promise of an open government where anyone could request information from federal agencies. Nearly 50 years later, backlogs, miscommunications, and insufficient resources hinder the ability of the media to obtain important information from the government in order to inform the public. But now, there’s another factor that requesters need to contend with: agencies seeking to close FOIA through a controversial tactic whose legality remains unclear.

They’re called “still interested” letters. These letters, sometimes mailed, sometimes emailed, are sent to FOIA requesters to ask whether they are “still interested” in having their request processed. They indicate that if a response is not received within a certain number of days, the request will be administratively closed.

“It was surprising to get the letter”, says Matt Drange, a reporter with the Center for Investigative Reporting, who received such a letter from the Department of Justice regarding a FOIA request that had been unanswered for nearly a year. Drange hadn’t heard anything in a while from Justice, despite making repeated inquiries about his request. Then, out of the blue, the letter arrived, demanding a response within ten days or else his request would be closed.

Although it is not exactly clear what happens when a FOIA request is closed in such a manner, presumably a new request would have to be filed in order to get the information that was originally sought. This would put the requester at the end of the agency’s processing queue, despite the fact that the requester may have been waiting for months, if not years, for a response from the agency.

Many “still interested” letters concern FOIA requests that have been pending for some time. An article in this magazine from 2012 noted that a request sent in 1993 by Monte Finkelstein, a professor at Tallahassee Community College, produced a “still interested” letter in April 2011. But other letters have targeted requests that are hardly old at all, at least in the FOIA world. Amy Bennett, Assistant Director at OpenTheGovernment.org, said that she received such a letter in regard to a request she had filed just three months earlier.

An increasingly common phenomenon

The purpose of “still interested” letters seems to be aimed at reducing the backlog of pending FOIA requests, which decreased during the first few years of President Obama’s administration but has recently increased in certain departments. Data from the Department of Homeland Security (DHS) reveals that its FOIA backlog nearly doubled in fiscal year 2013 to over 50,000 outstanding requests. As a whole, the federal government had more backlogged requests in 2013 than at any other time since 2008.

Use of “still interested” letters seems to be on the rise. Brad Heath, an investigative journalist at USA Today who makes frequent use of FOIA, says he doesn’t remember getting “still interested” letters seven or eight years ago, but now gets one every month or so. Bennett shares Heath’s experience: “It definitely seems to be something that agencies are embracing more,” she said.

The increased use of “still interested” letters in recent years may not be a coincidence. An Executive Order issued by President George Bush in 2005, parts of which were codified into law in 2007, requires agencies to find ways to increase efficiency in processing FOIA requests and to report how long such processing takes each year. While the changes were intended to help improve FOIA response times, journalists and open government advocates are increasingly worried that there may be unintended side effects.

“If you look at the timing of when these letters come out, it’s all driven around reducing backlog,” Bennett said. “It’s a sneaky way to make the agency’s numbers look better.” Several journalists and open government advocates contacted by the Reporters Committee noted that many “still interested” letters seem to arrive close to September 30, the end of the government’s fiscal year.

In fiscal year 2010, the U.S. Department of Health and Human Services (HHS) received nearly 64,000 FOIA requests, 46,586 of which were directed to the Centers for Medicare & Medicaid Services (CMS). That year’s FOIA report indicates that CMS administratively closed 11,652 FOIA requests “based on response and non response to continued interest calls and correspondence.” The report does not include data that indicate the number of FOIA requests closed due to a lack of response. But by administratively closing more than 11,000 FOIA requests, CMS and HHS were able to report that they had processed more requests in 2010 than they had received, and thus reduced their backlog. CMS did not respond to inquiries made by the Reporters Committee.

Timing and delivery

For FOIA requesters, “still interested” letters are not always easy to spot, and they can come at inopportune times. Drange had a near miss with his letter from Justice, which he received just after returning from a vacation. “I couldn’t help but think what if I had been out [of the office] when I got it,” he said.

That’s precisely what happened with a letter sent to Heath. Upon returning from vacation, Heath discovered that he had received a letter from a federal agency asking if he was still interested in the FOIA request he had filed with them. He had already missed the response window, so his request was administratively closed. “You’ve got to be kidding,” Heath recalled thinking upon reading the letter.

Even more worrying is the communication that isn’t received. A FOIA request sent to the General Services Administration (GSA) in April 2014 by Scott Amey, General Counsel at the Project on Government Oversight (POGO), was administratively closed in June. POGO only found out about the closure of its request in November after making a routine status call to the GSA. According to POGO, the GSA said that it sent a “still interested” email in June, requesting clarification of two minor points in their request within nine days or else it would be closed. However, POGO says it never received the email, or any other notification from the GSA that its request had been closed.

A GSA spokesperson did not respond to a request for comments by the Reporters Committee.

Uncertain legality

Part of the reason that questions about the procedures and legal effects of “still interested” letters are on the rise is that the legality of the practice remains unclear. There is no provision in the Freedom of Information Act that authorizes, or even contemplates, such a practice. Kirsten Mitchell, a Management and Program Analyst at the Office of Government Information Services (OGIS) who formerly worked at the Reporters Committee, said that “still interested” letters haven’t been addressed in any FOIA regulations she has reviewed.

In October 2014, a coalition of open government and transparency groups sent a letter to OGIS requesting an investigation into the practice and its impact on FOIA requesters. The letter noted that using “still interested” letters “runs the risk legitimate FOIA requests will be improperly closed because the requester fails to respond within an arbitrary time period the agency has imposed.”

The letter from the coalition included examples of “still interested” letters that had been sent from various components of DHS (among other departments), including the Transportation Security Administration (TSA), the Secret Service, and the Federal Emergency Management Agency (FEMA).

There is no provision in the DHS regulations implementing FOIA that allows for an administrative closure based on a lack of response to a “still interested” letter. A spokesperson for DHS referred questions on the use of “still interested” letters to the Justice Department, which did not respond to questions from the Reporters Committee.

A 2012 memorandum from Jonathan Cantor, Acting Chief FOIA Officer for DHS, directs its FOIA officers to adhere to guidance from the DOJ’s Office of Information Policy on “still interested” letters. The DOJ’s website states that “[w]hen done judiciously, [still interested letters or phone calls are] entirely appropriate because agency resources should not be expended on processing a request when the requester is no longer interested in the records.” The guidance also states that agencies should “afford requesters a reasonable amount of time to indicate their continued interest.”

“Still interested” letters reviewed by the Reporters Committee varied widely in the amount of time they afforded a requester to respond. Many agencies gave 10-15 days, but one letter sent by FEMA gave just seven days to respond – with no indication as to whether it was seven business or calendar days.

Mitchell stressed that the OIP guidance states that agencies need to give a “reasonable” amount of time for individuals to respond, but wasn’t yet ready to state how many days should be considered reasonable. She did note, however, that if such a letter is mailed to a requester, not giving enough time to respond could be problematic. “When you think about it,” she says “first it has to get out of the agency, then it has to get through the U.S. Mail, then if the requester is mailing [a response] it has to get back to the agency, and then back to the correct component of the agency.”

It’s no secret that federal FOIA offices have limited resources, and FOIA requesters understand why agencies might resort to “still interested” letters in an effort to reduce their backlog. Bennett says that “no one in the FOIA world wants agencies wasting resources going through records that no one wants any more, but to close a request in this way is not the right way to go about it.”

Heath agrees: “It makes a certain amount of sense”, he says, but the “meet our deadline or else” tactic, especially after the agency has failed to comply with its statutory and regulatory deadlines, isn’t fair.

One suggestion that was fairly common among the journalists and open government advocates interviewed is to reverse the default result that follows from a lack of a response to an agency letter. Under this proposed practice, a FOIA request would only be administratively closed if the requester affirmatively responds that they are no longer interested in their request, instead of the agency closing it if no response is received.

Tips for journalists

According to Mitchell, OGIS is going to be looking into the use of “still interested” letters by agencies. She noted that in addition to the examples provided in the October letter from open government advocates, other individuals have independently contacted the oversight office to complain about the practice.

Until something changes with regard to these letters, there are some practical steps that journalists can take to avoid running afoul of agency-imposed deadlines. Drange says that he keeps a spreadsheet of all his FOIA requests that contains important information, such as the date it was sent, the date a determination is due, FOIA officer contact information, and more. He says journalists have to be persistent in following up with the government and always on the lookout for correspondence. (Journalists using the Reporters Committee's free iFOIA service can also track their requests through that system.)

Even if a request is closed, it might be possible to have the request reopened. Heath noted one instance in which he had some limited success getting an agency to reopen a request that was administratively closed (only to have it frustrated in other ways). He also says that when he responds to a “still interested” letter he always includes a paragraph admonishing the agencies for the practice in the hope that someone will listen.

Mitchell says that two-way communication between agencies and requesters is key when it comes to all FOIA requests. “It’s really about keeping the lines open.”