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Deadlines and Extensions

Despite the realities of processing delays and backlogs, federal agencies usually have 20 working days to respond to your FOIA request. However, the FOIA allows agencies to toll this deadline (that is, stop the clock) in two situations: (1) the agency is allowed to make one reasonable “request to the requester for information” related to the request and toll while waiting for your response; and (2) the agency may toll the response deadline “to clarify with the requester issues regarding fee assessment.”2 Once any issues between you and the agency are cleared up, the clock begins running again.

Moreover, in “unusual circumstances” an agency may automatically grant itself additional time up to 10 working days to comply with a request.3 “Unusual circumstances” are defined as: (1) “the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;” (2) “the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;” and (3) “the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.”4
 
Agencies must notify you when they claim “unusual circumstances” exist that require an extension and provide you with an opportunity to narrow the request or agree to an alternative response deadline.5 The agency FOIA Public Liaison Officer is required to help resolve any disputes over narrowing requests and whether “unusual circumstances” actually exist.6   

You are certainly not required to narrow your request or to agree to accept the records on an alternative deadline. Before doing so, you should assess whether the agency is making a reasonable, good-faith argument for seeking an extension and whether you are willing to negotiate any of your request or rights away to speed the process along.

Should you ultimately file a lawsuit claiming excessive delay, refusing to act reasonably in such negotiation processes will be a factor a court considers in determining whether an agency is acting in good faith to comply with your request given its nature and scope.7 Note that if an agency responds to your request after the 20-day deadline but before you actually file suit, a court will likely find that you have not exhausted your administrative remedies and will require you to go through the full administrative appeals process.8

In any event, if you elect to amend your request or agree to an extended response deadline, you should always follow up with the agency in writing, laying out the entire agreement.   

2 Id. at § 552(a)(6)(A).

3 Id. at § 552(a)(6)(B)(i).

4 Id. at § 552(a)(6)(B)(iii).

5 See id. at § 552(a)(6)(B)(ii).

6 See id.

7 See id. at § 552(a)(6)(C)(iii).

8 See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003).