Federal Open Government Guide

Seth Rosenfeld, an investigative and legal affairs reporter for the San Francisco Chronicle, poses at his desk in 2005. Rosenfeld holds the dubious record of having the “longest pending FOIA request,” according to the National Security Archive, a nonprofit research center focused on declassified documents. He filed his request — seeking information on the FBI’s 1960s-era investigation, infiltration and surveillance of student political groups in the San Francisco Bay area — in November 1981 with the Justice Department and still has not received the records he was seeking.

AP Photo by Jeff Chiu

Response times

The law requires that agencies grant or deny your request within 20 working days unless an “unusual circumstance” of a sort specifically described in the statute occurs.

Time and again, requesters find that their greatest obstacle to successfully using FOIA is delays in processing requests. Although the statute has always required agencies to respond to FOIA requests by granting or denying them (not just acknowledging them) within a short time frame, few agencies have consistently adhered to the time limits.

For journalists, the nearly routine failure of agencies to provide timely access to records has triggered the need to go outside the Act and get information from sources who may have seen the records in question.

The Electronic FOIA Amendments of 1996 addressed delays in three specific ways:

• They established expedited processing for some requesters in special circumstances.

• They provided for multi-track processing, allowing agencies to divide simple and more complex requests into different “tracks” and to process each set in order.

• They changed the standards under which delay could be considered acceptable.

The law permits courts to allow agencies additional time for response in “exceptional circumstances” provided the agency is exercising “due diligence” in getting responses out to requesters. The new amendments do not allow agencies to count routine delays as “exceptional circumstances.”

More generally, after the 1996 amendments, members of Congress expressed a hope that heightened day-to-day accessibility to the public of more government databases would diminish the need for FOIA requests. Unfortunately, for the most part, database accessibility has not reached the levels hoped for. But under the 2007 amendments, agencies that do not respond to requests within the statutory time period are now precluded from charging search fees (or copying fees for requesters such as the news media, who are not subject to search fees).

Expedited processing and
fast-tracking your request

In some circumstances, defined either by the statute or by agency regulations, you are entitled to expedited processing of your FOIA request.

If you ask for expedited processing, an agency must grant or deny you faster processing within 10 calendar days. If the agency grants you expedited processing, it will take your request out of order and process it before other requests.

To support your request you should describe the circumstances that you feel make it eligible for expedited processing. You should also “certify” to the agency that the reasons you give for seeking expedited processing are true with a declaration such as, “I certify that my statements concerning the need for expedited processing are true and correct to the best of my knowledge and belief.” The statute allows agencies to require certification, although as a practical matter many agencies have agreed in their FOIA regulations to waive this requirement.

An agency will honor a request for expedited processing if you have a life-threatening need for the information or if delayed disclosure could threaten the physical safety of any individual. It will also grant a request for expedited processing if you are a reporter or a person who is otherwise “primarily engaged in disseminating information” and your request concerns a matter of “compelling need.”

Of more importance to reporters, the Justice Department also provides for expedited processing if your request concerns a matter of “widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” Requests to the Justice Department for expedited processing under this last standard should be directed not to the FOIA officer but to the department’s Office of Public Affairs.¹⁶

The law allows agencies to separate requests into different queues depending upon how much work or time it will take to fulfill the request. It also allows agencies to give requesters an opportunity to narrow their requests to fit the fastest track.

Simply splitting up your request into smaller segments is probably not sufficient to gain a spot on the faster tracks. The law allows agencies to “aggregate” requests that are clearly related and treat them as a single, larger request.

If an agency offers to negotiate, you should work with it to narrow your request. Ultimately if you sue the agency over its delays, a court will consider your efforts to cooperate or to negotiate in determining whether the agency is acting “reasonably” to exercise diligence in fulfilling your request.

You can learn which “track” your request is placed on and when it is anticipated to be filled once the agency provides you with a tracking number. You can check online or over the phone to see when your request was received and where it falls in the queue.

Personally inspecting records

If you think the time or expense involved in having documents copied by the agency would unduly delay your story or be too expensive, many agencies will permit you to visit their offices and inspect documents in person. Some agencies may let you do a modest amount of copying without charge. The FOIA Service Center at the agency may assist you.

Appealing an initial denial

If your request is wholly or partially denied, you have the right to appeal to the head of the agency in what is called an administrative appeal. You may also appeal the delay of a response, the failure of the agency to conduct an adequate search, a prohibitively high fee levy, or other matters that could effectively interfere with your ability to receive records.

Even if your request is only partially denied, you may want to take the documents you are offered and appeal the rest. You also have the right to appeal if your request was granted but you think the fees you were charged are too high. A FOIA appeal can be filed by a simple letter. See the Sample FOIA Appeal Letter.

If 20 business days have elapsed since the date your request should have been received, and you still have not received a reply from the agency, you also have the right to appeal. (An additional 10 days may be available to the agency in “unusual circumstances,” which are defined as cases involving voluminous requests or requests requiring a search of field files or consultation between components of an agency. The agency must notify you in advance of the expected delay if such circumstances exist.)

Certain agencies regularly fail to meet the Act’s time requirements. For example, the FBI and the Department of Homeland Security have an average processing rate of one year, although many requests have lingered for several years at both agencies and others. Other agencies where long delays may be anticipated include the State Department, the Justice Department and the CIA.

Because of the size of the backlogs, courts have been reluctant to strictly enforce the Act’s time limits so long as agencies are processing requests in a reasonable manner.¹⁷ Unless you believe that is not the case, it may be best to wait for the agency to complete the processing of your request — especially because of the 2007 provision precluding the agencies from charging fees in these cases. However, it is wise to keep in touch with the agency while your request is pending so the agency will not think you have lost interest in the documents. You can also track your request on your own, either online or over the phone, by using the tracking number the agency is required to provide you. Agencies must log the date on which they received the request and the estimated date they will complete action on the request, and link that to the tracking number.

Before making a formal appeal, it is often helpful to call the agency’s FOIA officer to try to negotiate for release of at least some of the documents that were denied. By agreeing to narrow the scope of your request or permitting some information the agency considers particularly sensitive to be redacted, you may be able to persuade the FOIA officer to give you most of the documents you originally wanted.

If your negotiations are unsuccessful, however, you should generally make a formal appeal. Appeals are made to the head of the agency involved (for example, the attorney general or the secretary of defense). If possible, file your appeal within 30 days after the denial, even though agencies generally permit a longer time to appeal. In some cases, appeals are reviewed by agency personnel better trained in FOIA matters than the employee who initially denied your request. Regardless, making a written appeal imposes a legal duty on the agency to re-evaluate your request and establishes your right to bring a FOIA lawsuit if your appeal is denied.

Your appeal can be made in a brief letter to the agency administrator asking that he or she review your previous request and denial, and stating your belief that the denial was improper. Attach copies of any correspondence. If the agency cited one or more exemptions as the reason for denying your request, consider arguing in your appeal that the requested documents do not fall within those exemption categories and, even if they do, that the public would benefit from release of the information. You may also want to state your intent to take your case to court if the denial is upheld.

You may also make appeals relating to the agency’s handling of your request. For instance, you can appeal the failure to grant fee benefits or waivers, or the denial of a request for expedited processing. If you feel that the agency has not adequately searched for the records you request, you may appeal.

Again, keep a photocopy of your appeal letter, mark the outside of the envelope “FOIA Appeal,” and consider sending the appeal letter by registered mail, return receipt requested.

You may also want to include some legal or practical arguments in your appeal letter. For assistance in framing these arguments, journalists can contact the Reporters Committee’s FOIA attorneys for cost-free help, or consult a private attorney. Generally, however, an appeal letter will be sufficient if it contains the elements included in the Sample FOIA Appeal Letter.

How to file a FOIA lawsuit

If your appeal is denied, or if the agency fails to respond to your appeal within 20 working days, you may file a FOIA lawsuit in the United States District Court most convenient to you, nearest the agency office where the records are kept or in the District of Columbia. Though technically you have up to six years after the date on which your appeal was denied to file a lawsuit, you should try to file the suit as soon as possible in order to demonstrate to the court your need for the information.¹⁸

The Federal Courts Improvement Act removed the automatic expedited judicial review provisions from a number of statutes, including FOIA. However, under that law expedited processing will still be given by a court whenever “good cause” can be shown. The statute does acknowledge that in FOIA cases the need for timely release of information will qualify under the “good cause” standard.¹⁹

Although there are immediate financial costs for filing any complaint in federal district court, filing a FOIA complaint should be relatively inexpensive and simple. Sometimes, as soon as a complaint is filed, the government will capitulate and release documents without further litigation. Federal courts allow non-lawyers to file complaints against the government without the assistance of an attorney. If your case is a routine denial of documents that you think are clearly covered by FOIA, you may wish to draft and file your own “short-form” complaint using the Sample FOIA Complaint.

Also consider filing a “Motion for Vaughn Index” using the Sample Vaughn Motion on page 34. This is a formal request asking the court to order the government to give you an index describing the documents it is withholding and the justification it claims for withholding each piece of information.20

However, while a Vaughn index is extremely useful in establishing your case, it may not be granted immediately by the court if you ask for it along with your complaint. You must often wait until the government has answered your complaint before the court will consider your motion for a Vaughn index.

If your case appears to be complex or to involve special problems, you might want to obtain the services of a private attorney. Journalists can contact the Reporters Committee to help you decide if an attorney would be helpful.

After you file your complaint, the burden is on the government to come forward and justify the withholding of the information. Courts often demand that the government show precise and detailed reasons why it refuses to release the information. When the government replies, you will obtain a fairly good indication of how strong or weak its case is and how much it will cost to continue the lawsuit.

FOIA provides for the payment of your attorneys fees and court costs if you have “substantially prevailed” in your lawsuit. Prior to the 2007 amendments this required a court order declaring release of the information. Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — you are considered to have “substantially prevailed” and may recover fees.

Some courts will not award you attorney’s fees if you have argued your case yourself.

16 Director of Public Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530

17 Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).

18 28 U.S.C. § 2401(a). The general statute of limitations for civil suits against the federal government is six years.

19 28 U.S.C. § 1657.

20 Vaughn v. Rosen (II), 523 F.2d 1136 (D.C. Cir. 1975).