DOJ releases FOIA guidance ahead of new provisions

The Justice Department released new Freedom of Information Act guidance Tuesday for agencies, interpreting changes to the law due to take effect at the end of the year.

The most crucial of the provisions requires agencies to process FOIA requests within 20 working days or lose the ability to charge the requester for search and copying costs.

According to the new guidance, agencies can pause the 20 working days only once to ask the requester to clarify their request and, when necessary, to settle any questions about the fees the requester is willing to pay.

Agencies are further relieved from the 20-day requirement only in cases of “unusual” or “exceptional circumstances.”

The guidance said unusual circumstances occur if the requested records are located in more than one field office of the agency and have to be collected together; if the request requires the agency to look at a “voluminous amount of records;” or if the agency has to consult with other federal agencies that have an interest in the records.

But disruptions in the 20-day window are more likely to arise from “exceptional circumstances.” Under the FOIA revisions, agencies can’t place in that category "a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." In those cases where "reasonable progress" is being made, the agency does not have to comply with the 20-day requirement and can still charge the requester fees.

Finally, all agencies must use a tracking number system starting Dec. 31 for all FOIA requests  that cannot be processed within 10 days. Requesters must have access to their tracking number and be able to call the agency or check online the status of their request.

The Justice Department said that means agencies must be able to predict a date when the request will be fulfilled.