Expediting delay

Requests for faster processing of FOIA requests are often denied, and even when granted, do not necessarily result in quicker access to public information.

From the Summer 2006 issue of The News Media & The Law, page 24.

By Corinna Zarek

In the days immediately following Hurricanes Katrina and Rita, reporter Mark Schleifstein thought his Freedom of Information Act requests for information about environmental health and safety around New Orleans would surely rise to the top of the pile.

FOIA, after all, mandates that when a requester can show that health and safety are at issue, or that a matter is “urgent,” an agency must quickly respond to the request.

The Environmental Protection Agency did not see it that way.

As the one-year anniversary of Katrina approaches, Schleifstein has yet to get information he requested about water quality, chemical spills and other health and safety issues.

“It is largely a waste of time,” said Schleifstein, who covers the environment for The Times-Picayune in New Orleans, because agencies are not responding to requests. “Most of the requests that I made in August were aimed at providing information that was needed then when the city was flooded — when we had people who were either still in the city or were considering coming back to the city and were concerned about their health and well-being. In each instance, the requests were not responded to. The EPA declined to comment.

“The practical effect on reporting is that [FOIA] is not a tool that is proving useful in attempts to obtain data that would be useful and timely for reporters.”

‘A small miracle’

FOIA requires agencies to respond to requests within 20 working days. When a requester asks for expedited processing, if he or she can show a compelling need — usually that health and safety are at issue, that a matter concerning government is urgent and should be disseminated to the public, or that substantial due process rights may be lost — the agency must grant “expedited” review. While each agency has slightly different standards for expedited review — and some allow it more often than others — agencies are required, within 10 days, to tell requesters whether they have been granted expedited review. Agencies must then process granted requests “as soon as practicable.”

But with a minority of requests for expedited processing being granted, “as soon as practicable” often does not come into play. Forty-one percent of requests for expedited processing in 22 departments and agencies were granted in 2005, according to a recent study by the Coalition of Journalists for Open Government (CJOG), of which The Reporters Committee for Freedom of the Press is a member. CJOG Coordinator Pete Weitzel said it takes “a small miracle” for a request to get expedited processing, but it is worth a try to get it.

“If they get it 41 percent of the time and it significantly increases the speed at which they get it, it would seem to be worthwhile,” he said. “And if it is denied, it might at least move a little more quickly.”

Of the agencies that granted the expedited processing, seven — including the Defense Department and the CIA — filled requests within the same day, for the most part. And several other agencies had median wait times under the 10-day mark.

However, some larger agencies including the Department of Justice showed expedited requests taking 185 days to fill. The Department of Health and Human Services had a 159-day expedited request, and the EPA had granted expedited status to a request it took 109 days to fill.

“Clearly there are local variations in the interpretation of the law, the implementation of the regulations and the efficiency; and clearly there are differences in attitude and the culture of the agencies as well, which are all reflected in what happens when you file a FOIA request,” Weitzel said. “If a reporter needs something with a reasonably quick turnaround time, then they are not going to go with FOIA, they are going to try to get it in some other way.”

What’s a reporter to do?

A denial of expedited processing burdens reporters to both continue contacting an agency for the information they are seeking, and to look for other ways to find that information.

After last year’s hurricanes, Schleifstein also requested response data from the Federal Emergency Management Agency and documents regarding New Orleans’s levees from the Army Corps of Engineers. Although FEMA has yet to provide him with the information, he said the Corps has done an “adequate job” of posting information to its Web site over time.

When reporters are assigned to cover other subjects — such as in Schleifstein’s case when he moved to covering New Orleans’s levees — it makes it difficult to track the progress of their requests.

“My ability to follow up slowed dramatically,” he said. “I have responded to letters they sent me and that is about it.”

Denials and delays also tend to discourage FOIA requests, said Schleifstein, who encouraged reporters to go find other sources to obtain the information they need.

“In most instances, I have attempted to move around the FOI process because it’s just not working,” he said. “Ultimately, a reporter is going to have to look elsewhere for the information, either through state agencies or through local individuals who may be also looking for the same information. It certainly does raise the question of whether it is designed to assure as much difficulty as possible in getting information.”

Success story

Case law is scant on expedited processing, but Mark Schlosberg of the American Civil Liberties Union in Northern California said the issue is coming before courts with increasing frequency. He recently represented the ACLU in a successful bid for expedited processing of a request.

“It’s an issue being litigated a lot more now because of all the growing concern about a lot of the civil liberties questions around various policies and practices this administration is engaging in,” he said.

The ACLU, along with the San Francisco Bay Guardian and two anti-war groups, requested information from the Department of Defense in January related to the department’s surveillance of anti-war demonstrations at two California universities. When expedited processing was denied, they sued under FOIA and Defense Department regulations arguing that they had a compelling need to publicly disseminate the information.

“We established the compelling need by saying the information was urgently needed to inform the public of government activity,” Schlosberg said. “We cited upwards of 70 news articles that talked about the program, as well as the interest of members of Congress and the fact that there is an ongoing debate about government surveillance. It all played into the determination by the court that there was a need for expedited processing in this case.”

U.S. District Judge William Alsup in San Francisco ruled in May that the group is entitled to expedited processing for the request, and Schlosberg said the Defense Department has since released some documents.

A 2004 case in which he sought expedited processing was not so successful, in part because the facts of the case were not as strong, Schlosberg said, adding that the two-year old request has yet to be filled.

“The record established in that case wasn’t as compelling or extensive a record as here, so I think this is a very good case because it shows that when you do establish a good record, you should be entitled to expedited processing,” he said.