It may often be helpful to establish contact with those responsible for complying with the records request at some point during the initial 10-day period or any extension thereof, by telephone or in person, to check on the status of the request and to see whether there is anything you can do to prevent unnecessary delays.
Negotiation is advisable prior to filing a lawsuit, especially in light of the very short response period. A telephone inquiry after the deadline has passed as to the status of the request would not be inappropriate. The FOIA itself is silent on the matter. Whether such an inquiry is advisable will turn largely on the agency involved and the requester’s experience with the agency.
It is always a good idea to follow up a written or oral request with a telephone call to ask about the status of the agency's response to the request. This can be an opportunity to provide, on an informal basis, statutory or case law support for your request, if necessary.
Although a telephone inquiry as to status of a records request is both permitted and desirable, citing the mandatory attorneys’ fees provisions of Fla. Stat. section 119.12 (2017) is often the most effective method of encouraging a prompt response to a request.
An informal telephone call to resolve any problems or differences should always be considered before initiating a request for review with the Public Access Counselor or before filing suit. Follow-up letters can also encourage a response.
There is nothing stopping the requestor from informally inquiring as to the status of the request, but the agency is merely required to produce the documents or allow the requestor to make copies within a reasonable time, so the inquiry may not yield any results. Ind. Code § 5-14-3-3(b).
Note that telephone inquiries are treated as the equivalent of an in-person request. See Ind. Code § 5-14-3-9(b).
The time limit for an agency's response does not depend on the method by which the request was made, i.e. in writing, by telephone, or in person. Cf. Ky. Rev. Stat. 61.880(1). However, written requests are generally required in order to enforce the Open Records Act. See Ky. Rev. Stat. 61.872(2); 61.880(2).
The Act does not address informal telephone inquiries. In general, public agencies typically will respond to informal telephone inquiries about the status of a request. A best practice is to make a record of such inquiries for use if needed later. Informal inquiries may be made by e-mail.
Not prohibited. To the contrary, a polite follow-up inquiry to ensure that the request was received and is understood is a good idea as a matter of practice. This is particularly so if you are seeking a response before lapse of the 10-day response period. With state budget dollars limited, it is often the case that “the squeaky wheel gets the grease.”
Usually the only way to spur action on a request is to follow-up by telephone within a day or two after the request is received. Be persistent and continue up the chain of command within the agency until you get a decision.
While there is nothing to preclude telephone inquiries as to the status of a request, a requester should not rely upon a telephone conversation in order to claim appeal from an agency denial. See Madonna v. Lankler, N.Y.L.J., Oct. 2, 1981 (Sup. Ct., New York Cty., 1981) (petition denied for failure to exhaust administrative remedies where petitioner attempted to rely upon phone conversation with appeals officer to establish that an appeal was taken).
The statute does not address making inquiries, or even requests, by telephone. In practice, telephone inquiries are a good idea. See State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (considering voice mail messages left by requester in evaluation of government's response). Even requests by telephone will work with some public offices.
Unless the agency has clearly indicated its intention to refuse the request, however, one option is for the requester to make an informal telephone inquiry regarding the status of the request is advisable if the response is not received within the time limit. More importantly, if there is any chance that the requester may choose to seek judicial review if the agency fails to respond to her FOIA request, contacts with the custodian of records should be made in writing. The written follow-up request for a timely response can be attached as exhibits to a FOIA complaint filed in court.
If the initial request was oral or was made to someone other than the official "custodian" of the records, a formal written FOIA request letter must be sent to the custodian — including a reminder that you will seek reimbursement for attorneys' fees if the agency's failure to respond necessitates legal action.