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FOIA Update: FOIA Counselor: Questions & Answers
FOIA Update
Vol. XIX, No. 3
1998
Vol. XIX, No. 3
1998
FOIA Counselor: Questions & Answers
When an agency completes its annual FOIA report in the new form for fiscal year 1998, should it send the report to Congress as in the past?
No. As a result of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, both the content and the reporting procedure for agencies' annual FOIA reports have been changed. Under the amended statute, federal agencies are required to complete their annual FOIA reports within four months after the end of each fiscal year (e.g., by February 1, 1999, for the report covering fiscal year 1998), and to both submit them to the Justice Department and also make them available to the public through their FOIA sites on the World Wide Web. See 5 U.S.C.
If an agency can most readily compile its statistics for the new form of annual FOIA report by using "working" days rather than calendar days, should it do so?
Yes. To compile their annual FOIA reports under the amended Act, agencies now must satisfy an entirely new requirement that they keep track of and calculate "the median number of days" that their FOIA requests were pending for processing during the fiscal year. 5 U.S.C.
For purposes of the new annual FOIA report, how should an agency count a request for which the requester refuses to pay an applicable FOIA fee?
Such a request should be counted as a "processed" request in an agency's annual FOIA report, but the agency need not regard the request as having been "pending" during the entire time that it might take to reach the conclusion that the requester will not pay the anticipated fee. An agency may by regulation provide that if a FOIA requester is notified of an anticipated fee (in excess of $25.00) and does not respond with an agreement to pay that fee, the request ultimately will be closed on that basis. See, e.g., 28 C.F.R.
Do the grand jury secrecy restrictions of Rule 6(e) of the Federal Rules of Criminal Procedure prohibit agency FOIA officers from gaining access to grand jury information for FOIA administration purposes?
No. It is certainly true that a longstanding rule of federal criminal procedure, Rule 6(e), establishes strict limitations on access to (as well as disclosure of) any "matters occurring before [a] grand jury" by government personnel. Fed. R. Crim. P. 6(e). Absent a court order, that rule allows access to grand jury information by only "government personnel
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