Vol. XIII, No. 3
FOIA Counselor: Questions & Answers
Can a "protective order" issued by an administrative law judge be a sufficient basis for withholding records under the FOIA?
No. Fundamentally, it is a federal agency's "control" over a record (and over its possible disclosure) that makes the record subject to the requirements of the FOIA. See, e.g., Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). Consistent with that, the Supreme Court held many years ago that where an agency is under a court order "barring disclosure
Should agencies give immediate attention to any FOIA requester's special request that he be granted "expedited access" to records requested under the FOIA?
Yes. Although the Act is silent on the subject of "expedited access" to requested records, agencies have the administrative discretion to afford "expedited" FOIA access to a FOIA requester who seeks such special treatment under the Act on the basis of demonstrated special circumstances. As a general rule, agencies process FOIA requests on a "first-in, first-out" basis, according to the order in which they are received. Accord Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976). Where a FOIA requester demonstrates that the circumstances surrounding his request involve such "exceptional need or urgency" as to warrant special treatment to the relative disadvantage of prior FOIA requesters, an agency may grant his request for "expedited" handling. See FOIA Update, Summer 1983, at 3 ("OIP Guidance: When to Expedite FOIA Requests"). Whenever an agency receives such a special request for expedited handling, moreover, it is essential that it consider and act on that special request -- i.e., decide whether to handle the underlying FOIA request out of turn -- in a timely fashion. Simply put, such a request should be acted upon with a timeliness befitting the very nature of the request itself. Thus, as a matter of sound administrative practice, and regardless of whether expedited handling is actually granted in any particular case, agencies should decide whether to grant a request for expedited handling promptly whenever such a request is made. See FOIA Update, Spring 1992, at 10 n.32 (commenting on comparable provision of proposed legislation).
Is an "acknowledgment letter" sufficient to satisfy the requirement that an agency respond to a FOIA request within the Act's ten-day deadline?
No. The basic requirement placed upon agencies under the FOIA is to make a "determination" of a request within ten working days. 5 U.S.C.
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