Section 7 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, imposes two new requirements on agencies connected with tracking the status of FOIA requests. First, Section 7 requires agencies to assign an individualized tracking number to requests that will take longer than ten days to process. Second, it requires agencies to establish a telephone line or Internet service that requesters can use to inquire about the status of their requests using the request's assigned tracking number. This Section is yet another provision of the OPEN Government Act that builds on procedures established by Executive Order 13,392. Like Section 6 of the OPEN Government Act, Section 7 will take effect on December 31, 2008, and will apply to FOIA requests “filed on or after that effective date.” § 7(b).
Assigning a Tracking Number
The first requirement imposed by Section 7 requires agencies to establish a system whereby any request that will take more than ten days to process is assigned a tracking number. That number, in turn, must be provided to the requester. The simplest way to provide the number, and the method already employed by many agencies, is to include the tracking number in any acknowledgment letter sent to the requester upon receipt of the request.
As a threshold matter, for those requests where an agency can quickly make a response, i.e., can respond within ten days or less, there is no requirement that a tracking number be assigned. In those circumstances, the agency can simply respond to the requester by providing the responsive records and need not be slowed down by the necessity of assigning a tracking number to the request. Nevertheless even though an individualized tracking number is not required to be utilized for such requests, agencies should be certain to keep track of all requests they handle so that all the information required to be included in agency Annual FOIA Reports is compiled and reported.
Question: What if an agency can respond to a request within ten days, but it still would prefer to assign the request a tracking number. Is that permissible?
Answer: Yes. Agencies are free to assign all requests tracking numbers if they find it efficient to do so. As mentioned above, because agencies need to keep track of all FOIA requests they receive and process so that they may be included in the agency Annual FOIA Report, the use of a tracking number for all requests can be beneficial.
Question: What if an agency does not use tracking numbers, but instead keeps track of requests by some other method, such as by the name of the requester. Is that still allowed?
Answer: No. Section 7 mandates that agencies assign "an individualized tracking number for each request that will take longer than ten days to process." § 7(a). Thus, if the request will take longer than ten days to process, agencies will now be required to assign tracking numbers to each such request and to provide that number to the requester.
Providing a Telephone Line or Internet Service
Section 7 also requires agencies to establish a phone number or an Internet site that will provide information to the requester "using the assigned tracking number." § 7(a). The information required to be provided to the requester includes the date the request was received by the agency and an estimated date by which the agency will finish the processing of the request. These requirements are similar to those imposed by Executive Order 13,392, which addressed the need to provide requesters with information about the status of their request.
Agencies have two alternatives for providing this information to requesters. They can establish an Internet service which can be accessed by the requester using his or her tracking number. Alternatively, agencies can establish a telephone line where requesters can contact the agency by phone to inquire about the status of their request. Agencies have already established FOIA Requester Service Centers for the purpose of providing status information to requesters and that system can easily continue to be used. Whatever method is utilized to provide status information concerning a given request, Section 7 mandates that both the date of receipt and the estimated date of completion for the request be provided to the requester.
Question: What if the agency does not know when the processing of the request will be completed, because, for example, it is still searching for records and does not know yet how many will be found to be responsive, or whether there will be a need to conduct consultations. How does the agency respond?
Answer: Section 7 requires agencies to provide an "estimated date" by which processing will be complete. Agencies should make a reasonable judgment as to when they believe processing will be complete, based upon what remains to be done in a given case and in light of the agency's experience with processing similar requests. The important point is that the agency and the requester are able to communicate easily regarding the status of a request.
Beginning with requests received on December 31, 2008, the OPEN Government Act will require agencies to assign individual tracking numbers to requests that will take more than ten days to process. It will also require agencies to establish a telephone line or Internet service that requesters can use to access information about the status of their requests. These provisions are designed to ensure that FOIA requesters can readily learn from the agency when they can expect a response to their FOIA request. (posted 11/18/2008)
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