President Obama and Attorney General Holder emphasized in their FOIA Memoranda the importance of agencies working with FOIA requesters “in a spirit of cooperation.” A key element of that cooperation is establishing and maintaining good communication. In 2010, before the first anniversary of the issuance of the Attorney General’s FOIA Guidelines, the Office of Information Policy (OIP) issued guidance addressing this topic. OIP’s 2010 guidance entitled The Importance of Good Communication with FOIA Requesters counseled agencies to:
OIP’s guidance also reminded agencies that the FOIA contains a number of provisions that require agencies to contact requesters. Specifically, requesters must be notified whenever a request involves “unusual circumstances,” as defined in the statute, and if the period to respond will extend beyond ten additional working days, agencies must provide the requester with an opportunity to limit the scope of the request or arrange an alternate time frame for processing. See 5 U.S.C. § 552(a)(6)(B) (2006 & Supp. IV 2010). The FOIA also requires agencies to establish a telephone line or internet service to provide requesters with information about the status of their request, including an estimated date of completion. See id. § 552(a)(7). The statutory requirement to provide information about the status of a request has been addressed in detail by OIP in separate guidance entitled Assigning Tracking Numbers and Providing Status Information for Requests. These are just a few of the situations where agencies have occasion to contact requesters. As OIP’s 2010 guidance on the importance of good communication stressed, agencies should establish good communication and work cooperatively with FOIA requesters throughout the FOIA process.
Building off of that initial guidance, this second installment of guidance on the topic of good communication encourages greater use of email or other technology as the means by which agencies communicate with requesters and also addresses the importance of ensuring that the content of agency communications reflect the “spirit of cooperation” the President and the Attorney General envisioned for the government’s FOIA administration.
Using Technology to Further Improve Communications with Requesters
In their FOIA Memoranda the President and Attorney General called on agencies to “use modern technology to inform citizens about what is known and done by their Government.” Using technology whenever possible as the means of communicating with requesters is one of the ways in which agencies can improve their lines of communication with the public.
As addressed in the 2010 guidance on the importance of good communication, there are many situations where having a discussion with a requester over the telephone is the most productive and efficient way to communicate. There are other situations, however, where using email, or communicating via an online account, can be more efficient. Though some agencies may face barriers which prevent them from fully utilizing electronic means for communicating with requesters, for many agencies the use of email or an internet portal can serve as a simple and easy way to create efficiencies both in communicating with requesters and in administering the FOIA overall.
Of course, when processing is complete and the agency is ready to make the requested records available to the requester, the FOIA requires the agency to "provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B). The FOIA also requires agencies to "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes. Id.; see United States Department of Justice Guide to the FOIA, Procedural Requirements (2013 ed.). If an agency is not able to provide the records in the form or format that was requested, the agency should notify the requester of that fact and offer alternative ways in which the records can be provided.
Communicating Electronically with Requesters as the Default
As the number of organizations and requesters submitting requests and correspondence to agencies through electronic means increases, agencies likewise should increase their use of technology to communicate about and respond to those inquiries. Similarly, when requesters note in the text of a paper letter or appeal that they would like to be contacted by email concerning any issues connected with the processing of their request, agencies should make every effort to communicate in that way, or explain why they are unable to do so. While some requesters may not have access to the internet or may not provide email contact information, for those that do, agencies should use e-communication as a default. By viewing e-communication as the default and not the exception agencies and requesters will be able to exchange information more quickly and thereby improve efficiency in the processing of requests.
Alerting the Public to any Limitations on the Use of Electronic Communications
For some agencies, website firewalls or other issues might limit the FOIA office’s ability to use electronic means to communicate with requesters. In such cases, when individual requesters ask to be contacted by email, agencies should advise them of their office’s limitations in doing so. Additionally, any limitations on the use of technology to communicate with requesters should be added to an agency’s FOIA website as a courtesy notice for all requesters. The very process of informing requesters of any limitations on the FOIA office’s ability to use email or other technology to communicate with requesters is itself an example of good communication.
Providing Links to Information Already Available Online
Federal departments and agencies are routinely making a wide variety of information available online in both FOIA Libraries and throughout agency websites. This posted material is a valuable resource for FOIA requesters and the public alike. When posted material might be helpful to requesters, possibly even satisfying their need for information, using email or an online portal to quickly provide links to the posted information is yet another way that technology can be used to improve the quality of the agency’s communication with requesters.
Communicating in a “Spirit of Cooperation”
Separate and apart from the means used to communicate with requesters, agencies should recognize that the content and tone of their communications should reflect the “spirit of cooperation” that the President and Attorney General emphasized in their FOIA Memoranda. Agencies should be mindful that requesters may be unaware of what certain terms or acronyms mean, what the FOIA process is, or what their options are in a given situation. Agencies can improve the quality of their communication with requesters by looking at the content of their correspondence from the point of view of the requester. Often a simple change in language or the addition of a sentence or two of explanation in the agency’s response can go a long way to improving understanding.
Providing Requesters With a Breakdown of Fees and an Explanation When Fees Might be Higher than Expected
One area where clear, informative communication can be particularly beneficial to both requesters and agencies alike concerns the charging of fees under the FOIA. There are three general types of fees under the FOIA -- search fees, review fees, and duplication fees -- as well as three general categories of requesters, who are charged differently depending on their fee category. See United States Department of Justice Guide to the FOIA, Fees and Fee Waivers (2013 ed.). The need to communicate concerning fees can arise in many different types of situations. Although the FOIA has long provided for the assessment of fees, some requesters are not aware that fees may apply to their requests. While some requesters provide agencies with a commitment to pay a certain amount of fees in their incoming request letter, others do not. Some requesters may assume their request will not entail any fees because they seek only a small number of documents, yet the agency may need to conduct very time-consuming searches to locate those records. In all these situations, the expectations of the requester concerning FOIA fees might be different from the reality that the request has presented. As a result, this is a particularly important area for agencies to have clear, helpful communication with the requester.
The content of the communication will vary depending on the scenario presented, but agencies should critically assess both the tone and the substance of their communications regarding fees to be sure they reflect a “spirit of cooperation” and provide requesters with information that is needed by them in order to know how best to proceed. In particular, agencies should give requesters an opportunity to reformulate their request to reduce or eliminate the estimated fees. In addition, requesters should be given a breakdown of the estimated fees attributable to their request. In preparing the fee estimate agencies necessarily will have to anticipate which type(s) of fees apply to the request and use that as the basis for preparing the fee estimate. Agencies should in turn provide that breakdown to the requester. Requesters will find it helpful to know, for example, how much of an estimated fee is attributable to search time and how much is attributable to duplication.
Finally, when fee estimates are particularly high agencies should provide the requester with a brief explanation of the reason for the high fee estimate. For example, when a request seeks one specific record a requester could reasonably assume that it is easy to locate and that no fees will be incurred in connection with processing the request. If, in fact, that particular record is not easily located, however, and the agency estimates it will need a significant amount of time to conduct the search, the agency should provide a brief explanation so the requester can better understand the reasons underlying the fee estimate. By including such an explanation and by routinely providing a breakdown of any fee estimates, agencies will promote better understanding of the process, prevent disputes, and demonstrate the cooperative spirit that the President and Attorney General envision in the administration of the FOIA.
Making it Easy to Narrow Requests
Both agencies and requesters benefit when they have the ability to easily communicate. For example, when a requester is better informed, he or she might decide to narrow the request in order to move it into the “simple” processing track. When requesters use email or an online portal to narrow their requests, the agency has a record of the revision which can be saved in the request file. Other times, requesters may inform agencies of the revision to the request after a telephone conversation. It is important that the substance of the newly reformulated request be memorialized. At the same time, because such a narrowing is a benefit to both agencies and requesters, the process of documenting any revisions to a request should not be unnecessarily burdensome. One approach that makes the process efficient and easy is for agency personnel to simply take notes about their phone conversations with requesters and memorialize them in the FOIA case file, describing any narrowing of the request or other agreement that was reached. The agency should then put that revision or agreement in writing and convey it back to the requester, either right after the telephone conversation or when next communicating with the requester. In that way both parties have a written record of the narrowed request, while keeping the process of narrowing the request as easy as possible.
Maintaining Focus on Overall FOIA Mission
As described above and in OIP’s 2010 guidance on good communication, explaining agency actions and providing opportunities for requesters to narrow the scope of their requests can help agencies provide records more promptly to requesters. At the same time, however, there are many requests where no particularized discussion is needed. To the extent agencies can anticipate common inquiries and address them by providing the information proactively either on their websites or in outgoing communications with requesters, the need for individualized discussions can be reduced. When individualized communication is necessary or helpful to the process, requesters, as well as agencies, will benefit when those communications are targeted, clear, and efficient, recognizing that agencies necessarily need to balance the number of occasions they engage with requesters individually with their responsibility to focus their resources on their overall FOIA mission. Ultimately, each agency’s goal is to provide all FOIA requesters with prompt access to the information they seek.
Taking steps to improve both the means by which agencies communicate with requesters and the content of those communications will help promote understanding of the FOIA process and facilitate timely access to requested information. The practices outlined above are concrete steps all agencies should take to affirm their commitment to working with requesters in the “spirit of cooperation” envisioned by the President and the Attorney General.