Assigning Tracking Numbers and Providing Status Information for Requests (Updated Guidance)
Subsection (a)(7) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(7) (2006 & Supp. IV 2010), imposes two requirements on agencies connected with tracking the status of FOIA requests. First, subsection (a)(7)(A) requires agencies to assign an individualized tracking number to requests that will take longer than ten days to process. Second, subsection (a)(7)(B) 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.
Assigning a Tracking Number
The first requirement imposed by subsection (a)(7)(A) of the FOIA 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 employed by many agencies, is to include the tracking number in an acknowledgment letter or email 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 for such requests, agencies should be certain to keep track of all requests they handle so that they are properly included in the agency Annual FOIA Reports.
Q & A
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 tracking numbers 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: Subsection (a)(7)(A) of the FOIA mandates that agencies "assign an individualized tracking number for each request received that will take longer than ten days to process." Thus, if the request will take longer than ten days to process, agencies are required to assign tracking numbers to each such request and to provide that number to the requester.
Providing a Telephone Line or Internet Service
Subsection (a)(7)(B) of the FOIA also requires agencies to establish a phone number or an Internet site that will provide information to the requester "using the assigned tracking number." The information required to be provided to the requester includes: (1) the date the request was received by the agency and (2) an estimated date by which the agency will finish processing the 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. Whatever method is utilized to provide status information concerning a given request, the FOIA mandates that both the date of receipt and the estimated date of completion for the request be provided to the requester.
When providing an estimated date of completion, agencies should keep in mind that often a requester will not know how complicated their request might be, or may not understand that the agency might have a long processing queue. The requester understandably is very interested in knowing when he or she can reasonably expect to receive their requested records. Agencies necessarily will be able to provide mare targeted estimates as processing commences, but at whatever stage it is requested, agencies should strive to give their best estimate to the requester so that he or she has a realistic expectation of when records will likely be provided. Providing an estimate is often a good opportunity to discuss the scope of the request with the requester. After discussions with the agency, the requester may be able to narrow an otherwise time-consuming request in order to receive records faster. Agencies should refer to OIP’s guidance stressing the importance of good communication with requesters regarding the processing of their requests.
Q & A
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 records will be found to be responsive, or whether there will be a need to conduct consultations. How does the agency provide an estimate in those situations?
Answer: As noted above, the FOIA 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.
Question: What are some ways agencies can calculate an estimated date of completion when the time needed to process the request is not readily apparent?
Answer: There are a couple of things agencies can consider to help determine an estimated date of completion. As noted above, agencies can of course rely on their experience and consider the time it took to process similar requests in the past. Agencies that utilize multi-track processing can also consider the agency's average processing times for its various tracks. This information is readily available in the agency's Annual FOIA Report and on FOIA.gov. When an estimated date of completion for a complex track request is requested, it is a good opportunity for the agency to explain to the requester the differences in its processing times for simple and complex track requests. That way the requester can make an educated decision as to whether it may be beneficial to modify the request to fit the agency's simple track so that records can be provided more quickly.
Question: What should an agency do when processing a complex request that could potentially take many months to complete?
Answer: As emphasized above, the FOIA requires agencies to provide requesters an estimated date of completion when requested. Using its best judgment based on the processing of similar requests in the past, average processing times, and any other available resources, the agency should give the requester a realistic estimate. For such complex requests, in accordance with OIP's guidance agencies are encouraged to provide requesters interim responses. When providing interim responses, the agency may also offer the requester an estimate on the timing of the agency's next interim response. While the agency is still required to provide an overall estimated date of completion if this is requested, requesters may find it more useful to have an estimate of when interim responses will be made.
Question: What should an agency do if, as processing proceeds, it determines that it needs to revise the estimated date of completion?
Answer: As with any estimate, it is not unexpected that it might change over time. During the course of processing a request, agencies might find that processing will take less time than initially thought or might take more time than initially thought. When agencies use the internet to provide estimated dates of completion it is important that those estimated dates are kept up to date. If there is any significant change to the estimate, the agency should be sure that the posted estimated completion date reflects that change. For those agencies that use a telephone service to provide estimated completion dates, the revised estimate can simply be provided when responding to the requester’s inquiry. All agencies are encouraged to keep requesters updated on the progress of their request, particularly if there is a significant change to the estimated completion date. This presents yet another opportunity for agencies to engage with requesters to both inform them and to see whether the request can be revised in any way to make processing proceed more efficiently.
The FOIA requires agencies to assign individual tracking numbers to requests that will take more than ten days to process. It also requires 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. These provisions of the FOIA, which were added to the law by the OPEN Government Act of 2007, complement the “spirit of cooperation” outlined in President Obama’s Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act. Providing quality customer service and timely status updates are the hallmarks of the “spirit of cooperation” required in this “new era of open Government.”