FOIA Guidance

Closing the Ten Oldest Pending Requests and Consultations

At the start of Sunshine Week, representatives from various agencies highlighted their considerable efforts and achievements in applying the presumption of openness, increasing efficiencies, utilizing technology, reducing agency backlogs, and improving timeliness.  Overall, agencies have made great strides in improving the administration of the FOIA.  A number of these success stories are featured on the Office of Information Policy's website.

It is important to remember though that Sunshine Week presents not just the opportunity to celebrate the success stories of the past year, but is also a good time to renew our efforts and set goals for the year ahead.   The Attorney General's FOIA Guidelines call on agencies to work to improve timeliness in responding to requests.  A critical element in that effort is the closing each year of the oldest requests that are pending at each agency.   As a result, all agencies should establish a goal of closing both their ten oldest requests and their ten oldest consultations each year.

Closing the Ten Oldest Pending Requests

The work on reducing the age and number of the oldest requests that are pending across the government requires sustained focus.  To bring greater attention to this issue, the Department of Justice first began requiring agencies to report their ten oldest pending requests in their Annual FOIA Reports in Fiscal Year 2007.  In Fiscal Year 2008, pursuant to the Open Government Act of 2007, Congress included the requirement for agencies to report the ten oldest requests in the expanded list of data that is required to be reported in Annual FOIA Reports.  The revised statutory requirements also obligate agencies to include data on the number of days their ten oldest requests have been pending.  In 2011, OIP included the closing of the ten oldest requests as one of its evaluation criteria in its assessment of the cabinet agencies' progress in implementing the Attorney General FOIA Guidelines.

Now that Sunshine Week 2012 has ended, as agencies rightly pause to focus on the many accomplishments reflected in their Chief FOIA Officer Reports and Annual FOIA Reports for Fiscal Year 2011, they should also renew their focus on their ten oldest requests and the steps that can be taken to ensure that every effort is made to close those requests by the end of the current fiscal year.  This is a good time to reassess the steps needed to close the requests, to identify any barriers to closing them, and to develop solutions that will allow for the processing to be completed by the end of this fiscal year.  By closing the ten oldest pending requests each year, agencies can make a real difference in improving FOIA administration.

Closing the Ten Oldest Pending Consultations

A related and equally significant way that agencies can assist in this effort is by making sure that they close the ten oldest consultations they received from other agencies every fiscal year.  Often, one of the reasons that an agency cannot close a pending request is because it is waiting to hear back from another agency on a consultation sent to that other agency.  If those agencies in receipt of consultations from other agencies can commit to closing their ten oldest pending consultations each year, that in turn will facilitate the closing of the oldest requests themselves.

When agencies process records in response to a FOIA requests, they often locate records in which another agency or component has an interest.  When these records originated with the agency in receipt of the request, that agency generally remains responsible for the final response, but the receiving agency typically must consult with the agency or component with equity in the document prior to making a disclosure determination.  Any delay in receiving a response on the consultation necessarily also delays the final response to the requester.  Because of that linkage, it is vitally important that all agencies work to close their ten oldest pending consultations each year.

To bring greater attention and accountability to this issue, the Department of Justice requires agencies to report in their Annual FOIA Report the number of consultations that are pending at their agency and the ten oldest such pending consultations.  In OIP's upcoming assessment of agency progress in implementing the Attorney General's FOIA Guidelines, one of the criteria for assessing agencies will be whether they closed their ten oldest pending consultations.   Given the importance of closing consultations so that agencies are free to move the requests to closure, all agencies with pending consultations should renew their focus on closing those consultations as soon as possible, with the minimal goal of closing the ten oldest pending consultations each year.  As with the ten oldest pending requests, now is a good time to assess the steps needed to respond on any pending consultations, identify any barriers to doing so, and devise strategies that will allow for the consultations to be finished prior to the close of the fiscal year.

By closing their ten oldest consultations as early in the fiscal year as possible, agencies help place the other agencies and components relying upon their consultation responses in a better position to close their oldest pending requests.  If all agencies and components take steps to close not only their ten oldest requests, but also their ten oldest consultations, this will go a long way towards eliminating the days when requests become caught in a cycle of delay.  In the past few years we have seen progress in this area.  With continued work on this vital element of FOIA administration, even greater progress can be made in Fiscal Year 2012.

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Updated August 21, 2014