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FOIA Update: OILP Update: Problems With Time

FOIA Update
Vol. II, No. 4

OILP Update: Problems With Time

Among comments made by federal agencies about problems with the Freedom of Information Act (FOIA) there is perhaps no more universal one than that the 10-day time limit [5 U.S.C. § 552(a)(6)(A)] is unworkable.

In an effort to examine in depth the nature of the comment, the Office of Information Law and Policy conducted several extensive interviews with personnel from agencies. The thrust of the interviews was "When you cannot meet the 10-day time limit, what are the factors holding you up?"

As a beginning observation it should be noted that despite the universality of the response, many agencies meet the time limit for most requests without too much difficulty. In many cases, requested information is readily available and can be sent out promptly. The following is a "sample" of what happens in other cases.

Russell Roberts, the FOIA officer at HHS, says the conflicts between submitters of business material and FOIA requesters can make FOIA work a lengthy and burdensome process for staff personnel.

"We're very into grants and contracts over here," says Roberts, "and you have to consider the commercial or patent value that may be contained in information . . ."

"We have to give submitters the opportunity to explain why material should not be released. And this is a lengthy process," Roberts goes on. HHS staff people use the telephone to expedite their work, but also must wait for the mails because of the complexity of the material with which they are working.

The complexity of business material also adds to the time spent in reviewing requests, Roberts says.

The Antitrust Division of the Department of Justice faces problems similar to those at HHS. Because of the nature of antitrust work, many requests are voluminous. Several requests have required that over 10,000 pages be reviewed. This usually takes one person six months, although other FOIA-related duties are carried out at the same time.

According to antitrust personnel, it takes a minimum of 10 days when a submitter of confidential information needs to be contacted. Antitrust gives submitters two weeks to reply.

Other factors that add to the time required are:

  • Obtaining the records to review. Retrieval from the Federal Records Center takes about two weeks.
  • Having the material declassified. In one recent case iot took the FOIA unit at Antitrust one year to get a 35-year-old document reviewwed for declassification.
  • Referring to or consulting with other agencies.

The FOIA Unit for the Office for the Secretary of Defense and the Joint Chiefs of Staff found that 28 out of 31 late replies were a result of the necessity of consulting with other agencies concerning records.

All agencies agree that voluminous requests present real problems. One example is the request for Trident submarine material from the Naval Sea Systems Command of the U.S. Navy which already required a year of processing. The same requester has since made two more massive requests which will effect the same offices now processing the first request.


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Updated December 9, 2022