March 4, 2010
As we approach Sunshine Week, which commemorates the anniversary of the birthday of President James Madison, who is considered the Founding Father of open government, we are likewise approaching the one-year anniversary of Attorney General Holder’s FOIA Guidelines. Those FOIA Guidelines were designed to underscore our country’s “fundamental commitment to open government.” The Guidelines address a range of issues related to the presumption of openness, the need for agencies to establish an effective system for responding to requests, and the obligation to disclose information promptly and proactively. Significantly, the FOIA Guidelines also stress that agencies “must be mindful of their obligation to work ‘in a spirit of cooperation’ with FOIA requesters,” as directed by President Obama in his FOIA Memorandum. Moreover, Attorney General Holder cautioned agencies that “[u]neccessary bureaucratic hurdles have no place in the ‘new era of open Government’ that the President has proclaimed.” Thus, it is important for agencies to be mindful of the manner in which they interact with the pivotal player in every FOIA request – the FOIA requester. Establishing good communication and working cooperatively with FOIA requesters is a very simple and yet essential element to ensuring that each agency’s FOIA process is working in accordance with the President’s and Attorney General’s directives. There are a number of areas where improved communication with FOIA requesters holds great promise for improving FOIA administration.
Providing Agency Contact InformationOIP has long advised agencies to provide each FOIA requester with the name and phone number of the FOIA professional handling his or her request. Although many agencies already routinely provide such contact information to FOIA requesters, all agencies should ensure that they do so. This is a fundamental courtesy which should readily be extended to all FOIA requesters.
Discussing the Scope and Status of the RequestThe FOIA has a number of provisions that require agencies to contact requesters. Whenever a request involves "unusual circumstances" and the agency determines that it must extend the time to respond by more than ten working days, the agency is required to notify the requester and give him or her an opportunity to limit the scope of the request or to arrange for an alternative time to process it. The FOIA also requires agencies to establish a telephone line or Internet service to provide requesters with the status of their requests. In carrying out these statutory requirements agencies should ensure that their communication with requesters is prompt and helpful. Good communication with requesters can also be exceedingly helpful in those instances where an agency is uncertain about the scope of what is being requested. By engaging in a dialogue with the requester, both parties can ensure that they have a common understanding of what records are being sought. Similarly, when a request will involve a far-ranging or time-consuming search, it is often helpful to contact the requester to discuss what steps will be involved in order to process that particular request. Often these conversations will allow the FOIA requester and the FOIA professional to collaborate on a plan for responding to a complex request. Many times FOIA requesters do not know how agency records are organized or what might be involved in searching for the records they seek. Having the ability to talk through an approach to the request and reach an understanding can be very helpful to both the requester and the agency.
Making Interim Responses as Processing ProceedsWhen an agency is working on a request that involves a voluminous amount of material or which involves searches in multiple locations, whenever feasible, the agency should provide the requester with interim responses rather than waiting until all records are located and processed. Although there are situations where records need to be reviewed in their totality to ensure proper handling, in other cases rolling releases of records are possible. Whenever such rolling releases are possible the agency should make them to facilitate access to the requested records.
Limiting “Still-Interested” Letters or Phone CallsOn occasion, when the passage of time or a change in circumstance gives rise to a question of whether a FOIA requester is still interested in obtaining the requested records, many agencies contact the requester to inquire whether he or she is still interested in having the request processed. When done judiciously, this is entirely appropriate because agency resources should not be expended on processing a request when the requester is no longer interested in the records. At the same time, agencies should be mindful that FOIA requesters can misinterpret the intent behind a letter or phone call inquiring whether the requester remains interested in the request. So this is yet another area where it is important to be mindful of the manner in which such inquiries are made. In particular, absent good cause, an agency should not inquire more than once whether a requester is still interested in the request. Agencies should also afford requesters a reasonable amount of time to indicate their continued interest and should ensure that there is a simple way for requesters to do so.
ConclusionAll of these simple practices can go a long way to ensuring that agencies are working with FOIA requesters in the “spirit of cooperation” that the President and Attorney General directed. There is no doubt that implementing an efficient and effective FOIA system is a major undertaking for agencies. Improving communication and working cooperatively with FOIA requesters should be viewed as an essential part of that undertaking.
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