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 with requesters. In 2010, before the first anniversary of the issuance of Attorney General Holder’s FOIA Guidelines, the Office of Information Policy (OIP) issued guidance entitled The Importance of Good Communication with FOIA Requesters. That guidance addressed several ways in which agencies could improve their communication practices.
One of the topics addressed in OIP’s 2010 guidance was the use of what is known as a “still-interested” inquiry, i.e., when an agency asks a requester whether he or she remains interested in the continued processing of their request. OIP’s 2010 guidance advised agencies to be “mindful of the manner in which such inquiries are made,” and to afford requesters a reasonable amount of time to indicate their continued interest.
“While use of ‘still-interested’ inquiries is an understandable way to help ensure that agency resources are appropriately spent processing requests for records where the requester remains interested in receiving the documents, it is equally important that requesters are not in any way disadvantaged by their use.”
The new guidance outlines a series of procedures that agencies should use when inquiring whether a requester remains interested in the continued processing of his or her request.
- Reasonable Grounds to Make “Still-Interested” Inquiry in the First Instance – any “still-interested” inquiry should be limited to those situations where the agency has a reasonable basis to conclude that the requester’s interest in the records may have changed;
- Limiting the Number of Times “Still-Interested” Inquiries are Made – absent good cause, agencies should not inquire more than once whether a requester is still interested in the request;
- Using Requester’s Preferred Method of Communicating – email or telephone are often the most efficient ways to communicate with requesters and should be used as the default;
- Providing Requesters with a Reasonable Amount of Time and Method to Respond to “Still-Interested” Inquiries – the time period to allow requesters to respond to “still-interested” inquiries should be no shorter than thirty (30) working days and a simple response over the telephone, a reply to an email, or the checking of a box on a self-addressed form are all examples of easy methods that agencies can make available to requesters so that they can most readily respond to the inquiry; and
- Ensuring Requesters are Not Disadvantaged – in the event a requester responds to a “still-interested” inquiry within a reasonable time after the deadline has passed, agencies should simply reopen the request and place it back into the agency’s queue in the same position it would have been had the “still-interested” inquiry not been sent.
Agencies should review their procedures on the use of “still-interested” inquiries to ensure they are in conformity with this new guidance. OIP has prepared an implementation checklist to assist agencies in doing so.