As the Attorney General’s FOIA Guidelines stress, “agencies should make it a priority to respond [to requests] in a timely manner.” This directive encompasses all aspects of FOIA administration, including the distinct ten-day timeline imposed by the FOIA for deciding whether to grant or deny expedited processing of a request. Agencies must include in their Annual FOIA Report each year statistics on the number of requests for expedited processing where the determination to grant or deny such processing was made within the ten-day time period. There are a number of steps agencies can take to ensure that they make these determinations in a timely way.
The Freedom of Information Act (FOIA) contains a requirement that agencies establish procedures in their regulations that provide “for expedited processing of requests” in certain circumstances. 5 U.S.C. § 552(a)(6)(E)(i) (2006 & Supp. IV 2010). Specifically, the FOIA directs agencies to afford expedited processing whenever the requester demonstrates a "compelling need", or “in other cases determined by the agency.” Id. § 552(a)(6)(E)(i)(I), (II). A requester can show a "compelling need" in one of two ways: (1) by establishing that his or her failure to obtain the records on an expedited basis "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or (2) in the case of a request made by "a person primarily engaged in disseminating information," by demonstrating that there is an "urgency to inform the public concerning actual or alleged Federal Government activity." Id. § 552(a)(6)(E)(v)(I), (II).
In addition to these two standards, agencies may also at their discretion grant expedited processing based on other circumstances. See id. § 552(a)(6)(E)(i)(II). For example, the Department of Justice's FOIA regulations provide for expedited processing in two additional circumstances; first, whenever a requester establishes that the request involves a "loss of substantial due process rights" or second, when the request concerns "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." See 28 C.F.R. § 16.5(d)(iii), (iv) (2014).
The FOIA requires that requesters demonstrate their “compelling need” by providing the agency with “a statement certified by such person to be true and correct to the best of [their] knowledge and belief.” 5 U.S.C. § 552(a)(6)(E)(vi). For a complete discussion of the standards for granting expedited processing, please see the "Procedural Requirements" chapter of the United States Department of Justice Guide to the Freedom of Information Act.
Time Limit to Make a Determination on Whether to Provide Expedited Processing
The FOIA provides agencies with a discrete time period to make a determination on whether to grant or deny requests for expedited processing. Specifically, the statute requires agencies to “make a determination of whether to provide expedited processing” within ten days. This ten-day time limit includes both making the determination as to whether to grant expedited processing and providing notice of the decision to the requester. 5 U.S.C. § 552(a)(6)(E)(ii)(I). As to the time period for processing the underlying request itself, the FOIA provides that when an agency grants expedited processing it is required to process the request "as soon as practicable." Id. § 552(a)(6)(E)(iii).
Accountability for Timely Determinations of Requests for Expedited Processing
As mentioned above, the FOIA requires agencies not only to make a determination within ten days as to whether or not to grant a request for expedited processing, but to also convey that determination to the requester within that time period as well. Through their Annual FOIA Reports agencies are required to publicly report on their compliance with this provision.
Each year agencies are required to submit an Annual FOIA Report to the Attorney General detailing a wide range of statistics regarding their administration of the FOIA. As a result of amendments made to the FOIA by the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, a new requirement was added to bring greater accountability to agency determinations on requests for expedited processing. Specifically, agencies are required to report each year on the number of requests for expedited processing that were granted and denied, the average and median number of days taken to adjudicate such requests, and significantly, “the number adjudicated within the required 10 days.” 5 U.S.C. § 552(e)(1)(L).
Given the time sensitive nature of making determinations on requests for expedited processing and conveying them to the requester, it is important for all agencies to ensure that they have a proper system in place to promptly identify and adjudicate any expedition requests and then convey their determinations within the ten days required by the FOIA.
Improving the Process for Adjudicating Requests for Expedited Processing
The internal procedures used by agencies for determining whether a request should be granted expedited processing can vary by agency. However, there are three key areas where agencies can look to improve this process and find efficiencies that will help them meet their statutory obligations.
I. Screen all FOIA requests at time of receipt to determine if expedited processing has been requested:
Although a number of agencies allow requesters to ask for expedited processing at any time during the administrative process, the majority of requesters ask for such treatment at the time they make their initial FOIA request.It is important that agencies examine their intake process to ensure that their FOIA offices are routinely screening all requests upon receipt to identify whether expedited processing has been requested.
Once a request for expedited processing has been identified, it should be flagged for handling.Agencies should apply the expedition standards from the statute and their regulations to determine if the expedition request should be granted or denied and then they need to promptly communicate that determination to the requester. An efficient way to convey the determination is by including it the acknowledgement letter for the request.By making sure that there is a focus during the initial intake process on spotting whether expedited processing is sought, and then having a process in place to promptly adjudicate any expedition request, agencies will ensure that they are in the best position to provide requesters with a timely determination on any request for expedited handling.
II. Be alert to requests for expedition that may be made after the initial request is submitted.
For those agencies like the Department of Justice that permit a request for expedited processing to be made at any time during the administrative process, it is likewise essential that any correspondence received from the requester after the initial request is received is quickly reviewed to see if it contains a request for expedited processing. If it does, then once again the agency will need to promptly adjudicate that expedition request and convey the determination to the requester in a timely way.
III. Establish clear coordination procedures with other offices that are involved in making a determination on the request for expedited processing:
At some agencies the responsibility of adjudicating requests for expedited processing may involve working with multiple offices. It is important that any office that is consulted be advised of the distinct time period allocated for making determinations on requests for expedited handling of a request. Agencies that have multiple offices involved in determining whether to grant expedited processing should establish clear procedures that allow these offices to coordinate in a way that ensures determinations are made within the ten days required by the law.
OIP encourages agencies to review their procedures for adjudicating requests for expedited processing to make sure that they facilitate prompt determinations. As part of this evaluation, agencies should examine their administrative processes to ensure that any requests for expedited processing are promptly flagged for handling, promptly adjudicated, and the determination timely conveyed to the requester. Additionally, agencies that need to coordinate with multiple offices to adjudicate these requests should establish clear procedures that allow for responses to be made in a timely manner. By taking these steps all agencies can ensure that they are administering this distinct aspect of FOIA administration in a prompt and efficient manner, in keeping with the Attorney General Holder’s FOIA Guidelines.