Government Shutdowns

Introduction
In recent years, the federal government has experienced several lapses of funding, leading to "shutdowns" of executive branch agencies and departments to varying degrees. Such shutdowns may, as a practical matter, affect the processing of FOIA requests and FOIA litigation.

Effect of Government Shutdown on Submission and Acceptance of FOIA Requests
During government shutdowns, some agencies have closed their online FOIA submission systems. During the 2018–19 shutdown, for example, the Department of Interior's FOIA submission website simply displayed a message that said "No FOIA requests can be accepted or processed at this time." Other agencies have stated that they will accept FOIA requests during a shutdown but will not start processing them until after funding is restored. The EEOC, for example, issued a notice that "All requests are deemed 'received' on the date they are received by an EEOC FOIA component, except those received on Saturdays, Sundays, federal public holidays or after close of business hours, which are deemed 'received' on the next business day. EEOC will accept all FOIA requests during the federal government shutdown, but EEOC will not be able to process FOIAs until after the federal government reopens."

The submission of FOIA requests by email, fax, or physical mail should be possible even if an agency's online portal or submission system ceases to operate.

Effect of Government Shutdown on Agencies' Processing of FOIA Requests and Deadlines
FOIA provides precise deadlines for agency actions in processing requests. As OGIS noted during the 2013 government shutdown, the:"FOIA statute itself does not address days when the federal government is closed for government shutdowns, furlough days, snowstorms . . . or other unusual events. Specifically, the law states that agencies have “20 days (excepting Saturdays, Sundays, and legal public holidays)” to respond to FOIA requests and appeals, 5 U.S.C. § 552(a)(6)(A)(i) & (ii)."

OGIS further noted that: the Department of Justice's Handbook for Agency Annual Freedom of Information Act Reports says that “even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances outside of these specified in the statute, the agency must count those days for reporting purposes."

The Office of Information Policy at the Department of Justice issued the following "guidance" to agencies in conjunction with the 2013 government shutdown: "Agencies and requesters alike generally refer to the FOIA’s time limits as “working days.”  Logically, then, they could easily conclude that during a time when FOIA Offices had no choice but to be closed because of the lapse in funding, those days when employees were furloughed were not “working” days and so should not be counted as part of the FOIA’s response times.  As a matter of policy, however, and consistent with the spirit of openness in administering the FOIA, agencies should count as part of their response times for FOIA requests and appeals the eleven days when the government was closed, which excludes the Saturdays, Sundays, and the one legal public holiday that occurred during the shutdown."

Effect of Government Shutdown on FOIA Litigation
Deadlines in federal FOIA litigation are frequently stayed during the pendency of a government shutdown.