COVID-19

Provided by The Reporters Committee for Freedom of the Press
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Introduction

Beginning in early 2020, the FOIA work of numerous federal agencies was disrupted due to the COVID-19 pandemic.

On March 17, 2020, the Office of Personnel Management (OPM) ordered agencies and departments to enact a variety of measures with respect to the federal workforce, including promoting maximum telework.[1] Such work from home policies have complicated FOIA offices' responses to requests and litigation. Disruptions have been especially prominent with agencies that work on classified systems.

Despite the disruptions caused by the pandemic, a survey by OGIS during May and June of 2020 found that "a majority of agency FOIA websites – 62.6 percent – did not provide updates on how COVID-19 is affecting FOIA processing."[2]

All of FOIA's ordinary timing requirements (e.g., for Determinations and Expedited Processing) continue to apply.

Effect of COVID-19 on Federal Agencies' FOIA Processes

The response and status of individual agencies is presented in the sortable chart below.

Agency/Entity Summary of Current Status Previous Actions Taken Last Updated
Federal Bureau of Investigation The FBI was operating at fifty percent reduced capacity through much of the spring of 2021.[3] As of May 2021, the Records Management Division at the FBI is operating at full capacity again. At the outbreak of the pandemic, the FBI shut down its E-FOIA portal[4] and represented that its records division would be closed through at least until April 13, 2020.[5] As of April 14, 2020, FBI was accepting electronic requests through its online portal, but their records division suspended operations through April.

As of June 8, 2020, the records division resumed full staffing levels, but was still operating with significant delays.[6]

Although the FBI's records management division had resumed full staffing levels over the summer of 2020, as of December 7, 2020, the division was at 50% capacity. A December 8, 2020 filing from the FBI stated that the agency "concluded that it was necessary to draw down its physical presence and footprint in its facilities by maximizing spacing and reducing the number of personnel in the office to mitigate exposure and spread of the virus," meaning that "processing capacity will be at most 50% of its normal capacity." [7]

July 27, 2021
Department of State The Department's FOIA office has re-opened. As of June 25, 2020, three of the Department’s 21 FOIA litigation analysts and three of the Department’s 47 Re-Employed Annuitants (“REAs”) assigned to process FOIA litigation cases have returned to their workstations on a part-time basis.[8] FOIA operations are "suspend[ed]" "until further notice."[9] "We currently estimate that there is a 96% reduction in ability to process FOIA requests . . . ."[10] The Department was scheduled to reopen its FOIA office on June 15, 2020.[11] July 6, 2020
Centers for Disease Control and Prevention The CDC's FOIA office is open but teleworking. The agency's website advises that it "will not be able to receive FOIA requests/correspondence by mail or FedEx." As of May 2020, CDC also "will no longer be accepting requests via E-mail or fax. Requesters can submit a FOIA request using one of the options below:
  1. FOIA Public Access Link (PAL)
  2. Submit a request via FOIA.gov"[12]
 At the beginning of the pandemic, the CDC's FOIA office was accepting requests by email and facsimile, in addition to accepting requests through its online portals. July 6, 2020
U.S. Air Force Unknown delay in processing FOIA requests.[13][14][15] July 27, 2021
Environmental Protection Agency No COVID-19-related disruptions to FOIA process reported.[16] June 1, 2020
Department of the Interior "If your request is for hard copy records, the response to your request will very likely be delayed. In addition, employees may not receive FOIA requests that are sent by U.S. mail, overnight mail services, or facsimile in a timely manner. We recommend, therefore, that requesters submit requests through the Department’s online portal at https://www.doi.gov/foia/foia-request-form or the government-wide portal at https://www.foia.gov." [17][18] July 27, 2021
Department of Agriculture No COVID-19-related disruptions to FOIA process reported.[19] June 1, 2020
Department of Energy The Department is continuing to process FOIA requests.[20] However, "employees are on telework and have no access to requests sent by regular mail or requests sent by facsimile." [21] Requesters should submit FOIA requests electronically. July 6, 2020
National Nuclear Security Administration "Due to COVID-19, the NNSA Freedom of Information Act (FOIA) program staff are experiencing significant delays in receiving and processing FOIA requests. We ask that FOIA requesters continue to submit their requests to foiofficer@nnsa.doe.gov. Submissions are still accepted, but responses will be delayed."[22] July 6, 2020
Bonneville Power Administration "​Due to COVID-19, BPA FOIA Office staff are experiencing significant delays in receiving and processing FOIA requests sent by regular mail. We ask that requesters submit FOIA request electronically using the FOIA request form below. Mailed submissions are still accepted but responses will be delayed."[23] July 6, 2020
Pipeline and Hazardous Materials Safety Administration "[T]he FOIA team is working remotely and not able to process any requests mailed or faxed to the office. Any requests received by mail or fax after Monday, March 16, 2020, may not be processed until employees are able to return safely to the office. If you wish to resubmit your request, please send it [via email]." [24] At the beginning of the pandemic, there were no COVID-19-related disruptions to PHMSA's FOIA process reported. [25] July 6, 2020
National Archives and Records Administration NARA has stated that FOIA requesters "may experience a delay in receiving an initial acknowledgment as well as a substantive response to" FOIA requests and appeals right now. Additionally, its research facilities are closed until further notice.[26] Additionally, on Dec. 7, 2020, NARA issued a notice stating that it closed its College Park, MD facility,[27] resulting in further delays. Feb. 3, 2021
U.S. Citizenship and Immigration Services USCIS has stated that its "capacity to process paper FOIA requests and deliver records by mail will be greatly reduced" at the moment, and it encourages FOIA requesters to submit requests electronically.[28] July 6, 2020
Nuclear Regulatory Commission "NRC staff are working remotely and there may be additional delays in responding to FOIA requests. FOIA requests submitted by mail will not be considered received until FOIA staff is physically back in the office. Online and emailed FOIA requests will be processed as normal."[29] July 6, 2020
Internal Revenue Service Delays to be expected in processing FOIA requests.[30] July 6, 2020
Immigration and Customs Enforcement ICE's FOIA staff "will have limited access for processing incoming physical mail due to the national response to COVID-19. It is highly recommended that all correspondence regarding FOIA requests be sent electronically to ice-foia@ice.dhs.gov to avoid delay in processing."[31] July 6, 2020
National Security Agency Delays to be expected in conducting FOIA matters; possibility of closure of FOIA office.[32] March 25, 2020
Consumer Product Safety Commission Agency currently does not have access to U.S. mail and is only accepting FOIA requests electronically. Encourages use of Public Access Link (PAL). Alternatively, requests and appeals should be sent to cpscfoiarequests@cpsc.gov.[33] July 6, 2020
Consumer Financial Protection Bureau "[O]ur responses to mail and fax inquiries will be significantly delayed. The Bureau is working to restore the FOIA team’s access to these services . . . . To ensure a more timely response, please contact the Bureau’s FOIA team by email."[34] July 6, 2020
U.S. Postal Service "[Y]ou are strongly encouraged to submit a FOIA request or FOIA appeal via email or facsimile to prevent any delays in service. Please also include your email address with your FOIA request or FOIA appeal so that we may expeditiously provide you with any non-exempt responsive records."[35] July 6, 2020
Defense Intelligence Agency Significant delays to be expected.[36][37] July 6, 2020
Army Corps of Engineers Delays to be expected.[38][39] June 1, 2020
Department of Defense, Office of the Secretary of Defense and Joint Staff FOIA requests "should be submitted via our website or email" because "requests submitted via fax or U.S. mail will experience unavoidable delays."[40] July 6, 2020
Housing and Urban Development Delays to be expected.[41] July 6, 2020
DOJ, National Security Division Delays to be expected.[42][43] July 6, 2020
DOJ, Civil Division Delays to be expected.[44] July 6, 2020
DOJ, Criminal Division Delays to be expected. Also: "We will be able to acknowledge requests made electronically more quickly than by mail. You may reach out to our FOIA Requester Service Center and FOIA Public Liaison if you have any questions about your request."[45] July 6, 2020
DOJ, Office of Justice Programs Delays to be expected, but agency "will be able to acknowledge requests made electronically more quickly than by mail."[46] July 6, 2020
Department of Treasury, Inspector General for Tax Administration Delays to be expected if requests are submitted by U.S. mail. Send requests electronically via e-mail (FOIA.Reading.Room@tigta.treas.gov) or fax it to (202) 622-3339.[47] July 6, 2020
Bureau of Reclamation Delays to be expected for hardcopy records.[48] July 6, 2020
National Institutes of Health Delays to be expected. "Please submit all requests through our online portal rather than mail, fax, or courier, to ensure timely logging of your request."[49] July 6, 2020
Food and Drug Administration "Please submit all requests through our online portal . . . rather than mail, fax, or courier, to ensure timely logging of your request."[50] July 6, 2020
Department of Labor Still processing FOIA requests.[51] "[W]e are still able to receive and timely log FOIA requests and appeals submitted through the Department’s designated email addresses (foiarequests@dol.gov and foiaappeals@dol.gov, respectively) as well as those submitted through the National FOIA Portal.”[52] July 6, 2020
Department of Veterans Affairs "During this time, personnel will not have access to requests submitted to FOIA offices via hard copy mail and facsimile and there will be a delay in responses to such correspondence as well as the processing of requests and appeals. We encourage you to file your new requests or appeals using our electronic submission form . . . or by email."[53] July 6, 2020
General Services Administration "[Y]ou may experience a delay in receiving an initial acknowledgment as well as a substantive response to your FOIA request or appeal. We will be able to acknowledge requests made electronically more quickly than by mail."[54] July 6, 2020
United States Agency for International Development "Please note that USAID is unable to conduct a search for physical records while teleworking. As a result, all search requests will be limited to electronic records, unless you notify us that you want your request to remain open until USAID employees have physical access to their workspaces."[55] July 6, 2020
Department of Transportation The "FOIA team is working remotely and not able to process any requests mailed or faxed to the office. Any requests received by mail or fax after Monday, March 16, 2020, may not be processed until employees are able to return safely to the office."[56] July 6, 2020
Office of Government Information Services "Staff will not have access to mail and fax correspondence. As a result, there will be a delay in our responses to such correspondence. To ensure a more timely response to your inquiry, please contact us via email at ogis@nara.gov"[57] July 6, 2020
Drug Enforcement Administration "Please be advised that due to necessary operational changes as a result of the national emergency concerning the novel coronavirus disease (COVID-19) outbreak, there may be some delay in the processing of your request."[58] "Please also be advised, due to the national emergency concerning the novel coronavirus disease (COVID-19) outbreak, DEA, like many Federal Agencies, has mandated telework for its FOIA staff. As a result, DEA has limited access to certain cases, including yours. DEA will finish processing your request as quickly as possible at the resolution of the COVID-19 emergency." [June 15, 2020] July 31, 2020

Legal Issues and Challenges

Timing of Responses to Requests

The existence of COVID-19 and agencies' responses to it does not affect FOIA's deadlines for responding to requests. As the Office of Information Policy at the Department of Justice correctly noted, "All of the FOIA’s statutory response timeframes continue to apply during workforce adjustments such as maximum telework or building closures."[59]

Lawsuits

Several FOIA lawsuits have been filed since the COVID-19 outbreak, some of which concern the pandemic and the federal government's response.

Litigation Deadlines

Numerous FOIA cases that were pending before the COVID-19 outbreak have seen requests from government agencies for extensions of litigation deadlines.

External Sources/Additional Reading

References

  1. ↑ https://perma.cc/8KLW-TUEH
  2. ↑ https://perma.cc/7GT2-G2W2
  3. ↑ Decl. of Michael Seidel, ECF No. 11-1, Codebreaker Films LLC v. Federal Bureau of Investigation, Case No. 1:20-cv-02776 (March 5, 2021).
  4. ↑ Leopold, Jason (March 17, 2020). "The FBI Has Limited Public Records Requests During The Coronavirus Pandemic". BuzzFeed News.
  5. ↑ Leopold, Jason (April 13, 2020). "Tweet". Twitter.
  6. ↑ See, e.g., Defendant's Status Report, Assassination Archives & Research Ctr., Inc. v. Dep't of Justice, Case 18-1868 (TNM) (D.D.C. June 10, 2020).
  7. ↑ Declaration of Michael G. Seidel, Unpublished (Dec. 8, 2020; on file with author) (emphasis added)
  8. ↑ Defendant's Status Report, 100Reporters et al., v. Department of State, No. 19-1753 (D.D.C. June 25, 2020).
  9. ↑ Leopold, Jason (March 20, 2020). "Tweet". Twitter.
  10. ↑ Gerstein, Josh (March 27, 2020). "State Department FOIA work crippled by virus precautions". Politico.
  11. ↑ Blutstein, Allan (June 10, 2020). "FOIA News: State Dep't reopening FOIA office". FOIA Advisor.
  12. ↑ "CDC FOIA". Retrieved June 1, 2020.
  13. ↑ "Air Force FOIA".
  14. ↑ "Air Force FOIA".
  15. ↑ "Air Force FOIA".
  16. ↑ Soraghan, Mike (March 18, 2020). "COVID-19 vs. FOIA: The virus is winning". E&E News.
  17. ↑ Department of the Interior. "FOIA Guidance". Retrieved June 1, 2020.
  18. ↑ "Department of the Interior FOIA".
  19. ↑ Soraghan, Mike (March 18, 2020). "COVID-19 vs. FOIA: The virus is winning". E&E News.
  20. ↑ Leopold, Jason (April 7, 2020). "Tweet". Twitter.
  21. ↑ "DOE FOIA".
  22. ↑ National Nuclear Security Administration. "NNSA and the Freedom of Information Act (FOIA)". Retrieved June 1, 2020.
  23. ↑ Bonneville Power Administration. "How to Submit a FOIA Request". Retrieved June 1, 2020.
  24. ↑ Pipeline and Hazardous Materials Safety Administration. "FOIA Overview".
  25. ↑ Soraghan, Mike (March 18, 2020). "COVID-19 vs. FOIA: The virus is winning". E&E News.
  26. ↑ NARA. "Notice to NARA Researchers and FOIA Requesters".
  27. ↑ "NARA Notice 2021-039: Closure of Multiple Facilities in Maryland and Southern California" (PDF). Dec. 7, 2020. Check date values in: |date= (help)
  28. ↑ USCIS. "Request Records through the Freedom of Information Act or Privacy Act".
  29. ↑ Nuclear Regulatory Commission. "Freedom of Information Act and Privacy Act: Alert".
  30. ↑ IRS. "IRS Freedom of Information: Alert".
  31. ↑ ICE. "Submitting FOIA Request".
  32. ↑ Leopold, Jason (March 25, 2020). "Tweet". Twitter.
  33. ↑ Consumer Product Safety Commission. "CPSC Procedures Concerning COVID-19".
  34. ↑ Consumer Financial Protection Bureau. "FOIA requests".
  35. ↑ U.S. Postal Service. "COVID-19 Update: FOIA Requests and FOIA Appeals".
  36. ↑ Defense Intelligence Agency. "Freedom of Information Act (FOIA)".
  37. ↑ "COVID-19 FOIA impact (Defense Intelligence Agency)". MuckRock. March 18, 2020.
  38. ↑ US Army Corps of Engineers. "COVID-19 Impacts".
  39. ↑ US Army Corps of Engineers. "Freedom of Information Act (FOIA)".
  40. ↑ "Office of the Secretary of Defense and Joint Staff Freedom of Information Act Requester Service Center".
  41. ↑ HUD. "HUD COVID-19 Resources and Fact Sheets".
  42. ↑ American Oversight v. DOJ (March 25, 2020). "Joint Status Report".
  43. ↑ "NSD FOIA".
  44. ↑ "Civil Division FOIA E-Request Form".
  45. ↑ "CRM FOIA".
  46. ↑ DOJ, Office of Justice Programs. "Freedom of Information Act: Notice".
  47. ↑ Treasury Inspector General for Tax Administration. "*Important Notice to Requesters*".
  48. ↑ Bureau of Reclamation. "Freedom of Information Act and Privacy Act: Important Notice".
  49. ↑ National Institutes of Health. "Notice to FOIA Requesters".
  50. ↑ FDA. "How to Make a FOIA Request".
  51. ↑ Jones, Nate (April 17, 2020). "Tweet". Twitter.
  52. ↑ Department of Labor. "Freedom of Information Act".
  53. ↑ Department of Veterans Affairs. "Freedom Of Information Act FOIA".
  54. ↑ General Services Administration. "Freedom of Information Act (FOIA)".
  55. ↑ USAID. "Freedom of Information Act (FOIA)".
  56. ↑ Department of Transportation. "Submitting FOIA Requests".
  57. ↑ The Office of Government Information Services. "OGIS Notice".
  58. ↑ "Drug Enforcement Administration, MuckRock Agency Page". www.muckrock.com. July 31, 2020.
  59. ↑ "GUIDANCE FOR AGENCY FOIA ADMINISTRATION IN LIGHT OF COVID-19 IMPACTS". United States Department of Justice.
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