Determinations

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The FOIA Process

Making a FOIA Request

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Pre-determination communications

Pre-determination agency actions

Determinations

Releasing Records

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Administrative Appeals and/or OGIS

Litigation

Introduction

The first substantive response to a FOIA request is called a "determination." For an agency response to qualify as a determination, it must complete its a search for responsive records, review the records, and communicate to the requester which records will be released, which will be withheld, and the legal basis for any withholdings. The deadline for an agency to make a determination is usually 20 working dates from the date it is received.

Note that a mere acknowledgement of receipt of a request by an agency is not a "determination" under the law.

Agency deadlines for making a determination

Non-expedited requests

For ordinary (i.e., non-expedited) FOIA requests, the agency make a "determination" within 20 working days.[1] The 20 working day clock begins to run "on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency" designated in the agency’s regulations to receive FOIA requests.[2]

Expedited requests

If an request has been granted Expedited Processing, the agency must make a determination "as soon as practicable[.]"[3] In one case, the District Court for the District of Columbia interpreted this phrase to mean that

"an agency that violates the twenty-day deadline applicable to standard FOIA requests presumptively also fails to process an expedited request 'as soon as practicable.' That is, a prima facie showing of agency delay exists when an agency fails to process an expedited FOIA request within the time limit applicable to standard FOIA requests."[4]

Extensions to an agency's deadline

An agency may extend the 20-working day deadline for making a determination if "unusual circumstances" exist and it sends a written notification to the requester setting forth the unusual circumstances and the date on which a determination will be made.[5] The extension generally may not be for more than 10 working days.[6]

FOIA defines "unusual circumstances" as including three different situations:

"As used in this subparagraph, "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular requests—
(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein."[7]

If an agency invokes the 10 working day extension, but the request cannot be processed within that time frame, it must provide the requester with an opportunity to arrange an alternative time frame or modify the request.[8] A requester is under no obligation to modify their request or the agency's deadline, but a refusal to do so may factor into whether "exceptional circumstances" exist, which may have implications in litigation.[9]

Tolling an agency's deadline

In addition to the extensions referenced above, an agency may "toll" (i.e. pause) the 20-working day deadline for two reasons:

  • First, the agency "may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester[.]"[10]
  • Second, the agency may toll the deadline "if necessary to clarify with the requester issues regarding fee assessment."[11]

Once the requester provides the requested information, the tolling period is ended and the 20-working day clock begins to run again.[12]

The tolling provisions in FOIA do not apply to a request that has been granted expedited processing.[13]

Enforcing an agency's deadline

If an agency fails to make a determination on a FOIA request by the relevant deadline, a requester may either file an administrative appeal or commence judicial proceedings against the agency. See the entries on Administrative Appeals and Exhaustion of Administrative Remedies for more information.

Required contents of a determination

There are several substantive requirements for an agency's response must meet to be considered a "determination." As noted elsewhere, acknowledgements, status updates, and other communications do not qualify as a determination.

Specifically, in order for an agency's response to qualify as a "determination," the agency must:

  1. gather and review the documents;
  2. determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents;[14]
  3. inform the requester that it can appeal whatever portion of the 'determination' is adverse.[15]

Although "a 'determination' does not require actual production of the records to the requester at the exact same time that the 'determination' is communicated to the requester," it "must be more than just an initial statement that the agency will generally comply with a FOIA request and will produce non-exempt documents and claim exemptions in the future."[16]

Per the requirements of the 2016 amendments to FOIA, if a determination is adverse agencies must inform the requester of their rights to seek dispute resolution services from the FOIA Public Liaison of the agency or OGIS.[17]

Any denial of a request for records must also include "the names and titles or positions of each person responsible for the denial of such request."[18]

Recent district court cases regarding determinations

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See Also

External Links

References

  1. 5 U.S.C. § 552(a)(6)(A)(i)
  2. 5 U.S.C. § 552(a)(6)(A)
  3. 5 U.S.C. § 552(a)(6)(E)(iii)
  4. Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006)
  5. 5 U.S.C. § 552(a)(6)(B)(i)
  6. 5 U.S.C. § 552(a)(6)(B)(i)
  7. 5 U.S.C. § 552(a)(6)(B)(iii)
  8. 5 U.S.C. § 552(a)(6)(B)(ii)
  9. 5 U.S.C. § 552(a)(6)(B)(ii)
  10. 5 U.S.C. § 552(a)(6)(A)
  11. 5 U.S.C. § 552(a)(6)(A)
  12. 5 U.S.C. § 552(a)(6)(A)
  13. See 5 U.S.C. § 552(a)(6)(A) (stating that "The 20-day period under clause (i)....)
  14. Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 186 (D.C. Cir. 2013) ("The statutory requirement that the agency provide 'the reasons' for its 'determination' strongly suggests that the reasons are particularized to the 'determination'—most obviously, the specific exemptions that may apply to certain withheld records.")
  15. Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 188 (D.C. Cir. 2013) ("CREW").
  16. CREW, 711 F.3d at 188 (holding that an agreement to produce records on a rolling basis does not constitute a "determination" that must be administratively appealed before the requester can file suit under FOIA).
  17. 5 U.S.C. § 552(a)(6)(A)
  18. 5 U.S.C. § 552(a)(6)(C)(i)