Government Shutdowns

Provided by The Reporters Committee for Freedom of the Press
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Introduction

In recent years, the federal government has experienced several lapses of funding resulting in "shutdowns" of executive branch agencies and departments. While nothing in FOIA itself provides for an extension of deadlines due to a shutdown, such events can and do, as a practical matter, affect FOIA requests and appeals in both administrative proceedings and litigation.

Effect of Government Shutdown on Acceptance and Processing of FOIA Requests

During government shutdowns, some agencies close their online FOIA submission systems and/or websites. 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.

2013 Shutdown

In 2013, the NSA, EPA, CIA, and FDA were among the agencies that announced they would not process FOIA requests until their funding was restored.[1]

The Department of the Interior, Department of Agriculture, and the Transportation Security Administration made their FOIA websites completely inactive.[2]

2018–19 Shutdown

The Department of Interior's FOIA submission website was closed during the 2018–19 shutdown, simply displaying a message that "No FOIA requests can be accepted or processed at this time."[3]

Other agencies stated that they will accept FOIA requests but will not start processing them until after funding is restored. The EEOC, for example, issued a notice on its website 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."[4]

Effect of Government Shutdown on Agencies' Deadlines for Responding to FOIA Requests

FOIA provides precise deadlines for agency actions in processing requests and appeals. Those deadlines are calculated in calendar days[5] or calendar days "excepting Saturdays, Sundays, and legal public holidays...."[6] As OGIS noted during the 2013 government shutdown, the:

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).[7]

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."[8]

The Office of Information Policy (OIP) 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.[9]

It should be noted that while OIP's guidance refers to "working days" in the context of FOIA as a whole, that phrase actually occurs only once in the statute, in reference to extending deadlines to make determinations when "unusual circumstances" are present.[10] FOIA's general deadlines are calculated in calendar days[11] or calendar days "excepting Saturdays, Sundays, and legal public holidays...."[12]

Effect of Government Shutdown on FOIA Litigation

Deadlines in federal FOIA litigation are frequently stayed during the pendency of a government shutdown.

References

  1. https://www.rcfp.org/foia-processing-shut-down-along-government/
  2. https://www.rcfp.org/foia-processing-shut-down-along-government/
  3. https://web.archive.org/web/20190109180608/https://www.doi.gov/foia/requests
  4. https://web.archive.org/save/https://www.eeoc.gov/shutdown.cfm
  5. 5 U.S.C. § 552(a)(6)(E) (agencies must provide a determination of whether to provide expedited processing within 10 calendar days)
  6. 5 U.S.C. § 552(a)(6)(A)(i) (agencies must provide a determination with respect to a request within 20 days "excepting Saturdays, Sundays, and legal public holidays....."
  7. https://web.archive.org/save/https://foia.blogs.archives.gov/2013/10/24/shutdown-didnt-stop-foia-clock/
  8. https://web.archive.org/save/https://foia.blogs.archives.gov/2013/10/24/shutdown-didnt-stop-foia-clock/<nowiki>
  9. https://web.archive.org/save/https://www.justice.gov/oip/blog/calculating-foia-response-times-after-government-shutdown
  10. 5 U.S.C. § 552(a)(6)(B)
  11. 5 U.S.C. § 552(a)(6)(E) (agencies must provide a determination of whether to provide expedited processing within 10 calendar days)
  12. 5 U.S.C. § 552(a)(6)(A)(i) (agencies must provide a determination with respect to a request within 20 days "excepting Saturdays, Sundays, and legal public holidays....."