Pre-determination agency actions

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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

Agencies may take a variety of steps in processing a FOIA request before a determination is made, including categorizing requests, searching for records, and consulting with other agencies on whether records or portions thereof are exempt.

Accepting requests

Agencies usually accept FOIA requests in a variety of ways, including by post, fax, and email. Specific information on how each agency accepts requests can be found at the Agencies Landing Page.

Aggregating requests

The FOIA provides that “[m]ultiple requests involving unrelated matters shall not be aggregated” into one request by the agency.[1] However, the statute also provides that an agency may treat multiple requests as one where it receives “requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified [in FOIA], and the requests involve clearly related matters.”[2]

Multitrack processing

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Searching for records

See also: sufficiency of an agency's search

Legal Standards

Agencies have a duty to liberally construe FOIA requests to ensure responsive records are found.[3] To fulfill its search obligations, an agency must “demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.”[4] Under this standard, the question is not

"whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith."[5]

Nonetheless, an agency “cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested.”[6]

For more detail on the legal standards regarding searching for responsive records, see the page on sufficiency of an agency's search.

In Practice

In practice, each of the 100 different agencies subject to the Freedom of Information Act completes searches in its own unique way. According to the results of a survey conducted by the National Security Archive, some agencies use state of the art software, while others use no software at all.[7] The survey showed that in practice the search process goes something like this:

First, an agency receives a FOIA request. The request goes through an “initial phase” where an agency reviews if the request was sent to the correct agency or component, determines the request’s fee category and/or fee waiver status, and asks and answers other “initial” questions. The time this phase takes ranges from hours to months, depending on the agency.

Then, the request goes into a queue to be processed once it has been “perfected.” Generally, the first phase of processing a request is for the requested document or documents to be searched for.

The FOIA Ombudsman, the blog of the Office of Government Information Service (OGIS), states that, “It appears that frequently, Agencies are responsible for a mind-boggling amount of information, and finding a record amid years and years of accumulated documents can feel like searching for the proverbial needle in the haystack.”[8] This assessment appears to be largely correct.

Moreover, each agency searches their “haystack” in their own way. Some appear to do so methodically and efficiently, others haphazardly and imprecisely. Some agencies and agency components have access to state of the art e-discovery tools to search their records for the requested documents (though as was pointed out in the January 2017 FOIA Advisory Committee Meeting, some agencies only use these efficient tools after being sued); other agencies do not even search records electronically at all.[9]

Some FOIA professionals, including those at the Department of State, have centralized search capabilities, meaning that they have the ability to search large portions of their agency’s records themselves. Because the primary mission of FOIA processors at agencies is to process FOIA requests as quickly as possible, and because FOIA professionals are often well-trained at records management and retrieval, often centralized search is the quickest way to procure the documents requested.

Most agencies, however, appear to not have centralized FOIA search capabilities. This means that after the FOIA office receives a request, it “tasks it out” to the part of the agency that it believes is likely to have the documents. Then, in addition to all of their other job obligations, these federal employees –sometimes termed “subject matter experts”– are tasked to retrieve the requested document and provide it to the FOIA office to review (often with suggestions on what should be withheld or released).[10]

The FOIA office then receives the requested document or documents, reviews them, and sometimes redacts them for release. Unfortunately, statistics show that an extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.” Certainly, there are cases where requesters send requests to the wrong agency, request documents that do not exist, or where the requested records were properly (or improperly) destroyed. But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches. Administrative appeals often result in a second, more thorough search that finds the documents requested.[11]

Finally, after the FOIA office receives and reviews the requested documents –and if coordination or referral with another agency or component is not required– the last step is mailing or emailing the records to the requester with a letter explaining the number of documents released, the justification for any redaction, and the rights of the requester to appeal or contact OGIS.

Consultations/Referrals

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See Also

External Links

References

  1. 5 U.S.C. § 552(a)(4)(B)(iv).
  2. 5 U.S.C. § 552(a)(4)(B)(iv).
  3. See Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
  4. Valencia-Lucena v. United States Coast Guard, FOIA/PA Records Mgmt., 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted). See also Ancient Coin Collectors Guild v. United States Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (“An agency is required to perform more than a perfunctory search in response to a FOIA request.”).
  5. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. Dep't. of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984))
  6. Valencia-Lucenam 180 F.3d at 326 (citing Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (internal quotations omitted).
  7. FOIA Search Survey and Analysis, The National Security Archive.
  8. "The Business of Search, FOIA Ombudsman.
  9. January 2017 FOIA Advisory Committee
  10. FOIA Search Survey and Analysis, The National Security Archive.
  11. FOIA Search Survey and Analysis, The National Security Archive.