Pre-determination agency actions

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The FOIA Process

Making a FOIA Request

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Pre-determination communications

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Pre-determination agency actions

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Determinations

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Releasing Records

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Administrative Appeals and/or OGIS

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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

When you make a FOIA request, it can be placed in one of three tracks:

  • Track One: requests expedited in accordance with subsection (a)(6)(E) of the FOIA
  • Track Two: requests which do not involve voluminous records or lengthy consultation with other entities
  • Track Three: requests which involve voluminous records and for which lengthy or numerous consultations are required, or involve sensitive records

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.

Searching Federal Records Centers for Records

Although older records sought under FOIA should be less likely to be withheld due to the passage of time, they are often more difficult for agencies to locate. Often, when a requester requests a “historic document” (defined as older than 25 years) from an agency, the agency that it generally only deals with modern records, has found “no responsive records,” and is closing the FOIA request. Sometimes the agency will include language kindly suggesting that you conduct your search at the US National Archives (NARA).

But often these records are not at NARA either. According to NARA, only 1 to 3 percent of all federal records are deemed “permanently valuable historical records” and preserved for researchers at the Archives. [12] But what it is less clear about is that there can be a decades-long lag time between when these permanent historic records are moved from agencies to NARA –and that key historic documents are often held at Federal Records Centers during these decades. There are eighteen Federal Records Centers where responsive records may be stored, including the Washington National Records Center, National Personnel Records Center (Military) and National Personnel Records Center (Civilian). The Washington Records Center holds many records produced and received by agency headquarters. [13] Although they are required to, agencies often do not search these Record Centers until triggered by requester language in a FOIA request or appeal.

US National Archives regulations state, “NARA’s Federal records centers [including the Washington Records Center] store records that agencies no longer need for day-to-day business. These records remain in the legal custody of the agencies that created them. Requests for access to another agency’s records in a NARA Federal records center should be made directly to the originating agency. We do not process FOIA requests for these records.” [14] One of NARA’s blogs, the FOIA Ombudsman, has recently elaborated: “What if an agency receives a FOIA request for an agency record that is being stored in an FRC? It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.” [15]

To remind agencies of this responsibility, the National Security Archive recommends requesters include the following language for requests to agencies for older documents: “As you know, your agency is required to search the records stored at NARA’s Federal Records Centers including the Washington Records Center in Suitland, MD, but still technically under your agency’s control. For more information see 36 CFR 1250.8."

Additionally, the public is allowed to schedule appointments to view onsite the SF (Standard Form) 135s describing the records held at the Federal Records Centers. SF-135s are the documents that agencies are required to fill out when they transfer records to the Federal Records Centers. In theory, agencies are required to describe the records they transfer to the FRCs with some degree of specificity –to the box or folder level. Generally, at the FRC, researchers can easily view the SF 135s, organized chronologically by Record Group, with limited restrictions. Researchers can then use these documentary indexes to file FOIAs or MDRs to the originating agencies (not NARA) for the identified records held at the Federal Record Centers. [16]

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.
  12. ↑ "Research our Records, US National Archives.
  13. ↑ "Federal Records Centers, US National Archives.
  14. ↑ PART 1250—NARA RECORDS SUBJECT TO FOIA, Electronic Code of Federal Regulations.
  15. ↑ "FOIA and NARA’s Federal Records Centers", FOIA Ombudsman.
  16. ↑ "The Indiana Jones Warehouse: How to Use FOIA to get Documents from Purgatory", The National Security Archive.
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