Pre-determination communications

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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 will frequently communicate with FOIA requesters before making a determination as to the substance of the request.

Acknowledgement

The first communication a requester is likely to receive after submitting a FOIA request is an acknowledgement of receipt from the agency. These acknowledgements, which are not a determination, often assign a tracking number and provide other administrative information.

Estimated date of completion

Agencies are required to establish a telephone line or internet service that provides information about the request using the assigned tracking number, including an estimated date of completion.[1] The requirement was added by the OPEN Government Act of 2007.

Requests for information from the requester

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"Still interested" letters

Agencies will sometimes send communications to FOIA requesters to ask whether they are “still interested” in having their request processed. These letters indicate that if a response is not received within a certain number of days, the request will be administratively closed.[2] The legal basis for "still interested" letters is unclear.[3]

In July 2015, the Office of Information Policy (OIP) at the Department of Justice issued guidance to agencies on "still interested" letters, recommending that they afford requesters no less than 30 working days to respond.[4]

In April 2016 OGIS released an analysis of the practice with respect to FOIA requests submitted to Cabinet-level departments.[5] It concluded that:

  • the number of FOIA requests Cabinet-level agencies reported closing using still interested letters accounted for less than 1 percent of all FOIA requests processed by those agencies in all but one of the last 17 fiscal years;
  • the number of requests agencies reported as closing using still interested letters does not appear to have a large effect on the number of requests the agency reported pending at the end of the fiscal year;
  • there is no guidance or standard for reporting requests that agencies close using still interested letters; for this reason, it is difficult to get a true picture of how often these letters are used; and
  • current reporting does not capture the full effect of the use of still interested letters on FOIA requesters.[6]

In May 2016 OGIS released the results of its interviews with certain FOIA offices about their use of "still interested" letters.[7]. OGIS found that:

  • the way cases closed using "still interested" letters are categorized in annual FOIA reports is inconsistent;
  • use of "still interested" letters is more consistent as a result of OIP's July 2015 guidance; and
  • few offices reported having written policies on the use of "still interested" letters or alerting requesters to how these letters might be used.

In May 2016 OGIS also issued recommendations to reduce requester frustration with the use of "still interested" letters and improve transparency.[8] In the report, OGIS announced that it did not expect to issue any additional reports on the topic of "still interested" letters, but that it would continue to look at the use of the letters as part of its agency FOIA compliance assessments.

Public liaisons and FOIA officers

Executive Order (EO) 13392, Improving Agency Disclosure of Information, requires agencies to create FOIA Requester Service Centers and designate FOIA Public Liaisons.[9] The OPEN Government Act of 2007 codifies the role of FOIA Public Liaison, specifying that appointee should be a "supervisory official" and giving the FOIA Public Liaison the responsibility for "assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes."[10].

See Also

External Links

References

  1. 5 U.S.C. § 552(a)(7)
  2. Adam A. Marshall, Agencies want to know: are you still interested? The News Media & the Law (Fall 2014), https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2014/agencies-want-know-are-you-st
  3. Adam A. Marshall, Agencies want to know: are you still interested? The News Media & the Law (Fall 2014), https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2014/agencies-want-know-are-you-st
  4. https://www.justice.gov/oip/blog/oip-releases-new-guidance-agency-still-interested-inquiries
  5. https://ogis.archives.gov/Assets/Still-interested-part-1-final.pdf?method=1
  6. https://ogis.archives.gov/Assets/Still-interested-part-1-final.pdf?method=1
  7. https://ogis.archives.gov/Assets/Still-interested-part-2-final.pdf?method=1
  8. https://ogis.archives.gov/Assets/Still-interested-part-3-final.pdf?method=1
  9. https://www.gpo.gov/fdsys/pkg/FR-2005-12-19/pdf/05-24255.pdf
  10. 5 U.S.C. § 552 (l)