Section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, imposes several new requirements on agencies that impact the time limits for complying with FOIA requests and impose consequences on agencies when those time limits are not met. This section will take effect on December 31, 2008, and will apply to FOIA requests “filed on or after that effective date.” Id. § 6(b)(2). Accordingly, beginning with requests received on December 31, 2008, agency FOIA offices will: 1) be required to forward any misdirected FOIA requests received by them to the proper FOIA office within the agency, within ten working days; 2) be limited in the number of times they can “toll” the twenty working-day response period; and 3) be precluded from assessing search (or if applicable, duplication) fees if they are unable to comply with the FOIA's response time, unless the exceptions to this limitation are met.
OIP is providing guidance on each of these three provisions in separate FOIA Post articles. This article addresses the first requirement of Section 6 to route misdirected FOIA requests within the agency within ten working days of receipt.
Section 6(a)(1) of the OPEN Government Act amends 5 U.S.C. § 552(a)(6)(A), which is the provision in the FOIA that provides the general twenty working-day time limit for responding to FOIA requests. Section 6(a)(1) of the OPEN Government Act now provides criteria for when that twenty working-day time period begins to run.
Under this new provision, the twenty working-day time period to process a request commences “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 that is designated in the agency’s regulations under this section to receive requests.” § 6(a)(1). This provision addresses the situation where a FOIA request is mistakenly addressed to a component of the agency that is designated to receive FOIA requests, but is not itself the proper component to process the request. In such a situation, the component that receives such a misdirected request -- provided it is a component of the agency that is designated by the agency’s FOIA regulations to receive requests -- has ten working days within which to forward the FOIA request to the appropriate agency component for processing. Once the FOIA request has been forwarded and received by the appropriate agency component -- which must take place within ten working days -- the twenty working-day time period to respond to the request commences.
As a result of this provision, all components of an agency that are designated by the agency’s regulations to receive FOIA requests, [hereinafter agency “FOIA offices”], must ensure that they promptly review each FOIA request upon receipt to make the threshold determination whether they are the appropriate FOIA office within the agency to process that request. If there is information in the request letter itself that indicates the request was misdirected, they, as the receiving FOIA office, must be sure to route the FOIA request to the proper FOIA office within the agency within ten working days. By doing so, the receiving FOIA office ensures that the proper FOIA office has the full twenty working-day time period to respond to the request.
By contrast, if the receiving FOIA office fails to route the misdirected request within ten working days, and the request is otherwise a proper FOIA request, the twenty-day response time period commences on the tenth day nonetheless. As a result, agency FOIA offices must be sure that they avoid the situation where their delayed routing of a request results in the proper FOIA office losing some or even all of its response time.
Example: If the receiving FOIA office within the agency determines that the request is misdirected and so then routes the misdirected request to the proper FOIA office within the agency and such routing takes seven days, that amount of time is within the time period allowed by the new routing requirement and the proper FOIA office will have twenty working days, starting with its receipt of the request, to respond.
Example: If the receiving FOIA office takes twelve days to route the misdirected request to the proper FOIA office within the agency, that amount of time is two days beyond the ten-day period provided by the new routing requirement. The twenty-day response time period begins to run ten working days after receipt by the receiving FOIA office, even if the proper FOIA office has not yet received the request. In this example, the proper FOIA office loses two days of the twenty-day response period and has only eighteen working days to respond to the request.
Example: If the receiving FOIA office takes thirty-five working days to route the misdirected request to the proper FOIA office within the agency, and the request is otherwise a proper FOIA request, the proper FOIA office’s time to respond to the request has already expired before it even receives the request.
The routing requirement is triggered by receipt of a request by a component of an agency that is designated by an agency’s regulations to receive requests.
Example: A FOIA request is addressed to, and received by, a program office in an agency that is not designated to receive FOIA requests. Fifteen working days later, the program office forwards the FOIA request to the designated FOIA office for that program office. The FOIA office reviews the FOIA request and determines that the request should have been addressed to another designated FOIA office in that agency. Therefore, the routing requirement applies. This receiving FOIA office then forwards the FOIA request to the proper FOIA office, and it does so within ten working days of receiving the request from the program office. As a result, when the proper FOIA office receives the forwarded FOIA request, the twenty working-day period begins to run.
As can be seen by these examples, FOIA offices will be dependent upon the actions of their fellow FOIA offices within their agency to promptly route any misdirected requests they might receive to the proper FOIA office. If the routing is done within ten working days, the twenty working-day response period will begin upon receipt of the request by the proper FOIA office.
As discussed above, all FOIA offices upon receipt of a FOIA request must make an initial determination whether they are the proper FOIA office to handle the request. In the event they are not, they must route the misdirected request to the proper FOIA office within the agency within ten working days. In order to ensure that all offices involved in the handling of FOIA requests can accurately calculate the response times available to them, all FOIA offices should note, directly on the request letter, the date of receipt in their office. For any request that was misdirected and so needs to be routed, the receiving FOIA office should note its date of receipt, and then the proper FOIA office will, in turn, note a second or subsequent date memorializing when the request was received by the proper FOIA office. These actions will enable the proper FOIA office to assess when the twenty-day time period for responding to a FOIA request begins. As noted above, in cases where more than ten working days has passed since the receiving FOIA office received the request, the proper FOIA office will use the dates to determine any diminished period of time it might have for responding to the FOIA request.
In those instances where a receiving FOIA office has routed a misdirected request to another FOIA office within the agency for processing, the receiving FOIA office is encouraged to notify the requester of the routing. By informing the requester that his or her request was misdirected and has been routed elsewhere, the requester will know that the twenty-day response period has not yet begun to run. He or she will also be apprised of the location of the request and so will know what office to contact if he or she wishes to discuss it. The proper FOIA office should also inform the requester of the date of its receipt of the request from the receiving office. This can be done in an acknowledgment letter or in other correspondence with the requester.
Similarly, when routing a misdirected request to another FOIA office within the agency, receiving FOIA offices are encouraged to include a cover sheet or note for that other FOIA office, indicating that the request was misdirected to the receiving component and is being forwarded to the proper component for handling.
Question: In the past, if a request was not directed to the proper FOIA office within the agency, it was not considered “received” and the receiving FOIA office could merely advise the requester that he needed to make a request directly to the proper FOIA office. Can a FOIA office still do that?
Answer: No. Starting December 31, 2008, the OPEN Government Act will impose a new obligation on agencies to forward, or route, misdirected requests to the proper FOIA office within the agency. This routing requirement only applies to those requests that are directed to a FOIA office within the agency that is designated by the agency’s regulations to receive FOIA requests. If such a FOIA office receives a request, but is not itself the proper FOIA office to respond to the request, the OPEN Government Act will now require that the receiving FOIA office route the request to the proper FOIA office within ten working days. As a result, if a requester mistakenly fails to send her request to the proper FOIA office in the first instance, that alone does not disqualify the request from being properly made. It will now be the obligation of the receiving FOIA office to route the misdirected request to the proper FOIA office within the agency.
Question: After a misdirected request is routed to the proper FOIA office by the receiving FOIA office, what should the proper FOIA office do if it determines that the request is not properly made for some other reason, such as it does not reasonably describe the records sought, or fails to comply with some other procedural requirement established in the agency's regulations for making a FOIA request?
Answer: The requirement to route a misdirected FOIA request to the proper FOIA office within the agency does not change any other existing requirements for making a proper FOIA request. So, if the request is not reasonably described, for example, or if the requester has failed to provide a required verification of identity, or fails to satisfy any other procedural requirement set out in the agency’s regulations, the proper FOIA office should communicate with the requester directly to clear up those procedural deficiencies with the request. Until the request meets the remaining requirements for being a proper request, the twenty-day response period does not begin to run.
Question: Wouldn’t it be easier if the receiving FOIA office just advised the requester of any procedural deficiencies in the request, rather than routing the request to the proper FOIA office for that office to do so?
Answer: Not necessarily. If a receiving FOIA office can readily determine that another FOIA office is the proper office to handle the request, it should route the request without making any other determination. Because agency FOIA offices have only ten working days to route a misdirected request to the proper FOIA office, and because the proper FOIA office is in the best position to determine the nature of any procedural deficiencies with the request, it is most efficient for the receiving FOIA office to make only the threshold determination if it is the proper FOIA office to handle the request. If in fact it is not, the receiving FOIA office should promptly forward the request to the proper FOIA office. That office, in turn, is best situated to communicate with the requester to clear up any procedural deficiencies with the request.
Question: If the receiving FOIA office is uncertain what type of records the requester seeks, or is otherwise unable to determine what office is the proper FOIA office, should it contact the requester to clarify the scope of the request?
Answer: Yes. It is always a good idea to communicate with requesters regarding their requests. Such communication can be a useful vehicle to clarify issues regarding the proper component to handle a given request.
Question: What if a FOIA office receives a FOIA request that should have been directed to another federal agency?
Answer: The ten-day routing requirement only applies to requests misdirected to the wrong component within the agency. If another agency should have received the request, the requester should be advised to send his request to that other agency.
Question: What if a requester directs his request to an office that is not a FOIA office in the first instance?
Answer: The ten-day routing requirement only applies to requests that are received by a component of the agency that is designated in the agency’s FOIA regulations to receive requests. Thus, the ten-day routing requirement would not apply until the request is received by a designated FOIA officer in the agency.
As these examples illustrate, it is always in the best interest of the FOIA requester to address his or her request to the proper FOIA office as set out in an agency’s FOIA regulations. That way the requester ensures that the twenty-day response period begins directly upon receipt of the request.
Beginning with requests received on December 31, 2008, agency FOIA offices will be required to route any misdirected FOIA requests to the proper FOIA office within their agency, within ten working days. By doing so, they will ensure that the proper FOIA office will have the full benefit of the twenty working-day time limit to respond to the request. (posted 11/18/2008)
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