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L. Agency Response to Request

Text:

(a)(6)(A). Each agency, upon any request for records made under this paragraph (1),(2) or (3) of this subsection, shall --

(i) determine within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.

(B) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension of more than ten working days, except as provided in clause (ii) of this subparagraph.

(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).

(iii) As used in this subparagraph, "unusual circumstances" means, but only to the extent necessary to the proper processing of the particular request --

(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records, which are demanded in a single request; or

(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

(IV) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requester, or by a group of requesters 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 this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.

(C) Any person making a request to any agency for records under paragraph (1), (2) or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.

(ii) For purposes of this subparagraph, the term "exceptional circumstances" does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing the request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for the purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing.

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records --

(I) in cases in which the person requesting the records demonstrates a compelling need; and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under the subparagraph must ensure --

(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under the subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.

(v) For purposes of this subparagraph, the term "compelling need" means --

(I) that a failure to obtain requested records on an expedited basis under the paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

(v) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.

Discussion:

This section was added by the 1974 Amendments and reflected Congress' concern over what it described as agencies' "excessive delay" in responding to FOIA requests. Source Book II at 126. See also id. at 175-180.

Its basic purpose is to establish administrative deadlines within which agencies are required to make a substantive response to an FOIA request (i.e., the requirement is not satisfied by an acknowledgment letter). These deadlines are set forth in Section (a)(6)(A).

Under the 1974 Amendments, agencies were required to make a substantive response to initial requests within 10 working days. Effective November 1, 1997, the 1996 Amendments expanded this time limit to 20 working days. The other provisions of subparagraph (a)(6)(A) remain the same. If an agency denies any part of the request, it must inform the requester of (1) the reasons for that action, and (2) his right to appeal the denial to the head of the agency. An explanation of any procedural requirements should be included with the letter.

By far the most common reason for a denial is a claim that the withheld records are exempt under Section (b). Although arguments have been made both ways, it seems more in keeping with the spirit and the letter of the FOIA to conclude that the following responses are also denials within the meaning of Section (a)(6)(A):

1. no records (or no agency records) within the scope of the request;

2. a refusal to confirm or deny the existence of records within the scope of the request (a response which, as explained above, should itself be justified under an exemption); and

3. a claim that the agency is prohibited from disclosing the records (e.g., by an injunction).

There is also a difference of opinion as to whether the denial of a request for a waiver or reduction of fees constitutes a denial within the meaning of this paragraph. There is no good reason, however, for any agency not to treat it as such, and by so doing it will probably create a better administrative record for use in the event the requester seeks judicial review.

If the requester does file an appeal, the agency has 20 working days to make a substantive response. The Justice Department has advised agencies that since the FOIA provides for an administrative "appeal," "the agency official charged with acting on appeals must be different from the official responsible for the initial denials." 1975 Blue Book, Appendix B at 6.

Some agencies have promulgated regulations requiring that an FOIA appeal be filed within a specified number of days. This requirement is certainly valid as a basis for shifting initial denials to an inactive file, but it makes no sense for an agency to refuse to consider an appeal filed after the expiration of that period. If it does, the requester need only file a new initial request. He may (as explained below) even treat the agency's failure to make a substantive response as an exhaustion of his administrative remedies and file suit.

If the decision on appeal is to affirm all or part of the initial denial, the agency's response must inform the requester of the reasons for that decision and the provision for judicial review.

There is also a requirement in Section (a)(6)(C) that any denial of an FOIA request "shall set forth the name and titles or positions of each person responsible for the denial. . ." This requirement has meaning only if it is read as applying to the substantive responses required by subparagraph (a)(6)(A).

There has been considerable confusion and disagreement over the date on which these administrative deadlines begin running. It would seem that if a request is submitted in accordance with an agency's regulations, the count should begin on its date of receipt. If, however, it is misaddressed or is not immediately recognizable as an FOIA request, the agency should be allowed a reasonable period of time to get it to the proper person.

In subparagraph (a)(6)(B) Congress gave an extremely limited recognition of the fact that these administrative deadlines would not be adequate in all situations. It therefore defined three "unusual circumstances" in which agencies could take up to an additional 10 working days. That is 10 days total, not 10 for initial requests and an additional 10 for appeals. These circumstances are set forth in the text above and do not require further elaboration. An agency wishing to utilize them must inform the requester.

The 1996 Amendments added a requirement that when an agency determines that it cannot meet even the extended deadline (i.e., 30 working days after November 1, 1997), it must notify the requester of this fact and "provide the person with an opportunity to limit the scope of the request so that [the agency will be able to process it] within that time limit[,] or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request." If the requester refuses to work with the agency as prescribed in this language, courts are to take that refusal into account when making a determination concerning "exceptional circumstances" under subparagraph (a)(6)(C) discussed below.

The 1996 Amendments also added language to this subparagraph authorizing agencies to promulgate regulations establishing procedures and criteria under which they would aggregate requests from a single requester which relate to each other so as to establish "unusual circumstances."

The answer to what happens if the agency fails to meet one of these administrative deadlines is found in subparagraph (a)(6)(C) -- the requester "shall be deemed to have exhausted his administrative remedies" and thus to have the option of filing suit without waiting for the agency's response. If he does so, however, the agency still has one more card it can play. It can attempt to convince the court that "exceptional circumstances" (not defined) exist and that it "is exercising due diligence" (also not defined) in responding to the request. If it succeeds, the court can put the case on hold and grant the agency additional time to complete its processing.

The leading case on this procedure is Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). The court held that: (1) an agency's receipt of a large volume of requests constituted exceptional circumstances; and (2) the commitment of a substantial number of personnel to processing them on a "first-in, first-out" basis constituted due diligence. There is a minority contra view. Hamlin v. Kelly, 433 F. Supp. 180 (N.D. Ill. 1977), but it has not gained any followers.

There is also a caveat to the Open America rule which provides that agencies are required to move a requester to the head of the line when the requester demonstrates a special need for it to do so. E.g., Exner v. FBI, F.Supp. 1349 (S.D. Cal. 1978), aff'd 612 F.2d 1202 (9th Cir. 1980); Cleaver v. Kelly, 427 F.Supp. 80 (D.D.C. 1976). Courts seem to require that the special need involve some serious consequences that the special receipt of the records might help avoid. Thus, courts have not shown any great sympathy for authors seeking to meet deadlines. Lisee v. CIA, 741 F.Supp. 988 (D.D.C. 1990). It is improper, however, for a district court to dismiss a requester's challenge to an agency's failure to respond within 10 days (20 after November 1, 1997) solely on the basis of its findings that he/she has not presented facts requiring that the agency process the request out of turn. It must also expressly find that exceptional circumstances exist and that the agency is exercising due diligence.

In what seems a reasonable compromise, at least one court has expressed the view that none of these decisions "evidence sufficient concern of the rights delineated under the statutes and attaching to both practices." Its answer was to direct the agency to make a series of periodic releases as it processed the records rather than wait until all of them had been analyzed. Hinton v. FBI, 527 F.Supp. 223, 225 (E.D. Pa. 1981).

It appeared a few years ago that courts were going to begin questioning agencies' automatic reliance on Open America to excuse a pattern of not even coming close to meeting the 10-day administrative deadline as a result of a backlog. Mayock v. INS, 714 F.Supp. 1558 (N.D. Cal. 1989), is an example of such a case. The court began by recognizing that "in interpreting FOIA's time provisions the courts have struggled with the obvious tension between congressional aspirations and agency realities." 714 F.Supp. at 1564. It then engaged in a detailed discussion of Open America and its progeny, concluding that the questions of whether a routine administrative backlog always constitutes exceptional circumstances, and whether a "first in, first out" processing procedure always satisfies the due diligence requirement, remain far from settled.

It then proceeded to answer those questions in the negative. "While Congress apparently did not assess the costs of compliance with FOIA time deadlines [e.g., the costs of adding enough staff to prevent backlogs], this court has difficulty finding that a normal predictable workload is an `exceptional circumstance,' especially when the INS has made no showing that it has unsuccessfully sought more FOIA resources from Congress or attempted to redirect its existing resources." 714 F.Supp. at 1565-66.

The court also found that the INS could not claim due diligence in light of the fact that "it accords no weight to the aliens' need for the information in a pending deportation proceeding." 714 F.Supp. at 1566.

It thus concluded that while subparagraph (a)(6)(C) "might be invoked as a reason for requesting additional time for individual requests that are large and complicated, it does not constitute a defense to delays that result from the ordinary course of business in processing FOIA requests." 714 F.Supp. at 1566.

In conclusion, the court declined to establish rigid priorities for INS' processing of requests, but did "order that the urgency of the need for the information in deportation or exclusion proceedings [in which there is no discovery] be given due consideration b the INS in determining the order in which it will respond to FOIA requests." 714 F.Supp. at 1568.

In Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991), the court of appeals reversed the district court's grant of summary judgment, but did not rule that it had erred in its interpretation of the law. Instead, the appellate court held that summary judgment was inappropriate because the material facts remained in dispute. The parties ultimately settled the case without any subsequent rulings by the district court.

The court went even further, however, in Ray v. Dept. of Justice, 770 F.Supp. 1544 (S.D. Fla. 1990). It reached the same result on the issues of whether (1) a continuing inability to deal with the volume of incoming requests constituted exceptional circumstances, and (2) a failure to give priority to requests seeking records for use in deportation proceedings constituted due diligence. More disturbing to the government, however, was the court's willingness to hold that it had the authority to order an agency to commit whatever resources were necessary to meet the statutory response deadline -- even if such action meant an inability to perform other agency functions.

Surprisingly, however, the courts did not follow the rationale of these decisions, and continued to show great deference to agencies' Open America arguments.

The 1996 Amendments, however, completely rewrote the rules in this area. After November 1, 1997, courts will no longer be able to find that exceptional circumstances exist when the agency backlog "results from a predictable agency workload of requests under [paragraph (a)(3)], unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." 5 U.S.C. §552(a)(6)(C)(ii).

New language in this subparagraph repeats the provision that courts are to take a requester's refusal to work with an agency in attempting to modify his or her request (without adversely affecting the request's basic objectives) into account when deciding whether to grant the agency additional time to process the request on the basis of exceptional circumstances. 5 U.S.C. §552(a)(6)(C)(iii).

The 1996 Amendments also add new subparagraphs (D) and (E), which expressly authorize a multitrack processing system, and require regulations establishing procedures and criteria for determining whether to grant or deny requests for expedited processing (i.e., to process a request ahead of ones received earlier). The Amendments require agencies to respond to requests for expedited treatment within 10 calendar days. 5 U.S.C. §552(a)(6)(E)(ii)(I). See, e.g., 28 C.F.R. §16.5(b) and (d).

Fiduccia v. U.S. Dept. of Justice, 185 F.3d 1035 (9th Cir. 1999), is one of the first comprehensive appellate decisions under the 1996 amendments. There were approximately 1800 pages of records at issue. The court first ruled that filing a lawsuit does not require an agency to process that request out of turn. It cited the new language in 5 U.S.C. § 552(a)(6)(E)(iv) for the principle "that district courts do not have jurisdiction to review agency denials of expedited processing after the agency has provided a complete response to the request for expedition." 185 F.3d at 1041. It then rejected the FBI's argument, however, that under its two-track system (i.e., different tracks for small and large requests) it needed another eight years to complete processing these 1800 pages. The FBI had cited the following in support of this claim:

increased workload

shortage of personnel and the Department of Justice's decision not to request an increase

presence of a much larger case ahead of this one

increase in number of requests in litigation

new law giving priority to requests involving records concerning the Kennedy assassination

The court said that it was up to federal agencies "to educate Congress on the practical problems they have [in processing FOIA requests in a timely manner], and attempt to persuade Congress [either] to change the law or provide funds to achieve compliance. . . It may be that agency heads. . . can be forced by the [FOIA] to divert staff from programs they think more valuable than [FOIA] compliance." 185 F.3d at 1041.

A final new subparagraph, (F), requires agencies denying access to all or part of the records sought in any request to "make a reasonable effort to estimate the volume" of records withheld, "unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made."

All the amendments to paragraph (a)(6) became effective on November 1, 1997.

Oglesby v. U.S. Army, 920 F.2d 57 (D.C. Cir. 1990), constituted a novel interpretation of the 10 working day deadline for initial requests. The court held that if a requester elects not to treat the agency's failure to respond in a timely manner as an exhaustion of administrative remedies and waits for the agency's response, he has waived his right to file suit until he files an administrative appeal and either receives a response or the 20-working day deadline (and any applicable extension) expires. In Voinche v. FBI, 999 F.2d 962 (5th Cir. 1993), the agency responded after the requester filed suit and withheld some of the requested records. The court held that not only did the agency's response moot the tardiness claim, but also required the requester to exhaust his administrative remedies through an agency appeal before he could challenge the withholdings. Accord, Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994).

Based on two decisions from the District for the District of Columbia, it is at least arguable that the court in Mayock was influenced more by the requester's need for the records in a deportation proceeding than the agency's continuing backlog. Both of these decisions involved the FBI, and one the National Security Council as well, which have substantial, ongoing backlogs, but in neither case did the court even discuss this fact as a potential ground for rejecting the agencies' Open America argument. The requesters in these cases were both authors seeking records needed to meet a publishing deadline. The court made it clear that this fact does not require agencies to grant expedited treatment. Lisee v. CIA, 741 F.Supp. 988 (D.D.C. 1990); Summers v. Dept. of Justice, 733 F.Supp. 443 (1990).

Next Section: M. Exemptions