Guidance for Agency FOIA Administration in Light of COVID-19 Impacts

Guidance for Agency FOIA Administration in Light of COVID-19 Impacts

Since mid-March, agencies have adjusted to new workforce policies to protect the health and well-being of their employees while continuing their agencies’ missions.  Federal employees responsible for agency Freedom of Information Act (FOIA) programs have been confronted with many of the same challenges as other professionals managing new physical distancing measures, other health precautions, and caretaking responsibilities.  OIP has been in close contact with agencies to identify the types of adjustments that have been necessary in light of COVID-19 and the range of impacts on various FOIA programs.  In light of these new challenges, OIP has been providing advice to agencies that focuses on finding workable solutions within current workforce policies to maximize the efficiency and effectiveness of FOIA programs.  

Most agencies have been impacted by the current circumstances in some way, but many are also able to continue operating with less significant disruptions.  Agencies are, of course, impacted differently based on their unique needs, current capabilities to operate remotely, staffing issues, the types of records they process, existing FOIA processes, and technological capabilities.  Many agencies have faced challenges as a result of staffing and technology limitations, as well as challenges at various stages of the FOIA process, ranging from request intake to conducting searches, processing certain types of records, and providing final responses.  Agencies with the capability to process records, even at a diminished pace, should do so, subject to appropriate safety precautions necessary to protect the health of their employees.  OIP issues this guidance to address frequently asked questions and to further assist agencies in continuing to fulfill their FOIA obligations during this unprecedented time. 

As the Department of Justice’s FOIA Guidelines emphasize, the FOIA “reflects our nation’s fundamental commitment to open government.”  During these times, even as agencies are working under new constraints in light of COVID-19, agencies’ legal obligations under the FOIA continue.  The law remains an important tool for the public to gain access to government information to stay informed about government activities.  Accordingly, as a general matter, to the extent feasible agencies should work to ensure that their FOIA operations continue in compliance with the FOIA's requirements.  OIP encourages agencies to continuously assess their FOIA programs as circumstances evolve with a focus on finding workable solutions to maximize the efficiency and effectiveness of FOIA administration within the parameters of their agency's workplace policies.  

FOIA's Statutory Time Limits Remain

All of the FOIA’s statutory response timeframes continue to apply during workforce adjustments such as maximum telework or building closures.  The FOIA generally gives agencies twenty (20) working (business) days to respond to requests and appeals, unless there are unusual circumstances as defined by the FOIA, in which case agencies can extend the deadline by up to an additional ten working days.  5 U.S.C. § 552(a)(6)(A)-(B) (2018).  The FOIA permits agencies to “toll” the time needed to respond to a request one time for clarification and as many times as needed for fee questions.  Id. § 552(a)(6)(A)(ii).  The FOIA also requires agencies to respond to requests for expedited processing within ten calendar days.  Id. § 552(a)(6)(E)(ii).  During this time of COVID-19-related limitations, an agency may still receive additional time to respond to initial requests if the agency can demonstrate that it satisfies the standard for unusual circumstances or tolling under the statute.  

Agencies should do their best to timely acknowledge requests and appeals, notify requesters of any unusual circumstances, and make timely determinations on requests for expedited processing.  Untimely action in acknowledging requests/appeals or making expedited processing determinations can result in several consequences for the agency in handling those requests.  For example, the FOIA prohibits the assessment of certain fees if the FOIA’s time limits are not met, subject to certain exceptions.  See id. § 552(a)(4)(A)(viii)(I).  Two of those exceptions rely on the agency providing requesters with timely notices of “unusual circumstances” as defined in the FOIA.  See id. § 552(a)(4)(A)(viii)(II)(aa)-(bb).  Additionally, an agency’s failure to respond to a request for expedited processing within ten (10) calendar days is subject to judicial review.  See id. § 552(a)(6)(A)(iii).

In accordance with past guidance issued by OIP, for the purposes of the Annual FOIA Report agencies must include all days other than Saturdays, Sundays, and legal public holidays in their calculations of the amount of time a request or appeal has been pending and the amount of time it took an agency to process the request or appeal.  Accordingly, even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances such as COVID-19, the agency must count those days for reporting purposes.    

Clear and Effective Communication with Requesters

Clear and effective communication with requesters has always been critical to ensuring successful FOIA administration, and it is especially important during this time when usual FOIA operations may be delayed or altered.  OIP issued guidance documents in 2010 and 2013 concerning effective communication with requesters, both of which continue to apply.  Agencies are encouraged to consider how they can communicate most effectively with requesters throughout the FOIA process during this time.  Agencies can take two steps in particular:  (1) provide general notices to requesters concerning the potential impacts of COVID-19-related changes on FOIA operations, and (2) work directly with requesters to tailor their requests to receive the most efficient responses.  

First, agencies are encouraged to post notices on their FOIA websites and include language in their FOIA acknowledgment letters to inform requesters of any anticipated delays.  These notices can also provide information about the most efficient way to make a request.  Communication between agencies and requesters is particularly important during these unprecedented times as it helps to manage expectations on both sides.  For example, many agencies are experiencing delays in the intake of requests submitted by physical mail or facsimile.  Accordingly, an agency's notice may encourage requesters to submit their requests electronically for the fastest response.  Agencies can also provide tips to requesters about the types of requests that can be handled most efficiently (i.e., whether there are delays in accessing or processing certain types of records, while other records can be processed more quickly).  Some agencies have posted such notices on their FOIA websites.  OIP posted the following notice, which agencies can use to tailor their own message:

Due to the COVID-19 pandemic, OIP has adjusted its normal operations to balance the need of completing its mission as effectively and efficiently as possible while also adhering to the recommended social distancing for the safety of our staff.  As a result, you may experience a delay in receiving an initial acknowledgment as well as a substantive response to your FOIA request or appeal.  We will be able to acknowledge requests made electronically more quickly than by mail.  You may reach out to our FOIA Requester Service Center and FOIA Public Liaison if you have any questions about your request.  We apologize for this inconvenience and appreciate your understanding and patience.

Once posted, agencies should continue to monitor the status of their FOIA programs and update their notice as things change.  Once a request has been received, agencies should also consider providing similar notices of anticipated delays in their acknowledgment letters and standard communications with requesters. 

Second, while agencies regularly reach out to requesters to seek clarification of requests, agencies are especially encouraged to communicate with requesters directly about how their request could be reformulated or more narrowly tailored so that it can be processed most efficiently in the current environment.  For example, if a FOIA professional is unable to access certain records remotely during maximum telework conditions, or other limitations make it more difficult for the agency to process the request as submitted, agencies are encouraged to communicate these limitations to the requester to see if the requester is interested in reformulating their request in a way that it can be processed more efficiently.

Strategically Managing Requests Using Multitrack Processing and Interim Releases Can Maximize Efficiency in Responding to Requests

As indicated above, agencies should strategically manage their FOIA obligations to get the most out of their programs during this time when there may be temporary limitations on the work that can be completed.  The FOIA permits -- and OIP has long encouraged -- agencies to use multiple processing tracks to process requests based on the amount of work or time (or both) involved in processing requests.  Agencies are encouraged to leverage multitrack processing to further triage requests that can be processed more efficiently in light of the current limitations.  For example, during times when an agency is in a high-level telework posture, the agency may find it more efficient to handle a request that involves an electronic search of records that can be completed remotely ahead of other requests that may require physical searches that cannot be completed remotely.  As an agency's situation evolves, requests should be reevaluated to ensure they are in the proper tracks and being fairly prioritized.

In addition to using multiple tracks to prioritize requests that can be responded to fully during this time, agencies are also encouraged to provide interim releases.  Agencies should make every effort to retrieve and process records remotely and provide interim responses, even if other portions of the request cannot yet be completed under the current limitations.  Providing interim responses can present yet another occasion for agencies to communicate with requesters to determine whether the responses provided to that point may have fully satisfied the requester’s information needs or whether the requester would like to reformulate or narrow the scope of the request. 

Proactive Disclosures

The FOIA Improvement Act of 2016 codified the longstanding policy of the Department of Justice to post “copies of all records . . . that have been released to any person under [the FOIA] and . . . that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or . . . that have been requested 3 or more times.”  See 5 U.S.C. § 552 (a)(2)(D) (emphasis added).  In addition, the Department has long encouraged proactive disclosures beyond the requirements of the statute and has emphasized the importance of posting records in ways and formats that would be most useful to the public.  Agencies have embraced improving proactive disclosures over the years, but resources can impact an agency’s volume or frequency of proactive disclosures.  As we look to strategically manage our FOIA programs in the current environment, agencies should also consider where additional proactive disclosures could continue to provide the public with efficient access to information.  For agencies significantly impacted by processing limitations due to COVID-19, a focus on proactive disclosures can help ensure that resources continue to focus on advancing the core principles of the FOIA.

Leveraging Technology

Over the past ten years, OIP has focused on the increased use of technology to assist agencies in managing their FOIA requests.  Agencies have made advancements in their use of more automated FOIA case management systems, new online portals, and advanced review and processing tools.  Agencies should continually assess their technological resources to ensure they are using the most impactful solutions for their programs.  Under current circumstances, agencies may find a need for new technology not previously contemplated to support their FOIA administration.  Under maximum telework and physical distancing policies, agencies should to the extent feasible explore how technology solutions may assist them in continuing the operations of their FOIA programs.  For example, agencies can rely more on video conferencing solutions to continue meetings, trainings, and other collaborative efforts.  Agencies can also reassess their current solutions to make enhancements or explore other solutions that are better at facilitating remote work.  OIP has held a number of Best Practices and Working Group events about technology and FOIA.  Most recently, OIP held a Best Practices Workshop featuring the Chief FOIA Officers Council Technology Committee; many best practices were shared at the workshop, including lessons learned from the COVID-19 emergency.  A recap of this event and the best practices shared can be found on the Best Practices Page of OIP’s website.  Agencies that have questions about the technological solutions other agencies are using or that might be available to benefit their programs can contact OIP or the Chief FOIA Officers Council Technology Committee.

Beyond Request Processing, Consider Other Ways to Maximize Efficiency

Some agencies may find that, due to limitations as a result of maximum telework or other workplace precautions, their usual FOIA workload has changed, and/or other planned activities have been delayed.  We encourage agencies to explore additional ways to improve their FOIA administration and refocus efforts to maximize the benefits for their FOIA programs.  For example, are there certain backlogged or more complex requests that could be handled and closed?  Are there certain processes that may have become outdated and could be reviewed and updated?  OIP's Self-Assessment Toolkit can be a helpful resource in guiding reviews of an agency's FOIA process.  Are there areas where staff could benefit from dedicated instruction or training that could be accomplished remotely?  Agencies may consider how they could host short training sessions as part of regular staff meetings.  OIP recently announced new remote FOIA training that is available to all agency personnel, and we remain available to provide agency-specific training as well.  

Available Government-wide DOJ Resources

As agencies work to fulfill their FOIA obligations during this challenging time, OIP continues to provide resources to aid in agencies' administration of the FOIA.  The Department of Justice Guide to the FOIA, a comprehensive legal treatise on the FOIA, is available and continues to be updated.  OIP also continues to update its website’s Court Decisions page, which contains summaries of significant FOIA court decisions.  OIP's Best Practices Workshop Series page was also recently updated to reflect best practices identified at our most recent workshop on technology.  Finally, OIP continues to offer FOIA training to agencies and OIP's FOIA Counselor Service continues to operate uninterrupted to provide advice to agencies on their FOIA questions.  Should agencies have any questions about this guidance or other FOIA matters, they are encouraged to contact the FOIA Counselor of the day at 202-514-FOIA (3642).