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OIP Guidance for Further Improvement Based on 2023 Chief FOIA Officers Report Review and Assessment

Simple Track Request Processing Times

The Attorney General’s 2022 FOIA Guidelines note “[a]gencies should continue their efforts to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs” and further emphasize that agencies have “effective systems in place for responding to requests in a timely manner.”  To that end, agencies should prioritize processing simple track requests within twenty working days.  OIP’s recently updated FOIA Self-Assessment Toolkit can help agencies examine their processing practices to meet this milestone.  Module 2 of the Toolkit on Assigning Cases and Managing Tracks provides the following best practices for the processing of simple requests: 

  • ensure the agency’s processing workflow allows FOIA Staff to continuously monitor, evaluate, and update the assigned processing track, as needed, throughout the life of the request;
  • actively monitor the average processing time for simple track requests to identify ways to decrease the average processing time;
  • reexamine the FOIA process if the agency is taking longer than an average of twenty-working days to process simple requests, according to section VII.C.1 of the agency's Annual FOIA Report;
  • prioritize the closure of the ten oldest requests in the simple track, according to section VII.C.1 of the agency's Annual FOIA Report;
  • and, analyze FOIA data to compare simple and complex track processing times and confirm that requests are being placed in the proper track.

Finally, OIP encourages agency FOIA professionals to attend its training courses such as FOIA Processing from Start to Finish and Procedural Requirements, which offer best practices on multitrack processing and the efficient processing of simple requests.

Interoperability with FOIA.gov

Following the FOIA’s mandate to establish “a consolidated online request portal that allows a member of the public to submit a request . . . to any agency from a single website,” 5 U.S.C. § 552(m)(1), DOJ and OMB issued joint guidance establishing interoperability standards to receive requests from the National FOIA Portal on FOIA.gov.  The guidance requires agencies to become fully interoperable by the end of Fiscal Year 2021, unless they sought and were granted an exception to extent no later than the August 2023.  With agencies now being fully linked to FOIA.gov, OIP encourages agencies to link to the site on their FOIA websites as an additional, helpful resource for requesters. 

Going forward, agencies must ensure that their systems remain interoperable with FOIA.gov in line with the joint guidance.   When acquiring a new case management system, agencies should make sure that interoperability with FOIA.gov is a system requirement.  Agencies should test interoperability ahead of full implementation of any new case management system to verify that the transition will be successful.  Any agency that experiences an error with their interoperability should work to rectify those errors as soon as possible.  Another key part of interoperability is making sure that agencies’ information on FOIA.gov, such as agency contact information, mission descriptions and links to the FOIA Library, FOIA Reference Handbook, and FOIA regulations is always up-to-date.  As explained in the joint guidance, “[a]lthough agencies should be regularly reviewing and updating their FOIA.gov accounts, all agencies are required annually to certify the accuracy of their FOIA.gov information to DOJ during the annual FOIA report clearance process.”  OIP is available to assist agencies with interoperability and any other concerns related to the National FOIA Portal.       

Foreseeable Harm Standard

The Attorney General’s 2022 FOIA Guidelines provide that “agencies should confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.”  Accordingly, as noted in OIP’s Guidance on Applying the Presumption of Openness and the Foreseeable Harm Standard, if an agency has made a final determination invoking one or more FOIA exemptions (other than Exemption 3), it should explain to the requester that it considered the foreseeable harm standard.  Additionally, OIP’s guidance notes that to the extent practicable and efficient, agencies should consider brief, tailored explanations in response letters whenever doing so will increase understanding of the handling of the request.  If FOIA requesters have questions or concerns about any adverse determination made by the agency, including its application of the foreseeable harm standard, they may contact the agency’s FOIA Requester Service Center or FOIA Public Liaison.  Agencies should promptly respond to any such inquiries by providing as much detail and context as possible without undermining any interests that are being protected by exemptions that the agency may have asserted.     

Updated September 20, 2023