OIP Guidance: Processing Reminders for the Last Quarter of Fiscal Year 2017

OIP Guidance: Processing Reminders for the Last Quarter of Fiscal Year 2017

As detailed in OIP’s Summary of Annual FOIA Reports for Fiscal Year 2016, the government overall received a record high number of FOIA requests last fiscal year, receiving 788,769 requests. Agencies collectively processed nearly 760,000 requests, with many agencies successfully closing their ten oldest pending requests and consultations. Now that we are in the last quarter of Fiscal Year 2017, OIP encourages agencies to continually look for ways to increase efficiencies so that they can continue to process high numbers of requests, while also ensuring that their oldest pending requests and consultations are closed each year. One particularly effective way to gain efficiencies in doing this is through the use of multiple processing tracks.

Utilizing Multiple Processing Tracks to Achieve Greater Efficiency

The FOIA requires each agency to “make [disclosable] records promptly available” upon request. 5 U.S.C. § 552(a)(3)(A) (2012), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. As the numbers of requests received by agencies continues to increase, it is important for agencies to focus both on the raw numbers of requests processed and the age of the oldest requests pending at the agency. By focusing on responding to the oldest pending requests at the agency, those requesters who were “first in line” will receive responses before those who submitted requests subsequently. This is a traditional feature of FOIA administration. Indeed, in order to have their requests processed out of turn, the FOIA requires that requesters demonstrate a “compelling need,” as defined by the statute, or that they satisfy any other agency-specific standard for expedited processing. Id. § 552(a)(6)(E)(i).

At the same time, the FOIA also provides that agencies may promulgate regulations to establish a system for “multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.” Id. § 552(a)(6)(D)(i). When multiple tracks are established, the agency can then process requests in each track on a first in/first out basis. With the ever-increasing volume and complexity of requests, OIP has long encouraged agencies to use multiple processing tracks as a way to achieve greater efficiency in FOIA administration.

When agencies establish multiple processing tracks, they assign requests to different processing queues depending on the complexity of the request. Requests that involve a low volume of records or would be relatively simple to review are designated as “simple” requests, assigned to their own queue, and processed separately from requests that are more complex. By contrast, those requests that involve a high volume of records, and/or are more complex to process, are assigned to the “complex” processing track. Requests that have been granted expedited processing are assigned to their own track.

There are many advantages to establishing multiple processing tracks. First, by differentiating between requests that will require minimal time to process and those that will take a longer time to complete, agencies will be able to process more requests more efficiently, as the simple to process requests can move promptly to completion without being held up behind complex requests. Without separate processing tracks, just one request, seeking an extremely high volume of records, could single-handedly delay the responses for many other FOIA requesters who might be seeking just a few records.

Second, with multiple processing tracks, agencies can offer requesters a meaningful opportunity to have their request processed more quickly if they limit their request so that it can qualify for the agency’s “simple” track. Indeed, when agencies face “unusual circumstances,” and need more time to process a request, the FOIA itself requires them to provide requesters with “an opportunity to limit the scope of the request so that it may be processed” more quickly. Id. § 552(a)(6)(B)(ii). OIP encourages agencies to focus on processing their simple track requests within an average of twenty working days and scores agencies each year on that milestone in our annual assessment of agency progress.

Closing Pending Consultations

OIP has long encouraged agencies to work each year to close not only their ten oldest requests, but also their ten oldest consultations. When agencies close consultations, they facilitate closure of the requests themselves. OIP has issued guidance to agencies on the procedures to follow when another agency or entity has an interest in a record being processed and a consultation is necessary. Agencies are also reminded that there are existing memoranda that provide procedures to follow when consultations are necessary with the White House Counsel’s Office.

Existing Memoranda Outlining Procedures

The memorandum dated January 1, 1993, from former Associate Attorney General Webster Hubbell and the memoranda dated April 15, 2009, from former Counsel to the President Gregory Craig, remain in effect. These memoranda discuss the long-standing practice of agencies consulting with the White House on document requests involving White House equities.

As described in these memoranda, when agencies locate records involving White House equities in response to a FOIA request or any other document inquiry, they should consult with the White House Counsel’s Office in advance of the deadline for responding to the request. Because there are numerous offices that make up the Executive Office of the President (EOP), some of which are subject to the FOIA, others of which are not, consultations should be directed to different offices as described below.

Consultations with White House Counsel’s Office

As described in the memoranda, when agencies locate White House-related records or information in their files and the White House Office with equity in that material is not itself subject to the FOIA, agencies should continue to consult with their agency contact in the White House Counsel’s Office. If an agency is uncertain whom to contact in the White House Counsel’s Office, they should contact the Compliance Staff at OIP at 202-514-3642, which will assist in identifying the appropriate contact.

Consultations with White House Offices Subject to the FOIA

As is also described in the memoranda, when agencies locate White House-related records or information in their files and the White House Office with equity in that material is itself subject to the FOIA, they should continue to consult with the FOIA office within the applicable EOP office. These offices include the Council on Environmental Quality, Office of Management and Budget, Office of National Drug Control Policy, Office of Science and Technology Policy, and the Office of the U.S. Trade Representative. An updated list of FOIA contacts for those offices is attached.

In all cases, agencies remain responsible for responding directly to the FOIA requester once these EOP consultations have been completed.

If agencies have any questions about these procedures, they are encouraged to contact OIP at (202) 514-3642.

Conclusion

As illustrated in OIP’s Summary of Annual FOIA Reports, the government continues to receive high numbers of FOIA requests, receiving nearly 800,000 requests this past fiscal year. OIP encourages agencies to continually explore ways to increase efficiencies, including utilizing multiple processing tracks, so that they can most effectively respond to those incoming requests. In doing so, agencies should also strive to close their ten oldest pending requests and consultations each year. All these efforts are key aspects of improved FOIA administration.