New Requirements for FOIA Response Letters

New Requirements for FOIA Response Letters, Including Affording Ninety Days to file an Administrative Appeal, and New Notification Requirement for Notices Extending FOIA’s Time Limits Due to Unusual Circumstances

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, which contains several substantive and procedural amendments to the FOIA.   OIP has prepared a summary of the amendments as well as a redlined version of the statute which shows the changes made by the amendments.  The new provisions apply to any request made after the date of enactment, which was June 30, 2016.  OIP will be issuing guidance on various aspects of the amendments on a rolling basis.   Agencies are encouraged to contact OIP with any questions they might have on implementation of the new provisions. 

Among the changes to the law are several new requirements for agency response letters and for notices to requesters extending the FOIA’s time limits due to unusual circumstances.  For response letters agencies must notify requesters of their right to seek assistance from the FOIA Public Liaison and, if the response is adverse, they must also notify the requester of their right to seek dispute resolution services from the Office of Government Information Services (OGIS), within the National Archives and Records Administration.   Additionally, agencies must now afford requesters a minimum of ninety days to file an administrative appeal.  When invoking unusual circumstances to extend the FOIA’s time limits, agencies already were required to make their FOIA Public Liaison available, but now they must also notify the requester of the availability of dispute resolution services offered by OGIS.  The guidance below details these new requirements and the attached implementation checklist provides sample language for agencies to use. 

New Requirements for Agency Response Letters, Including 90-Day Appeal Period

When agencies notify requesters of the determinations that have been made on their requests (i.e., when they send a response letter), in addition to providing the determination itself and the reasons for it, they must now include information about the availability of their FOIA Public Liaison to offer assistance.  See 5 U.S.C. § 552(a)(6)(A)(i) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538.  The FOIA describes the role of FOIA Public Liaisons, who serve as supervisory officials to agency FOIA Requester Service Centers, and who are “responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.”   5 U.S.C. § 552(l).

If the agency is issuing an adverse determination, the agency must now afford the requester no less than 90 days from the date of the adverse determination on the request to file an appeal.  See 5 U.S.C. § 552(a)(6)(A)(i).  Previously the FOIA did not specify a specific time period for the filing of an administrative appeal. 

Finally, for adverse determinations, in addition to providing notice of the right to file an administrative appeal, the FOIA now also requires that agencies notify the requester that they may seek dispute resolution services from either the FOIA Public Liaison or from OGIS.  Given that agencies have established FOIA Requester Service Centers to provide assistance to requesters with questions about the handling of their requests, agencies may include those FOIA Requester Service Center contacts in their response letters, in addition to their FOIA Public Liaison contacts.  While that additional resource is not required to be offered, agencies might find that providing a range of contacts will be more efficient, particularly since FOIA Public Liaisons supervise FOIA Requester Service Centers, which serve as the initial source of information about the handling of requests.

New Notification Requirement for Notices Extending FOIA’s Time Limits Due to Unusual Circumstances

The FOIA provides that agencies may extend its time limits when “unusual circumstances” are met in the processing of a request.   See 5 U.S.C. § 552(a)(6)(B)(i) (2014).  Those “unusual circumstances” are set forth in the statute and are described as 1) the need to search for records from field facilities or other locations, 2) the need to search, collect and examine voluminous records, and 3) the need for consultation with another agency or among two or more components of an agency.   See id. § 552(a)(6)(B)(iii).  When a request involves “unusual circumstances” agencies have long been required to provide written notice to the requester and in those instances where an extension of time of more than ten working days is specified, the agency has been required to provide the requester an opportunity to limit the scope of the request so that it can be processed more quickly or to arrange an alternative time to respond.   To aid the requester in doing so, the FOIA provides that the agency must make its FOIA Public Liaison available.   See id. § 552(a)(6)(B)(ii). 

The FOIA Improvement Act of 2016 now adds an additional requirement to this notification of unusual circumstances when the extension of time exceeds ten working days.  In the notice agencies must now also notify requesters of their right to seek dispute resolution services from OGIS.  See 5 U.S.C. § 552(a)(6)(B)(ii), as amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538.

Conclusion

Agencies should update their response letters and notices extending the FOIA’s time limits due to unusual circumstances to include the new requirements from the FOIA Improvement Act of 2016.  OIP has prepared an implementation checklist, with sample language, to assist agencies in doing so.

Implementation Checklist for New Requirements for FOIA Response Letters