Non-response to FOIA request
Q: Over the past 1 1/2 years we have made 2 FOIA requests with the Federal EPA and DOT. We have received no response. We have followed up several times in both matters and still no response. We need assistance and guidance with getting information from these Federal Agencies. We would most appreciate if you can give us any advice.
A: Pursuant to the Freedom of Information Act (FOIA), each agency is required to determine within 20 days (excluding Saturdays, Sundays, and legal public holidays) after the receipt of a request whether to comply with the request. 5 U.S.C. § 552(a)(6)(A)(i). The actual disclosure of documents is required to follow promptly thereafter. The FOIA permits an agency to extend the time limits up to 10 days in “unusual circumstances” (i.e., the need to collect records from remote locations, review large numbers of records, and consult with other agencies). 5 U.S.C. § 552(a)(6)(B)(i). The agency is supposed to notify the requester whenever an extension is invoked, although in practice this is not always done.
Moreover, the FOIA provides a mechanism to deal with unusually burdensome requests which an agency would not be able to process within the prescribed time limits. For such requests, the FOIA requires that an agency inform the requester that the request cannot be processed within the time limits and provide an opportunity for the requester to limit the scope of the request so that it may be processed within time frame, or negotiate a deadline for processing the request. 5 U.S.C. § 552(a)(6)(B)(ii). Again, these statutory time frames are not always met, as you have already experienced. In the instances where there has not been a response (and assuming the procedures outlined by each agency for FOIA requests were properly followed by the requester), the law allows a requester to consider that a request has been denied if it has not been decided within the time limits. This permits the requester to file an administrative appeal or file a lawsuit in federal district court. Although you have the option to file a lawsuit, you might want to file an administrative appeal first. Often times, an appeal to the head of the agency will result in the disclosure of all or some of the records sought. The appeal to the head of the agency is a simple matter. An appeal is filed by sending a letter to the head of the agency and must identify the FOIA request that is being appealed. 5 U.S.C. § 552(a)(6)(A)(ii). Please look at each agency’s FOIA appeals procedures for additional details required for administrative appeals. You can include in the letter an argument supporting disclosure of the records sought but it is not necessary. It is sufficient to state that the agency’s decision (in this case, their failure to respond), is being appealed. An agency is required to make a determination on an appeal within 20 days (excluding Saturdays, Sundays, and legal holidays). 5 U.S.C. § 552(a)(6)(A)(ii). An agency may also extend the time limits by an additional 10 days. Once the time period for the response on your appeal has elapsed, a requester may consider that the appeal has been denied and may decide to file a lawsuit. A person who files a lawsuit and substantially prevails may be awarded reasonable attorney fees and litigation costs reasonably incurred. 5 U.S.C. § 552(a)(4)(E).Given these general principles I’ve outlined, you have a couple of options. I would suggest that you first verify that you have followed the procedures set out by each agency for FOIA requests. Once this is done, you might consider filing an administrative appeal with the head of the agency (if one has not been filed already), and/or filing a lawsuit in federal court. A FOIA lawsuit can be filed in the U.S. District Court in the district where the requester lives or it can be filed in the district where the documents are located or in the District of Columbia. 5 U.S.C. § (a)(4)(B).