FOIA Tip 13: Negotiating with the agency

We still have a lot to say about drafting your FOIA request, but today we wanted to look at something a little different and talk about something that many requesters have not had any experience with — negotiating with the agency.

Over the last five years, with the issuance of Executive Order 13392 by President Bush, the enactment of the Open Government Act of 2007, and the issuance of FOIA memoranda by President Obama and Attorney General Holder, a government-wide customer service framework has been set up.

This framework includes a Chief FOIA Officer at every agency that is subject to FOIA.  The Chief FOIA Officer is supposed to be “a senior official of such agency (at the Assistant Secretary or equivalent level).”  It is the Chief FOIA Officer’s job, among other things, to file a report on the status of the agency’s FOIA efforts with the Attorney General.  A list of the current Chief FOIA Officers is available on the Department of Justice Web site. There is no guarantee, however, that the Chief FOIA Officer will know anything about FOIA or care about FOIA.  Still, the fact that they have to put their name on various reports may be an incentive for Chief FOIA officers to try to make a difference. 

In addition, agencies are required to have a FOIA public liaison who is a supervisory official to whom a FOIA requester can raise concerns about the service received from the agency.  The FOIA Public liaison is charged with resolving disputes between requesters and the agency.  The materials used at a recent FOIA public liaison training session are available for you to get a better understanding of the role these officials play with respect to FOIA processing problems.  It is not clear that public liaison’s have much power to make things happen at an agency, but they seem like appropriate people to contact to break through communication and procedural problems.  Each agency also must have a FOIA Service Center, which is essentially the FOIA processing office.  The names of public liaisons and telephone contact information should be available on each agency’s FOIA web site.

Finally, agencies are required to assign a tracking number to every FOIA request in order to make it easier for requesters to learn information about the status of their requests.  (This legal requirement to assign a tracking number is still not uniformly followed, but compliance is slowly improving.  When every agency will reach the point of being able to use the tracking number to find the status of the request is still an unknown).

In our experience, a lot of agency staff are afraid to call up requesters to negotiate.  But, there is nothing that prevents you from calling the FOIA Service Center or FOIA public liaison yourself.  You can even call the Chief FOIA Officer, but we recommend you start at a lower level because the FOIA staff and liaison are more likely to be able to help.   So, what are a few easy things that you can ask an agency to do in order to try to facilitate the processing of your requests.

(1)     If you are a frequent FOIA requester, you may have more than one request pending at an agency.  Although agencies typically follow a first in-first out procedure for processing requests, your circumstances may make it more urgent for you to get a response to a later filed request.  We have had success at some agencies asking them to reorder requests in a personal queue to prioritize the most urgent ones.  In addition, if you filed duplicate requests at several agencies to ensure that you were asking for all potentially relevant records, you might be able to use those pending requests at other agencies as a basis for negotiating your place in the queue for a request that is referred to an outside agency.

(2)     When you file a request that relates to a large number of records or records that require inter-agency referral or consulation, it is possible that different parts of the response will be available at different times.  Agencies often hold all the records until the entire response is ready in order to avoid triggering premature appeals.  It may be possible to negotiate for a rolling release of records, with an agreement to postpone administrative appeals until the processing is complete

(3)     Sometimes an agency will respond to your request with a very high fee estimate or with a long delay to permit duplication of the records.  It may be possible for you to negotiate about the format of production.  Some possible solutions are for the agency to post the records in its electronic reading room to avoid duplication fees and speed the release.  Another possibility is to allow the requester to copy/scan the records on a portable scanner to lower the cost.

(4)    When an agency responds to your request with an excessively long processing estimate, you should consider clarifying the scope of your request.  For example, you may be willing to limit the search to high level  offices/officials, limiting it to certain types of documents, eliminating drafts, or limiting where the search is conducted.

(5)     If the agency has found records and tells you that the amount is voluminous, it might be possible to reach an agreement to eliminate review of non-responsive materials or non-responsive sections of records in order to speed up the process of review.

Each of these ideas, of course, requires a willingness to talk to the agency.  It may be worth your while to try it just to establish a friendly dialogue with the agency.  We have found that agency personnel can be incredibly helpful once they understand what you are interested in — especially if you have a compelling reason why the records are important.   Sometimes those discussions will not be helpful, however, and what seems compelling to you is irritating to the agency.  Sometimes, these kind of efforts may make things seem even worse.  When that happens, don’t be afraid to elevate your problem from the service center, to the liaison, and even the Chief FOIA Officer or, if you are prepared to sue, the agency General Counsel.  In a later post we will tell you about the Office of Government Information Services (OGIS), which is established to provide mediation services in FOIA disputes.  Over time OGIS may become an important resource for FOIA requesters who are not satisfied with agencies’ responses.