Agency FOIA offices hit with delays told to finish what they can during pandemic

The Justice Department is telling agencies struggling to complete Freedom of Information Act requests during the coronavirus pandemic to finish what’s possible remotely, and keep the public in the loop about delays.

DoJ’s Office of Information Policy released guidance Thursday that echoes the Office of Management and Budget’s memo in March that set governmentwide standards on how agencies should maximize telework and rely on technology to ensure continuity of operations.

The OIP guidance seeks to answer frequetly asked questions from agency FOIA offices, and urges to take steps to continue processing records requests, “even at a diminished pace,” during the pandemic.

“Under current circumstances, agencies may find a need for new technology not previously contemplated to support their FOIA administration,” the guidance states. “Under maximum telework and physical distancing policies, agencies should to the extent feasible explore how technology solutions may assist them in continuing the operations of their FOIA programs.”

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Agencies, for example, can use video-conferencing platforms to continue meetings, training and other group work.

Last month, the technology committee of the Chief FOIA Officers Council held a best-practices workshop that included lessons-learned from the pandemic.

Those lessons learned include implementing “alternate IT solutions” to improve the intake, search, review and referral of incoming requests.

The workshop also encouraged agency FOIA offices to collaborate with each other, and bring some lagging agencies up to speed on improving the functionality of their FOIA websites.

Some agencies are not yet interoperable with the National FOIA portal that launched with a reboot of the FOIA.gov website in 2018. The portal aimed to serve as a one-stop-shop to file a FOIA request with any government agency.

While OIP acknowledges agencies face limits on the scope of FOIA work they can complete remotely, the guidance tells agencies to reach out to requestors and discuss whether they can modify or more narrowly tailor their requests for faster processing during the pandemic.

FOIA officials should reach out to requestors, for example, if they can’t access certain records during maximum telework conditions, or if “other limitations make it more difficult for the agency to process the request as submitted.”

The guidance also outlines practices that DOJ OIP had recommended to agencies before the pandemic, but have become more relevant for a federal workforce that remains largely out of the office.

Agencies, for example, are encourage to break up FOIA requests into multiple processing tracks, with each segment based on how easy it is for the agency to complete its records search.

“During times when an agency is in a high-level telework posture, the agency may find it more efficient to handle a request that involves an electronic search of records that can be completed remotely ahead of other requests that may require physical searches that cannot be completed remotely,” the guidance states.

The guidance also encourages agencies to send “interim” responses, or releasing records in batches that match the FOIA request as the agency finds them, “even if other portions of the request cannot yet be completed under the current limitations.”

Keeping the public in the loop on FOIA delays

OIP also encourages agencies to give the public a heads-up about expected FOIA processing delays on their websites, as well as include language about delays in confirmation letters sent to requestors.

“Communication between agencies and requesters is particularly important during these unprecedented times as it helps to manage expectations on both sides,” the guidance states.

OIP notes that many agencies have reported delays in the intake of new requests that have been mailed or faxed in. The agency says agencies should make that information public, and requestors should know whether sending the request online would be quicker.

Agencies should also let requestors know if remote work has limited their access to certain types of records, or if other types of records are easier to search while teleworking.

The guidance doesn’t let agencies off the hook when it comes to deadlines. Agencies under FOIA usually have 20 business days to respond to requests and appeals, but in some cases agencies can ask for a 10-day extension.

“OIP encourages agencies to continuously assess their FOIA programs as circumstances evolve with a focus on finding workable solutions to maximize the efficiency and effectiveness of FOIA administration within the parameters of their agency’s workplace policies,” the memo states.