Friday, January 3, 2014

FOIA Friday: Delays, predictable and otherwise

When you are filing a FOIA request, you shouldn't expect the answer to come back right away. You should treat the FOIA process as the world't worst search engine - slow, picky, and sometimes expensive. Here are some suggestions for handling the delays associated with FOIA requests, and how to minimize the avoidable ones.

The fastest way to avoid a FOIA request is to not file one at all. Pick up the telephone, identify the person who has the records you want to get access to, and convince them to let you see a copy. You won't always get a "yes", and the answer won't always come back quickly, but by asking directly you may avoid a level of institutional delay. This is best for uncomplicated requests for records where you know that they exist and where you know who holds them and you're pretty sure that nothing in the collection would require redaction.

If you do have to file a FOIA request, there are certainly ways to ensure that the answer will come back slowly. This varies by the agency that you're asking, but some general guidelines should help.

First, know the expected delay times. Agencies have 5 business days to answer, and can ask for 10 additional business days without providing a reason. If they delay longer than that, you can appeal to the head of the body or immediately take them to court. Appeals have their own delay schedule, with 10 business days to respond and an additional 10 business days in "unusual circumstances". 35 business days later, you are sure to have an answer.

If your request is in the form of a three-page rant about how evil government is, with a request mixed in two thirds of the way down the page, expect a delay in answering it. Ranty queries are hard to parse and you're unlikely to get back what you thought you wanted.

If you ask for materials that are in people's electronic mail, it's likely to take a long time to get an answer back. Many organizations have a relatively decentralized mail archiving system, and you may trigger a need for lots of people to stop what they are doing and do a search. If any one of them needs a delay, your whole request will be delayed.

If you ask a question where you don't know which part of the organization holds the records, it may take a lot longer than if you know the exact name of the clerk who should have the documents in their hands. In a sufficiently large organization, it may take time to simply track down who is responsible for what you're asking for.

If you ask for anything that has personal information mixed in with it, expect a delay to handle redaction. The more redaction, the longer the possible delay.

Finally - if you ask for materials over the holidays - you might get delays just because of people being away on time off.

Edward Vielmetti is the author of the No-Nonsense Guide to the Michigan Freedom of Information Act.

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