If you represent government contractors, or if you are one, it seems eventually you will develop a love-hate relationship with The Freedom of Information Act (FOIA). The purpose and goal of FOIA is somewhat remarkable; quick access to any government information not specifically confidential or otherwise classified. But in practice, this rarely seems to be the case. Some days you need a simple piece of information; you know the agency wrote a report, you know nothing in it is confidential, and you know it’s going to take six months for them to hand it over anyway. Other times you get an email from a FOIA officer along the lines of this: “Hi, three years ago your competitor requested your contract proposal including your technical and pricing breakdown. If you don’t want us to hand it over, please submit a redacted version of the three-hundred-page document in seven days (December 26th) with your argument for redacting each line.” I thought at first it was just me. Every FOIA Officer or liaison I spoke with when trying to get compliance seemed hardworking and helpful. That hasn’t changed. But a quick look at the numbers told me I was far from alone. How is such a well-intentioned law so frustrating to contractors and agencies alike? Well, because so far frustrating is cheaper than compliance, but that may be changing.
Under 5 U.S. Code § 552, the requirements placed on a federal agency are fairly simple. Once your FOIA request gets in the right agency hands, they have twenty days to grant or deny it. The agency can stall the clock for a few days here and there but in general the deadline would not go over a month. Of course, some requests involve very sensitive material and the agencies can employ legitimate exceptions. For a few thousand examples enjoy the CIA’s answer to frequent FOIA requests about UFOs. See page after page of heavily redacted notes and reports on UFOs since the 1940’s, all published online for a convenient “go fish” response to any request. But that’s not what this post is about. It’s about the simple, non-controversial and short requests that happen every day and are not answered within the statutory deadline.
Looking at Homeland Security alone, of the approximate 340,000 FOIA requests that were processed in 2017, about 180,000 of them took longer than twenty days to process. This handy tool can give you a FOIA compliance report on any agency you work with so you can see how they stack up. While Homeland Security is particularly backlogged, no agency really stands out as compliant. The American Battle Monuments Commission, for example, had only 31 FOIA requests in 2017, and half were processed within 20 days. Keep in mind these compliance responses include, “here is the website with that information already publicly available” like the CIA example above.
This may all seem obvious; government agencies have an old reputation for being slow and bureaucratic. But what is surprising here is the federal courts seem very unsympathetic. When an agency misses its response deadline without applying a rare exception, courts consider the FOIA request denied. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 65 (D.C. Cir. 1990). In practice, most “deemed denials” are just ignored. The requesting party ignores the delay and waits patiently. But why? Here is the fascinating aspect about federal agencies’ overwhelming failure to comply with the mandate clearly described by Congress; if an agency improperly denies your FOIA request, you have a right to sue, and the agency pays for your lawyer (well, a “reasonable” fee at least).
Clearly, this is rarely done. Look at the Homeland Security numbers again. Of the 180,000 FOIA requests that took more than 20 days to comply within 2017, if even half of them filed complaints to enforce the clear deadlines, then federal courts across the country would immediately clog. Even the massive Homeland Security would suffocate under the legal bills of 90,000 successful complainants. Sure, no one really wants that, but Congress has been very clear on the goals of FOIA and courts are very willing to bring down the gavels for agencies not meeting them. So, what gives? It appears agencies are just underfunding these programs and relying on the laziness of most requesters. Sure, that’s speculation. But how else do you explain a 50% fail rate on compliance when doing so could result in $20,000 in legal fees a pop? But that game seems to be getting more dangerous by the day. After looking at the numbers and seeing how waiting patiently is just the norm, rather than the exception, I know I’m done waiting patiently.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.