What are the Three Stages of the FOIA Process?

REQUEST STAGE

There are three phases to the FOIA process. The first one is the request phase. That’s where a person makes a written request to a FOIA officer asking for records over a specific period of time and hopefully a specific geography. That’s the first part of the request process, but that doesn’t end there because when a federal agency receives your request, then they have certain duties. One is they have 20 working days from the receipt of the request to give you a determination of whether they’re going to give you records or not.

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What I found in recent years is that they don’t do that. They don’t give you a determination, but they usually will give you a reference number. This reference number is often called a FOIA number, request number, file number or case number. This number is a number that is attached to your request and stays with your request for the entirety of the entire FOIA process. The number is very important. You must keep track of it and always use that number, and only that number, when communicating with the agency. Throughout the process you might be asking yourself, “When am I going to get my records?” The answer is that you, as the requester, need to make a formal Estimated Completion Date.

You do this in writing, either via email or via a letter. You must be diligent: you ask for the estimated completion date, you email, you call, you write. Make sure you have that reference number on there. And that is part of the back and forth process during this whole request phase. Another thing that comes up is do you want to narrow your request? Federal agencies are allowed to ask you one time if you want to narrow your request. What does that mean? Narrow requests? Well, what if you forgot to say the period of time for your request? Well, now you get that chance to narrow your request. We only want the record, perhaps, for the last three years, not the last twenty three years. That narrowing, perhaps, will speed up your chances.

ADMINISTRATIVE STAGE

That’s an example of narrowing your requests after you’ve made it now, after you finished the request period back and forth. And let’s just say they gave you a few records, but they didn’t give you all the records you thought you were going to get. They send you what is called a final determination letter, and that determination letter kicks off the next phase, which is called the administrative appeal phase.

The letter that you get that says, here are some records here. We’re not going to give you other records. It contains a magic paragraph called the 90 Day Notice paragraph, and that 90 days is you have 90 days, not 90 working days, but 90 actual calendar days to submit your administrative appeal. Do you need a lawyer to do your request? No. If you can follow the instructions, do you need a lawyer to do your administrative appeal? Well, now it’s beginning to get a little more technical, but the answer is no. You don’t need a lawyer to do the administrative appeal, and you must file that administrative appeal, usually by certified mail return receipt requested within that 90 day period.

What are you going to be saying in your administrative appeal? You’re going to be saying that the government agency made two errors and they always make these two errors. And even if they haven’t made the two errors, it’s a good idea to raise both of these issues. One. They failed to adequately search for the records and two they applied one of the nine. Freedom of Information Act exemptions in a way that stopped you from getting your records. 

JUDICIAL REVIEW STAGE

Now, what kicks off the third and final phase of the four year process, well, hopefully by now you’ve gotten all your records and you’re happy and you don’t need to call a lawyer. But for the next phase, the judicial review phase, you will need a licensed lawyer licensed in the court where the lawsuit is going to be filed. And it will be a lawsuit against the federal agency on behalf of you as the requester who didn’t get their records.

Now, how quickly can you file that judicial review? You can file it within 20 working days after they received your request. Way back at the beginning, you could file that early. What about the latest that you could file? He answers six years from that initial 20 day period. What if you made an administrative appeal and they’re sitting on that for years? Can you bring a judicial review? Answer yes when you can do that within 20 days, working days of their receipt of your administrative appeal. So the judicial review process, once you’ve gone through the hopes of showing the court that you have, we call it exhausted your administrative remedies. You’ve done everything you could without a lawyer.

Now you’re filing in federal court. Now what federal court could you file it? Well, FOIA says you have the right to file in one of three courts. You can file in the district where you live. So if you live in Maryland, you can file in the district of Maryland. If you live in Wyoming. You can file in the district of Wyoming. You can also file the law says, where the records are. Well, if you know these records are in St. Louis, Missouri, which is a federal records storage facility you could file in the West in the Eastern District of Missouri. And finally, FOIA says you can always file. In the United States District Court for the District of Columbia in Washington, D.C., and that’s the court I’m licensed in, and that’s the court that I file all of my judicial reviews in. Why? Because it’s the only court specifically mentioned by the Freedom of Information Act, where disputes over FOIA matters can be wrestled with and ultimately determined that court, I find, handles about half of all the FOIA matters in the country and. It is one of the most experienced courts at handling FOIA issues, and what we do is we handle the judicial reviews and we go about the process of getting people’s records in that court.

Now I’m going to briefly talk about the phases within that judicial review. First phase is when we filed the case. It’s called a complaint. It attaches your request and your administrative appeal. If you did one and anything the government of importance the government has given you. And then it says that the government has failed to do one of two things or both of two things one, they failed to adequately search for the records into an inappropriately applied one of the nine FOIA exemptions. We then get a briefing schedule if the government disagrees, if they agree, they just simply provide the records over time. If they disagree, we have a briefing schedule and the judge ends up deciding. And remember, in FOIA, it’s an administrative law. There’s no trial. There’s no jury. There’s no going to Washington, D.C. It’s all on paper. And the judge then makes a decision about whether the agency has to give more records. We just won a case recently where the government had failed to give records. The judge agreed with us, and ordered them to give the records in two weeks. So that’s an example of taking it through the process.

And then finally, at the end of the judicial review, assuming that you’ve won, there is the matter of who pays for all this because if you have been paying your lawyer, do you get your money back? And the answer is maybe. And that’s what we call the attorney fee phase of the judicial review. That’s when the judge decides whether or not the fee should be paid by the government or should or everyone should bear their own fees. And there’s a lot more we can say about that. But those are the phases of the four processes. So if you have questions on how to navigate the FOIA process, please feel free to give me a call and be happy to talk with you.