Justice Department Advises Agencies on Continuing to Meet FOIA Requests During the Pandemic

The Justice Department is advising federal agencies to meet the challenge of processing Freedom of Information Act requests during the novel coronavirus pandemic in part through increased communication with those seeking information, use of technology and prioritization of requests.  

On Thursday, the Justice Department’s Office of Information Policy published guidance on how agencies should handle their FOIA operations during a time of “maximum telework and physical distancing policies” and delays for many in receiving physical mail. This comes as watchdogs, journalists and others have been relying on FOIA to learn about the government’s coronavirus response and hold officials accountable for protecting the public’s health. 

“Agencies are, of course, impacted differently based on their unique needs, current capabilities to operate remotely, staffing issues, the types of records they process, existing FOIA processes and technological capabilities,” the memo said. “Many agencies have faced challenges as a result of staffing and technology limitations, as well as challenges at various stages of the FOIA process, ranging from request intake to conducting searches, processing certain types of records and providing final responses. Agencies with the capability to process records, even at a diminished pace, should do so, subject to appropriate safety precautions necessary to protect the health of their employees.”

The guidance said all of the FOIA statutory time limits remain in effect during the pandemic. However, an agency can receive additional time to respond to a request if it can “demonstrate that it satisfies the standard for unusual circumstances or tolling under the statute.” Tolling is when the agency stops the response clock time if it needs additional information or needs to clarify fees associated with the request. The memo also advised agencies to do the following:

• Have clear communication with requesters. Specifically, agencies should give notices of the possible coronavirus-related impacts or delays and work with people “to tailor their requests to receive the most efficient responses.”
• Process requests based on the amount of time or work needed to do so.
• Consider if additional proactive disclosures are needed to increase efficiency. 
• Leverage technology, such as video conferencing software, and continue to assess their needs for more resources. 
• Explore other ways to maximize efficiency by considering how to handle backlogs and complex requests as well as hold remote training sessions for staff.
• Make use of the Justice Department's other FOIA resources.

In recent months, watchdogs, such as American Oversight, and news outlets have been using FOIA to shed light on the federal government’s preparations and response to the pandemic before and after the country went into lockdown. There are also various ongoing lawsuits regarding coronavirus-related requests. 

For example, Matt Topic, founder and leader of the law firm Loevy & Loevy’s FOIA practice, is currently representing Buzzfeed News in a FOIA lawsuit against the Health and Human Services Department, Federal Emergency Management Agency and the Homeland Security Department for communications related to the coronavirus based on concerns that the government is not being transparent about its response process. 

He told Government Executive on Friday that the new guidance “correctly acknowledges that FOIA deadlines continue and that agencies need to keep working on requests.” He added that “many of the suggestions are good ones.” 

However, “unfortunately, we have seen that several agencies have entirely or almost entirely shut down FOIA processing (for example, State [Department], CIA and FBI) because their systems are configured to require processing on site,” he said. “I would like to see agencies developing work-arounds for the coming year or more in case social distancing measures persist because it can't be the case that no State Department records, for example, will be produced for the foreseeable future.”

Additionally, Topic said he would like either Congress or the Justice Department to “get to the bottom of why” the FBI said during the pandemic that FOIA requests must be submitted via mail not email, as Buzzfeed News reported in March. “There seems to be no logical reason for this other than to make it more difficult to make requests,” he said.