Public Comments Submitted By Schwager, Dan & Lance Sims
FOIA Advisory Committee,
American Oversight and the Project on Government Oversight (POGO) are jointly
submitting this comment to the FOIA Advisory Committee regarding the Draft
Model Determination Letter. These recommendations are in addition to the
excellent comment submitted by the Project on Government Oversight (POGO) on
behalf of many, including American Oversight, in the requester community.
We believe that these additional recommendations will further improve the
Model Determination Letter for all requesters:
Additional information that could be prompted regarding search methodology
and locations include listing proposed or obvious search terms that were
rejected (and why) and how the listed custodians were asked to search for
records.
More concrete estimates of timing are also important when requests are sent
out to other agencies for consultation or referred for other agencies鈥�
direct responses (if the original agency knows). To encourage this helpful
information, we recommend adding a numbered item to the 鈥淩eferrals鈥�
paragraph stating 鈥�(7) an estimated time of response from the agency asked
to consult or to whom the records were referred.鈥�
While the section labeled 鈥淵our Rights鈥� asserts that requesters must file
appeals within 90 days of the letter itself, requesters have had appeals of
interim responses rejected for lack of ripeness. In addition, the Department
of Justice鈥檚 Office of Information Policy guidance makes clear that interim
responses should not trigger a final 90 day appeal deadline, though
requesters may choose to appeal them (apparently some appeals officers or
analysts may disagree with the latter point) (1). For that reason, we
recommend that the model letter articulate this distinction by providing
alternate language consistent with the current law and OIP guidance with
regard to appeals deadlines and opportunities to appeal interim and final
responses. This will save the administrative appeals offices valuable
resources, and will save requesters from expending resources unnecessarily or
prematurely.
We are happy to discuss with interested committee members and staff if there
is interest. We appreciate your consideration of POGO鈥檚 comment and these
additional recommendations.
American Oversight, Dan Schwager, Chief Counsel , Dan.Schwager@americanoversight.org
POGO, Lance Sims, FOIA Litigation Manager, Lance.Sims@pogo.org
(1) OIP Guidance: Adjudicating Administrative Appeals Under the FOIA 鈥淲hile
agencies should provide the opportunity to appeal each interim response, it
is important to note that the requester does not lose the ability to raise an
issue from an earlier interim response if he or she does not appeal at that
time. After the final determination is made on a request, the requester
should have ninety days to file an appeal on any aspect of that request.鈥�