FOIA Fees as Performance Incentive
As you should know by now, my natural suspicion and cynicism know few bounds. As such, when I heard in recent weeks from two different people that at least some DOD components were voluntarily waiving otherwise applicable fees when they had failed to respond to FOIA responses in the mandated twenty-working-day timeframe, I saw this not as good news, but potentially bad.
On the surface, this initiative seems like a great idea, by giving components a solid, tangible incentive to responding within twenty days. Don’t meet the guideline, don’t get reimbursed for the costs incurred. Should do a lot to improve performance, right?
Look at it from the other side, though - on day 21, the military component who hasn’t responded to a request just lost all (financial) incentive to do so. At that point, I’m afraid there’s a danger that, knowing they won’t be reimbursed for the expenses, components will simply decide to unofficially stop processing a given request. Why throw good money (or manpower) after bad, right? Thankfully, there’s no sign of this mentality at work yet, but it still seems like a possibility, and one I’m at least a little concerned about.
I haven’t seen any information on this new “policy” of waiving fees, and don’t know that it’s necessarily a policy at all. However, looking at existing FOIA guidelines from the DOD, I don’t see any instructions about government-initiated fee waivers where the requester hasn’t asked for one, so infer that this must be some sort of new directive. I suspect, but would love confirmation from someone in the know, that this new policy only applies to “simple” requests; both of the instances I’m aware of involved quite straightforward, “perfected” requests whose applicable fees would have been above the minimum collection threshold, but were waived in their entirety because they took months to process. Broader, more complex, or more obviously laborious requests, I assume, would not automagically get (all) their fees waived.
I wonder if this policy will still be in effect in late 2009, which is when I optimistically anticipate a response to an extremely simple FOIA request I made to the Defense Intelligence Agency in early 2006… or in the summer of 2012, when I less optimistically anticipate a response to a somewhat more complicated request to DIA from this spring. (What, me, cynical?)
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First, the “policy” you are referring to is a proposal in FOIA admendment legislation languishing in Congress.
Second, there is no current financial incentive to process requests and the proposed revisions doesn’t address it either - what happens now with FOIA fees that are paid is they go to the General Fund of the U.S. Government and do not return to the agency that processed and responded to the request. So, this proposed change makes no difference - there is no financial incentive to respond to requests in the first place.
Third - there is absolutely nothing in the current and proposed legislation (and never has been) that there is a statutory time frame to provide records in response to the request. The only statutory time requirement is to respond to a requester within 20 days the agency determination that they have accepted their request (meaning, the request is a perfected request as you mentioned). Responsive records are encouraged to be provided “promptly thereafter” but that is it. So, the only time a legal requirement hasn’t been met is if the agency hasn’t told you within 20 days (of receipt of your request in the proper office) they have accepted your request for processing.
I never described a response in twenty days as “statuatory”, or a “legal requirement”, though I would refer you to DOD regulation 286.4 (d)(1), which says, in part:
(emphasis mine)
Further reading shows that there are actually provisions for voluntary fee waivers in a number of fairly broad circumstances. Regardless of whether components are actually getting reimbursed, or are otherwise accountable for the expenses related to processing FOIA requests, I still think the perception that - if there actually is such a guideline - all effort after twenty working days is gratis could produce a certain apathy among FOIA staff, and provide even less incentive than already exists for promptly processing requests. But that’s just me.