Often times, when facing voluminous requests for records under Connecticut’s Freedom of Information Act (FOIA), clients will simply ask me: “How long do we have to comply?” There is no simple answer, but here are some practical pointers.
The Rule. Under the FOIA, persons have a right to inspect and receive copies of public records “promptly.” A denial of a request must be made in writing within four (or for personnel records, ten) business days of the request. This deadline does not actually require an agency to produce copies of all of the documents within this time period. Rather, within this time period, you should at least tell the requesting party the general plan for compliance with the request and whether you may be withholding certain (or all of the) requested documents. As for producing the records …
What is “Prompt”? In determining whether a public agency has “promptly” responded to a FOIA request, the Freedom of Information Commission (FOIC) is guided by the following factors:
the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.
How About Some Practical Examples? The FOIC recently issued a couple of decisions that (sort of) exemplify how much leeway public agencies have in responding to voluminous requests. In Booth v. Superintendent of Schools, #FIC 2021-0423, a citizen requested in mid-February of 2021 that a school district provide to him with all e-mails to and from board of education members over a certain six-month period. After immediately acknowledging the request, the district notified the citizen in late April that it estimated that there were approximately 30,000 e-mails responsive to his request and that it would be charging $.50/page for copies. The citizen responded that he wanted the records to be produced electronically and free of charge. At the end of June, the district indicated that it would be disclosing the e-mails on a rolling basis, but after a further reminder, the district indicated that because the records required redaction, it would not be able to transfer the records to a thumb drive, and its summer help was no longer available to assist with responding to this request. In September (212 days after the initial request), the district began to comply with the request (and engaged its attorneys to assist). Via five additional deliveries, with the last one being made more than a year after the date of the initial request, the district provided all of the responsive e-mails (which turned out to be “only” 11,500 e-mails). The FOIC acknowledged that the district did have technical issues with regard to the search, review and redaction of the e-mails, along with some staffing limitations. However, the FOIC found that the request was “clear and straightforward,” “only” sought six months of e-mails, and once the parameters of the search were put into the e-mail system, the system captured the responsive e-mails and each of the nine searches “only” took between 30 minutes and one hour to complete. The FOIC found that the timing of the district’s response violated the FOIA’s promptness requirement.
In Haythorn v. Chairman, Board of Education, #FIC 2021-0470, a citizen made a sprawling request for records related to a school district’s participation in a certain health insurance plan. The FOIC noted that the request was very broad and lacked clarity, the district had previously hired staff members to assist in responding to this citizen’s many prior FOIA requests, and the district had met with the citizen in order to get greater clarity of this latest request. The district uncovered approximately 15,000 responsive records and produced documents on a rolling basis, but was hindered by staffing turnover. Even though the district had not provided all the requested records even after nine months following the request, the FOIC declined to find a violation of the FOIA in light of the fact that 1) the district had been diligent (spending approximately 64 hours) in searching for and reviewing records, and 2) the delays were caused by the lack of clarity and voluminous nature of the request.
What Does This Mean? To be blunt, the FOIC’s decisions are often very fact intensive, and sometimes do not appear to be consistent. However, the best step for an agency in complying with a voluminous request is to engage in an interactive process with the requester. Simply put, keeping on top of the request by asking a requester to narrow or clarify a request (and keeping in contact with the requester and producing documents on a rolling basis) will be viewed favorably by the FOIC. The mere fact that the request is voluminous does not excuse compliance, and the FOIC may have less patience in terms of an agency’s delayed compliance with even a voluminous request if the request is straightforward.
Please note: this post is adapted from an article written by the author for the December 2022 edition of the CABE Journal
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