In response to heightened Freedom of Information Act (FOIA) activity since 2012, federal agencies have increased their FOIA staff by 21%. This staffing increase has contributed to a nearly 70% surge in federal government spending on FOIA-related expenses. But with the coronavirus (COVID-19) pandemic causing FOIA staff to telework at most federal agencies, many FOIA requesters are left wondering how COVID-19 will affect their information-gathering efforts. For now, the answer seems to be that the FOIA process—including the timing of most agency responses—will generally be unaffected.

Since its enactment in 1967, FOIA has empowered the public to request access to federal agency records. FOIA’s popularity as a means to obtain federal agency records—used regularly by entities and individuals litigating against or negotiating with the federal government—has created considerable FOIA backlogs at many federal agencies. Now, like many individuals and entities around the world, the federal FOIA infrastructure is facing challenges from the COVID-19 pandemic. Yet most federal agencies, at least for now, are expecting FOIA business-as-usual.

The US Environmental Protection Agency (EPA), for its part, has stated that its FOIA program will continue to function normally with a teleworking staff. “FOIAonline is still working, and we are still accepting requests electronically,” an EPA spokesman recently told a news outlet, referencing the federal government’s online FOIA portal. “Maintaining the health and safety of EPA’s workforce while fulfilling our mission responsibilities is our top priority.” Likewise, the US Department of Energy, Department of Agriculture, Department of the Interior, and Pipeline and Hazardous Materials Safety Administration anticipate normal FOIA operations during the COVID-19 outbreak.

FBI Makes COVID-19-Related FOIA Changes

The Federal Bureau of Investigation (FBI), however, has reported COVID-19-related changes to its FOIA program. According to reporting, FBI officials have told lawyers for FOIA requesters that the FBI’s Records Management Division will remain closed until at least the end of March. The FBI is further requiring that FOIA requests be submitted by mail rather than electronically. A statement posted on the FBI’s FOIA website reads: “Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail.”

More Agencies May Follow the FBI’s FOIA Path

As the COVID-19 outbreak continues to strain the federal workforce, more agencies may be forced to adjust their FOIA programs. With employees teleworking, agencies may place further limitations on requests as their FOIA backlogs continue to grow. We will continue to monitor and report on these developments.

Additional Resources

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold.