When a New York school district hired a new employee to take care of open records requests, the deputy superintendent for the district had this to say: "We can't be digging out all this information at the same time we're trying to deal with legal issues, budget issues and reduced administrative staff."
His frustration is probably shared by just about every local government in the nation. State government, too.
Local governments in particular have more to do, but less money and fewer people to do it with. They're swamped.
It's probably not surprising at this time, then, to hear government employees say that filling FOIA requests is taking them away from their other duties. But the thing is, at VCOG, we've been hearing this same complaint even when times were flush and personnel rosters were full.
There's a notion out there that FOIA is some "other" duty government has to perform. We hear talk occasionally about FOIA like it's some unrelated task that's been foisted on someone personally or the department generally. Employees tend to resent being asked to drop everything that they deem important in order to respond to someone else's emergency -- and with a five working-day time limit to respond to FOIA, it may indeed feel like emergency conditions exist to appropriately handle a FOIA request in a timely manner.
But FOIA, which has been on Virginia's books since 1968, is a law of no lesser (and no greater) import that any other law that state and local governments must comply with. The Virginia Code is filled with (no, not filled with, but "is") requirements that all state or all local or all government, or this agency or that political subdivision, must comply with.
Maybe a certain kind of report has to be completed and filed on a quarterly basis. Maybe a certain set of steps must be followed before buying a new copier. Maybe payroll tailored to each employee's different withholdings must be processed. Any one of these may seem onerous or superfluous, but unless a statute is repealed, there would be a duty to follow it.
The good thing about FOIA, though, is that there is relief built into the act for those situations when the one employee who can fill the FOIA request also has to complete that quarterly report, buy a new copier and process this month's payroll within the next five working days.
First, there's the option of getting an automatic seven working-day extension, so long as that option is invoked within the first five working days of the request.
If that's not enough time, FOIA encourages requesters and government to work together to get the right records delivered. There's nothing wrong with calling the requester and being honest about what's going on: "Hey, I know I'm supposed to get these records to you by Wednesday, but I have a huge report due that same day and I wanted to know if you'd be OK with getting it Thursday or Friday?"
And at this point, I have to acknowledge that there will be people who will not agree to relaxing the response times. Maybe a reporter is on a deadline that Wednesday, for instance; maybe an attorney needs the records for a court hearing that Wednesday; maybe a contractor needs a certain record to complete its RFP due that day; or maybe the requester is just plain ornery. But there's the option and hope of working things out.
If nothing can be worked out, the government also has the option of asking a court to give them more time. There's no limit to how much additional time the court can grant to the government.
The government employee should make sure the requester's past FOIA bills are up to date, too, because a FOIA request need not be filled if past FOIA bills are 30 days past due. And certainly charge for the time/expense of filling the request (though make sure the charge only reflects the actual cost and that a requester is not penalized financially for any delays due to less than optimal records management processes).
Government can also help itself by writing FOIA into certain employees' job descriptions. Not only does that help in publicly and internally identifying those who are responsible for responding to FOIA requests, it also helps drive home the point to those employees that FOIA is an integral part of the job, not a side or extra duty.
FOIA matters When FOIA requests are treated with the same seriousness as other duties of government, citizens are happy and government looks helpful and efficient. It's win-win.