Nope to scope

It happened again today.


Some FOIA issues come up over and over and over. Usually, it’s an overarching issue with lots of possible permutations. That is, maybe it’s an issue having to do with response time, but there are a thousand different scenarios. Or, maybe it’s about exemptions, but there are over 120 exemptions and thus at least 120 different issues.


But some issues are so narrow and so specific, and they often come in such rapid succession that it sometimes feels that the government employees who fill FOIA requests recently got together and created a Stonewall of the Week response.


My use of the word “narrow” above was not by chance. The issue that came up today, and recently has been coming up with great frequency, is when government employees tell FOIA requesters that they must “narrow the scope” of their request.


Usually, this occurs when an individual asks for a records covering a certain period of time (say, July 2009 to February 2010), and a little less often, for records covering communication between a number of different people. Usually the request is open-ended so that it asks for “all records.” The issue seems to arise the most often when someone requests e-mail.


Here’s what FOIA says about a request: “A request for public records shall identify the requested records with reasonable specificity.”


That’s it. You don’t have to put it in writing. You don’t have to say you’re making a FOIA request. You don’t have to know the official name of the record. Granted, all of those things help expedite the process, but they are not required.


So, as long as an employee understands what is meant by “all email” from “July 2009 to April 2010,” for example, the requester has made a valid FOIA request.


There are five acceptable responses to a FOIA request: (1) here are all the records; (2) here are some records, but other records are being withheld/redacted; (3) all records are being withheld; (4) we don’t have the records; and (5) this is a big request and we need more time.


It is not a proper response, therefore, to say to the requester, “please narrow the scope of your request.”


The government employee can respond with #5 above and say, “You’ve asked for a lot of records and it will take at least another 7 days to get all the records to you. In fact, we may need to go to a judge to ask for even more time.” That’s all legitimate.


The employee can also respond with one of the 5 responses, and add for the requester’s information (provided it is true!), “You know, this is going to cost a lot of money. Do you want to narrow your request to save money?”


But by itself, and provided the employee can identify what records the requester wants, the government can neither delay nor refuse to process a FOIA request until the requester has “narrowed the scope” of his/her request.


Here’s hoping the scope of this particular trend is steadily narrowing itself.

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