U.S. Department of Justice
Office of Information and Privacy
UPDATE
DIP Guidance
When to Expedite FOIA Requests
issue bound lo be confronted sooner or later by all federal agencies ii whetherive certain requesters expedited treatment under the Freedom o( Information Act. Because the grantingequest for expedition necessarily works to the direct disadvantage of other FOIA requesters, the merits of such requests should be assessed carefully.
The FOIA requires that federal ajtnc.es determine whether io release requested records withinorking days, but tbai period may Be extended for an additionalorking days whenever any of thiee statutorily defined "unusual circum-iiances"any agencies are often unable to meet these deadlines due to such factors as the numbei of requests received, the volume ol records sought, dc eniralizcd recordkeeping procedures, and limitations on mocoupled with the needine-by-line review of sensitive documents.ourt of Appeals forircuit has recognised this problem and has specifically approved thetable pi act-or of handling requestsfirst-in.basis. See Open Amenta v. Watergate Special Prosecution6.
Al the same time, however,, Circuit in Open America recognized that some FOIA requests necessarilyar greater degree of urgency than others and thaiequester can show "exceptional need oris request should be processed out of. The Opm America decision did not specify any particular circumstance which might constitute 'exceptional need oro decisions ongrant expedition have been left for agency FOIA officers to makeasc-by-case basis. Several years of administrative practice in this area, though, together with at least some specific judicial precedents, have served to develop the fallowing guidelines and considerations.
Threat to Life or Safety Rrsi. FOIA processing should be expedited whenever il is demonstrated thai aa individual's life or personal safety would be jeopardised by the failure toequest immediately. Of the handful of court decisions to have ordered expedited processing, almost all have fallen into this category. See.Exner v.3.B) (plaintiff obtained expedited treatment after leak of information exposed her io harm by organized crimeh: Cleaver v..1plaintiff faced multiple criminal charges carrying possible death penalty in sute count. At Ihe administrative level, the Department of Justice hasequest to facilitate disclosure of medical informationather vital to the child's emergency medical treatment. Another agency agreed to processequest from the parentsoung woman believed to beerious threat to her life in the custodyull. To be sure. FOIA requeits involving substantiated "life-ot-death" mailers arc rate, bul no more compelling justification can exist for special FOIA treatment. Loss of Substantial Due Process Rightseneralequest also should be expedited if it is shown that substantial due process rights of the requester would be impaired by Ihe failure to process immediately and that the information sought is noi otherwise available. Indeed, Ihe practices of many federal agencies reflect such concern for the due process rights of requesters. Al Ihc Justice Department's Drug Enforcement Administration, forthe portionrug offender's file thai is relevant lo an upcoming parole hearing is routinely processed for release out of turn under the FOIA. Similarly, other agencies regularly expedite FOIA requests for information needed in contract award protests so (hat filing deadlines can be met.
It is not sufficient, however,equester merely io allege that requested records are "needed" in connection with some judicial or administrative proceeding: rather, the immediate use of the FOIA must be shown to behe preservationubstantial tight. See53ending civil suit does not generallyOIA demand for cxpediiedndeed, in Mitsubishi Electric Corp. v. Department of Justice.. the court pointedly refused to order expedited processingequester had noi availed itself of ex isi ing civil discovery mechanisms for obtaining Ihe records sought. In connection with criminal proceedings, weak 'due process" claims have likewise been found inadequate.onzalez v.DSI69use of FOIA as discovery tool to aid standard post-judgment aitack on criminal conviction heldnited States Department ofDSneed for documents for preparation as witness in criminal (rial held insufficient).
Other Considerations Beyond these two nanow categories, i( is unclear to what extent agencies have the discretion to grant requests for expedition under any other circumstances. Only one judicial decision has ventured beyond thesev.5.ourt somewhat perfunctorily ordered immediate disclosureecord related to imminent action by Congress. Moreover, agencies should not forget the interests of all requesters in having their requests* treated equitably, as well as the public interest in (he integrity of FOIA processing. See Mitsubishi Electric Corp. v. Department of Justice, supra.d.L.P&F)2 (Expedited processing, "if granted, will adversely impact upon the conflicting interests of numerous individuals whose requests and appeals were filedecision toOIA request out of turn necessarily emails further delay for other requesters wailing patiently in line, simple fairness demands lhal ii be made only upon careful scrutiny of truly exceptional circumsiances.
UPDATE
FOR RELEASE
Original document.
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