Public Comments Submitted by Lauren Harper and Wendy Valdes

RE: Proposed Model Agency Determination Letter

Dear FOIA Advisory Committee,

The National Security Archive applauds the Modernization Subcommittee’s
efforts to draft a template for agency FOIA responses. Our organization has
filed tens of thousands of FOIA requests since our founding in 1985. In that
time we have found that agency interim and final responses have run the gamut
from informative to frustrating, and any attempt to standardize these
responses with an eye towards best practices is appreciated.

The Archive has four main comments concerning the proposed letter:

- The “Search for Responsive Records” section, including the methodology
section, was particularly good to see. It is helpful for requesters to be
given a list of the locations searched in response to their request.

It may, however, be of additional use for requesters to know which locations,
bureaus, or records repositories were not searched in response to a request.
Requesters often don’t have access to agency organizational charts prior to
filing a request, and it can be difficult for requesters to determine which
agency components or which major records systems are most likely to contain
documents responsive to their request. Making this information available
could help requesters more easily narrow their requests or improve their
appeals.

This information need not be included in the body of an official
determination letter; it could be included as an attachment, or it could be
published on an agency’s FOIA page alongside instructions for filing a FOIA
request, and would be a very useful reference for requesters prior to filing
a request or appeal.

- The “Referrals” section is excellent. The identification of the agency
where documents are referred to, and specifying that the new agency will
directly respond to the requester if that is the case, is critical. Currently
requesters are often left in the dark during the referral process, with no
easy way to follow-up with the new agency.

It may also be helpful in this section to reaffirm when the referred agency
expects to issue a final response.

- The explanation of the exemptions in the full and partial grants section is
very useful.
This section could also provide exemption-specific information, when
appropriate. For example, if the deliberative process privilege is cited for
exemption 5, the letter should inform the requester that this privilege
expires after 25 years.

- Finally, including an explanation on how an agency missing its statutory
deadlines will impact any fees the requester would be required to pay,
depending on their fee category, particularly in an interim response, would
be a welcome addition to the “Fees” section.

Thank you for your work on this letter, and for your solicitation for
feedback.

Lauren Harper
Public Policy Director
National Security Archive

Wendy Valdes
FOIA Coordinator
National Security Archive

[Note: Ms. Harper is a member of the 2022-2024 term of the FOIA Advisory Committee.]