Public Comments Submitted By Schwager, Dan & Lance Sims

FOIA Advisory Committee,

American Oversight and the Project on Government Oversight (POGO) are jointly

submitting this comment to the FOIA Advisory Committee regarding the Draft

Model Determination Letter. These recommendations are in addition to the

excellent comment submitted by the Project on Government Oversight (POGO) on

behalf of many, including American Oversight, in the requester community.

We believe that these additional recommendations will further improve the

Model Determination Letter for all requesters:

Additional information that could be prompted regarding search methodology

and locations include listing proposed or obvious search terms that were

rejected (and why) and how the listed custodians were asked to search for

records.

More concrete estimates of timing are also important when requests are sent

out to other agencies  for consultation or referred for other agencies’

direct responses (if the original agency knows).  To encourage this helpful

information, we recommend adding a numbered item to the “Referrals”

paragraph stating “(7) an estimated time of response from the agency asked

to consult or to whom the records were referred.”

While the section labeled “Your Rights” asserts that requesters must file

appeals within 90 days of the letter itself, requesters have had appeals of

interim responses rejected for lack of ripeness.  In addition, the Department

of Justice’s Office of Information Policy guidance makes clear that interim

responses should not trigger a final 90 day appeal deadline, though

requesters may choose to appeal them (apparently some appeals officers or

analysts may disagree with the latter point) (1). For that reason, we

recommend that the model letter articulate this distinction by providing

alternate language consistent with the current law and OIP guidance with

regard to appeals deadlines and opportunities to appeal interim and final

responses. This will save the administrative appeals offices valuable

resources, and will save requesters from expending resources unnecessarily or

prematurely.

We are happy to discuss with interested committee members and staff if there

is interest. We appreciate your consideration of POGO’s comment and these

additional recommendations.

American Oversight, Dan Schwager, Chief Counsel , Dan.Schwager@americanoversight.org

POGO, Lance Sims, FOIA Litigation Manager, Lance.Sims@pogo.org

(1) OIP Guidance: Adjudicating Administrative Appeals Under the FOIA “While

agencies should provide the opportunity to appeal each interim response, it

is important to note that the requester does not lose the ability to raise an

issue from an earlier interim response if he or she does not appeal at that

time.  After the final determination is made on a request, the requester

should have ninety days to file an appeal on any aspect of that request.”