Freedom of Information: A Comparative Legal Survey - Federation of ...

for an additional 10 days. In such cases, the public body shall notify the applicant that the information
cannot be provided within the original 20 days and provide him or her with an opportunity either to limit the
scope of the request or to arrange an alternative timeframe. For these purposes, “unusual circumstances”
shall mean, to the extent reasonably necessary for the proper processing of requests, the need to search
for records from fi eld facilities, the need to search through a large volume of records or the need to consult
with another public body or two or more branches of the same public body (clause (a)(6)(B)).
The Law also provides for “multitrack” processing of requests based on the amount of work involved
(subparagraph (a)(6)(D)), as well as for expedited processing of requests in cases where the applicant
demonstrates a “compelling need”. A claim of compelling need must be determined within 10 days and
notice provided to the applicant of such determination. A compelling need exists either where a failure to
obtain the record could reasonably be expected to pose an imminent threat to life or safety, or where there
is an urgent need to inform the public about federal government activity and the applicant’s primary focus
is the dissemination of information (subparagraph (a)(6)(E)).
Pursuant to subparagraph (a)(6)(C), an applicant shall be deemed to have exhausted his or her administrative
remedies if a public body fails to comply with the applicable time limits (deemed refusal). However, where
the body can show that exceptional circumstances exist and that it is exercising due diligence in pursuing
the request, a court reviewing the matter may allow the public body additional time to comply with the
request. Exceptional circumstances do not include a delay resulting from a predictable workload of
requests but any refusal by the applicant to modify the scope of a request or to arrange for an alternative
timeframe for meeting the request may be taken into account. In practice, as a result of these rules, there
have been a number of serious delays in the provision of information. Some bodies, such as the FBI, have
delays running to several years and sometimes even decades, 324 many of which have been upheld by the
courts.
The most recent amendments to the Law introduce a number of measures to try to address this problem.
Limits on the ability of public bodies to extend the 20-day period will be introduced, certain fees may not
be charged where time limits are not met and FOIA Public Liaisons must be made available to assist
applicants resolve disputes. Furthermore, detailed reporting requirements on the time for responding to
requests have been imposed on public bodies, to be included in the annual reports to the Attorney General
(see below under Promotional Measures) (sections 6 and 8 of the OPEN Government Act).
The Law provides for neither the transfer of requests to other public bodies nor consultations with third
parties. However, Executive Order 12,600 of 23 June 1987 325 does require public bodies to establish
procedures for consulting with third parties where they may be required to disclose confi dential commercial
information. Furthermore, clause (a)(6)(B)(iii)(III) does refer to consultation with other public bodies in the
context of delayed responses to requests for information. In practice, transfer of requests is common.
The response to a request should set out the reasons for the decision, along with any right of internal
appeal (clause (a)(6)(A)(i)). 326 Where all or part of a request is denied, the notice shall also provide the
names and titles or positions of the offi cers responsible for the denial decision (a)(6)(C)(i)), as well as a
reasonable estimate of the quantity of information denied, unless this would itself divulge information
excepted from disclosure (subparagraph (a)(6)(F)).
Pursuant to subparagraph (a)(3)(B), information must be provided to an applicant in the specifi ed format,
as long as it is readily reproducible in that format. Bodies are also required to make an effort to ensure that
their records are reproducible for purposes of compliance with this duty.
The Law sets out detailed rules on the fees which may be charged for responding to requests for
information. Each public body must, after public consultation, promulgate regulations specifying the
schedule of fees which may be charged for access to information, as well as the procedures and guidelines
for waiving or reducing these fees. The schedules must conform to guidelines promulgated, again after
public consultation, by the Director of the Offi ce of Management and Budget, which shall provide a uniform
schedule of fees for all public bodies (clause (a)(4)(A)(i)). 327
The Law provides for three different fee systems for different types of request. Requests for commercial use
may be billed “reasonable standard charges for document search, duplication, and review”. Requests by
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