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Why does "Day 1" of the 20-day response time limit for FOIA requests begin the day AFTER [the proper component in an] agency receives a perfected request?

I understand that under Rule 6 of the Federal Rules of Civil Procedure computation works that way, in that the day on which an event is triggered doesn't count. My confusion stems from the OPEN Government Act of 2007, which in part reads, "The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section."

Now, I get that the purpose of that section was really to grant an additional ten days in most cases, but it still says that "the 20-day period under clause (i) shall commence on the date on which the request is first received."

Assuming a perfected request is received by the appropriate agency component, why is the day upon which a request is received still considered to be "Day Zero?" What did that portion of the Open Government Act even change?

Thank you.

  • Not sure that this question belongs here - however I imagine if the request were received just before close-of-business it should not be counted. The law could, however, just as easily have been extended by 1 working day. – davidgo May 17 '18 at 4:59
  • What is your basis for believing that this is how the days are counted? – ohwilleke May 17 '18 at 7:40
  • @davidgo - (I apologize if the question is inappropriate for this forum. Would you mind explaining why that might be, so I can avoid it in the future?) – Custom Soundtrack May 17 '18 at 8:32
  • @ohwilleke - I have been trying to get clarity on this for months. My primary basis for believing that this is how days are counted is that multiple agency FOIA officials have told me so. The complaints I have read use both methods, but they favor the Rule 6 method. The general story I have heard is that even if a request is submitted on a weekend and is received by the proper component at 9am on Monday, day one begins on Tuesday (and at close of business Tues., one day has elapsed.) I have asked for an explanation in light of the plain text of the law and was told "That's just the way it is." – Custom Soundtrack May 17 '18 at 8:45
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The Open Government Act of 2007 should trump the Rules of Civil Procedure.

But, from a practical perspective, even if you are right, it would take high stakes indeed to make it economic to litigate a one day dispute in the event that the agency incorrectly calculates the deadline. The remedy for failing to comply with FOIA is ordinarily to bring a lawsuit to compel performance, which takes much longer than one day, and I doubt that a court would issue an emergency order to compel speedier compliance. So, usually waiting one more day is going to be more prudent than trying to compel an agency to act otherwise, for a mere occasional FOIA requestor.

The Rules of Civil Procedure method is the ordinary and natural method in the absence of a specialized definition and so it is easy to imagine that many agencies have gotten set in their ways of calculating it incorrectly before reading the unnatural and counterintuitive definition of the statute and deciding to ignore it.

If you needed to regularly use FOIA requests, for example, on a commercial basis or because you are newspaper, it might be worth you time and money to bring a declaratory judgment action against the agency in question that you determined was not applying the law correctly and was always a day late, to get the matter cleared up prospectively, although even then, the damage that might do to your long term relationship with the agency in other respects where they have discretion might not be worth the extra day.

It also wouldn't be unheard of for the courts to defer to an agency interpretation of the Open Government Act, either as a matter of agency deference or as a matter of interpretation of the statute in general, notwithstanding its seemingly plain language.

  • Respectfully, I disagree. The high stakes are real, as the Open Government Act of 2007 provides that most fees cannot be charged when an agency fails to comply with the statutory time limits (subject to certain exceptions), see Bensman v. Nat'l Park Service (D.D.C. Aug. 2011), where the court also addressed Chevron - no deference on this question. Also, the FOIA provides for a discretionary but reasonably-predictable award of attorney fees and costs to a prevailing plaintiff - a strong incentive to resolve issues like this one. (And about me, I probably submit about five FOIA requests a week.) – Custom Soundtrack May 17 '18 at 9:36
  • Thank you for your answer. (And I apologize for my great many edits. I'm new to StackExchange and am not used to "enter" submitting my comment!) – Custom Soundtrack May 17 '18 at 9:40

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