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I filed a FOIA request with the Bureau of Prisons (BOP) about 15 months ago (in April of 2020). The request was sent out to one of the agency's field offices, which automatically placed it in their "complex track". Placement in the track resulted in their notifying me that it could take up to nine months to complete the request.

After ten months had passed and the status hadn't changed from "Document Search", I reached out to see if they had responsive records and/or an updated timeline. They didn't have either. I then reached out again last month (after 14 months had passed) with no response, and then a few days ago (after 15 months) where they said the same thing as before.

FOIA requires agencies to stick to the basic timelines of 20 working days. But if a request is judged to be complex (more accurately: in certain "unusual circumstances" like needing to search field facilities), FOIA also permits agencies to negotiate an extended timeline or narrowed scope with the requester (described in 5 U.S.C. § 552(a)(6)(B)). The important part of this really lies in clause i of that subparagraph:

In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched.

However, that clause limits the extension to 10 working days. Anything beyond that is governed by clause ii:

With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request.

The law clearly states that any alternative timeline must be arranged with the requester, which was done when they notified me of the request's placement in their complex track. But seeing as how BOP has failed to meet the originally imposed deadline, are they required to provide an updated date of determination upon request? I understand they very well could probably just push the deadline back again, but it would at least be nice to understand their estimated time of completion.

Thanks for any guidance you're able to provide!

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You are not going to like the guidance

Government agencies routinely break the law on FOI requests and are rarely, if ever held to account.

There’s no malice involved in this, Congress simply doesn’t give them enough money to hire enough staff to meet the processing timelines in the FOI Act. So, it’s nothing personal, they do it to everyone.

There is essentially no accountability because:

  • most FOI requests are from journalists. Most journalism is time critical - today’s news is tomorrow’s fish and chip wrapping. They don’t ask because they expect a timely answer; they ask because a) they might, b) they can say they did ask and the agency didn’t respond … again, c) they can once a year write the article about how agencies are terrible at responding to FOI requests and d) when they finally respond they might use it a book they write after giving up journalism.
  • most requests aren’t important enough to the asker to go through the time and expense of enforcement action in Federal court. In fact, most people probably don’t do as much as you have.
  • if you do go to court, these are non-urgent cases meaning the go to the back of the list and get dealt with when the court has the resources to so. And they get their resources from Congress too. So the agency knows they now have 1.5 - 3 years of grace before you get your writ of mandamus.
  • they are theoretically accountable to Congress but Congress knows the saying about glass houses and stones.
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  • Yeah, that's pretty much what I expected. Though just out of curiosity at this point, do you think that the law still requires an update on a date of determination, even if the agency is unlikely to follow through on such a requirement? Jul 3 at 19:17

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