Federal court enforces penalties for FOI response delays

Penalties for missing the 20-day time limit to respond to federal Freedom of Information Act requests and appeals applies to all agencies, regardless of their internal regulations on response times, a federal district court found August 10 in Bensman v. National Park Service.

Jim Bensman requested maps in November 2009 from the National Park Service in order to create GPS maps that he uses personally and provides free to others on his personal website. At the time of his request, he also applied for a fee waiver, claiming that he reaps no commercial benefit for the records and that the disclosure would be in the public interest.

In early December, the National Park Service responded to Bensman's request, giving him a reference number and asking for more information in which to process his request for a fee waiver. Bensman responded with the additional information a few days later.

In January 2010, Bensman filed an appeal with the agency regarding the delay in responding to his FOIA request, arguing that the agency had exceeded the 20-day limit required to respond under FOIA. As such, Bensman was entitled to the records free of charge as outlined by the 2007 amendments to FOIA, he argued.

Seven months later, in August 2010, the National Parks Service formally denied Bensman's fee waiver request and offered to supply him with the requested documents at a charge of more than $1,300. At the same time, Bensman received a denial of the appeal he filed in January, which said the National Parks Service did not violate the 20-day limit because that time "does not begin to run until all issues regarding processing fees are resolved."

Bensman again appealed, arguing that, not only was he entitled to a fee waiver, but that the agency failed to respond to his initial records request and his subsequent first appeal within the 20-day time limit, which also entitled him to a fee waiver. The National Parks Service again denied Bensman's appeal, leading him to bring the case in the federal district court in Washington, D.C.

It its decision, the district court did not rule on whether Bensman was entitled to a fee waiver or whether he was entitled to the records, holding only that the National Park Service's delay in responding to his initial request and to his first appeal resulted in a waiver of any charges.

The Open Government Act of 2007 ensures that "the 20-day statutory clock runs immediately upon an agency's receipt of a request" or appeal and there are only few, limited ways of tolling that 20-day limit, the court held. The time limit may only be tolled in times when the agency requests additional information, but, unlike the National Parks Service's claims that the tolling period extends until the issue is resolved, the court held that Congress was clear in proclaiming the tolling period ends when the agency receives the response to its questions.

"To underscore Congress's belief in the importance of the statutory time limit, the 2007 Amendments declare that '[a]n agency shall not assess search fees . . . if the agency fails to comply with any time limit' of FOIA," the court also held.

The court rejected the National Park Service's reliance on internal agency regulations, noting that the regulations have not been updated since 2002, five years before the most recent amendments. Not only are the different regulations cited by the agency in conflict with each other, but they are contrary to the 2007 amendments and clear Congressional intent to prevent the type of delays evidenced in the current case, the court held.

"As [the National Parks Service's] position is incompatible with both FOIA's legislative history and its clear statutory language, 'the [C]ourt, as well as [Defendant], must give effect to the unambiguously expressed intent of Congress,'" the court held.

Kel McClanahan, executive director of National Security Counselors, an organization that advocates for FOIA reform, said this is an important case to back up the 2007 Amendments to FOIA, particularly the penalties for delay.

McClanahan also noted there is a real problem of agencies relying on old practices and out-of-date regulations, despite updates to the statute. It is a problem that will not be resolved until more judges — like in this case — reinforce the amendments and disparage the use of outdated regulations, McClanahan said.

"This judge flatly said the [regulations] don't matter because there are new amendments that strike down the old [regulations]," McClanahan said. "It's important for agencies to understand that citing to pre-amendment regulations is not sufficient and no one will know that judges are serious about that until you get these decisions."

McClanahan noted that there are many "conscientious" agencies that are in compliance with the 2007 amendments and this ruling will only bolster already in-use practices. However, for those other agencies, McClanahan believes one decision may not be enough to change bad practices.