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Anthrax Mail Emergency Delays FOIA Correspondence

During the months of October and November, as federal, state, and local authorities have struggled to deal with a range of unprecedented problems posed by the discovery of anthrax-laden mail, the resulting disruptions of mail service have greatly delayed the delivery and receipt of Freedom of Information Act-related correspondence throughout the federal government.

From the initial reports of anthrax illness in Florida and New York in early October, to the discovery of anthrax in a letter mailed to the United States Senate on October 15, a series of escalating safety concerns about opening, handling, and even being in the proximity of mail, especially in government offices in Washington, D.C., led to disruptions in, and then total curtailments of, mail delivery service at many federal agencies. No agency was harder hit by this than the Department of Justice, where anthrax was found in a central mail facility and then the widespread testing of exposed locations, and the irradiation treatment of all undelivered mail, necessarily followed.

At the Office of Information and Privacy, for example, mail delivery has been delayed by more than six weeks. Interruptions of service began in early October, when at first mail was opened only under limited conditions (which subsequently required site-specific anthrax testing), and this soon led to the complete curtailment of mail delivery as of October 19, when all incoming mail was diverted for irradiation in outlying facilities. Mail service did not begin to be restored until November 26, when the first few irradiated envelopes began to arrive, and the flow of backlogged mail has been thin and sporadic ever since. During the week of November 26, OIP received mail that was postmarked as early as October 12.

Many other federal agencies have experienced comparable difficulties with their mail delivery, particularly in the vicinity of Washington, D.C. At the Advanced FOIA Seminar that it conducted on November 28, OIP took an informal survey of that training program's forty participants, who represented more than thirty different agencies, on the status of their mail delays. As gauged by that brief survey, the majority of federal agencies are far from current in dealing with their mail.

Under such extraordinary circumstances, the administration of the Freedom of Information Act inevitably is delayed at all affected federal agencies. When mail delivery is delayed, so is the commencement of the process of FOIA administration, regardless of the time at which a FOIA request is placed into the mail by the requester or postmarked thereafter. Simply put, the FOIA process cannot begin until the personnel of an agency FOIA office are able to open any belatedly delivered item of mail. Cf. Braverman, Burt A., and Chetwynd, Francis J., Information Law: Freedom of Information, Privacy, Open Meetings and Other Access Laws, at § 3-4.1 (1985) (recognizing that the FOIA's time limits do not begin to apply to a request "until it is 'logged in'").

The processing of a FOIA request, with all applicable statutory deadlines, is triggered by an agency's "receipt of . . . such request." 5 U.S.C. § 552(a)(6)(A)(i) (2000). Under the Act, agency regulations prescribe the proper procedures for making FOIA requests, see 5 U.S.C. § 552(a)(3)(A), and they, too, routinely speak of the terms under which a FOIA request will be deemed "received." See, e.g., 28 C.F.R. § 16.3(a) (2001) (Department of Justice FOIA regulation); cf. 28 C.F.R. § 16.11(e) (same regarding circumstance in which requests "shall not be considered received"). As a sound general rule, a FOIA request is not considered "received" by an agency until "the date it is received by the proper [agency] FOIA office." 28 C.F.R. § 16.3(a); see Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2089, slip op. at 9 (D.D.C. July 14, 1998) (applying Department of Justice FOIA regulation to determine that "the Department of Justice is deemed to be in receipt of" FOIA requests sent to agency components as of "the dates [on which they were] actually received by those components"); see also FOIA Update, Vol. XVIII, No. 3, at 4 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports") (advising agencies to calculate annual FOIA report statistics using date of "proper receipt of a 'perfected' FOIA request").

Both FOIA officers and FOIA requesters alike must accept that the unprecedented delays in mail delivery that have been caused by the anthrax mail emergency during the past two months -- and which will continue to beset many agencies as further logistical problems and enormous backlogs of stockpiled mail are dealt with during the coming weeks -- will of course cause corresponding delays in the administration of the FOIA. (Even the United States District Court for the District of Columbia has explicitly recognized as much: In a special "Mail Delivery Notice" that appears on its Web site as of this date, it notes that "[i]t will take us several weeks, once mail delivery resumes, to process the mail that has been delayed.") For their part, FOIA requesters should recognize, as several courts have recognized in more isolated situations, that the Act's time deadlines and a FOIA requester's exhaustion of administrative remedies are necessarily delayed along with all delays in the delivery of mail. See, e.g., Stanley v. DOD, No. 93-4247, slip op. at 9-10 (S.D. Ill. July 28, 1998) (observing that the case "appears to involve a breakdown of the mail system" and that "[b]ecause the Air Force never opened the request, there was never a FOIA request"); Giaimo v. IRS, No. 94-2463, slip op. at 4 (E.D. Mo. Feb. 23, 1996) (ruling that because of difficulties delaying mail delivery, an agency's "duty to process a request" was commensurately delayed).

In turn, agency FOIA personnel should remember that FOIA requesters are largely in the dark about the exact lengths of time that their FOIA correspondence has been delayed. In short, requesters might think that their administrative remedies under the Act have been properly exhausted when in fact they have not. See 5 U.S.C. § 552(a)(6)(C)(i) (providing for "constructive exhaustion" whenever a statutory deadline in the Act has not been met). Agencies can try to remedy this by sending acknowledgment letters in response to all delayed FOIA correspondence as promptly as possible upon ultimate receipt, taking pains to specify the length of the delay that was incurred in each case. They also should take pains where necessary to advise requesters of the "cut-off" date that will be used to determine the scopes of records responsive to their requests, in light of the lengthy time delays involved. See FOIA Update, Vol. IV, No. 4, at 14 (advising agencies to give requesters adequate notice of the "cut-off" dates used for their requests); 28 C.F.R. § 16.4(a) (FOIA regulation specifying the date that each office "begins its search" as the established "cut-off" date for the Department of Justice and as the date recommended for use by other agencies). Wherever practicable, agencies also may allow FOIA requesters to submit new requests by fax, or even electronically if they have established that capability. See FOIA Update, Vol. XIX, No. 1, at 6; FOIA Update, Vol. X, No. 3, at 5.

Lastly, under the circumstances, agencies should not hold FOIA requesters to any administrative deadline of their own (e.g., a deadline for the filing of an administrative appeal) wherever a delay in mail delivery was responsible for the deadline being missed. Accord Kennedy v. United States Dep't of Justice, No. 93-0209, slip op. at 3 (D.D.C. July 12, 1993) (permitting FOIA requester to refile his administrative appeal after it was established that it had been "lost in the mail"). FOIA requesters will more readily understand and accept the consequences of the extraordinary administrative delays that have resulted from this unprecedented mail emergency if they realize that they apply evenhandedly to all concerned.   (posted 11/30/01)

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