Another AG FOIA response

If you saw my post regarding the AG's $19,000+ estimate to fill a FOIA request, you'll be interested in this response from the AG's office, too.

The estimate in this response is for $40,000 and it suffers from the same problems noted in the previous post: a vague explanation for how the hourly salary rate was derived, and faulty logic that the exact same employees who search their records will also need to spend time reviewing their results (that is, many will have no responsive records).

The request suffers from the same problem as the other one, too. It is very broad: 15 months worth of records for the entire 418-employee office.

But, regardless of where your sympathies lie on this equation -- the estimate is prohibitively expensive or the request is prohibitively broad -- we can probably all agree that there is something very troubling about one aspect of this request that is not present in the previous one.

The response acknowledges that the request was sent via email on April 27 at 1:22 a.m. That's an unusual time to be sending email, but still, there does not appear to be a dispute that the request was sent on that day at that time. Under FOIA rules, the AG has five working days to provide one of FOIA's five allowable responses. The clock starts ticking the day after the request is filed -- that's to prevent someone from filing a request at 11:59 p.m. and then saying, "Boom! That's your first day." Even if the request were received early on April 27 the clock still starts on the 28th and the AG would have had five working days -- May 3 -- to provide a response.

Now, read the document below -- particularly the highlighted portion on page 2.

This letter is dated May 19, and the highlighted portion says the office became aware of the requst "today," the 19th, even though the request was sent April 27.

What?

State agencies -- the AG included -- are required to post their FOIA policies on their website. Here is the AG's policy, which includes the general contact point for a FOIA request.

I don't have confirmation that the request above was sent to the foia@oag.state.va.us address listed in the policy. If it was, a three-week delay without explanation is inexcusable. If it was not sent to the main address -- perhaps to a different general contact address or perhaps to a particular person in the office -- it its incumbent upon the office to have a policy in place that instructs employees (a quarter of them attorneys) to get the requests to the right person as soon as possible. There is no provision in FOIA that allows more time simply because the requster chose the wrong door to go through.

There may be still another, more understandable reason why it took three weeks to get the request, but we don't know. There's no further explanation. Just a statement that a FOIA requester is forced to live with.

FOIA says that a failure to respond in five working days is a violation of the act. Whether by intention or by mistake, the AG did not respond within the allotted time and at the very least owes an explanation for why that is. Separate and apart from this request, people who make requests in the future need to have the confidence that their requests are getting to the right people and are being addressed under the statute's time lines.

This is the AG's office, the office often asked to officially opine on the interpretation of FOIA. This and the previous responses are lacking. They could and should be better. They could and should stand as examples to other agencies for how to do FOIA right.