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FOIA Tip 15: Writing a Good Request Part 5, or Expedited Processing and other Timing Issues

April 8, 2010

Can you prove "compelling need" for expedited FOIA processing?

The FOIA’s expedited processing provision, added in 1996, is intended to help journalists who need to get information quickly for publication and others who have an urgent need for records. Expedited processing is available in cases where the requester can show “compelling need” for the information, as defined in the statute, and in other situations determined by the agencies.

When should I request expedited processing?

Congress intended expedited processing to be an exceptional option for matters that are truly urgent, not simply an opportunity to circumvent delays in ordinary circumstances. Because granting expedited processing means that some requests will be processed quickly at the expense of others, agencies require a strong showing that one or more of the criteria are met. Agencies rarely grant expedited processing. Therefore, it is important to request expedited processing only when you can reasonably argue that your request is urgent and falls within one of the grounds for expedited processing.

Before filing a request for expedited processing, look at the agency’s FOIA regulations to determine which grounds that agency will consider. All agencies grant expedited processing based on the following statutory grounds:

  • If failure to obtain the requested records expeditiously poses an imminent threat to the life or physical safety of an individual.
  • If there is an urgency to inform the public about actual or alleged government activity (for requests made by persons primarily engaged in disseminating information, like journalists, authors, and scholars).

Other common grounds for expedited processing (adopted by some agencies in their FOIA regulations):

  • If failure to get the requested records in an expedited fashion will result in the loss of substantial due process rights of any person.
  • If the request involves a matter of “widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”[i]

Note that several agencies have not updated their regulations to cover expedited processing and therefore do not provide any grounds for expedited processing. If this is the case, simply base your request on one of the two statutory grounds.

How do I request expedited processing?

First, review the agency’s FOIA regulations or the FOIA handbook on the agency’s website to determine what procedural requirements apply to a request for expedited processing.

Some agencies require a request for expedited processing to be made at the time of the initial request, while others allow requesters to ask for expedited treatment any time after the initial FOIA request is filed. If possible, you should make the case for expedited processing when you first submit your FOIA request. You should also try to send an expedited processing request to the correct agency component, rather than to the central FOIA processing office, for faster processing.

Then, draft a statement justifying expedited processing and certification.

  • Select the most appropriate ground(s) for your particular case from the statute and/or the agency’s regulations.
  • Describe the circumstances that you believe qualify your request for expedited treatment. Explain in as much detail as possible how the documents you are seeking will prevent the specific harm—such as death or injury to a person or loss of due process—or how they will inform the public about significant government activity. It is very important to connect a person, event, or public interest to the specific documents you are requesting and explain how getting the documents quickly will prevent the harm or fulfill the need for which you are arguing. You may cite news articles demonstrating public concern about impending government actions or decision-making processes to bolster your case.
  • Explain how you will disseminate the information to show that expediting the release of records to you will serve the purpose of the statute because you are able to get the information to the public.
  • Include a certification of truth.

What happens after I request expedited processing?

Agencies are required to determine whether to grant expedited processing and respond to the requester within ten days. When expedited treatment is granted, the agency must process the request and provide documents “as soon as practicable.” Although there is no specific time limit in the statute, courts have determined that expedited requests should be processed in less than twenty business days. The agency must at least move your request ahead of other non-expedited requests in the queue and then process it as quickly as possible.

If you are denied expedited processing, you may appeal that decision immediately through the agency’s ordinary appeals process (see chap. 5). If you do not appeal the determination, your request will be processed as part of the agency’s regular queue of requests.

Granting expedited processing does not mean the agency will release the requested documents, but only that the agency will strive to process the request as quickly as possible. The agency will still issue a final response letter with appeal rights for any withheld information.

[i] See, e.g., 28 CFR § 16.5(d).

One Comment
  1. P. J. permalink
    August 26, 2015 9:10 pm

    Health & Human Services Region IX Centers for Medicare & Medicaid (CMS) San Francisco Office seems to be great at making sure there are no expedited FOIA requests, even if one has a heart condition, a CMS approved Medicare Advantage Plan, and is being denied medical access by a Medical Group with a CMS approved contract.

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