Understanding Agency Discretion Under FOIA
What agencies may do under the statute — and how that discretion expands.
Estimated reading time: 5 minutes
The Agency’s Side of the Statute
FOIA imposes obligations on federal agencies. It requires them to respond within twenty working days, conduct reasonable searches, and justify withholding. These obligations are statutory.
In practice, agencies have substantial discretion in how and when they comply.
Missing Deadlines Without Penalty
The twenty-day response requirement is mandatory under the statute. Agencies routinely exceed it. There is no automatic consequence.
When an agency misses the deadline, the requester’s only recourse is to file an administrative appeal or proceed to litigation. Both options take months or years. During that time, the agency continues processing—or not processing—at its own pace.
Delay does not trigger sanctions. It triggers more process.
Redefining Receipt
Agencies determine when a request is officially received. A request submitted on a given date may not be logged as received until days or weeks later. Agencies may claim technical issues, portal malfunctions, or administrative backlogs.
The requester has no ability to contest the receipt date. The agency’s determination controls the start of the twenty-day clock.
This allows agencies to add processing time without formally invoking an extension.
Serial Extensions
FOIA permits agencies to extend the response deadline by an additional ten working days under “unusual circumstances.” Those circumstances include the need to search multiple offices, the volume of records involved, or the need to consult with other agencies.
Agencies invoke unusual circumstances frequently. The statute does not limit how many times an agency can extend. A single request can remain open indefinitely through repeated extensions.
The requester must accept each extension or proceed to litigation. There is no mechanism to challenge the reasonableness of the delay without filing suit.
The “Assigned for Processing” Notification
Many agencies send acknowledgment letters stating that a request has been “assigned for processing.” This notification does not indicate progress. It indicates that the request exists in a queue.
Requests can remain in “assigned for processing” status for months. The requester receives no updates. The agency provides no estimated completion date.
The acknowledgment satisfies the statutory requirement to respond. Substantive disclosure remains pending.
Closure and Renumbering
Agencies may close requests for a variety of reasons: lack of clarity, failure to pay fees, failure to respond to clarifications, or administrative error. Once closed, the request is removed from active processing.
In some cases, agencies close multiple requests simultaneously. The requester may not receive individual explanations for each closure. The agency may issue a single letter referencing multiple request numbers.
If the requester wishes to reopen the matter, they must submit a new request. The new request receives a new tracking number and begins the process again.
The original request’s processing time does not carry over.
“No Records” Responses
Agencies may respond that no records exist responsive to a request. FOIA requires agencies to describe the search conducted and explain why no records were located.
The level of detail provided varies. Some agencies offer thorough explanations. Others provide brief statements that no responsive records were found.
The requester has no ability to verify the search. They must rely on the agency’s representation unless they proceed to litigation and obtain discovery.
Exemption Assertions Without Detail
When agencies withhold records, they must cite one of FOIA’s nine exemptions. They must also provide a reasonably detailed explanation of why the exemption applies.
“Reasonably detailed” is a flexible standard. Some agencies provide page-by-page justifications. Others cite exemptions in bulk with minimal explanation.
Requesters who disagree with the exemption assertion must appeal. The appeal process does not guarantee access. It only guarantees review.
The Practical Effect of Discretion
FOIA grants agencies discretion in several areas: how quickly to process requests, how thoroughly to search, how detailed to be in explaining withholdings, and how strictly to interpret statutory deadlines.
That discretion allows for variation. Some agencies process requests efficiently. Others do not.
The statute provides limited tools for the requester to compel compliance in real time. Administrative appeals take months. Litigation takes years. Agencies are aware of this timeline.
Delay becomes a rational choice.
What Agencies Are Not Required to Do
Agencies are not required to provide status updates beyond acknowledging receipt. They are not required to explain why processing is taking longer than the statutory deadline. They are not required to prioritize certain requests over others based on public interest or urgency.
Agencies are not penalized for missing deadlines unless a court orders compliance. Even then, contempt findings are rare.
Agencies are not required to prevent delays caused by internal administrative issues, staffing shortages, or competing priorities. The statute does not impose operational mandates.
Summary
FOIA creates obligations for agencies, but enforcement of those obligations is reactive, slow, and dependent on the requester’s willingness to escalate. Agencies have substantial control over processing timelines, and they operate with minimal risk of immediate consequence for delay.
The question is what happens when this discretion is applied unevenly.