Procedural changes include requiring a public body to acknowledge receipt of a FOIA request within 24 hours. The time afforded to produce records is sped up, with governments mandated to deliver records in five calendar days. Public bodies can opt for a 10-day extension but must now provide a detailed explanation for why the extension is necessary. Failure to respond to a request is a per-se denial of FOIA for appellate purposes.
The most important procedural amendment, however, is changing the deadlines in FOIA to refer to the production of records, rather than just a request for deposit. This eliminates the significant gap between the filing of a request and the production of records. This amendment makes clear that routine FOIA requests should be fulfilled in a timely fashion.
To avoid an undue burden on public bodies that do occasionally receive large requests, the amendment allows a public body to take even more time to fulfill a request. This option is tightly regulated, however, because of the opportunity it presents for abuse. To take the extension, a public body must apply to the Open Government Commission and demonstrate that producing records within 15 days (five days plus the 10-day extension) would “materially disrupt the public body’s ordinary business.” The burden for demonstrating this rests with the public body, which must satisfy the standard through clear and convincing evidence. If that appeal is successful, the Commission will grant an extension that it concludes is the minimum amount of time needed for a response. If unsuccessful in applying for the extension, the public body is responsible for a requestor’s attorneys’ fees (if any) and is treated as though it failed to respond in a timely fashion.
This combination of amendments should result in the vast majority of requests being fulfilled within 15 calendar days, which would be a significant improvement to current practice.