COVID-19 Raises New FOIA Concerns

In the past few weeks, we’ve seen major changes to U.S. business as workplaces across the nation implement telework policies to combat the spread of the COVID-19 pandemic. Yet as the U.S. steps up its effort to control the impacts of COVID-19, watchdog groups and news organizations continue to put pressure on government agencies to ensure proper handling of procedures at all stages of the outbreak. U.S. health agencies, like the Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH), have seen a spike in FOIA requests during this uncertain time. This raises the question: are agency FOIA offices equipped to handle the COVID-19 FOIA surge?

The impacts so far.

Several agency missteps have already prompted a flurry of FOIA requests to agencies like the CDC and NIH. For instance, CDC handling of COVID-19 test kits has not been well received, with reporters claiming that kits were stunted by errors and delays. As such, groups like American Oversight have submitted requests for expedited FOIA processing, on the basis that, according to OIP guidance, “an individual’s life or personal safety would be jeopardized by the failure to process a request immediately.”

What’s expected to happen.

As time goes on, multiple agencies are likely to see an uptick in FOIA requests related to COVID-19 for various reasons. For instance, the Department of Defense (DoD) will likely see FOIA requests ensuring service members overseas are receiving proper protections from the virus. Any agency in which employees were exposed to COVID-19 will likely see a rise in FOIA requests, and several agencies will likely get hit with requests for email correspondence from groups trying to determine who knew what information, and when. This means that agencies without eDiscovery tools like FOIAXpress EDR will have a difficult time culling and redacting large email data sets.

We can learn from past events.

As FOIA expert Dick Huff points out, major unforeseen disasters have, in the past, completely changed the way FOIA processing is done. The 1986 Space Shuttle Challenger disaster prompted NASA to build an online repository for FOIA-requested documents, so in the wake of later unforeseen events like the 2003 Space Shuttle Columbia disaster, NASA was well equipped to handle repeat FOIA requests. NASA’s efforts prompted 1996 FOIA legislation to require all agencies to build an online FOIA “Reading Room.”

Meanwhile, the 2005 impact of Hurricane Katrina caused a flood of FOIA requests that some agencies weren’t equipped to handle. Agencies that did well, like Army Corps of Engineers, brought in employees from other offices outside of FOIA to help decrease backlog. Such a move was unprecedented at the time, but now is commonplace with FOIA teams like ours at the ready to help agencies in similar times of disaster.

What to do now?

AINS has already identified several key ways that government agencies can handle FOIA surges in our article, “Surviving the FOIA Surge.” You can read the article here.

Under a FOIA services contract, we can provide a bench that allows agencies to call and get help quickly on a critical case. If, for example, an agency typically needs five people to process FOIA requests, and now needs seven or eight, we can provide the manpower to help the agencies process requests and reduce backlog.

We can also recommend best practices to optimize your use of FOIAXpress and FOIAXpress EDR. Simply contact us at to learn how to implement these practices.