Use of "Still Interested" letters (Department of Justice, United States Marshals)

An acknowledgement letter, stating the request is being processed.

Good afternoon, Ms. Best,

I hope this email finds you safe and in good health.

This is in response to your August 26, 2019 FOIA request regarding the USMS usage of "still interested" letters pertaining to Freedom of Information (FOIA) requests.

You asked for the following:
* The original proposal for their use
* Materials authorizing the use of any of the letters
* Controlling policies or procedures
* Any reports or statistics tracking their use, responses received and/or impact on any FOIA backlog
* Communications with OGIS regarding "Still Interested" letters
* Communications between the FOIA offices and and general counsel's/legal services office discussing or mentioning "still interested" letters
* Materials describing or discussing the number of days given to requesters to respond
* Materials describing the agency's policy on reopening requests when a requester responds after the period of time specified in the letter
As an initial matter, a federal agency is not required to answer questions posed as a FOIA request. See: Zemansky v. EPA, 767 F.2d 569, 574 (9th Cir. 1985); DiViaio v. Kelley, 571 F.2d 538, 542-43 (10th Cir. 1978); Jean-Pierre v. BOP, No. 12-78, 2012 WL 3065377, at *6 (D.D.C. July 30, 2012) (a request for objective pieces of information are not cognizable under FOIA, because they ask questions calling for specific pieces of information rather than records). Further, federal agencies are also not required to create records in response to FOIA requests or modify exempt information to make it disclosable. See: LaRoche v. SEC, 289 F. App'x 231, 231 (9th Cir. 2008); American Civil Liberties Union v. DOJ, 681 F.3d 61, 71 (2nd Cir. 2012)

For your reference, the USMS does not track letters asking if a requestor is still interested in a response to his or her FOIA request separately in any USMS FOIA database. The USMS sends "still interested" letters to a requestor via the requestor's preferred method of communication and provides a 30 day window for a requestor to respond. If a "still interested" letter is sent and a requestor is no longer interested in the content of a FOIA request, that request is closed as withdrawn. USMS records indicate 226 FOIA requests were closed as withdrawn in FY 2019 (although USMS notes a FOIA request may be withdrawn by a requestor regardless of whether or not a "still interested" letter was sent). If a requestor responds and is still interested in the content of a FOIA request, that request is processed as per USMS FOIA procedures. The sending of, and response to, a still interested letter is not tracked in any separate manner from the original FOIA request.

USMS usage of "still interested" letters is governed by US Department of Justice (USDOJ) Policy, which can be located here:

https://www.justice.gov/oip/blog/oip-releases-new-guidance-agency-still-interested-inquiries

USMS FOIA has no separate policy or guidance.

Should you have any questions, please feel to email me.

Thank you,

Elaine M. Rivera
Government Information Specialist
Office of General Counsel
United States Marshals Service
CG-3, 15th Floor
Washington, DC 20530-1000

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