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Why does "Day 1" of the 20-day response time limit for FOIA requests begin the day AFTER [the proper component in an] agency receives a perfected request?

I understand that under Rule 6 of the Federal Rules of Civil Procedure computation works that way, in that the day on which an event is triggered doesn't count. My confusion stems from the OPEN Government Act of 2007, which in part reads, "The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section."

Now, I get that the purpose of that section was really to grant an additional ten days in most cases, but it still says that "the 20-day period under clause (i) shall commence on the date on which the request is first received."

Assuming a perfected request is received by the appropriate agency component, why is the day upon which a request is received still considered to be "Day Zero?" What did that portion of the Open Government Act even change?

Thank you.

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The Open Government Act of 2007 should trump the Rules of Civil Procedure.

But, from a practical perspective, even if you are right, it would take high stakes indeed to make it economic to litigate a one day dispute in the event that the agency incorrectly calculates the deadline. The remedy for failing to comply with FOIA is ordinarily to bring a lawsuit to compel performance, which takes much longer than one day, and I doubt that a court would issue an emergency order to compel speedier compliance. So, usually waiting one more day is going to be more prudent than trying to compel an agency to act otherwise, for a mere occasional FOIA requestor.

The Rules of Civil Procedure method is the ordinary and natural method in the absence of a specialized definition and so it is easy to imagine that many agencies have gotten set in their ways of calculating it incorrectly before reading the unnatural and counterintuitive definition of the statute and deciding to ignore it.

If you needed to regularly use FOIA requests, for example, on a commercial basis or because you are newspaper, it might be worth you time and money to bring a declaratory judgment action against the agency in question that you determined was not applying the law correctly and was always a day late, to get the matter cleared up prospectively, although even then, the damage that might do to your long term relationship with the agency in other respects where they have discretion might not be worth the extra day.

It also wouldn't be unheard of for the courts to defer to an agency interpretation of the Open Government Act, either as a matter of agency deference or as a matter of interpretation of the statute in general, notwithstanding its seemingly plain language.

ohwilleke
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