FOIA Terms of Art: Unusual Circumstances and Exceptional Circumstances

The Office of Government Information Services (OGIS) offers dispute resolution services to Freedom of Information Act (FOIA) requesters and agencies. This function allows OGIS to observe and examine the interactions between requesters and agencies across the federal government, and note common questions and issues that arise in the FOIA process. The FOIA Ombuds Observer addresses questions and issues frequently seen in our individual cases. Our goal is to increase efficiency and transparency in the FOIA process.

FOIA Terms of Art: Unusual Circumstances and Exceptional Circumstances

March 16, 2026
No. 2026-01

The Office of Government Information Services (OGIS) has observed that even the most seasoned Freedom of Information Act (FOIA) requesters can conflate various terms of art used in the administration of FOIA, which can lead to confusion. This is one of four Ombuds Observers that explains FOIA terms of art that OGIS observes are often conflated. Knowing the definition of these terms can help everyone better understand and navigate the FOIA process. 

Unusual Circumstances and Exceptional Circumstances 

OGIS hears from requesters who conflate the phrases “unusual circumstances” and “exceptional circumstances.” These terms may seem similar; however, they apply to very different situations in the FOIA process. 

“Unusual circumstances” and “exceptional circumstances” refer to two different situations when agencies can charge fees despite the agency having missed a deadline. These restrictions occur in the FOIA administrative process when FOIA processors determine “unusual circumstances” exist and during FOIA litigation when a judge determines that “exceptional circumstances” exist.

Unusual Circumstances

“Unusual circumstances” happen during the administrative processing stage of FOIA, and apply when requested records are dispersed or voluminous, or consultation with another agency or component is required.

FOIA defines “unusual circumstances” as:

1. the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; 
2. the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
3. the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

For requests that do not meet any of these unusual circumstances and when the agency cannot respond within FOIA’s 20-working-day response time, no search or duplication fees may be charged. However, when “unusual circumstances” apply and the agency provides the requester with timely notice of the “unusual circumstances”—within the 20-working-day response time—the agency may charge search or duplication fees if it processes the request within 10 additional working days. 

Agencies may also charge fees when unusual circumstances exist and more than 5,000 pages need to be reviewed in order to respond to the request, if the agency has provided the requester with notice of unusual circumstances and an opportunity to discuss narrowing the scope of the request.

Exceptional Circumstances

“Exceptional circumstances” applies only to FOIA requests in litigation where a court has issued an order establishing a timeline for the agency to respond to the request. When a court has determined that “exceptional circumstances” exist, the agency may charge certain fees only as designated by the court. Only a small number of FOIA requests that are in litigation fall into this category.