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FINDINGS
REGARDING THE TEN OLDEST FOIA REQUESTS AND FOIA BACKLOGS
In enacting the Electronic Freedom of Information Act Amendments
of 1996, Pub. L. No. 104-231, 110 Stat. 3048, Congress made major
revisions to the part of the Freedom of Information Act that pertains
to the submission of annual reports by federal agencies on their
administration of the Act ("annual FOIA reports"). (Note
3) In the House Report accompanying the Amendments, the Committee
on Government Reform and Oversight explained:
- "For the public, the FOIA reports should answer
certain common questions, such as: How does one request documents?
How does the Government respond to those requests, including
an explanation of the reasons for not honoring a request? And,
how long does it usually take for a request to be processed?"
- "For Congress, these reports should furnish a
view of the agency workload and any backlog. The reports should
identify the progress the agency is making toward eliminating
that backlog. They should report on the resources devoted to
answering FOIA requests, allowing for meaningful comparisons
among agencies about performance." (Note
4)
At the behest of Congress, the General Accounting Office ("GAO")
has completed three studies of a multi-phase evaluation of FOIA
processing, including one study analyzing agency annual FOIA reports
to examine the issue of agency FOIA processing times. (Note
5) The Archive sought to look at the processing time issue
from a different perspective - that of the FOIA requester - and
determine whether the annual FOIA reports provide a useful basis
for assessing the true impact of agencies' administration of the
FOIA on the requester community.
(1) The Annual FOIA Reports Fail To Meet The Goals Set by
Congress.
- The Annual FOIA Reports Mask The Seriousness of the FOIA
Backlogs.
One of the troubling findings of the Audit was that the statistics
reported in the annual FOIA reports obscure the excessive delay
experienced by some FOIA requesters. Median processing time statistics,
which must be included in the reports, describe only the middle
number in a series of numbers. (Note 6)
As the Department of Justice's Office of Information and Privacy
("OIP") explains in its guidance on annual FOIA reports,
"[g]iven 7 requests completed during the fiscal year, aged
10, 25, 35, 65, 75, 80, and 400 days from date of perfection to
date of completion, the total number of requests completed during
the fiscal year would be 7 and the median age of the completed
requests would be 65 days." FOIA Update, Volume XVIII,
No. 3 at 3-7. The average of these numbers would be 98.57 days
and the outer limit, of course, would be 400 days. The median
processing time statistic provides no means of assessing the outer
limits or average length of an agency's backlog and thus is of
limited utility in assessing the period of time that FOIA requesters
may actually have to wait for a substantive response.
The Archive found that the Ten Oldest FOIA Requests often were
far older than would be imagined from the reported statistic for
"Median Days To Process" the requests pending at the
end of the fiscal year. For the purposes of this audit, we estimated
that there are 250 business days in a calendar year and we calculated
the age of the Ten Oldest Requests through October 2003. The Archive
found a number of agencies that reported Ten Oldest FOIA Requests
with ages that were dramatically larger than the agencies' 2002
annual FOIA report statistic for "Median Days to Process"
requests pending at the end of the fiscal year:
- AGENCY FOR INTERNATIONAL DEVELOPMENT (Ten Oldest FOIA
Requests pending approximately 1500 to 1250 business days; Median
Days To Process requests pending at end of fiscal year 2002
reported as 356);
- AIR FORCE (Ten Oldest FOIA Requests pending approximately
3400 to 2300 business days; Median Days To Process requests
pending at end of fiscal year 2002 reported as 169);
- ARMY (Ten Oldest FOIA Requests pending as long as 3500
business days; Median Days To Process requests pending at end
of fiscal year 2002 reported as 25);
- CENTRAL INTELLIGENCE AGENCY (Ten Oldest FOIA Requests
pending approximately 4090 to 3400 business days; Median Days
To Process requests pending at end of fiscal year 2002 reported
as 601);
- DEFENSE INTELLIGENCE AGENCY (Ten Oldest FOIA Requests
pending approximately 3000 to 1300 business days; Median Days
To Process requests pending at end of fiscal year 2002 reported
as 890);
- DEPARTMENT OF COMMERCE (Ten Oldest FOIA Requests pending
approximately 2400 to 650 business days; Median Days To Process
request pending at the end of fiscal year 2002 reported as 55);
- DEPARTMENT OF DEFENSE (Ten Oldest FOIA Requests pending
approximately 4170 to 2700 business days; Median Days To Process
requests pending at end of fiscal year 2002 reported as 87);
- DEPARTMENT OF ENERGY (Ten Oldest FOIA Requests pending
approximately 3100 to 1790 business days; Median Days To Process
request pending at the end of fiscal year 2002 reported as 97);
- DEPARTMENT OF JUSTICE, OFFICE OF INFORMATION AND PRIVACY
(Ten Oldest FOIA Requests pending approximately 2250 to 900
business days; Median Days To Process request pending at the
end of fiscal year 2002 reported as 2-295);
- DEPARTMENT OF TREASURY (Ten Oldest FOIA Requests pending
approximately 2130-2010 business days; Median Days To Process
request pending at the end of fiscal year 2002 reported as 1-545)
- ENVIRONMENTAL PROTECTION AGENCY (Ten Oldest FOIA Requests
pending approximately 2250 to 1500 business days; Median Days
To Process request pending at the end of fiscal year 2002 reported
as 11-483);
- FEDERAL BUREAU OF INVESTIGATION (Ten Oldest FOIA Requests
pending approximately 3970 to 830 business days; Median Days
To Process requests pending at end of fiscal year 2002 reported
as 90);
- NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Ten Oldest
FOIA Requests pending approximately 3390 to 2540 business days;
Median Days To Process request pending at the end of fiscal
year 2002 reported as 887).
In addition to the limitations inherent in reporting only medians,
and not reporting averages or ranges, the agency-wide median reported
for highly decentralized agencies rarely represents a true median
processing time for FOIA requests received overall by that agency.
In trying to track down accurate information about the Ten Oldest
FOIA Requests, the Archive was told that some agencies ask each
component for a median response time and subsequently report the
median of the medians on the overall agency annual FOIA report.
The Department of Justice's OIP, the principal contact point within
the executive branch for advice and policy guidance on matters
pertaining to the administration of the FOIA, sanctions such estimates.
See FOIA Post 2001 (Supplemental Guidance on Annual FOIA
Reports).
Similarly, agencies do not necessarily follow a uniform method
of calculating the time spent processing requests. For example,
depending on their tracking system, some agencies may count and
report business days while others count and report calendar days.
These include agencies such as the Department of Education, the
Office of Management and Budget and the Department of State. For
all of these reasons, the annual FOIA reports do not provide Congress
with the intended tool for meaningful comparisons among agencies.
Recommendation: In addition to median
processing time statistics, agencies should be required
to report average processing time and the range of processing
times for requests and backlogged requests in order to provide
a more representative picture of agency backlogs for Congress
and the public. Reporting these additional statistics should
not impost additional burden on the agencies because they
already should be gathering the necessary data in order
to calculate the reported median processing times.
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- The Annual FOIA Reports Mask The Seriousness of the FOIA
Backlogs.
The Department of Justice's OIP has advised agencies that the
calculation of median processing times should be tied to the agency's
determination that it has properly received a "perfected
request." A "perfected request" is one that "adequately
describes the records sought, which has been received by the FOIA
office of the agency or agency component in possession of the
records, and for which there is no remaining question about the
payment of applicable fees." FOIA Update, Spring 1997
(Guidelines for Agency Preparation and Submission of Annual FOIA
Reports). These standards are reflected in the FOIA implementing
regulations of many agencies. Thus, delays associated with agency
routing of requests to components, referring requests to other
agencies, fee wrangling, querying about the scope of the request,
assigning the request to a FOIA officer, or even just logging
in receipt of the request, all offer opportunities for agencies
to mask the true time between receipt of a FOIA request and completion
of processing of the same request. There is no place on the annual
FOIA reports to calculate or catalog the extent of these delays.
The Archive's own experience indicates that these sorts of delays
can add 3-9 months to the processing of FOIA requests. Thus, the
median processing times reported are not an accurate representation
of the median number of business days between the submission of
a FOIA request and complete processing of the request.
Recommendation: Agencies should be required
to report the average, median and range of time for processing
a request from the date that the request is received by
the agency. By designating a fixed, objective date from
which to begin counting processing time, agencies will be
better able to identify unnecessary administrative delays
and the annual FOIA reports will provide a better tool for
comparative analysis by Congress. In addition, FOIA requesters
will have a better measure by which to estimate likely response
time.
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(2) The Referral Of FOIA Requests To Another Agency for
Processing or Consultation May Doom The Request to Obscurity.
The FOIA requests that the Archive submitted for each agency's
Ten Oldest FOIA Requests included "requests currently being
processed or held pending coordination with other agencies."
Thus, in several cases the Archive was provided with copies of
requests that had been referred to other agencies for processing
or consultation regarding specific records or that had been received
pursuant to a referral from another agency. One agency explained
to us that, although they did not have any overdue FOIA requests
awaiting processing by their own agency, they had referrals out
to other agencies and had no way of forcing the processing of
the requests. One FOIA requester informed the Archive that the
Ten Oldest FOIA Requests had led to her receiving the first contact
in a couple of years about her pending FOIA request, but the agency
explained that the reason it was not completed was because it
had been referred to another agency and that there was nothing
the originating agency could do to speed the processing. The Archive
was largely unable to determine the nature of the referrals, i.e.
whether they were for complete processing or for consultation
on specific records.
It is not clear from the annual FOIA reports how extensive a
backlog problem is due to these various referrals. In the case
of agencies such as the Department of Defense (DOD), however,
we noted that their response to the Ten Oldest FOIA request included
a number of requests that had been referred to DOD from other
agencies, and that in some cases up to four years of delay can
be ascribed to the originating agency rather than the one that
received the referral. This type of information is simply not
captured by the annual FOIA reports. It potentially obscures the
experience of the FOIA requester, who often is not informed of
the details of referrals or of methods of following up with the
agencies that receive the referrals.
Recommendation: An interagency process
for tracking, monitoring and following up on referred FOIA
requests should be established to prevent referred requests
and requests sent for consultation to another agency from
getting lost in the system. In addition, agencies should
provide full details of referrals to FOIA requesters, including
the nature of the records or request referred, the agency
it is referred to, and the contact person at the receiving
agency, to enable the requester to follow-up on the referrals.
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(3) In Larger, Extremely Decentralized Agencies, FOIA Requests
Made to Central FOIA Offices May Suffer Extreme Delays.
In larger agencies, search and review generally is, and should
be, decentralized in order to permit the most knowledgeable personnel
to work on identifying responsive records for release. The Archive's
experience indicates that agency components often respond more
quickly than central FOIA offices to targeted requests. In many
cases, however, the Archive found that agencies lacked tracking
systems that are necessary to identify and correct persistent
processing problems. Several agencies, including the Agency for
International Development, FBI, Department of Health and Human
Services, Army and Navy told the Archive that their databases
or logs were not useful for identifying the oldest pending requests,
or that they did not have any tracking or follow up program in
place. From the perspective of the FOIA requester, the system
may appear broken even though many FOIA offices within the agency
are operating effectively and efficiently. The FOIA requester
will view the agency as unable to follow up on delayed FOIA requests
and will have difficulty monitoring the progress of a FOIA request.
There are some solutions to this problem that may help educate
and inform the FOIA requester so that the requester can play an
active role in facilitating the completion of a response to the
FOIA request. First, agencies should acknowledge requests when
received and provide detailed notice to requesters of referrals
to components and to other agencies. The Archive has long supported
the inexpensive, quick, postcard acknowledgment used by the Department
of Defense as an effective way to open the channel of communication.
Second, all of the initial denial authorities that may receive
FOIA requests, along with a description of the office or component,
should be published by the Department of Justice as an addendum
to it List of Principal FOIA Contacts. The Archive has learned
that sending FOIA requests to the Principal FOIA Contacts listed
on the Department of Justice Web site may delay and interfere
with processing of the request. FOIA requesters will be much more
successful if they submit request directly to the component that
is likely to maintain the records sought. Many of the agency FOIA
Web sites recommend sending requests directly to components. Those
that do not already provide information to enable a requester
to better target a request should add to their Web sites a list
of all of the initial denial authorities within the agency and
a description of their function. Finally, all agency annual FOIA
reports should include statistics by component as well as the
aggregated statistics, to track the way the FOIA requests actually
are processed. This practice would make the annual FOIA reports
a better means of monitoring the administration of FOIA programs
by both the agencies and by Congress.
Recommendation: Agencies should acknowledge
all requests when received and provide detailed notice to
requesters of referrals to components and to other agencies.
All of the initial denial authorities that may receive FOIA
requests, along with a description of the office or component,
should be assembled and published by the Department of Justice
as an addendum to its List of Principal FOIA Contacts. Every
agency should include on its FOIA Web site a list of all
of its initial denial authorities along with a description
of their functions. All agency annual FOIA reports should
include statistics by component in addition to its aggregated
figures.
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(4) The Quality of Tracking and Monitoring FOIA Requests Varies
Immensely.
Response times to our Audit varied from 1 day to no response
after more than 190 business days. The Archive counted the response
times from the day that the FOIA request was faxed to the agency
until the date on the cover letter releasing records. In many
cases, it took a week beyond the response date for the records
to be received by the Archive. Two agencies, the Department of
Defense and Naval Air Systems Command, e-mailed their response,
along with the records as an attachment to the e-mail. Some agencies,
however, informed us that their databases of current requests
are accurate, but older requests that were filed before the installation
of new database systems are either not included within those databases
or are inaccurately included. Several agencies still have
not responded to the request even though over 190 business days
have passed since it was submitted, including the following:
No Explanation For Delay Provided:
- DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD)
- HUD put the request into its complex queue for processing.
When the Archive questioned the reason for this, the agency
did not provide an explanation and indicated that the category
would not be changed.
- DEPARTMENT OF VETERANS AFFAIRS - VA reports that
it has the largest number of FOIA requests (1,496,191 submitted
in FY 2002) of any agency and one of the lowest median response
times (4-24.6 business days reported in FY 2002). Part of
the reason that the VA has such a large number of requests
is that they include all Privacy Act requests in their reported
numbers, which means that all requests for medical, personnel
or benefits records concerning veterans are included in the
statistics. Nonetheless, the VA has not responded to the Archive's
FOIA request for its Ten Oldest FOIA Requests, which has been
pending for over 190 business days.
Explanation for Delay Provided:
- DEPARTMENT OF STATE (DOS) - DOS explained that it
has embarked on an ambitious backlog reduction program and
as a result has dispersed aged requests throughout the Department
so as to concentrate on completing responses. The Archive
has had a positive experience with DOS in recent years and
has begun to see the fruits of the Department's backlog reduction
efforts.
Archive Solicited Additional Responses from Components at
Suggestion of the Agency:
- DEPARTMENT OF LABOR (DOL) - DOL explained that it
is extremely decentralized and thus it would be difficult
to identify the oldest FOIA requests. The Archive later made
separate requests to the five DOL components that receive
the greatest number of FOIA requests and has received responses
from two (2) out of five (5) of those offices.
- DEPARTMENT OF TRANSPORTATION (DOT) -DOT explained
that it is extremely decentralized and thus it would be difficult
to identify the oldest FOIA requests. The Archive later made
separate requests to the five DOT components that receive
the greatest number of FOIA requests and has received responses
from one (1) out of five (5) of those offices.
Substantive Response Provided, But Request Not Fulfilled:
- DRUG ENFORCEMENT ADMINISTRATION (DEA) - DEA responded
to the request with a list of pending FOIA requests that all
appear to have been filed in 2002. The Archive requested copies
of the actual requests on May 2, 2003, but was told that it
would take time to open each file and find the original requests.
This broad range of responses suggests that agencies are not
making effective use of multi-track systems that could be used
to put on a faster track straightforward requests or requests
for identified records.
It is possible that the delay in many responses means that some
of the requests identified in this Report may have been filled
during the Archive's over nine (9) months of fact gathering. In
one case, an agency informed us that our request attracted senior
management attention and triggered an internal process to complete
processing of the old requests. In at least one case, a request
filed in 1989 with the CIA was responded to on April 22, 2003,
during our fact gathering period and after the CIA had identified
the request as one of its Ten Oldest.
Recommendation: Agencies should constantly
evaluate their tracking and monitoring systems to take advantage
of multi-track processing advantages.
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(5) Many Agencies (23 Out Of The 35 For The Time Period From
1998 Through 2002) Appear To Be Experiencing Reductions In The
Number Of FOIA Requests Received.
Since at least 1997, OIP has advised agencies to treat all Privacy
Act requests - requests by an individual for that individual's
own records - as a FOIA request. The rationale behind this policy
is to ensure that requests for access to records regarding oneself
result in the maximum possible disclosure. Generally speaking,
a Privacy Act request is for personnel, medical or other easily
identifiable and locatable records. The result of this policy
is that some agencies' annual FOIA reports document remarkably
high numbers of FOIA requests and, often, remarkably short processing
times. This is best illustrated by the Department of Veterans
Affairs' reported 1,496,191 FOIA requests for 2002 compared to
its 210,371 requests for 1998. Many of these are likely requests
from veterans for their medical or benefit records. Similar dramatic
increases can be seen in the numbers reported by the Social Security
Administration (from 64,857 in 1998 to 268,488 in 2002), which
attributes the increase to the popularity of Social Security documents
among genealogists, and the Office of Personnel Management (from
1,801 in 1998 to 9,032 in 2002).
Nevertheless, a significant number of agencies (23 out of the
35 surveyed) have been receiving reduced numbers of FOIA requests.
Some agencies have concluded that one reason for the reduction
is the availability of electronic information via the Internet.
Such readily available information thus may be serving the intended
purpose of the E-FOIA amendments of 1996 by facilitating information
flow and diminishing workload. Some agency FOIA professionals
have explained that they reached these conclusions because the
type of FOIA requests received has shifted from general requests
for the type of information typically now made available by the
agencies on their Web sites to narrower, more sophisticated requests.
(Note 7)
A more cynical interpretation is that many FOIA requesters have
given up on the system because of the history of slow responses.
The Ten Oldest FOIA requests demonstrated that many media requests
are being filled so slowly that the news may lose its currency.
Some requests, filed in the 1980s, reflect the news of the 1980s.
Delaying release of appropriate information about these matters
for 15 years completely undercuts the purpose of the FOIA and
makes it impossible for the Act to serve the purpose of informing
the electorate and permitting for public debate about the activities
and operations of the government. It certainly serves the purpose
of discouraging journalists and others working on a deadline from
using the FOIA.
Recommendation: Agencies should use
technology and electronic dissemination to streamline FOIA
processing and reduce the number of FOIA requests.
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(6) FOIA Processing Suffers When There Is Little Accountability.
Frequently non-FOIA personnel do the actual search and review
part of FOIA processing. Because of the importance of their core
responsibilities and because FOIA processing is not a factor upon
which their performance is evaluated, reviewers may give FOIA
processing an extremely low priority. In some agencies, even where
the FOIA office is efficient and responsive, it appears to the
outside FOIA requester as if non-FOIA personnel may be lacking
in the accountability and effective prioritization that is necessary
to reduce the backlog of outstanding FOIA requests. Often, there
appears to be little senior management involvement in the FOIA
program. The Archive had a difficult time identifying the causes
of backlogs because responsibilities are dispersed throughout
some agencies with no one taking ultimate responsibility. Thus,
even when backlogs develop or litigation ensues, it may be difficult
to correct the underlying problems. These problems are reflected
in the findings of the EPA's 2001 FOIA Task Force, which issued
numerous recommendations for improvement of EPA's FOIA processing.
(Note 8) The efforts of the taskforce
and implementation of its recommendations may account for the
reduction in EPA's backlogged requests from 12,790 pending at
the end of 2001 to 4,567 pending at the end of 2002.
Recommendation: Agencies should ensure
that senior management is supportive of the FOIA program,
and that all agencies' staff understands that the FOIA program
is an important part of government service to the public.
Each agency should initiate a taskforce to assess its individual
administration of FOIA, incorporate FOIA goals in the agency's
mission, and consider fulfillment of FOIA obligations in
performance evaluations.
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(7) Tremendous Disparities Exist Between Agencies' Workloads,
Backlogs, and Processing Times.
Review of five years of annual FOIA report statistics for the
35 agencies surveyed demonstrated that there is tremendous variation
in the number of FOIA requests received and processed, and the
length of the backlogs.
It would be valuable to study the resource distribution for FOIA
among the agencies. Unfortunately, it appears that any study based
on the expenditure numbers included in the agencies annual FOIA
reports would not provide accurate results. Our discussions with
agency personnel indicate that the figures reported for expenditures
on FOIA are broad estimates.
Recommendation: OIP and the Office of
Management and Budget should issue additional guidance and
conduct training to assist agencies in calculating the cost
of FOIA so that it will be possible to determine the connection,
if any, between expenditures and backlogs and to assess
whether agencies are being provided sufficient support for
their FOIA programs.
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