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Justice Delayed is Justice Denied

The Ten Oldest Pending FOIA Requests

Some FOIA Requests Wait More Than Ten Years Without Being Processed

Annual FOIA Reports Do Not Answer Congress's Question: How Long Does a FOIA Requester Wait?

The National Security Archive
Freedom of Information Act Audit

Phase Two Released November 17, 2003

Thomas Blanton, Director
Meredith Fuchs, General Counsel
Barbara Elias, Freedom of Information Project Coordinator

 
Press Release
Executive Summary
The Ten Oldest FOIA Requests in the Federal Government
Chart - Agency Response Times
Table - Oldest Outstanding FOIA Requests
Methodology
Findings Regarding The Ten Oldest FOIA Requests and FOIA Backlogs
Summary Discussion of Individual Agencies
Update on Phase One: The Ashcroft Memorandum
FOIA Audit Phase One: The Ashcroft Memo

 

 

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"[I]n the FOIA context, [] the statutory goals--efficient, prompt, and full disclosure of information-can be frustrated by agency actions that operate to delay the ultimate resolution of the disclosure request."

-- Senate of the Commonwealth of Puerto Rico v. United States Dept. of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987)


EXECUTIVE SUMMARY

When Congress passed the 1996 Amendments to the Freedom of Information Act, it intended to improve agency administration of FOIA obligations. Congress at the same time imposed new detailed reporting requirements on the agencies to enable effective oversight over FOIA compliance. Yet the National Security Archive FOIA Audit demonstrates that FOIA processing backlogs persist - despite many agencies experiencing the hoped-for reductions in the number of FOIA requests submitted - and the annual FOIA reports submitted by the agencies to the Department of Justice fail to identify the extent of the delays and backlogs.

The oldest Freedom of Information Act requests that are still pending in the federal government date back to the late 1980s, before the collapse of the Soviet Union. A then-graduate student at the University of Southern California filed one of the oldest still-pending requests in 1989, asking the Defense Department for records on the U.S. "freedom of Navigation" program. He is a full professor now and is still interested in the records. Other oldest requests dating to the 1980s came from San Francisco Chronicle reporter Seth Rosenfeld, from the Lancaster, Pennsylvania Intelligencer Journal newspaper, from The Nation magazine, from ABC News, and from the National Security Archive, among others.

In January 2003, the Archive filed FOIA requests with 35 federal agencies asking for copies of their "ten oldest open or pending Freedom of Information Act requests currently being processed or held pending coordination with other agencies." Six agencies still have not responded in full, more than ten months later and despite repeated telephone and written contacts, including the Department of Veterans Affairs, which claims some of the shortest response times of any agency (4-24 days reported in its FY 2002 annual report). Other non-responders include the Department of Housing and Urban Development, the Department of Labor, the Department of State, the Department of Transportation, and the Drug Enforcement Administration.

Even many of those agencies that did respond are so decentralized that they cannot actually identify their oldest pending requests, much less know whether the requests have been fulfilled. In many cases, the referral of FOIA requests to components and other agencies for processing or consultation is largely unmonitored, with agencies unable to press for completion of processing.

The Freedom of Information Act gives agencies 20 working days to respond to FOIA requests, with an additional 10-day extension available for "unusual circumstances." The FY 2002 annual FOIA reports to Congress claim median processing times ranging from a low of 2 business days at the Small Business Administration to ranges with a high of 905 business days at the Department of Agriculture and a high of 1113 business days at the Environmental Protection Agency.

These reported statistics, however, mask the true extent of the FOIA backlog problem, which in some cases leaves FOIA requesters waiting for over a decade for substantive responses to FOIA requests. The median processing time statistics provide no means of assessing the outer limits (represented by the oldest requests) or average length of an agency's backlog, both of which are critical to understanding how long a FOIA requester may have to wait for a substantive response. Moreover, the median times reported to Congress do not include the delays associated with referrals or wrangling over fees, which can add months or years to the process, all the while generating more administrative paper than is produced by the ultimate substantive response.

The Archive recommends changes in the annual FOIA reports and the functioning of the interagency referral and consultation system. The Archive also recommends that agencies improve the quality of communications with requesters so that the ordinary FOIA requester has the information needed to help facilitate processing of requests and to rescue requests that have been left behind.

This Freedom of Information Audit was made possible by the generous funding of the John S. and James L. Knight Foundation and the HKH Foundation.

 

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