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Justice Delayed is Justice Denied

The Ten Oldest Pending FOIA Requests

The National Security Archive
Freedom of Information Act Audit

Embargoed for release Monday, November 17, 2003
For more information: Meredith Fuchs/Thomas Blanton 202/994-7000

OUTSTANDING FREEDOM OF INFORMATION REQUESTS DATE TO 1980s;

NGO AUDIT LOCATES "10 OLDEST" REQUESTS AT U.S. AGENCIES;

REPORTS TO CONGRESS HIDE REAL DELAYS IN SYSTEM

Washington D.C., November 17, 2003 - The oldest Freedom of Information requests that are still pending in the U.S. government date back to the late 1980s, before the collapse of the Soviet Union, according to the Freedom of Information Act Audit released today by George Washington University's National Security Archive.

The oldest still-pending request is a 1987 inquiry from San Francisco Chronicle reporter Seth Rosenfeld on FBI activities at the University of California at Berkeley. Rosenfeld's requests and legal action under the Freedom of Information Act have resulted in the release of over 200,000 pages of FBI records and a series of award-winning investigative reports on government surveillance in the 1960s.

A graduate student at the University of Southern California filed the second oldest still-pending request in 1989, asking the Defense Department for records on the U.S. "freedom of navigation" program. So much time has elapsed that the requester, William Aceves, is now a full professor at California Western School of Law. Other oldest outstanding requests dating to the 1980s came 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 asking for copies of the "10 oldest open or pending" FOIA requests at each of the 35 federal agencies that together handle more than 97% of all FOIA requests. Six agencies still have not responded in full, more than ten months later and despite repeated phone contacts, including the Department of Veterans' Affairs, which claims in its FY2002 annual report to Congress some of the shortest median response times to FOIA requests of any agency: 4-to-24 days. The Freedom of Information Act itself, as amended in 1996, gives agencies 20 working days to respond to FOIA requests.

As the VA example shows, the annual reports actually hide the true extent of the delay problem. The median processing times that are reported give no sense of the outer limits (represented by the oldest requests) or even the average time a FOIA requester can expect to wait. Moreover, the median times reported to Congress do not include the delays from referrals or wrangling over fees, which can add months to the process and generate more administrative paper than is produced by the ultimate substantive response.

"At the very least, our Audit has focused agencies' attention on their ancient requests," said Meredith Fuchs, the Archive's general counsel. "For instance, the CIA has now answered one of the Archive's oldest requests and hopefully other agencies also will clear up these extraordinary backlogs. But the Audit raises the larger question of how we can improve the FOIA when the primary oversight tool available, the annual reports to Congress, are so flawed, and the agencies themselves are often so decentralized that it is very difficult for them to ensure that no FOIA request is left behind."

The Freedom of Information Audit, titled "Justice Delayed Is Justice Denied: The 10 Oldest FOIA Requests," is online at www.nsarchive.org.

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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