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THE ASHCROFT MEMO:

"Drastic" Change or
"More Thunder Than Lightning"?

 

The National Security Archive
Freedom of Information Act Audit

Phase One Presented March 14, 2003

2003 National Freedom of Information Day Conference

 

 
Introduction
Executive Summary
Methodology
Findings Regarding Implementation of Attorney General Guidance Regarding FOIA
Preliminary Findings Regarding Implementation of White House Guidance Regarding FOIA and Classification
Findings Regarding Administration Openness/Secrecy Agenda
Findings Regarding Administrative Processing of FOIA Requests
Further Research
 
FINDINGS REGARDING ADMINISTRATIVE PROCESSING OF FOIA REQUESTS

The Archive's initial findings regarding agency processing of FOIA requests and agency backlogs raised great concern. The FOIA process does not work well for the ordinary FOIA requester. During the course of the audit the Archive encountered a number of stumbling blocks and inconsistencies in the way that each agency processes FOIA requests that make it extremely likely that the average member of the public will be frustrated, discouraged and ultimately unsuccessful in obtaining access to federal government records. Fortunately there also are many best practices that alleviate barriers to access, and the Archive also highlights some of those practices in this report. The problems the Archive identified include:

  • Inaccurate or incomplete information about agency FOIA contacts. During the course of the audit, the Archive made its FOIA requests to those persons listed on the Department of Justice's "Principal FOIA Contacts at Federal Agencies" page. Then the Archive was frequently told by the agencies involved that requests and appeals should be transmitted to agency contacts other than those available on the "Principal FOIA Contacts" page. The information available on the DOJ "Principal FOIA Contacts" page and on individual agency websites also occasionally included inaccurate or incomplete listings of contact people, telephone and fax numbers, and addresses. The Archive also sought contacts on individual agency web pages and found that information provided was also often deficient. The CIA FOIA page, for instance, provides minimal contact information. It lists only:
  • Information and Privacy Coordinator
    Central Intelligence Agency
    Washington, D.C. 20505

There is no contact individual, telephone number or fax number, and no appeal instructions or contacts for the CIA. There is a contact listed for requests for retired files at the National Archive and Records Administration. The DOJ "Principal FOIA Contacts" page does include a phone number and contact name for CIA, but also does not include a fax number.

The Central Command ("CENTCOM") website also was deficient. There is no FOIA page link available from the CENTCOM homepage and the single Annual FOIA Report posted on its FOIA page is illegible. The FOIA site does provide a convenient e-mail FOIA template, but, when the Archive attempted to send a FOIA request to the listed e-mail contact, an error message was returned indicating that the address linked was undeliverable. The phone number listed as a contact on the website, (813) 828-6383 leads to a disconnection recording that does not forward the correct number. The correct number is (813) 828-6382. The website does not list a fax number and although it does list the addresses of the CENTCOM FOIA components, it does not provide a description of the duties of these components and does not provide the name of any contact individuals or telephone or fax numbers. It would be quite difficult for an individual to submit a FOIA request to an office whose listed FOIA phone number and e-mail contact information are inaccurate and there is no given fax number. The DOJ listing of the "Principal FOIA Contacts," does not provide any contact information for CENTCOM.

FOIA Requesters would be better served by an up-to-date, comprehensive listing of FOIA contacts that specifies each contact's responsibilities. Thus, a standard part of assigning FOIA responsibilities to agency personnel should include updating the agency's FOIA contact information available to the public.

  • Failure to acknowledge requests. The Archive received acknowledgments within the 20-business day statutory time limit for a response to its Ashcroft Memorandum requests from only 15 of the 35 agencies. 12 agencies provided substantive responses within the 20-business day limit. The only agency to both send an initial acknowledgment and a substantive response within the 20-business statutory time limit was the CIA. Although the contents and the format of the initial acknowledgements varied widely, various agencies included the following information in acknowledgments: (1) agency tracking numbers; (2) actual fee determinations or, at least a statement of fee policy; (3) the name and contact information for a person, such as a FOIA specialist, who could assist the requester; (4) the estimated length of the backlog or position in the queue of outstanding requests; (5) the requester's rights if the agency failed to meet its statutory time limit for substantively responding to the request; (6) an identification of the components that the request was forwarded to; (7) a Privacy Act notice; (8) conditions regarding the scope of the search; and (9) identification of the "track" on which the request was placed, such as the simple or complex track. Most acknowledgements were letters, although the Department of Defense and the Department of Education used lower-cost postcards.

    Although the FOIA does not specifically require acknowledgment short of a substantive determination within 20 days of the submission of the FOIA request, it is clear from the Archive's experience, that most agencies are unable to substantively respond to an FOIA request within 20 days. Where an agency is unable to meet its statutory obligation to respond within 20-days, an acknowledgment postcard has several benefits. First, information about the components who will search for records, the track the request is placed on, or the backlog, give the requester tools to work with the agency to narrow or focus a request, and to avoid unnecessary searches. The acknowledgement thus opens a channel for communication between the agency and the FOIA requester. Second, immediate assignment of a tracking number and acknowledgment of requests may prevent the problem of "lost" FOIA requests, as well as provide a means for requesters and others to track the progress of the request through the agency. Third, identification of the components to which the request is referred is critical for putting the FOIA requester in a position to know when the processing has been completed and, if necessary, for appealing an actual or constructive denial of records. These impacts will both further the congressional intent to make disclosable records readily available to the public and will tend to reduce litigation against the agencies.

    The use of a postcard probably is preferable than a letter in most instances. The Department of Defense uses a postcard to acknowledge all FOIA requests. The postcard can easily be completed by the FOIA officer by hand and immediately place it in the mail, without additional printing, folding, and envelope-stuffing time. Moreover the cost of the postcards, and the mailing of the cards, is lower than with other methods of acknowledgment.

  • Lost requests. Out of the 35 Ashcroft Memorandum requests, three of the requests were not in agencies' FOIA processing systems when appeals were filed 99-100 days after the requests had been submitted. In each case the Archive confirmed that it had transmitted the request to the correct contact. Thus, 9% of the requests were missing. One additional request that was not in an agency's FOIA system was due to the Archive's own error. Only one agency, the Veteran's Administration, conceded that a request probably had been lost due to fax messages being picked up by personnel other than the FOIA specialists. Discussions with this and other agencies' FOIA offices disclosed conditions that make lost requests a significant possibility. For example, the Archive learned that some agencies do not have dedicated contact points for FOIA requests. The Department of Education informed the Archive that faxed FOIA requests are received on the same fax machine as many other general faxes sent to the agency. They suggested that non-FOIA personnel may inadvertently pick up a FOIA request and it could never make its way to the FOIA office. The Archive's experience was similar with its White House Memorandum and "10 Oldest" FOIA requests. One of the White House Memorandum requests was "lost" and two of the "10 Oldest" requests were lost. There was no one agency that "lost" more than one request. When a request is lost, the requester has little or no remedy, and may lose weeks or months in the processing of the request.
  • Excessive Backlogs. The FOIA mandates that agencies respond to requests within 20 business days of submission. Courts have found a constructive denial when an agency has failed to provide a substantive response within the 20-day statutory time limit spelling out (1) the agency's determination of whether or not to comply with the request; (2) the reasons for its decision; and (3) notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. See Oglesby v U. S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing 5 U.S.C. § 552(a)(6)(A)(i)). Agency response times concerning the request for information regarding implementation of the Attorney General's memorandum ranged from 1 day to 127 days. Only 12 out of 35 agencies met the FOIA's statutory time limit of 20 business days. For the Ashcroft Memorandum requests, the Archive filed an appeal after 99-100 days. In many cases the Archive was contacted about the appeal within a short time of the filing and, in several cases, the processing delay was quickly addressed.

    The Archive views the Ashcroft Memorandum FOIA request as a simple request. It related primarily to documents that should be in the possession of the agencies' FOIA offices and does not relate to any sensitive matters. Yet, the Archive frequently found the request being processed as a complex or substantive FOIA request. Repeatedly it was circulated to numerous component FOIA offices, delaying its processing with little apparent benefit. The Archive's request to the Department of Labor was sent to the Office of the Solicitor in that Department. An acknowledgement from the Department indicated that the request had been referred to unspecified "components." Twenty-four days after the Archive had faxed the initial request to the Office of the Solicitor, the Employment Standards Administration's Office of Labor-Management Standards and the Employment Standards Administration's Office of Worker's Compensation Programs sent two separate no documents responses to the Attorney General request. The response from the Office of Workers Compensation Programs indicated that "any guidance, directives or training" related to "the Department of Labor's implementation of U.S. Attorney General Ashcroft's October 12, 2001 memorandum" "would have been developed and conducted by the Office of the Solicitor of Labor." An administrative appeal to the Office of the Solicitor 99 days after the initial request yielded a call from the Department asking which component should be tasked to finish the search, although the agency contact could not say which components had originally received the referral from the Office of the Solicitor. After the Archive requested that the Officer of the Solicitor search its own records, three relevant documents totaling seventeen pages of material originating from that office were released. These materials were received 112 days after the original request was faxed to the Solicitor of Labor.

    Moreover, to the credit of the agencies, they generally follow first-in, first-out policies. While this ensures that no requester is given preference over another, it may lead to extensive delay for even simple requests. Generally a requester who seeks documents that require extensive search and review will understand the reason for time extensions. For requesters who identify documents with reasonable specificity or seek information on a narrow topic, such delay is less reasonable. The EFOIA amendments sought to encourage agencies to utilize multiple queues to keep the FOIA system from grinding to a halt due to a few major requests. It does not appear that agencies are using the multiple queue systems effectively. One FOIA officer reported that she processes both simple and complex requests simultaneously and that all are actually processed it the order received. The Archive intends to address the backlog issue further in Phase Three of this audit.

  • Complete Decentralization Leading to Delay and Lack of Oversight. Many agencies have decentralized FOIA processing systems, but also maintain principal agency FOIA contacts. The Archive directed its FOIA requests to the principal FOIA contact at the agencies. Many agencies then referred the requests to agency components for processing, sometimes after several weeks already had passed since the time that the FOIA request had been received. In these cases the Archive often was informed that the response time for the agency would not begin to run until the component received the request.

    To compound the issue, in most cases the Archive was not informed to which components the request had been referred. Thus, the Archive was not able to determine when processing had been completed, what component to follow up with, or how to properly couch its appeals. See, e.g., Discussion of Department of Labor under "Excessive Backlogs." One agency refused to disclose to the Archive which components had not responded to the FOIA request.

    Finally, the Archive learned that agencies such as the Department of Labor, the Army and the Navy do not maintain any central tracking or oversight over the requests once they have been referred to a component. In contacting the agencies about the "10 Oldest" requests, the Archive learned that at least 20 out of 35 agencies could not respond to a FOIA request that required them to locate their "10 Oldest" FOIA requests, within the 20-day statutory time limit required by FOIA. For those agencies that decentralize processing, there should be some centralized oversight over the process at the agency level.

  • Inconsistent Practices Regarding the Acceptance of Administrative Appeals. The FOIA mandates that agencies respond to requests within 20 business days of submission. Courts have found a constructive denial when an agency has failed to provide a substantive response within the 20-day statutory time limit spelling out (1) the agency's determination of whether or not to comply with the request; (2) the reasons for its decision; and (3) notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. See Oglesby v U. S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing 5 U.S.C. § 552(a)(6)(A)(i)). While the audit did not require the Archive to file an appeal with each of the 35 agencies, the Archive was informed by several agencies - the Department of Housing and Urban Development, the Department of State, and the Social Security Administration - that those agencies do not permit a FOIA requester to administratively appeal an agency's failure to meet the statutory time limit. Instead, those agencies take the position that the only remedy for constructive denial of a FOIA request is a lawsuit in court. Of the 9 appeals filed concerning non-responsiveness with respect to the request for information regarding implementation of the Attorney General's memorandum, 7 agencies accepted the appeals. Limiting the right to administratively challenge a failure to meet statutory deadlines will have the tendency to increase agency litigation costs, does not promote judicial economy, and unfairly penalizes requesters seeking a timely response.

    In enacting FOIA, Congress provided for both appeals to the agency processing the request, 5 U.S.C. § 552(a)(6)(A), and judicial review of adverse agency decisions, 5 U.S.C. § 552(a)(4)(B). Both serve important functions in promoting public access to information. Appeals within the agency allow for more rapid resolution of requests without the costs of litigation and give a high-level agency official an opportunity to review the agency processing of the request and adverse determination. Judicial review provides for independent review of agency determinations. Thus, judicial review is not intended to duplicate the administrative appeals process.

    It is beneficial for both agencies and FOIA requesters to be able to use the administrative appeal process to resolve disclosure issues without recourse to a court. First, a rule that encourages litigation will tend to increase the agency litigation costs, as it generally will cost more to defend lawsuits, and potentially pay attorneys' fees to successful litigants, than it would have cost to resolve them through the administrative appeals process. Second, providing for administrative review of constructive denials of FOIA requests promotes judicial economy. Courts have consistently emphasized the need for judicial economy and the role that full administrative procedures play in ensuring that courts are not unnecessarily burdened by appeals of agency decisions. Since government agencies can generally resolve matters within their domain more quickly and efficiently than courts, it is in the best interests of all parties involved to see these matters resolved within the agency where possible. This is certainly true in the FOIA context, where the agency has access to the records at issue, but the court and the requester do not. To the extent that the agency has already begun processing the request, then this processing time will not be wasted. Moreover, FOIA appeal officers should be able to identify problems with agency handling of a request more quickly than a court. Third, the central goal of FOIA is to promote broad public access to government information in a timely fashion. A regulation that pushes FOIA requesters into court frustrates this purpose for requesters who wish to expeditiously resolve issues at the agency level. The burden on the requester is significant because these requesters, like the agency, will incur substantial costs in pursuing litigation, costs which could be avoided in many cases through the administrative appeals process.

  • The Effect of Appealing FOIA Determinations. The Archive was consistently told that filing an administrative appeal due to an agency's lack of response would slow the processing of a request. The Archive was told that an appeal processed without an actual denial necessitated the involvement of another level of administration, frequently the Office of General Counsel, and would generate gratuitous paperwork that would ultimately slow processing. This information, although probably for the most part accurate, is something the Archive cannot confirm. The involvement of appellate personnel, however, appeared to often accelerate the response process. The Archive filed 9 appeals (to DOI, DOL, DOS, DOT, GSA, FDA, CDC, HUD, and VET) based on the lack of a substantive response to the Ashcroft Memorandum FOIA request. The FDA and CDC appeals were withdrawn upon receiving a response from HHS that incorporated all HHS components. GSA and VET had no record of receiving the initial September request and therefore had to start processing the request at a later date. Of the five remaining agencies, DOI, DOL, DOS, DOT and HUD, all sent a substantive response to the initial request within 20 working days of receiving the administrative appeal.
  • Conflation of Fee Categorization and Fee Waiver Standards. In the course of the audit, the Archive examined the practices of agencies regarding fee categorization and fee waiver. Fee categorization concerns the determination of the type of FOIA requester that has made a request. In particular, the FOIA provides for categorization as a commercial use request, an educational institution request, a noncommercial scientific institution request, a representative of the news media request, or other request. The determination of whether a FOIA requester is obligated to pay for search, review and/or duplication depends on the fee categorization of the requester. All requesters, other than commercial use requesters, regardless of their fee categorization, are entitled to receive the first 100 pages of duplication without charge and the first two hours of search without charge. A requester may also qualify to have all fees waived, however, if disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government. In the Archive's experience, the determination of fee categorization and fee waiver has been blended by many agency personnel.

    The Archive observed a disturbing trend among federal agencies to conflate the standards for fee categorization and fee waiver or reduction. Agency response letters piled jargon upon boilerplate to the point that attorneys contacting the Archive could not distinguish between the fee categorization and fee waiver determinations. Yet, courts have overwhelmingly ruled in favor of the FOIA requester when agencies have conflated the fee categorization and fee waiver standards. The apparent confusion among agency personnel about the appropriate application of these standards potentially will have the impact of (1) discouraging FOIA requesters from exercising their right to view government records; (2) encouraging unnecessary litigation as FOIA requesters seek to challenge what appear to be incorrect determinations of the fee issues; and (3) denial of the appropriate fee status to FOIA requesters.

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