Freedom of Information Act
Agencies Are Making Progress in Reducing Backlog, but Additional Guidance Is Needed Gao ID: GAO-08-344 March 14, 2008Under the Freedom of Information Act (FOIA), federal agencies must generally provide access to their information, enabling the public to learn about government operations and decisions. To help ensure proper implementation, the act requires that agencies report annually to the Attorney General on their processing of FOIA requests. For fiscal year 2006, agencies were also to report on their progress in implementing plans to improve FOIA operations, as directed by a December 2005 Executive Order. A major goal of the order was reducing backlogs of overdue FOIA requests (the statute requires an agency to respond to requests within 20 or, in some cases, 30 working days with a determination on whether it will provide records). For this study, GAO was asked, among other things, to determine trends in FOIA processing and agencies' progress in addressing backlogs of overdue FOIA requests since implementing their improvement plans. To do so, GAO analyzed 21 agencies' annual reports and additional statistics.
Based on data reported by major agencies in annual FOIA reports from fiscal years 2002 to 2006, the numbers of FOIA requests received and processed continue to rise, but the rate of increase has flattened in recent years. The number of pending requests carried over from year to year has also increased, although the rate of increase has declined. The increase in pending requests is primarily due to increases in requests directed to the Department of Homeland Security (DHS). In particular, increases have occurred at DHS's Citizenship and Immigration Services, which accounted for about 89 percent of DHS's total pending requests. However, the rate of increase is slightly less than it was in fiscal year 2005. Following the emphasis on backlog reduction in Executive Order 13392 and agency improvement plans, many agencies have shown progress in decreasing their backlogs of overdue requests as of September 2007. In response to GAO's request, 16 agencies provided information on their recent progress in addressing backlogs; results showed that 9 achieved decreases, 5 experienced increases, and 2 had no material change. Notably, according to this information, DHS was able to decrease its backlog of overdue requests by 29,972, or about 29 percent. However, the statistics provided by the 16 agencies varied widely, representing both overdue cases and all pending cases, as well as varying time frames. Further, 3 of 21 agencies reviewed were unable to provide statistics supporting their backlog reduction efforts, and 1 provided statistics by component, which could not be aggregated to provide an agencywide result. (The remaining agency reported no backlog before or after implementing its plan.) Tracking and reporting numbers of overdue cases is not a requirement of the annual FOIA reports or of the Executive Order. Although both the Executive Order and Justice's implementing guidance put a major emphasis on backlog reduction, agencies were given flexibility in developing goals and metrics that they considered most appropriate in light of their current FOIA operations and individual circumstances. As a result, agencies' goals and metrics vary widely, and progress could not be assessed against a common metric. The progress that many agencies made in reducing backlog suggests that the development and implementation of the FOIA improvement plans have had a positive effect. However, in the absence of consistent statistics on overdue cases, it is not possible to make a full assessment of governmentwide progress in this area. Justice's most recent guidance directs agencies to set goals for reducing backlogs of overdue requests in future fiscal years, which could lead to the development of a consistent metric; however, it does not direct agencies to monitor and report overdue requests or to develop plans for meeting the new goals. Without such planning and tracking, agencies may be challenged to achieve the reductions envisioned.
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Report to the Chairman, Subcommittee on Information Policy, Census, and
National Archives, Committee on Oversight and Government Reform, House
of Representatives:
United States Government Accountability Office:
GAO:
March 2008:
Freedom Of Information Act:
Agencies Are Making Progress in Reducing Backlog, but Additional
Guidance Is Needed:
GAO-08-344:
GAO Highlights:
Highlights of GAO-08-344, a report to the Chairman, Subcommittee on
Information Policy, Census, and National Archives, Committee on
Oversight and Government Reform, House of Representatives.
Why GAO Did This Study:
Under the Freedom of Information Act (FOIA), federal agencies must
generally provide access to their information, enabling the public to
learn about government operations and decisions. To help ensure proper
implementation, the act requires that agencies report annually to the
Attorney General on their processing of FOIA requests. For fiscal year
2006, agencies were also to report on their progress in implementing
plans to improve FOIA operations, as directed by a December 2005
Executive Order. A major goal of the order was reducing backlogs of
overdue FOIA requests (the statute requires an agency to respond to
requests within 20 or, in some cases, 30 working days with a
determination on whether it will provide records).
For this study, GAO was asked, among other things, to determine trends
in FOIA processing and agencies‘ progress in addressing backlogs of
overdue FOIA requests since implementing their improvement plans. To do
so, GAO analyzed 21 agencies‘ annual reports and additional statistics.
What GAO Found:
Based on data reported by major agencies in annual FOIA reports from
fiscal years 2002 to 2006, the numbers of FOIA requests received and
processed continue to rise, but the rate of increase has flattened in
recent years. The number of pending requests carried over from year to
year has also increased, although the rate of increase has declined.
The increase in pending requests is primarily due to increases in
requests directed to the Department of Homeland Security (DHS). In
particular, increases have occurred at DHS‘s Citizenship and
Immigration Services, which accounted for about 89 percent of DHS‘s
total pending requests. However, the rate of increase is slightly less
than it was in fiscal year 2005.
Following the emphasis on backlog reduction in Executive Order 13392
and agency improvement plans, many agencies have shown progress in
decreasing their backlogs of overdue requests as of September 2007. In
response to GAO‘s request, 16 agencies provided information on their
recent progress in addressing backlogs; results showed that 9 achieved
decreases, 5 experienced increases, and 2 had no material change.
Notably, according to this information, DHS was able to decrease its
backlog of overdue requests by 29,972, or about 29 percent. However,
the statistics provided by the 16 agencies varied widely, representing
both overdue cases and all pending cases, as well as varying time
frames. Further, 3 of 21 agencies reviewed were unable to provide
statistics supporting their backlog reduction efforts, and 1 provided
statistics by component, which could not be aggregated to provide an
agencywide result. (The remaining agency reported no backlog before or
after implementing its plan.) Tracking and reporting numbers of overdue
cases is not a requirement of the annual FOIA reports or of the
Executive Order. Although both the Executive Order and Justice‘s
implementing guidance put a major emphasis on backlog reduction,
agencies were given flexibility in developing goals and metrics that
they considered most appropriate in light of their current FOIA
operations and individual circumstances. As a result, agencies‘ goals
and metrics vary widely, and progress could not be assessed against a
common metric.
The progress that many agencies made in reducing backlog suggests that
the development and implementation of the FOIA improvement plans have
had a positive effect. However, in the absence of consistent statistics
on overdue cases, it is not possible to make a full assessment of
governmentwide progress in this area. Justice‘s most recent guidance
directs agencies to set goals for reducing backlogs of overdue requests
in future fiscal years, which could lead to the development of a
consistent metric; however, it does not direct agencies to monitor and
report overdue requests or to develop plans for meeting the new goals.
Without such planning and tracking, agencies may be challenged to
achieve the reductions envisioned.
What GAO Recommends:
GAO is recommending, among other things, that Justice provide
additional guidance to agencies on tracking and reporting overdue
requests and planning to meet future backlog goals. The agencies
reviewed, including Justice, generally agreed with GAO‘s assessment and
recommendations or had no comment.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-344]. For more
information, contact Linda D. Koontz at (202) 512-6240 or
koontzl@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Trends in FOIA Processing Appear Similar to Previous Years:
Several Factors Contribute to FOIA Cases Remaining Open beyond the
Statutory Limit:
Since Implementing Improvement Plans, Several Agencies Reduced Backlogs
of Overdue or Pending Requests, but the Governmentwide Picture Is
Incomplete:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Freedom of Information Act Exemptions:
Appendix III: Comments from the Agency for International Development:
Appendix IV: Comments from the Department of Energy:
Appendix V: Comments from the Environmental Protection Agency:
Appendix VI: Comments from the General Services Administration:
Appendix VII: Comments from the Department of Homeland Security:
Appendix VIII: Comments from the Department of Justice:
Appendix IX: Comments from the Office of Personnel Management:
Appendix X: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: "Other" Reasons for Nondisclosure:
Table 2: Agencies Reviewed:
Table 3: Comparison of SSA's Simple Requests Handled by Non-FOIA Staff
to Totals, Fiscal Years 2002-2006:
Table 4: FOIA Requests Received, Fiscal Year 2006:
Table 5: Disposition of Processed FOIA Requests for Fiscal Year 2006:
Table 6: Median Days to Process Requests for Fiscal Year 2006, by
Track:
Table 7: Agency Proportions of Pending and Received Requests for Fiscal
Year 2006:
Table 8: Statistics on the Change in Numbers of Overdue (or Pending)
Requests for 16 Agencies:
Table 9: Dates of Baseline Statistics for 16 Agencies:
Table 10: Four Agencies with Missing or Inconclusive Statistics:
Table 11: Data Reliability Assessment Status for Agencies Reviewed:
Figures:
Figure 1: Overview of Generic FOIA Process:
Figure 2: Total FOIA Requests with SSA Shown Separately, Fiscal Years
2002-2006:
Figure 3: Total FOIA Requests and FOIA Requests Processed, Omitting
SSA, Fiscal Years 2002-2006:
Figure 4: Disposition of Processed Requests by Agency, Fiscal Year
2006:
Figure 5: Total FOIA Requests Pending at End of Year, 2002-2006:
Figure 6: DHS Portion of Pending Requests, Fiscal Years 2003-2006:
Figure 7: Agency FOIA Processing Rate for 22 Agencies:
Figure 8: Oldest Pending Requests, as Reported by Agencies in Fiscal
Year 2006 Annual Reports:
Abbreviations:
AID: Agency for International Development:
CIS: Citizenship and Immigration Services:
DHS: Department of Homeland Security:
DSS: Defense Security Service:
FEMA: Federal Emergency Management Agency:
FOIA: Freedom of Information Act:
GSA: General Services Administration:
HHS: Department of Health and Human Services:
HUD: Department of Housing and Urban Development:
ICE: Immigration and Customs Enforcement:
NASA: National Aeronautics and Space Administration:
NSF: National Science Foundation:
OMB: Office of Management and Budget:
OPEN Government Act: Openness Promotes Effectiveness in Our Government
Act of 2007:
OPM: Office of Personnel Management:
SBA: Small Business Administration:
SSA: Social Security Administration:
VA: Department of Veterans Affairs:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
March 14, 2008:
The Honorable William Lacy Clay:
Chairman:
Subcommittee on Information Policy, Census, and National Archives:
Committee on Oversight and Government Reform:
House of Representatives:
Dear Mr. Chairman:
The Freedom of Information Act (FOIA)[Footnote 1] establishes that
federal agencies must generally provide the public with access to
government information, thus enabling them to learn about government
operations and decisions. Specific requests by the public for
information through the act have led to the disclosure of waste, fraud,
abuse, and wrongdoing in the government, as well as the identification
of unsafe consumer products, harmful drugs, and serious health hazards.
To help ensure appropriate implementation, the act requires that
agencies provide annual reports on their FOIA operations to the
Attorney General; these reports include information as specified in the
act, such as how many requests were received and processed in the
previous fiscal year, how many requests were pending at the end of the
fiscal year, and the median times that agencies or their components
took to process requests.[Footnote 2] Since 2001, we have provided the
Congress with periodic analyses of the contents of these annual
reports.[Footnote 3]
In December 2005, the President issued an Executive Order aimed at
improving agencies' disclosure of information consistent with
FOIA.[Footnote 4] A major focus of the order was the reduction or
elimination of "backlog" requests for records that have not been
responded to within the statutory time limit--generally 20 working
days.[Footnote 5] (For clarity, we refer to this as "backlog of overdue
requests" or "overdue requests" to distinguish it from pending
requests, as reported in the annual reports; pending requests are all
open requests, whether or not they have been responded to within the
time limits.) Among other things, this order required each agency to
review its FOIA operations and develop improvement plans; by June 14,
2006, each agency was to submit a report to the Attorney General and
the Director of the Office of Management and Budget (OMB) summarizing
the results of the agency's review and including a copy of its
improvement plan. These plans were to include specific outcome-oriented
goals and timetables, by which the agency head is to evaluate the
agency's success in implementing the plan. Agencies were also required
to include an additional section in their fiscal year 2006 annual
reports (due February 1, 2007), reporting on their progress in
implementing their improvement plans through mid to late January
2007.[Footnote 6]
As agreed, our objectives were to (1) determine the status of agencies'
processing of FOIA requests and any trends that can be seen, (2)
describe factors that contribute to FOIA requests remaining open beyond
the statutory limits, and (3) determine to what extent agencies have
made progress in addressing their backlogs of overdue FOIA requests
since implementing their improvement plans.
To describe statistics on the processing of FOIA requests, we analyzed
annual report data for fiscal years 2002 through 2006. Our intended
scope was the 24 agencies covered by the Chief Financial Officers Act,
plus the Central Intelligence Agency (herein we refer to this scope as
governmentwide). To ensure that the data reported in the annual reports
were reliable, we interviewed officials from selected agencies and
assessed the internal controls that agencies had in place for ensuring
that their data were complete and accurate (we provide a more detailed
discussion of our data reliability assessment in app. I). As a result
of this effort, we omitted 4 of the 25 agencies from our analysis: the
Central Intelligence Agency, the General Services Administration, and
the Departments of Agriculture and Housing and Urban Development. As a
result, our statistical analysis for this report was based on data from
a total of 21 agencies' annual reports.
To describe factors that contribute to FOIA requests remaining open
beyond the statutory limits, we reviewed case files for the 10 oldest
pending requests at selected agencies. We also interviewed agency
officials regarding the factors they considered most relevant for their
agencies.
To determine to what extent agencies made progress in addressing their
backlogs of overdue FOIA requests since implementing their improvement
plans, we analyzed the improvement plan progress reports included in
the fiscal year 2006 annual reports of the 21 major agencies whose
internal controls we evaluated as sufficient. We reviewed statistics
provided by the agencies on their backlogs before the implementation of
their improvement plans and as of September 2007. We analyzed the
progress that agencies had made on reducing the backlog of overdue
requests. In addition, we reviewed the requirements for reporting
progress contained in the Executive Order, guidance from OMB and the
Department of Justice, and our past work in this area. A more detailed
description of our objectives, scope, and methodology is provided in
appendix I.
We conducted this performance audit from May 2007 to March 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Results in Brief:
Based on data reported by 21 major agencies in annual FOIA reports from
2002 to 2006,[Footnote 7] the numbers of FOIA requests received and
processed continue to rise, but the rate of increase has flattened in
recent years. The number of pending requests carried over from year to
year has also increased, although the rate of increase has declined.
Our analysis of agency reports indicates the following:
* Requests received and processed continue to level off, showing only
slight increases compared to previous years. Except for one agency--the
Social Security Administration (SSA)[Footnote 8]--these increases were
only about 1 and 2 percent, respectively, from 2005 to 2006 (compared
to 23 percent from 2002 to 2006 both for requests received and for
requests processed).
* For most requests processed in fiscal year 2006, responsive records
were provided in full. The percentage (87 percent) is about the same as
in previous years.
* Median times to process requests varied greatly. These ranged from
less than 10 days for some agency components to more than 100 days at
others (sometimes much more than 100).
* Numbers of pending requests carried over from year to year have
increased because of increases at the Department of Homeland Security
(DHS). In particular, increases have occurred at DHS's Citizenship and
Immigration Services, which accounted for about 89 percent of DHS's
total pending requests. However, the rate of increase is slightly less
than it was in fiscal year 2005.[Footnote 9]
Our statistical analysis omits data from the Central Intelligence
Agency, the General Services Administration, and the Departments of
Agriculture and Housing and Urban Development, because we did not have
reasonable assurance that their data were accurate and complete. The
Central Intelligence Agency did not provide information in response to
our requests; without its participation, we were unable to determine
whether it had internal controls ensuring that its data were accurate
and complete. The other agencies did not provide evidence of internal
controls that would provide reasonable assurance that FOIA data were
recorded completely and correctly, or they acknowledged material
limitations of the data. Accurate annual report data are important to
meeting the act's goal of providing visibility into government FOIA
operations.
According to our examination of selected case files and discussions
with agency officials, several factors can lead to FOIA requests
remaining open beyond the statutory limit. Common factors include the
volume of records involved, the review process (including the need to
consult with other agencies or confer with multiple organizations
within the agency), and the need to provide predisclosure notifications
to submitters of information before it can be released. In addition,
cases have remained open for long periods when requesters ask for
information on ongoing investigations. In such cases, agencies may
withhold material until the investigation is complete under various
exemptions, but requesters have the option of asking that the request
remain open until the investigation is complete. Further, at one
component of the Department of Justice, another factor was the priority
given to avoiding litigation; this led to requests open for more than 6
years being given lower priority because the component believed they
could no longer be pursued in litigation, in accordance with the
general federal statute of limitations.[Footnote 10] Although avoiding
litigation is a reasonable goal, this practice is inconsistent with the
department's expressed emphasis on closing agencies' longest-pending
FOIA requests and tends to increase the number of very old open
requests having little prospect of being closed.
Following the emphasis on backlog reduction in the Executive Order and
agency improvement plans, many agencies have shown progress in
decreasing their backlogs of overdue requests as of September 2007. Of
16 agencies providing statistics, 9 decreased overdue or pending
requests, 5 experienced increases, and 2 had no material change.
(Notably, according to these statistics, DHS was able to decrease its
backlog of overdue requests by 29,972, or about 29 percent.) However,
the statistics provided by the 16 agencies varied widely, representing
a mix of both overdue and total pending cases, as well as varying time
frames. Further, 3 of the 21 agencies were unable to provide statistics
supporting their backlog reduction efforts, and 1 provided statistics
by component, which could not be aggregated to provide an agencywide
result. (The remaining agency reported no backlog before or after
implementing its plan.)
Tracking and reporting such statistics is not a requirement of the
annual FOIA reports or of the Executive Order. Although both the
Executive Order and Justice's implementing guidance put a major
emphasis on backlog reduction, agencies were given flexibility in
developing goals and metrics that they considered most appropriate in
light of their current FOIA operations and individual circumstances. As
a result, agencies' goals and metrics vary widely, and progress could
not be assessed against a common metric. Flexibility may be appropriate
in light of the wide variety of circumstances at the various agencies,
but in the absence of consistent statistics on overdue cases, it is
challenging to assess governmentwide progress in this area. Justice's
most recent guidance directs agencies to set goals for reducing
backlogs of overdue requests in future fiscal years, which could lead
to the development of a consistent metric; however, it does not direct
agencies to monitor and report overdue requests or to develop plans for
meeting the new goals.
To help ensure that FOIA data in the annual reports are reliable, we
are making recommendations to selected agencies. To avoid allowing
cases open for more than 6 years to remain open indefinitely, we are
recommending that Justice develop and implement a strategy for closing
the oldest requests in its Criminal Division, including those over 6
years old. To help ensure that comparable statistics on overdue
requests are available governmentwide, we are also recommending that
Justice provide additional guidance to agencies on tracking and
reporting overdue requests and planning to meet the new backlog goals.
We provided a draft of our report for comment to OMB and all 24
agencies reviewed. All the agencies generally agreed with our
assessment and recommendations or had no comment. Written comments from
the Agency for International Development, the Department of Energy, the
Environmental Protection Agency, the General Services Administration,
the Department of Homeland Security, the Department of Justice, and the
Office of Personnel Management are provided in appendixes III through
IX. In addition, five agencies (the Departments of Commerce, Defense,
the Interior, Justice, and State) provided technical comments, which we
incorporated as appropriate.
Background:
FOIA establishes a legal right of access to government records and
information on the basis of the principles of openness and
accountability in government. Before the act (originally enacted in
1966),[Footnote 11] an individual seeking access to federal records had
faced the burden of establishing a right to examine them. FOIA
established a "right to know" standard for access, instead of a "need
to know" standard, and shifted the burden of proof from the individual
to the government agency seeking to deny access.
FOIA provides the public with access to government information either
through "affirmative agency disclosure"--publishing information in the
Federal Register or on the Internet or making it available in reading
rooms--or in response to public requests for disclosure. Public
requests for disclosure of records are the best known type of FOIA
disclosure. Any member of the public may request access to information
held by federal agencies without showing a need or reason for seeking
the information.
Not all information held by the government is subject to FOIA. The act
prescribes nine specific categories of information that are exempt from
disclosure: for example, trade secrets and certain privileged
commercial or financial information, certain personnel and medical
files, and certain law enforcement records or information (see app. II
for a complete list).[Footnote 12] In denying access to material,
agencies may cite these exemptions. The act requires agencies to notify
requesters of the reasons for any adverse determination (that is, a
determination not to provide records) and grants requesters the right
to appeal agency decisions to deny access.
In addition, agencies are required to meet certain time frames for
making key determinations: whether to comply with requests (20 business
days from receipt of the request);[Footnote 13] responses to appeals of
adverse determinations (20 business days from filing of the appeal);
and whether to provide expedited processing of requests (10 calendar
days from receipt of the request). The Congress did not establish a
statutory deadline for making releasable records available, but instead
required agencies to make them available promptly.
The FOIA Process at Federal Agencies:
Although the specific details of processes for handling FOIA requests
vary among agencies, the major steps in handling a request are similar
across the government. Agencies receive requests, usually in writing
(although they may accept requests by telephone or electronically),
which can come from any organization or member of the public. Once
received, the request goes through several phases, which include
initial processing, searching for and retrieving responsive records,
preparing responsive records for release, approving the release of the
records, and releasing the records to the requester. Figure 1 is an
overview of the process, from the receipt of a request to the release
of records.
Figure 1: Overview of Generic FOIA Process:
[See PDF for image]
This figure is an illustration of a generic FOIA process, as follows:
* Receive request:
* Process request:
- Log FOIA request;
- Create case files;
- Scope request;
- Estimate fees;
- Generate initial responses;
* Retrieve records:
- Search for responsive records;
- Request records;
- Review responsive records;
* Process records:
- Make redactions;
- Apply exemption codes;
- Calculate fees;
* Approve release of records:
- Review redacted records;
- Generate responses;
- Approve release;
* Release records:
Source: GAO analysis of agency information.
[End of figure]
During the initial processing phase, a request is logged into the
agency's FOIA system, and a case file is started. The request is then
reviewed to determine its scope, estimate fees, and provide an initial
response to the requester (in general, this simply acknowledges receipt
of the request). After this point, the FOIA staff begins its search to
retrieve responsive records. This step may include searching for
records from multiple locations and program offices. After potentially
responsive records are located, the documents are reviewed to ensure
that they are within the scope of the request.
During the next two phases, the agency ensures that appropriate
information is to be released under the provisions of the act. First,
the agency reviews the responsive records to make any redactions based
on the statutory exemptions. Once the exemption review is complete, the
final set of responsive records is turned over to the FOIA office,
which calculates appropriate fees, if applicable. Before release, the
redacted responsive records are given a final review, possibly by the
agency's general counsel, and then a response letter is generated,
summarizing the agency's actions regarding the request. Finally, the
responsive records are released to the requester.
Some requests are relatively simple to process, such as requests for
specific pieces of information that the requester sends directly to the
appropriate office. Other requests may require more extensive
processing, depending on their complexity, the volume of information
involved, the requirement for the agency FOIA office to work with
offices that have relevant subject-matter expertise to find and obtain
information, the requirement for a FOIA officer to review and redact
information in the responsive material, the requirement to communicate
with the requester about the scope of the request, and the requirement
to communicate with the requester about the fees that will be charged
for fulfilling the request (or whether fees will be waived).[Footnote
14]
Specific details of agency processes for handling requests vary,
depending on the agency's organizational structure and the complexity
of the requests received. While some agencies centralize processing in
one main office, other agencies have separate FOIA offices for each
agency component and field office. Agencies also vary in how they allow
requests to be made. Depending on the agency, requesters can submit
requests by telephone, fax, letter, or e-mail or through the Internet.
In addition, agencies may process requests in two ways, known as
"multitrack" and "single track."
* Multitrack processing involves dividing requests into two groups: (1)
simple requests requiring relatively minimal review, which are placed
in one processing track, and (2) more voluminous and complex requests,
which are placed in another track.
* In contrast, single-track processing does not distinguish between
simple and complex requests. With single-track processing, agencies
process all requests on a "first-in, first-out" basis.
Agencies can also process FOIA requests on an expedited basis when a
requester has shown a compelling need for the information.
As agencies process FOIA requests, they generally place them in one of
four possible disposition categories: grants, partial grants, denials,
and "not disclosed for other reasons." These categories are defined as
follows:
* Grants: Agency decisions to disclose all requested records in full.
* Partial grants: Agency decisions to withhold some records, in whole
or in part, because such information was determined to fall within one
or more exemptions.
* Denials: Agency decisions not to release any part of the requested
records because all information in the records is determined to be
exempt under one or more statutory exemptions.
* Not disclosed for other reasons: Agency decisions not to release
requested information for any of a variety of reasons other than
statutory exemptions. The categories and definitions of these "other"
reasons for nondisclosure are shown in table 1.
Table 1: "Other" Reasons for Nondisclosure:
Category: No records;
Definition: The agency searched and found no record responsive to the
request.
Category: Referrals;
Definition: The agency referred records responsive to the request to
another agency.
Category: Request withdrawn;
Definition: The requester withdrew the request.
Category: Fee-related reasons;
Definition: The requester refused to commit to pay fees (or other
reasons related to fees).
Category: Records not reasonably described;
Definition: The requester did not describe the records sought with
sufficient specificity to allow them to be located with a reasonable
amount of effort.
Category: Not a proper FOIA request;
Definition: The request was not a FOIA request for one of several
procedural reasons.
Category: Not an agency record;
Definition: The requested record was not within the agency's control.
Category: Duplicate request;
Definition: The request was submitted more than once by the same
requester.
Source: Department of Justice.
[End of table]
When a FOIA request is denied in full or in part or the requested
records are not disclosed for other reasons, the requester is entitled
to be told the reason for the denial, to appeal the denial, and to
challenge it in court.
The Privacy Act Also Provides Individuals with Access Rights:
In addition to FOIA, the Privacy Act of 1974[Footnote 15] includes
provisions granting individuals the right to gain access to and correct
information about themselves held by federal agencies. Thus, the
Privacy Act serves as a second major legal basis, in addition to FOIA,
for the public to use in obtaining government information. The Privacy
Act also places limitations on agencies' collection, disclosure, and
use of personal information.
Although the two laws differ in scope, procedures in both FOIA and the
Privacy Act permit individuals to seek access to records about
themselves--known as "first-party" access. Depending on the individual
circumstances, one law may allow broader access or more extensive
procedural rights than the other, or access may be denied under one act
and allowed under the other. Consequently, Justice's Office of
Information and Privacy issued guidance that it is "good policy for
agencies to treat all first-party access requests as FOIA requests (as
well as possibly Privacy Act requests), regardless of whether the FOIA
is cited in a requester's letter." This guidance was intended to help
ensure that requesters receive the fullest possible response to their
inquiries, regardless of which law they cite.
In addition, Justice guidance for the annual FOIA report directs
agencies to include Privacy Act requests (that is, first-party
requests) in the statistics reported. According to the guidance, "A
Privacy Act request is a request for records concerning oneself; such
requests are also treated as FOIA requests. (All requests for access to
records, regardless of which law is cited by the requester, are
included in this report.)"
Although both FOIA and the Privacy Act can apply to first-party
requests, these may not always be processed in the same way as
described earlier for FOIA requests. In some cases, little review and
redaction (see fig. 1) is required: for example, for a request for
one's own Social Security benefits records. In contrast, various
degrees of review and redaction could be required for other types of
first-party requests: for example, files on security background checks
would require review and redaction before being provided to the person
who was the subject of the investigation.
Roles of OMB and Justice in FOIA Implementation:
Both OMB and the Department of Justice have roles in the implementation
of FOIA. Under various statutes, including the Paperwork Reduction
Act,[Footnote 16] OMB exercises broad authority for coordinating and
administering various aspects of governmentwide information policy.
FOIA specifically requires OMB to issue guidelines to "provide for a
uniform schedule of fees for all agencies."[Footnote 17] OMB issued
this guidance in April 1987.[Footnote 18]
The Department of Justice oversees agencies' compliance with FOIA and
is the primary source of policy guidance for agencies. Specifically,
Justice's requirements under the act are to:
* make agencies' annual FOIA reports available through a single
electronic access point and notify the Congress as to their
availability;
* in consultation with OMB, develop guidelines for the required annual
agency reports; and:
* submit an annual report on FOIA litigation and the efforts undertaken
by Justice to encourage agency compliance.
Within the Department of Justice, the Office of Information and Privacy
has lead responsibility for providing guidance and support to federal
agencies on FOIA issues. This office first issued guidelines for agency
preparation and submission of annual reports in the spring of 1997. It
also periodically issues additional guidance on annual reports and on
compliance, provides training, and maintains a counselor service to
provide expert, one-on-one assistance to agency FOIA staff. Further,
the Office of Information and Privacy makes a variety of FOIA and
Privacy Act resources available to agencies and the public via the
Justice Web site and online bulletins (available at [hyperlink,
http://www.usdoj.gov/oip/index.html]).
Annual FOIA Reports Were Established by 1996 Amendments:
In 1996, the Congress amended FOIA to provide for public access to
information in an electronic format (among other purposes). These
amendments, referred to as e-FOIA, also required that agencies submit a
report to the Attorney General on or before February 1 of each year
that covers the preceding fiscal year and includes information about
agencies' FOIA operations.[Footnote 19] The following are examples of
information that is to be included in these reports:
* number of requests received, processed, and pending at the end of the
fiscal year;
* median number of days taken by the agency to process different types
of requests;
* number of determinations made by the agency not to disclose
information and the reasons for not disclosing the information;
* disposition of administrative appeals by requesters;
* information on the costs associated with handling of FOIA requests;
and:
* full-time-equivalent staffing information.
In addition to providing their annual reports to the Attorney General,
agencies are to make them available to the public in electronic form.
The Attorney General is required to make all agency reports available
online at a single electronic access point and report to the Congress
no later than April 1 of each year that these reports are available in
electronic form. (This electronic access point is [hyperlink,
http://www.usdoj.gov/oip/04_6.html]).
Executive Order Led to Various Activities Aimed at Improving FOIA
Operations:
On December 14, 2005, the President issued Executive Order 13392,
setting forth a policy of citizen-centered and results-oriented FOIA
administration. Briefly, according to this policy, FOIA requesters are
to receive courteous and appropriate services, including ways to learn
about the status of their requests and the agency's response, and
agencies are to provide ways for requesters and the public to learn
about the FOIA process and publicly available agency records (such as
those on Web sites). In addition, agency FOIA operations are to be
results-oriented: that is, agencies are to process requests
efficiently, achieve measurable improvements in FOIA processing
(including reducing backlog of overdue requests), and reform programs
that do not produce appropriate results.
To carry out this policy, the order required, among other things, that
agency heads designate Chief FOIA Officers to oversee their FOIA
programs. The Chief FOIA Officers were directed to conduct reviews of
the agencies' FOIA operations and develop improvement plans to ensure
that FOIA administration was in accordance with applicable law, as well
as with the policy set forth in the order. By June 2006, agencies were
to submit reports that included the results of their reviews and copies
of their improvement plans.
A major focus of the order was for agency plans to include specific
activities that the agency would implement to eliminate or reduce any
FOIA backlog of overdue requests: that is, requests for records that
have not been responded to within the statutory time limit. Note that
this backlog of overdue requests is distinct from the pending cases
reported in the annual reports (those FOIA cases open at the end of the
reporting period).[Footnote 20] For the annual reports, agencies are
required by the statute to provide a count of FOIA requests that are
still pending (that is, not yet closed) at the end of the reporting
period. In response to this annual report requirement, agency tracking
systems and processes have been geared to providing statistics on
pending requests. Pending cases totals would generally be larger than
backlog, as the term is used in the Executive Order, since they would
include any requests received within the last 20 to 30 working days of
the reporting period, which would not be overdue.
The order also instructed the Attorney General to issue guidance on
implementation of the order's requirements for agencies to conduct
reviews and develop plans. In addition, the order instructed agencies
to report on their progress in implementing their plans and meeting
milestones as part of their annual reports for fiscal years 2006 and
2007; agencies were instructed to account in the annual report for any
milestones missed and also to report them to the President's Management
Council.
In April 2006, the Department of Justice posted guidance on
implementation of the order's requirements for FOIA reviews and
improvement plans.[Footnote 21] This guidance suggested a number of
areas of FOIA administration that agencies might consider when
conducting their reviews and developing improvement plans. (Examples of
some of these areas are automated tracking capabilities, automated
processing, receiving/responding to requests electronically, forms of
communication with requesters, and systems for handling referrals to
other agencies.) To encourage consistency, the guidance also included a
template for agencies to use to structure their plans and to report on
their reviews and plans.
The order's emphasis on backlog provided an incentive for agencies to
focus on reducing overdue requests. With respect to backlog reduction,
the guidance stated that agencies were not limited to time horizons in
fiscal years 2006 and 2007 only. According to the guidance, if an
agency believed that reform could enable it to process requests in a
more efficient manner, thereby reducing its backlog, the agency should
consider implementing these measures even though they might result in a
short-term increase in backlog, as long as it was confident of a long-
term benefit. At the same time, the guidance advised agencies to
consider what they might do to counterbalance any anticipated short-
term effect through other means of backlog reduction.
Also included in this guidance was supplemental information on
preparing the annual FOIA reports for fiscal years 2006 and 2007.
According to the guidance, the annual reports for fiscal years 2006 and
2007 were to include an additional section on agencies' progress in
implementing their plans to improve their FOIA activities. The guidance
provided a template for reporting progress and stated that, for the
fiscal year 2006 report (due February 1, 2007), agencies should be able
to report on progress for at least 7 months (i.e., from no later than
June 14, 2006, to late January 2007). The improvement plans are posted
on the Department of Justice Web site at [hyperlink,
http://www.usdoj.gov/oip/agency_improvement.html].
In June 2007, the Attorney General submitted a report to the President
on the progress that agencies made in the first months of implementing
their FOIA improvement plans, as reported in the fiscal year 2006
annual reports of all 92 federal departments and agencies.[Footnote 22]
The report provided an overall assessment of progress followed by a
more detailed discussion of agency activities. According to this
assessment, agencies made measurable progress in implementing the
Executive Order during the first reporting period (about 7 months of
activity under the FOIA improvement plans), with more than half the
agencies (54) reporting successes in achieving all their milestones and
goals on time. Discussing 25 key agencies, the report stated that 22
reported meaningful progress in FOIA administration, with 11 achieving
all milestones on time; however, 3 reported one or more milestones for
which they failed to achieve progress. The report also discussed areas
where agencies reported deficiencies in meeting their early milestones
or goals, and it made recommendations for improving FOIA
implementation. In addition, it presented progress charts for the 25
key agencies showing whether they had achieved their planned goals and
milestones.
Also in June 2007, the Department of Justice posted guidance on
providing updated status reports to the President's Management Council.
These status reports were required by August 1, 2007, from agencies who
reported deficiencies in meeting the goals in their fiscal year 2006
annual FOIA reports. According to this guidance, such agencies were to
report on their progress toward completing the corrective steps
described in their annual reports. In the updated status reports,
agencies were instructed to account for any missed milestone by
identifying it and outlining the steps taken and to be taken to address
the deficiency.
In September 2007, the Department of Justice posted guidance to
agencies on submitting backlog reduction goals for fiscal years 2008,
2009, and 2010.[Footnote 23] According to the guidance, any agency that
had any request or appeal pending beyond the statutory time period at
the end of fiscal year 2007 was to establish backlog reduction goals
for fiscal years 2008, 2009, and 2010, and was to publish such goals on
the agency's Web site. Those goals were to be expressed in two ways.
First, each agency was required to set a goal for the number of
requests and the number of appeals that it planned to process during
each fiscal year from 2008 through 2010. Second, each agency was
required to set a goal for the number of requests and the number of
appeals that the agency estimated would be pending beyond the statutory
time period (i.e., backlog of overdue requests) at the end of each
fiscal year from 2008 through 2010.
In October 2007, Justice issued supplemental guidance on the section of
the fiscal year 2007 annual FOIA reports in which agencies were to
describe progress on their improvement plans and provide certain
additional statistics.[Footnote 24] Among other things, this guidance
required agencies to track their 10 oldest pending requests; to track
the number of consultations received, processed, and pending; and to
report this information in their fiscal year 2007 annual FOIA reports.
It also provided templates for the progress reports and additional
statistics.
In Previous Work, We Have Examined Processing Statistics and Agency
Improvement Plans:
In 2001, in response to a congressional request, we prepared the first
in a series of reports on the implementation of the 1996 amendments to
FOIA, starting from fiscal year 1999.[Footnote 25] In these reviews, we
examined the contents of the annual reports for 25 major agencies
(shown in table 2).[Footnote 26] They include the 24 major agencies
covered by the Chief Financial Officers Act, as well as the Central
Intelligence Agency and, until 2003, the Federal Emergency Management
Agency (FEMA). In 2003, the creation of DHS, which incorporated FEMA,
led to a shift in some FOIA requests from agencies affected by the
creation of the new department, but the same major component entities
were reflected in the 25 agencies.
Table 2: Agencies Reviewed:
Agency: Agency for International Development;
Abbreviation: AID.
Agency: Central Intelligence Agency[A];
Abbreviation: CIA.
Agency: Department of Agriculture[A];
Abbreviation: USDA.
Agency: Department of Commerce;
Abbreviation: DOC.
Agency: Department of Defense;
Abbreviation: DOD.
Agency: Department of Education;
Abbreviation: ED.
Agency: Department of Energy;
Abbreviation: DOE.
Agency: Department of Health and Human Services;
Abbreviation: HHS.
Agency: Department of Homeland Security[B];
Abbreviation: DHS.
Agency: Federal Emergency Management Agency[B];
Abbreviation: FEMA.
Agency: Department of Housing and Urban Development[A];
Abbreviation: HUD.
Agency: Department of the Interior;
Abbreviation: DOI.
Agency: Department of Justice;
Abbreviation: DOJ.
Agency: Department of Labor;
Abbreviation: DOL.
Agency: Department of State;
Abbreviation: State.
Agency: Department of the Treasury;
Abbreviation: Treas.
Agency: Department of Transportation;
Abbreviation: DOT.
Agency: Department of Veterans Affairs;
Abbreviation: VA.
Agency: Environmental Protection Agency;
Abbreviation: EPA.
Agency: General Services Administration[A];
Abbreviation: GSA.
Agency: National Aeronautics and Space Administration;
Abbreviation: NASA.
Agency: National Science Foundation;
Abbreviation: NSF.
Agency: Nuclear Regulatory Commission;
Abbreviation: NRC.
Agency: Office of Personnel Management;
Abbreviation: OPM.
Agency: Small Business Administration;
Abbreviation: SBA.
Agency: Social Security Administration;
Abbreviation: SSA.
Source: GAO.
[A] Four agencies' data are not included in our current review. CIA did
not provide information in response to our requests, so we were unable
to determine whether it had internal controls ensuring that its data
are accurate and complete. GSA, HUD, and USDA were not included in our
statistical analysis for this report because we determined that the
agencies did not have internal controls ensuring that their data are
accurate and complete or they acknowledged material limitations of
their data. USDA was also omitted in our March 2007 report on the
fiscal year 2005 annual reports.
[B] FEMA information was reported separately in fiscal year 2002. In
fiscal years 2003, 2004, and 2005, FEMA was part of DHS.
[End of table]
Our previous reports included descriptions of the status of reported
FOIA implementation, including any trends revealed by comparison with
earlier years. We noted general increases in requests received and
processed, as well as growing numbers of pending requests carried over
from year to year.
In addition, our 2001 report disclosed that data quality issues limited
the usefulness of agencies' annual FOIA reports and that agencies had
not provided online access to all the information required by the act
as amended in 1996. We therefore recommended that the Attorney General
direct the Department of Justice to improve the reliability of data in
the agencies' annual reports by providing guidance addressing the data
quality issues we identified and by reviewing agencies' report data for
completeness and consistency. We further recommended that the Attorney
General direct the department to enhance the public's access to
government records and information by encouraging agencies to make all
required materials available electronically. In response, the
Department of Justice issued supplemental guidance, addressed reporting
requirements in its training programs, and continued reviewing
agencies' annual reports for data quality. Justice also worked with
agencies to improve the quality of data in FOIA annual reports.
Most recently, our March 2007 FOIA report discussed the fiscal year
2005 annual report data, as well as the agency improvement plans
submitted in response to the Executive Order.[Footnote 27] Among other
things, we observed that agencies showed great variations in the median
times to process requests (less than 10 days for some agency components
to more than 100 days at others) but that the ability to determine
trends in processing times is limited because these times are reported
in medians only, without averages (that is, arithmetical means) or
ranges. Although medians have the advantage of providing representative
numbers that are not skewed by a few outliers, it is not statistically
possible to combine several medians to develop broader generalizations
(as can be done with arithmetical means). We suggested that to improve
the usefulness of the statistics in agency annual FOIA reports, the
Congress consider amending the act to require agencies to report
additional statistics on processing time, which at a minimum should
include average times and ranges. The Openness Promotes Effectiveness
in Our National Government Act (OPEN Government Act) of 2007, enacted
December 31, 2007, as Public Law 110-175, included provisions expanding
reporting requirements to include average and range information, along
with median processing time statistics.
Regarding the improvement plans, we reported in 2007 that the 25 agency
plans mostly included goals and timetables addressing the areas of
improvement emphasized by the Executive Order. We noted that almost all
plans contained measurable goals and timetables for avoiding or
reducing backlog.[Footnote 28] Although details of a few plans could be
improved, all the plans focused on making measurable improvements and
formed a reasonable basis for carrying out the goals of the Executive
Order.
Trends in FOIA Processing Appear Similar to Previous Years:
The data reported by 21 major agencies in annual FOIA reports from 2002
to 2006 reveal a number of general trends. (Data from four agencies are
omitted, as discussed below.) Among these trends are increases in
requests received, processed, and pending. Specifically, the public
continued to submit more requests for information from the federal
government through FOIA, and the numbers of requests processed also
increased. In addition, the number of pending requests increased
because of increases at DHS, which accounted for about half of all
pending requests at the end of fiscal year 2006. However, the rate of
increase in pending requests was less than in the previous year.
Four Agencies' Statistics Are Not Included Because Their Completeness
and Accuracy Were Not Assured:
Our statistical analysis omits data from the General Services
Administration (GSA), and the Departments of Agriculture and Housing
and Urban Development (HUD), because we did not have reasonable
assurance that the data in their fiscal year 2006 FOIA annual reports
were accurate and complete. We also omitted the Central Intelligence
Agency, which did not provide information in response to our requests,
so we could not assess its data reliability. The other three agencies
did not provide evidence of internal controls that would provide
reasonable assurance that FOIA data were recorded completely and
correctly, or they acknowledged material limitations of the data.
The accuracy of annual report data is important so that government FOIA
operations can be monitored and understood by the Congress and the
public. To provide reasonable assurance of accuracy, agencies rely on
internal controls to minimize the risk that data are incomplete or
incorrect.[Footnote 29] Specific examples of such controls include
supervisory or other reviews of the quality of data entry, spot checks
of selected records, software edit checks of data entered (such as
prevention of duplicate entries), and other manual or automatic
processes to detect data entry errors.
We determined that GSA did not have adequate internal controls to
provide reasonable assurance that the data in its fiscal year 2006
annual report were accurate and complete. Although about one-third of
GSA FOIA requests were handled by FOIA staff at GSA headquarters,
mechanisms had not been established to verify that data were entered
correctly into the system that tracked FOIA requests. One staff person
was responsible for entering data, but the data were not checked
periodically to ensure that they were correct. Agency officials told us
that errors could be caught if, for example, the GSA program office
responding to a request observed a discrepancy when the request letter
was transmitted to the program office. However, they acknowledged that
for the fiscal year 2006 annual report, the FOIA office did not perform
regular reviews or spot checks of the data to check for errors. Since
the 2006 annual report was prepared, GSA has increased the staff at the
headquarters FOIA office, and it has changed its approach to FOIA
tracking by implementing a centralized tracking system for requests
handled both by headquarters and by the GSA regional offices. According
to officials, the centralized tracking system provides the agency with
additional controls, but GSA had not established procedures for checks
to ensure that information on requests was entered correctly at all
stages. Until the agency establishes checks of data entered or other
internal controls, such as periodic reviews, it will have reduced
assurance that data are captured completely and accurately.
Data from HUD are omitted because HUD officials told us that the fiscal
year 2006 annual FOIA report statistics were not accurate. As part of
its improvement plan implementation, HUD performed an organizational
realignment in which FOIA processing functions were transferred to the
Office of the Executive Secretariat. According to the Executive
Secretary, after the realignment, the office found that many requests
in the department's FOIA tracking system were incorrectly recorded as
open, although they had in fact been closed. According to this
official, the department's regional and field offices had not been
consistently closing requests in the system, resulting in inaccuracies.
In addition, not all field offices were using the tracking system, but
were using spreadsheets and other means of tracking. According to HUD
officials, they were taking actions to remedy these problems by working
with the field offices to make sure that data were entered correctly
and cases closed out properly. Also, in the department's progress
report on its improvement plan, HUD reported that it had selected and
was acquiring a new automated FOIA tracking system. According to the
department, in December 2007, it began implementing this system and
training staff in its use, and all offices (including headquarters)
would be required to use it. However, the implementation was not yet
complete departmentwide. Further, although the department planned to
develop policies and procedures to govern the use of the system, it had
not yet done so; if well designed, these policies and procedures could
help ensure that all FOIA offices, including regional and field
offices, are using the tracking system consistently and that
information is entered accurately and promptly. Until the department
develops and establishes such policies and procedures, it will be
unable to provide annual report data that are accurate and complete.
We are also omitting data from the Department of Agriculture. In our
March 2007 report on the FOIA annual reports for fiscal year
2005,[Footnote 30] we omitted data from the department's annual FOIA
report because a major component acknowledged material limitations in
its data. Although most Agriculture components expressed confidence in
their data, one component did not: the Farm Service Agency, which
reportedly processed over 80 percent of the department's total FOIA
requests. According to this agency's FOIA Officer, portions of the
agency's data in annual reports were not accurate or complete.[Footnote
31] We recommended that the department revise its FOIA improvement plan
to include activities, goals, and milestones to improve data
reliability for the Farm Service Agency and to monitor results. Since
then, Agriculture has taken actions to improve the reliability of its
data, such as issuing guidance and conducting training. The department
is also developing an electronic tracking software system that it
expects to improve the timeliness, accuracy, depth, and breadth of the
department's FOIA reporting. However, our reliability assessment was
performed toward the end of fiscal year 2006, and our recommendation
was made in March 2007, which was after the data for the annual report
were assembled. Thus the department's actions were not undertaken in
time to affect the statistics for fiscal year 2006. If the department
continues its improvement efforts, including establishing internal
controls and processes to ensure that data are entered accurately and
completely, it should increase its assurance that the FOIA data
collected by the Farm Service Agency are complete and accurate.
Increases in Requests Received and Processed Are Generally Slowing:
The numbers of FOIA requests received and processed continue to rise,
but the rate of increase has flattened in recent years. Figure 2 shows
total requests reported for the 21 agencies for fiscal years 2002
through 2006. This figure shows SSA's share separately because of the
large number of requests that the agency reported. As the figure shows,
not only do SSA's results dwarf those for all other agencies, they also
reveal a major jump in requests received and processed from 2004 to
2005 (an increase of 92 percent), as well as a continued rise in 2006
(an increase of 8 percent). In 2005, SSA attributed the jump to an
improvement in its method of counting requests and stated that, in
previous years, these requests were undercounted. Because of the
undercount in previous years and the high volume of SSA's requests,
including SSA's statistics in governmentwide data would obscure year-
to-year comparisons.
Figure 2: Total FOIA Requests with SSA Shown Separately, Fiscal Years
2002-2006:
[See PDF for image]
The figure is a stacked vertical bar graph, depicting the following
data:
Fiscal year 2002:
Number of requests received: SSA: 292,884;
Number of requests received: Total without SSA: 790,998;
Number of requests processed: SSA: 268,488;
Number of requests processed: Total without SSA: 756,554.
Fiscal year 2003:
Number of requests received: SSA: 705,280;
Number of requests received: Total without SSA: 1,275,310;
Number of requests processed: SSA: 704,941;
Number of requests processed: Total without SSA: 1,275,800;
Fiscal year 2004:
Number of requests received: SSA: 1,450,490;
Number of requests received: Total without SSA: 2,099,200
Number of requests processed: SSA: 1,453,620;
Number of requests processed: Total without SSA: 2,123,210.
Fiscal year 2005:
Number of requests received: SSA: 17,257,912;
Number of requests received: Total without SSA: 2,569,100;
Number of requests processed: SSA: 17,263,200;
Number of requests processed: Total without SSA: 2,525,470.
Fiscal year 2006:
Number of requests received: SSA: 18,691,312;
Number of requests received: Total without SSA: 2,565,330;
Number of requests processed: SSA: 18,691,000;
Number of requests processed: Total without SSA: 2,591,370.
Source: FOIA annual reports for fiscal years 2002-2006 (self-reported
data).
[End of figure]
Figure 3 presents statistics omitting SSA on a scale that allows a
clearer view of the rate of increase in FOIA requests received and
processed in the rest of the government. As this figure shows, when
SSA's numbers are excluded, the rate of increase is modest and has been
flattening: For the whole period (fiscal years 2002 to 2006), requests
received increased by about 23 percent, and requests processed
increased by about 23 percent. Most of this rise occurred from fiscal
years 2002 to 2003: about 18 percent, both for requests received and
for requests processed. In contrast, in the last two fiscal years, the
rise was much less: for requests received, the rise was roughly
3 percent from fiscal year 2004 to 2005 and another 1 percent to 2006;
for requests processed, the rise was about 2 percent from fiscal year
2004 to 2005 and another 2 percent from fiscal year 2005 to 2006.
Figure 3: Total FOIA Requests and FOIA Requests Processed, Omitting
SSA, Fiscal Years 2002-2006:
[See PDF for image]
This figure is a multiple line graph depicting the following data:
Fiscal year 2002:
Number of requests received: 1,987,530;
Number of requests processed: 1,984,260.
Fiscal year 2003:
Number of requests received: 2,422,610;
Number of requests processed: 2,424,190.
Fiscal year 2004:
Number of requests received: 2,464,210;
Number of requests processed: 2,494,760.
Fiscal year 2005:
Number of requests received: 2,525,470;
Number of requests processed: 2,569,100.
Fiscal year 2006:
Number of requests received: 2,565,330;
Number of requests processed: 2,591,370.
Source: FOIA annual reports for fiscal years 2002-2006 (self-reported
data).
[End of figure]
Specifically with regard to SSA, in fiscal year 2006, as in the
previous year, the vast majority of requests reported fall into a
category SSA calls "simple requests handled by non-FOIA staff;"
according to SSA, these are typically requests by individuals for
access to their own records, as well as requests in which individuals
consent for SSA to supply information about themselves to third parties
(such as insurance and mortgage companies) so that they can receive
housing assistance, mortgages, and disability insurance, among other
things.[Footnote 32] SSA stated that these requests are handled by
personnel in about 1,500 locations in SSA, including field and district
offices and teleservice centers.[Footnote 33] Such requests are almost
always granted,[Footnote 34] according to SSA, and most receive
immediate responses.[Footnote 35] According to SSA officials, they
report these requests because, as discussed earlier, Justice guidance
instructs agencies to treat Privacy Act requests (requests for records
concerning oneself) as FOIA requests and report them in the annual
reports.[Footnote 36]
SSA attributed the jump that occurred in fiscal year 2005 to an
improvement in its method of counting these simple requests, which can
be straightforwardly captured by its automated systems. For the past
several years, these simple requests have accounted for the major
portion of all SSA requests reported (see table 3). In fiscal year
2006, all but about 34,000 of SSA's over 18 million requests fell into
this category. From fiscal years 2002 to 2005, SSA's FOIA reports
attributed the increases in this category largely to better reporting,
as well as actual increases in requests.
Table 3: Comparison of SSA's Simple Requests Handled by Non-FOIA Staff
to Totals, Fiscal Years 2002-2006:
Fiscal year: 2006;
Total requests received: 18,691,031;
Total requests processed: 18,691,303;
Simple requests handled by non-FOIA staff: 18,656,701;
Percentage of total processed: 99.8.
Fiscal year: 2005;
Total requests received: 17,257,886;
Total requests processed: 17,262,315;
Simple requests handled by non-FOIA staff: 17,223,713;
Percentage of total processed: 99.8.
Fiscal year: 2004;
Total requests received: 1,453,619;
Total requests processed: 1,450,493;
Simple requests handled by non-FOIA staff: 1,270,512;
Percentage of total processed: 87.6.
Fiscal year: 2003;
Total requests received: 705,280;
Total requests processed: 704,941;
Simple requests handled by non-FOIA staff: 678,849;
Percentage of total processed: 96.3.
Fiscal year: 2002;
Total requests received: 268,488;
Total requests processed: 292,884;
Simple requests handled by non-FOIA staff: 245,877;
Percentage of total processed: 84.0.
Source: GAO analysis of SSA FOIA reports (self-reported data).
[End of table]
Besides SSA, agencies reporting large numbers of requests received were
the Departments of Defense, Health and Human Services, Homeland
Security, Justice, the Treasury, and Veterans Affairs, as shown in
table 4.[Footnote 37] The rest of agencies combined account for only
about 3 percent of the total requests received (if SSA's simple
requests handled by non-FOIA staff are excluded). Table 4 presents, in
descending order of request totals, the numbers of requests received
and percentages of the total (calculated with and without SSA's
statistics on simple requests handled by non-FOIA staff).
Table 4: FOIA Requests Received, Fiscal Year 2006:
Agency: SSA;
Total: 18,691,031;
Percentage of total including SSA (line 1): 87.82;
Percentage of total including SSA (line 2): [Empty].
Agency: SSA (excluding simple requests handled by non-FOIA staff);
Total: 34,602;
Percentage of total including SSA (line 1): [Empty];
Percentage of total including SSA (line 2): 1.32.
Agency: VA;
Total: 1,938,206;
Percentage of total including SSA (line 1): 9.11;
Percentage of total including SSA (line 2): 73.81.
Agency: HHS;
Total: 258,152;
Percentage of total including SSA (line 1): 1.21;
Percentage of total including SSA (line 2): 9.83.
Agency: DHS;
Total: 137,871;
Percentage of total including SSA (line 1): 0.65;
Percentage of total including SSA (line 2): 5.25.
Agency: DOD;
Total: 82,691;
Percentage of total including SSA (line 1): 0.39;
Percentage of total including SSA (line 2): 3.15.
Agency: DOJ;
Total: 53,992;
Percentage of total including SSA (line 1): 0.25;
Percentage of total including SSA (line 2): 2.06.
Agency: Treasury;
Total: 38,559;
Percentage of total including SSA (line 1): 0.18;
Percentage of total including SSA (line 2): 1.47.
Agency: DOL;
Total: 23,194;
Percentage of total including SSA (line 1): 0.11;
Percentage of total including SSA (line 2): 0.88.
Agency: OPM;
Total: 12,528;
Percentage of total including SSA (line 1): 0.06;
Percentage of total including SSA (line 2): 0.48.
Agency: EPA; Total: 11,667;
Percentage of total including SSA (line 1): 0.05;
Percentage of total including SSA (line 2): 0.44.
Agency: DOT;
Total: 8,867;
Percentage of total including SSA (line 1): 0.04;
Percentage of total including SSA (line 2): 0.34.
Agency: SBA;
Total: 6,259;
Percentage of total including SSA (line 1): 0.03;
Percentage of total including SSA (line 2): 0.24.
Agency: State;
Total: 4,937;
Percentage of total including SSA (line 1): 0.02;
Percentage of total including SSA (line 2): 0.19.
Agency: DOI;
Total: 4,804;
Percentage of total including SSA (line 1): 0.02;
Percentage of total including SSA (line 2): 0.18.
Agency: DOE;
Total: 3,609;
Percentage of total including SSA (line 1): 0.02;
Percentage of total including SSA (line 2): 0.14.
Agency: DOC;
Total: 2,018;
Percentage of total including SSA (line 1): 0.01;
Percentage of total including SSA (line 2): 0.08.
Agency: ED;
Total: 1,858;
Percentage of total including SSA (line 1): 0.01;
Percentage of total including SSA (line 2): 0.07.
Agency: NASA;
Total: 1,238;
Percentage of total including SSA (line 1): 0.01;
Percentage of total including SSA (line 2): 0.05.
Agency: NSF;
Total: 328;
Percentage of total including SSA (line 1): 0.00;
Percentage of total including SSA (line 2): 0.01.
Agency: NRC;
Total: 320;
Percentage of total including SSA (line 1): 0.00;
Percentage of total including SSA (line 2): 0.01.
Agency: AID;
Total: 276;
Percentage of total including SSA (line 1): 0.00;
Percentage of total including SSA (line 2): 0.01.
Agency: Total including SSA (line 1);
Total: 21,282,405;
Percentage of
total including SSA (line 1): [Empty];
Percentage of total including SSA (line 2): [Empty].
Agency: Total including SSA (line 2);
Total: 2,625,976;
Percentage of
total including SSA (line 1): [Empty];
Percentage of total including SSA (line 2): [Empty].
Source: GAO analysis of FOIA annual reports for 2006 (self-reported
data).
Notes: Abbreviations are as in table 2.
CIA, GSA, HUD, and USDA data have been omitted because we could not be
assured that the data were accurate and complete.
[End of table]
Most Requests Are Granted in Full:
Most FOIA requests in 2006 were granted in full, with relatively few
being partially granted, denied, or not disclosed for other reasons
(statistics are shown in table 5). This generalization holds with or
without SSA's inclusion. The percentage of requests granted in full was
about 87 percent, which is about the same as in previous years.
However, if SSA's numbers are included, the proportion of grants
dominates the other categories--raising this number from 87 percent of
the total to 98 percent. This is to be expected, since SSA reports that
it grants the great majority of its simple requests handled by non-FOIA
staff, which make up the bulk of SSA's statistics.
Compared to 2005, there was a slight increase in the percentage of
denials: from 0.75 percent to 1.18 percent of total requests received
(excluding SSA); this is an increase of 10,860 denials. The percentage
of requests not disclosed for other reasons (excluding SSA) decreased
from 8.0 percent to 7.9 percent (a decrease of 2,644 requests not
disclosed for other reasons).
Table 5: Disposition of Processed FOIA Requests for Fiscal Year 2006:
Disposition: Full grants;
Statistics excluding SSA[A]: Number: 2,235,665;
Statistics excluding SSA[A]: Percentage: 87.1;
Statistics including SSA: Number: 20,925,227;
Statistics including SSA: Percentage: 98.4.
Disposition: Partial grants;
Statistics excluding SSA[A]: Number: 102,156;
Statistics excluding SSA[A]: Percentage: 4.0;
Statistics including SSA: Number: 102,394;
Statistics including SSA: Percentage: 0.5.
Disposition: Denials;
Statistics excluding SSA[A]: Number: 29,808;
Statistics excluding SSA[A]: Percentage: 1.2;
Statistics including SSA: Number: 30,266;
Statistics including SSA: Percentage: 0.1.
Disposition: Not disclosed for other reasons;
Statistics excluding SSA[A]: Number: 199,402;
Statistics excluding SSA[A]: Percentage: 7.8;
Statistics including SSA: Number: 200,447;
Statistics including SSA: Percentage: 1.0.
Disposition: Total;
Statistics excluding SSA[A]: Number: 2,567,031;
Statistics excluding SSA[A]: Percentage: [Empty];
Statistics including SSA: Number: 21,258,334;
Statistics including SSA: Percentage: [Empty].
Source: GAO analysis of FOIA annual reports for 2006 (self-reported
data).
Note: CIA, GSA, HUD, and USDA data have been omitted because we could
not be assured that the data were accurate and complete.
[A] We exclude all SSA statistics for this comparison, rather than
omitting only simple requests handled by non-FOIA staff, because SSA's
report does not break out this category in its statistics on
disposition.
[End of table]
As shown in figure 4, three of the seven agencies that handled the
largest numbers of requests (see table 4) also granted the largest
percentages of requests in full: the Department of Health and Human
Services (HHS), SSA, and the Department of Veterans Affairs (VA).
Figure 4 shows, by agency, the disposition of requests processed: that
is, whether a request was granted in full, partially granted, denied,
or "not disclosed for other reasons" (see table 1 for a list of these
reasons).
Figure 4: Disposition of Processed Requests by Agency, Fiscal Year
2006:
[See PDF for image]
This figure is a stacked vertical bar graph depicting the following
data:
Agency: AID;
Percentage of distribution, grants: 16;
Percentage of distribution, partial grants: 17;
Percentage of distribution, denials: 3;
Percentage of distribution, not disclosed for other reasons: 64.
Agency: DHS;
Percentage of distribution, grants: 12;
Percentage of distribution, partial grants: 48;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 40.
Agency: DOC;
Percentage of distribution, grants: 34;
Percentage of distribution, partial grants: 19;
Percentage of distribution, denials: 7;
Percentage of distribution, not disclosed for other reasons: 40.
Agency: DOD;
Percentage of distribution, grants: 45;
Percentage of distribution, partial grants: 16;
Percentage of distribution, denials: 3;
Percentage of distribution, not disclosed for other reasons: 36.
Agency: DOE;
Percentage of distribution, grants: 75;
Percentage of distribution, partial grants: 8;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 16.
Agency: DOI;
Percentage of distribution, grants: 48;
Percentage of distribution, partial grants: 23;
Percentage of distribution, denials: 3;
Percentage of distribution, not disclosed for other reasons: 26.
Agency: DOJ;
Percentage of distribution, grants: 36;
Percentage of distribution, partial grants: 13;
Percentage of distribution, denials: 3;
Percentage of distribution, not disclosed for other reasons: 49.
Agency: DOL;
Percentage of distribution, grants: 39;
Percentage of distribution, partial grants: 30;
Percentage of distribution, denials: 8;
Percentage of distribution, not disclosed for other reasons: 22.
Agency: DOT;
Percentage of distribution, grants: 39;
Percentage of distribution, partial grants: 26;
Percentage of distribution, denials: 3;
Percentage of distribution, not disclosed for other reasons: 32.
Agency: ED;
Percentage of distribution, grants: 42;
Percentage of distribution, partial grants: 38;
Percentage of distribution, denials: 2;
Percentage of distribution, not disclosed for other reasons: 18.
Agency: EPA;
Percentage of distribution, grants: 33;
Percentage of distribution, partial grants: 5;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 61;
Agency: HHS;
Percentage of distribution, grants: 94;
Percentage of distribution, partial grants: 0;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 6.
Agency: NASA;
Percentage of distribution, grants: 34;
Percentage of distribution, partial grants: 30;
Percentage of distribution, denials: 4;
Percentage of distribution, not disclosed for other reasons: 32.
Agency: NRC;
Percentage of distribution, grants: 39;
Percentage of distribution, partial grants: 30;
Percentage of distribution, denials: 4;
Percentage of distribution, not disclosed for other reasons: 28.
Agency: NSF;
Percentage of distribution, grants: 9;
Percentage of distribution, partial grants: 72;
Percentage of distribution, denials: 2;
Percentage of distribution, not disclosed for other reasons: 17.
Agency: OPM;
Percentage of distribution, grants: 67;
Percentage of distribution, partial grants: 30;
Percentage of distribution, denials: 0;
Percentage of distribution, not disclosed for other reasons: 3.
Agency: SBA;
Percentage of distribution, grants: 91;
Percentage of distribution, partial grants: 3;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 5.
Agency: SSA;
Percentage of distribution, grants: 100;
Percentage of distribution, partial grants: 0;
Percentage of distribution, denials: 0;
Percentage of distribution, not disclosed for other reasons: 0.
Agency: State;
Percentage of distribution, grants: 11;
Percentage of distribution, partial grants: 22;
Percentage of distribution, denials: 4;
Percentage of distribution, not disclosed for other reasons: 62.
Agency: Treasury;
Percentage of distribution, grants: 58;
Percentage of distribution, partial grants: 7;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 33.
Agency: VA;
Percentage of distribution, grants: 96;
Percentage of distribution, partial grants: 0;
Percentage of distribution, denials: 1;
Percentage of distribution, not disclosed for other reasons: 3.
Source: FOIA annual reports for fiscal year 2006 (self-reported data).
Notes: Abbreviations are as in table 2.
CIA, GSA, HUD, and USDA data have been omitted because we could not be
assured that the data were accurate and complete.
[End of figure]
As the figure shows, the numbers of fully granted requests varied
widely among agencies in fiscal year 2006. Four agencies made full
grants of requested records in over 80 percent of cases they processed-
-HHS, SSA, VA, and the Small Business Administration (SBA). This is a
decrease from last year, when two other agencies--Energy and the Office
of Personnel Management (OPM)--also made full grants of requested
records in over 80 percent of the cases they processed. This year,
Energy provided full grants 75 percent of the time, compared to 82
percent last year, and OPM provided full grants 67 percent of the time,
compared to 81 percent last year.
In contrast, several agencies tended not to make full grants. Of 21
agencies, 10 made full grants of requested records in less than 40
percent of their cases (compared to 12 in 2005). Four of these 10
agencies--the Agency for International Development (AID), DHS, the
National Science Foundation (NSF), and State--made full grants in less
than 20 percent of cases processed; in contrast, in 2005, only 2
agencies (NSF and State) fell into this category.
This variance among agencies in the disposition of requests has been
evident in prior years as well.[Footnote 38] In many cases, the
variance can be accounted for by the types of requests that different
agencies process. For example, as discussed earlier, SSA grants a very
high proportion of requests because most of its requests are for
personal records that are routinely made available to the individuals
concerned (or to others with their consent). Similarly, VA routinely
makes medical records available to individual veterans, and HHS also
handles large numbers of Privacy Act requests. Such requests are
generally granted in full. Other agencies, on the other hand, receive
numerous requests whose responses must routinely be redacted to prevent
disclosure of personal or other exempt information. For example, NSF
reported in its fiscal year 2005 annual report that most of its
requests (an estimated 90 percent) are for copies of funded grant
proposals. The responsive documents are routinely redacted to remove
personal information on individual principal investigators (such as
salaries, home addresses, and so on), which results in high numbers of
"partial grants" compared to "full grants."
Processing Times Vary, but Broad Generalizations Are Limited:
For 2006, the reported time required to process requests (by track)
varied considerably among agencies. Table 6 presents data on median
processing times for fiscal year 2006. For agencies that reported
processing times by component rather than for the agency as a whole,
the table indicates the range of median times reported by the agency's
components.
Table 6: Median Days to Process Requests for Fiscal Year 2006, by
Track:
Agency: AID;
Type of request processing track: Simple: [Empty];
Type of request processing track: Complex: [Empty];
Type of request processing track: Single: 127;
Type of request processing track: Expedited: 46;
Type of request processing track: Pending: 388.
Agency: DHS;
Type of request processing track: Simple: 2-365;
Type of request processing track: Complex: 17-232;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 7-233;
Type of request processing track: Pending: 7-359.
Agency: DOC;
Type of request processing track: Simple: 12;
Type of request processing track: Complex: 45;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 44;
Type of request processing track: Pending: 26.
Agency: DOD;
Type of request processing track: Simple: 17;
Type of request processing track: Complex: 52;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 0;
Type of request processing track: Pending: 73.
Agency: DOE;
Type of request processing track: Simple: 2-178;
Type of request processing track: Complex: 30-431;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 2-6;
Type of request processing track: Pending: 3-267.
Agency: DOI;
Type of request processing track: Simple: 2-145;
Type of request processing track: Complex: 4-79;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 2-28;
Type of request processing track: Pending: 4-1200.
Agency: DOJ;
Type of request processing track: Simple: 0-290;
Type of request processing track: Complex: 12-408;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 3-398;
Type of request processing track: Pending: 4-750.
Agency: DOL;
Type of request processing track: Simple: 3-30;
Type of request processing track: Complex: 4-57;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 2-19;
Type of request processing track: Pending: 5-88.
Agency: DOT;
Type of request processing track: Simple: 1-36;
Type of request processing track: Complex: 14-175;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 9-60;
Type of request processing track: Pending: 4-184.
Agency: ED;
Type of request processing track: Simple: 7-478;
Type of request processing track: Complex: 12-279;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 1-15;
Type of request processing track: Pending: 7-397.
Agency: EPA;
Type of request processing track: Simple: 15-101;
Type of request processing track: Complex: 34-156;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 8-181;
Type of request processing track: Pending: 7-138.
Agency: HHS;
Type of request processing track: Simple: 10-70;
Type of request processing track: Complex: 2-473;
Type of request processing track: Single: 18-399;
Type of request processing track: Expedited: 14-145;
Type of request processing track: Pending: 4-307.
Agency: NASA;
Type of request processing track: Simple: 5-140;
Type of request processing track: Complex: 7-91;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 1-60;
Type of request processing track: Pending: 33-142.
Agency: NRC;
Type of request processing track: Simple: 13;
Type of request processing track: Complex: 230;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 7;
Type of request processing track: Pending: 12-77.
Agency: NSF;
Type of request processing track: Simple: [Empty];
Type of request processing track: Complex: [Empty];
Type of request processing track: Single: 18;
Type of request processing track: Expedited: [Empty];
Type of request processing track: Pending: 54.
Agency: OPM;
Type of request processing track: Simple: [Empty];
Type of request processing track: Complex: 13;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: [Empty];
Type of request processing track: Pending: [Empty].
Agency: SBA;
Type of request processing track: Simple: [Empty];
Type of request processing track: Complex: [Empty];
Type of request processing track: Single: 7;
Type of request processing track: Expedited: [Empty];
Type of request processing track: Pending: 15.
Agency: SSA;
Type of request processing track: Simple: 13;
Type of request processing track: Complex: 30;
Type of request processing track: Single: 9;
Type of request processing track: Expedited: [Empty];
Type of request processing track: Pending: 4-37.
Agency: State;
Type of request processing track: Simple: 54;
Type of request processing track: Complex: 210;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 232;
Type of request processing track: Pending: 193.
Agency: Treasury;
Type of request processing track: Simple: 2-24;
Type of request processing track: Complex: 3-224;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 1-9;
Type of request processing track: Pending: 5-200.
Agency: VA;
Type of request processing track: Simple: [Empty];
Type of request processing track: Complex: 1-73;
Type of request processing track: Single: [Empty];
Type of request processing track: Expedited: 1-20;
Type of request processing track: Pending: 1-297.
Source: GAO analysis of FOIA annual reports for fiscal year 2006 (self-
reported data).
Notes: Abbreviations are as in table 2.
CIA, GSA, HUD, and USDA data have been omitted because we could not be
assured that the data were accurate and complete.
For agencies that reported processing times by component, the table
indicates the range of reported component median times.
Empty indicates that the agency did not report any median time for a
given track in a given year.
Numbers reported in fractions have been rounded. In addition, AID and
State median times are reported in calendar days rather than working
days. DOI uses three processing tracks: simple, normal, and complex;
the table combines the simple and normal tracks. DOJ reported pending
median times by track; the table combines all tracks.
[End of table]
As the table shows, 10 agencies had components that reported processing
simple requests in less than or equal to 10 days: these components are
parts of DHS, Energy, the Interior, Justice, Labor, Transportation,
Education, HHS, the National Aeronautics and Space Administration
(NASA), and the Treasury. For each of these agencies, the lower value
of the reported ranges is less than or equal to 10. On the other hand,
median time to process simple requests is relatively long at seven
organizations--components of DHS, Energy, Interior, Justice,
Education, the Environmental Protection Agency (EPA), and NASA--as
shown by median ranges whose upper-end values are greater than 100
days.
For complex requests, the picture is similarly mixed. Components of six
agencies (the Interior, Labor, HHS, NASA, the Treasury, and VA)
reported processing complex requests quickly--with a median of less
than 10 days. In contrast, other components of several agencies (DHS,
Energy, Justice, Transportation, Education, EPA, HHS, the Nuclear
Regulatory Commission, State, and the Treasury) reported relatively
long median times to process complex requests--with median days greater
than 100.
Five agencies (AID, HHS, NSF, SBA, and SSA) reported using single-track
processing. The median processing times for single-track processing
varied from 7 days (at SBA) to 399 days (at an HHS component).
The median processing times for requests pending also varied widely
among the agencies. In 2006, eight agencies reported median processing
times for pending requests greater than 1 year (defined as 251 business
days) in length. These eight agencies are AID, DHS, Energy, the
Interior, Justice, Education, HHS, and VA. One agency reported a
component having a median processing time for its pending cases of
1,200 days, which is nearly 5 years.
As we reported in our March 2007 report, our ability to make further
generalizations about FOIA processing times is limited by the fact
that, as required by the act, agencies report median processing times
only and not, for example, arithmetic means (the usual meaning of
"average" in everyday language).[Footnote 39] With only medians, it is
not statistically possible to combine results from different agencies
to develop broader generalizations, such as a governmentwide statistic
based on all agency reports, statistics from sets of comparable
agencies, or an agencywide statistic based on separate reports from all
components of the agency. This was the basis for the suggestion in our
previous report that the Congress consider amending the act to require
agencies to report average times and ranges; this requirement is a
provision of the OPEN Government Act, enacted December 31, 2007, as
Public Law 110-175.
Increase in Pending Cases for 21 Agencies Is Mostly Associated with
DHS:
In addition to the increase in numbers of requests processed at the 21
agencies, the number of pending cases--requests carried over from one
year to the next--has increased. In 2002, pending requests at the 21
agencies were reported to number about 135,000, whereas in 2006, about
218,000--38 percent more--were reported. In fiscal year 2006, as shown
in figure 5, the rate of increase flattened: the pending totals rose 12
percent from 2005, compared to a rise of 20 percent from fiscal year
2004 to 2005.
Figure 5: Total FOIA Requests Pending at End of Year, 2002-2006:
[See PDF for image]
This figure is a multiple line graph depicting the following data:
Fiscal year: 2002;
Number of requests, agencies without SSA: 132,970;
Number of requests, all agencies: 135,362.
Fiscal year: 2003;
Number of requests, agencies without SSA: 134,688;
Number of requests, all agencies: 137,419.
Fiscal year: 2004;
Number of requests, agencies without SSA: 148,934;
Number of requests, all agencies: 154,791.
Fiscal year: 2005;
Number of requests, agencies without SSA: 191,137;
Number of requests, all agencies: 192,565.
Fiscal year: 2006;
Number of requests, agencies without SSA: 217,009;
Number of requests, all agencies: 218,165.
Source: FOIA annual reports for fiscal years 2002-2006 (self-reported
data).
[End of figure]
These statistics include pending cases reported by SSA, because SSA's
pending cases do not include simple requests handled by non-FOIA staff
(for which SSA does not track pending cases). As the figure shows,
these pending cases do not change the governmentwide picture
significantly.
In contrast, since its establishment in 2003, DHS has accounted for a
major and increasing portion of pending requests governmentwide, as
shown in figure 6.[Footnote 40] Although 11 other agencies reported
that their numbers of pending cases had increased since 2003, these
increases were offset by decreases at other agencies, so that, as the
figure shows, pending cases for the other 20 agencies combined are
relatively stable.
Figure 6: DHS Portion of Pending Requests, Fiscal Years 2003-2006:
[See PDF for image]
This figure is a stacked vertical bar graph depicting the following
data:
Fiscal year: 2003;
Number of requests, DHS: 28,958;
Number of requests, total without DHS: 108,461.
Fiscal year: 2004;
Number of requests, DHS: 45,803;
Number of requests, total without DHS: 108,988.
Fiscal year: 2005;
Number of requests, DHS: 82,591;
Number of requests, total without DHS: 109,974.
Fiscal year: 2006;
Number of requests, DHS: 108,472;
Number of requests, total without DHS: 109,693.
Source: FOIA annual reports for fiscal years 2002-2006 (self-reported
data).
Note: Figure shows years since 2003, rather than 2002, because DHS had
not yet been established in 2002.
[End of figure]
Within DHS, about 89 percent of pending cases are from Citizenship and
Immigration Services (CIS), which receives the vast majority of all
FOIA requests sent to the department--over 100,000 incoming requests
annually. According to the department, most of CIS's FOIA requests come
from individuals and their representatives seeking information
contained within the so-called Alien Files (A-files); this information
may be used in applying for immigration benefits or in immigration
proceedings, as well as for genealogy studies. One issue in relation to
these files is that about 55 million hard-copy A-files are shared with
Immigration and Customs Enforcement (ICE), which can lead to delays in
locating, referring, and processing documents.[Footnote 41] According
to the department, CIS and ICE have convened a working group to
establish a streamlined approach to processing documents in the A-
files, and they are also assessing digitization of the files, which
would allow both components to electronically access any file.[Footnote
42]
Table 7 shows the percentage of the total pending requests that each
agency accounted for in fiscal year 2006; to provide an idea of the
scale of these requests in comparison to the agency's annual workload,
the last column provides the number received. As the table shows, the
six agencies that accounted for most requests received also accounted
for the most requests pending, although DHS's rank in the number of
pending requests was higher than its rank in the number of received
requests. The table also shows the great variation in the relationship
between pending and received numbers for individual agencies.[Footnote
43]
Table 7: Agency Proportions of Pending and Received Requests for Fiscal
Year 2006:
Agency: DHS;
Pending: Total: 108,472;
Pending: Rank: 1;
Pending: Percentage of total: 49.72;
Received: Total: 137,871;
Received: Rank: 3;
Received: Percentage of total: 5.25.
Agency: VA;
Pending: Total: 38,696;
Pending: Rank: 2;
Pending: Percentage of total: 17.74;
Received: Total: 1,938,206;
Received: Rank: 1; Received:
Percentage of total: 73.81.
Agency: HHS;
Pending: Total: 26,063;
Pending: Rank: 3;
Pending: Percentage of total: 11.95;
Received: Total: 258,152;
Received: Rank: 2;
Received: Percentage of total: 9.83.
Agency: DOD;
Pending: Total: 18,216;
Pending: Rank: 4;
Pending: Percentage of total: 8.35;
Received: Total: 82,691;
Received: Rank: 4;
Received: Percentage of total: 3.15.
Agency: DOJ;
Pending: Total: 8,004;
Pending: Rank: 5;
Pending: Percentage of total: 3.67;
Received: Total: 53,992;
Received: Rank: 5;
Received: Percentage of total: 2.06.
Agency: Treasury;
Pending: Total: 3,924;
Pending: Rank: 6;
Pending: Percentage of total: 1.80;
Received: Total: 38,559;
Received: Rank: 6;
Received: Percentage of total: 1.47.
Agency: State;
Pending: Total: 3,799;
Pending: Rank: 7;
Pending: Percentage of total: 1.74;
Received: Total: 4,937;
Received: Rank: 13;
Received: Percentage of total: 0.19.
Agency: DOT;
Pending: Total: 2,197;
Pending: Rank: 8;
Pending: Percentage of total: 1.01;
Received: Total: 8,867;
Received: Rank: 11;
Received: Percentage of total: 0.34.
Agency: EPA;
Pending: Total: 1,973;
Pending: Rank: 9;
Pending: Percentage of total: 0.90;
Received: Total: 11,667;
Received: Rank: 10;
Received: Percentage of total: 0.44.
Agency: DOI;
Pending: Total: 1,481;
Pending: Rank: 10;
Pending: Percentage of total: 0.68;
Received: Total: 4,804;
Received: Rank: 14;
Received: Percentage of total: 0.18.
Agency: SSA[A];
Pending: Total: 1,156;
Pending: Rank: 11;
Pending: Percentage of total: 0.53;
Received: Total: 34,602;
Received: Rank: 7;
Received: Percentage of total: 1.32.
Agency: OPM;
Pending: Total: 925;
Pending: Rank: 12;
Pending: Percentage of total: 0.42;
Received: Total: 12,528;
Received: Rank: 9;
Received: Percentage of total: 0.48.
Agency: DOE;
Pending: Total: 910;
Pending: Rank: 13;
Pending: Percentage of total: 0.42;
Received: Total: 3,609;
Received: Rank: 15;
Received: Percentage of total: 0.14.
Agency: DOL;
Pending: Total: 906;
Pending: Rank: 14;
Pending: Percentage of total: 0.42;
Received: Total: 23,194;
Received: Rank: 8;
Received: Percentage of total: 0.88.
Agency: ED;
Pending: Total: 539;
Pending: Rank: 15;
Pending: Percentage of total: 0.25;
Received: Total: 1,858;
Received: Rank: 17;
Received: Percentage of total: 0.07.
Agency: DOC;
Pending: Total: 309;
Pending: Rank: 16;
Pending: Percentage of total: 0.14;
Received: Total: 2,018;
Received: Rank: 16; Received:
Percentage of total: 0.08.
Agency: AID;
Pending: Total: 267;
Pending: Rank: 17;
Pending: Percentage of total: 0.12;
Received: Total: 276;
Received: Rank: 21;
Received: Percentage of total: 0.01.
Agency: NASA;
Pending: Total: 241;
Pending: Rank: 18;
Pending: Percentage of total: 0.11;
Received: Total: 1,238;
Received: Rank: 18;
Received: Percentage of total: 0.05.
Agency: SBA;
Pending: Total: 46;
Pending: Rank: 19;
Pending: Percentage of total: 0.02;
Received: Total: 6,259;
Received: Rank: 12;
Received: Percentage of total: 0.24.
Agency: NRC;
Pending: Total: 36;
Pending: Rank: 20;
Pending: Percentage of total: 0.02;
Received: Total: 320;
Received: Rank: 20;
Received: Percentage of total: 0.01.
Agency: NSF;
Pending: Total: 5;
Pending: Rank: 21;
Pending: Percentage of total: 0.00;
Received: Total: 328;
Received: Rank: 19;
Received: Percentage of total: 0.01.
Agency: Total;
Pending: Total: 218,165;
Received: Total: 2,625,976.
Source: GAO analysis of agency data.
Note: Abbreviations are as in table 2.
[A] Excluding simple requests handled by non-FOIA staff.
[End of table]
Another way to consider progress in reducing pending cases is through
individual agency processing rates--that is, the number of requests
that an agency processes relative to the number it receives. Agencies
that process more requests than they receive will decrease the number
of pending cases remaining at the end of a given year. From 2002 to
2006, individual agencies show mixed results in this regard. In figure
7, bars extending above the centerline at 100 percent indicate that an
agency reported processing more requests than it received in that year,
whereas bars dropping below the centerline indicate that it reported
processing fewer than it received.[Footnote 44]
Figure 7: Agency FOIA Processing Rate for 22 Agencies:
[See PDF for image]
This figure is a multiple vertical bar graph depicting the following
data:
Agency: AID;
Processing rate, 2002: 105%;
Processing rate, 2003: 74%;
Processing rate, 2004: 82%;
Processing rate, 2005: 53%;
Processing rate, 2006: 166%.
Agency: DHS;
Processing rate, 2002: N/A;
Processing rate, 2003: 100%;
Processing rate, 2004: 90%;
Processing rate, 2005: 77%;
Processing rate, 2006: 81%.
Agency: DOC;
Processing rate, 2002: 96%;
Processing rate, 2003: 100%;
Processing rate, 2004: 99%;
Processing rate, 2005: 102%;
Processing rate, 2006: 98%.
Agency: DOD;
Processing rate, 2002: 100%;
Processing rate, 2003: 99%;
Processing rate, 2004: 100%;
Processing rate, 2005: 97%;
Processing rate, 2006: 96%.
Agency: DOE;
Processing rate, 2002: 114%;
Processing rate, 2003: 101%;
Processing rate, 2004: 107%;
Processing rate, 2005: 102%;
Processing rate, 2006: 107%;
Agency: DOI;
Processing rate, 2002: 100%;
Processing rate, 2003: 89%;
Processing rate, 2004: 92%;
Processing rate, 2005: 95%;
Processing rate, 2006: 106%.
Agency: DOJ;
Processing rate, 2002: 102%;
Processing rate, 2003: 101%;
Processing rate, 2004: 99%;
Processing rate, 2005: 99%;
Processing rate, 2006: 102%.
Agency: DOL;
Processing rate, 2002: 102%;
Processing rate, 2003: 101%;
Processing rate, 2004: 100%;
Processing rate, 2005: 99%;
Processing rate, 2006: 99%.
Agency: DOT;
Processing rate, 2002: 98%;
Processing rate, 2003: 99%;
Processing rate, 2004: 105%;
Processing rate, 2005: 98%;
Processing rate, 2006: 99%.
Agency: ED;
Processing rate, 2002: 96%;
Processing rate, 2003: 99%;
Processing rate, 2004: 93%;
Processing rate, 2005: 92%;
Processing rate, 2006: 104%.
Agency: EPA;
Processing rate, 2002: 143%;
Processing rate, 2003: 113%;
Processing rate, 2004: 104%;
Processing rate, 2005: 91%;
Processing rate, 2006: 109%.
Agency: FEMA;
Processing rate, 2002: 84%;
Processing rate, 2003: N/A;
Processing rate, 2004: N/A;
Processing rate, 2005: N/A;
Processing rate, 2006: N/A.
Agency: HHS;
Processing rate, 2002: 98%;
Processing rate, 2003: 99%;
Processing rate, 2004: 99%;
Processing rate, 2005: 100%;
Processing rate, 2006: 99%.
Agency: NASA;
Processing rate, 2002: 101%;
Processing rate, 2003: 97%;
Processing rate, 2004: 97%;
Processing rate, 2005: 110%;
Processing rate, 2006: 91.
Agency: NRC;
Processing rate, 2002: 98%;
Processing rate, 2003: 96%;
Processing rate, 2004: 105%;
Processing rate, 2005: 93%;
Processing rate, 2006: 114%.
Agency: NSF;
Processing rate, 2002: 101%;
Processing rate, 2003: 97%;
Processing rate, 2004: 99%;
Processing rate, 2005: 97%;
Processing rate, 2006: 104%.
Agency: OPM;
Processing rate, 2002: 97%;
Processing rate, 2003: 99%;
Processing rate, 2004: 76%
Processing rate, 2005: 90%;
Processing rate, 2006: 130%.
Agency: SBA;
Processing rate, 2002: 103%;
Processing rate, 2003: 100%;
Processing rate, 2004: 101%;
Processing rate, 2005: 100%;
Processing rate, 2006: 100%.
Agency: SSA;
Processing rate, 2002: 109%;
Processing rate, 2003: 100%;
Processing rate, 2004: 100%;
Processing rate, 2005: 100%
Processing rate, 2006: 100%.
Agency: State;
Processing rate, 2002: 148%;
Processing rate, 2003: 168%;
Processing rate, 2004: 126%;
Processing rate, 2005: 84%;
Processing rate, 2006: 78%.
Agency: Treasury;
Processing rate, 2002: 102%;
Processing rate, 2003: 100%;
Processing rate, 2004: 100%;
Processing rate, 2005: 101%;
Processing rate, 2006: 102%.
Agency: VA;
Processing rate, 2002: 100%;
Processing rate, 2003: 100%;
Processing rate, 2004: 99%;
Processing rate, 2005: 100%;
Processing rate, 2006: 100%.
Source: FOIA annual reports for fiscal years 2002-2006 (self-reported
data).
Notes: Abbreviations are as in table 2.
The agency processing rate is defined as the number of requests
processed in a given year compared with the requests received,
expressed as a percentage.
In 2002, FEMA data were reported separately, and DHS was not yet
established. In 2003 to 2006, DHS data were reported and included
FEMA's data.
CIA, GSA, HUD, and USDA data have been omitted because we could not be
assured that the data were accurate and complete.
[End of figure]
Agencies' Oldest Requests May Date Back Several Years:
In Justice's guidance on the annual reports for fiscal year 2006, it
directed agencies to include additional statistics as part of the new
section on agencies' progress implementing their improvement plans.
These additional statistics included the time ranges of requests
pending.[Footnote 45] Based on these statistics, figure 8 provides a
timeline showing the oldest pending requests reported by each of the
agencies. As seen in the figure, as of the end of calendar year 2006,
the age of the oldest pending requests ranged from less than 1 year to
about 18 years. Note that these requests were those reported in the
fiscal year 2006 annual reports; they do not necessarily remain open.
Figure 8: Oldest Pending Requests, as Reported by Agencies in Fiscal
Year 2006 Annual Reports:
[See PDF for image]
This figure is a timeline depicting the following data:
Oldest pending requests: 7 agencies, over ten years:
FOJ: 7/1989;
DOD: 3/1991;
Treasury: 3/1993;
DOE: 3/1993;
HHS: 10/1994;
EPA: 5/1995;
DOI: 1/1996.
Oldest pending requests: 6 agencies, between 5 and 10 years:
State: 11/1997;
DHS: 11/1998;
OPM: 1999;
VA: 3/2000;
AID: 5/2000;
DOT: 8/2000.
Oldest pending requests: 3 agencies, between 2 and 5 years:
DOC: 8/2002;
ED: 12/2003;
NASA: 11/2004.
Oldest pending requests: 5 agencies, less than 1 to 2 years:
DOL: 4/2005;
SSA: 8/2005;
NRC: 10/2005;
NSF: 1/2006;
SBA: 5/2006.
Source: GAO analysis of agency data.
Note: Abbreviations are as in table 2.
[End of figure]
Several Factors Contribute to FOIA Cases Remaining Open beyond the
Statutory Limit:
Agencies are required to meet certain time frames for determining
whether to comply with requests: generally 20 business days from
receipt of the request, although this time may be extended by 10 days
in "unusual circumstances," such as when requests involve a voluminous
amount of records or require consultation with another agency. The
Congress did not establish a statutory deadline for making releasable
records available, but instead required agencies to make them available
promptly.
However, it is not uncommon for agencies to spend much more than the
statutory 20 or 30 days to determine whether records can be released
and to supply the records. According to our examination of selected
case files and discussions with agency officials, the factors that
contribute to requests remaining open include the following:
* Requests may involve large volumes of responsive records.
* Requests may require extensive review and consultations.
* Agencies may need to notify submitters of information before
disclosure.
* Requests may be delayed until ongoing investigations are completed.
Finally, at one agency component, requests more than 6 years old
received low priority because the component believed that they could no
longer be pursued in litigation.
Requests may involve large volumes of responsive records. For requests
that involve large volumes of responsive records, it may take
significant time to assemble, review and redact, and duplicate records.
In addition, processing of such requests may be delayed while requests
received earlier are processed. In addressing such requests, agencies
report that they contact requesters to determine whether a more limited
or targeted selection of records will meet their needs, and that this
can lead requesters to narrow their requests. In addition, agencies may
use multitrack processing, putting voluminous or complex requests in a
separate queue (which allows relatively simple requests to be processed
more quickly).[Footnote 46]
The selection of agencies' oldest case files that we reviewed included
several examples of voluminous requests. For example, at Defense, 5 of
the 10 oldest cases remained open, in part because the responsive
records were voluminous. For one request for records on the 1972
Strategic Arms Limitation Talks (SALT), Defense's case file indicated
that the request involved the review and coordination of 936 pages of
top secret documents. A request for 1970 SALT records involved 613
pages of top secret documents.
At HHS, 4 of the 10 oldest case files included references to voluminous
records. For example, for a media request for background information on
a report by the Centers for Medicare and Medicaid Services on an
incident involving an error at a hospital, the centers indicated that
the responsive documents were bulky, consisting of about 500 to 600
pages of records.
At VA, all 10 oldest pending requests, dating from 2003 to 2005, were
in the VA Office of the Inspector General. For one of these cases, the
responsive records were described as voluminous (about 700 pages) and
in need of review by legal staff; the requester was informed that
because of this, they would be placed in a queue with other voluminous
requests requiring legal review. The request reached the head of the
queue about 2 years later (May 2007), and three incremental releases
were made from May to June 2007. (According to VA, this request was
closed on August 17, 2007.) VA officials also described a more recent
voluminous request involving a database containing more than 72,000
active files, with 431 data elements and over 4 million PDF files, each
of which had to be reviewed for personal data.
At Justice, two of the six oldest case files included letters
explaining that because of the high volume of responsive records
associated with each, the requests had been placed in the pending queue
for processing. In one case, a letter indicated that the request had
moved from number 91 in the pending queue in October 1990 to number 54
in November 1993; according to the letter, the processing delay was
caused by large numbers of requests received, as well as the need to
devote part of the office's resources solely to processing documents in
response to legislative requirements (the President John Fitzgerald
Kennedy Assassination Records Collection Act of 1992).
Requests may require extensive review and consultations. Review of
requests may require coordination with many organizational components,
or they may require the agency to consult with other agencies. If
responsive records are classified, they must be reviewed and redacted
by personnel with appropriate clearances. Classified or intelligence
issues may involve both internal reviews and external consultation when
other agencies must review and approve the release of information
gathered before a case can be closed. Agency officials stated that this
coordination can be time-consuming, especially when it is not clear
which agencies have ownership of the information. In other cases,
proper review and redaction may require the involvement of subject-
matter experts or others with specialized knowledge.
Defense's oldest case files, as described above, included several
involving top secret documents, which required extensive reviews by
multiple components before release. All but one of Defense's 10 oldest
cases showed evidence of consultations and coordination, in some cases
with multiple organizations (these included Commerce, State, and the
Central Intelligence Agency).
In one of Justice's six oldest cases, the responsive documents had been
sent to external agencies for review of classified documentation to
determine whether the material warranted continued declassification and
whether it could be released.
Agencies may need to notify submitters of information before
disclosure. Before releasing information under FOIA, federal agencies
are generally required to provide predisclosure notifications to
submitters of confidential commercial information.[Footnote 47]
Officials stated that when agencies receive requests for proprietary,
acquisition, or procurement records, the submitter notification process
can delay closure of these cases. For example, NSF officials stated
that most of their requests are for copies of funded grant proposals,
which require FOIA staff to contact grantees for approval of the
release. According to NSF, many of these grantees are academics who are
not familiar with FOIA processes (including the submitter review
process); NSF officials state that locating the submitters and
explaining the process can be time-consuming.
Requests may be delayed until ongoing investigations are completed.
According to our analysis of the 10 oldest case files from selected
agencies, several old requests remained open because they sought
documents regarding investigations that were still ongoing. At DHS and
VA, most of the oldest FOIA requests remain open because the responsive
records are relative to ongoing investigations. Some examples of these
requests follow:
* At DHS, 8 of the 10 oldest pending requests (dating from 2000 to
2001) were requests directed to the Coast Guard for documents on vessel
incidents (such as collisions between vessels). In these cases, the
Coast Guard responded to requesters that, as the incident was still
under investigation, material might be protected from release as part
of an ongoing law enforcement proceeding; the exemptions cited included
7(A), which exempts records or information compiled for law enforcement
purposes to the extent that the production of such records could be
expected to interfere with enforcement proceedings. The requesters were
offered the choice of receiving any material available at the time or
authorizing an extension until the investigation was complete; in these
cases, requesters asked that requests remain open, pending completion
of the investigation.
* At VA, 7 of the 10 oldest pending requests (dating from 2003 to 2005)
were for documents concerning investigations or reviews by the VA
Office of the Inspector General. For example, one request was for
records of an investigation of medical research activities at a VA
medical center that was opened after employees reported that
established research procedures were not being properly followed.
Another was for records regarding complaints filed against a health
care provider. In these and other cases, requesters were informed that
the records were not yet releasable and cited exemptions, including
7(A). For these 7 requests, VA informed requesters that it would keep
the requests open until the investigations were complete.
The Director of Justice's Office of Information and Privacy stated that
the agencies could have simply closed the requests as denials under
exemption 7(A) and any other applicable exemption (see app. II); she
also noted that these requests remained open in accordance with the
requesters' wishes.
Requests more than 6 years old may receive low priority. At one agency
component, a set of old cases remained open because the agency believed
they were no longer subject to litigation. In accordance with the
general federal statute of limitations, lawsuits against the United
States generally are barred after 6 years after the right of action
first accrues.[Footnote 48] At Justice's Criminal Division, requests
over 6 years old were given lower priority than requests for which
litigation was deemed likely, and, in some instances, the original
request processing files were lost. That is, the Criminal Division was
unable to locate the original processing files for 4 requests that it
had identified as among its 10 oldest pending requests, dating from
around the early 1990s. (Justice officials later informed us that one
of these cases was in fact closed and had been incorrectly
identified.)[Footnote 49] In August 2007, the Chief of the division's
FOIA/Privacy Act Unit (now retired) told us that he could not account
for the loss, but that the unit had recently undergone a move and
personnel changes, which might have been contributing factors.
According to this official, the unit was creating replacement files
from a tracking database and would then take action to close the
requests.
According to its former chief, the FOIA/Privacy Act Unit gave priority
to avoiding litigation, since lawsuits can generate a significantly
increased workload and slow down other FOIA processing. For example,
according to this official, the Criminal Division was then processing
over 30,000 documents as a result of a lawsuit. Criminal Division
officials stated that because of the magnitude of this task, which was
subject to supervision by the court and potential sanctions if not
timely, it was not practical to divert resources to process older
cases.
Although the goal of avoiding litigation is reasonable, the lack of
priority given to the division's oldest case files is inconsistent with
the department's expressed emphasis on what it termed "an emerging area
of concern"--the longest-pending FOIA requests that agencies have on
hand.[Footnote 50] According to Justice, its Office of Information and
Privacy (which has lead responsibility for providing guidance and
support to federal agencies on FOIA issues) established as a backlog-
related goal the regular closure of the 10 oldest FOIA requests pending
at eight senior leadership offices in the department, for which the
office performs FOIA processing. According to the department, this
served as an example for other agencies, some of which followed suit.
(Also, in October 2007, Justice issued new requirements for all
agencies to report on their 10 oldest pending requests and 10 oldest
pending consultations received from other agencies.)
Further, although the statute of limitations may prevent requesters
from filing suit after 6 years, following a practice that avoids
applying resources to cases older than this has the potential effect of
increasing the number of very old open requests having little prospect
of being closed.
In response to this issue, the Criminal Division's FOIA/Privacy Act
Unit began taking action to close the requests that had missing case
files, according to its former chief. Also, in December 2007, the
current deputy chief of the Criminal Division told us that an attorney
had been detailed to work full time on the oldest cases (those dating
from 2000 and before); according to this official, the Criminal
Division had decreased its pending list by over 100 cases between
September 14 and November 29, 2007. However, the division's improvement
plan did not address closing its oldest cases, and the division had not
established time frames for doing so. Although the actions described by
the deputy chief, if implemented appropriately, should help to address
this issue, establishing goals and time frames would provide further
assurance that attention to this issue is sustained appropriately.
Without such goals and time frames, the Criminal Division risks
perpetuating the tendency for the oldest requests to remain open
indefinitely.
Since Implementing Improvement Plans, Several Agencies Reduced Backlogs
of Overdue or Pending Requests, but the Governmentwide Picture Is
Incomplete:
Following the emphasis on backlog reduction in Executive Order 13392
and agency improvement plans, many agencies have shown progress in
decreasing their backlogs of overdue requests as of September 2007.
Specifically, of 16 agencies we reviewed that were able to provide
statistics, 9 decreased overdue or pending requests, 5 experienced
increases, and 2 had no material change. However, the statistics
provided by these agencies varied widely, representing a mix of overdue
cases and total pending cases, as well as varying time frames. Further,
3 of the 21 agencies were unable to provide statistics supporting their
backlog reduction efforts, and 1 provided statistics by component,
which could not be aggregated to provide an agencywide result. (The
remaining agency reported no backlog before or after implementing its
plan.) Tracking and reporting statistics on overdue cases is not a
requirement of the annual FOIA reports or of the Executive Order.
Although both the Executive Order and Justice's implementing guidance
put a major emphasis on backlog reduction, agencies were given
flexibility in developing goals and metrics that they considered most
appropriate in light of their current FOIA operations and individual
circumstances. As a result, agencies' goals and metrics vary widely,
and progress could not be assessed against a common metric. Justice's
most recent guidance directs agencies to set goals for reducing
backlogs of overdue requests in future fiscal years, which could lead
to the development of a consistent metric; however, it does not direct
agencies to monitor and report overdue requests or to develop plans for
meeting the new goals.
Certain Agencies Made Progress in Backlog Reduction, While Others Faced
Challenges:
Table 8 shows statistics provided by 16 agencies in response to our
request for numbers of overdue requests before and after the
implementation of the improvement plans. "After" statistics were as of
September 14, 2007 (except as noted in the table). "Before" (baseline)
statistics were generally as of about June 2006.[Footnote 51] As the
table shows, a few agencies provided statistics on pending requests
rather than overdue requests.
Table 8: Statistics on the Change in Numbers of Overdue (or Pending)
Requests for 16 Agencies:
Agency: Fall: DHS;
Number of overdue (or pending)[A] requests: Baseline[B]: 103,634;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 73,662;
Fall/rise: Number: -29,972;
Fall/rise: Percentage: -29%.
Agency: Fall: VA;
Number of overdue (or pending)[A] requests: Baseline[B]: 11,794;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 2,244;
Fall/rise: Number: -9,550;
Fall/rise: Percentage: -81%.
Agency: Fall: Treas;
Number of overdue (or pending)[A] requests: Baseline[B]: 2,147;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 1,353;
Fall/rise: Number: -794;
Fall/rise: Percentage: -37%.
Agency: Fall: EPA;
Number of overdue (or pending)[A] requests: Baseline[B]: 1,494;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 932[D];
Fall/rise: Number: -562;
Fall/rise: Percentage: -38%.
Agency: Fall: DOI;
Number of overdue (or pending)[A] requests: Baseline[B]: 1,212[E];
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 664;
Fall/rise: Number: -548;
Fall/rise: Percentage: -55%.
Agency: Fall: DOE (pending);
Number of overdue (or pending)[A] requests: Baseline[B]: 575;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 435[F];
Fall/rise: Number: -140;
Fall/rise: Percentage: -24%.
Agency: Fall: AID;
Number of overdue (or pending)[A] requests: Baseline[B]: 462;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 301;
Fall/rise: Number: -161;
Fall/rise: Percentage: -35%.
Agency: Fall: DOL;
Number of overdue (or pending)[A] requests: Baseline[B]: 443;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 389;
Fall/rise: Number: -54;
Fall/rise: Percentage: -12%.
Agency: Fall: NRC;
Number of overdue (or pending)[A] requests: Baseline[B]: 30;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 15;
Fall/rise: Number: -15;
Fall/rise: Percentage: -50%.
Agency: No material change: Agency: DOC;
Number of overdue (or pending)[A] requests: Baseline[B]: 181;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 188;
Fall/rise: Number: +7;
Fall/rise: Percentage: less than 1%.
Agency: No material change: NSF (pending);
Number of overdue (or pending)[A] requests: Baseline[B]: 5;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 7;
Fall/rise: Number: +2;
Fall/rise: Percentage: [G].
Agency: Rise: SSA;
Number of overdue (or pending)[A] requests: Baseline[B]: 67;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 97;
Fall/rise: Number: +30;
Fall/rise: Percentage: +45%.
Agency: Rise: NASA (pending);
Number of overdue (or pending)[A] requests: Baseline[B]: 135;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 337;
Fall/rise: Number: +202;
Fall/rise: Percentage: +150%.
Agency: Rise: Agency: ED (pending);
Number of overdue (or pending)[A] requests: Baseline[B]: 480;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 689;
Fall/rise: Number: +209;
Fall/rise: Percentage: +44%.
Agency: Rise: State;
Number of overdue (or pending)[A] requests: Baseline[B]: 3,200;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 3,375;
Fall/rise: Number: +175;
Fall/rise: Percentage: +5%.
Agency: Rise: DOD (baseline differs)[H];
Number of overdue (or pending)[A] requests: Baseline[B]: 18,216;
Number of overdue (or pending)[A] requests: As of September 14,
2007[C]: 23,255;
Fall/rise: Number: greater than 5,039;
Fall/rise: Percentage: [Empty].
Source: GAO analysis of agency data.
Note: Abbreviations are as in table 2.
[A] Agencies' statistics on pending cases are in gray.
[B] Agencies provided baseline statistics for various different
preimplementation dates; see table 9.
[C] Except as noted.
[D] EPA provided number as of September 17, 2007.
[E] DOI was unable to provide a pre-implementation baseline for overdue
requests, but it was able to provide a statistic for February 2007,
which is about the midpoint of the period.
[F] DOE provided number as of September 1, 2007.
[G] No percentage is provided because the two numbers are too small for
a percentage comparison to be meaningful.
[H] DOD provided pending numbers as a baseline. These statistics
indicate that it has experienced a rise in overdue requests; the exact
number is unknown because the number of overdue requests included in
the baseline is unknown. However, this number must be 18,216 or less,
so the rise must be 5,039 or more.
[End of table]
As shown in table 8, since implementing their FOIA improvement plans,
eight agencies showed significant decreases in their backlogs of
overdue cases (AID, DHS, EPA, Interior, Labor, the Nuclear Regulatory
Commission, the Treasury, and VA), and one (Energy) showed decreases in
pending requests (Energy does not distinguish overdue requests from
pending requests in its reduction efforts).
Because of the large numbers of pending and overdue requests that it
accounts for governmentwide, DHS's reduction is particularly notable.
According to its statistics, DHS succeeded in reducing backlog by 29
percent since June 2006, reducing its overdue requests by almost
30,000. DHS officials, including the Deputy Chief FOIA Officer,
attributed the department's success to activities performed as part of
its improvement plan for both 2006 and 2007. For 2006, DHS's
improvement plan goals related to backlog reduction included hiring
additional personnel, implementing operational improvements at CIS,
meeting with an important requester group (the American Immigration
Lawyers Association) to discuss file processing and customer service
enhancements, and establishing a monitoring program under which all DHS
components submitted weekly and monthly data to DHS's Chief FOIA
Officer. Officials also cited improvements to the department's Web site
to assist requesters in properly drafting and directing their requests;
increased outreach and assistance by the central FOIA office to
components; formalized employee training programs; and the launch of an
Internet-based FOIA correspondence tracking and case management system
for FOIA offices at DHS headquarters, which is to streamline the
tracking of requests. In addition, DHS's Deputy Chief FOIA Officer told
us that she attributes the department's progress to an increased focus
on customer service and communication with requesters, as well as
efforts to streamline FOIA processing using available technologies.
Also notable is VA's performance: it reported achieving a backlog
reduction of over 80 percent from August 2006 to September 2007--a
reduction of 9,550 requests. This is also significant to the overall
backlog picture, as VA accounts for significant portions of
governmentwide requests received and pending (table 7 provides numbers
for fiscal year 2006). VA attributed its backlog reduction to the
improvements resulting from meeting the milestones that it had set in
its improvement plan and the increased management emphasis on backlog
reduction. VA's 2006 improvement goals were to implement quarterly
backlog snapshot reporting for all components; analyze these snapshots
to identify offices with significant backlogs; identify the
department's 10 oldest FOIA requests and estimated completion dates;
and conduct FOIA site visits. In its annual report, VA reported meeting
these goals, as well as a number of goals for 2007, including analysis
of backlog and solutions.
Other agencies did not reduce their backlog of overdue or pending
cases: two agencies with minor backlog saw no material change, but five
agencies saw significant increases:
* Commerce saw a minor increase in its backlog of 7 overdue requests,
for a total of 188 (Commerce generally receives about 2,000 FOIA
requests a year). According to Commerce's Departmental FOIA Officer,
the department received a large number of voluminous requests in the
period before September 14, which she said was because of the election
year, and many of these requests were requests for congressional
correspondence and correspondence logs. According to this official,
because such logs and correspondence involve other agencies, such
requests require external consultation, which can be time-consuming.
She also stated that the department's backlog of overdue requests
varies from day to day, and that by September 30, 2007, it had fallen
to 159. For agencies such as Commerce, whose processing rates have
fluctuated closely around 100 percent (see fig. 7), such variations are
not surprising.
* NSF's pending requests rose from 5 to 7 from its fiscal year 2006
report to September 14, 2007; NSF processes around 250 to 350 requests
per year. As these numbers show, NSF does not face major backlog
issues. Further, when dealing with small numbers that can vary daily, a
difference of 2 between snapshot dates does not provide a meaningful
indication of a trend.
SSA, State, and Defense saw rises in overdue requests, and NASA and
Education saw rises in pending requests:
* Although SSA stated in its fiscal year 2006 annual report that it had
reduced its backlog by 5 percent, it experienced a rise in its backlog
of overdue requests by September 2007. SSA officials, including the
Principal Public FOIA Liaison, attribute this rise to difficulties in
migration to a new electronic FOIA tracking system, recent loss of
experienced staff, and an increase in complex requests in 2007.
According to these officials, this increase in requests occurred
because of events that led to heightened public interest, such as SSA
field office closures. Although SSA is expecting to lose more senior
staff in 2007, officials hope to reduce backlog by streamlining
operations and careful management. For example, according to agency
FOIA officials, SSA is tasking junior-level personnel, including
administrative and office automation staff, with the responsibility of
responding to requests from frequent requesters seeking routine
statistical data, thus allowing senior analysts to work on more complex
requests.[Footnote 52]
* According to FOIA officials at State's Office of Information Programs
and Services, the department's backlog of overdue requests increased
because of conflicting demands on the staff that coordinate and process
FOIA requests. For example, staff resources were redirected in response
to a department priority placed on passport processing. State also
reported that it experienced an increase in the number of congressional
requests for documents, the expedited processing of which often
competes for the same staff. According to the department, it plans to
address its backlog challenges by efforts to better track and control
the FOIA workload.
* Defense attributes most of the rise in its backlog of overdue
requests to an unforeseen influx of requests received by the Defense
Security Service (DSS). According to the chief of Defense's Freedom of
Information Policy Office, DSS accounts for over 10,000 of Defense's
23,255 backlogged requests. This official told us that these requests
are primarily Privacy Act requests for background investigation files
from individuals who were investigated by DSS for security clearances
over the past 15 years. According to this official, the DSS backlog
increased because, among other things, personnel security investigation
resources were transferred from DSS to OPM when OPM assumed the
personnel security investigation mission in 2005; the increased
security awareness within the country since the events of September 11,
2001, caused more employers of former Defense personnel to ask for
security clearance information; and the war in Iraq caused a
significant increase in the use of cleared contractors for critical
positions. The chief of Defense's Freedom of Information Policy Office
stated that the department plans to modify its FOIA improvement plan to
address this new backlog.
* NASA saw an increase of more than 100 percent in pending requests
from February 2006 to September 14, 2007. According to NASA's Chief
FOIA Public Liaison Officer, during this past fiscal year, it
experienced an unexpectedly large increase in FOIA workload because of
high-visibility incidents that led the public and media to increase
their FOIA requests, such as an incident involving an astronaut accused
of attempted murder, foam-related issues with the shuttle tanks, and
contracts with NASA's new exploration vehicle. Most of these requests
involve information that is being considered under civil and criminal
proceedings, operational safety reviews, and internal controls; as a
result, according to this official, they required extensive legal
reviews concerning the initial release determinations.
* Education experienced a 44 percent increase in pending requests from
June 2006 to September 14, 2007. Education's improvement plan goals
included closing its 10 oldest requests by January 2007, as well as 10
percent of 480 requests that it identified as pending as of June 2006.
In its annual report, the department stated that it exceeded its 10
percent goal, but that it did not close its 10 oldest requests because
resources had been reallocated to address other unplanned FOIA
priorities and workload. In addition, the Director of Regulatory
Information Management Services in the department's Office of
Management told us that the department has experienced an increase in
pending/backlog FOIA requests because of the growing number of FOIA
requests seeking responsive documents of a cross-cutting nature, which
require substantial time and attention from senior personnel.
Variations in Statistics Tracked and Backlog Reduction Goals Prevent a
Clear Assessment of Governmentwide Progress:
Although the statistics provided by the 16 agencies indicate that many
agencies have made reductions, the governmentwide picture is not clear
because the types of statistics varied widely, representing both
overdue and pending cases and varying time frames. Further, 3 of the 21
agencies were unable to provide statistics supporting their backlog
reduction efforts, and 1 provided statistics by component, which could
not be aggregated to provide an agencywide result.
Table 9 shows the variations in the dates of the baseline statistics
for the agencies. For agencies that provided the number of their
overdue cases, the dates generally depended on when the agencies first
began to collect such statistics. Some agencies had collected
preimplementation backlog numbers as a baseline for their improvement
plans, and others planned to determine backlog of overdue cases as part
of the implementation of their plans. For agencies that provided
pending statistics, the dates generally depended on the systems and
processes used to develop the statistics.
Table 9: Dates of Baseline Statistics for 16 Agencies:
Agency: AID;
Date of statistics provided: April 18, 2006.
Agency: DHS;
Date of statistics provided: June 30, 2006.
Agency: DOC;
Date of statistics provided: May 5, 2006.
Agency: DOD (pending)[A];
Date of statistics provided: September 2006.
Agency: DOE (pending);
Date of statistics provided: April 2006.
Agency: DOI;
Date of statistics provided: February 2007[B].
Agency: DOL;
Date of statistics provided: June 2006.
Agency: ED (pending);
Date of statistics provided: June 2, 2006.
Agency: EPA;
Date of statistics provided: June 14, 2006.
Agency: NASA (pending);
Date of statistics provided: February 2006.
Agency: NRC;
Date of statistics provided: June 14, 2006.
Agency: NSF (pending);
Date of statistics provided: September 2006.
Agency: SSA;
Date of statistics provided: June 15, 2006.
Agency: State;
Date of statistics provided: July 1, 2006.
Agency: Treas;
Date of statistics provided: June 30, 2006.
Agency: VA;
Date of statistics provided: August 24, 2006.
Source: GAO analysis.
Note: Abbreviations are as in table 2.
[A] DOD provided pending numbers for its baseline only; it provided
numbers of overdue requests for the September 2007 comparison.
[B] DOI was unable to provide a preimplementation baseline for overdue
requests, but it was able to provide a midpoint statistic.
[End of table]
Some agencies provided statistics on backlog of overdue requests, some
provided numbers of pending requests, and some provided a combination.
For the four agencies providing only pending statistics, the actual
backlogs of overdue requests would probably be lower, since overdue
cases are a subset of pending cases.[Footnote 53] Those providing
pending statistics did so either because their systems were not set up
to track overdue requests, because they chose not to distinguish them,
or both. For example, according to NASA, its current in-house FOIA
database is designed to report statistics only on open requests and
does not distinguish those that are over the statutory limit (20 or, in
some cases, 30 days). Therefore, NASA provided us numbers pertaining to
all open requests. On the other hand, Education and Energy chose not to
distinguish between pending cases and those over the statutory limit.
Energy explained this decision on the grounds that it ensured that all
cases were given the same priority and that new cases would receive
just as efficient a response as old ones.
Two agencies (Justice and Defense) provided a mix of pending and
overdue statistics:
* Justice reported by components, which provided a mix of pending and
overdue statistics, as well as baselines associated with dates ranging
from September 2005 to October 2006. Because of this mix, the
statistics could not be aggregated and directly compared to give a
meaningful departmentwide result. However, of 28 components, 13
reported decreases in overdue or pending cases, 6 reported increases, 7
reported no overdue requests, 1 was a new component that had no
preimplementation history, and 1 component did not provide statistics
for the time frames requested.
* According to Defense, it had not previously tracked backlog in the
sense of the Executive Order (that is, overdue requests), and it
planned to use the September 2007 statistics collected for us as a
baseline for future tracking.
Similarly, the Department of the Interior could not provide us with a
preimplementation baseline because it did not track its backlog of
overdue requests at that time. Interior told us that it has now
modified its tracking system to allow it to monitor overdue cases in
real time.
Table 10 shows the four agencies for which information was not provided
or was not sufficient for a clear conclusion. (The remaining agency,
SBA, did not report a backlog for either June 2006 or September 2007.)
Table 10: Four Agencies with Missing or Inconclusive Statistics:
Agency: DOJ;
Comment: Statistics reported by components could not be aggregated.
Agency: DOT;
Comment: Did not provide statistics.
Agency: HHS;
Comment: Did not provide statistics.
Agency: OPM;
Comment: Did not provide a baseline.
Source: GAO analysis of agency data.
Note: Abbreviations are as in table 2.
[End of table]
Three agencies did not provide any statistics. Transportation and HHS,
both of which have decentralized FOIA programs, told us that collecting
and providing such statistics was not feasible. Transportation stated
that it would have been extremely burdensome to do so because its
operating administrations are set up to capture open requests and not
overdue requests. Similarly, HHS officials told us that the
decentralized nature of the department's FOIA operations and the manual
processes that are used to compile statistics made it impractical to
compile the requested data.
One agency, OPM, did not provide a baseline statistic. It reported 152
overdue requests as of September 2007, but without a baseline, no
conclusion on its progress is possible. According to OPM, because it
did not establish a numerical goal for backlog reduction (its goal was
to eliminate its backlog of overdue requests), it did not record the
number of overdue requests as a baseline before implementing its
improvement plan.
A major reason for this variation in statistics is that agencies did
not necessarily have systems or processes to record backlog in the
sense of the Executive Order (requests for records that have not been
responded to within the statutory time limit); instead, their systems
or processes were based on recording statistics required for the annual
reports, which include a count of open requests pending at the end of
the reporting period but do not include backlog of overdue requests.
This challenge is compounded for agencies with highly decentralized
programs or manual processes, for which assembling the statistics, even
if they were available, is a significant task.
In addition, the goals that agencies set regarding backlog reduction
varied widely. In our March 2007 report, we noted that almost all plans
contained measurable goals and timetables for avoiding or reducing
backlog.[Footnote 54] However, the goals concentrated on a wide variety
of targets and metrics. For example, some goals and milestones were
focused on activities that could be expected to reduce backlog by
contributing to efficiency, such as conducting reviews, setting up
monitoring mechanisms, hiring staff, conducting training, and making
other process improvements.[Footnote 55] Others were numerical goals
aimed at particular metrics, such as reducing processing time;
completing a certain percentage of requests within 20 days; reducing
the number of some subset of requests (such as the 10 oldest cases,
those over a year old, cases opened before a particular date, or cases
at particular components); or reducing the number of pending or overdue
requests by a certain percentage, to a certain number, or to a certain
proportion of requests received per year. The goals also covered a
variety of time frames, so that not all agencies set numerical goals
for the first reporting period (which ended about 7 months after they
began implementing their improvement plans), but instead set only
process goals.
The reason for this variety of goals and milestones is that Justice's
guidance on implementing the Executive Order gave agencies broad
flexibility in designing their plans. This guidance emphasized that
identifying ways to eliminate or reduce backlog should be a major
underpinning of the implementation plans of all agencies that had
backlogs. However, the guidance allowed agencies to develop goals that
they considered most appropriate in light of their current FOIA
operations; it did not prescribe any particular metric for all agencies
to use. According to the Director of Justice's Office of Information
and Privacy, the guidance was intended to provide flexibility to
agencies in developing appropriate measurements that best fit their
individual circumstances. As a result, the goals and milestones set by
agencies included a wide variety of different aims and measures.
In recent guidance issued to implement the Attorney General's
recommendations for improving FOIA implementation,[Footnote 56]
Justice directed agencies to develop backlog reduction goals for fiscal
years 2008 to 2010.[Footnote 57] The guidance directs agencies to
estimate the number of requests they expect to receive during each
fiscal year and to set goals both for the number of requests they
intend to process and for the number of requests pending beyond the
statutory limit (backlog) at the end of each fiscal year.[Footnote 58]
According to the Director of Justice's Office of Information and
Privacy, this guidance was aimed at ensuring the continuation of the
improvement process begun by the Executive Order. This guidance
continues the flexible approach set in earlier guidance, in that it
gives agencies freedom to set goals that they consider appropriate and
realistic to their own circumstances.
The Director of the Office of Information and Privacy also stated that
by directing agencies to establish these goals, the office intended to
establish a core definition for what is being tracked and to encourage
agencies to begin focusing on this metric. However, the guidance does
not direct agencies to modify their existing improvement plans or to
otherwise develop strategies, plans, or milestones to achieve these new
goals, which are in addition to the specific goals set in their
improvement plans. The guidance also does not direct agencies to track
and report the actual number of requests pending beyond the statutory
limit. Without such planning and tracking, agencies may face challenges
in achieving the reductions envisioned. Neither the public nor the
agencies could effectively monitor progress unless agencies put in
place processes and systems that allow them to track and report their
backlogs of overdue requests.
Conclusions:
The annual FOIA reports continue to provide valuable information about
the public's use of this important tool to obtain information about the
operations and decisions of the federal government. However, the value
of this information depends on its accuracy. In some cases, agencies
were not able to provide assurance that their information was accurate
and complete. It is important for agencies to ensure that they have
appropriate procedures and internal controls, so that agencies and the
public have reasonable assurance that FOIA data are reliable.
Some of the challenges that agencies face in processing FOIA requests
include the need to review and redact sometimes large volumes of
responsive records, to consult with other agencies or confer with
multiple organizations, and to provide predisclosure notifications to
information submitters. These practical challenges provide some insight
into the reasons why backlogs can develop and grow, as well as an
appreciation of the need for sustained attention to ensure that
backlogs do not become unmanageable. For example, in one agency
component, the pressure to avoid litigation, while ensuring that some
newer requests were responded to promptly, led to a situation in which
very old cases may remain open indefinitely. Establishing goals and
time frames to close such cases could help avoid this result. The
challenge to agency management is to determine how to apply finite
resources to respond to the multiple and sometimes competing demands
placed on their FOIA programs.
The progress that many agencies have made in reducing backlog suggests
that the development and implementation of the FOIA improvement plans
have had a positive effect. However, in the absence of consistent
statistics on overdue cases, it is not possible to make a full
assessment of governmentwide progress in this area. Justice's latest
guidance on setting backlog reduction goals is a step toward developing
such statistics, although it does not explicitly ask agencies to track
and report them. However, on the principle that "what gets measured
gets managed," the chances of agency success in achieving reductions
could be increased if they monitor and report statistics on their
backlog of overdue requests, as well as develop plans for achieving
their goals. Such reporting would further the aim of the statute and
the Executive Order to inform citizens about the operations of their
government and the FOIA program in particular.
Recommendations for Executive Action:
To help ensure that FOIA data in the annual reports are reliable, we
are recommending that the Administrator of General Services ensure that
appropriate internal controls are put in place to improve the accuracy
and reliability of FOIA data, including processes, such as checks and
reviews, to verify that required data are entered correctly.
To help ensure that FOIA data are reliable, we are recommending that
the Secretary of Housing and Urban Development ensure that appropriate
policies and procedures are put in place to improve the accuracy and
reliability of FOIA data, including procedures to ensure that all FOIA
offices use tracking systems consistently and that information is
entered accurately and promptly.
We previously made a recommendation to the Department of Agriculture
regarding the reliability of FOIA data at the Farm Service Agency; we
are making no further recommendations at this time because the
department has improvement efforts ongoing that, if implemented
effectively, should help ensure that required data are entered
correctly.
We are also recommending that the Attorney General take the following
actions:
* To help ensure that its oldest requests receive appropriate
attention, direct the Criminal Division to establish goals and time
frames for closing its oldest requests, including those over 6 years
old.
* To help agencies achieve the backlog reduction goals planned for
fiscal years 2008, 2009, and 2010 and to ensure that comparable
statistics on backlog are available governmentwide, direct the Office
of Information and Privacy to provide additional guidance to agencies
on (1) developing plans or modifying existing plans to achieve these
goals and (2) tracking and reporting backlog.
Agency Comments and Our Evaluation:
We provided a draft of this report to OMB and the 24 agencies included
in our analysis for review and comment. All generally agreed with our
assessment and recommendations or had no comment.[Footnote 59] Seven
agencies provided written comments: AID, Energy, EPA, GSA, Homeland
Security, Justice, and OPM (printed in apps. III through IX). The
Department of Veterans Affairs provided comments by e-mail. In
addition, the Departments of Commerce, Defense, the Interior, Justice,
and State provided technical comments by e-mail or letter, which we
incorporated as appropriate.
In written comments from the Department of Justice, the Director of
Justice's Office of Information and Privacy provided additional
information on its planned actions related to our recommendations (see
app. VIII), and in later contacts, the department confirmed that it
generally agreed with our findings and recommendations. The Director
described actions that the department has taken to help agencies
achieve the backlog reduction goals planned for fiscal years 2008,
2009, and 2010. The Director also stated that Justice intends to issue
further guidance to agencies, which will encourage agencies both to
ensure appropriate planning to meet their backlog reduction goals and
to reduce the age of their oldest requests, as well as provide
additional requirements for reporting on backlogged requests.
In addition, the Director provided information on actions that the
Criminal Division has taken to ensure that the oldest requests receive
appropriate attention. She stated that her office has been advised by
the FOIA Office of the Criminal Division that it has established goals
and time frames for closing its oldest requests and that the likelihood
of litigation is no longer a consideration for prioritizing requests
older than 6 years (see app. VIII).
The Administrator of General Services concurred with our findings and
recommendations and stated that the administration has developed and
implemented an automated tracking system, providing it with internal
control of the data. In addition, the Administrator stated that GSA had
increased the FOIA staff, resulting in more checks and reviews to
verify that data are entered correctly (see app. VI).
Three agencies provided written comments describing additional actions
taken in regard to overdue requests:
* The Director of the Department of Homeland Security's GAO/OIG Liaison
Office concurred with our findings and recommendations and described
actions taken by the department to continue to decrease the number of
overdue requests, actions taken by CIS to expedite FOIA processing, and
the priority given to departmentwide guidance (see app. VII).
* The Assistant Administrator and Chief Information Officer of the
Environmental Protection Agency described actions that the department
has taken to ensure that it continues to decrease the number of its
overdue requests (see app. V).
* The Director of the Office of Personnel Management stated that the
office did not dispute our statement that it had not established a
backlog baseline, and added that since the audit was completed it has
established backlog reduction goals and determined a baseline for
overdue requests (see app. IX).
Two agencies provided written comments agreeing with the information
presented on their FOIA programs:
* For the Department of Energy, the Director of the Office of
Management/Chief Freedom of Information Officer provided comments (see
app. IV).
* For the Agency for International Development, the Assistant
Administrator of the Bureau for Management provided comments (see app.
III).
Finally, the GAO Liaison of the Department of Veterans Affairs provided
e-mail comments agreeing with the information presented on the
department's FOIA program.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution of this report
until 30 days from the date of this report. At that time, we will send
copies of this report to the Attorney General, the Director of the
Office of Management and Budget, and the heads of departments and
agencies we reviewed. Copies will be made available to others on
request. In addition, this report will be available at no charge on our
Web site at [hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at (202) 512-6240 or koontzl@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made major contributions to this
report are listed in appendix X.
Sincerely yours,
Signed by:
Linda D. Koontz:
Director, Information Management Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to (1) determine the status of agencies' processing
of Freedom of Information Act (FOIA) requests and any trends that can
be seen, (2) describe factors that contribute to FOIA requests
remaining open beyond the statutory limits, and (3) determine to what
extent agencies have made progress in addressing their backlogs of
overdue FOIA requests since implementing their improvement plans.
To determine the status of agencies' processing of FOIA requests and
any trends, we analyzed annual report data for fiscal years 2002
through 2006. Our intended scope was the 24 agencies covered by the
Chief Financial Officers Act, plus the Central Intelligence Agency
(herein we refer to this scope as governmentwide). To gauge agencies'
progress in processing requests, we analyzed the workload data (from
fiscal year 2002 through 2006) included in the 25 agencies' annual FOIA
reports to assess trends in volume of requests received and processed,
median processing times, and the number of pending cases. All agency
workload data were self-reported in annual reports submitted to the
Attorney General.
To provide assurance that the data reported in the annual reports were
reliable, we interviewed officials from selected agencies and assessed
the internal controls that agencies had in place for ensuring that
their data were complete and accurate. Our strategy for assessing data
reliability was to assess agencies on a 3-year rotational basis. In
both fiscal year 2006 and fiscal year 2007, we selected the Social
Security Administration and the Department of Veterans Affairs for
assessment because they processed a majority of the requests
governmentwide, as well as eight additional agencies. To ensure that we
selected agencies of varying size, we ordered the remaining agencies
according to the number of requests they received (from smallest to
largest) and divided the resulting list into sets of three; we assessed
the first member of each set last year and the second of each set this
year.
This year, in addition to the Social Security Administration and the
Department of Veterans Affairs, the following agencies were selected
for assessment: the Departments of Homeland Security, Housing and Urban
Development, Justice, and Transportation, as well as the Agency for
International Development, the Central Intelligence Agency, the
Environmental Protection Agency, and the General Services
Administration. We also chose to revisit the Department of Agriculture,
which we assessed last year, because we had determined that we could
not be assured that data from a component, the Farm Service Agency,
were accurate and complete. Thus, we planned to assess a total of 11
agencies in fiscal year 2006. We performed assessments at 10 of these
agencies; we did not assess the Central Intelligence Agency because it
did not provide information in response to our requests.
As a result of these assessment efforts, we omitted 4 of the 25
agencies from our analysis: the Central Intelligence Agency, the
General Services Administration, and the Departments of Agriculture and
Housing and Urban Development. We eliminated the Central Intelligence
Agency, because without its participation, we were unable to determine
whether it had internal controls ensuring that its data were accurate
and complete. We eliminated the General Services Administration and the
Departments of Agriculture and Housing and Urban Development because
they did not provide evidence of internal controls that would provide
reasonable assurance that FOIA data were recorded completely and
accurately, or they acknowledged material limitations of the data. As a
result, our statistical analysis for this report was based on data from
a total of 21 agencies' annual reports. Table 11 shows the 25 agencies
and their reliability assessment status.
Table 11: Data Reliability Assessment Status for Agencies Reviewed:
Agency: Agency for International Development;
Abbreviation: AID;
Data reliability assessment: Reliable;
Assessment date: 2007.
Agency: Central Intelligence Agency;
Abbreviation: CIA;
Data reliability assessment: Did not participate; reliability not
assured;
Assessment date: [Empty].
Agency: Department of Agriculture;
Abbreviation: USDA;
Data reliability assessment: Reliability not assured;
Assessment date: 2006, 2007.
Agency: Department of Commerce;
Abbreviation: DOC;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Department of Defense;
Abbreviation: DOD;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Department of Education;
Abbreviation: ED;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Department of Energy;
Abbreviation: DOE;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Department of Health and Human Services;
Abbreviation: HHS;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Department of Homeland Security;
Abbreviation: DHS;
Data reliability assessment:
Reliable; Assessment date: 2007.
Agency: Department of Housing and Urban Development;
Abbreviation: HUD;
Data reliability assessment:
Reliability not assured;
Assessment date: 2007.
Agency: Department of the Interior;
Abbreviation: DOI;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Department of Justice;
Abbreviation: DOJ;
Data reliability assessment: Reliable;
Assessment date: 2007.
Agency: Department of Labor;
Abbreviation: DOL;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Department of State;
Abbreviation: State;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Department of the Treasury;
Abbreviation: Treas;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Department of Transportation;
Abbreviation: DOT;
Data reliability assessment:
Reliable; Assessment date: 2007.
Agency: Department of Veterans Affairs;
Abbreviation: VA;
Data reliability assessment: Reliable;
Assessment date: 2007.
Agency: Environmental Protection Agency;
Abbreviation: EPA;
Data reliability assessment: Reliable;
Assessment date: 2007.
Agency: General Services Administration;
Abbreviation: GSA;
Data reliability assessment: Reliability not assured;
Assessment date: 2007.
Agency: National Aeronautics and Space Administration;
Abbreviation: NASA;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: National Science Foundation;
Abbreviation: NSF;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Nuclear Regulatory Commission;
Abbreviation: NRC;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Office of Personnel Management;
Abbreviation: OPM;
Data reliability assessment: Not assessed;
Assessment date: [Empty].
Agency: Small Business Administration;
Abbreviation: SBA;
Data reliability assessment: Reliable;
Assessment date: 2006.
Agency: Social Security Administration;
Abbreviation: SSA;
Data reliability assessment: Reliable;
Assessment date: 2007.
Source: GAO.
[End of table]
To describe factors that contribute to FOIA requests remaining open
beyond the statutory limits, we analyzed case files for the 10 oldest
pending requests at selected agencies and discussed these cases and the
reasons they remained open with agency officials. We also interviewed
agency officials regarding the factors they considered most relevant
for their agencies.
To determine to what extent agencies made progress in addressing
backlogged FOIA requests since implementing their improvement plans, we
analyzed the improvement plan progress reports included in the fiscal
year 2006 annual reports of the 21 major agencies whose internal
controls we evaluated as sufficient in order to determine whether the
agencies met their 2006 backlog reduction milestones. In order to
determine whether agencies made a reduction or an increase in
backlogged cases, we analyzed statistics provided by the agencies on
their backlogs at different points in time. We discussed the
information in the progress reports and backlog statistics with agency
officials to determine their views on the reasons for backlog increases
or decreases, as well as their progress on their improvement plans.
In addition, we reviewed the requirements for reporting progress
contained in the Executive Order, implementation guidance from the
Office of Management and Budget and the Department of Justice, other
FOIA guidance issued by Justice, and our past work in this area.
We conducted this performance audit from May 2007 to March 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
[End of section]
Appendix II: Freedom of Information Act Exemptions:
The act prescribes nine specific categories of information that are
exempt from disclosure.
Table 12:
Exemption number: (1);
Matters that are exempt from FOIA: (A) Specifically authorized under
criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive Order.
Exemption number: (2);
Matters that are exempt from FOIA: Related solely to the internal
personnel rules and practices of an agency.
Exemption number: (3);
Matters that are exempt from FOIA: Specifically exempted from
disclosure by statute (other than section 552b of this title), provided
that such statute (A) requires that matters be withheld from the public
in such a manner as to leave no discretion on the issue or (B)
establishes particular criteria for withholding or refers to particular
types of matters to be withheld.
Exemption number: (4);
Matters that are exempt from FOIA: Trade secrets and commercial or
financial information obtained from a person and privileged or
confidential.
Exemption number: (5);
Matters that are exempt from FOIA: Interagency or intra-agency
memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.
Exemption number: (6);
Matters that are exempt from FOIA: Personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.
Exemption number: (7)(A);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information could reasonably be
expected to interfere with enforcement proceedings.
Exemption number: (7)(B);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information would deprive a person of a
right to a fair trial or impartial adjudication.
Exemption number: (7)(C);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information could reasonably be
expected to constitute an unwarranted invasion of personal privacy.
Exemption number: (7)(D);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information could reasonably be
expected to disclose the identity of a confidential source, including a
state, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case
of a record or information compiled by a criminal law enforcement
authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation,
information furnished by confidential source.
Exemption number: (7)(E);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information would disclose techniques
and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law; or.
Exemption number: (7)(F);
Matters that are exempt from FOIA: Records or information compiled for
law enforcement purposes, but only to the extent that the production of
such law enforcement records or information could reasonably be
expected to endanger the life or physical safety of an individual.
Exemption number: (8);
Matters that are exempt from FOIA: Contained in or related to
examination, operating, or condition of reports prepared by, on behalf
of, or for the use of an agency responsible for the regulation of
supervision of financial institutions.
Exemption number: (9);
Matters that are exempt from FOIA: Geological and geophysical
information and data, including maps, concerning wells.
Source: 5 U.S.C. § 552(b)(1) through (b)(9).
[End of table]
[End of section]
Appendix III Comments from the Agency for International Development:
USAID:
From The American People:
U.S. Agency for International Development:
1300 Pennsylvania Avenue, NW:
Washington, DC 20523:
[hyperlink, http://www.usaid.gov]
February 14, 2008:
Linda Koontz:
Director:
Information Management Issues:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Ms. Koontz:
I am. pleased to provide the U.S. Agency for International
Development's (USAID) formal response on the draft GAO report entitled
Freedom of Information Act: Agencies Are Making Progress in Reducing
Backlog, but Additional Guidance is Needed (GAO-08-344-) (March 2008).
We commend the GAO for its continuous and extensive reviews of the FOIA
sector. While each agency has differing processes, problems, and
requesters; your progress reports do provide agencies with broad
baselines for comparative performance reviews. We have reviewed the
data pertaining to our Agency and have found it to be accurate. USAID
will continue to seek ways of improving its performance in the FOIA
sector.
Thank you for the opportunity to respond to the GAO draft report and
for the courtesies extended by your staff in the conduct of this
review.
Sincerely,
Signed by:
Sean Mulvaney:
Assistant Administrator:
Bureau for Management:
[End of section]
Appendix IV: Comments from the Department of Energy:
Department of Energy:
Washington, DC 20585:
February 11, 2008:
Linda Koontz:
Director, Information Management Issues:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Koontz:
We appreciate the opportunity to review your draft report, Freedom of
Information Act Agencies are Making Progress in Reducing Backlog, but
Additional Guidance is Needed (GAO-08-344). The Department agrees with
the information portrayed for the Freedom of Information Act program at
the Department of Energy. Therefore, we have no comments.
We applaud your efforts to ensure that agencies are using best
practices in addressing backlog issues, processing requests and
implementing our respective FOIA improvement plans set forth in
accordance with Executive Order 13,392. If you have any questions,
please contact Mr. Kevin T. Hagerty, Director, Office of Information
Resources at 02) 586-8037.
Sincerely,
Signed by:
Ingrid Kolb:
Director
Office of Management/Chief Freedom of Information Officer:
[End of section]
Appendix V: Comments from the Environmental Protection Agency:
United States Environmental Protection Agency:
Office of Environmental Information:
Washington, D.C. 20460:
February 12, 2008:
Ms. Linda D. Koontz:
Director, Information Management Issues:
Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Ms. Koontz:
Thank you for the opportunity to review the Government Accountability
Office's draft report, "Freedom of Information Act, Agencies are Making
Progress in Reducing Backlog, but Additional Guidance Is Needed," GAO-
08-344.
The U.S. Environmental Protection Agency (EPA) continues to be
committed to the letter and spirit of Executive Order 13392. EPA takes
pride in the quality of the customer service it provides to Freedom of
Information Act (FOIA) requesters and will continue to review its
processes to identity opportunities to strengthen its FOIA program.
The Agency remains diligent in assuring that its overall FOIA backlog
continues to decrease. This ongoing commitment to backlog reduction and
better program management is demonstrated by the Agency's success in
reducing the total number of overdue requests Agency-wide to 783 as of
October 1, 2007. The Agency also closed its oldest initial FOIA which
was received in 1995. As of October 1, 2007, the Agency's oldest
request is dated June 13, 2003. EPA is very proud of these
accomplishments and will continue to implement measures to build on
these successes.
If you have any questions about EPA's FOIA Program, please feel free to
contact Larry F. Gottesman, EPA National FOIA Officer, at (202) 566-
2162.
Sincerely,
Singed by:
Molly A. O'Neil:
Assistant Administrator and Chief Information Officer:
[End of section]
Appendix VI: Comments from the General Services Administration:
GSA:
GSA Administrator:
February 11, 2008:
The Honorable David M. Walker:
Comptroller General Of the United States:
Government Accountability Office:
Washington, DC 20548:
Deal Mr. Walker:
The General Services Administration (GSA) is pleased to provide you
with our response to the Government Accountability Office's (GAO) draft
report entitled "Agencies Are Making Progress in Reducing Backlog, but
Additional Guidance Is Needed" (GAO-08-344).
We reviewed the report and concur with the findings and
recommendations. In our response to Executive Order 13392, Improving
Agency Disclosure of Information, GSA developed and implemented an
automated tracking system to capture all agency-wide Freedom of
Information Act (FOIA) information. The implementation of this system
on October 1, 2006, is allowing us to monitor and review the data
reported. It is also providing us with outstanding internal control of
the data. In addition, GSA increased the FOIA staff, which resulted in
more checks and reviews to verify data is entered correctly. We are
confident that this will satisfy GAO's concerns.
Staff inquiries may be directed to Mr. Kevin Messner, Associate
Administrator, Office of Congressional and Intergovernmental Affairs,
at (202) 501-0563.
Cordially:
Signed by:
Lurita Doan:
Administrator:
[End of section]
Appendix VII: Comments from the Department of Homeland Security:
Homeland Security:
February 13, 2008:
Linda D. Koontz:
Director, Information Management Issues:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Ms. Koontz:
Thank you for the opportunity to review the draft report, Freedom of
Information Act, Agencies Are Making Progress in Reducing Backlog but
Additional Guidance Is Needed (GAO-08-344). The Department of Homeland
Security concurs with GAO's findings and recommendations.
On December 14, 2005, the President issued an Executive Order setting
forth a policy of citizen-centered and results-oriented FOIA
administration. DHS immediately appointed a Chief FOIA Officer and
instituted the other requirements, including, establishing component
customer service centers and a DHS customer-service liaison, evaluating
program efficiency, drafting an operational improvement plan and a
subsequent revised improvement plan, retooling the DHS public-facing
website, and updating the electronic reading room. By mid-2007, DHS
reduced the overall FOIA backlog by almost 30%. As GAO points out in
this draft report, "Notably... DHS was able to decrease its backlog of
overdue requests by 29,972..."
Our efforts to decrease the backlog continue. Starting in early 2008,
the Chief FOIA Officer and the Deputy Chief FOIA Officer met with
component leadership to follow-up on any pressing FOIA concerns.
Additionally, the Deputy Chief FOIA Officer visited and conducted file
reviews of each DHS FOIA component. Since submitting the DHS backlog
reduction goals for FY08, FY09 and FY10 to the Department of Justice in
October 2007, the Deputy Chief FOIA Officer sends updated monthly goals
for each component to assure they are on track for their annual goals.
Certain components present unique challenges. As you recognize in your
report, about 89 percent of DHS pending FOIA cases are from Citizenship
and Immigration Services (CIS), which receives over 100,000 incoming
requests annually. Most of CIS's FOIA requests come from individuals
and their representatives seeking information contained within the
Alien Files (A-files); this information may be used in applying for
immigration benefits or in immigration proceedings, as well as for
genealogy studies. CIS has established a third track for processing
requests of those with scheduled court dates and they are also
assessing digitization of the files to expedite processing.
Department-wide guidance is also a priority. Eight of the ten oldest
pending DHS requests were directed to the Coast Guard for documents on
vessel incidents. In these cases, the Coast Guard responded to
requesters that, as the incident was still under investigation,
material might be protected from release as part of an ongoing law
enforcement proceeding, and the requesters were offered the choice of
receiving any material then available or authorizing an extension until
the investigation was complete. New Departmental guidance will
alleviate these stagnant backlogged requests.
As the draft report indicates, DHS was one of the eight agencies
showing significant decreases in their backlogs, since implementing
their FOIA improvement plans. As stated by GAO:
[B]ecause of the large numbers of pending and overdue requests that it
accounts for government-wide, DHS's reduction is particularly notable.
According to its statistics, DHS succeeded in reducing backlog by 29
percent since June 2006, reducing its overdue requests by almost
30,000. DHS officials, including the Deputy Chief FOIA Officer
attributed the department's success to activities performed as part of
its improvement plan for both 2006 and 2007. For 2006, DHS's
improvement plan goals related to backlog reduction included hiring
additional personnel, implementing operational improvements at CIS,
meeting with an important requester group (the American Immigration
Lawyers Association) to discuss file processing and customer service
enhancements, and establishing a monitoring program under which all DHS
components submitted weekly and monthly data to DHS's Chief FOIA
Officer. Officials also cited improvements to the department's Web site
to assist requesters in properly drafting and directing their requests,
increased outreach and assistance by the central FOIA office to
components; formalized employee training programs; and launch of an
Internet-based FOIA correspondence tracking/case management system for
DHS headquarters FOIA offices to streamline the tracking of requests.
In addition, DHS's Deputy Chief FOIA Officer told us that she
attributes the department's progress to an increased focus on customer
service and communication with requesters, as well as efforts to
streamline FOIA processing using available technologies.
Lastly, we are proud that GAO assessed internal controls and determined
that DHS was one of the fourteen agencies to provide reliable annual
report data.
DHS appreciates the professionalism demonstrated by the GAO auditors'
throughout the course of this review. The DHS Privacy Office
appreciates the effort expended and guidance provided in this report.
Sincerely,
Signed by:
Steven J. Pecinovsky:
Director, Departmental GAO/OIG Liaison Office:
[End of section]
Appendix VIII: Comments from the Department of Justice:
U.S. Department of Justice:
Office of Information and Privacy:
Washington, D. C. 20530:
Telephone: (202) 514-3642:
February 12, 2008:
Linda D. Koontz:
Director:
Information Management:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Koontz:
Thank you for the opportunity to review and comment on the Government
Accountability Office's (GAO's) draft report entitled "Freedom of
Information Act: Agencies Are Making Progress in Reducing Backlog, but
Additional Guidance is Needed" (GAO-08-344). The Department of Justice
is pleased that this report finds that agencies have made progress in
addressing their backlogs of requests since implementing their agency
FOIA Improvement Plans under Executive Order 13,392 and that that
progress has had a "positive effect" on FOIA administration. In Fiscal
Year 2006 alone, agencies devoted more than 5,500 employee work-years
to the administration of the FOIA.
We would like to address GAO's recommendations that the Department of
Justice's Office of Information and Privacy (OIP) provide additional
guidance to agencies both on "tracking and reporting overdue requests
and planning to meet the new backlog goals."
As noted in GAO's report, in September 2007, OIP posted guidance to
agencies on establishing backlog reduction goals for Fiscal Years 2008,
2009, and 2010. That guidance was issued as a result of one of the
recommendations made by the Attorney General to the President in his
June 2007 report on agency progress under Executive Order 13,392. In
that June 2007 report, the Attorney General recommended that any agency
that has a FOIA request or administrative appeal pending beyond the
statutory time period (i.e., a backlog) at the end of Fiscal Year 2007,
should establish backlog reduction goals for the next three fiscal
years. These goals were required to be posted on each agency's FOIA Web
site by November 1, 2007.
In addition, in October 2007, OIP issued additional guidance to
agencies on preparing their annual FOIA reports for Fiscal Year 2007
and specifically directed agencies to, for the first time, report on
their ten oldest pending FOIA requests and ten oldest pending
consultations received from other agencies.
As previously conveyed to GAO, OIP intends to issue still further
guidance to agencies that builds on the foundation laid by the
requirements to establish agency backlog reduction goals and to account
for the agency's ten oldest pending requests. OIP's guidance will both
encourage agencies to ensure appropriate planning to meet their backlog
reduction goals and to reduce the age of their oldest requests, as well
as provide additional requirements for reporting on backlogged
requests.
GAO also recommends that the Criminal Division FOIA Office establish
goals and time frames for closing its oldest pending requests,
including those pending over six years. We have been advised by the
FOIA Office of the Criminal Division that it has established goals and
time frames for closing its oldest requests. In fact, the Criminal
Division advised that as of the end of January 2008, of the ten oldest
cases originally reported to GAO, only two remain open. Further, the
Criminal Division FOIA Office advises that the likelihood of litigation
is no longer a consideration for prioritizing requests older than six
years.
Again, we appreciate the opportunity to comment on GAO's draft report,
and we look forward to additional collaboration in our efforts to
further improve FOIA processing government wide. If you have any
questions regarding our comments, please contact Richard P. Theis,
Department of Justice Audit Liaison, Audit Liaison Group on (202) 514-
0469.
Sincerely,
Signed by:
Melanie Ann Pustay:
Director, Policy and Litigation Office of Information and Privacy:
[End of section]
Appendix IX: Comments from the Office of Personnel Management:
The Director:
United States Office Of Personnel Management:
Washington, DC 20415:
February l3, 2008:
The Honorable David M. Walker:
Comptroller General:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Walker:
The Office of Personnel Management (OPM), appreciates the opportunity
to review the Government Accountability Office's (GAO) draft report
entitled Freedom of Information Act: Agencies are Making Progress in
Reducing Backlog, but Additional Guidance is Needed (GAO-08-344).
OPM does not dispute the reference on page 60 of the draft report
noting the absence of a baseline statistic. However, since the
completion of the audit, OPM rectified this issue by preparing and
posting backlog reduction goals and a baseline on our agency's website.
Thank you again for the opportunity to provide comments to your draft
report.
Sincerely,
Signed by:
Linda M. Springer:
Director:
[End of section]
Appendix X: GAO Contact and Staff Acknowledgments:
GAO Contact:
Linda D. Koontz, (202) 512-6240 or koontzl@gao.gov:
Acknowledgments:
In addition to the contact named above, key contributions to this
report were made by Ashley Brooks, Barbara Collier, Eric Costello,
Marisol Cruz, Wilfred Holloway, David Plocher, Kelly Shaw, and
Elizabeth Zhao.
[End of section]
Footnotes:
[1] 5 U.S.C. § 552.
[2] In an ordered set of values, the median is a value below and above
which there is an equal number of values; if there is no one middle
number, it is the arithmetic mean (average) of the two middle values.
[3] For example, see GAO, Freedom of Information Act: Processing Trends
Show Importance of Improvement Plans, GAO-07-441 (Washington, D.C.:
Mar. 30, 2007); Information Management: Implementation of the Freedom
of Information Act, GAO-05-648T (Washington, D.C.: May 11, 2005);
Information Management: Update on Freedom of Information Act
Implementation Status, GAO-04-257 (Washington, D.C.: Feb. 18, 2004);
Information Management: Progress in Implementing the 1996 Electronic
Freedom of Information Act Amendments, GAO-01-378 (Washington, D.C.:
Mar. 16, 2001).
[4] Executive Order 13392, Improving Agency Disclosure of Information
(Washington, D.C., Dec. 14, 2005).
[5] This time may be extended by 10 days in "unusual circumstances,"
such as when requests involve a voluminous amount of records or require
consultation with another agency.
[6] All other sections of the annual reports cover the fiscal year
only. The progress report section covers activities from the time the
plans were developed in June 2006 through mid to late January 2007.
[7] Data from the Central Intelligence Agency, General Services
Administration, and the Departments of Agriculture and Housing and
Urban Development were omitted from our analysis because we could not
be assured that the data were accurate and complete.
[8] We exclude SSA's statistics from our discussion of requests
received, requests processed, and their disposition because SSA reports
very large numbers of "simple requests handled by non-FOIA staff"
(discussed later in this report): about 17 million in fiscal year 2005
and over 18 million in fiscal year 2006. According to SSA, these
numbers were previously underreported; their inclusion, owing to a
change in the agency's counting methodology, resulted in a jump of
about 16 million from fiscal year 2004 to fiscal year 2005. Thus,
including these statistics in the governmentwide data would obscure
year-to-year comparisons.
[9] Statements on pending requests are based on statistics that include
the numbers reported by SSA, because they are not affected by the
millions of simple requests mentioned in footnote , for which SSA does
not keep statistics on pending requests.
[10] 28 U.S.C. § 2401(a).
[11] The act has been amended several times.
[12] There are also FOIA exclusions for specific, sensitive records
held by law enforcement agencies.
[13] This time may be extended by 10 days in "unusual circumstances,"
such as when requests involve a voluminous amount of records or require
consultation with another agency.
[14] Fees may be waived when disclosure of the information requested is
determined to be in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
[15] 5 U.S.C. § 552a.
[16] 44 U.S.C. §§ 3501-3521.
[17] This provision was added by the Freedom of Information Reform Act
of 1986 (Pub. L. 99-570).
[18] See OMB, Uniform Freedom of Information Act Fee Schedule and
Guidelines, 52 FR 10012 (Mar. 27, 1987), effective April 27, 1987. Also
in 1987, the Department of Justice issued guidelines on waiving fees
when requests are determined to be in the public interest. Under the
guidelines, requests for waivers or reduction of fees are to be
considered on a case-by-case basis, taking into account both the public
interest and the requester's commercial interests.
[19] 5 U.S.C.§ 552(e)(1).
[20] In reports that we issued before the Executive Order was issued,
we used the term "backlog" to refer to these pending cases.
[21] Department of Justice, Executive Order 13392 Implementation
Guidance (posted Apr. 27, 2006). See [hyperlink:
http://www.usdoj.gov/oip/foiapost/2006foiapost6.htm].
[22] Department of Justice, Attorney General's Report to the President
Pursuant to Executive Order 13392, Entitled "Improving Agency
Disclosure of Information" (Washington, D.C., June 1, 2007).
[23] Justice later updated the reporting templates provided in this
guidance: Department of Justice, Modified Templates to Use When
Submitting Backlog Reduction Goals for Fiscal Years 2008, 2009, and
2010, FOIA Post, October 16, 2007. See [hyperlink,
http://www.usdoj.gov/oip/foiapost/2007foiapost18.htm].
[24] Department of Justice, Supplemental Guidance for Preparation and
Submission of Section XII of Agency Fiscal Year 2007 Annual FOIA
Reports, FOIA Post, October 16, 2007. See [hyperlink,
http://www.usdoj.gov/oip/foiapost/2007foiapost17.htm].
[25] GAO-01-378.
[26] GAO, Information Management: Update on Implementation of the 1996
Electronic Freedom of Information Act Amendments, GAO-02-493
(Washington, D.C.: Aug. 30, 2002); GAO-04-257; and GAO-05-648T.
[27] GAO-07-441.
[28] The Small Business Administration did not set a measurable goal
because it reported no backlog of overdue cases. The National Science
Foundation, which reported a minimal backlog of overdue requests and a
median processing time of about 14 days, did not set a numerical goal
but instead included activities to increase efficiency.
[29] An internal control is an integral component of an organization's
management that provides reasonable assurance that operations are
effective and efficient, financial reporting is reliable, and the
organization is complying with applicable laws and regulations.
Internal controls include a wide range of diverse activities such as
approvals, authorizations, verifications, and reconciliations.
[30] GAO-07-441.
[31] In August 2006, the agency FOIA officer told us that she
questioned the completeness and accuracy of data supplied by the
agencies' 2,350 county offices. This official stated that some of the
field office data supplied for the annual report were clearly wrong,
leading her to question the systems used to record workload data at
field offices and the field office staffs' understanding of FOIA
requirements. She attributed this condition to the agency's
decentralized organization and to lack of management attention,
resources, and training.
[32] According to SSA officials, most of these simple requests are for
essentially the same types of information, such as copies of earnings
records and verifications of monthly benefit amounts or Social Security
numbers.
[33] According to SSA, its field organization is decentralized to
provide services at the local level, and includes 10 regional offices,
6 processing centers, and approximately 1,500 field offices.
[34] Denials can occur in the case of discrepancies in the requests,
such as incorrect Social Security numbers, for example.
[35] SSA has stated that it does not keep processing statistics (such
as median days to process) on these requests, which it reports
separately from other FOIA requests (for which processing statistics
are kept). However, officials say that these are typically processed in
a day or less.
[36] See the discussion of Privacy Act requests in the background (p.
). Justice guidance also advises agencies that the determining factor
for including requests in their annual reports is whether the agency
FOIA officer has decided to treat the request as a FOIA/Privacy Act
request, rather than a general information request, and that only
requests treated in this way should be included in agency annual
reports. See [hyperlink,
http://www.usdoj.gov/oip/foiapost/2001foiapost13.htm].
[37] Some of these agencies, like SSA, process a large number of
Privacy Act requests. For example, the Department of the Treasury has
stated that the majority of requests received by the Internal Revenue
Service are first-party requests for tax records; these requests make
up the bulk of Treasury FOIA statistics (about 80 percent). Also, a
large proportion of FOIA requests directed to the Department of
Veterans Affairs are for individual veterans' medical records.
[38] GA0-07-441; GAO-01-378; and GAO-04-257.
[39] To find an arithmetic mean, one adds all the members of a list of
numbers and divides the result by the number of items in the list. To
find the median, one arranges all the values in the list from lowest to
highest and finds the middle one (or the average of the middle two if
there is no one middle number). Thus, although using medians provides
representative numbers that are not skewed by a few outliers, they
cannot be summed. Deriving a median for two sets of numbers, for
example, requires knowing all numbers in both sets. Only the source
data for the medians can be used to derive a new median, not the
medians themselves.
[40] When DHS was established, it incorporated 22 separate federal
agencies and organizations, including FEMA (formerly an independent
agency) and the Immigration and Naturalization Service (formerly part
of the Department of Justice). The functions of the Immigration and
Naturalization Service were divided among three DHS components: Customs
and Border Patrol, Immigration and Customs Enforcement, and Citizenship
and Immigration Services.
[41] For more information on A-files, see GAO, Immigration Benefits:
Additional Efforts Needed to Help Ensure Alien Files Are Located when
Needed, GAO-07-85 (Washington, D.C.: Oct. 27, 2006).
[42] In addition, CIS is undertaking a transformation of its business
processes and technology in ongoing modernization efforts. We have
reviewed CIS's strategic transformation plans and reported on them in
GAO, USCIS Transformation: Improvements to Performance, Human Capital,
and Information Technology Management Needed as Modernization Proceeds,
GAO-07-1013R (Washington, D.C.: July 17, 2007).
[43] Some of this variation can be attributed to the different types of
requests that the agencies receive. As pointed out earlier, some
agencies receive large numbers of requests that require relatively
little processing (for example, VA receives many requests for
individual medical records). Other types of requests can require more
processing (such as requests for which responsive records are
voluminous or require extensive review and redaction). This topic is
further discussed later in this report.
[44] The rates shown are based on the reported number of requests
processed in a given year, expressed as a percentage of reported
requests received. Processing rates above 100 percent result in
decreases in pending requests in that year. However, in some cases,
agencies have reported corrections to reported pending cases from a
previous year that are not captured in these rates. Such corrections
have generally been minor, but could result in a rise in pending cases
where these cases previously showed a decline.
[45] Other statistics required were the time ranges of consultations
pending with other agencies.
[46] According to Justice guidance, when agencies cannot meet the
statutory time limits due to limitations on their resources or for
other reasons, they have adopted "the court-sanctioned practice of
generally handling backlogged FOIA requests on a 'first-in, first-out'
basis. The Electronic FOIA amendments expressly authorized agencies to
promulgate regulations providing for 'multitrack processing' of their
FOIA requests--which allows agencies to process requests on a first-in,
first-out basis within each track, but also permits them to respond to
relatively simple requests more quickly than requests involving complex
and/or voluminous records." Department of Justice, Freedom of
Information Act Guide (Washington, D.C., March 2007).
[47] Executive Order 12600 (June 23, 1987) requires federal agencies to
establish certain predisclosure notification procedures. The Executive
Order requires, with certain limited exceptions, that notice be given
to submitters of confidential commercial information when they mark it
as such or whenever the agency "determines that it may be required to
disclose" the requested data.
[48] 28 U.S.C. § 2401(a).
[49] According to these officials, the case file had been destroyed
after the case was closed.
[50] Department of Justice, Attorney General's Report to the President
on Executive Order 13392 (Washington, D.C., Oct. 16, 2006).
[51] Baseline dates ranged from February 2006 to September 2006, with
two exceptions. Justice reported by components, which provided pre-
implementation statistics ranging from October 2005 to October 2006.
The Department of the Interior provided us with statistics for February
2007 because it did not track its backlog of overdue requests in June
2006. Details are provided in table 9.
[52] SSA's goals included reducing its backlog by 5 percent by January
15, 2007, and closing 90 percent of its 10 oldest cases per year.
According to its 2006 annual report, it succeeded in reaching these
goals by the milestone dates.
[53] The pending figures provide an indication of the probable trend in
overdue cases, but these trends are probable only. It is possible that
an agency could experience an increase in pending numbers at the same
time as a decrease in overdue requests (if it received a great many
requests all at once at the end of an otherwise highly productive
reporting period). It is also theoretically possible that an agency
could experience a decrease in pending numbers while experiencing an
increase in overdue requests; this could happen if an agency was unable
to close numerous older requests during a reporting period in which it
otherwise completed processing more requests than it received.
[54] SBA did not set a measurable goal because it reported no backlog
of overdue cases. NSF, which reported a minimal backlog of overdue
requests and a median processing time of about 14 days, did not set a
numerical goal, but instead included activities to increase efficiency.
[55] In addition to setting backlog reduction goals, agencies also set
goals related to the other improvement areas, such as consultation
process, customer relations and communications, recruitment, use of
information technology, improvement of FOIA Web pages, and others. We
do not address these goals here, although some of them could
potentially contribute to reducing backlogs of overdue requests by
improving efficiency.
[56] The Attorney General's recommendations were included in his June
1, 2007, report to the President, Department of Justice, Attorney
General's Report to the President Pursuant to Executive Order 13392,
Entitled "Improving Agency Disclosure of Information" (Washington,
D.C., June 1, 2007). In accordance with Sec. 4(a) of the Executive
Order, the report includes recommendations for improving agency FOIA
administration.
[57] Justice later updated the reporting templates provided in this
guidance: Department of Justice, Modified Templates to Use When
Submitting Backlog Reduction Goals for Fiscal Years 2008, 2009, and
2010, FOIA Post, October 16, 2007. See [hyperlink,
http://www.usdoj.gov/oip/foiapost/2007foiapost18.htm].
[58] Agencies were also asked to provide estimates and corresponding
goals related to the numbers of administrative appeals for each fiscal
year.
[59] Thirteen agencies indicated by e-mail or letter that they had no
comments on the report: the Departments of Agriculture, Education,
Labor, HHS, HUD, Transportation, and the Treasury, as well as NASA,
NRC, NSF, OMB, SSA, and SBA.
[End of section]
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