Reports Detail Agency Efforts to Improve FOIA Implementation

4/19/2011

New reports from federal agencies' chief FOIA officers reveal efforts to improve the performance of the Freedom of Information Act (FOIA) system. The reports show that many agencies have taken steps to improve their FOIA performance over the last year but that many challenges persist despite these advances.

Background

Agencies have long been required to submit annual FOIA reports quantifying each agency's performance on FOIA implementation. These reports contain data on the number of requests received and processed, the number of requests backlogged, the number of requests denied, the grounds for denial, and the cost of FOIA activities. Government and advocates then use these data to identify improvements and trouble spots, as in an OMB Watch analysis released during Sunshine Week in March.

In contrast, the chief FOIA officer reports explain the specific actions that agencies have taken to improve their FOIA performance. Agencies were directed to prepare the chief FOIA officer reports by Attorney General Eric Holder's March 2009 FOIA memorandum.

The reports focus on aspects of policy changed or emphasized by the Obama administration. For the 2011 reports, agencies were asked to describe what they have done to:

  • Implement the presumption of openness;
  • Efficiently respond to requests;
  • Increase proactive disclosures;
  • Improve the use of technology; and
  • Reduce backlogs.

Agencies were also asked to spotlight a particular success story from their FOIA work.

Agencies submitted their first FOIA officer reports in March 2010. The Department of Justice (DOJ) posted a summary of the reports in July 2010.

Several agencies are currently not included on the DOJ list of 2011 reports. However, a report may be available on a non-included agency's website, as is the case with the Department of Commerce.

The Contents of the Reports

Several agencies reported updating their FOIA policies to support greater openness. For instance, the Department of Defense (DOD) is revising its guidance and expects to publish it later in 2011. The Department of Education (ED) published new FOIA regulations effective July 2010. The Department of Veterans Affairs (VA) recently issued a policy on making discretionary releases where an exemption could apply based on the likelihood of foreseeable harm.

Some agencies reported broader efforts to reform their FOIA performance. For instance, the U.S. Environmental Protection Agency (EPA) started a FOIA workgroup to review its policy. The VA is assembling a FOIA Backlog Working Group to examine its backlog.

Resourcing was a mixed story across the agencies. Some reports included information on the hiring of additional personnel. The Department of Energy (DOE) reported that "while budget is a continuing challenge, some offices have hired additional staff to process requests." The Consumer Product Safety Commission (CPSC) reviewed its staffing levels, and as a result, it hired several additional FOIA employees and contractors. Additionally, several components of the VA hired additional staff or contractors.

Other agency reports noted problems with understaffing. For instance, one component of the VA identified the need for additional staff but is unable to hire at this time due to budgetary constraints. ED suffered a reduction in staffing, which it named as a cause of the increase in the department's backlog; the department is in the process of returning to its previous staffing level. Some components of DOD reported being understaffed and have noted problems with high turnover and the burden of frequently training new staff.

Several agencies reported some success in closing their oldest requests. DOE closed five of its ten oldest pending cases, including the single oldest request, which dated back to 2000. ED closed seven of its ten oldest requests.

The reports also provided agencies an opportunity to explain the data reported in their annual reports, which vary widely in length. For instance, DOD reduced its overall backlog by 31 percent, while some DOD components reduced their backlogs by 90 percent or more. Meanwhile, the VA's backlog increased by two percent, despite receiving 42 percent fewer requests. The department noted, "We are currently unable to determine the root causes for the increase in the FOIA backlog in FY 2010." At the same time, of requests processed, the VA increased the percentage granted both in full and in part, to a combined 65 percent, up from 40 percent the prior year. In addition, the average time needed to process a request at the VA dropped from 36 days to 14. Additionally, ED credited its review process for reducing the use of Exemptions 2 and 5 by 40 and 38 percent, respectively.

Several agencies reported making use of information technology to facilitate the FOIA process. DOE established an online form for FOIA requests and began utilizing more of the capabilities of its processing software, such as electronic redaction. CPSC is systematically scanning its records into an electronic filing system and has also reviewed its processing software and will purchase the latest updates. DOD is developing a tool to automatically collect data on FOIA performance from its numerous components.

Some agencies used the reports to tout new online tools. CPSC highlighted its recently launched Consumer Product Safety Information Database at SaferProducts.gov. EPA noted that its MyPropertyInfo tool, launched in June 2010, has reduced the number of requests on specific properties prior to real estate transactions.