FOIA Another Year Older, but Still Not Much Wiser

July 4 marked the 42nd anniversary of Congress' passage of the Freedom of Information Act (FOIA). The Department of Justice (DOJ) issued a report showing improvements in how the law is being implemented, including a reduction in backlogs of FOIA requests at agencies. Other reports, however, paint a much starker picture where backlogs continue to remain high (despite a one-year modest drop) and where the full granting of FOIA requests has dropped to the lowest level since records have been kept.

Sen. Patrick Leahy (D-VT) issued a June 25 statement remarking, "As we reflect upon the celebration of another FOIA anniversary, we in Congress must also reaffirm our commitment to open and transparent government."

FOIA was signed reluctantly by President Lyndon Johnson in 1966. As Johnson's White House press secretary said years later, "LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House." In fact, the bill was signed on July 4 without any signing ceremony.

Yet that law has become the foundation on which government transparency functions today. The law established the process by which anyone could request documents from agencies, which had to respond within 20 business days. Agencies had to make the records available unless they met certain exemptions or exclusions from disclosure under the law.

Department of Justice Thinks Things Are Looking Up for FOIA

The U.S. Attorney General's May 30 review of agency efforts to improve FOIA implementation concluded that agencies had "addressed multiple aspects of FOIA administration" and "made remarkable improvements." The review noted that all agencies reported success in meeting at least some of their FOIA milestones and that more than half met all of their milestones. The report described reducing backlogs of FOIA requests as "perhaps the single most significant improvement area addressed by agencies." The report then noted that despite more than half the agencies (49) reporting an increase in requests received in FY 2007, more than half the agencies (47) reported processing more requests than the previous year. It also found that more than 60 percent of agencies (57) reported cutting the number of backlogged requests.

The report is the third and final review required under Executive Order 13392, "Improving Agency Disclosure of Information," issued in December 2005. This same executive order requires agencies to establish improvement plans but provides no funding or enforcement to do so, stating that these goals are to be achieved "consistent with available resources."

Public access advocates never found the FOIA improvement plans all that impressive, and many also believe the Attorney General's report is misleading and overly positive about progress made to date. The report has been criticized for lacking complete specifics on all agencies' performance, relying instead on general figures about the number of agencies reporting improvements and then providing figures only for a few individual examples to illustrate the progress.

That report was followed by the DOJ annual report on FOIA for FY 2007, which was released on July 1. The annual report was equally rosy about FOIA implementation and maintained that FOIA requests had increased over the previous year by two percent or 346,080; backlogs had declined by 14 percent; and more FOIA requests were processed than the previous year with less money (down seven percent) and fewer employees (down three percent). Like the May report, the July report provided no agency details.

Public Interest Reports Do Not Find the Same Progress

On July 3, the Coalition of Journalists for Open Government (CJOG) released its review of performance by 25 key agencies on FOIA, entitled An Opportunity Lost. The CJOG report paints a picture of continuing problems with agency implementation of FOIA that is in stark contrast to the DOJ reports. The CJOG report provides detailed numbers from each agency to support its conclusions. One key issue is what numbers to use when discussing FOIA implementation. DOJ includes data from the Department of Veterans Affairs and the Social Security Administration when comparing year-to-year numbers. CJOG did not include this data because the two agencies "include large numbers of first person Privacy Act requests in their FOIA reporting." The VA has the largest number of FOIA requests of any agency. According to the CJOG report, federal agencies received 63,000 fewer requests in FY 2007 than in FY 2006, which contributed to agencies being able to clear some of their backlogs. However, while the overall backlog did drop from 39 percent in FY 2006 to 33 percent in FY 2007, the change was primarily driven by a handful of agencies making vast improvements to offset the eleven agencies that showed no improvement or even larger backlogs.

The report also indicates that the improvement in handling more requests in FY 2007 may have come at the direct expense of getting any information released. The CJOG report found the percentage of requesters who received either all or some of the information requested fell to an all-time low of 60 percent — meaning that 40 percent of the requests processed were rejected entirely. The drop in the number of full grants is startling. The average between FY 1998 and FY 2002 was 51.3 percent; the average between FY 2003 and FY 2007 was 42 percent; and in 2007, just 35.6 percent of FOIA requests were fully granted, the lowest since government started tracking this information.

Many of the conclusions of the CJOG report are corroborated by the March Knight Open Government Survey, conducted by the National Security Archive. The agency-by-agency survey found that 30 percent of agencies (18) actually experienced a backlog increase in 2007, and another 15 percent (nine agencies) reported having met backlog reduction milestones but still showed an increase in the number of pending requests at the end of FY 2007. The National Security Archive report also noted that only half of the agencies even set specific backlog reduction goals. Government-wide, the number of pending FOIA requests at the end of FY 2007 was only two percent lower than before Executive Order 13392 was issued.

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