Open, Accountable Government
Report Card Finds Federal Agencies Still Struggling to Implement the Freedom of Information Act -- 48 Years After Passage
by Peter Thomas, 3/10/2014
On March 10, the Center for Effective Government released a report card grading federal agencies on their implementation of the Freedom of Information Act. The overall results were disappointing: no agency earned a top overall grade of an A, and half received failing grades. The good news is that in each of the three performance areas we investigated, at least one agency earned an A.
Why FOIA Is Important
A building block of American democracy is the idea that as citizens, we have a right to information about how our government works and what it does in our name. The Freedom of Information Act (FOIA), passed almost 50 years ago, requires federal agencies to promptly respond to public requests for information unless disclosure of the requested information would harm a protected interest. Unfortunately, since its passage in 1966 and reform in 1974, federal agencies have failed to implement the law consistently.
Instead of using anecdotes about the lack of responsiveness by particular agencies on specific requests, we decided to take a more systematic and comparative approach to evaluate where agencies are falling down and where and how they can improve their responsiveness and performance. Making the Grade: Access to Information Scorecard 2014 Shows Key Agencies Still Struggling to Effectively Implement the Freedom of Information Act evaluated the 15 agencies that received over 90 percent of all FOIA requests on three performance areas – speed and completeness in processing requests, disclosure rules, and the utility of agency websites.
The American people, be they journalists, staff of nonprofit organizations, or individual citizens seeking records, request information from federal agencies on a daily basis. Records sought range from data on government spending to toxic chemicals to management of critical programs like Social Security and veterans' affairs. The agencies we examined regularly deal with such a wide range of requests. Responding to these requests is not just a bureaucratic requirement; it is an important step in a larger process to inform the public and hold agencies accountable.
The results of our analysis are sobering. None of the 15 agencies earned exemplary scores (an overall A grade), and only eight earned "passing grades" (60 or more out of a possible 100 points). The good news is that at least one agency earned an A in each of three performance areas, proving that excellence is within reach.
The Social Security Administration (SSA) was the top performer with a B grade. SSA performed exceptionally well at processing FOIA requests but earned relatively low scores for its rules and website. The Department of Justice (DOJ) achieved the second highest grade (B-), based on strong grades for its rules and website, rather than the actual release of information. The U.S. Environmental Protection Agency (EPA) came in third with a C+, also earning solid marks for its rules and websites, but a middling grade for processing requests. The Department of Agriculture (USDA) was fourth, with a C built on middling grades in each area. Only DOJ, EPA, and USDA received passing marks in all three areas examined.
The Departments of the Treasury, Transportation, and Health and Human Services, and the Securities and Exchange Commission received D or D- grades, failing at least one of the scorecard elements.
Seven agencies received overall failing grades: the Departments of Labor, Veterans Affairs, Defense, Homeland Security, and State, as well as the National Archives and Records Administration and Equal Employment Opportunity Commission. The State Department earned the lowest overall score of any agency, with a particularly low score for its request processing: a mere 17 percent.
While security-related agencies were among those with the lowest scores, the character of the materials the agency holds did not determine the scoring. Indeed, many security-related agencies hold large amounts of non-security information that can be heavily requested, such as records related to disaster response held by the Federal Emergency Management Agency (FEMA), located within the Department of Homeland Security. One could also argue that it is even more important for security-related agencies to have good rules and useful websites.
The complexity of the requests received is also often considered a factor in performance. The percentage of "simple" requests varies from a low of 15 percent at the Treasury Department to nearly 100 percent at the Securities and Exchange Commission. However, while the agencies with a greater percentage of simple requests tended to have higher processing scores, the relationship is far from determinative. Some agencies with a high proportion of simple requests scored poorly, and two agencies with a high proportion of complex requests did relatively well.
Despite these disappointing scores, we are confident that successful FOIA implementation is possible. While each agency will need to develop its own plan for improvement, each can learn from the strong performers and the best practices identified in this report.
The quickest and easiest way for agencies to improve their handling of FOIA requests is to improve their websites. Agencies could take note of a simple checklist of features to include: online submission and tracking of requests and appeals; expanded, regularly updated electronic reading rooms with a search function and FOIA logs; and full FOIA public liaison contact information. It's notable that five of the 15 agencies reviewed did not provide something as basic as full FOIA contact information (name, phone number, e-mail address) on their websites. Additionally, if an agency had a fully functional and responsive website and usable reading room, it should reduce the overall number of requests and the staff time required to respond to routine inquiries, leaving precious staff time to actually fill requests.
Clarifying policies and rules on processing could also help staff improve performance. Updating disclosure rules to include commonsense provisions such as publishing online indexes of disclosed records would reduce duplication. All agencies should adopt basic communication commitments in their FOIA rules such as acknowledging requests as soon as possible (preferably electronically), seeking clarification from requesters when necessary, and contacting requesters about their inquiries before denying them as unreasonable. Establishing 60 days as the time limit for filing appeals would also improve performance.
There are some practices applicable to most agencies that would improve their processing of requests. Starting points include continuing to reduce the size of request backlogs while reducing the average time to respond to requests and appeals, ideally within the 20-day FOIA mandate. Many agencies should also explore how to increase rates of full grants and overturned appeals in the favor of requesters and post indexes of disclosed records. Agencies adopting these practices would increase their efficiency in processing requests and more regularly post information online that is most frequently requested by the public. And if more information is already disclosed online, there is the potential for fewer requests being necessary in the first place.
The Freedom of Information Act represents the codification of one of our founding principles – that a democratic government is answerable to the people. The passage of the Freedom of Information Act almost 50 years ago and repeated efforts to strengthen the law demonstrate our ongoing commitment to the idea that ordinary people have a right to know what their government does and to ensure that its actions reflect our national values and priorities. As uncomfortable as it may be at times for agencies to receive such scrutiny, public access to information is critical to a healthy democracy and to government of, by, and for the people.