FOIA Performance Goes from Bad to Worst

The Coalition of Journalists for Open Government's (CJOG) analysis of government's implementation of the Freedom of Information Act (FOIA) indicates record-setting FOIA problems despite a positive June report on FOIA from the Justice Department. These problems come to light as a legislative effort to reform FOIA has passed both the House and Senate and may soon become law. The CJOG report, Still Waiting After All These Years: An In-Depth Analysis of FOIA Performance from 1998 to 2006, reviewed FOIA performance by 30 executive departments and agencies for the past eight years, which is when FOIA performance reporting by government began. The report documents growing problems with backlogs of unprocessed requests, declining levels of disclosure and increasing processing costs. The report notes that the backlog of unprocessed FOIA requests across all government agencies rose 26 percent from 2005 to 2006 to a new all-time high. According to the report, 26 agencies had a combined backlog of 39 percent at the end of 2006, which means that almost two out of every five requests did not get processed. Overall, the FOIA backlog has grown 200 percent since 1998. This record high occurred even though the number of requests dropped for two years running, six percent from 2005 and 10 percent since 2004. Information disclosure, even for the requests processed by agencies, has dropped significantly according to the CJOG report. In 2006, the number of denials, even with fewer requests being handled, rose 10 percent from the number of request denials in 2005. The number of requests for information that were fully granted by the government hit an all-time low in 2006, with only 41 percent of requests being fully granted. This is a significant drop from the 56 percent of requests that were fully granted in 1998. Another troubling trend uncovered in the CJOG report is the growing cost of processing FOIA requests despite reduced requests and personnel. Since 1998, total costs for FOIA processing have risen 40 percent, even though the number of requests processed dropped 20 percent during the same period. The average cost of handling an individual request rose from almost 80 percent, from $294 in 1998 to $526 in 2006. These increased costs also came despite the fact that the number of personnel working on FOIA is down 10 percent. "The self-reported performances of the federal departments and agencies in responding to Freedom of Information Act requests continues to deteriorate, despite a public nudge from the president, in a December 2005 executive order, to improve service," stated CJOG in the report. The CJOG findings starkly contrast the conclusions of a June report from the Department of Justice on agencies' implementation of a 2005 executive order to improve FOIA processing. The Justice report states that agencies are making "diligent and measurable progress." Executive Order 13392 required agencies to develop plans to improve FOIA procedures, reduce backlogs and increase public access to highly sought-after government information. However, as the CJOG report documents, the executive order has not been successful in improving FOIA. One form of help might be FOIA reform legislation, sponsored by Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX). Before the Senate went into its August recess, it unanimously passed the OPEN Government Act of 2007 (S. 849), which is a comprehensive reform of the FOIA process. The House passed similar legislation, the Freedom of Information Act Amendments of 2007 (H.R. 1309), on March 14, by a vote of 308-117. Now the two versions will need to be conferenced, which should not prove difficult. Hopefully, the new legislation will be more successful than the executive order in reducing agency backlogs and increasing the efficiency of FOIA procedures.
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