Is there a way to identify those federal agencies or components that need help with their FOIA operations? Simply look at their FOIA Annual Reports.
The FOIA statute required agencies to compile an annual report for Congress on their administration of the Act. The 1996 E-FOIA Amendments required additional detail in those annual reports, and instead provided that the annual reports be submitted promptly to the Department of Justice, and also published on the agency website.
The E-FOIA Amendments also tasked the Department of Justice with posting the FOIA Annual reports on the DOJ web site.
Executive Order 13392 signed by President George W. Bush in December 2005 required still more detail in the annual reports.
The Department of Justice promulgated a guidance for agencies on how to comply with Executive Order 13392 requirements.
Among the new requirements for annual reports are a description of the agency FOIA improvement plan, milestones identified in the plan, agency progress toward meeting that plan, the time range of pending requests, and the time range of requests involving interagency consultation.
Contrary to the opinion of skeptics, the Bush Executive Order has in fact accomplished a great deal to improve agencies' accountability with regard to their administration of FOIA.
Unpublished FOIA Annual Reports
Surprisingly, many agency components and bureaus compile FOIA Annual Reports but do not publicly disclose them. They send the reports on to the parent agency or department, which aggregates but don't always use all the data. Further, the components don't post the component or bureau level report on their websites.
Fortunately, components and bureaus recognize the public interest value of the reports and so, over time, an increasing percentage of these reports are being released and examined, some as a result of FOIA requests!
The FOIA annual report produced by a federal agency, department, component or bureau is a good way to spot incipient problems or worse. That's not terribly surprising considering the annual report was originally intended to do exactly that. But the new information required by E.O. 13392 has made it a much better diagnostic tool.
Reliable indicators of problems include:
- The number of pending FOIA requests increases substantially from the previous year, or is growing steadily each year;
This may suggests one of three possibilities: the backlog is growing and the staff is not catching up or has not been given the resources to catch up. Alternately, rapidly rising request numbers may also signal that the agency has decided to transform what had been routine citizen inquiries into FOIA requests and count them as such, increasing the processing burden. Or it may just be that the agency is getting more requests because of a newsworthy concern, particularly one that involves a disaster or concerns public health.
- The median time for pending FOIA requests increases sharply from the previous year, particularly if the number of pending requests is on the rise;
This may suggest that easier recent requests are being addressed at the expense of complex older requests.
- The agency reports sharply different median and average times for pending FOIA requests, particularly if the number of pending requests is growing from previous years;
This suggests an uneven distribution in the difficulty of requests and that the requests are not being handled in a first-in first-out (FIFO) manner.
- The percentage of administrative appeals (as a fraction of total requests received) is at a high level (more than the low single digits), or climbing substantially.
This suggests that requesters, who as a group typically do not resort to an administrative appeal, are sufficiently dissatisfied enough to do so.
- The percentage of denials (as a fraction of total denials or of total requests) that invoke exemption B2 or B5 increases markedly over previous years.
This suggests that agency staff could be using those discretionary exemptions in an injudicious or unwarranted manner.
- The number of requests with dispositions for fee reasons, cancelled, withdrawn or administratively withdrawn reaches high numbers (more than the low single digits);
These outcomes suggest a FOIA office willing to strike cases for any available reason and not seeking sufficiently to properly contact the requester. By requiring the requester to respond to a letter in 30 days or else, and taking advantage of people's natural inclination to let things slide or inability to respond within the given time limit, a FOIA office could cancel out a large number of requests despite continuing utility to the requester.
- The date of the oldest request still pending at the agency is not changing from one year to the next;
If the date of the oldest request does not change, it suggests that the agency has been unable or unwilling to take effective steps to resolve its oldest pending case. It may also signal that those oldest cases are very voluminous, complex or burdensome, or that the agency's interagency consultation process is unwieldy or inefficient.
FOIA Annual Reports, analyzed with these parameters in mind, can quickly identify those agencies, bureaus and components that require additional assistance, resources and attention in meeting their statutory obligations toward public openness and transparency.