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FOIA Facts: Why Backlogs Matter

By Scott A. Hodes, Published on August 21, 2004

The Department of Justice recently posted comprehensive statistics regarding FOIA requests for Fiscal Year 2003. Over 3.2 million FOIA requests were logged by federal agencies, which was a new record. Almost one half of those requests were made to the Department of Veterans’ Affairs and the Social Security Administration. Most requests to those agencies are from individuals seeking their own records for their own personal use.

I believe that the most interesting thing about these reports is the various backlogs of agencies. Backlogs are listed in bureaucratic speak as ”requests pending.” These are requests that are still on an agency’s books as of the end of Fiscal Year 2003. Read with the “average days to process a request”, one can see which agencies are likely to have requests languishing on their books for months, or in some cases, even years.

Some may wonder why backlogs matter? Simply put, if an agency has a backlog, requesters are not getting information in a timely manner. While the reasons a FOIA request is made isn’t pertinent to the processing of the request, waiting months for a few pages of information can cause harm to the requester for many reasons. Events that the information is needed for can occur before the release is made, or in some cases requesters can even die waiting for their request to be processed. While some agency and administration personnel may think that people not getting information in a timely manner may not be so bad because it means it won’t cause the government headaches by the information’s exposure, it completely defeats the purpose of the FOIA. The Freedom of Information Act’s purpose is to allow the public to know what the government is up to. Backlogged information completely prevents this.

Backlogs may also cause other burdens on agencies. If requester’s sue on the agencies delay, agencies must show a federal court that their backlogs are due to something outside their control and that they are working diligently working to decrease their backlog. Unfortunately, few requesters are willing to challenge agencies on this issue in court, primarily due to the expense of litigation. However, a reading of the annual statistics for a number of years makes it likely that some agencies would not be able to justify their lengthy delays.

Finally, the direction of backlogs says a lot about how the Executive Branch really feels about the FOIA. During the Clinton Administration, backlogs at many agencies were vigorously attacked and sizably reduced. Unfortunately, the recently released statistics show that the current administration has allowed these initiatives to stop, and backlogs to increase.

[Editor's Note: the author worked at the Department of Justice’s Office of Information and Privacy from 1991 until 1998, and the FBI’s FOIA Privacy Act Section from 1998 until 2002.]