Watchdog Group Counters Attorney General’s View of Improved FOIA Picture

A recent report by the U.S. Attorney General paints a mixed but generally positive picture of progress by the federal executive agencies in improving their responsiveness to Freedom of Information Act requests. Hard on its heels comes a study by the Coalition of Journalists for Open Government that points to scant progress by the agencies and instead suggests that they squandered a chance to reduce their backlog during a period of fewer requests.

The Freedom of Information Act (FOIA) was meant to make government more transparent and more accountable by creating the means for persons to obtain federal government records. Under an Executive Order of December 14, 2005, all of the Executive Branch agencies undertook a dedicated effort to improve their compliance with FOIA. The Executive Order mandates that each agency make a plan "to eliminate or reduce the agency's FOIA backlog, including . . . changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA." The Executive Order called for the plans to include concrete milestones and timetables that the Attorney General can use in monitoring agency improvements. The Attorney General assessed agency progress in a series of annual reports to the President, the last of which was due June 1, 2008.

In the last of the annual reports, made public in early June, the Attorney General found cause for optimism in the fact that 46 out of 89 federal agencies met all of the milestones in their plans. Of 25 key agencies, the 14 that did not meet all milestones at least made progress toward them. Agencies generally also improved customer service and increased their use of electronic reading rooms to make information available to the public without the need for FOIA requests.

Viewed critically, the AG's report strains to put a positive spin on its assessment, as in the section called "Despite Overall Increases in Incoming Requests, Agencies Overall Processed More Requests in Fiscal Year 2007." One hopes that receiving more FOIA requests should not so befuddle the government that it processes fewer requests as a result! Similarly, the report's claim that "backlog reduction is the single most significant improvement area" disguises the fact that the backlog reduction from 2006 to 2007 corresponds to a decrease in requests received, not an increase in requests processed. While pointing to roughly a dozen agencies that reduced their backlog of pending requests and lauding agency efforts to lay the foundation for future reductions, the AG acknowledges that much work remains to be done. Agencies are handicapped by staffing, facilities, and IT issues.

Not surprisingly, progress by the agencies in meeting their self-imposed, process-improvement milestones did not equate to reduced backlogs and improved response times. Using the same data available to the Attorney General from the agency Annual FOIA Reports, the Coalition of Journalists for Open Government (CJOG) fills in that part of the story. The year-end backlog of requests as a fraction of requests received increased at 8 of 25 key agencies (which include the 15 cabinet departments) between 2006 and 2007. More troubling, 13 of the 25 agencies showed a drop in the number of requests processed over that period -- in most cases a significant one -- in spite of the Executive Order. In the worst example, the number of requests processed fell by half, from 59,065 to 31,651, at the Department of Agriculture. The total backlog of requests at all agencies fell from its all-time high of 178,837 in 2006 to 149,890 in 2007, but this decrease can be explained almost entirely by a fall in the number of requests received while the number of requests processed remained stagnant. The CJOG claims that the failure to significantly increase the number of requests processed was an opportunity lost.

The CJOG also emphasizes that other measures of FOIA performance are in decline. The number of requests granted is falling. The annual number of full grants fell from 323,800 in 1998 to 187,881 in 2006 and further to 164,147 in 2007, slightly over half the 1998 number. Median wait time, another common-sense measure of performance, also worsened over the period. While many of the smaller agencies respond to simple requests in fewer than 20 days (in the median), performance within individual cabinet departments varies widely and wait times in the hundreds of days are common for both simple and complex requests.

It is, however, impossible to draw conclusions from the negative trends in requests granted and wait times without accounting for the characteristics of the requests themselves in greater detail than the available data permit. FOIA exempts information from disclosure on the basis of government interest in national security, protection of trade secrets, and protection of personal privacy, among other reasons. Justifiably refusing to comply with an information request on these bases does not reflect poor performance by the agencies. Likewise, long wait times may be justifiably influenced by the complexity of the requests and the age of the information sought. Thus, wait time and number of requests granted depend upon variables not captured in the agency FOIA reports and cannot be reliably evaluated without additional data or more resourceful analysis.

Even the most damning of the statistics presented by the CJOG, namely the stagnant number of requests processed and the declining number of personnel handling FOIA requests, might be justified if the agencies are in fact using electronic reading rooms more effectively, thereby reducing the need for FOIA requests in the first place. That would be in everyone's best interest.

The CJOG report may be the necessary counterweight to an overly optimistic assessment by the Attorney General, but neither report establishes conclusively whether the government is getting better at complying with the Freedom of Information Act. In any case there doubtless is ample room for improvement.

(Jim Ernstmeyer is a second-year law student at the Boston University School of Law and a Legal Intern at Harvard Law School's Cyberlaw Clinic.)


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