Information Management: Implementation of the Freedom of
Information Act (11-MAY-05, GAO-05-648T).
The Freedom of Information Act (FOIA) establishes that federal
agencies must provide the public with access to government
information, thus enabling them to learn about government
operations and decisions. To help ensure appropriate
implementation, the act requires that agencies report annually to
the Attorney General, providing specific information about their
FOIA operations. GAO has reported previously on the contents of
these annual reports for 25 major agencies. GAO was asked to
describe the FOIA process and discuss the reported implementation
of FOIA.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-648T
ACCNO: A23940
TITLE: Information Management: Implementation of the Freedom of
Information Act
DATE: 05/11/2005
SUBJECT: Data integrity
Federal law
Freedom of information
Government information
Internal controls
Reporting requirements
Government information dissemination
Policy evaluation
Policies and procedures
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GAO-05-648T
United States Government Accountability Office
GAO Testimony before the Subcommittee on Government Management, Finance and
Accountability, Committee on Government Reform, House of Representatives
For Release on Delivery
Expected at 2:00 p.m. EDT on INFORMATION
Wednesday, May 11, 2005
MANAGEMENT
Implementation of the Freedom of Information Act
Statement of Linda D. Koontz
Director, Information Management Issues
GAO-05-648T
May 11, 2005
INFORMATION MANAGEMENT
Implementation of the Freedom of Information Act
[IMG]
What GAO Found
Although the specific details of processes for handling FOIA requests vary
among agencies, the major steps in handling a request are similar across
the government. Agencies receive requests, usually in writing (although
they may accept requests by telephone or electronically), which can be
submitted by any organization or member of the public. Once requests are
received, the agency responds through a process that includes several
phases: initial processing, searching for and retrieving responsive
records, preparing responsive records for release, approving the release
of the records, and releasing the records to the requester. Figure 1 is an
overview of the FOIA process, from the receipt of a request to the release
of records.
According to data reported by agencies in their annual FOIA reports,
citizens have been requesting and receiving an ever-increasing amount of
information from the federal government through FOIA. The number of
requests that agencies received increased by 71 percent from 2002 to 2004.
Further, agencies reported they have been processing more requests-68
percent more from 2002 to 2004. For 92 percent of requests processed in
2004, agencies reported that responsive records were provided in full to
requesters. However, the number of pending requests carried over from year
to year-known as the backlog-has also been increasing, rising 14 percent
since 2002.
Figure 1: Overview of Generic FOIA Process United States Government
Accountability Office
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to participate in the Subcommittee's hearing
on the implementation of the Freedom of Information Act (FOIA).1 Generally
speaking, FOIA establishes that federal agencies must provide the public
with access to government information, thus enabling them to learn about
government operations and decisions. Specific requests by the public for
information through the act have led to disclosure of waste, fraud, abuse,
and wrongdoing in the government, as well as the identification of unsafe
consumer products, harmful drugs, and serious health hazards. To help
ensure appropriate implementation, the act requires that agencies report
annually to the Attorney General, providing specific information about
their FOIA operations.
As requested, in my remarks today, I will describe the FOIA process at
federal agencies and discuss the implementation of FOIA. To develop a
description of the FOIA process at federal agencies, we compiled and
analyzed information from Department of Justice documentation and from our
previous reports.2 To assess implementation of FOIA, we examined,
consolidated, and analyzed annual report data for fiscal years 2002
through 2004 from 25 major agencies3 (herein we refer to this scope as
governmentwide). We did
1 See 5 U.S.C. S: 552.
2 GAO, Information Management: Progress in Implementing the 1996
Electronic Freedom of Information Act Amendments, GAO-01-378 (Washington,
D.C.: Mar. 16, 2001); Information Management: Update on Implementation of
the 1996 Electronic Freedom of Information Act Amendments, GAO-02-493
(Washington, D.C.: Aug. 30, 2002); and Information Management: Update on
Freedom of Information Act Implementation Status, GAO-04-257 (Washington,
D.C.: Feb. 18, 2004).
3 The agencies included the 24 agencies covered by the Chief Financial
Officers Act and the Central Intelligence Agency. These 24 departments and
agencies are the Departments of Agriculture, Commerce, Defense, Education,
Energy, Health and Human Services, Homeland Security, Housing and Urban
Development, the Interior, Justice, Labor, State, Transportation, the
Treasury, and Veterans Affairs; Environmental Protection Agency; General
Services Administration; National Aeronautics and Space Administration;
National Science Foundation; Nuclear Regulatory Commission; Office of
Personnel Management; Small Business Administration; Social Security
Administration; and U.S. Agency for International Development. For fiscal
year 2002, we included the Federal Emergency Management Agency. For fiscal
years 2003 and 2004, we included the Department of Homeland Security,
which then incorporated the Federal Emergency Management Agency.
not independently verify the accuracy of the data provided in agency
annual reports. We discussed the content of this statement with an
official of the Department of Justice's Office of Information and Privacy
to confirm the accuracy of our information. We performed our work from
April 2005 to May 2005, in accordance with generally accepted government
auditing standards.
Results in Brief
Although the specific details of processes for handling FOIA requests vary
among agencies, the major steps in processing a request are similar across
the government. Agencies receive requests, usually in writing (although
they may accept requests by telephone or electronically), which can be
submitted by any organization or member of the public. Once received, the
request goes through several phases, which include initial processing,
searching for and retrieving responsive records, preparing responsive
records for release, approving the release of the records, and releasing
the records to the requester.
Citizens have been requesting and receiving an ever-increasing amount of
information from the federal government through FOIA. Based on data
reported by agencies in their annual FOIA reports, the number of requests
received by agencies increased by 71 percent from 2002 to 2004. As more
and more requests come in, agencies also report that they have been
processing more of them- 68 percent more from 2002 to 2004. For 92 percent
of requests processed in 2004, agencies reported that responsive records
were provided in full to requesters. However, the number of pending
requests carried over from year to year-known as the backlog- has also
been increasing, rising 14 percent since 2002.
Background
FOIA, which was originally enacted in 1966 and subsequently amended
several times, establishes a legal right of access to government records
and information, on the basis of the principles
of openness and accountability in government. Before the act, an
individual seeking access to federal records had faced the burden of
establishing a right to examine them. FOIA established a "right to know"
standard for access, instead of a "need to know," and shifted the burden
of proof from the individual to the government agency seeking to deny
access. The act has been amended several times, including in 1974, 1976,
1986, 1996, and 2002.
FOIA provides the public with access to government information either
through "affirmative agency disclosure"-publishing information in the
Federal Register or making it available in reading rooms-or in response to
public requests for disclosure. Public requests for disclosure of records
are the best known type of FOIA disclosure. Any member of the public may
request access to information held by federal agencies, without showing a
need or reason for seeking the information.
The act prescribes nine specific categories of information that is exempt
from disclosure; agencies may cite these exemptions in denying access to
material (see table 1). The act also includes provisions for excluding
specific sensitive records held by law enforcement agencies. The act
requires agencies to notify requesters of the reasons for any adverse
determination and grants requesters the right to appeal agency decisions
to deny access.
Table 1: Freedom of Information Act Exemptions
Exemption number Matters that are exempt from FOIA
(1) (A) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified pursuant to such
Executive Order.
(2) Related solely to the internal personnel rules and practices of an
agency.
(3) Specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (A) requires that matters
be withheld from the public in such a manner as to leave no discretion on
the issue, or (B) establishes particular criteria for withholding or
refers to particular types of matters to be withheld.
(4) Trade secrets and commercial or financial information obtained from a
person and privileged or confidential.
(5) Inter-agency or intra-agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with the
agency.
(6) Personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.
(7) Records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or
information
(A) could reasonably be expected to interfere with enforcement
proceedings;
(B) would deprive a person of a right to a fair trial or impartial
adjudication;
(C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy;
(D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by confidential source;
(E) would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(F) could reasonably be expected to endanger the life or physical safety
of an individual.
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency responsible
for the regulation of supervision of financial institutions.
(9) Geological and geophysical information and data, including maps,
concerning wells.
Source: 5 U.S.C. S: 552(b)(1) through (b)(9).
In addition, agencies are required to meet certain time frames for making
key determinations: whether to comply with requests (20 business days from
receipt of the request), responses to appeals of adverse determinations
(20 business days from filing of the appeal), and whether to provide
expedited processing of requests (10 business days from receipt of the
request). Congress did not establish a statutory deadline for making
releasable records available, but instead required agencies to make them
available promptly.
We have reported several times in the past on the contents of the annual
reports of 25 major agencies, covering fiscal years 1998 through 2002. We
first reported information in 20014 on the implementation of the 1996
amendments to FOIA. At that time we recommended that Justice (1) encourage
agencies to make material electronically available and (2) review agency
annual reports to address specific data quality issues. Since our report
was issued, Justice has taken steps to implement both of these
recommendations. In 2002, we reported5 that the number of requests
received and processed appeared for most agencies-except the Department of
Veterans Affairs-to peak in fiscal year 2000 and decline slightly in
fiscal year 2001. In our 2004 report,6 we reported that between 2000 and
2002, the number of requests received and processed declined when the
Department of Veterans Affairs is excluded. We also reported that
agencies' backlogs of pending requests were declining, and that the number
of FOIA requests denied governmentwide had dropped dramatically between
2000 and 2001 and remained low in 2002.
Roles of Justice and OMB in FOIA Implementation
The Department of Justice and the Office of Management and Budget (OMB)
both have roles in the implementation of FOIA. The Department of Justice
oversees agencies' compliance with FOIA and is the primary source of
policy guidance for agencies. OMB is responsible for issuing guidelines on
the uniform schedule of fees.
Specifically, Justice's requirements under the act are to
0M make agencies' annual FOIA reports available through a single
electronic access point and notify Congress as to their availability;
4 GAO, Information Management: Progress in Implementing the 1996
Electronic Freedom of Information Act Amendments, GAO-01-378 (Washington,
D.C.: Mar. 16, 2001).
5 GAO, Information Management: Update on Implementation of the 1996
Electronic Freedom of Information Act Amendments, GAO-02-493 (Washington,
D.C.: Aug. 30, 2002).
6 GAO, Information Management: Update on Freedom of Information Act
Implementation Status, GAO-04-257 (Washington, D.C.: Feb. 18, 2004).
0M in consultation with OMB, develop guidelines for the required annual
agency reports, so that all reports use common terminology and follow a
similar format; and
0M submit an annual report on FOIA statistics and the efforts undertaken
by Justice to encourage agency compliance.
Within the Department of Justice, the Office of Information and Privacy
(OIP) has lead responsibility for providing guidance and support to
federal agencies on FOIA issues. OIP first issued guidelines for agency
preparation and submission of annual reports in the spring of 1997 and
periodically issued additional guidance. OIP also periodically issues
guidance on compliance, provides training, and maintains a counselors
service to provide expert, oneon-one assistance to agency FOIA staff.
Further, it also makes a variety of FOIA and Privacy Act resources
available to agencies and the public via the Justice Web site and on-line
bulletins.
In addition, the act requires OMB to issue guidelines to "provide for a
uniform schedule of fees for all agencies."7 In charging fees for
responding to requests, agencies are required to conform to the OMB
guidelines. Further, in 1987, the Department of Justice issued guidelines
on waiving fees when requests are determined to be in the public interest.
Under the guidelines, requests for waivers or reduction of fees are to be
considered on a case-by-case basis, taking into account both the public
interest and the requester's commercial interests.
The 1996 FOIA amendments, referred to as e-FOIA, require that agencies
submit a report to the Attorney General on or before February 1 of each
year that covers the preceding fiscal year and includes information about
agencies' FOIA operations. 8 The following are examples of information
that is to be included in these reports:
7 This provision was added by the Freedom of Information Reform Act of
1986 (Pub. L. 99570). See OMB, Uniform Freedom of Information Act Fee
Schedule and Guidelines, 52 FR 10011 (Mar. 27, 1987), effective April 27,
1987.
8 5 U.S.C.S: 552(e).
0M number of requests received, processed, and pending;
0M median number of days taken by the agency to process different types of
requests;
0M determinations made by the agency not to disclose information and the
reasons for not disclosing the information;
0M disposition of administrative appeals by requesters;
0M information on the costs associated with handling of FOIA requests; and
0M full-time-equivalent staffing information.
In addition to providing their annual reports to the Attorney General,
agencies are to make them available to the public in electronic form. The
Attorney General is required to make all agency reports available on line
at a single electronic access point and report to Congress no later than
April 1 of each year that these reports are available in electronic form.
Disposition of Agency Requests
As agencies process FOIA requests, they generally place them in one of
four possible disposition categories: grants, partial grants, denials, and
"not disclosed for other reasons." These categories are defined as
follows:
0M Grants: agency decisions to disclose all requested records in full.
0M Partial grants: decisions to withhold some records in whole or in part,
because such information was determined to fall within one or more
exemptions.
0M Denials: agency decisions not to release any part of the requested
records because all information in the records is determined to be exempt
under one or more statutory exemptions.
0M Not disclosed for other reasons: agency decisions not to release
requested information for any of a variety of reasons other than statutory
exemptions from disclosing records. The categories and definitions of
these "other" reasons for nondisclosure are shown in table 2.
Table 2: "Other" Reasons for Nondisclosure
Category Definition
No records The agency searched and found no record responsive to the
request.
Referrals The agency referred records responsive to the request to another
agency. Request withdrawn The requester withdrew the request.
Fee-related reasons The requester refused to commit to pay fees (or other
reasons related to fees).
Records not reasonably The requester did not describe the records sought
with sufficient specificity to allow them to be located described with a
reasonable amount of effort.
Not a proper FOIA request The request was not a FOIA request for one of
several procedural reasons.
Not an agency record The requested record was not within the agency's
control.
Duplicate request The request was submitted more than once by the same
requester.
Source: Department of Justice.
When a FOIA request is denied in full or in part, or the requested records
are not disclosed for other reasons, the requester is entitled to be told
the reason for the denial, to appeal the denial, and to challenge it in
court.
Fee Structure and Fee Waivers
FOIA also authorizes agencies to recoup certain direct costs associated
with processing requests, and agencies also have the discretion to reduce
or waive fees under various circumstances. Agency determinations about
fees and fee waivers are complex decisions that include determining (1) a
requester's fee category, (2) whether a fee waiver is to be granted, and
(3) the actual fees to be charged.
FOIA stipulates three types of fee categories for requesters: (1)
commercial; (2) educational or noncommercial scientific institutions and
representatives of the news media; and (3) other. Further, fees can be
charged for three types of FOIA-related activities-search, duplication,
and review-depending on the requester's fee category. In addition, fees
may not be charged to a requester in certain situations, such as when a
fee waiver is granted or when the applicable fees are below a certain
threshold.
Commercial users can be charged for the broadest range of FOIArelated
activities, including document search, review, and duplication. Commercial
use is defined in the OMB fee schedule guidelines as "a use or purpose
that furthers the commercial, trade
or profit interests of the requester or the person on whose behalf the
request is being made." The second category exempts search and review fees
for documents sought for noncommercial use by educational or noncommercial
scientific institutions, and for documents sought by representatives of
the news media. The third category of fees, which applies to all
requesters who do not fall within either of the other two categories,
allows for "reasonable" charges for document search and duplication. Table
3 shows the FOIA-related activities for which agencies can charge by fee
category, as stipulated in the act.
Table 3: FOIA Charges by Category
Activities for which agencies can charge Category of requester Search
Review Duplication
Category 1: Commercial requester Yes Yes Yes
Category 2: Educational or No No Yes
noncommercial scientific institutions (100 pages
and free)
representatives of the news media
Category 3: Other Yes No Yes
(100 pages
(2 hours free) free)
Source: GAO analysis of 5 U.S.C. S: 552 (a)(4)(A)(iv).
Although the act generally requires that requesters pay fees to cover the
costs of processing their requests, in certain circumstances, fees are not
to be charged. For example, as stipulated in the act, fees may not be
charged when the government's cost of collecting and processing the fee is
likely to equal or exceed the amount of the fee itself.
Further, under certain circumstances, the act requires an agency to
furnish documents without charge, or at reduced charges. This is commonly
referred to as the FOIA fee-waiver provision. Based on this provision, an
agency must provide a fee waiver if two conditions are met:
0M disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government, and
0M disclosure of the information is not primarily in the commercial
interest of the requester.
Under the act and guidance, when these requirements are both satisfied,
based upon information supplied by a requester or otherwise made known to
the agency, the fee waiver or reduction is to be granted by the FOIA
officer. When one or both of these requirements are not satisfied, a fee
waiver is not warranted. As these criteria suggest, fee waivers are to be
granted on a case-bycase basis. Individuals who receive fee waivers in
some cases may not necessarily receive them in other cases.
Relationship of FOIA and the Privacy Act
In addition to FOIA, the Privacy Act of 19749 includes provisions granting
individuals the right to gain access to and correct information about
themselves held by federal agencies. Thus the Privacy Act serves as a
second major legal basis, in addition to FOIA, for the public to use in
obtaining government information. The Privacy Act also places limitations
on agencies' collection, disclosure, and use of personal information.
Although the two laws differ in scope, procedures in both FOIA and the
Privacy Act permit individuals to seek access to records about
themselves-known as "first-party" access. Depending on the individual
circumstances, one law may allow broader access or more extensive
procedural rights than the other, or access may be denied under one act
and allowed under the other. Subsequently, the Department of Justice's
Office of Information and Privacy (OIP) issued guidance that it is "good
policy for agencies to treat all firstparty access requests as FOIA
requests (as well as possibly Privacy Act requests), regardless of whether
the FOIA is cited in a requester's letter." This guidance was intended to
help ensure that requesters receive the fullest possible response to their
inquiries, regardless of which law they cite. For more information about
FOIA and the Privacy Act, see appendix I.
9 See 5 U.S.C. S: 552a.
The FOIA Process at Federal Agencies
Although the specific details of processes for handling FOIA requests vary
among agencies, the major steps in handling a request are similar across
the government. Agencies receive requests, usually in writing (although
they may accept requests by telephone or electronically), which can come
from any organization or member of the public. Once received, the request
goes through several phases, which include initial processing, searching
for and retrieving responsive records, preparing responsive records for
release, approving the release of the records, and releasing the records
to the requester. Figure 1 is an overview of the process, from the receipt
of a request to the release of records.
Figure 1: Overview of Generic FOIA Process
During the initial processing phase, a request is logged into the agency's
FOIA system, and a case file is started. The request is then reviewed to
determine its scope, estimate fees, and provide an initial response to the
requester. After this point, the FOIA staff begins its search to retrieve
responsive records. This step may include searching for records from
multiple locations and program offices. After potentially responsive
records are located, the documents are reviewed to ensure that they are
within the scope of the request.
During the next two phases, the agency ensures that appropriate
information is to be released under the provisions of the act. First, the
agency reviews the responsive records to make any redactions based on the
statutory exemptions. Once the exemption review is complete, the final set
of responsive records is turned over to the FOIA office, which calculates
appropriate fees, if applicable. Before release, the redacted responsive
records are then given a final review, possibly by the agency's general
counsel, and then a response letter is generated, summarizing the agency's
actions regarding the request. Finally, the responsive records are
released to the requester.
Some requests are relatively simple to process, such as requests for
specific pieces of information that the requester sends directly to the
appropriate office. Other requests may require more extensive processing,
depending on their complexity, the volume of information involved, the
need for the agency FOIA office to work with offices that have relevant
subject-matter expertise to find and obtain information, the need for a
FOIA officer to review and redact information in the responsive material,
the need to communicate with the requester about the scope of the request,
and the need to communicate with the requester about the fees that will be
charged for fulfilling the request (or whether fees will be waived).
Specific details of agency processes for handling requests vary, depending
on the agency's organizational structure and the complexity of the
requests received. While some agencies centralize processing in one main
office, other agencies have separate FOIA offices for each agency
component and field office. Agencies also vary in how they allow requests
to be made. Depending on the agency, requesters can submit requests by
telephone, fax, letter, or e-mail or through the Web. In addition,
agencies may process requests in two ways, known as "multitrack" and
"single track." Multitrack processing involves dividing requests into two
groups: (1) simple requests requiring relatively minimal review, which are
placed in one processing track, and (2) more voluminous and complex
requests, which are placed in another track. In contrast, single-track
processing does not distinguish between simple and complex requests. With
single-track processing, agencies process all requests on a
first-in/first-out basis. Agencies can also process FOIA
requests on an expedited basis when a requester has shown a compelling
need or urgency for the information.
FOIA Implementation
Citizens have been requesting and receiving an ever-increasing amount of
information from the federal government, as reflected in the increasing
number of FOIA requests that have been received and processed in recent
years. In fiscal year 2004, the 25 agencies we reviewed reported receiving
and processing about 4 million requests, an increase of 25 percent
compared to 2003. From 2002 to 2004, the number of requests received
increased by 71 percent, and the number of requests processed increased by
68 percent.
The 25 agencies we reviewed handle over 97 percent of FOIA requests
governmentwide. They include the 24 major agencies covered by the Chief
Financial Officers Act, as well as the Central Intelligence Agency and,
beginning in 2003, the Department of Homeland Security (DHS) in place of
the Federal Emergency Management Agency (FEMA). While the creation of DHS
in fiscal year 2003 led to a shift in some FOIA requests from agencies
affected by the creation of the new department, the same major component
entities are reflected in all 3 years that we reviewed. For example, in
2002, before DHS was formed, FEMA independently reported on its FOIA
requests, and its annual report is reflected in our analysis. However,
beginning in 2003, FEMA became part of DHS, and thus its FOIA requests are
reflected in DHS figures for 2003 and 2004.
In recent years, Veterans Affairs (VA) has accounted for a large
portion-about half-of governmentwide FOIA requests received and processed.
This is because the agency includes in its totals the many first-party
medical records requests that it processes. However, VA's numbers have not
driven the large increases in FOIA requests. In fact, in 2004, the agency
had a decline in the number of requests received, processed, and pending
compared to 2003. Thus,
when VA is excluded from governmentwide10 FOIA request totals, the
increase between 2003 and 2004 changes from 25 percent to 61 percent.
Figure 2 shows total requests reported governmentwide for fiscal years
2002 through 2004, with VA's share shown separately.
Figure 2: Total FOIA Requests with VA Shown Separately, Fiscal Years
2002-2004
Note: For 2004, data were unavailable for the Agency for International
Development and the Environmental Protection Agency.
10 For 2004, data were unavailable for the Agency for International
Development and the Environmental Protection Agency.
In 2004, most dispositions of FOIA requests (92 percent) were reported to
have been granted in full, as shown in table 4. Only relatively small
numbers were partially granted (3 percent), denied (1 percent), or not
disclosed for other reasons (5 percent). When VA is excluded from the
totals, the percentages remain roughly comparable.
Table 4: Disposition of Processed Requests for Fiscal Year 2004
Number of Percentage of
Number of Percentage of requests requests
Disposition requests requests (without (without VA)
(all) (all) VA)
Grants 3.6 million 92 1.9 million
Partial grants 113,000 3 105,000
Denial 22,000 1 15,000
Not disclosed 5
for 196,000 158,000
other reasons
Source: FOIA annual reports for 2004 (self-reported data).
Note: Totals are rounded. Because of rounding, the total percentage of
requests processed exceeds 100 percent.
Agencies other than VA that reported receiving large numbers of requests
in fiscal year 2004 included the Social Security Administration (SSA), the
Department of Health and Human Services (HHS), and the Department of
Homeland Security (DHS), as shown in figure 3. Agencies other than VA,
SSA, HHS, and DHS accounted for only 9 percent of all requests.
Figure 3: Number of Requests Received by Agency for 2004
Note: Because of rounding, the total percentage received exceeds 100
percent.
Remaining agencies include the Central Intelligence Agency, Commerce,
Energy, Interior, Labor, Transportation, Education, the General Services
Administration, Housing and Urban Development, the National Aeronautics
and Space Administration, the Nuclear Regulatory Commission, the National
Science Foundation, the Office of Personnel Management, the Small Business
Administration, and State. Information was not available for the Agency
for International Development or the Environmental Protection Agency at
the time of our review.
Three of the four agencies that handled the largest numbers of
requests-VA, SSA, and HHS-also granted the largest percentages of requests
in full. However, as shown in figure 4, the numbers of fully granted
requests varied widely among agencies in fiscal year 2004. For example,
three agencies-State, the Central Intelligence Agency, and the National
Science Foundation -made full grants of requested records in less than 20
percent of the cases they
processed. Eight of the 25 agencies we reviewed made full grants of
requested records in over 60 percent of their cases.11 This variance among
agencies in the disposition of requests has been evident in prior years as
well.12
11 Information for the Agency for International Development and the
Environmental Protection Agency was not available for fiscal year 2004.
12 See GAO, Information Management: Progress in Implementing the 1996
Electronic Freedom of Information Act Amendments, GAO-01-378 (Washington,
D.C.: Mar. 16, 2001); and Information Management: Update on Freedom of
Information Act Implementation Status, GAO-04-257 (Washington, D.C.: Feb.
18, 2004).
Figure 4: Disposition of Processed Requests, by Agency (Fiscal Year 2004)
Note: Abbreviations are as follows: CIA: Central Intelligence Agency; DHS:
Department of Homeland Security; DOC: Department of Commerce; DOD:
Department of Defense; DOE: Department of Energy; DOI: Department of
Interior; DOJ: Department of Justice; DOL: Department of Labor; DOT:
Department of Transportation; ED: Department of Education; GSA: General
Services Administration; HHS: Health and Human Services; HUD: Housing and
Urban Development; NASA: National Aeronautics and Space Administration;
NRC: Nuclear Regulatory Commission; NSF: National Science Foundation; OPM:
Office of Personnel Management; SBA: Small Business Administration; SSA:
Social Security Administration; State: Department of State; Treas:
Department of the Treasury; USDA: Department of Agriculture; VA: Veterans
Affairs. Reports were not available for the Agency for International
Development (AID) or the Environmental Protection Agency (EPA).
Agency Backlogs Have Increased
In addition to processing greater numbers of requests, many agencies (13
of 25) also reported that their backlogs of pending requests-requests
carried over from one year to the next-have increased since 2002. In 2002,
pending requests governmentwide
were reported to number about 140,000; whereas in 2004, about 160,000-14
percent more-were reported.
Mixed results were reported in reducing backlogs at the agency level-some
backlogs decreased while others increased, as reported from 2002 through
2004. The number of requests that an agency processes relative to the
number it receives is an indicator of whether an agency's backlog is
increasing or decreasing. Six of the 25 agencies we reviewed reported
processing fewer requests than they received each year for fiscal years
2002, 2003, and 2004- therefore increasing their backlogs (see fig. 4).
Nine additional agencies also processed less than they received in two of
these three years. In contrast, five agencies (CIA, Energy, Labor, SBA,
and State) had processing rates above 100 percent in all three years,
meaning that each made continued progress in reducing their backlogs of
pending cases. Thirteen agencies were able to make at least a small
reduction in their backlogs in 1 or more years between fiscal years 2002
and 2004.
Figure 1: Agency Processing Rate for 25 Agencies
Note: Abbreviations are as in figure 3.
The agency processing rate is defined as the number of requests processed
in a given year compared with the requests received, expressed as a
percentage.
In 2002, FEMA data were used, and for 2003 and 2004 DHS data were used.
For 2004, data were unavailable for the Agency for International
Development and the Environmental Protection Agency.
FOIA does not require agencies to make records available within a specific
amount of time. As I mentioned earlier, Congress did not establish a
statutory deadline for making releasable records available, but instead
required agencies to make them available promptly. Agencies, however, are
required to inform requesters within 20 days of receipt of a request as to
whether the agency will comply with the request.
For 2004, the reported time required to process requests by track varied
considerably among agencies (see table 5). Eleven agency
components reported processing simple requests in less than 10 days, as
evidenced by the lower value of the reported ranges. These components are
part of the Departments of Energy, Education, Homeland Security, Health
and Human Services, the Interior, Justice, Labor, Transportation, the
Treasury, and Agriculture. On the other hand, some organizations are
taking much more time to process simple requests, such as components of
Energy, Interior, and Justice. This can be seen in upper end values of the
median ranges greater than 100 days. Components of four agencies
(Interior, Education, Treasury, and VA) reported processing complex
requests quickly-in less than 10 days. In contrast, several other agencies
(DHS, Energy, Justice, Transportation, Education, HHS, HUD, State,
Treasury, and Agriculture) reported components taking longer to process
complex requests, with median days greater than 100. Four agencies (HHS,
NSF, OPM, and SBA) reported using single-track processing. The processing
times for single track varied from 5 days (at SBA) to 182 days (at an HHS
component).
Table 5: Median Days to Process Requests for 2004, by Track
Type of request processing track
Agency Simple Complex Single Expedited
AID - - - -
CIA 7 63 -
DHS 8-84 5-111 - 3-45
DOC 13 41 -
DOD 17 59 -
DOE 1-158 18-916 - 5-7
DOI 3-834 0-99 - 2-64
DOJ 0-137 6-636 - 1-195
DOL 2-30 18-60 - 2-25
DOT 1-68 23-135 - 5-57
ED 0-30 2-134 - 3-21
EPA - - - -
GSA - 14 - -
HHS 9-25 60-325 5-182 2-66
HUD 21-95 30-161 - 9-42
NASA 18 33 - 26
NRC 11 47 - 60
NSF - - 20 -
OPM - - 9 -
SBA - - 5 -
Type of request processing track
Agency Simple Complex Single Expedited
SSA 19 37 - -
State 6 209 - 184
Treas 2-10 4-172 - 5-10
USDA 1-77 12-800 - 1-53
VA - 4-49 - 1-18
Source: FOIA annual reports for fiscal years 2004 (self-reported data).
Note: For agencies that reported processing times by component, the table
indicates the range of reported component median times. A dash indicates
that the agency did not report any median time for a given track in a
given year. For 2004, EPA and AID annual reports were not available.
Based on the data in agency annual reports, it was not feasible to
determine trends at the agency level in the amount of time taken to
process requests (reported annually as the median number of days to
process requests). This is largely because many agencies have reported
median processing times at a component level, making it difficult to
derive overall agency median processing times. Nearly half (12 of 25) of
the agencies reported median times at a component level. Although this
practice does not provide agencylevel indicators, it provides visibility
into differences in processing times among the various components of
agencies, which can sometimes be substantial.
In summary, FOIA continues to be a valuable tool for citizens to obtain
information about the operation and decisions of the federal government.
Agencies have received steadily increasing numbers of requests and have
also continued to increase the number of requests that they process.
Despite this increase in processing requests, the backlog of pending cases
continues to grow. Given this steadily increasing workload, it will remain
critically important that strong oversight of FOIA implementation continue
in order to ensure that agencies remain responsive to the needs of
citizens.
Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions you or other Members of the Subcommittee may have
at this time.
Contact and Acknowledgements
If you should have questions about this testimony, please contact me at
(202) 512-6240 or via e-mail at [email protected]. Other major contributors
included Barbara Collier, John de Ferrari, and Elizabeth Zhao.
Appendix I: Relationship of FOIA and the Privacy Act of 1974
In addition to rights under the Freedom of Information Act (FOIA),
individuals also have rights of access to government information under the
Privacy Act of 1974. The Privacy Act restricts the federal government's
use of personal information. More precisely, it governs use of information
about an individual that is maintained in a "system of records," which is
any group of records containing information about an individual from which
information is retrieved by individual identifier. With regard to access,
the Privacy Act gives individuals the right to have access to information
about themselves that is maintained in a system of records so that they
can review, challenge, and correct the accuracy of personal information
held by the government.
While both laws generally give individuals the right of access to
information (subject to exemptions), there are several important
differences:
0MWhile FOIA generally gives a right of access to all federal government
records, the Privacy Act applies only to records pertaining to an
individual that are retrieved by individual identifier.
0MWhile FOIA generally gives "any person" a right of access to records,
the Privacy Act gives access to only the subject of a particular record
and only if that person is a U.S. citizen or a lawfully admitted permanent
resident alien.
0MWhile FOIA exempts categories of records from public release, including
where disclosure would constitute an unwarranted invasion of personal
privacy,13 the Privacy Act's exemptions pertain to a variety of the act's
requirements, not just access (e.g., that agencies account for all
disclosures of personal information, that they maintain only relevant and
necessary personal information, and that they notify the public of their
sources for obtaining records of personal information).
13 5 U.S.C. S: 552(b)(6) and (b)(7).
Under current Department of Justice guidance, agencies are to treat an
individual's requests for his or her own records as a request under FOIA
as well as the Privacy Act. This is intended to ensure that individuals
are fully afforded their rights under both laws. As a practical matter, it
appears that agencies generally consider requests for access to one's own
records as FOIA requests, without any separate accounting as Privacy Act
requests. These requests are referred to as "first-party requests" and
their addition to agency FOIA statistics can been seen, for example, in
the large numbers of FOIA requests reported by agencies such as VA and
SSA.
Apart from questions about the role of the Privacy Act in FOIA decisions,
privacy questions are often dealt with independently under FOIA. The act's
two privacy exemptions [(b)(6) & (7)] protect from public release
information about individuals in "personnel and medical files and similar
files" and "information compiled for law enforcement purposes," the
disclosure of which would constitute an "unwarranted invasion of personal
privacy." These statutory provisions have resulted in an analysis that
involves a "balancing of the public's right to disclosure against the
individual's right to privacy."14 This approach led, for example, the
Supreme Court to decide that there is a significant private interest in
the "practical obscurity" of criminal history records even though they are
officially public records.15 The development and refinement of such
privacy principles continues as agencies and the courts make new
"balancing" decisions in FOIA cases. Accordingly, it is difficult to
definitively describe the extent of privacy protection under FOIA, or to
characterize federal privacy protection as limited to the terms of the
Privacy Act.
14 Dept. of the Air Force v. Rose, 425 U.S. 352, 372; U.S. Department of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749
(1989).
15 Reporters Committee, at 780.
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