Introduction
All federal agencies are required to prepare annual reports of their Freedom of Information Act activities. These Annual FOIA Reports are prepared on a fiscal-year basis and must be submitted to the Attorney General no later than February 1 of each year. See 5 U.S.C. § 552(e)(1) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.
In the wake of the OPEN Government Act of 2007, which amended the reporting requirements for agencies' Annual FOIA Reports, the Department of Justice, in consultation with OMB, revised both the content and the format of agency Annual FOIA Reports. Beyond the new statutory mandates, DOJ included additional reporting requirements for agencies in the comprehensive new reporting guidelines which were issued by the Office of Information Policy last May. See FOIA Post, "2008 Guidelines for Agency Preparation of Annual FOIA Reports" (posted 5/22/2008).
Significantly, the new reporting requirements require agencies to include data on agency backlogs as well as data on the ten oldest pending requests. Moreover, in order to provide a more accurate picture of FOIA activity, DOJ directed agencies to only include Privacy Act of 1974 (PA), 5 U.S.C. § 552a (2006), access requests in their Annual FOIA Reports if the FOIA was utilized in some way in responding to the request. Thus, if an agency search extended beyond a PA "system of records," see 5 U.S.C. § 552a (a)(5), the search would constitute a FOIA search and so the request would be included in the agency Annual FOIA Report. Similarly, in those instances where a PA exemption applied to portions of records responsive to the request, the agency would have been required to consider whether the FOIA allowed access to the records, and again that request would be included in the agency's Annual FOIA Report. Conversely, though, for any request where the agency conducted a PA search only and did not assert a PA exemption for any records located, such a PA access request was not to be included in the agency's Annual FOIA Report.
As a result, in comparing the numbers from Fiscal Year 2007 with those of Fiscal Year 2008, certain agencies, such as the Department of Agriculture, HHS, DOL, VA, and SSA, recorded a significant decrease in the number of requests received because for Fiscal Year 2008 these departments and that agency were no longer combining all their PA requests with their FOIA requests. Because Fiscal Year 2008 was the first year agencies utilized these new reporting requirements, complete comparisons of the numbers of requests received, as well as other comparisons, will not be possible until next year.
Set forth below is a summary compilation of a sampling of the information contained in the Annual FOIA Reports prepared by the fifteen federal departments and seventy-seven federal agencies for Fiscal Year 2008. This summary is done each year by OIP to provide an overall picture of FOIA activity across the government.1
Number of Requests Received
The total number of FOIA requests received by all federal departments and agencies during Fiscal Year 2008 was 605,491. This total reflects a significant decrease in the total number of requests reported received compared to the number reported during Fiscal Year 2007, which was 21,758,651. As mentioned, this decrease can be directly tied to DOJ's new reporting requirements which limit the Annual FOIA Report to those access requests that involve use of the FOIA. As was also noted above, the elimination of pure PA requests from Annual FOIA Report request tallies most notably affected the total numbers of requests received for the Department of Agriculture, HHS, DOL, VA, and SSA. In particular, the Department of Agriculture which reported in Fiscal Year 2007 a combined FOIA/PA request total of 31,500, for Fiscal Year 2008, when reporting solely those requests which utilized the FOIA, reported a total of 12,976. HHS similarly went from a combined count of 289,721 in Fiscal Year 2007, to a total for FOIA requests received in Fiscal Year 2008 of 58,299. DOL went from a combined count of 27,944 in Fiscal Year 2007, to a total for FOIA requests received in Fiscal Year 2008 of 20,798. VA went from a combined count of 2,008,589 in Fiscal Year 2007, to a total for FOIA requests received in Fiscal Year 2008 of 99,333. Likewise, SSA went from a combined count of 18,995,845 in Fiscal Year 2007, to a total for FOIA requests received in Fiscal Year 2008 of 34,444.2
Thus, this change in the reporting requirement more accurately reflects the total number of FOIA requests received governmentwide. From Fiscal Year 2008 onward, it will be easier to compare statistics and see trends because the statistics reflected in the Annual FOIA Report will be those for which the FOIA was utilized and will not be skewed by the voluminous numbers of PA requests that some agencies receive.
Of all federal departments, DHS reported the largest number of requests received, 108,952. VA reported the second-highest number of requests received, 99,333, and DOD's total, 71,228, was third highest.
Among the federal agencies, SSA topped the list with 34,444 requests received. EEOC received the next highest number of requests with 14,460 received. NARA was third highest, receiving 14,075 requests, and EPA was fourth highest, receiving 11,492 requests.
The federal departments reporting receiving the lowest numbers of requests during Fiscal Year 2008 were DOE, which received 1605 requests, the Department of Education, which received 1921 requests, and the Department of Commerce, which received 1936 requests. The following agencies received the fewest requests in Fiscal Year 2008: the Office of Navajo and Hopi Indian Relocation, which received four requests; the Inter-American Foundation, which received five requests; the Farm Credit System Insurance Corporation, which received six requests; the Broadcasting Board of Governors and the Federal Maritime Commission, which each received ten; the National Capital Planning Commission, which received fifteen; the National Mediation Board, which received sixteen; and the Millenium Challenge Corporation, which received nineteen requests.
Backlog Reduction
Prior to the change DOJ made to the Annual FOIA Report guidelines in 2008, precise data on backlogs, i.e., the number of requests pending beyond the statutory response time, had not been included in agency Annual FOIA Reports. This issue has been remedied as agencies are now required to report on the number of backlogged requests in Section XII of their Annual FOIA Reports. A year to year comparison of those numbers will be possible starting next year.
Overall, the number of backlogged requests pending as of the end of Fiscal Year 2008 was 133,295. This figure represents approximately twenty-two percent of the requests received during the fiscal year. Of the federal departments, all reported having some backlog. DHS had the highest number of backlogged requests, with 74,879 in its backlog. This constituted fifty-six percent of the backlog. HHS had 19,362 backlogged requests, and DOD had the next highest with 11,533. Combined, those three departments accounted for nearly eighty percent of the total number of backlogged requests. The Department of Commerce had the fewest backlogged requests, reporting 143. DOE had 247, and the Department of Education had the third lowest with 348.
By contrast, among the agencies, thirty reported no backlogged requests as of the end of Fiscal Year 2008. Another thirty-one reported a backlog of twenty or fewer requests. Only sixteen had a backlog higher than twenty. NARA had the highest number of backlogged requests at 5781. The CIA reported the next highest at 940, and the SEC reported the third highest at 899 backlogged requests.
Agency backlogs of administrative appeals of initial denials of requests are now also newly part of the reporting requirements. Overall, the total number of backlogged FOIA administrative appeals for Fiscal Year 2008 was 6197. Of the federal departments, HUD reported no backlog of administrative appeals. DOE reported six, and the Department of Education had twenty backlogged administrative appeals. DHS reported the highest number of backlogged administrative appeals with 2401. DOD had 675, and the Department of the Interior had the third highest number at 537.
Again, among the agencies the numbers were quite different, with sixty reporting no backlog of administrative appeals, and twelve reporting less than twenty. Only five agencies had a backlog of administrative appeals higher than twenty. The CIA reported the highest number of backlogged administrative appeals with 152. The EPA had 151, and the SEC had the third highest number at 45.
The Ten Oldest Pending Requests and Administrative Appeals
A distinct aspect of backlog reduction involves closing the oldest of the pending requests and pending appeals at each agency. Agencies now include the age of their ten oldest pending requests and appeals in their Annual FOIA Reports. While there are signs of progress being made in this area, there still remains much to be done in this critical area of backlog reduction.
Of the fifteen federal departments, six reported that their oldest request dated from the 1990's, while nine reported that their oldest requests dated from 2000 through 2006. DOD reported the oldest pending request, received December 1, 1992. The Department of the Treasury reported the second oldest pending request, received March 1, 1994, and DOJ reported the third oldest pending request, received February 13, 1995.
There is significant improvement when the range of dates among the ten oldest requests is examined. For the fifteen federal departments, fourteen reported a year or multi-year jump between the age of their oldest request and the age of their tenth oldest request, as reported in Section VII.E.
Among the agencies, only two agencies reported having requests pending since the 1990's; the CIA reported a request that has been pending since May 1, 1992, and NARA reported a request that has been pending since September 21, 1992. OPM reported the third oldest request which has been pending since August 28, 2001. By contrast, twenty-one of the agencies reported that their oldest pending request was from 2008.
As to the oldest pending administrative appeals, ten of the federal departments reported that their oldest appeals were from 2001 through 2007. Four of the departments reported that their oldest administrative appeals were from the 1990's. HHS reported the oldest pending administrative appeal, received June 23, 1994. DOD reported the second oldest pending administrative appeal, received October 26, 1995, and the Department of the Treasury reported the third oldest pending administrative appeal, received November 28, 1995.
Only two agencies reported having administrative appeals pending since the 1990's; the CIA reported an administrative appeal that was received March 1, 1993, and EPA reported an administrative appeal that was received February 26, 1999. NARA reported the third oldest administrative appeal that was received January 25, 2005. Fifty-three agencies had no pending administrative appeals and another eighteen reported that their oldest pending administrative appeal was from 2008.
Disposition of Requests
The total number of FOIA requests processed by all federal departments and agencies during Fiscal Year 2008 was 623,186. This exceeds by nearly eighteen thousand the number of FOIA requests received across the government, reflecting some overall progress in reducing the backlog of requests.
Because, as mentioned above, agency Annual FOIA Reports now do not include PA access requests which do not require utilization of the FOIA, the number of processed requests is significantly lower than reported in previous years. Going forward, it will be possible to readily compare from year to year agency progress in processing FOIA requests.
Four of the fifteen federal departments, provided total grants of access more than fifty percent of the time. These Departments were the Department of Agriculture, HHS, the Department of the Interior, and VA. DOE provided total grants of access over forty percent of the time, as did the Department of the Treasury.
Among the agencies, twenty-five provided total grants of access more than fifty percent of the time. Overall, for 260,594 requests departments and agencies provided a full grant of the requested records. That represents approximately forty-two percent of the requests processed for Fiscal Year 2008.
For another 117,032 requests, departments and agencies provided a partial grant of access. This represents approximately nineteen percent of the requests processed. Combined, approximately sixty percent of all requests result in release of either all or some of the requested records. Only four percent of the requests processed in Fiscal Year 2008, or 25,549, were denied in full based on FOIA exemptions. Additionally, departments and agencies had no responsive records for 81,238 requests, or for approximately thirteen percent of all requests. Lastly, three percent of all requests, 19,180, were withdrawn by the requester.
Use of Exemptions
As has been the case for many years, the FOIA exemption cited most often was Exemption 6 to protect matters of personal privacy. Exemption 7(C), which also protects personal privacy was used the next most often. Exemption 5 was cited the third highest number of times. Under Exemption 3 of the Act, agencies withheld information pursuant to a variety of nondisclosure statutes. OIP will post separately a list of all Exemption 3 statutes that were used by the departments and agencies (available at http:// www.usdoj.gov/oip/exemption3-statutes.pdf).
Administrative Appeals of Initial Denials of Requests
DOJ, among all federal departments and agencies, received the largest number of administrative appeals of initial denials of access requests. It received 2852 appeals during Fiscal Year 2008. Among federal departments, DHS received the second highest number of appeals, receiving 1692, and DOD received the third highest, receiving 864.
Among the agencies, the EEOC topped the list with 297 administrative appeals, followed by the SEC, receiving 196, and the USPS, receiving 185. By contrast, twenty-eight agencies reported receiving no administrative appeals in Fiscal Year 2008, and an additional twenty-four agencies reported receiving five or fewer appeals during the year. In other words, over half of the agencies subject to the FOIA received no more than five administrative appeals of initial FOIA denials during Fiscal Year 2008.
The total number of administrative appeals received by the departments and agencies was 8800. The total number processed was 11,179. As occurred with the number of requests processed, agencies overall processed more administrative appeals than were received, resulting in an overall reduction in the number of backlogged administrative appeals. DOJ processed the most appeals, processing 3667 appeals, DHS processed the next highest number at 2590, and DOD processed the third highest number at 862.
Median Number of Days to Process Simple,
Complex, and Expedited Requests
As a result of the new guidelines for Annual FOIA Reports, starting with Fiscal Year 2008, federal departments and agencies reported an agencywide median of the number of days taken to process FOIA requests in three tacks: simple, complex, and expedited.3
Eight departments, the Department's of Agriculture, Commerce, Labor, Interior, Treasury, DOT, HHS, and DOJ, as well as fifty-seven agencies all reported processing simple requests within a median number of days of twenty days or less. The highest median for simple requests among departments was 87, reported by DHS. The highest median among the agencies for simple requests was 89, reported by OPIC.
The median number of days to process complex requests was twenty or fewer for two of the departments, the Department of Labor and the Department of the Treasury. The remaining departments reported a median number of days to process complex requests ranging from 21 days to 374. Eleven agencies reported a median of twenty days or less for processing complex requests. The remaining agencies reported a median number of days for processing complex requests ranging from 21 days to 570.
The median number of days to process expedited requests was twenty days or less for nine of the departments. The remaining departments reported a range of 23 days to 41 days as the median number of days to process expedited requests. Fourteen agencies had a median of twenty days or less to process expedited requests. The remaining agencies reported a median number of days for processing expedited requests ranging from 25.5 days to 212 days.
Expedited Processing
During Fiscal Year 2008, departments and agencies reported granting 4159 requests for expedited processing, and denying 4500 such requests.4 Of the departments, VA reported the highest number of such grants by a wide margin - 2641 requests were granted expedited processing. The next highest numbers were reported by DOD at 193 granted, then by DOJ with 185 granted, and finally by the Department of Labor with 122 granted. Of the agencies, the EEOC reported the highest number of such grants by a wide margin - 605 requests were granted expedited processing.
Staffing Levels
The new Annual FOIA Report guidelines clarified and simplified how staffing levels were to be counted. Rather than computing "work years," agencies now provide both their number of "full-time FOIA employees" and the number of "equivalent full-time FOIA employees" and then add them together for the total " full-time FOIA staff" at each agency. Starting with Fiscal Year 2009, it will be possible to compare these staffing numbers from year to year.
A total of over 3691 "full-time FOIA staff" were devoted to administration of the FOIA throughout the federal government during Fiscal Year 2008.
Among departments, DOD reported the greatest number of full-time FOIA staff, reporting approximately 689. DOJ reported the second-highest number, 388, and DHS was third highest, with 318 full-time FOIA staff. The departments with the fewest full-time FOIA staff were the Department of Commerce, reporting 29, followed by the Department of Education with 32, and HUD with 68.
Among agencies, fifty-six agencies reported having the equivalent of five or fewer full-time FOIA staff during the fiscal year. The agencies reporting the greatest numbers of full-time FOIA staff were SSA with 123, EPA with 118, EEOC with 65, the CIA with 51, and the SEC with 33 full-time FOIA staff.
Costs
In Fiscal Year 2008, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was an estimated $338,403,831.22. This figure marks a decrease of approximately thirty-one million dollars from the preceding fiscal year. As has been mentioned, because of the change in reporting requirements for agency Annual FOIA Reports, the elimination of PA access requests could well have impacted the cost figures reported. Comparisons will be possible starting next year.
Over seventeen million dollars of these costs were reported as having been spent on litigation-related activities. Of total costs, $11,601,087.30, or approximately 3%, was reported to have been recouped by the government through the collection of FOIA fees.
The federal department with the highest total costs was DOD, which spent nearly seventy-one million dollars on FOIA-related activities during Fiscal Year 2008. DOJ and HHS were the departments reporting the second and third highest costs, reporting more than forty-eight million dollars and more than twenty-eight million dollars respectively. The federal department reporting the least amount of spending on FOIA-related activities was HUD, reporting less than four hundred thousand dollars.
Among the federal agencies, seventeen reported spending over one million dollars on FOIA matters during the fiscal year. SSA led this group, reporting expenditures of nearly fifteen million dollars during the course of the year. Among the others were the CIA, spending approximately eleven million dollars, EPA, spending close to ten million dollars, the SEC, spending over four million dollars, USPS, spending approximately three million dollars, and five agencies - the FCC, the FDIC, GSA, NARA, and OPM - spending approximately two million dollars each. At the lower end of the spectrum, seventeen agencies reported total FOIA-related costs of $25,000 or less during the year.
Conclusion
As a result of the changes to the reporting requirements for agency Annual FOIA Reports, a vast amount of data is now collected and reported regarding agencies' handling of FOIA requests and appeals. OIP has highlighted here some key data elements in order to provide an overall summary of agency FOIA activity. Links to each agency's Annual FOIA Reports are easily accessible from DOJ's website. (posted 8/19/2009, updated 8/24/2009, link inserted 9/23/2009)
1 Given the timing of the enactment of the OPEN Government Act and the subsequent issuance of the new reporting guidelines, not all agencies were able to provide all data newly called for. In those instances, OIP calculated its figures based on the data that was provided. In preparing this summary, OIP has also corrected any math errors it identified in agencies' reports. Finally, due to the number of Annual FOIA Reports, the nature of the data reported, and the individualized explanations often provided for discrete entries, OIP has compiled here a generalized summary of the data.
2 Although the Department of Agriculture, HHS, DOL, VA and SSA have eliminated their pure PA requests from their Annual FOIA Reports, these agencies, like all others, continue to process PA access requests, which for these five combined total approximately twenty million each year.
3 Not all agencies were able to provide all variations of the data due to the limitations of their tracking systems.
4 These overall numbers are significantly lower than those reported for Fiscal Year 2007. A key reason is that under the new reporting guidelines for Annual FOIA reports, VA no longer includes the vast numbers of requests for expedited processing that are made in connection with Privacy Act access requests.
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